### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON July 9, 2002 Session
STATE OF TENN ESSEE v. COREY M ICKENS, CHRISTO PHER SMITH,

MATTHEW DIXON,

AND CHONC EY JONES Direct Appeal from the Criminal Court for Shelby County No. 98-02267-70 Joseph B. Dailey, Judge

No. W1999-01169-CCA-R3-CD - Filed F ebruary 14, 2003

The defendants, Corey

Mickens, Christopher Smith, Matthew Dixon, and Choncey Jones, all members of the Ga

ngster Disciple s, were indicted for various offenses as the result of the kidnapping of Marshall Shipp and Ricky Aldridg e and subseq uent bea ting of A ldridge and murde

r of Shipp, both of whom also were Gangster Disciples. M icke ns was convicted of first degree mur der in the perpetrationof agg

ravate d kidnapp ing and

especia lly a ggra vated kid napping of Sh ip p. Smith, Dixon, and Jones were convicted of first degree premeditated murder and especially aggravated kidnapping of Shipp, a

nd allfour def

endants w ere con

victed of the espe cially

aggravated kidnapping of Aldridg e. All fou

r defendants we

re sente nced to li fe withou

t the possib ility

of parole on the f

irst degree mu rd er ch ar ge s. Ad di ti on al ly, Mickens was sentenced to two consecutive twenty -two-yea r sentences for the two especially aggravated kidnapping

charges. Smith w as sentencedto two consecutive forty-y

ear sentences for the two espec ially ag gravated kidnapping charges. Dixon was sentenced to two con secutive

thirty -two-y

ear, six mon

th sentences for the two especially aggravated kidnapping charges. Jones was sentenced to two consec u tive twent y-y

ear sentences for the two especia lly aggr avated k idnapping charg es. On ap

peal, the defenda nts raise a number of

issues, bo th jointly an d i nd iv id ua ll y. They ar gue that the trial court er red in de nying the motions to sev er, in its jury instructions, and in sentencing. Additionally , all argue tha t the evi dence w as insuff icient to sustain their convictions. Jones and Mickens individually present sever al issues, including that the trial court erred in admitting into evidence an af fidavit supposedly written by Jones, by allowing Jones’s jail armband to be read to thejury, in allowing a State’s witness to testify that Dixon flashed gang signs dur

ing her testimony , and in ce

rtain rulin gs regar

ding the State’s c losing a

rgumen t. Smith argues that the trial court excused a juror wi thout cause. Following our review, we affirm the convicti ons and se

ntencesas to eac

h defend ant. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
A LAN E. G LENN , J., delivered the opinion of the court, in which J OHN E VERE TT W IL LI AMS and N ORMA M C G EE O GLE , JJ., joined.-2-

Steven W. Pittman, f

or app ellant Corey Mickens; Joseph S. Ozment, for appellant Christopher Smith; Jeffery S. Glatstein, for a pp ellant Matthew D ixon; and Ad die M. Bu

rks, Memphis, Tenness ee, for

appella nt Chonce

y Jone s. Paul G. Summers , Attorney Gene ral and Reporter; Braden

H. Bouc ek, Assist

ant Attor ney Genera l; William L. Gib

bons, Dist

rict Attorn ey Gene

ral; and Terry

Harris and Lorra

ine Craig, Assistant District Attorneys Gene

ral, for the appellee, State of Tennessee

.

OPINION
ISSUES PRES ENTED
Each defendant

raises se veral iss ues on ap

peal:
I. Whether the tria l c ou rt ’s ju ry instructions were prope r (Mickens, Smith, Jones, and Dixon);
II

. Whethe r the trial court erred by excusing Juror No. 4 without cause (Smith);
III. Whether

the trial cou

rt erre d by

allowing the introd

uction into evidenc e of an a

ffidavit allegedly written b y Jone s;
IV. Whether the trial court erred by allowing Jones’s jail armband to be re ad in th e p re se nc e o f t he ju ry;
V. Whether th

e t rial court erred by

permitting testimony

that Dixon flashed a gang sign at a witness du

ring the trial;
VI. Whether

the trial court erred by denying the d efenda

nts’ motions to sever (Mickens, Smith, and Jones);
VII. Whether

Mickens w as unduly

pre judiced during closing argume nts by the court allowing the State to comment on stricken witness testimony during the State’s c losing argument and by forcing Mickens to use his visual aidsindividua lly instead of

cumula t ively during h is closing argume nt;
VIII. Whether

the evidencewas suff

icient to s ustain

the defe ndants’ respective convictions (Mickens, Smith, Jones, and Dixon);
IX. Whether

the defendants’ sen t ences w ere pro per (Mic kens, Smith, and Jones); and1 The majori ty of t he i nfor mati on about the orga nizatio n of the G angste r Disc iples in ge neral, a nd the M emp his GangsterDisciples in particular, is from the testimo ny of State witness Robert Walker, a f ormer chief of s ecurity f or the Memp his Gangs ter Dis ciples . He is current ly i ncarcerated on two aggr avated robbery charges and regul arly provides information to loc al and federa l authorities concerning the G angster Discip les. -3- X. Whether

cumulative error exists to warrant a new trial (Mickens, Smith, Jones, and Dixon).
FACTS
The facts and parties surrounding the murder of Marshall “Pokey”Shipp and the kidnapping of Ricky “Kuboo”Aldridge are many and well tangled due, in large pa rt, to the infrastructure and vernacular

of the Gangster Disciples, of which, a s we have

stated, th e defendants and

victims were member s. The indic tments cha rged f ifteen d efenda nts in the c

rimes com

mitted ag ainst Mar shall Shipp and Ricky Aldridg e. In an ear lier trial, prior

to that whi ch is the b asis for t he instan t appeal , Matrin Becton and Antonio Syke s, were both convicted of first degree pr emeditat ed murder, especia lly aggravated robbe

ry, and two count s of espe cially

aggravated kidnapping , and sentenced to life imprisonment withoutparole for the murder and twenty-five ye ars for each of the remaining charges withall sentences to be served consecutively , for an effective se

ntence o f life wit

hout paro le plus seventy-five

years. See State v. Matrin Bectonand Antonio Sykes , No. W1999-00581-CCAR3-CD, 2002 WL 1349530 (Tenn. Crim. App. June 19, 2002), perm. to appeal denied (Tenn. Dec. 9, 2002). I. The Gangster Disciples
The Gangster

Disciple s are a l arge g ang ope rating in and ar ound Memph

is and headquartered in Chicago. Th ey a re in te rn al ly g ov er ne d a cc or di ng to an es ta bl is he d h ie ra rc hy. 1 There is a “board” in Chicago, led

by the “king ,” Larry

Hoover, who acts as the national supervisor, which appoints an “overseer” in other cities. In Memphis, the appointed overseer was Tony

“T-Money”

Phillips, who had authority

over all Gangst er Disci ple activ ity in Memphis. To enforce gang rules, two “chiefs of security ,” Rober

t Walker a

nd Johnny

“Jay Rock” Jeff

erson, se rved und er the ov erseer , with Walker as “chief of security, g

rowth and development” and Jefferson as “chief of security , enforcer.” However, the practical differe nce app eared s emantic a

t best: Walker “made sure every body abided by the rules” while Jefferson “had to enforc e t he rules.” Each chief of secur ity had two “assistant chiefs of security.”Jefferson’s assistant chiefs were brot hers Larr y a nd Matthew Boiste

r, while Walker’s were two of his cousins. Also under the overseer was an “auxiliary g overnor” whose duties included appointin g the “g overnor s” for the diffe rent Memp

his reg ions and a

cting a s a middle-man betweenthe governors and the overseer . The governor of the South Memphis region, where th ese crimes o ccurred, was defendant Corey “Tombstone” Mickens. Each regional g overnor ha d a n “assistant governor,” and Mickens’ assistant g overnor for Sout h Memp his was hiscodefe ndant, Christoph erSmith. Also u nder the auxiliary gover nor was a “floating reg ent” who

had autho

rity under any g overnor in any

region in Memphis. Additional ly, eac h gover nor had a “rege nt” whose authority was limited to a particular region , Matrin “McMarcus” Becton being the reg ent for South-4-

Memphis. The remaining Gangster D isciples were rear-eche lon “outstanding members” with no au th or it y, which was the membership levelfor the d efenda nts, Matthew D ixon and Choncey Jones, as well as the victims, Marshall Shipp and Ricky Aldridg e.
In addition to having their own hierarchy , the Gangster Disciples also had their own rules and methods of enforcing tho se rul es, with vi olations including coopera ting with law enfo rcemen t, insubordination, shooting at other Gangster Disciple s, and disr especting ga

ng higher-ups

. Punishment s included fines, three-minute violations, six-minute violations, and death. Unlike fines and death, the other punishments require some explanation: three- and six-minute violations were three- and six-minute beatings administered by othe r members u sing the

ir fists on ly, no weapo ns. A variant of the six-minute violation was the “pumpkin head deluxe,” which involved putting the victim in a full ne

lson prior to his six-minu

te beating , presuma

bly to allow the other members to beat his head to the size of a well-ripened pumpkin. Death punishments were to be administered using weapons in remote locations and were reserved for ser

ious violations only. Death could be imposed by th e o ve rs ee r, wh il e o th er pu ni sh me nt s c ou ld on ly b e i mp os ed by members with the rank of governor or higher.
Walker told of the symbolic methods of executions utilized by the Gangst er Disci ples to kill their own members, describing one as “[s]even times to the fro nt of the b ody , six times to the head, one time up the butt.” Walker said the punishment reserved for him because he had violat ed “19/19,” the code of silence, was “[c]utting off the penis.”

II. Shipp and Aldridge’s Violations of th e Gangster Disciple Rules
The L & B Lounge

in South Memphis was the site of the two main events resulting in t h e murder of Marshall Shipp andthe aggravated kidnapping of Ricky Aldridg e. It wa s there, on Augu st 29, 1997, that a birthday par ty was thrown for

Gangster Disciple member Veronica Joh n son . In attendancewere Sh

ipp and hi s girlfriend, Chery l Patrick, a Gangster Disciple and close fr iend of Johnson. Also pres ent was D evin Hay wood, a me

ntally handic a pped man w

hom some r

esidents , including Shipp, had taken upon themselves to look after and protect ar ound the neighborhood.
At so me point that night, according to Johnson’s testimony, de fendants Dixon and Smith , along with fello w Gang ster Disc iples Matr in “McMa

rcus” Becton and “Karate Mike,”had ordered Haywood, at gunp oint, tohis knees where they proceeded to “beat him–hit him in the head with guns and stuff.” Describing the beating administered to Ha ywood, Johnston testified, “His ey e was like it was going to bust. You know, sitting outside his head.” Witnessing the commotion, Shipp took action to stop the

beating only to be ordered by

Smith not to interfere with “G.D. business.” Shipp persistedcontrary

to Smith’s order. Becau se Smith was the assista nt gove rnor for South Memph

is, Shipp’s continued interference put him in direct violation of

the Gangster Disciple rules prohibiting insubordination and disrespect toward gang superiors. Co ns eq ue nt ly, Smith told Shipp that “he had just signed his death certificate.”-5-

A seco nd incident , also related to th e offen ses which

are the subject o f the pre sent appe al, occurred at the L & B L

ounge abo u t two weeks later, on September 11, 1997. Veronica Johnson testified that an argument transpired betwee n Shipp and another Gangster Disciple, DeCar los Bean. Ch er yl Patrick, also present, testified that the situation escalated when Be an and several others surroundedShipp with p ool sticks. Shipp’s sister left the sce ne looking

for Ricky Aldridg e to help her brother. Aldridge and another cousin, “Scutt,” g ot in the car with Shipp’s sister and retu rned to the lounge. When Aldridge got to the lounge , he saw that Shipp was still surrounded and “jumped outof the car and shot up in the air three times” with a handgun which promptly dispersed the crowd. Shipp got in the car with Aldridge and, toge ther with Shipp’s sister

and Scutt, they fled

the scene. Becau se he “fir ed on” fello w ga ng membe rs, Aldridge, like Shipp, was in violation of Gangster Disciple rules.
III. Gangster

Disciples ’ Punishm

ent of Shipp and A ldridge: Th e Murder and Kidnapping
As Memphis chief of s ecurity , Walker me t daily withoverseer Phillips at

Phillips’ ho

use to “talk to him about organization business.” Walker testified about conversations that took place at these meetings. In late Aug

ust of 1997, according to Walker, Mickens expressed growing concern to Phillips about a “rebellious” brother identified as “Pokey [Shipp].” Phillips told Mickens to “deal with it, ” “do wha

tever he wanted to

do with it,”

and “to g overn hisown land. ” Around the same time, Ricky

Aldridge attended a meeting a t Mickens’ house in whichMickens discussed the Shipp situation. According to Ricky Aldridge’s testimony , Mickens said that “he ha[d] an incide nt on [his] cousin [Shipp] disrespecting the assistant governor [Smith] over there, and he was talking about he was being insubordinate to the assistant governor.”
Walker testified that

Mickens again expressed concern on Septembe r 15, 1997, to overseer Phillips about Shipp’s rebellious behavior. Growing impatient with the situation, Phillips asked, “wh y he [Shipp] was still alive.” Walker testified that a person, later determined to be Becton , telephonedfor Phillip s, who told Becton , “You all got him, go ahe ad and kill him, but hold up,” at which point Phillips lo oked at Mi ckens who then lef t.
Alth ough Mickens never di re ct ly a sked for permission to kill Shipp, his purpose was appare nt, accord ing to Wal

ker, bec ause “y

ou only come to him [Phillips] if you need to kill another member.” Be cau se Mickens was only a governor in the Gangster D isciple hierarchy , permission from the over seer to im

pose the d

eath puni shment wa s requir ed, acc ording t

o gang rules. Walker a lso testifie d that Rick

y a nd Timothy

Aldridg e were

discusse d at the Se

ptember 15 meetin g
. Ap pa re nt ly, “they wa s supposed to kill them too,” but Mickens declined because “they weren’t going to say any thing.”
These discussions came to fruition on the evening of September 15, 1997, as members of the Gangster Disciple s took affirmative steps to implement the punishment of Shipp and Ricky Aldridge. Shortly before he was killed, Shipp confided in his cousin, Timothy Aldridge, that “they

were going to place him under G.D. a rrest ” as a re sult of the August 29 con flict at the L & B Lounge with Smith. Lat er, Ricky Aldridge

was informed that Mickens was looking for him and wanted to see hi m a s2 Th e L & B L oung e is loca ted at S outh P arkwa y and S outh T hird S treet. -6- soon a s possibl e. Ricky Aldridg e walked to Mickens’ apartment where Micke ns said, “I got an incident that you was eng aged in a sh oo ti ng co nc er ni ng a g an gs te r o n S ou th Pa rk wa y.
. . . 2 I can’t believe you

did that[.]” Aldridg e denied the alleg ation and

was then told by B ecton, w

ho was al so present , that

he would “be put in violation if [he] be found guilty[.]” After advising Ricky Aldri dge that the matte

r was und

er inves tigatio n, he was told that they were “fixin’ to get up with Pokey [Shipp ]” and would

