### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs N ove m be r 6, 200 7

STATE OF TENNESS EE v . WI LLI S AYERS

Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty

No. 04-07182 Chris Cr aft, Jud ge

No. W2006-02441-C CA-R 3-CD - F iled May 6, 2008

D e f e n d a n t , W i l l i s A ye r s , w a s i n d i c t e d f o r f i r s td e g r e e m u r d e r

an d e s p e c i a l l y a g g r a v a t e d

r o b b e r y. Defen da nt w a s tr ie d jo int ly

wi th c o- de fe nd ant, Cha

rl e s Curt is, and

ano the r c o- de fe nd ant, Da vid Mil ke n, wa s tr ie d se pa

rate ly fo r the c ha

rg e d of fe ns e s. Co- de fe nd ant C ur tis ’s c a se is n ot p art

of thi s appea l. Following a jury

trial, Def endant wa s found g uilty of the lesser included off

enses of second deg ree murder and fac ilitation of espec ially ag g ravated robber y

. The trial court sentenc ed De fenda nt as a Rang e I , standard of

fende r, to twenty -two y ear s for his sec ond deg ree murder c onviction, and as a Rang e I I , multipl e off

ender , to f ourtee n y ear s for his f

acilitation of espec ially

ag g ravated robbe ry conviction. The tria l court orde red D efe ndant to serve his sentenc es consecutively , for a n eff ective sentenc e of thirty -six y ear s. I n his a ppeal, Def

endant a rg ues that (1) the evidenc e wa s insufficient to s up po rt his c on vic tio ns ; ( 2) the tr ia l c ourt e rr e d by fa ili ng to i ns tr

uc t th e jur y that State ’s wi tne ss Corey Smit h was a

n acc omplice to the cha rg ed off enses; (3) the trial cour t er re d in denying De fe n d an t ’s m o t i o nfo r s ev er an ce ; an d (4 ) t h e t ri al co u rt erre d i n i mp o s i n g co n s ec u t i v e s en t en ci n g. Af te r a tho ro ug h r e vie w o f t

he re c or d, we a ff

ir m th e jud g me nts of

the tr ia l c ourt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Cr im inal Cou rt A ff irm ed

T H O M A S T. W O O D A LL , J ., delivere d the opinion of the cour t, in which and J A M ES C UR WO OD W I TT , J R ., an d J. C. M C L IN , J J ., joined.

Er ic Chr ist e ns e n, Me mph is, Te nn e sse e , f or the a pp e lla nt, Willi s A y e rs

. Rob e rt E. Coo pe r, Jr., Attor

ne y Ge ne ra l and

Re po rt e r; Pr e sto n Ship p, As sis tant Att or ne y Ge ne ra l; Wil liam L . Gibbons, District Attorney Gene ral; Michelle Kimbril-Parks, A ssistant District Attorney Gene ral; and A landa Dw y er, A ssistant District Attorney Gene ra l , for the a

ppellee, the State of Tenne ssee.-2- OP IN ION

I. Bac kgr ound Christy Be rnar d testified that the victim was he r brother , Charlie Jackson, J r. Ms. Be rnar d said that the victim drove a burg undy Cadillac which was reg istered in the name of Ang ela Morton, the victim’s cousin. Ms. Be rnar d stated that she wor ked eve nings, a

nd the victim would take her sons to football practice afte r school. The victim kept t he children’s football g ear in the trunk of the Cadillac. Ms. Be rnar d said that she last saw the victim on April 22, 2004, betwee n 7:00 and 7:30 p.m. at Ms. Morton’s residenc e whe n she picke d up her s o n s afte r football pra ctice. Ms. B erna rd ob se rv e d th e vic timpla c e he r s on s’ fo otb a ll g e ar i nt o th e tr unk o f h is c ar b e fo re sh e le ft . M s. Be rnar d said that the victim’s le ather coat was also in the trunk, and both the footba ll ge ar a nd the leather coat we re missing from the Cadillac ’s t runk when the vehicle was re turned to her afte r the commission of the offe nses. Ms. Be rnar d identified the footba ll helmet and shoulder pa ds which
wer e introduce d as an e x hibit at trial as her sons’ e quipment. Ms. Be rnar d said that the leather c oat
was ne ver r ecove red.
Corey Smit h testified that he ha d k nown Def endant f or appr ox imately

four y ear s and Mr. Curtis, the co-def

endant, approxi mately seven y ear s. Mr. S mith stated t hat he went over to Monica Te rr y ’s a pa rtme nt i n Summi t Park

Ap artme nts to p la

y c ard s o n Apr il 2 2, 20 04 , b e tw e e n 7 :00 p. m. and 8:00 p.m. David Milken, Ms. T err y ’s boy friend, Ms. T err

y , and Ms. T err

y ’s frien d , Gl en d a, wer e pre sent. Mr. Curtis arrive d approximately o n e h o u r l ater. Mr. Curtis told t he g roup that he neede d money

beca use he ha d no place to stay

. Mr. C urtis asked Mr. Milken for his ce ll phone and then re treated to the bathroom. Mr. Curtis came out of the bathroom a few minutes later, re trieved Ms. Te rr y ’s ho us e te le ph on e , a

nd re tur ne d to the bathr oo m.
Def endant a rrived at Ms. Terry ’s apa

rtment while Mr. Curtis wa s talking on the telephone

. Def endant ha d a book pac k with him which he place d in Ms. Terry ’s bedr o o m

. De fendant, Mr. C u rt i s an d M r. M i l k en we n t o u t s i d e an d s t o o d at t h e b o t t o m o f t h e ap ar t m en t ’s s t ai rc as e, co n v er s i n g, while Mr. Smith and Ms. Terry rema ined at the top of the s tairs over looking the a partment building ’s parkinglot. Mr. Curtis continued to talk on Ms. T err y ’s house telephone as the thre e men c onverse d.
Ap pr oximate ly

thi rt y to f or ty -f ive min ute s late r, M r

. S m i t

h o b s e r v e d a b u r g u n d y C a d i l l a c pu ll into the parking lot. Mr. Curtis got into the front passe n ger s ea t as De fenda nt and Mr. Milken walked towa

rd the “dar

k part” of the a

partments located next door. The driver of the Cadillac a

nd Mr. Curtis remained in the Cadillac for approximately twenty minutes. Mr. Milken then walked up to the dr iv e r ’ s s id e o f th e Ca d il la c an d a tt e mp te d to p u ll th e dr iv e r o u t o f th e v e h ic le by his neck. The ve hicle jer

ked, and the brake l ights came on. Mr. Sm ith said that Defe ndant walke d up to the dr ive r’ s si de of

the ve hic le , p ull e d o ut a

g un , a nd fi re d o nc e . T he dr ive r s lum pe d o ve r i n th e c a r s e a t. Mr. Milken pushed the dr iver int o the passenge r seat and got into the driver’ s seat. Mr. Curtis g ot i n t o t h e b a c k

s e a t , an d t h e t w o m e ndr o v e aw ay.-3-

Mr. Smith and Defe ndant went ba ck inside Ms

. Terr y ’s apartment. Def

endant put his gun in h i s b o o k p ack and told Mr. Smit h that the shooting w as an a ccide nt. Defe ndant said that he thought he saw the victim r eac h down and believed that the victim wa s g oing to r etrieve a we apon. Mr. Curtis and Mr. Milken re turned to Ms. Ter ry ’s apartment approximately thirty to forty -five min ute s late r i n th e burgun dy Ca dil la c . M r. Cur

tis tol d M r. Smith th a t he ne e de d “ to p ut i n s ome wo rk .” Mr. Smith to ld M r. Cur tis that he did

no t w ant t o b e inv olv e d, bu t Mr . Curt is b e g a n to verba lly threaten Mr. Smith.

Mr

. Cu rt is o pe ne d th e Ca dil la c ’s tr un k a nd ha nd e d M r. Smith tw o f

oo tba ll h e lme ts, so me sh ou lde r p a ds , a

nd a le a the r c oat. M r. Smith to ok the ite ms into Ms. Te rr

y ’s a pa rtme nt. Mr . Sm ith said that Mr. Curtis had taken some coca ine, marijuana , and twenty dollars f ro m t h e v i ctim. Mr. Curtis beg an cookingthe coc aine on Ms. Te rry ’s stove.
Mr. Smith, M r. Curtis and Mr. Mi lken t hen drove the Cadillac to an insura nce of fice building approximately one-ha lf mile from Ms. Terr y ’s apartment. Mr. Curtis handed Mr. Smith some lighter fluid and told him to set the car on f ire. Mr. Smith poured lig h t er fluid on the back se at, then he handed the lighter

fluid back to Mr. Curtis. Mr. Smith t old Mr. Curtis that he did not want any thing “to do with it,” and Mr. Curtis set t h e C ad i l l ac on fire. Mr . Smit h, Mr. Curtis, and Mr. Milken
wa lke d b a c k to Ms. Te rr

y ’s a pa rtme nt a nd pla y e d c ard s.

Mr. Smit h testified that he did not know the victim. Mr. Smit h said that he did not overhe ar either Mr . Curtis’ telephone c onversations or the conver sation betwee n Mr. Curtis, Defe ndant, and Mr . M ilk e n w hil e the y

sto od a t th e bo tto m of

the sta ir s.
On cr oss-examination, Mr. Sm ith said that the onl y person he saw with a gun that night was Def endant, a nd that t h e first time he noticed the wea pon was whe n Def

endant f ired the gun at the victim. M r

. Sm it

h s a id th a t D e f

e n d an t’ s ar

m w a s f u ll y e xte n d e d , an d th a t th e v ic ti m w a s fac ing forwa rd in the vehic le. Mr. Smith acknowledg ed that Def endant was not prese nt when the Cadillac
wa s se t on

fi re . M r. Smith de nie d makin g a state me nt to Ka y land ra Ay e rs or

Pa tr ic ia Marc hb a nk s. Mr. Smith acknowledg ed that he did not hea r anyone, including Def

endant, plan t o co m mit any offe nses involving the vic tim.

Offic er Jeff Sea ley

with the Memphis Poli ce D epar tment routinely

patrolled W ill C arr

uthers Park duringhis evening shift. Office r Seale y testified t hat he observe d an indi vidual, who appe are d to be unconsc ious, ly ing on his ba ck with outstretche d arms in t h e p ark’ s parkinglot around midnight on April 22, 2004. Off i ce r S eale y

approa ched the man and attempted to find a pulse. When he could not do so, he c alled for an ambulanc e and ba ck-up.

Offic er M ar l o n W rig ht, a member of the Memphis Police De partment’s c rime sce ne investigation uni t , ar ri v ed at the par k shortly afte r midnight. Of

fice r Wright testified that the victim’s pockets we re turne d inside out. Various piec es of a broken cell phone wer e re cover ed at the c ri me sc e ne inc lud ingthe c e ll p ho ne ’s fa c e plate , b a c k p la te , r ub be r k e y pa d and batte ry

. A d ime-4-

was found ne x t to the victim’s left leg , and the victim had e leven cents in one of his pocke ts. Office r Wri g ht f ound the vic tim ’s dr ive r’ s li c e ns e bu t no t a wa lle t.

Offic er B ry an Da

vis responded to a

call about an abandoned vehicle at a pproxi mately

1:00 a.m. on April 23, 2004. The ve hicle wa s parke d n ear a building be hind the Summi t Park Apar tments. Office r Davis stated that the vehicle was re g istered in the name of Ange la Morton, and t h e v eh i cl e’ s k ey s we re m i s s i n g.
An g e la Mo rt on , th e vic tim ’s c ou sin , s pe nt t he a ft e rn oo n o f A

pr il 2 2, 20 04 , with

the vic tim at her son’s and Ms. Be rnar d’s s ons’ football prac tice. After prac tice, the football g ear belong ing to M s. B e rn ard ’s so ns wa s st or e d in the tr un k o f t he Ca dil la c wh ic h th e vic timdr ov e . T he vic tim le ft Ms. Mo rt on ’s a

pa rtme nt that e ve nin g a t a

pp ro xima te ly

8:0 0 p .m. to atte nd

a bir thd ay pa rt y . M s. Mo rt on sa id t he vic timwa s d

ri vin g the burgun dy Ca dil la c wh ic h wa s re g ist e re d in h e r n a me . M s. Morton last spoke with the victim by cell phone be tween 8:45 a nd 9:00 p.m. Ms. Morton said that the victim’s cell phone w as re g istered in her name.

L a ke sh e a Roc he Cob b d a te d Mr

. Cur tis of f and on fo r e le ve n y e ars pr ior to t he of fe ns e s. Ms. Cobb testified that Mr. C urtis called her in mid-April, 2004, and a sked whe re she was. Ms. Cobb tol d h im s he wa s at Ma

rl ow e ’s , a loc a l r e sta

ur ant, wi th h e r c o- e mpl oy e e s. Mr . Cu rt is a rr ive d s ome tim e a ft e r 1 1:0 0 p .m. Ms. Cob b s a id t hat she and

De fe nd ant s a t do wn

a t a ta ble to t a lk, and

Ms. Cobb notice d some specks of blood on Mr. Curtis’ w hite t-shirt. Mr. Curtis fir st told Ms. Cobb that he had be en in a f

ight a nd had bee n struck i n t h e n o se. When Ms. Cobb replied that nothing appea red w rong with his nose, Mr. Curtis tol d her that he had shot someone. Ms. Cobb said that she just “cried a

nd looked at him.” Mr. Curtis then told M s

. C o b b that she knewhe would not do
any thi nglik e that.