“get ba ck with [him] l ater on. ” After Ri cky Aldr

idge un success fully

tried to contact Shipp abou

t the deve

loping situation, A

ldridge took a sea

t on a frie

nd’s f ront p orch and waited.
Sh ip p, me an wh il e, wa s w it h C he ryl Patrick en route to the L & B Lounge when the y were flagged down and informed

that peop le were

assemble d at a n ea rb y store and looking for Shipp. Shipp went to the store where he was confronted by Becton who said, “We want to talk to you about a little misunderstanding that’s been going on.” Shipp responded, “You can talk to me right here,” and Becton replied, “We got to go somewhere else and talk.” Defenda nt Jones was also present and ordered Shipp to “give [his] whore the car” an d t o “get [his] ass in [Jones’s] car.” Shipp refused, insisting he first take Patrick home. Becton intervened and a co mpromise w as reac hed: Shipp c ould first take Patrick home in his car provided that Becton and defendant Dixon rode along and Jones followedin his car. Before and during the ride, Becton displayed his gun. Patrick was dropped off an d t he tw o c ar s d ro ve aw ay. Ricky Aldridge was still sitting on the porch with his brother, when some Gang ster Disciples informedhim that Mickens was ready to speak with him again. The Aldridge brother s accompanied the Gangster Disciples to Mickens’ apartment whe re, after being searc

hed for weapons at

the door, they entered and saw Shipp and approximately twe nt y G angster Disciples, some of whom had automa tic pistols. Acc ording t

o their te stimony , both Aldr idge br others id entified all four d efenda nts as being present.
After much discussion concerning the proper punishment for Ricky Aldridge , Mickens, the highest ranking member p

resent, decided

that Smith

and Becton should “handle the business the way [t he y] want to handle it.” Mickens remained in his apartment as the crowd closely

escorted the victims outside to

their vehicles. At least two of the exiting Gangster Disciples, def endant Jones and Antonio Sykes, were obviously armed, and Jones said that Aldridge was “going with him.” Leaving in several vehicles, the Gangster Disc iple caravan made its first stop at a gas station where Syke s took twen

ty doll a rs fro m Ric ky Aldrid ge and j ewelry fro m Shi pp. R icky Aldr idge testified that he could not leave thecar because he was “under G.D. arrest,” and doing so would put him in furt

her viola tion of g ang rules.
The final de stination, in South Mem phis, wasDesotoPark, a sm a ll and secluded park separated from t he Missis sippi River

to the wes t by

only a seldom u sed stre et and ra ilroad tr acks. The pa rk co nt ai ns “In di an mo un ds ” w hi ch ap pe ar to be or di na ry, sma ll hills from the side but are-7-

actually concav e bowls wh

en viewe d from ab ove. The mound in que stion is app roximately

forty to fifty feet high and opens up to be eight feet deep with a large tree sta

nding in t he middle . Beca

use of the mound’s peculiar

shape and beamed sides, activity inside it is virtually unnoticeable from the outside. This was the site chosen for the victims’ punishments to be administered. Upon arriving at the park, Shipp and Ricky Al dridge were corra lled into the mound by Gangster Disciples, who wereholdin g them by the backs of their pants. Although the crowd was composedof additional people, Ricky Aldridg e specif

ically identified defend ants Jones, Smith, and Dixon as being present. From the cente r of the mound, Shipp pleaded, “McMar k, can I holler at you,” to which Becton replied, “Ain’t nothing else to talk a bout. You ain’t shit no more. I’m fixin’ to take your ‘ G.’” With this exchange, Jones entered the area with “some objects” he had taken from the trunk of

his car, which Timothy Aldridg e testified consisted of “[b]ats, jack irons, hammers, and a pistol.” Ricky Aldridge testified that, at this point, “I thought we was f ixin’ to die.”
The crowd s urrou nded S hipp first and “s tarte d to s erve hi m his viol ation .” Ric ky Aldrid ge testif ied that as he

waited f or his puni shment, f

ive or six me

n, including Dixon a

nd Smi th, wer e beating Shipp with bats and a tire iron: “They was just beating him – just beating him. He was trying to fight back – then somebody hit him with the iron. He f ell down. He was just on the ground. They just kept beating him – kept beating him.” Sm ith then observed, “That bitch ain’t deadyet,” laug

hed, resumed beating Shipp, and directed the other s to “ [b]eat that bitch, beat that bitch.” Ricky Aldridge

said that he had seen Jones with a bat an d, although he di d not see Jones strike Shipp with the bat, Jones “hit [Shipp] with something.” Ricky Aldridg e was ne

xt to be bea

ten. He te stified: [T]heystartedserving my violation. And I tried to cover up my face, and Choncey

[Jones] gra

bbed me f rom the ba

ck and pu t me in a full nelson so I couldn’t hide my face. And they

were hitting me in m y ribs and down in my

– below my

waist and in my face

– just hitting me all over.
Th is beati ng was administered without weapons and lasted approximately six minutes. Ricky Aldri dge testified that, as he was being beaten, he c ould hear the other s stil l beating Shipp with weapons
. Even af

ter Ricky Aldridg e’s bea

ting wa s finished , “they

was still li

ke beating [Shipp] w ith bats and ja ck iro ns and hamme rs – be ating him between his privates. And they was just beating him.” Ricky

Aldridge a

nd the rest of

the crowd left the mound as Becton, Sy kes, and Shipp remained. Shipp was left, stripped from the waist down, by the tree in the mound. Af ter he had left the mound, Aldridge heard one or two gunshots. Ac cording to Walker , while t he two were incarc erated

togethe r, Bec ton told him t

hat it washe who shot Shipp unde r order s from Mic

kens.3 See Stat e v. Phil li ps , 76 S.W.3d 1 (Tenn. Crim. App.) (a Memphis Gangst er Disci ple ex ecution where the

victim w as sho t in the bu ttocks a fter bein g seve rely be aten), perm. to appealdenied (Te nn. 20 01)

. -8- Smithtold the Aldridge brothers to destroy Shipp’s car. Instead, they left in the car and met up with Shipp’s fr

iend, Patr ick Owen s. Ricky

Aldridg e told Owe

ns, “Man, they

done kille d him. They done killed him. He in the park.” The two of them then returned to Desoto Park a nd found Shipp by the tree, mumbling incoherently a

nd unable to walk, and assisted him to the car, driving him, st il l a li ve , t o C he ryl Patrick’ s house. John son calle d 9-1-1 a nd then we

nt outside to see Shipp in the car. According to Johnson, Shipp was naked from the w aist

down and so bloody and swollen that “h e loo ked like a whole different person.” An ambulanc e transported Shipp to the hospital where he died two day s later on September 17.
Assistant Medical Examiner Dr. Thomas Deering testified at trial reg arding Shipp’s cause of death:
It’s my opinion that death was due to sev ere blun t trauma to the headwith multiple skin lacerations; injury, swelling, and bleeding of the brain. A

nd this wasaggr

avated b y a

gunshot wound to the pelvis withbl ee di ng – e xt en si ve bl ee di ng in te rn al ly – an d also aggravated by b lunt trauma to the lo wer leg s.
Dr. Deering testified that either the brain injury or the gunshot

wound alone would have b een fat al, and the lacerations on Shipp’s head were not the ty pe caused by

fists alone. Additionally, he testified that Shipp was s hot in the buttocks. Su ch a shoo ting, Wal ker test i fied, is symbolic and not uncommon, 3 serving

dual purp oses: “[t]o s end a mes sage to the next g angste

r and let him know that , you know, if you deci de to d o the s ame th ing, t his i s what ’s goin g t o happen t o you” and “ [t]o let everybody

know, you know, he a

punk, he ain’t no gangster. He ain ’t gonna be no gang ster now, and he ain’t gonna be no ga ngster up in the sky , either.”
The only evidenc e prese

nted on be

half of th e defen dants was the testimony of Delvin L ane, who was called by

Mickens. Lane said that he ha d been a Gangster Disciple, but on May 14, 1999, he “got saved, and live[s] for the law.” He said that on September 15, 1997, he had gone t o Mickens’ residence, wher e he saw Mickens at about 5:30 p.m. He was with Mickens until about 7:45 p.m. and saw him again that night at about 10:30 p.m., remaining with him unt il about 1:3 0 to 2:00 a.m., as t

hey were tr yin g to ge t Mickens ’ brothe

r out of ja il. As they wer

e in the car together, apparently dur

ing the early morning

of September 16, they saw Ricky Aldridge, who “looked real hysterical and scared.” Aldridge told them that he needed his key s and money “f rom Antonio – from T-Murda.” Lane said that he and Mickens agreed to give Aldridge a ride. On cross-examination, Lane agreed that he did not know where Micke ns had been from 7:45 to 10:30 p.m . that nig ht. Following this testimony, eac h defendant rested his case.-9- ANALYSIS I. Jury Inst

ructions
The defenda

nts raise several issues re

lating to the trial court’sjury

instructi ons. Since

some of the claims as to mistakes in the instructions are presented for the first time on appeal, one of our conside ration s will be whether all of these claims are properly before this court. In State v. Adkisson , 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994), this court explained the considerations for dete rmining whether a matter not objec ted to at tr

ial may be prese nted as a n issue on a

ppeal: a) the record must clear

l y e stablish w

hat occu rred in th e trial c ourt; b) a cle ar and un

equivoca l rule of l aw must ha

ve been breach ed; c) a substantial right of the ac cus ed must ha ve been adverse ly affec ted; d) the accused did not waive the issue for tactica l reasons; and e) consideration of the error is necessary to do "substan tial justice."
Id. (footnotes omitted).
We now will r

eview the defenda nts’ claims of err

or as to the instructions. A. Criminal Responsibility
Alth ough none of the defendants asserted this arg ument in his motion for new trial, all argue on appeal t

hat the tr ial cour t should ha

ve instru cted the

jury as to the n atural a

nd proba ble consequences rule of c

riminal r esponsibi lity . If s o charged, the ju ry would hav e been r

equired to determine whether Shipp’s death was the natural and pr obable consequence of his kidnapping.
Th e t ri al co ur t g av e t he fo ll ow in g i ns tr uc ti on as to cr im in al re sp on si bi li ty:

When one ente

rs into a sc

heme with

another to commit a robbery and/or ki d nappi ng and a killing ensues, all defendants may be held responsible for the death, rega rdl ess of who actu ally committed the murder and whether the k il ling wa s specif

ically contemplated by the othe r.
As long as the defendant

intended to commit

the robbery

and/or kidnapping and a

killing resulted during the attempt to perpetrate the ro b bery and/or kidnapping, each defenda nt is responsible for the-10- murder, regardless of whether he intended for th e victim to die or participated in the act of murder.
As to their convictions for first degree premeditated murder, Smith, Dixon, and Jones argue that the trial court’sinstructi on as to cr iminal re sponsibilit

y w as defe ctive be cause

the jury was not required to determine whether Shipp’s death was the natural and prob able re sult

of his kidn appin g. We will rev

iew this c laim.
In Stat e v. Howard , 30 S.W.3d 271 (Tenn. 2000), the defendant was with a group of f our maskedmen who robbed a restaurant, during which an employee was shot and killed. The relevant issu e in Howard , f

or this appeal, was whether a robbery participant who did not fire the weapon killing the victim could be convicted of first degree mu rder. Our supreme court explained the showing necessary

for a defendant so situated to be responsible for a killing during the robber y by another of the group:

[T]o impose criminal liability based on the natura l and pr obable consequences rule , the State must prove beyond a reasonable doubt and the jury must find the following: (1) the elements of the crime or crimes that accompanied the target cr ime; (2) that the defendant was criminally

responsible pursuant to Tennessee Code Annotated sectio n 39-11-402; and (3) that the o ther cr im es that were committed were natural and probable consequences of the target crime.
Id. at 276.
In State v. Richmond , 90 S.W.3d 648 (Tenn. 2002), our supreme court ascert ained tha t a trial c ourt’s failure

to give a natural and prob able con sequenc es instruction was su bject to a harml es s error analysis . Cit ing Howard , 30 S.W.3d a t 277 n.6, th at constit

utio nal err or occur

red whe n this instruction was warranted but not given, the court determined that such error could be harmless when the State had established bey ond a reasonable doubt that “the error did not affect the outcome of the trial,” and deta

iled the a naly sis to be used in ascertaining whether instructi onal err

or was ha rmless: [U]nlike Howard , where the evidence of the defend ant's intent was sharply

conteste d, the evi dence here unqu estionab ly established that defenda nt Richmond

sh ar ed the intent of his fellow assailants and actively participated in every

facet of the armed robbery and subsequent

shooting s. The as sa ilan ts, includ ing the d

efenda nt, approached

the victims with at least three weapons, one being a fully automatic Uzi sub-machine gun. Shervon Johnson twice ordered his fellow robbersto kill the victims, and finally attempte d to do so himself. Defend ant Ri chmond stood, at most, a few feet from Mr. Johnson when he ordered his confedera tes to shoot the victims. He furthermorepositioned himself so as to offer immedi ate assistance-11- should th e n ee d a ri se . T es ti mo ny es tablished that defendant Richmond drove the getaway car in su ch a manner as toallow his coassailan t, Shervon Joh

nson, to fi re indisc riminately in

the direction of the cl ub. Defendant Richmond then led police officers on a dangerous high speed chase through Knoxville housing projects. The defend ant's role was such that the trial court properly charged, and the jury found him crimina ll y r esponsibl e for the

actions o f his confede rates. As such, we are convinced, and the jury so concluded, that defendant Richmond shared the same criminal inte nt as his confeder ates and clearly a ided them in the completion of the target and colla teral cr imes.
Richmond , 90 S.W.3d at 658.
We first note, in our review, that the natur al and pr obable c onseque

nces rul e does no t apply to every case in which the issue of criminal responsibility may be relevant. This court determined the rule did not apply when the c rime of which the defen dant wasconvicted was the targe t crime itself and not some unintended collateral crime. State v. Daniel Wade Wilson , No. E2000-01885- CCA-R3-CD, 2001 WL 872442, at *16 (T en n. Crim. App. Aug. 2, 2001), perm. to appeal denied (Tenn. Mar. 11, 2002).
Pr ev io us ly, we have detailed the proof in this matter, including the hierarchy and punishment procedures of the Gangster Disciples , as well as the reasons and circumstances surr ounding the kidn appin gs of the two victims. It is clear from the evidence that the intent was to kill Shipp and that he was firs t kidnapped so the int ended crime could be acc omplished in a remo te location