A man ente red the restaur ant and told Mr. Curtis, “Man, we g ot to go.” Ms. Cobb
acc ompanied the two men to the door . Ms. Cobb observed Mr. Curtis and the ma n g et into an older, larg e ve hic le sim ila

r t o a Ca dil la c and

dr ive awa

y . M s. Cob b w e nt b a c k in sid e the re sta ur ant.

Ms. Cobb said that Mr. Curtis called her a pproxi mately

two wee ks later a

nd arr ang ed a meeting . Ms. Cobb picked Mr. Curtis up, and they stopped at a ga soline station. Mr. Curtis t old her that he wa s “f

e e lin g he a vy

a bo ut s ome thi ng .” Mr . Curt is t old Ms. Cob b th a t he ha d s ho t “ B ig Daddy .” Ms. Cobb identified the victim as the man she knew only as “B ig D addy .”

Ms. Cob b sa id that Se rg e ant Ti m Sim s c onta c te d h e r o n Jun e 19 , 2 00 4, and e sc or te d h e r t o the police station. Ms. Cobb identified Mr. Milken from a photog raphic line-up as the ma n who had left Mar lowe’s with Mr. Curtis. Ms. Cobb spoke with Mr

. Curtis the day afte r he wa s arr ested, a nd Mr . Cu rt is t old he r to dis po se of the fo otb a ll g e ar that wa s a t Ms. Te rr y ’s a pa rtme nt. Ms. Cob b s a id that she ca lled Serg eant Sims and told him t hat she ha d retrie ved the f ootball ge ar. Ms. Cobb
a c kn ow le dg e d th a t Mr . Curt is h a d to ld h e r h e us e d to buy dr ug s f ro m th e vic tim

.-5-

On cr oss-examination, Ms. C obb said that she did not see a wea pon on either Mr

. Curtis or Mr . M ilk e n w hil e the y

we re a t Ma

rl ow e ’s . M s. Cob b d e nie d th a t sh e ha d e nte re d in to a re la tio ns hip with Serg eant Sims after

sh e g ave he r statement, but she a cknowledg ed that she w as in Serg eant Sims ’ boat whe n he drowned dur i n g a boatingacc ident. Ms. Cobb said that she did not know Def endant, and she ac knowledg ed that De fenda nt was not prese nt at Marlowe ’s with Mr. Curtis and Mr. Milken.

Of fi c e r E rn e sti ne Da

vis on te sti fi e d th a t sh e wa s pr e se nt wh e n Ms. Cob b g a ve a state me nt t o Serg eant Sims co n cerning the shooting. O ffice r Da vison said that she ty

ped up Ms. Cobb’s state me nt, and

Ms. Cob b r e a d it

ov e r, ma de c or

re c tio ns , and sig ne d th e la st p a g e . O n c ro ssexamination, Officer

Davison said that she was not pr esent during Serg eant Sims ’ initial interview of Ms. Cobb. Offic er D avison ac knowledg ed that whe n Ms. Cobb was asked w hy Mr. Curtis shot the victim, she responde d it was bec ause the victim had shorted him on a drugsale.

Se rg e ant Elai ne Sh e lby , a n inve sti g a tor

wi th t he Di str ic t A tto rn e y ’s Of fi c e , atte mpt e d to locate Monic a Te rry

befor e trial. Ms. Terr

y ’s m other told Serg eant Shelby that Ms. Terr

y had died in November

2004, from a lungdisease.

Ta batha B e nd e r, an o pera ti ons ma na g e r w ithCr ic ke t Co mmunic a tio ns , te sti fi e d th a t Ms

. Morton’s cell phone was used on April 22, 2004, to place two c alls to the same spec ified telephone number at 10:25 p.m. and 11:37 p.m. respectively

. Ms. Morton’s cell phone rece ived a call from that number at 12:29 a.m. on April 23, 2004.

Se rg e ant An tho ny Mu lli ns , a mem be r o f t he Me mph is Po lic e De pa rtme nt’ s h omi c ide un it, testified that the victim’s fing erpr ints were f ound on the ce ll phon e l o ca t ed i n t he par k wher e the victim was found. Serg eant Mullins acc ompanied Serg eant Sims to Ms. C obb’s apa rtment on J une 19, 2004. Ms. Cobb tol d the officers about her meeting with Mr. C urtis at M arlowe ’s. Ms. Cobb also stated that Mr. Curtis told her that he ha d just shot s omeone a nd taken his ca

r. Mr. Curtis then started laug hing and told Ms. Cobb he “wa s just play ing.” Ms. Cobb said that Mr. Curtis left in “a brown or bur g undy

car , possibly

a C adillac.” On cross-examination, Serg eant Mull ins said that the police investig ation of the c rimes had be en conc luded bef ore Ser g eant Sims died.

Dr. Tom De eringwas ser ving a s S h elby

County ’s I nterim Chief Medica l Ex aminer at the time of the incident a

nd perf ormed a n autopsy on the victim on April 23, 2004. Dr. De eringtestified that the vi ctim died as a re sult of a sing le g unshot wound to his forehea d. The wound w as located above the mid-point of t he victim ’s right ey ebrow

. The presenc e of stippli ng and soot around the
wo un d in dic a te d th a t th e ba rr e l of the g un wa s be tw e e n six and tw e nty -f our inc he s fr om t

he vic tim when the w eapon w as dischar g ed. Dr . Dee ring said that the pre sence of stippling in the vi ctim’s ey es and the e ven spac ing of the s tippling around the wound indicated that the vi ctim was dire ctly fac ing the shooter a

nd his ey es we re ope n when he was shot.

Dr. De eringstated that the bullet trave led to the bac k of the victim’s head, c ausing subdural
a n d s u b ar a c h n o i d h e m o r

r h a g i n g

. D r

. D e e r i n g s a i d t h a t t h e v i c t i m w o u l d h a v e i m m e d i a t e l y los t-6-

consciousness a fter he was shot, but that the vi ct i m co uld have lived f or a f ew se conds to a fe w minutes after the i njury

. The bull et was extracted from the vi ctim’s head during the autopsy . Dr. Dee ring stated that the victim also had br uising a nd swelling around his e y es and two a brasions on the bac k of his left wrist. On c ross-examination , Dr

. Dee ring testified that he did not know if the victim’s ey es we re blacke ned befor e the shooting or as a result of the shooting. D r. De eringsaid that he did not detec t any

injuries to the victim’s neck.

Mr. Curtis testified in his own b eh al f. M r. C urtis said that he ar rived at Ms. Terry ’s
a pa rtme nt o n Apr il 2 2, 20 04 , b etw een 6:00 p. m. a nd 7:0 0 p .m. Mr . Sm ith , M r. Mil ke n, and Ms. Te rr y ’s fr ie nd , Gle nd a , we re a lso pr e se nt. At so me po int , Mr. Cur tis c a lle d M s. Cob b, and

a ma le voice r esponded on he r answe ring machine. Mr . Curtis gre w ang ry

. He continued to call Ms. Cobb until he rea ched he r, and the y argued over

the telephone. When the battery on the cell phone he was using w ent dea d, Mr. Curtis continued to talk to Ms. Cobb on M s. Terr y ’s house tele phone.

Mr. Curtis stated that he did not have a way to g et t o Marlowe ’s where Ms. Cobb worke d, so he ca lled the victim, whom he had known sinc e ele mentar y s chool, and a sked for a ride . Mr. Cur tis tol d th e vi c timthat he wa nte d to g o to Ma

rl ow e ’s to g e t so me thi ngto e a t, b ut t he vic tim believed that Mr. Curtis wanted to see if Ms. C o b b wa s wi t h another man. The vic tim tol d Mr. Curtis he would g o buy him something to eat fr om another r estaura nt. The victim left and r eturne d to the Summi t Park Apar

tments betwee n 9:45 and 10: 00 p.m. The victim and Mr. Curtis sat in the vic tim ’s ve hic le and

ta lke d f or a pp ro xima te ly

te n to tw e nty

min ute s.

Mr . Curt is s a id t

hat Mr . M i l k e n

wa lke d p a sse d th e Ca dil la c , a nd the vic tima

pp e are d n e rv ou s. Mr . Cu rt is r e a ssu re d th e vic timthat Mr . M ilk e n w a s a fr ie nd . M r. Mil ke n w a lke d p a sse d th e ve hic le
a sec ond time, gr abbed the victim’s head, a n d t ri ed to pul l him out of the Cadillac. Def endant appea red at the front passe ng er side of the vehicle and point ed a g un throug h the open window. Mr

. Curtis said that he hit Defe ndant’s ar m, and the g un discharg ed, striking the victim in the forehe ad. M r. C u rt i s d es cr i b edt h e e v en t s i m m ed i at el y fo l l o wi n g t h e s h o o t i n g:
After the shooting, Mr . J ackson f ell forwa rd onto my

shirt. And, Ijumped out of the
car . [Defenda

n t] ran. When [Defe ndant] ran, [Mr.] Milken panicke d and talk[ed]
a bo ut b ur nin g the c ar. So, Isa id, no , I sa id, le t’ s g o to the ba se ba ll park

. I we nt t o the baseba ll pa

rk beca use I play ed softball up there , and I know what time the police
run. They run ever

y hour up there like clockwor k. So, instea d of burning the body in the car [,] I dropped the body and took the car

. We le ft, when w e lef t the park, [we]
we nt t o M arl ow e ’s

. Mr. Curtis stated that he told Ms. Cobb he had shot someone “basically , to scar e her.” Mr. Curtis went to Marlow’s be cause he wa nted “to show [his] fac e.” Mr. C urtis explained that “if y ou see a murder, no w itness, no case ,” and Mr . Curtis wanted Ms. Cobb to s ee t h at h e was with Mr. Milken if any

thing ha ppened to h im. Mr. Curtis said that after they left Mar lowe’s, Mr. Milken dr ov e the Ca dil la c ba c k to the Sum mit Park Ap artme nts

. Mr

. Mil ke n ha nd e d Mr

. Smit

h th e fo otb a ll g ear and the lea

ther c oat from the Ca dillac’s trunk, a nd Mr. Smith took the items into Ms. Terry ’s-7-

apar tment. Mr. Milken retrie ved some lig hter fluid fr om the ap ar t m en t , and Mr. Curtis told Mr. Milken that he would burn the ve hicle. Mr. Curtis said that he and Mr. Smit h drove to a n insurance building a short distance from the a partments. Mr. Smith poured lig hter fluid on the ve hicle and se t it on fire. Mr. Curtis said that he did not re tu rn t o M s . Terr y ’s apa rtment but walked instea d to a
ne arb y ho te l w he re he ha d a

ro om. Mr. Curtis ga

ve a statement to Ser g eant Sims about the incident. As he was lea ving, Ser g eant Sims told Mr. Curtis t hat he would ne ed a se cond stateme nt the next day about the shoulder pa ds that
wer e in the victim’s Cadillac. Mr. Curtis said that “shook [hi m] up,” so he ca lled Ms. Cobb asked her to dispose of the football g ear . Mr. Curtis denied that he kne w what Mr. Milken and De fenda nt planned to do that nig ht. Mr. Curtis acknow ledg ed that he he lped dispose of the body and burn the victim’s Cadillac.

On cr oss-examination, Mr. Curtis s aid that the victim was fac ing him whe n Def endant shot him through the front passe ng er side w indow. Mr. Curtis said that Mr. Milken pulled the victim out of the ve hicle by

himself afte r they arr ived at the park, and Mr. Curtis re mained in the Cadillac. Mr. Curtis acknowledg ed that he did not try to help the victim a fter he was shot a nd that his only

thought
wa s “ to c le an u

p the me ss. ” Mr

. Cur

tis de nie d that Mr

. Smit

h wa s a fr a id of him and sa id that he did
n o tt al k t o M r. S m i t h af

t er t h e s h o o t i n g.

M r. C u rtis said that he had he ard a bout Defe ndant but did not personally know him. Mr. Cur tis a c kn ow le dg e d th at he bou g ht co c a ine fr om the vic tim wh ic h he la te r re so ld. Mr . Curt is s a id that a police car appea

red behind them while Mr. Milken was driving to the park. The victim was in t he fr on t pa sse ng e r se a t, be nt ov e r wi th his fa c e po int e d tow ard the fl oo rb oa rd . M r. Cur

tis tol d Mr. Milken not to panic. Mr. Curtis said that he did n o t k n o w whether the victim was still alive when they

arr ived at the pa

rk. Mr. Curtis de nied taking any money or drug s from the victim. Mr. Curtis said that Mr. Milken smashed the victim’s ce ll phone and jumped back in the Ca dillac. Mr. Curtis acknowledg ed that he told Ms. Cobb he “ha d a heavy conscious [sic] ,” but said that they had that conver sation in a hotel room, not a g asoline station.

On re direc t examination, M r. Curtis said that the victim did not ca rr y d rugs late at night beca use he w as af

raid he would be robbe d.