. Ac co rd in gl y, t he “tar get” c rime wasmurder, not kidnap ping. Th us, were we to dete

rmine tha t a natural and prob able con sequenc e instruction was nec es sa ry a s to the first degree murder instructi ons, we w ould cre ate the a nomalous s ituation of

requiring such a

n instruc tion simply because a lesser crime is c ommitted to

effectuate an intended

homicide. Accordingly , we conclude that a natural and

probable consequence instruction was not required a s to the charge of first deg ree premeditated murder, the intent being to kill Shipp. Mickens, who also a

rgues t hat the tr ial cour t erred in not gi ving a natural

and prob able consequenceinstruction, was convicted of felony murder, which is defined as: “A killingof another committed in the perpetration of or attempt to perpetrate any first degree murder, arson, r ape, ro bb er y, burglary , theft, kidnappi ng, agg ravated child abuse, agg ravated child neglect or airc raft piracy.”Tenn. Code Ann. § 39-13-202(a)(2) (1997). The approa ch of specify ing that a felony murder charg e may

result on ly from the commission of certain enumerated felonies is explained in 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 7.5(b ) (1986) (footnot e omitted), as limiting “the felony -murder doctrine to those felonies which are ‘inherently da

ngerous,’ that is, the peril to human life must be determined from the elements of t he felon y in the abstract rather than fro m the facts of the particular case.” L aFavefurther explains that, in a felony- murder prosecution, the issue “is not so much a matter of

felony murder

as a matter of parties to crime--the-12-

problemof the responsibility of one cr iminal (A) for the conduct of a fellow-crim inal (B) who, in the process of

committing or attempting the agreed- upon crime, commits another crime.” Id. at § 7.5(c) (footnotes omitted). Likewise, LaF ave expla

ins the special stat

us that fe lony murder o ccupiesin the context of proving that the death of the victim was the “natural and pr o bable consequence” of an under lying felony :
Two striking exceptions to t he g eneral rules [of the “natural and

probable” consequ ence rule of accomplice liability] discussed above are felony-murde

r and misdemeanor-mans laughter, for they do permit conviction for a homicide occurring in the execut ion of a felony or dangerous mi sdemeanor without any showing that the defendant in te nt io na ll y, knowingly, reckle ssly, or even neg ligently ca

used the death.
Id. at § 6.8(b) (footnotes omitted).
Mickens was convicted of especially aggravated

kidnapping and first degree murde r in the perpetrationof an ag grava ted kidna pping. Since kidna

pping is one of

the enumerated felonies upon which a felony murde

r charge can be ba sed, w e concl ude that t he trial c ourt was not requir ed to instruct the jury that it must determine whether the murder of the victim was the natural and prob able consequenc e of his kidnapping. We note that the trial court instructed the jury that to find the defendant guilty of fe

lony murder, it must find “that the killing

was close ly c onnecte d to the alleged kidnapping and/or r

obbery and was not a se parate, distinct and independent event.” The proof establish ed that the “ agreed-upon crime,” u tilizing the langu age fr

om Substantiv e Crim

inal Law , wa s the murder o f Shipp, with the vic tim first be ing kidna pped so he

could be r

emoved to

a remote location. This being

the situat ion, we c onclude t

hat a natural and probable consequence instruction wa s u nn ec es sa ry.
B. Reasona ble Doubt Mickens, Smith, and Jones contend that the trial court incorrectly instructed the jury on reasona ble doubt, as to which the tria l court uti lized T.P.I .-Crim. 2. 03(a):
A reasonable doubt is a doubt based upon reason and common sense after careful and impartial consideration of all the evidenc e in this case.
It is not necessary

that the defendant’s guilt be proved beyond all possible doubt, as absolute certainty of guilt is not dem and ed by the law to convict of any

criminal charge.4 The fi fth (cu rren t) e di t ion of t he Tennessee Pattern Jury Instruct ions does not include the alternative inst ructi ons disc ussed her e. -13-

A reasonable doubt is just that–a doubt that is reasonable after an examination of all the facts of this case.
If you find the s tate hasnot prove n every element o f the off

ense beyond a reaso nable dou

bt, then you should find the defenda nt not gu il ty.
The claim as t

o incorr ect rea sonable

doubt instr

uction wa s not raised in the motion for new trial by any

of the defendants who now raise it on appe al. Thus, unless the trial cou rt’s rea sonable doubt instruction constitutes “plain error,” we cannot consider this claim on appeal. SeeTenn. R. Crim. P. 52(b).
The defendant

argue s that the instructio n was def icient because

it does not

include t he phras e “moral certainty,”as does T.P.I.-Crim. 2.03. The comment to the latter section ex pl ai ns wh y, at the time of the 1995 printing of the fourth e dition of th e Tenne ssee Patt

ern Jury Instr uctions, 4 there were alternative instructions as to “reasonable doubt”:

The Committee is of the opinion that the use of the term “moral certain ty” in the jury

charg e on rea sonable d

oubt may be reve rsib l e error under Cage v. Louisiana , 498 U.S. 39, 111 S. Ct . 32 8, 1 12 L. Ed. 2d 339 (199 0). Therefore, the Committee has written an alternative instruct ion, T.P.I .–CRI M. 2.03(a

), Reaso nable Doubt. Ho wever, as o f the time of publication of this edition, the Court of Criminal Appeals had approved the use of the term “m or al ce rt ai nt y” in this instruction. State v. H allo ck , 8 75 S.W.2d 285 (Tenn. Cr im. App. 1993), appeal denied (Feb. 28, 1994). T.P.I.-Crim. 2.03, Cmt. 2.
In State v. Ro nald D. Cor rell , No. 03C01-9809-CC-00318, 1999 WL 812454, at *8 (Tenn. Crim. App. Oct. 8, 1999), perm. to appeal denied (Tenn. A pr. 24, 20 00), this c ourt r eviewed t he cases where T.P.I .-Crim. 2.03(a), utilized by the trial court in this matter, had been upheld:

This court has held t hat T.P.I . Crim. No. 2.03(a) is consiste nt with principles of due pr ocess
. State v. Sauls berry , No

. 02C01- 9 710-CR-00406, 1998 WL 892281, a

t *13-14 (Tenn. Crim. App. at Jackson , Decem ber 21, 1 998); S tate v. White , No. 02C01-9710-CR-00384, 1998 WL 376352, at *1 (Tenn. Crim. App. at Jackson), perm. to appeal denied , ( Tenn. 199 8); State v. Henning ,-14- No. 02 C 01-9703- CC-00126, 1997 WL 661455, a

t *9 (Tenn . Crim. App. at Jackson, October 24, 1997).
In State v. Melvin Edward Henning , No. 02C01 -970 3-CC- 00126 , 1997 WL 661455 (Tenn. Crim. App. Oct. 24, 1997) , we rejected a challeng e, like that of the defendants in thepresent appeal, that 2.03(a) was deficient because it did not contain the phra se “to a moral certainty”:

Tennessee Pattern Instruction 2.03(a) tracks virtually identica l lan guage of

pa tt er n r ea so na bl e d ou bt in st ru ct io ns ap pr ov ed by a majority of the federal circuits. See, e.g. , United States v. Velasquez , 980 F.2d 1275, 1278 (9th Cir.1992), cert. denied , 508 U.S. 979, 113 S. Ct. 2979 (1 993); United States v. Ca mpbell , 874 F.2d

838, 841 ( 1st Cir. 1989); United Sta

tes v. Ha ll , 854 F.2d 10 36, 1 039 (7th Cir. 1988); United States v. Kirby , 838 F.2d 189, 191-192 ( 6th Cir. 1988); United States v. Colon , 835 F.2d 27, 31 -32 (2nd Cir. 1987), cert. denied , 485 U.S . 98 0, 108 S. Ct. 1279, 99 L. Ed. 2d 490 (1988); United States v. D ilg , 700 F.2 d 620 (11t h Cir. 1983 ); United States v. Alonz o , 681 F.2d

997, 1002 ( 5th Cir.), cert. denied , 459 U.S. 1021, 103 S. Ct. 386, 74 L . Ed. 2d 517 (1982); United States v. Robertson , 588 F.2d 575, 579 (8th Cir. 1978), cert. denied , 441 U.S. 9 45, 99 S. Ct. 2166, 60 L. Ed. 2d 1048 (1979). Moreover , the que stioned langua ge “based u

pon reas on and co mmon sense ” and “a bsolute certain ty is not required” has repeatedly been upheld as passing constitutional muster. See, e .g. , United States v. K ime , 99 F.3d870 (8th Cir. 1996), cert. denied , [519] U.S. [114 1], 1 17 S. Ct. 1015 (1997); United States v. Miller , 84 F.3d 1244 (10th Cir.), cert. denied , [519] U.S. [985], 117 S. Ct. 443 (1996) overruled on other grounds by United States v. Holland , 116 F.3d 1353 (10th

Cir. 1997); United States v. Campbell , 61 F.3d 976, 980-981 (1st Cir. 1995), cert. denied , [517] U.S. [116 1], 116 S. Ct. 1 556 (1996 ); Hall , 854 F.2d at 1038-1039; United States v. Rahm , 993 F.2d 1405, 1412 (9th Cir. 1993).
We do not find that the in struction taken se parately renders the reasona ble do ub t i ns tr uc ti on co ns ti tu ti on al ly d ef ic ie nt . A dd it io na ll y, considering this language in the context of the full charg e, we find no reasona ble likelihood that the j ury un derstood the instru ction to permit conviction after any

thing but a

process of careful deliberation or upon less t

han proo f beyond a rea sonable d oubt. This i ssue is without me

rit.
Id. at *9 (footnote omitted).-15-

We c o nclude that the reasonable doubt instruction was adequate a nd, thus, applying the considerations set outin Adkisson , 899 S.W.2d at 641-42, determine that this issue cannot be raised on appeal, for the trialcourt did not err in its reaso nable dou

bt instruc tion, much

less commit plain error. C. Facilitation
Smithand Jones argue that the trial court erred by not instructing the jury on f acilitation as to firs t deg ree mur

der and e specially a

ggra vated kid napping . Neither

present ed this issu e in his motion for

new tria l.
Tenness ee Code A

nnotated section 3 9-11-403 (a) def ines fac ilitation:
A person is criminally responsible for the f acilitation of

a felony if, knowing that another intends to comm it a specific felony , but withoutth e in tent required for criminal responsibility under § 39-11-402(2), the person knowingly furnishes substantial assistance in th e c om mi ss io n o f t he fe lo ny. Tenn. Code Ann. § 39-11-403(a) (1997).
Facilitation is a lesse

r-includ ed offe nse of both first degree

murder and especially

aggravated kidn appin g. State v. Burns , 6 S.W.3d 453, 470 (Tenn. 1999). H owe ver, that fact does not necessi tateit sho uld be c harged to the jury . In Burns , our supreme court developed a two-step analysis for de

termining whether a lesser-included off ense instruction should be given: First, the trial court must determine whether any evidence exists that reasona ble minds could accept as to the lesser-included offen se. In making this determination, the trial court must view the eviden c e lib erall yin the light most favorable to the existence of the lesserincluded offense without making any judgments on the credibi lity of such evidence. Second, the trial court must determine if the evidence, viewedin this light, is legally suffic ient to support a conv i ction for the lesser-included offense.
6 S.W.3d at 469.
At the trial of this matter, the parties discussed at length whether the f acilitation instruction should be given. The trial court instructed as to facilitation in Indictment 98-02267, Count 2, as to Mickens for the felony

of murder in the perpetration of a kidnapping, in Count 3 as to all four defenda nts for the felony

of murder in the perpetration of a robbery ; in Indictment 98-02268, Counts 1 and 2, asto Mickens for especially aggravated kidnapping ; in Indictment 98-02269 as to all four defenda nts for facilitation of the felony of espec ially ag gravated robbery ; and in Indictment 98-02270-16-

as to Mickens for facilitation of the felony of especially

aggravated kidnapping . The trial court expl ained the ba sis fo r so in struc ting:

And in this case, I think, as to each of thefour defendants, there is – in my judgment, the proof clearly points – if the jury accredits the witnesses and their testimony that has b een pre sented in this trial, it clearly points to the willing participation of each of these four defenda nts in these ev ents. And there was no other evidence offe red to indicate that these individuals were not involved. Choncey Jones was driving the car – his car.
Matthew Dixon was in the back seat of the car and wa s grabb ing one

of the me

n by the seat of their pants dragging

them up the hill. Christopher

Smith wa s in lead wi th Matrin B ecton in orchest rating things a t the hill. Corey Mickens was, according to the proof, the man who went to Tony Phillips and got the approval f or the murder.
So all t he pro of ind icate s full parti cipat ion – full k nowin g, will ing, activ e parti cipat ion, obvi ousl y in varying rol es; but full, knowing, willing active participation in these events; not a situation where the participation wa s, in an y wa y, accide ntal or un intentiona

l. And so I think that t his case is also fa

ctually and leg ally distingu is hable from L

ewis, an d I don’t think th e facili tation is applicable, an d I wi ll n ot charg e that. I didn’t ch arge i

t in the fir st case. I’m not go ing to charge it in this case. I’ll note your exception.
We agree with the trial court’s char acterization of the evidence. Smith told Shipp that he had “signed his death certificate.” Smith participated as Shipp was beaten with bats, jack irons, and hammers and, remarking “that bitch ain’t dead y et,” encouraged the

others to continue to “beat that bitch.” It was Jones who ordered Shipp to “g et his ass in [Jones’s] car” on the night of the murder and supplied t

he weap ons used to

kill Shipp. B oth defe

ndants pa rticipat ed in taking t he victim t

o a remote lo cation a

t night in a manner consiste nt with the established Gangster

Disciple procedure for th e i mp os it io n o f a de at h p un is hm en t. Ev en vi ew in g t he ev id en ce li be ra ll y, we cannot find that reasona ble minds could conclude that Smith andJones only furnished “substantial assistance”for the kidnapping and murder of Marshall Shipp but without the intent that they occur.-17- II. Excusing of Juror No. 4
Smithargues that the trial court erred by

excusing a juror

without ca

use. This matter ar

ose when, during jury

selection, one of the prosecutors advised the prospective jurors tha t the def endants and the victims were members of the Gangster Disciples. Prospective juror number 4 said that he had “some relatives in Chicago. A whole bunch of them, the y’ re males , you

know, the

y’ re discip les, you know.” During a subsequent bench conf erence wh ich included the prospective juror, he was askedif he could “be a f

air and impartial

juror in this case knowing that

you have fa mily members, in Chicago, that are members of the same g ang?” Prospective juror number 4 then re sponded, “I don’t know, you know. Say

a cousin, maybe if

they find out, y

ou know, say they

might like dislike me, you know, just

‘cause they all down, y

ou know.”He said th at he had talked g enerally with his cousins about g angs, a

nd they had aske d him to join the Gangster Disciple s. When ask

ed by defense counsel whether this involvement with the Gangster Disciples wou ld affec t his ability to be a fa ir and impartial juror, he gave vary ing answers, expressing his concern if g ang members discovered that he had been on the jury

and what they w ould then do, “You know, I gue ss if they know me, they might know my family , you

know. There’s ain’t no telling what would happen.” When then asked if he believed that

“something could happen” if he sat on the jury, he responded, “Possibly. Ther e ain’t no tel ling, you know.” At the c onclusion of the hearing, the State asked that the prospective juror be excusedfor cause, with counsel for Jones concurring. Counsel fo r the othe r three defenda nts objected to his being dismissed. The trial court explained why dismissal was appropriate:
I apprec iate [the p

rospect ive juror ’s] very

candid a nswers, first of all, and I think that h

e would try, very

hard, to be a good juror. I don’t think that’s the question. I think, though, it would ask too much of hi m t o h av e h im re ma in on th is ju ry. He expressed a concern for his family here

in Memphis. He stated that he knows some gangster disciples here in Memphis; that they know his f

amily , and that

would be a concern fo

r him.
He states that he has famil y – cousins in Chicago tha t are members of the gangster disciples that have tried to g et him

to join, buthe has resisted thus far. He talks to them at family reunions; they tell him about gang activi ties . I mean he’s just far too involved – perhaps no t d ir ec tl y, but indirectly – far too involved. The pressures are too great, and

it’s just an unr

ealistic expectat ion to ask h

im to sit on this particular case. We’ve got ninety-five other jurors ready and able to sit and serve. It’s not a question of peremptories. I mean there’s still sixty-four peremptories, I guess, that could be used. But I just thinkthat a challenge for cause would be appropriate here, a nd I’m going to relieve him. He can serve on another case tomorrow – a case t hat doesn ’t involve

gang ster disc iples.-18-

After counsel for Smith argued that the fact the jurors were ide ntified on ly b y nu mber would prevent the identity of this prospective juror from being discovered, the trial cour t responded:
I’m glad y ou broug ht that up. That’ s a very go od point. T his is an anonymous jury , the r ecord should ref lect. And

had he jus t indicatedthat he hadsomemarginal knowledge of g angs or gangster disciples , I might agr

ee with you. B utin this case, in spite of the fact that this is an anony

mous jury , and they ’re all identified by number, he said that h

e knows, p ersonall y, gang ster disc iples her e in Memphis, Tennessee; and that they know him, personally. A nd h e specific ally

said that if they know

hi m, th en th ey’ ll kn ow hi s f am il y, and that leads to his concern. The very thing that

we were try ing to safeguard against, by

having an an ony mous jury, fell though the cracks here be cause g angst erdisciples know him personally, and that’s an even stronger arg ument for goin g ahea

d and excu sing him in this case.
The standard for whether a juror was prope rly excused for

cause is “whether the juror's view s would ‘prevent or substantially impair the performance

of his dutie s as a jur

or in accord ance with his instructions and his oath.’” Wainwrig ht v. Witt , 469 U.S. 412, 424, 105 S. Ct. 844, 852 (1985) (quoting Adams v. Texas , 448 U.S. 38, 45, 100 S. Ct. 2521, 2526 (1980)). “[T]his standard . . . does notrequire that a juror’s bias be proved with ‘unmistakable c larity.’” Id. Even if it is unclear from the record , “the re wil l be si tuati ons wh ere the trial judge is left wit h the def initeimpressio n that a prospective juror would be unable to faithfully and impartially apply

the law.” Id. , 469 U.S. at 425- 26, 105 S. Ct. at 852. “[T]his is why deference must be paid to the trial judge who sees and hears the juror.” Id. Unless there has been clea r abuse, the trial court’s discretion in determining the qualifications of juror s is not subject to review. Lind sey v. State , 189 Tenn. 355, 366-67, 225 S.W.2d 533, 5 38 (1949) ; see State v. Forbes , 918 S.W.2d 431, 451 (Tenn. Crim. App. 1995).
We conclude that

the trial court’s reasoning was sound in excusing this prospective juror and a proper exercise of discretion.
III. Jones’ s Affidavit
The aff idavit, wh ich is the s ubject of

this assignment by

Jones, state s as follow s: Choncey D. Jones, being first duly sw orn or affirmed, does say and de pose t he fol lowi ng: I, Ch on ce y D. Jones was on the scene, at the store when Marshall “Pokey” Shipp

and the gir

ls pulled in . I, Choncey

D. Jones, amthe owner of the burnt-orange a utomobile in question. I was the driver of this ca r befor e, afte r and dur ing the c hain of events. Joseph-19- Brownhad no knowledge of these events and he was not present at any time befo

re, during or a

fter the se event s. Ap pa re nt ly, this affidavit had been discussed at a pretrial hearing, for

when counsel for Jones objected at trial to its admission, the trial court stated:

Well, I ass ume [the Sta

te] intend[s ] to introduc e the af fidavit, or else they wouldn’t

be calling [this witness]. But didn’t I hear y ou on thi s a lre ad y ? I think my ruling

was that these objections of y ours go to the weight and not theadmissibility. Proper cross-examination may well be to ask, you know, who dr afted the affidavit, wh e re it’s typed, and things of

that sort that you stated as y our concerns – not as to the admissibility of the document, but if a signature appears on it, and this notary ca

n provide an adequate explanation that satisfie s me as to the foundation for

it’s [sic] admissibility, then your concerns, I think, would go to the weight and not the admissibility . The jury may give it more or less weight depending on how convinced they

are of the proof.
As to this affidavit, Jones argued at trial that the affidavit was inadmissib le because the State had not laid afoundation as to how the “document came to be” and the State had only a copy , not the original. Jones argues on appeal that the trial court erred in allowing

the aff idavit to c ome into evidence because the State did not sufficiently prove

the chain of custody , no foundati on was la id as to its authe

nticity , it was he arsay , and, asa decla ration a gainst p enal inte

rest, the criteri a for its admission were no t met. Since the argume nt prese nted to the trial court was that the State had not laid a proper foun dation for admission of the affidavit, we will consider only that claim, the additional arguments being waived bec a use they were not argued at trial. See

Tenn. R. A

pp. P. 36(a).
Jones contests the authe nt ic it y o f the affidavit. Because the af fidavit was sent by a third pa rt y, Jones argues that the chain of custody from him to the district attorney g ene ral was n ot established. Tennessee Rule of Evidence 901(a) states: “ The re quiremen t of authentication or identification as a

condition preced ent to admissibility is satisfied by evidence sufficient to the court to support a finding by

the trier of fact

that the ma

tter in que stion is what its proponent claims.” See Statev. Ferguson , 741 S.W.2d 125, 127 (Tenn. Crim. App. 1987) (stating that tangible evidence may be properly introduced either when identified by a witness or the chain of cus to dy i s established). Authentication can be properly established by the testimony of a witne ss with knowledge that the “matter is what it is claimed to be.” See Tenn. R . Evid. 9 01(b)(1). At trial, the affidavit’s notary testified that the affidavit was executed by Jones, explaining that the standard procedure for notarizing such a document was to use the booking number on the inmate’s armband for verification. The booking number on the affidavit was that of Jones. Also, an assistant districtattorney g eneral testified that the a

ffidavit was the sa

me one he receiv ed in the mail. As the “arbiter of authentication issues,” the trial judge’s discretion will not be disturbed absent clear mistake. See Tenn. R. Evid.5 Te nnesse e Ru le of E viden ce 40 3 pr ovid es that: Although relev ant, evidence may be excluded if its probative value is substan tially outweig hed by the danger of u nfai r prejudi ce, confusion of the i ssues, or misl eading the jury, or by consi dera ti on s of undue d elay, waste of time, or need less present ation of cumul ativ e evidence.

-20- 901, Advisory

Commission Cm

ts.; Ferguson , 741 S. W.2d a t 127. We conclude that the trial court did not abuse its discretion in determining that the affidavit had been suffic iently authenticated.
Ad di ti on al ly, Jones argue s that, be cause the affidavit was a photocopy , it was inadmissible. Duplicat es, such as photocopie s, are “ admissible to the same extent as an original unless a genuine question is raised

as to the a

uthentic ity

of the original.” SeeTenn. R. Evid. 1001(4), 1003; Bolton v. State , 617 S.W.2d 909, 9 13 (Tenn . Crim. App . 1981) (s tating that a photocopy is admissible as original absent fraud or danger of mistransmission). Aside from the chain of custody issue addressed above, Jones raises no “genuine question” as to the aff idavit’s authenticity.
Fi na ll y, Jone s argues on app eal th at the affid avit c onsi sts o f inad miss ible h earsay. Al thou gh this argument was not

presented to the trial court and, thus, cannot be raised on appeal, we conc lude that it is without merit. The gravamen of the defendant’s hearsay argument is that the affidavit was inadmissib le as a declaration against penal inter est because the State di d not make the showing required by Tennessee

Rule of Ev idenc e 803(b) (3). While the aff idavit could be con strued a s a declarationagains t penal in terest, i tis the alleged statement

of Jones and again st his pena l interes t. Thus, Rule 803 and the holding of Smith v. State , 5 87 S. W. 2d 65 9 ( Te nn . 1 97 9) , c it ed by th e defendant, are not applicable, for both deal witha third party c onfession, not that of the defendant on trial.
Fi na ll y, even if t

he introd uction of the aff idavit we re err or, it wa s harmless. Because the affida vit contained nothing damaging to the defendant that wa s not already supported by abunda

nt other evidence, it did not affect the verdict. Tenn. R. Crim. P. 52(a).
IV. Jones’ s Jail Arm

band During the proc ess wher

eby Jones’s af

fidavit c ame into

evidence, thetrial cou

rt allowe d his booking number to

be read aloud in c ourt fro m his armband to establish that the inmate number on the affidavit matched that on the armband. The rec ord reflects that the trial judge a pplied t he balancing test of Tennessee Rule of Evidence 403, 5 concluding that an

actual reading of the armband booking number

was probative of

the affiant’s identity a

nd was not outweighed by any prejudicia

l effec t. H owever, Jones argues that this was error because it allowed the jury to see that he was incarcerated. As we hav e stated , the book ing numbe

r was re ad beca

use the State was attemptin g to lay a foundation for an

affidavit that

the defendant had challenged. T he proof had established that the crimes occurred in September 1997, and the jury already had learned from the testimony of the notary , to which no objection had been made, that Jones was incarcerated as of May 10, 1999, the-21-

day the af fidavit was executed. Given this, we conclude that even if the trial cour t erred, as Jones argue s, in allow ing his a

rmband bo oking nu

mber to be

read al oud, the e

rror wa s harmles s. V. Dixon’s In-Court Gang Sign
Dixon argues that the court erred by allowing Veronica

Johnson and

Serge ant Rick H all to testify that Dixon flashed Johnson a gang si gn while she was on the witness stand. Because of the nature of this claim, we will detail the manner in which it developed in the trial court.
As Veronic a Johnson wa s testify ing on dir

ect examin ation, the

State ask

ed for a recess , ostensibly

to ass emble phot ogr a phs to show to the witness, later advising the court out of the presenceof the jury that whe n Johnson had testified, apparently in a pr evious trial, “there were people making threats to her – mouthing at her.” The court responded, “No, I think she’s nauseous and about to get sick,” and directed the State’s victim-witness coordinator to accompany her to the bathroom . The cou

rt then ma

de the fo llowing s tatement :
I want to pu

t this on the record: About five or six months ago, we tried two of these fifteen defendants and had a problem during that trial, as the transcript, I assume, would bea r out, during one or

two of the witnesses. It might have bee n this very

same witness w ith defenda nts and indivi duals in the audience doing things to try to intimidate

or rattle the witne sses. When this witne ss took the stand toda

y, M s. Johnson, she was fine when she took the stand. She appeared fine. She walked in here fine; didn’t appear to be the least be [sic] nauseous or sick or to have any problem at all. And then just in an instant, all of a sudden, became ra ttled and told Sergeant Hall that she was sick and need e d a break.
And Serge ant Hall f

elt as thou gh he sa

w the def endant, M atth e w Dixon, flash

what appeared to be some sort of sign or signal, which could be interpreted to bea gang sig nal of som

e sort to th

e witness right at the time she began looking aside and announced that she was feeling ill. Now, I’m going

to tell all four of the se men that if any sort of communication, verbal or non-verbal, is expressed toward any witness, then the r

esponse will be swif

t a nd c ertain a

nd an ea sy decision for me. And that will be, “You’re out

of the courtroom for the rest of

the trial.” I

mean it’s just that simple. I mean, I ’m not going to worry about ten- day contempt or a nything of that sort

when yo u’r e facing life without parole. The response will simply be,-22- “You’reout of the courtroom for the rest of the trial.” So if y ou want to sit in the c ourtroom and part icipate in your trial, ther e had better notbe anything

that can be interpreted, in any way, as a n attempt to intimidate

or rattle any witness.
And you all know exactly what I’m talking about. And a ny suggestion

o r an y signal or

statement, by y

ou all, will result in your immediate

removal from the co urt room for the rest of the trial. I t’s just that simple. There ’s not going to be any agonizing or ringing [sic] of hands or worry

ing about it. You’ll just be takeno ut of the courtro om, and you’ ll spend the rest of the trial in the lockup area behind the

courtro om. And as far as – I don’ t know – I’ve seen a lot of pe ople kind of coming and going from the audience section, but if you all have friends here, it’s a

public courtroom, they’r

e welcome to be here, but they had better

not make any attempt to communicate with witnesses or intimidate witnesses or, in any way , try to rattle witnessesor affect their te st im on y. T his matter

is far too serious to

have an y w itness’ testimony affec ted by

any outside in

fluence s. We try these cases in front of a jury

with testimony, and a

jury makes a decision. But the system doesn’t work if witnesse s are tampered with. And I view this to be an e xtremely serious matter.
When Johnson returned, the trial court questioned her as to whether gang signs had been flashedto her as she was te stif ying, which she denied had occurred, but did not explain why she had become ill while testifying . The court then directed:

And I’m also going

to do this: I’m going to ask – not tha t the people – ever yone in here is well-versed in the type s of signals or signs that are

part of g ang co mmunicati on, but I want the deputies to watc h closely, the def

endants, and let me know if any thing i s communicatedto any

of the wit

n esses fro m any of the four defenda nts, in addition to the normal, co mmon-sen se gla res and stares that can be communicated by individuals and have been on previous occasions and previous trials. Following the lunch recess, the State advised the court that Veronic a Johnson had told one of the courtroom deputies that she “had broken down on the stand” because “Matthew Dixon had flasheda sign at her,” and had flashed another sign as she was leaving the courtroom. The trial cour t then stated:-23- All right. An d let me state, for the record, so that there’s no concernabout any

ex parte h earing s, when we broke for lunch – a few minutes after we had broken for lunch, Serg eant Ha ll infor med me, in chamber s, that he hadbeen i nform ed, by the witn ess, o f the t hings that [the assistant district attorne y g eneral ] just

recounted. And we’d already broken f

or lunch, but I w anted tha t informat

i on to be conveye d to [the assistant district a ttorney gener al] so that she

could talk to this witne ss, over the lunch hour, so we could then ad dress this matter when we

all came back, and that was the extent of the communication betw een [t he Sta te], Sergeant