Def endant then pr esente d his defense to the jury . Kaylandra Ay ers, De fenda

nt’s sister, te sti fi e d th a t Mr . Sm ithc on ta c te d h e r a ft e r t he sh oo tin g and

ask ed Ms. A y e rs to t a ke him to Def endant’ s attorney

. Ms. Ay ers sa id that Mr. Smit h wanted to tell the a ttorney that Def endant wa s wi th h im o n th e po rc h w he n th e vic timwa s sh ot, and that D e fe nd ant d id n ot s ho ot t he vic tim

. On cr oss-examination, Ms. Ay ers said that she did not know Mr. Smith, but Mr. Smith knew some of her

siblings. Ms. Ay ers sa id that she neve r told her brother about Mr. Smith’s statement that Def endant wa s not the s hooter. Ms. Ay ers acknowledg ed that Mr. S mith testified at the pre liminary hear ing that Def

endant shot the victim. Ms. A y ers acknow ledg ed that she did not tell t h e p olice ab o u tM r. S m i t h ’s s t at em en t , an d s h e d i d n o ts ee M r. S m i t h aga i naf t er t h e p re l i m i n ary

h ea ri n g.-8-

Patricia Mar chbanks te stified that she wa s working as a para leg al for Defe ndant’s attorne y at the time of the inc ident. Ms. Marchba nks said that Ms. Ay ers br oug ht Mr. Smit h to the office the da y be fo re De fe nd ant’ s p re lim ina ry hear in g, bu t D e fe nd ant’ s atto rn e y wa s n ot t

he re . M s. Marc hbanks took notes as Mr. Smith talked. Mr. Smith t old Ms. Marc hbanks t hat the investig ating office rs had c hang ed his statement, and he felt bad a nd wanted to clea

r t hings up. Ms. Marchba nks said that she intended to ty pe up Mr. Smit h’s statement, but Mr

. Smit h said he would not sig n the statement, and le ft the off ice be fore the statement c ould be pre pare d.

On cros s-e xami natio n, Ms. Ma rc hb ank s sa id t

hat sh e did

no t ha ve an o pp or

tun ity to t e ll De fe n d an t ’s at t o rn ey

ab o u tt h e m ee t i n g b ef

o re t h e p re l i m i n ary

h ea ri n g.
II. Su ff iciency of the Evid ence
Def endant c ontends that the evide nce w as insufficie nt to support his convictions of second deg ree murder a

nd fac ilitation of es pecia lly ag g ravated kidnapping . Def endant a rg ues that Mr. Smit h was a

n acc omplice as a matter of law whose testimony that Def endant wa s the shooter wa s uncorr oborate d by

any one other

than his c o-def

endant, Mr. Curtis. De fenda nt also contends that the trial court e rre d in not inst ructing the jury that Mr. Smith was an ac complice a s a matter of law.

Th e tr ia l c ourt

fo un d th a t Mr . Sm ithwa s n ot an a c c omp lic e a s a matt e r of law an d th a t hi s status as an a ccomplice was a question for the jury

to decide. T he trial c ourt specif ically found:
[O] f cour se, Mr. Smith’s testimony was that he had nothing to do w ith the murder or the ro bb e ry

a t a ll. Th a t a ft e r i t wa s c omp le te d he the n too k th e , h e pu t li g hte r f lui d in the car and at the r equest of the defe ndants he took the football equipment. So, that’ s a qu e sti on fo r t he jur y to de c ide

. Th e y ’r e g oin g to have to e va luate a ll o f t hat. I did not he ar Mr . Curtis testify that Mr. Smith was in on any thing. Nor , [i n] any

of the proof y ou put on. So, f or that rea son beca

use it’s a question for the ju ry , I ’m g oin g to u se that pa

ra g ra phand make it o pti on a l.

T h e t r i a l c o u rti n s t r

u c t e d t h e j u r y: [i ]f y ou find from the pr oof that the witness wa s an ac complice, then a defe ndant cannot be convicted upon the uncorr oborate d testimony of this witness. I f y ou find that the witness was not a n acc omplice, then y ou will judge the weig ht to be g iven to his testim ony

just as y ou do that of the other witnesses in the ca se.

“ An a c c omp lic e is o ne wh o k

nowi ngly , v ol un tar il y , an d wi th com mo n i nt ent part ici pa te s w ith the principal offe nder in the commission of a crime.” State v. Bough , 152 S.W .3d 453, 464 (Tenn. 2 0 0 4 ) ( ci t i n g Sta te v . Le wis , 3 6 S. W.3 d 8 8, 94 (T e nn . 2 00 0) ; Con ne r v . S tat e , 531 S.W .2d 119, 123 (Tenn. Crim. App. 1975) ). “This mea ns that the person must do more tha n have g uilty

knowledg e, be mora lly

delinquent, or pa

rticipate in other

offe nses with the principal actor.” State v. Jac kson , 5 2 S

. W

. 3 d

6 6 1 , 6 6 5 (T en n

. C ri m

. Ap p

. 2 0 0 1 ) ( ci t i n g P e n n i n g t o n v . Stat e , 478 S.W .2d 892, 898-9-

(Tenn. Crim. App. 1971) ). “Esse ntially , an ac complice must be a person who could be indicted for the offe nse at issue.” Jack son , 52 S.W .3d at 665. I f the offe nse in que stion wa s not committ ed by the pe rs on ’s ow n c on du c t, the pe rs on may , n on e the le ss, be c ri min a lly re sp on sib le a s a

pr inc ipa l to the offe nse if the pe rson “solicits, direc ts, aids, or attempts t o aid another person to commit the offe nse.” T.C.A. § 39- 11-402(2)

.
I t is well established in Tennesse e that a de fenda nt cannot b e convicted upon the
uncorr oborate d testimony of an a ccomplice

. Bough , 152 S.W .3d at 464. A trial c ourt must declar e a witness to be a

n acc omplice as a matter of law a nd so advise the jury

when it is clea

r and undisputed that the witness participated in the crime. Jack son , 52 S.W .3d at 665. Howe ver, “ [w] hen the evidenc e is unclea

r, conf licts or is subjec t to differ ent infere nces, the n the jury is to determine whether the witness is an ac complice.” Id