Hall, and myself rig

ht after we broke for lunch. Finding that Matth

ew Dixon ha

d flashe d a gang sign

to intimida

te the witness while she was testify ing, the trial cou rt advise d him of the

consequ ences of

his action s: Well, I’ll say this: To remove

a defendant fro m a court

room in the midst of a t

rial, esp ecially

one as se

rio us as this, would be an extraordinary

step, cert ai nly. But it is not an unprece dented step. And what we’re doing down here this week is not a game. And it’s notan effort to see how much we can g et away with or who can do what to differ ent witne sses or who can man ipulate th e sy stem in different way s or who c an intimida te witnesses in one way or another.
We’re down here to conduct a trial and have twelve jurors listen to the proof and make a decision in a very, ver y serious matter. And I’m absol utely sat isfi ed tha t a ga ng sign was communicated by Mr. Matthew Dixon to this witness in the midst of the trial. Ser geant H all saw it; felt that he saw it when it happened. And the wi tness, Ms. Johnson, confi rm ed it after she was through testify ing. And her demeanor and leve l of anxiety

and nerv ousness on the stand changed jus tlike that. I mean within five seconds, it had cha nged, and sh e was shak in g and visibly upset. And tha t didn’t happen because she chokedon a sipof w ater or she looked up and saw the fluoresce nt lights above her. That happ e ned bec ause of s ome extern al event

. And it coincided, in time, with what Sergeant Hall saw, and it’s borne out by what she’s now testified to unde r oath.
I’m absolutely c onvinced

that it happened. And it happened for a reason. Communicatio ns of that sort aren’t engag ed in for no reason at all. It happened for a very specific purpose, and that was, I ’msatisfied, to intimidate this witness. She testified that this las t Sa tu rd ay, she had this message c onvey ed to her by a friend that the individua ls, not naming

specific names, bu

t that peo ple were out to-24- kill her. An d as I mentioned earlier , last time we tried two other of these fifteen defenda nts. Similar

problemsoccurred during the trial, and I’m running

out of patience. And I’ll – I ’ll be more than happy to have Mr. Matthe w Dixon – or a ny o r all of th ese def endants t o have a seat in the lockup, and they can be brought m

essage s by

their at to rn eys with reg ard to the progre ss of the tr

ial. And I ’m absolu

tely satisfied that the appellate courts will uphold this step. I don’t have any question about it because wecan ’t try cases w ith defe

ndants being allowedto intimidate the witnesses. That’s not how the system works. And we can’t

have witn

esses co me in here – witnesses who have observed –

And wheth

er these men are guilty of this murder or notis yet to be de te rm in ed by t hi s j ur y, but an undeniable fact is that these witnesses that

have tes tified al

ready , observed this victim after he had bee

n savag ely

and brutally bea

ten. And we cann ot have th ese witnesses come in here, having seen what they saw, then be intimi dated by the defe ndants or relatives or friends into not testi fying. Our entire syste m would break down if that were allowed to occur. The fabric of our entire society would crumble if that were allowed to occur. It’s also equally

apparent to me that

when she sat down onthe stand, while app ar en tl y Mr. Dixon did not flash an additional hand sign to her, that the glare

that was g

iven suff iciently upset her again to cause her to again break down

in the witness room outside of the courtro om. (There was a pause in the proceedings.)
All right. Reluctan

tly. Very relucta ntly , and only

because this is a first-degree

murder case, I

am not yet g oing to expel Mr. Dixon from the courtroom, but I can state, a bsolutely, tha

t i f there is any further – And I said it thismorning , and I ’m not foll owin g t hrough withit this time, b ut I will the next time. If there is any further suggestion, in an y wa y, that any of these four men have att empted to intimidate any witness, then I will, without hesitation, expel them from the c ourtroom

for the b alance

of the tri al without

a doubt.
The State then asked to be allowed to recall Veronic a Johnson to testify about the flashing of the gang sign. Af

ter hea ring exte nded objections fr

om defen se counse

l as to rec alling th

e witness , the court explained why Johnson could be rec alled by the State:

Ok ay. I’ll tell you what

I thin k makes th

is extremely r

elevant , and that is the fact

that during voir dire, many hours w ere spent, or a-25- lotof time was spent – I don’t want to overstat e it, b ut a lot of t

ime was spent discussing, with the j urors, th e issue of credibility of witnesses – how do you examine a wit ne ss’ cr edibi lit y ? How do you determine a wit

ness ’ credibility ? Wh at type s of things do you look for? Demeanor on the stan d, h ow they appe ar, body lang uage, whether they look y ou in the e

ye and that s ort of thing. And th is witness, when she first took the stand, was calm and competent and looked people in the ey e and spoke directly and clearly . But as soon as this inc ident happened, she immediately got nervous, and she swung around in her chair, and she was looking over her e at the r ail there. And if y

ou want to

talk abou t credib ility

of witnes ses i n voir dire, and if you want to talk about cr edibility of witnesses in opening statemen t, and I ’m sure y

ou’ll talk about cr edibility of witnes ses in final argument, then in fairness to ev er yb ody , and esp ecially in fairne ss to Ms. Veronica

Johnson, the jury should be entitled to know why her demeanor , from this witness stand, took 180 degree about fa ce mi dw ay t hr ou gh he r d ir ec t t es ti mo ny.
If we’re down here about being fair, and fair

ly presenting, to the jur y, the facts about this case, then they should be entitled to kno w why her demeanor change d so drastically so quickly

. Even when we had that bench co nfe rence up here, and we questioned he r from the w itness c hair after we had that rece ss, [defense counsel for Smith] and maybe

one or two othe

rs notice d how visib ly s haken she was. How upset

and nervous she was at that time. And I think it would be patently unfair to the system and to Ms. Ve r oni ca J o hnson not to allow an explanation to be offered as to w hy this happened. And that’s why

it’s rele vant – the credibi lity

of each and eve ry one of the se witnesses is pu t befo re thi s jury and will be argu ed tho roughly by defense counsel, and th e state, as it should be, in fin al argument. Those are things the jury

should consider. Those arethin gs that were covered thoroughly

in voir dire.
And this ve ry

body langua ge that you all talke d about in v oir dire is what the jury sat and wa tched. An d so I

think it’s h

ighly relevant to he r t es ti mo ny – to the cr edibility of her, a s a witnes s, as it relates to every one

of these defendants, but more specifically to the two def endants t hat she id

entified , by

name, in t

hat first incident , when that young ma

n was being beaten on the 29th of August. Her testimony related to both of t

hose indiv

iduals. Now, true enough, the individual who flashed the ga ng sign was only one of the two. But Ms. Johnson, as a witness – her testimony-26- as a witness– the credibility of her te stimony

is going to be weighed. And her testimony applies to the ca se as a whole – the broader picture – the enti re case , and ce

rtainly two defe ndants.
I’ll be glad to offer a curat ive instru ction sothat the jury knows that, accord ing to her tes timo ny, this sign was flashed by only one of the four def

endants; and beyond that, the othe r three defense lawy

ers will certainly ha

ve an opportunity, and it may well wor

k to their benefit

. I mean, usually

when there’s several defenda nts on trial, and as it ’s al re ad y devel oping in t his case , as eff

orts are made to single ou t Mr. Becton, through opening statement a nd cross-examination, effortsare madeto distance one defendant from another. And that’s fine. That’ s cert ainly th e job t hat you al l are do ing.
But this may well even enur

e [sic] to the benefit of the three codefenda nts by saying, “ Look, our clients are sitting back there as they shoul d. We

didn’thave any

thing to do with this.” So in that sense, it’s hard to say that it will hurt the other three defendants if a curative instruction is given, and thenthe opportunities are present for def ense counsel to furthe

r argu e their c ase in fin al argument. An d c er ta in ly, on cross examination, you can re iterate, thro ugh th e witness , that it wasn’t you r client t hat did this . But no, Ithink it’s relevant. And now, the question – and I’m going to allow her to testify. The question is th e e xt en t o f t he te st im on y, and th e flas hing o f the s ign is what I think is the relevant event. The look that was given afterwards is vague, even though she interpr eted it to be a menacing, threatening look, t hat’s some

thing tha t’s hard to really pinpoint. A

nd the lo o k wouldn’t have affected her testimony , since it occurred after her testimonyhad bee

n complet ed. So, it doesn’t bear the same relevance to her demeanor and credibility as the sign would have.
And the Saturday conve

rsation is really

not admissi

ble beca use it’s hard tosay who made those threats that were convey

ed to her, and it’s imposs ible to att

ribute tho se threats to any of the se people. But what is, I th ink, permi ssib le, is testi mony regard ing th e gang si gn that was flashed , in the midd le of her direct e xami n ation, and the immediate

effect that had on her and the fea r that she ha d once she saw that.
Ad di ti on al ly, following

the testim

ony of Serg eant Ha

ll, the tri al court instructed that the testimony of Dixon’s f

lashing a gang sign wa s evidenc e only

as to him:-27- Ladies and gentlemen of the jury , le t me explain a couple of thin gs to you. The testimony of these la st two witne sses, Ms. Johnson, when she

came back af ter lunch and testified, and the testimonyof Sergeant Hall, is to be considered only a s to it relates to the case of State of Tennessee v. Matthew Dixon.
And then I ’ll further explain to you that because Serge ant Hall has been ca

lle d as a witness no w in the ca se, I feel tha t it would pro bably be appropriate for him not to continue with his direct supervision of you all as the j u ry in this case. And so he ’ll be working the courtroom but won’t be in direc t contac t with you jurors

. And just so you’ll know that that’s the rea son fo r his not be ing in contact with y ou, I

wanted to

offer th at expla

na tion to y

ou as well. All righ t. Call y our next wit

ness. Dixon does not contest the relevance of the testimony , arguing instead that the testimony was unfairly prejudicial and should not have been allowed under Tenne ssee Rule of Evidence 4 0 3. However, “[t]he fact that relevant evidence i s prejudi cia l does not mean the evidence must be automatic ally

excluded.” State v. W ill iamson , 919 S.W.2d 69, 78 (Tenn. Crim. App. 1995). Johnson’s initial testimony had been of the eve nts leading up to Shipp’s murder, including Smith’s telling Shipp that “he had just signed his death certificate.” Clear ly, much of Johnson’s testimony was crucial to the elements of premeditation and intent. We have previously set out the trial court’s recounting of the “180 degr ee about face” in Veronica Johnson’s demeanor, as she was te stif ying, and after Dixon had flashed the Gangster Discipl e sign. In assessing her credibility, the jury

was entitled t o know the

reason f or this. “ The ques tion of whe ther evi dence isadmissible rests with

in the sound discretion of the trial court; and this Cou rt will not interfe re with the exerci se of this discretion unless clear abuse appears on the face of the record.” State v. H ill , 885 S.W.2d 357, 361 (Tenn. Crim. App . 1994). Here, the trial court expressed sound reasons why the testimony was releva nt; an d, we co nclud e that there w as no a buse o f disc retio n in t his fi ndin g.
In a related matter, Jones argues that the trial cour t erred by refusing to allow other courtroom officers to bequestioned as to whether they saw Dixon flash a gang sign. There a re two pr oblems withthis claim. First, at trial, only Smith’s counsel asked that the o ther courtroo m deputies be permitted to testify

as to wheth er they had seen Di xon f lash a gang sign du ri ng Jo hn so n’ s t es ti mo ny. Thus, by t his assignment, Jones is arguing that the trial court erred in overruling a request of Smith’s counsel. Further , there is no showing as to what the testimony of the other courtroom deputies would have been. Accordingly , we concludeboth that Jones cannot raise this issue on appeal, not having presented it to the trial court, see Tenn. R. App. P. 36(a), and even if this were not the case, the claim of error is speculative, t here being no proof of what the testimony of the other deputies would have been.6 Rule 1 4(c) states, in pe rtinent p art: (2) The court, on motion of the State or on motion of the defendant other than un der subd ivision (c )(1), sh all grant a severa nce o f defen dan ts if: (i) before trial, it is deemed ne cessa ry to pro tect a def endant 's rig ht t o a speedy tri al or

it is deem ed ap pro priate to pro mote a fair de termin ation o f the guilt or innoce nce of one or mo re defend ants.
7 Rule 14 (c)(2)(ii) states:

(2) The court, on motion of the State or on motion of the defendant other than un der subd ivision (c )(1), sh all grant a severa nce o f defen dan ts if: (ii) during trial, with conse nt of the defe ndant

to be severed, it is deemed
nece ssary to a chieve a fair dete rmin ati on of the guil t or innocence of one or more defenda nts.