. The only evidenc e connec ting Def endant to the commission of the offe nses was pr esente d throug h the testimony

of Mr. Smith and Mr. Curtis, the co-de fenda nt, w ho was c lear ly

an ac complice
as a matter of law

. By its ve rdict, the jury obviously found that the evidenc e supported a finding that Mr . Sm ithwa s n ot a

n a c c omp lic e to t

he c ri me s. Mr. Smith, who w as n o t i ndicted following the cr imes, denied a ny involvement in the offe nses althoug h he ac knowledg ed that he w as pre sent befor e, during , and af ter the shooting and
ro bb e ry . M r. Smith te sti fi e d th a t he re ma ine d o n th e po rc h in fr on t of Ms. Te rr y ’s a pa rtme nt w hil e Def endant, Mr. Milken a

nd Mr. Curtis acc osted the victim. Mr. Smit h’s pre sence during the victim’s murder, by

itself, is not enoug h to support a finding that he was an acc omplice to the cr imes. See Jack son , 52 S.W .3d at 666 (findingthat the witness’s prese nce in the hallway while the victim was beate n in an adjoining room did not implicate “him in either the kidna pping or murder in suc h a wa

y as to be a n acc omplice”)

.
Mr. Smit h acknow ledg ed that he poured lighter fluid onto the Cadillac’s bac k seat a fter the victim was shot and his body left in the par

k. Howeve r, it has long been held that an ac cessor y afte r the fa ct is not an ac complice to the c harg ed off enses whose testimony must be corr oborate d. Sta te v. Thomas , 158 S.W .3d 361, 402 (Tenn. 2005) (conc luding that the witness’s “a ctions in allowing the def endant into her

home af ter the c ommissi on of the c rimes, g oing shoppingwith the stolen money and re ceivingpart of the proce eds for herse lf, do not make he r a principal to the offe nse of murder or robber y of t he victim”); se e als o P e nn ing ton v . S tat e , 4 78 S.W. 2d

89 2, 89 7 ( Te nn . Cr im. Ap p. 19 71 ); Sta te v. Tyre e Robinson , No. W2004-02555-CCA-R3-CD, 2006 WL 3371411, *12 (Tenn. Crim. App., at J ackson, N ov. 17, 2006), no perm. to appeal filed ; State v. Christopher Duwan Robertson , No. M2001-00976-CCA-R3-CD , 2002 WL 31188228, *13 (Tenn. Crim. App., at Nashville, Oc t. 2, 2002)), perm. to appeal de nied (Tenn. Jan. 27, 2003)..

Ba sed on our r eview of

the re cord, w e conc lude that the trial court did not err in finding that M r

. S m i t h w a s n o t a na c c o mp l i c e a s a m a t t e r o f l aw an d b y a c c o r d i n g l y i n s t r

u c t i n g t h e j u r

y. More o v e r , th e e v id e n c e ju s ti f ie d th e ju r y in d e te r mi n in g th a t M r

. Sm it

h w a s n o t a

na c c o mplice whose testimony

must be corr oborate d.-10-

Turning now to Def

endant’ s challeng e to the sufficie ncy of the evidenc e, we must revie w the evidenc e in a lig ht most fa vorable to the prosec ution in deter mining whether a rational trier of f act could have fo u nd all the essential e lements of the c rime beyond a re asonable doubt. Jack son v. Vi rg ini a , 443 U.S. 307, 319, 99 S. C t. 2781, 2789, 61 L . Ed. 2d 560, 573 (1979). O nce a jury finds a def endant guilty , his or her pr esumption of i nnocenc e is remove d and re place d with a pre sumption of g uilt. State v. Black , 8 1 5 S

. W

. 2 d 1 6 6, 175 (Tenn. 1991) . The de fenda nt has the burde n of
overc oming this presumption, an d the State is entitled to the strong est leg itimate view of the evidenc e a long w ith all reasona ble infer ence s which may be dra wn from that e vidence

. Id .; Sta te
v . Tu gg le , 6 39 S.W. 2d

91 3, 91 4 (T e nn . 198 2)

. Th e jur y is p re su me d to have re so lve d a ll c on fl ic ts and draw n any rea sonable infere nces in f avor of the State. Sta te v . S he ffi e ld , 676 S.W .2d 542, 547 (Tenn. 1984) . Questions conce rning the credibility of wit nesses, the weig ht and value to be g iven the e vid e nc e , a

nd a ll f a c tua l is su e s r a ise d b y

the e vid e nc e are re so lve d b y the tr ie r o f f

a c t and no t th is court. State v. Bland , 958 S.W .2d 651, 659 (Tenn. 1997)

. These rules are applicable to f indings of g uilt predicate d upon direc t evidenc e, circumstantial evidenc e, or a combination of both direc t and circ umstantial evidence

. Sta te v . M att he ws , 805 S.W .2d 776, 779 (Tenn. Crim. App. 1990)

. The offe nse of second deg ree murder is a n unlawful and “knowing killing of an o t h er.” T. C.A . § 39 -1 3- 21 0( a )( 1) ; se e id

. § 39-13-201( a)( 1). A per son acts “know ingly” with re spect to the
re su lt o f t he pe rs on ’s con du ct whe n the p e rs on is a wa re that th e c on du c t is re a so na bly c e rt a in t o cause the re sult. Id

. § 39-11-302( b). Mr. Smith t estified that Mr. Milken g rabbe d the victim by the
ne c k wh ile the vic tim sat in his ve hic le , and that De fe nd ant wa lke d up to t he ve hic le a ft e r t

he vic tim
wa s r e str a ine d, pu lle d out a g un , an d sho t the vic tim

. Mr . Smith state d tha t De fe nd ant r e tur ne d to Ms. Terr y ’s apa rtment and put the g un in his book pack. When Mr. Smith asked why Def endant shot the victim, Defe ndant said that it was an a ccide nt beca use he though the victim was rea ching for a
wea pon. Mr. Curtis’ testimony mirrore d Mr. S mith’s version of the eve nts leading up to the victim’s death e x cept that Mr. Curtis testified that De fenda nt shot the victim t hroug h the front pa sseng er side wi nd owins te a d o f t

he dr ive r’ s si de wi nd owa s in dic a te d by Mr . Sm ith . We a lso ob se rv e that Ms

. Cobb testifie d t h at M r. C u rt is told her that he had shot the vic tim but t hen indicate d that he wa s me re ly jok ing . D e c idi ngwh e the r t he re are inc on sis te nc ie s in te sti mony , r e c on c iling con fl icts in t e s t i m o n y, an d

h o w t h i s m i g h ta f

f e c ta w i t n e s s ’ s c r e d i b i l i t y, ar e a l l w i t h i n t h e p r o v i n c e o f t h e j u r y. Ba sed on our r eview, w e conclude that a rational trier of fac t c ould find bey ond a re asonable doubt that Def endant wa s g uilty of second deg ree murder. Def endant is not entitled to r elief on this iss ue. “A pe rson is criminally

responsible for

the facilitation of a felony if, knowing that another intends to commit a specific felony , ... the person knowing ly furnishes substantial assistance in the commission of the felony .” T.C.A. § 39-11-403( a). An espec ially ag g ravated robber y is a robber y acc omplished with a deadly wea pon and wher e the victim suffer s serious bodily injury

. Id . § 39-13- 403(a)

. “R o b bery

is the intentional or knowing theft of pr operty from the pe rson of a

nother by violence or

putting the pe rson in fea

r.” Id . § 39-13-401( a).-11-

De f e n d an t ar g u e s th a t th e e v id e n c e w a s in s u f f ic ie n t to s u

p p o rt a f in d in g th a t a robbe ry oc c ur re d. Vi e wi ngthe e vid e nc e in a lig ht m os t f

a vo ra bl e to th e S tat e , M r. Cur tis arr ive d at Ms

. Terr y ’s apar tment, a nnouncing that he neede d money beca use he did not have a pla ce to stay . After the victim was shot, Mr. Curtis and Mr. Milken disposed of the vic tim’s body in a local pa

rk and then re turned to Ms. Ter ry ’s apa rtment. Of

fi ce r W ri g ht testified that the victim’s pockets we re turned inside out when he was found. Mr . Smit h testified that he r emoved the victim’s personal items from the trunk of the Cadillac bef ore it wa s set on fire. Ms. Cobb testified that she later
re tr ie ve d th e fo otb a ll e qu ipm e nt fro m Ms

. Ter ry ’s a pa rtme nt at Mr . Cu

rt is’ s r e qu e st. Mr . Sm ith testified that Mr. Curtis took twenty dollars and some coca ine from the vi ctim. Although the re w as no evidenc e that De fenda nt was prese nt when the victim’s per sonal items were taken, the e vidence supports a finding that Def endant’ s action of shoot i n g t h e v i ctim in the forehe ad fa cilitated the commission of the robber y offe nse.

Ba sed on the for eg oing, w e conclude that a r ational trier of fac t could find bey ond a
r e a s o n a b l e d o u b tt h a tD e f

e n d an tw a s g u i l t y o f

t h e f a c i l i t a t i o no f

e s p e c i a l l y a g g r a v a t e d

r o b b e r y.
IV. Motion to Seve r
Al tho ug h jo int ly

ind ic te d, the State ini tia lly se t se pa ra te tr ia l date s f

or De fe nd ant, Mr . Curt is, and Mr. Milken. Mr. Milken was tried se parately first and c onvicted of f

irst deg ree felony

murder and espe cially

ag g ravated kidnapping

. See State v . David Milke n , No. W2006-01850-CCA-R3-CD, 2007 WL 2768078 (Tenn. Crim. App., at J ackson, Sept. 2 1 , 2 007), no perm. to appeal filed

. In Fe bruar y 2006, the S tate filed a motion to consolidate Def endant’ s and Mr. Curtis’s trials which wa s opposed by

Def endant. At a pre- trial hear ing on Marc h 10, 2006, the S tate explained that the re ason the t h r e e c o
- d e f

e n d an ts w e r e in it ia ll y

s e v e r e d w a s b e c a u s e it in te n d e d to in tr o d u c e M r

. M il k e n ’s statement to the police at trial. This was no long er a n iss u e af

t er M r. Milken was tried a nd convicted.

De fe nd ant f

ile d a mot ion op posin g c on so lid a tio n o n M arc h 1 7, 20 06 , o n th e ba sis that hi s theory of def ense a nd that of Mr. Curtis wer e mutually antag onistic. An orde r d i s p o s i ng of Def endant’ s motion for severa nce is not in the rec ord. Howe ver, at a pre -trial hea ring on J une 28, 2006, the t rial court orally denied Defe ndant’s mot ion. Rely ing on State v. Ensley , 956 S.W .2d 502, 509 (Tenn. Crim. App. 1996) , the trial cour t found that “[u] nder the circ umstances I ’m seeinghere , mere ly pointing the f

inge r at eac h other would not f all into the criter ia wher e Iwould need to se ver thi s c a se ” and g ra

nte d the State ’s mot ion to c on so lid a te

. B oth de fe nd ants or a lly rene wed thei r re sp e c tiv e mot ion s to se ve r p e ri od ic a lly duri ngtr ia l, wh ic h mot ion s we re de nie d by the tr ia l c ourt

. “The pra ct i ce o f t ry i n g co -d ef en d an t s i na s i n gl e t ri al i s ‘a i m edat ac h i ev i n g i mp ro v edj u d i cial economy and ef ficienc y .’” State v. Mic kens , 123 S.W .3d 355, 383 (Tenn. Crim. App. 2003) (quoting Tenn. R. Crim. P. 8, C ommitt ee Cmts). A trial c ourt must g rant a sever ance befor e trial, howe ver, if “appr opriate to promote a fair determination of the guilt or i nnocenc e of one or more defe ndants,” and during trial if “nec essar y to achie ve a fair determination of the guilt or innoce nce of one or more defe ndants.” Te nn. R. Crim. P. 14(c) (2)( A) a nd (B ). The g rant or de nial of a motion for se vera nce-12-

is a matter that r est s wi t hin the sound discretion of the tr ial court. Mick ens , 123 S.W .3d at 383 (c i t i n g State v. Maddox , 957 S.W .2d 547, 556 (Tenn. Crim. App. 1997) ). “This Court has he ld, ‘[w] here a mot ion for severa nce has been denied, the test to be applied in dete rmining w hether the trial court a

bused its discretion is whether the defendant was “cle arly prejudice d” in his defense as a re sult of being tried with his co-de fenda nt.’” Mick

ens , 1 2 3 S

. W

. 3 d

at 3 8 3 (q u o t i n g State v. Price , 46 S.W .3d 785, 803 (Tenn. Crim. App. 2000) ).

I t is not unusual in a joi nt trial for one defe ndant to attempt to lay blame on the other

. See State v. Ensley , 956 S.W. 2d 50 2 ( Te nn . Cr im. Ap p. 19 96 ); State v. Robinson , 622 S.W .2d 62 (Tenn. Crim. App. 1981). Howe ver, antag onistic defense s are not prejudicial pe r se. Sta te v . G os ne ll , 62 S.W. 3d 74 0 ( Te nn . Cr im. Ap p. 20 01 ); Ensley 95 6 S. W.2 d at 50 9; see also Zafiro v . United States , 5 0 6 U. S

. 534, 538-539, 113 S. Ct. 933, 938, ,122 L . Ed. 2d 317 (1993). Indeed, se vera nce is not
nece ssarily

war rante d even if

prejudice is shown. Zaf

iro , 506 U.S

. at 5 3 8 -5 3 9 , 113 S. Ct . at 938. Th e de fe nd ant m

us t e sta bli shthat he wa s so pr e

jud ic e d th a t g ra

nti nga se ve ra nc e c e a se d to be wi thi n the trial cour

t’s discretion. State v. Burton , 751 S.W .2d 440, 447 (Tenn. Crim. App. 1988)

.
De fe nd ant s ub mit s th a t th e pr e jud ic ia l e ff

e c ts o f t he joi nt t ri a l be g an w he n M r. Cur tis ’ counsel re peate dly

asked Mr . Smit h on cross-e x amination to confirm that it was De fenda nt and not Mr. Curtis who was ar

med that nig ht. Although De fend an t ’s argument emphasizes the conf lict betwee n his theory

of def ense a nd that of Mr. Curtis, Def end an t wa s n o t hindere d in presenting testimony that implicated M r. C urtis as t he shoot er. Ba sed on our review of the record, this incident do e s n ot e vid e nc e a

n e ff e c t so pr e jud ic ia l a s to wa

rr ant a se pa rate tr ia l.