-28- VI. Severance Mickens argues on appeal that the trial court should have granted him a pretria l severance, and he, Smith, and Jones argue t hat the tr ial court er

red in not severin g the ca ses durin g the tr ial. While the record on appeal contains these defe ndants’ pretrial motions to sever, it includes an order denying only Mickens’ motion. Additionally , it does not include a transcript of any hearing on the motions, although a minute entry dated February

4, 1999, recites that Mickens’ motion to sever “having be en fully hear

d and fully considered” was denied. Other than this, the record does not reveal what occurred prior to the tria l with regard to the motions to sever. According to Tennessee Rule of Criminal Procedure 14, the trial court must gra nt a sev erance pretrial if necessa ry to ensure a fair tr ial. 6 The “clear prejudice” test applies to this determination. His argument for pretrial severa nce is that, because he was not physically

present during the actual murder and kidna

pping a nd his act s were “ drastica lly d iffere nt” than t hose of hi s codefendants, he should have been tried separately . However, “[d]isparity in the evide nce ag ainst the d

efenda nts is notalone sufficient to warrant the grant of a severanc e.” State v. H owell , 34 S.W.3d 484, 491 (Tenn. Crim. App. 2000). The arguments set out by Mickens do not establish why a joint trial prevented a fair determination being made as to his guilt or innoce nce. We c onclude t

hat this as signmen

t is without me

rit.
The practice of try

ing codefendants in a single trial is “aimed a t achieving improved judicial economy and efficiency .” See Tenn. R. Cr im. P. 8, Committee Cmts. Accord ing to Te nnessee Rule of Criminal Procedure 14(c)(2)(ii), a trial court mus t sever th

e defendants dur

ing a tr ial if “necessary to achieve a fair determination of the g uilt or innocence of one or more defendants.” 7 The decision to sever criminal defendants is wholly within the discretion of the trial court, Statev. Maddox , 957 S.W.2d 547, 556 (T enn. Crim. App. 1997), and cannot be interfered with absent “ clear abuse.” Howell , 34 S.W.3d at 491. This court has held, “[w]here a motion for severance has been denied, the test to be applied in determining whether the trial court abuse d its discretion is whether the defendant was ‘cle arly

prejudic ed’ in

his defe nse as a result of being tried with his codefendant[s].”-29-

Statev. Price , 46 S.W.3d 785, 803 (Tenn. Crim. App. 2000), perm. to appeal denied (Tenn. 2001). Therefore, we must ascertain whether the defenda nts were clearly

pre j udiced by the trial c ourt’s decision not to sever their trials.
To establish

the requ isiteprejudice, the defendants cite two incidents: the flashing of a gang sign by D ixon and the

subseque nt testimon

y a bout it fro m Veronic a Johnson and Serge ant Rick H all. Ad di ti on al ly, they arg

ue tha t t hey wer

e prejudiced by

the cross-examination of Officer Charles Cathey by D ixon’s attor

ney because the quest

ions o pened the do or for e viden ce conc ernin g a crowbar used in the murder.
The defenda

nts premis e their first argument, that they were prejudiced by

Dixon’s flashing a gang sign during

the t estimony of and to intimidate a State’s witness, on the holding in State v. Carruthers , 35 S.W.3d 516 (Tenn. 2000), cert. denied , 533 U.S. 953, 121 S. Ct. 2600, 150 L. Ed. 2d 757 (200 1), where our supre me court determin ed that the trial should have been sev ered be cause Carruthe rs’ trial conduct and inco mpet ent pro se repres entation prejudic ed his cod

efenda nt. However, Dixon’s single act pales in comparison to those of Carruthe rs, which the court detailed: [D]espite the trial court's efforts, the recor d de monst

rates that Mon t gomery

was severely

prejudiced by Ca

rruthers' selfrepresentation, specific ally , his offensive mannerisms before the jury [“scratching or pulling aroun d hi s groin when standing facing the jury ”], his question in g of witnesses that elicited incriminating e viden ce, and most importantly, his calling Alfredo Shaw to testify as a witness . The pre

judice to Mo ntgom ery wa s compounded when the Stateused and emphasized the incriminating evidence elicited by Carruthers during its closing arg ument.
Id. at 553-54 (citations omitted). Clearly, D ixon’s isolated act does not approach the continuing egregious behavior of Carruthers. The defenda nts argue that Dixon’s flashing of a ga n g sig n was “a real life, in court

demon strat ion o f the f ear a gang m ember c an imp ose up on a wi tness . The ad age a picture, or in this case [a] demonstration, is worth a thousand words comes to mind.” That may be true, but the impact of Dixon’s con duct is anemic when compared to the grue some Gangster Disciple sanctioned punishment infl icte d upon Marshall Shipp, the details of which the jury was awarethrough testimony and photog raphs. Thus, we respec tfully disagree that, given the nature of this case, Dixon’s flashing a gang sign had the impact which the defendants assert. The testimony and instructions of the trial court made it clear that Dixon had flashed the gang sign a nd that it was to be cons idered o nly

as to him.
Ad di ti on al ly, Mickens and Smith argue that Of fi ce r C at he y’s te st im on y, regarding Jones’s telling him that the murder weapons were in the trunk of his car, was prejudicial, thus necessitating that the trial court grant a severanc e during the trial. This matter arose during the State’s proof, afte r Officer Cathey had testified on direct examination of two crowbars which had been removed f rom-30-

the trunk of Jones’s vehicle and shown to the jury. Counsel f or Dixon then asked a s eries o f quest ions about the cro wbars , incl udin g the fo llow ing:

Q Officer, based on that testimony that was just elicited – I mean you’re not here to testify, and y ou’re not testifying

– as f ar as you know, these crowb ars a re, in no w ay , relate d to this incident ?
A (No audible response.) Q Are you

prepar ed to testi fy

that you know that these crowbars are part or were used in the bea ting of Marshall Shipp?
A I can’t say those are, but it was stated to me that crowbars were used. Q I’m t

alking a bout these

crowba rs.
A No, sir, I

can’t sa y th at.
The State then advised the court that while they had not intended f or Officer Cathey

to testify whether the crowbars in the trunk had been used to beat Marshall Shipp, the door had been opened by defense counsel’s cross-examination. The trial court then explained the problem resulting if the jury were not allowed to hear whether Officer Cathey agreed with Dixon’s claim that he had no knowledge of whether the crow bars had been used in the beating of Shipp:
You know, tha

t puts thing s in a little

bit different light. And he, in fact, do es have s ome knowl edge. I mea n, he said no because he’s been told not to g e t into the statements during the testimony; but if, in fact, he does have kno wledge , that “Well, one of these defendant s didactually tell me the

crowbars that were used are in the trunk, and the hamme

r is in the trunk in a purple bag, or whatever. The bats, I don’t kno w where they

went to,” then that casts a little bit different light on those crowbars because I know, certai n ly, as good defense lawyers, when fin al argument com es, y ou all would be arg

uing – if this witness is not allowed to respond t o what we

know the t

ruth is, and that is that Choncey

Jones did say, “Yeah, the c rowbars that were used are in the trunk of the car.” I f he’s not al lowed to respond t o that, then in fina l argume nt, “What g ood are t hese cr owbars? They’ve got nothing to do with this case. It wa s negative for finger prints. It was nega

tive for blood. Every

car in this city has got a crowbar

in it. What’s the big deal about finding a crowbar in the ca r?”-31- And that would be a fine argument to make except for

the fact that we know –

the jury doesn’t know y

et, but we know that

actually Choncey Jones said, “Yeah, the crowbars that were used ar e in the trunk. I don’t know

where th e bats we nt to.” You know, so

that’s the dilemma right now.
The trial court concluded that admission of Jones’s statement as to the crowbars in his trunk would notappear to affect Mickens, whose position was that he ha d notbeen present at the scene. Jones’s counsel a

rgued that the te stimony

would be “

prejudic ial” to hisclient and asked th at a severance be granted as to Jones. The State re sponded th at the re lating o f Jones’s st

atement w ould affec t only

him:
This statement does not make re ference to a co-d efenda nt, which is what Bruton would require that it would be deleted. It does not. I t say s – it do es n’ t s ay, “T he we ap on s w e u se d. ” It do es n’ t s ay, “The weapons me and Christopher Smith used,” or me andanybody else. It just says, “The we apons used,” and he told the

m they were in the car. This would hav e been admissible on the front end, I think, regar dless of [defense counsel for Dixon’s] questioning. And I would ask that it be admitted. And of course he’s free to cross-e xamine, and he’s free to

argue . There ’s still

no conne ction bet

ween tho se and his client oth er than t he connection to Jone s. The trial court then ruled tha t Office r Cathey could explain his knowledge as to whether the crowba rs had been u sed in Ship p’s be ating:

All right. Let me say

this: Everyone is entitled to a fair trial but nota perfect trial. That’s often been sa id, and we do the best we can. And I think that [defense counsel for J on es’s] arg ument is no t well foundedbecause if a

severance

were g ranted f or her c lient, the

n this statement could com

e in, on the front end, without any c oncern about opening doors tolet it in ag ainst her client. So I sti ll – E ven th ough I understa

nd what she’s say

ing, I still don’t

think that i

t’s a meritori ous arg

ument. The jury knows or soon will know that crowbars were us ed in the beating of Marshall Shipp. And the jury has heard th at a coup le of crowbars were taken out of the trunk of the ca r of Chonc ey

Jones; and the jury

knows, or

soon will know, that Choncey Jones’ car was one of the cars that

drove from the beginning point that night out to the Indian mound where Mar shall Shipp was beaten.-32- And then the implication was left that while an officer di d retrieve these two

crowba rs from the trunk, he had no personal knowl edge or

information, whatsoever, that these were the crow bars that were used in this beating when, in fact, he was told by one of the se four men, in this courtroom, that these were, in fact, t h e crowba rs tha t were u sed in this beati ng.
I don’t think there’s a Bruton problem, and I think it’s a type of statement that, in a ll honesty , even with four def endants, could have come in, in the state’s case-in-chief . I’m not sure t hat a door had to be opened in o rder fo r this to come in. But certainly now, with the qu estions th at h ave bee n po sed on c ros s ex ami nat io n, I t hink th e question – I mean the response, in one form or another, should com e i n. I’ll note your exceptions. I understand [defense c ounsel fo r Smith’s] argumen t. But aga in, t here’s nothing t hat dire ctly

ties his client to Mr. Jones ’ stateme

nt. There’s no Brutton [sic] problem. He can still make the argument – I mea n the fact that crowbars were used will be a matte

r of rec ord when

this proof is over if this proof is the same as it was in the

first tria l. Officer Cathey

then was recalled and testified: Q Officer

Cathey, y ou were asked a question concerning whether or not you had any

knowled ge of a connec tion between these crowbars that you removed f rom the trunk andthe defendants. Is that right?
A Yes, sir. Q And I

believe you indicate d that y

ou were told that those were involved. Is tha

t right?
A Yes, sir.

. . . . Q Now, o n that date of September 28th of 1997, did y ou a n d Serge ant Ball ard have

occasio n to questi on Chonce y Jone s?
A Yes, sir. Q Okay. And did y

ou ask him where the weapons were?-33- A Yes, sir. Q And d id he tell y

ou that the

hammer a

nd crowb ar were

in th e trunk of the car?
A Yes, sir. Q Of his car?
A Yes, sir. Q Okay . And did he

say any thing ab out the ba

ts?
A He said t he bats and the clawhammer were in the trunk of the car als o in a m aroon bag. Q Now, if y ou had the opportuni

ty to – this par

ti cular or al statement that was read – I mea

n that Mr. Jones gave y ou, did you record that? – was th at reco

rded in th e supplem

ent?
A Yes, sir. Q Ok ay. And if you had the oppor tunity to r

eview th at supplement

– would that refresh y our memory as to the exact words that were said?
A Yes, sir.

. . . . Q If y ou w oul d read th at

pa ragrap h to

y our se lf? All ri ght. Sergeant –I mean Office

r Cathey, wha

titems did he state to you were in the trunk of the car?
A The crowbar. Q Okay. And did he a lso mention a hammer?
A A hammer, ye s, sir. Q Okay . And wha

t did he sa

y in regar ds to the ba

t?
A He did not

know whe

re they was [sic] at

.-34- Q He did wha

t?
A He did not

know whe

re the ba ts were a t. Q Now, did you, in fact – after b eing tol d that by

Choncey Jones, did you then go to re

trieve those items from the trunk?
A Yes, sir. Q Ok ay. And did you find the two cr o wbars that you ha

ve previous ly

identified and that have been moved into evid ence in t his case?
A Yes, sir. Q And did you find any hammer?
A No, sir. Q And did y

ou find a b at?
A No, sir. Q Or bats?
A No, sir.
We respectfully disa

gree either that the trial court er red in allowin g this testimony, or that it prejudiced Mickens or Smith. In fact, as the trial court observed, neither of them was implicated by it. Further, in

view of the abundant evidence against Mickens and Smith, any error in allowing this testimony

would have been harmless. According ly, we conc lude that the trial court did not err in refus ing to se

ver the p rosecut ions. VII. Closing Arguments
Mickens raises two issues related to closing argume nts: the State improperly refe rr ed to witness testimony that had been stricke n, and the trial court erred by forcing him to display his visual aids individually, as opposed to c um ulatively. Howeve r, in the record, the closing arg uments are only “noted, not transcr

ibed.”8 Ten nessee Ru le of App ellate Proce dure 24 (c) states: If no sten ogra phic re por t, substan tially verb atim recit al or t ranscr ipt of

the evi dence
or pro ceed ings is available, t he appellant shallprepare a statement of th e evidence
or proceedi ngs f

rom the best avail able means, including t he appellant' s recollecti on. The st atement

should conv ey a f

air, accurat e and complete account of what trans pired with resp ect to those issues tha t are the b ases o f app eal. T he statem ent, certi fied by the appellant or t he appellant 's counse l as an accurate account of the proce edings, shall be f

iled with the clerk

of th e tri al court withi n 90 days after fi ling the no tice of ap pea l. -35- Tennessee Rule of Appellate Proced ure 24 pro vides tha

t it is the a

ppellant ’s oblig ation to provide a fair

and compl ete state

ment of the

releva nt proce edings. 8 “Where the rec ord is inc omplete and does not contain a transcript of the proceeding s relevan t to an is sue presented for review, or portions of the record upon which the party relies, an appellate court is precluded from considering the issue.” State v. Ballard , 855 S.W.2d 557, 560-61 (Tenn. 1993). Because no record of the c losing arguments was provided, these arg uments are waived. VIII. Sufficiency of the Evidence
Eachdefendant contends that the evidence is insufficient to support his respective convicti ons. Smith, Dixon, and Jones argue that the evidence does not support their convictions for first degree premeditated murder ; Mickens challenges his felony murder conviction by a

rguing that the evidenc e does no t support th e underlying conviction for the especially aggravated kidnapping of Shipp, with the other three defendants also arguing that the evidence does not supp ort their convictions for especially aggravated kidnapping

. In consider

ing the i ssue as it r

elates to each de fendant , we appl

y th e familia r rule that where sufficiency

of the convicting evidence is challenged, the relevant question of the revi ewing c ourt is “whether, after viewing the evidence in the lig ht most favorable to the prosecution, any rational trier of fact could havefound the essential elements of the crime bey ond a reasonable doubt.” Jackson v. Virgini a , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 ( 1979); see also State v. Eva ns , 838 S.W.2d 1 85, 190-9 2 (Tenn. 1992); State v. Anderson , 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992) ; Tenn. R. A pp. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury shall be set a side if the evidence is insufficient to support the findings by the trier of fact of guilt beyond a

reasonable doubt.”). All question s involvin g the credibility of witnesses, the weight and value to be given the evidence, and all factual issues are resolved by the trier of fact. See Statev. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987) . “ A g ui lt y ve rd ic t b y the ju ry, approved by t he trial j udge, a

ccredits the test

imony of the wit

nesses f or the St ate an d resolve s all conflic ts in favor of the theory of the State.” Statev. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme court stated the rationale for this rule:

This well-settled rule rests on a sound foundation. T he tri al judge and the jury see the witnesses face to face, hear their testimony and observe their demeanor on the stand. Thus the trial judge and-36- jury are the primary instrumen

tality of justice to determine the weight and credibi lity

to be given to the testimony of witnesses. In the trial forum alone is there human atmosphere and the totality of the evidenc e canno t be repr

oduced with a writt

en reco rd in this Court.
Bolin v. State , 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State , 212 Tenn. 464, 370 S.W.2d 523 (1963)). A jury conviction remove s the presumption of innoc ence with which a defendan t is initially cloaked and repla ces it with one of guilt, so that on appeal, a convicted defendant has the burden of demonstrating that the evidence is insufficient. See Statev. Tuggl e , 639 S.W.2d 913, 914 (Tenn. 1982).
We now will c onsider t

he evide nce as it relatesto the insuf

ficienc y c laims of each

defenda nt. A. Sufficiency of the Evidence for First Degree Preme ditated Murder
Defend ants Smith, Jones, and Dixon assert that the evidence is insuffi cient to support th

eir convicti ons for f

irst deg ree pre meditate d murder . This off ense is de fined as : (1) A premeditated and intentional killing of another; (d) As used in subdivision (a)(1) “premeditation”is an act done after the exercise of reflection

and judgment. “Premeditation” means that the intent to kill must have been formed prior to th e act itse lf. I t is notnecessa

ry that the purpose to

kill pre- exist in th e mind of the accused for any definite period of

time. The

me ntal state of the accused at the time

the accused alle ge dl y d ecided to kill must be caref ully cons idere d in order to determine whether the accused was sufficie ntly free from excitement and passion as to be capable of premeditation. Tenn. Code Ann. § 39-13-202(a)(1), (d) (1997)

. A killing isintentional if committed by “a pe rson who acts intentionally with respect to the nature of the conduct o

r to a re sult of the

conduct w

hen it is the

person' s conscious object iv e o r desire to engage in the c onduct or cause the result.” Tenn. Code Ann. § 39-11-302(a ) (1997).
The presence of premeditation is a question of fact fo r the jury to determine ba sed upon a consideration of

all the evidence. See State v. Suttles , 30 S.W.3d 252, 261 (Tenn.), cert. denied , 531 U.S. 967, 121 S. Ct. 401, 148 L. Ed. 2 d 310 (2000)

. Premeditation may be infe rred from circumstan tial evidence surrounding the crime, including the manner and circumstances of the killing. See State v. Pike , 978 S.W.2d 904, 914 (Tenn. 1998); State v. Addison , 973 S.W.2d 260, 265 (Tenn. Cr

im. App. 1997). The circumstantial evidence of premeditation must , howeve r, be “so strong and cogent as to exclude every other reasonable hy

pothesis save the gui l t of the de fendant ,9 Ten nessee Co de An notated sec tion 39-11 -106(a )(5) defines a d eadly weap on as: (A) A firearm or an ything m anifestly desi gned, made or a dapted for the purpose of inf li cti ng deat

h or s eri ous bodi ly inj ury ; or (B) Anythi ng that

in t he manner o f its use or intended use is capable of causi ng dea th or se rious b odily inj ury. 10 Because the State ’s cl osing ar guments were not trans cribed, it is un known whet her the State emp loyed this theor y arguing Jone s’s guilt.

11 The langua ge of this se ction a ctually sets fo rth three ways in wh ich a p erson may b e foun d crim inally responsible for an off

ense committed by the conduct of another: Crimin al resp onsib ility for con duc t of a not her .— A pe rson is c rimina lly respo nsible fo r an o ffense co mm itted by th e con duc t of ano ther if:

(1) Acting with the culpabili ty required f or the offen se, the pers on causes or aids an i nnocen t or irr espons ibl e pers on to e ngage in c onduct prohi bit ed by the defini tion of

the of fense ; (2) Acting with intent to prom ote or assist the commis sion of the of fense , (con tinued ...) -37- and that beyond a re asonable doubt .” State v. C rawford , 470 S.W.2d 610, 612 (Tenn. 1971). Several factors tend to evidence preme ditation: “the use of a deadly weapon upon an unarmed victim; the particular cruelty of the killing; declarations by the defendant

of an inte nt to kill; evidence of procurement of a weapon; prepar ations before the killing for con cealmen t of the crime, and calmness immediately af

ter the killing.” State v. Bland , 958 S.W.2d 651, 660 (Tenn. 1997). Here, proof of premedi

t ation was abundant. Deadly weapons were used, 9 witnesses testifying that Smith and Dixon were p art of the crowd be ating the unarmed Shipp with bats, jac k irons, crowba rs, and hammers. The manner in which he was sla

in was, wi thout a dou

bt, particularly

cruel. His entire body wa s bludgeoned and he was shot in the pelvis, either of which was sufficient

to cause death. Declarations were made of their intent to kill, Smith telling Shipp earlier that he had “ signed his death certificate” and, during the murde r, encour aging the others to “beat that bitch.” Jones procured weapon s from the trunk of h

is car. Pr eparing to conce al the cr

ime, the d efenda nts chose a location that insulated the sounds and sights within from those outside. Smit h orde red th e Aldr idge brothers to destroy Shipp’s ca r.
Jones makes th e additi onal argument that the evidence was insuff icient because there

was no testimony

that he a ctually hi t S hi pp . H ow ev er , u nd er a t he or y of cr im in al re sp on si bi li ty, the jury could have fou nd him gui lty o f fir st degree murder. 10 A person criminally r esponsible for the conduct of another may

be charged with the commission of the offense. See Tenn. Code Ann. § 39- 11-401(b) (1997). T

his theor y of guilt is based on the common law provision of criminal liability for principals, accessories before the fact, and aiders and abettors. See id. § 39-11-401, Sentencing Commission Cmts. T he Code pr ovides that “a ny p erson ma y be charg ed as a pa

rty if he or s he is criminally responsible for the perpetrationof the offense.” Id. A person is crimina

lly r esponsibl e for the condu ct of another if, “ [a]cting with intent to pr omote or a ssist

the commission of the offense, or to benefit in the proceeds or results of the offense, the person solicits, direct s, aids, or a ttempts to aid another person to commit the offense[.]” Id. § 39-11-402(2). 11 This lang uage isintended

to11 (.. .cont inu ed)
or to bene fit in th e proc eeds or re sults of the offense, the person solicits, directs, aids , or att empts to ai d anot her pe rson to commi t the of fen se; or (3) Having a duty imposed by law or volunt arily undertaken to prevent commis sion of the off

ense and acting w ith intent to b enefit in the pr oce eds o r results of the offen se, or to pro mote or assist it s c ommissi on, th e person f ails to make a reasonabl e eff

ort t o prevent c ommissi on of th e offe nse. Tenn. Cod e Ann. § 39-11-402 (1997). -38- include the conduct of defendants formerly known as accessories before t he fa ct and aiders and abettors. See id. § 39-11-402, Sentencing Commission Cmts.
Criminal r

esponsibi lity

is not a se

parate crime but “solely a theory by which the

Statemay prove the defendant’s guilt of the alleged offense, . . ., based upon the conduct of

another person.” Statev. Lemacks , 996 S.W.2d 166, 170 (Tenn. 1999). The legislative intent in promulg ati ng the theory of cr iminal responsibility is to “embrace the c ommon law principles governing aiders and abettors and accessories before the fact.” State v. Carson , 950 S.W.2d 951, 955 (Tenn. 1997).
This court ha s noted that, under the theory of criminal responsibility, presenc e and comp anionshipwith the perpetrator of a felony before and after the commission of the crime a re circumstances from which anindividu al’s participation may be inferred. See State v. B all , 973 S.W.2d 288, 293 (Tenn. Crim. App. 1998). No particular act need be shown, and the de fendant need nothave taken a phy sical part in the crime. See id. Mere encouragement of the pr in cipal will su ffice. See State v. McBee , 644 S.W.2d 4 25, 428 (Tenn. Crim. App. 1982 ). To be c riminally resp onsible

for the acts of another, the defenda nt must “‘in some way associa te himself with th e ventu re, act with knowl edge that an offense is to be committed, and share in the criminal intent of the princ ipal in

the first degree.’” State v. Maxey , 898 S.W.2d 756, 757 (Tenn. Crim. App. 1994) (quoting Hembr ee v. State , 546 S.W.2d 2 35, 239 (Tenn. Crim. App. 1976 )). The d efenda nt must “k no wi ng ly, volu ntar ily and with common intent unite with the principal offende rs in the commission of the crime.” State v. Foster , 755 S.W.2d 846, 848 (Tenn. Crim. App. 1988).
For convicti on, the Sta

te need o nly

have sho wn that Jone s inte nded to a ssist in Shipp’s murder. It wa s Jones who to ld Shipp to “ get [his] a ss in [Jones’s] car” when Shipp was abducted and Jones who, witnesse s testifie d, retrie ved the mu

rder we apons fr

om his trunk, which Jones later admitted. Thus, it is clear from the record tha t Jones intended to ass ist in the c ommission of this crime, and did so.
In State v. Phillips , 76 S.W.3d 1, 10 n.5 (Tenn. Crim. App.), perm. to appeal denied (Tenn. 2001), this court noted with approval the holding of the Illinois Court of Appeals, also in a Gang ster Disciple beating death case, fin ding the evide nce wassufficie

nt to sustain a conviction for f irst degree murder :
In People v. Mullen , 730 N.E.2d 545, 552 (Ill. App. Ct. 2000),

appeal denied , 738 N.E.2d 933 (Ill. 2000), the court af f i rmed the-39- conviction of the defendant for first degr ee m urder on a theory of criminal accountability. The de fendant w as with a g

roup of te n to fifteen membe rs of t he Gangs ter Di scipl es in C hicago who chased the victim d ow n a stree

t, pulled h

im from histruck, a

nd beat him to death. The defendant, who was positively identified by by standers as being one of

the group, claimed that he was just present during the beati ng. Id. at 551. The Illinois Appellate Court, in affirming the convi ction , stat ed the follo wing: Here, defenda

nt ch ased the victim, stayed dur ing the beati ng, and sto od ov er the victim as codefendant Townsendkicked the victim while anot her m an hit the victim with a bat . Defendant did not offer t o help, he did notdiscourage or disapprove of the cri me, he came and left with the group that

actively par

ticipated in the beating and he did n ot rep ort th e crim e. Thu s, alt hough Norfleet [ey ewitness ] did not see Mullen hitting or kicking the victim, a ratio nal trier of fact could find that defendant was accountable because he wa s not merely pre sent during the beating. Id. at 552.
We conclude, likewise, that the evidence is suffici ent to sustain the convictions of Smith, Dixon, and Jones for the first degree premeditated murder of Marshall Shipp. B. Sufficiency of the Evidence for Mickens’ Conviction for First D egree M

urder in th e Per

petrati on of Kidnapping Mickens was convicted of first degree murder in the perpetration of kidnapping as defined in Tenne ssee Code

Annotate d section

39-13-20 2. That sta

tute rea ds in part : (a) Fir st degr

ee murde r is: (2) A killing

of anothe

r commi tted in the perpetration of or attempt to per pe tr at e a ny f ir st de gr ee mu rd er , a rs on , r ap e, ro bb er y, bu rg la ry, theft, kidnapping, aggrava ted child abuse, aggr

avated c hild neglect or aircraft pira

cy.
Tenn. Code Ann. § 39-13-202(a)(2) (1997). Kidnapping occurs when one “knowingly removes or confines another

unlawfully s o as to interfe re su bstantially with the other’s liberty . . . [u]nder circumstances exposing the other person to substantial risk of bodily injury .” Id. §§ 39-13-302(a), -303(a)(1) (1997). A kidnapping becomes especially aggravated whe

n “[a]cc ompl ished with a deadly weapon” or “the victim

suffers serious bodily injury .” Id. § 39-13-305(a)(1), (4) (1997). The-40-

challenge Mick ens makes to his felony murde r conviction is to contest the sufficiency of the evidence for the underly

ing felony

conviction for especially aggravated kidnapping

. Mickens argues that the evidence is ins ufficient to support his especially aggravated kidnapping convictions because, relative to the other d efenda nts, his pa rticipat ion in the punishment s was limited. Because of the nature of his role, Mickens c ontend s tha t he is not c riminally responsi ble for the especially

aggravated kidnapping . However, “[a] defendant may be convicted of especially a

ggravated kidnapping

under a criminal responsibility theor y, reg ardl ess of whe ther there is evidence that he directly par ticipated in the criminal act itself.” Phillips , 76 S.W.3d at 12. Applying the standard for

criminal responsibility set out previously , we must determine whether the evidence supports a

conviction for especially aggravated kidnapping , and, if so, whether Mickens is criminally responsible for it.
The testimony demonstrates Mickens’ r esponsibility for

the kidnapping of

Marshall Shipp. Shipp expresse d conce

rn that he was going to be

put “unde

r G.D. ar rest” and was forc ed to come to the September 15 meeting at Mickens’ apartment, whe re the victims were surrounded by Gangster Disciple s, some of whom visibly were a rmed. Mic

kens w a s “gove

rnor” of the Gang ster Disc iple South Memphis region, the highest ranking membe r present when Shipp was kidnapped, and, on at least two prior occasions, had spoken with the overseer, Tony Phillips, about punishing Shipp. The victims were closely

escorted from the apartment to the cars. When aske d why he left the a partmen t, Ricky Aldri dge responded, “Could h ave shot m e in my back or a nyt hing. My life wasin danger.” Aldri dge testified that he could not leave the car because he was “under G.D. arrest.”Shipp wa s surroundedin the park before he was bea ten to dea th. Aldrid

ge wasput in

a full nelson before he was be at en . C le ar ly, the evidencewas sufficient to show that the victims were unlawfully confined, exposing them to a substantial risk of bodily injury

. Thus, the rec ord conta

ins abunda

nt evidence that, when viewed in the ligh t most favo

rable to the State , was sufficientto show tha t Mickenswas crim

inally responsi ble for th e kidnapp ings: he was the gover

nor of the South Memphis Gangster Disciples; he was present at the mee tings where the victims’ situationswere dis cussed; h e sough t, and re ceived, oversee

r Phillips’ permissio n to kill Shipp; he had the authority to impose Al dridge’ s kidnapping and b eating ; and he or dered Ma trin Becton to shoot Shipp.
Ac co rd in gl y, we concludethat the evidenc e was suf ficient f or Micke ns’ convi ction for

first degree m urder i n the p erpetr ation of kid nappi ng.

C. Volunta ry Mem

bership in the

Gangste r Disciple

s as a Defens e to Espec ially Aggr

avated K idnapping
Mickens and Dixon a ssert tha t the evid

ence is in s ufficie

nt to suppor

t their es pecially aggravated

kidnapping conviction s, argu ing that the victim s, by

joining t he Gang ster Disc iples, voluntar ily subjected themselves to all gang rules and punishments. Thus, the defendants reason that their conduct did not meet the statutory re quirements of kidnapping because, in their opinions, ga ng-41-

membersh

ip granted prior

consent to any punishment, including kidnapping, that t

he gan g chose

to impose. The effect

of this argument, if valid, would be t o endow th

e Gang ster Disc iples as a

n entity unto themselves, immune from the criminal laws and with li cense to punish its me

mbers as , within its sole discretion, it deemed necessary . We respectfully disag ree that a civilizedsociety can tole rate such con duct or ha s so empow ered the Gangst er Disci ples.
We conclude

that the r

ecord su pports Mic

kens’ and Dixon’s co nvictions f or especially aggravated kidnapping

. IX. Sentencing
Mickens contends that his sentence was improperly enha nced. In sentencing him, the trial court found no mitig ating f actors a pplicabl e but found five en hanceme nt facto rs: (1) The defendant has a previous history of c riminal convictions or criminal behavior in addition to those necessary to estab lish t he appropriate range; (2) The defendant was a leader in the c ommission of an offense involving two (2) or

more cr iminal ac tors; (5) The defendant treated or allowed a victim t

o be trea ted with exceptional cruelty during the commission of the offense; (8) The def

endant ha s a previ ous histo ry of unw illingne ss to comply with the c onditions o f a se ntence involving release in the co mm un it y; (11) The felony r

esulted in death or bodily injury or involve d the threat of death or bodily injury to anothe

r person a nd the defendant has previously

been convicted

of a fel ony

that resu lted in de at h o r b od il y in

ju ry.
Tenn. Code Ann. § 40-35-114(1), (2), (5), (8), (11) ( 1997). Based on these factors, the trial court imposed a life sentence without the possibility of parole f or the fir st

degree murder conviction and two consecutive tw enty -two-y ear sen tences f or the es pecially

aggr avated k idnapping convicti ons. When an accuse d challe

nges the length a nd manner

of servi ce of a s entence , it is the du ty of this court to cond uct a de novo review on the record with a presumption that “the deter minations made b y th e court from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d). This presu mpti on is “cond itio ned up on th e affir mati ve sho wing in the rec ord that the trial court considered

the sente ncing p rinciple s and all r

elevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The presumption doe s not apply to the lega l conclusions reached-42-

by the trial court in s entencing the a

ccused o r to the determinations made by the trial court

which are predicated

upon u ncon troverted facts. State v. Butler , 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith , 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994) ; State v. Bonestel , 871 S.W.2d 163, 166 (Ten

n. Crim. Ap

p. 1993). Howeve

r, this court is require d to give great weight to the trial court’s determination of controverted facts a s the trial court' s determination of these fa cts is predi cated u pon t he wit nesse s’ dem eanor a nd app earance when t estifying.
In conducting a de novo review o f a senten ce, this court must consider (a) any evidence received at the trial and/or sentencing hearing , (b) the presentence report, (c ) t he pri nciples of sente ncing, (d) the a

rgumen ts of coun sel rela

tive to sentencing alternatives, (e) the na ture and characteristics of

the of fense, (f) any mit igati ng or en hancem ent fac tors, (g) any statements made by the accused in his own behalf, and (h) the acc used's potential or lack

of potential for rehabilitation or treatme nt. Tenn. Code Ann. §§ 40-35- 103, -210 ; State v. Sc ott , 735 S.W.2d 825 , 829 (Tenn. Crim. App. 1987)

. The party cha

llenging the sentences imposed by the trial court ha s the burden of establishing that the sentence is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Commission Cmts.; Ashby , 823 S.W.2d at 169 . In this case, the defe ndants have the burden of illustrating the sentence imposed by

the trial court is e rroneou s.
In determining the appropriate sentence for a felony

conviction, the sentencing court, if there are enhancement factors but no mitigating fa ctors, may

set the sentence above the minimum in that range butstill within the range. See Tenn. Code Ann. § 40-35-210(d) (Supp. 1999); Stat e v. Boggs , 932 S.W.2d 467, 475 (Tenn. Crim. App. 1996)

. There isno mathematical formula of evaluating the enhancement

factors to calculate the appropriate se ntence. See gener

ally Boggs , 932 S.W.2d at 475. “Rather, the weight to be a fforde d an ex isti ng facto r is l eft to the tr ial co urt's discretion so long as the court complies with the purposes and principles of the 1989 Sentencing Act and its findings are adequately

supported by the record.” Id. at 475-76 (citations omitted).
On appeal, Mickens does not contest application of the enhance ment factors applied by the trial court or argue that any

mitigating factors should have been applied. He does, however, argue that the proof showed he “did not want to act on the permission to have Shipp killed” and that we should consider his youth in reviewing the sentence. However, a s we have stated, the ev idenc e abundan tly supports Mickens’ convict ions, as well as the trial court’s sentencing rationale. Ac co rd in gl y, we conc lude that the trial court did not err in setting the length o f Micken s’ sente nces.
W e now will consider the claim that the trial court erred in ordering that the sen tences o f Mickens, Smith, and Jones be served consecutivel y. Consecutive sentences are imposed at the discretion of

the trial court upon its consideration of one or more of the following statutory criteria: (1) The defenda

nt is a pro fessiona

l crimina l who has k

nowingl y devotedsuch def

endant’ s life tocri minal acts as a major source of livelihood;-43- (2) The defenda

nt is an of

fender whose record of c

riminal ac tivity is extensive; (3) The defend ant is a dange rous m entally abnorma l person s o declared by a competent

psychiatrist who conclude s as a result of an inv estigation prior to sentencing that the defendant' s criminal conduc t has been characteri zed by a pattern of repetitive or compulsive behavior with heed

less indif ferenc e to consequence s; (4) The defendant is a dangerousoffender whose behavior indicates littleor no regard for human life, andno hesitation about committing a crime in which the risk to human life is high; (5) The defendant is convicted of two (2) or more statutory offense s involv ing sex ual abuse of a minor with consideration of the aggravating

circumstances arising from the rela tionship between the def endant and vi ctim or vic tims , the t ime sp an of d efenda nt's undetected

sexual activity, the nature and scope of the sexual acts and the extent of the residua

l, phy sical an d mental d amage to the vic tim or victims ; (6) The defendant is sentenced for an offe nse committed while on probation; or (7) The def

endant issentenc ed for c

riminal c ontempt.
Tenn. Code Ann. § 40-35-115(b) (1997). These criteria are stated in the alterna tive; ther efore, only one need exist

to support the appropriateness of consecutive sentencing

. Here, the trial court found that factors (2) and (4) applied to all three defendants and factor (1) applied to Mickens a nd Smith.
In ordering that Mickens’ sentencesbe served consecutively , the trial court found that he was a p rofessio nal criminal, had a record of extensive criminal activity , and had little or no regard for human life, which the court considered the most significant fa ctor in ordering that the sentences be se rv ed co ns ec ut iv el y:

And t hat is, that the defendant is a dangerous offe nder whos e behavior indicate s little

or no regard for human life and no he sitation about committing a c rime in which the risk to human life is high. And as I’ ve said

on two or three occasions – and I won’t belabor the pointtoday

– but, cer tainly , the bea

ting tha t was administered

to this victim was horrible and savage, almost bey ond belief.

. . . .-44- Someone who’s capable of seeking per mission from a supervisor, if you will, to have a person executed in our

co mm un it y; so meone who’s ca

pable of then act ing upon that per missio n an d calling a meeting, ordering the rounding up of thes e individu als, orchestrating all of that, presiding over the meeting and then

turning everything

over to his henchmento carry out, I would sure think that would qualify as a da

ngerous offender. I

can’t imagine people in

a civilized community

or civilized society not considering tha t type of conduct to be dangerous, not

considering that ty

pe of individual to be a dangerous person. Someone wh o is so cold as to be able to take those steps and place all that in motion, even though he didn’t go out to the p ark . An d I th in k t he p roo f wi ll bea r th at o ut . An d I d on’ t dispute that state

ment by [defense cou nsel]. I don’t think Mr. Mickens was at the park that night. But I thin k he set in

motion the events that led to Mr. Shipp’s death andhe be ar s t ha t r es po ns ib il it y. And he’s, I think, aga

in, clearly a

dangerous offender.
Smith and Jones do not contest the length of their sentences but arg ue that they should not be served consecutively , the trial court failing to find that consecutive sentences wer e “reaso nably related to the severity of the of fenses” or were “neces sary to protect the public against further criminal conduct” by

the defendants. See State v. Wilkerson , 905 S.W.2d 933, 939 (Tenn. 1995).
In ordering that thesent ences of Smith and Jones be served consecutively , the trial court found that both were dangerous with little or no reg ard for human life and that, in addition, Smith was a pr ofession al crimin al:

As to Mr. Smith, the defe ndant is a professional criminal who has knowing ly d

evoted himself tocriminal acts as a major source of his livelihood. I don’t see how y ou can draw any

other conclusion.
While it’s true he spent

much of h is life in p

rison as a juvenile and as anadult, that period of time that he was out of jail, or prison, the record would show that he worked for a grand total of three weeks for the City of Memphis befor e he left that job.
He has convictions for theft, conv icti on s f or bu rg la ry, convictions for

those types of offe

nse[s]. And so the total absence of an y legitima te sourc e of livelihood and the numer

ous p rio r convicti ons, many

of them inv olving th

eft-re lated of fenses, would leadto no other conclusion, I think , than t hat he is a professional criminal. And I so find as to Mr. Smith.-45- And certainly a s to Mr. Smith, the record of crimin al activi

ty is extensive, as to Mr. Dixon to a lesser offense, and as to Mr. Jones an even lesser offense. He has the two prior conviction s: the hero in conviction and the robbery conviction.
So an arg ument could be made t

hat that’ s not extens ive. I guess, extensive is a subjective term. And the two convictions may not be extensive, whereas thegreater number of

convicti ons that Mr . Smith has, I think, certainly

would be extensive.
But those fa ctors, nu mber one as to Mr. Sm

ith and number

two as to all three defendants, ar e really min uscule, are re ally

and truly inconsequential when you get to f actor nu mber fou r, and tha t is that the defenda

nt is a dangerous offender whose behavior indicates little or no reg ard for

human lif

e and no hesit ation about commi ttin g a crime in which the risk to human life is high.
Becau se of the obscene, awful, savage beating that was inflicted by these me n on the victim in this case – th e jury concluded the same when they conclude d in the sentencing hea ring that the heinous, atrocious, and cruel factor existed. Anyone reading the transcr

ip t of this ca se would h ave to conclude that these are dangerous men. You c an’t be a human being and perform acts of this sort without being a dangerous individual by anybody ’s definition.
And beyond that, they

– during this sentencing hearing today, as eachdefendant was being discussed they would be sitting back there smil ing. I mea

n, when [the assista

nt distric t attorne

y g eneral ] mentioned – for the

record , I’ll mention th

is as one e

xampleof what I’m t alking a bout.
When [the assistant district attor ney g eneral] mentioned the unbeliev able

statement andactions o f Mr. Smith when he went down in there and told the individuals to keep beating him because the bitch ain’t de ad y et, each timeshe mentioned that Mr. Smith’s back there smil ing.
He was grinning from ear to ear each time she mentioned that as thou gh it were s ome sort of joke. It’s almost bey ond comprehension that human beings would be able to par ticipate in a beat ing of th is sort.-46- And remorse ? [Defense c ounsel fo r Jones] allu ded to re

morse from the sentencing hearing. I didn’t hear any

remorse come out of the mouth of any of these three men. They all took the stand. And they all made self-serving statemen ts. And they

all tried to , in wo rds, tell t

he victim’ s family that they were

sorry that the victim died but then immed iately wer

e quick to try to absolve

themselve s of any

responsi bility for wha

t happened.
Was I down there? Oh, no, no, no, I was standing out by the car the whole time. Did I

do anything? Oh, no, no, I di dn ’t hi t a nyb od y. I didn’t see any

thing. It was MacMa

rcus. It was this, that. They all immediately backpe dalled and t ried to extricate themselves from any

so rt of invo lvement in

this incide

nt at all. Re morse, true re

morse wou

ld come f rom one of

these me n – and it wo ul dn ’t be ea sy. Bu t i n a ca se of th is so rt it sh ou ld n’ t b e e as y.
But true re morse wou

ld come if one of the se men had th

e guts to get on th is witnessst an d a nd re al ly s ay, look, it was a horrible thing that happene d that nig

ht and I saw every bit of it, it was aw ful, and shed a tear for what he pa rti cipated in and talk about what he participated in.
True remorse

would be t

o do something like Ricky Aldridg e did when he came

down her

e and tes tified asto wh at he observed, testified as to this beating that he witnessed.
For one of these men to get on the stand and have the courage to actually apologize for what occurred that ni ght that would be remorse. But I didn’t hear any

of that at the sentenc ing he aring from any one of these men. So, yes, I think that factor number four clearly exists as to a

ll four o f these men. They ar e all dangerous men by anybody ’s defi nit ion. And these

sentenc es should b e serve d consecutively to one another and consecutively to the life sentence that they received, which in Mr. Jones’ case would be forty y ears consecutive to the life sent ence; in Mr. Dixon’s case, sixty-five y ears consecutive; and

i n Mr. Smith’s case, eighty

years c onsecutive.-47-

All three o f thes e defen dants had pr ior cr imin al reco rds. A t the s enten cing he aring, the State advisedthe trial court that, as an adult, Mickens had previous felony convictions for aggrava

ted assault, possessio n of a pro hibited we apon, and reckle ss endanger ment with a deadly we apon; ad di ti on al ly, as a juvenile, he had felony convictions for grand larceny of an automobile, possession of cocaine with intent to sell, and theft of p roperty over $50 0, and a Cl ass A

misdemeanor conviction for carry in g a dangerous wea

pon. Smith had prior convictions as an adult for three agg ravated assaults, two fe lony thefts, re ckles s enda ngermen t wit h a dead ly weapon , and b urgl ar y of a motor vehicle, as well

as three felony

and one misdemeanor convictions as a juvenile. Jones had a previous fe de ra l fel on y dr ug co nv ic ti on an d a co nv ic ti on as a j uv en il e for ro bb er y. The record

abundan tly s upports th

e fin di ng of the trial court that these defendants a re dangerous offende

rs whose behavior shows little or no regard for human life, a s is apparent from the gruesome details of Shipp’s fatal beating.
Ad di ti on al ly, the rec ord suppo rts a find ing that Mickens a

nd Sm ith are profess i onal criminals and that crime is t heir major sou

rce of livelihood . Mickenswas the g overnor for the South Memphi s Gangster Disciples, and he reported that he has never ha d gainful employ

ment. During the periods when Smith was not incarc erated , it appea rs that hisonly

legal e mploy ment lasted for thr

ee wee ks. He stated that he has been a member of the G angster Disciples all of his adult life.
We conclude, upon de novo review, that consecutive sentencing is “the least sever e measure necessary to achieve the purposes for which the sentence is imposed.” Tenn. Code Ann. § 40-35- 103(4) ( 1997). Th

is issue is without mer

it.
X. Cumulative Error
The defendants argue that even if none of

the err ors is determined to be prejudicial by itself, their cumulative effect mandates a new trial. How ever, since we have determined that the tr ial court did not err in the rulings raised on appeal, there is no c umulative error for us to consider.
CONCLUSION
Based upon the foregoing authorities and re asoning, we affirm each de fendant’s convictions and sente nces.

___________________________________ ALAN E. GL

ENN, JUDGE