Def endant a rg ues that the trial c ourt’s limitations on hi s cross-e x amination of the State’s witnesses as well as his de fense witnesses resulted in his inability to thor oug hly prese nt his theory of def ense. D efe ndant contends that the trial court’s ruling s in this reg ard w ere prompted solely by
c on sid e ratio ns ari sin g ou t of a joi nt t ri a l.

F o r e x a mp l e , M r

. C u r

t i s ’ c o u n s e l o b

j e c t e d w h e nD e f

e n d an t ’ s c o u n s e l a t t e mp t e d t o l a y a foundation for

the pre sent ation of re buttal evidence based on Mr . Smit h’s prior inconsistent state me nt t o M s. Ay e rs and Ms. Marc hb ank s. Al tho ug h M r. Cur tis ’s c ou ns e l and the State ini tia lly
o b j e c t e d , t h e t r i a l c o u rt a l l o w e d D e f e n d an t ’ s d e f

e n s e c o u n s e l t o p u r s u e t h i s l i n e o f qu e s t i o n i n g

. In both instances, Mr. Smith denied knowing either woman, and Mr . Smit h’s prior inconsistent statement was subsequently explored during the pre sentation of De fenda nt’s defe nse. B ased on our revie w of the r ecor d, we do not disce rn any prejudice that would war rant the g rant of a

sever ance

. Def endant arg ues t hat he was prejudiced by the joint trial when counse l for Mr. Curtis soug ht to c ha lle ng e Ms. Cob b’ s c re dib ili ty on c ro ss- e xami natio n. Ms

. C o b b ’ s t e sti mony that Mr . Curt is t old her that he had shot the victim was clea rly benef icial to Def

endant’ s theory

of def ense. D efe ndant
s u b m i t s t h a tM s

. C o b b ’ s c r e d i b i l i t y w o u l d n o th a v e b e e nani s s u e h a d h e b e e nt r i e d

s e p ar a t e l y.
Ms. Cob b’ s vu lne ra

bil ity to a c re dib ili ty c ha lle ng e re su lte d f ro m an a lle g e d r e la tio ns hip wi th Serg eant Sims after

she gave her statement to the pol ice and befor e trial. On c ross-examination by-13-

Mr . Curt is’ s c ouns e l, M s. Cob b a c kn ow le dg e d th a t sh e a c c omp anie d Se rg e ant S ims on a bo a tin g tr ip pr ior to t ri a l, a nd that Se rg e ant S ims dr ow ne d d ur ingthe ou tin g . M s. Co bb , how e ve r, re pe a te dly denied th a t s h e w a s in

v o lv e d in a r o ma n ti c r e la ti o n s h ip w it

h Se r g e an t S im s

. M r

. Curti s ’ c ounsel followed up on this line of questioning during Serg eant Mullins’ cros s -e x am i n ation. Serg eant Mullins acknowledg ed that as a g ener al p ro p o s i tion, he believed that it was inappropriate for a n investigating of

fice r to bec ome involved with a witness in a murder case during the investig ation of the cr ime. Serg eant Mullins testified, howe v er, that the police depa rtment’s investig ation of the of fe ns e s had be e n co nc lud e d an d tur ne d o ve r t o th e dis tr ic t a tto rn e y ’s of fi c e pr ior to S e rg e ant S ims ’ death. Af ter a leng thy hear ing out of the presence of t he jury , the t rial court deter mined that none of the c ir c ums tanc e s su

rr ound ingSe rg e ant S ims ’s de a th o r t h e p o l i c e d e pa

rtme nt’ s in ve sti g a tio n in to Serg eant Sims’s death c ould be explored during cross-e x amination.

De fe nd ant’ s th e or

y of de fe ns e wa s th a t Mr . Curti s was the sh oo te r. De fe nd ant c and idl y a c kn o w l e d g e s t h a tM s

. C o b b ’ s t e s t i m o n y w a s b e n e f i c i a l t o h i m i np r e s e n t i n g t h i s d e f e n s e t o t h e j u r

y. Ms. Cobb’s testimony

on cross-e x amination about her contac ts with S erg eant S im s p r ior to trial wer e br ie f, and sh e re pe a te dly

de nie d a ny re la tio ns hip . T he tr ia l c ourt c a re fu lly lim ite d th e sc op e of c ro ssexamination concer

ning the events be fore and af ter Serg eant Sims’s death. B ased on our revie w of the re cord a s a whole, w e conc lude that Def endant ha s failed to show that he was so pre judiced by Ms. Cobb’s cross-e x amination on this iss ue that a se vera nce w as wa

rra nted.

De fe nd ant ar g ue s th a t he wa s p re jud ic e d w he n M r. Cur

tis ma de an in fl a mmator

y re mark in front of the jury

as the jury wa s l ea ving the courtroom. At the c onclusion of Serg eant Shelby ’s testimony , a re cess wa s called a nd the j ury beg an leaving the courtroom. As they wer e leaving, Mr

. Curtis appare ntly

said a c urse wor d which wa s overhe ard by the trial cour

t. The trial cour

t
a dmo nis he d M r. Cur

tis fo r h is c on du c t. A ft e r c ourt re c on ve ne d, bu t be fo re the jur y wa s b ro ug ht o ut, Mr . Cu rt is a po log ize d f

or his ou tbu rs t, a nd D e fe nd ant’ s c ouns e l e xpre sse d c on c e rn ov e r t he inc ide nt. The followingcolloquy

occur red:

D E F E N SE CO U

N SE L : Your Honor , to w ar d th a t e n d I d id h e ar what [Mr. Curtis] said and it was a

very unkind remar

k direc ted to the jury

. An d , my

conce rn is that they

may have hear d that. Idon’t know if they hear d it. I hear d it. I don’t know —

THE TRI AL

COURT: Well, all I hear d wa s t h e wo rd [ s

. . .t]

. And, I was watchinghim at the time. And so, the jurors neve r turned a round. So, the re as o n Iwaited until the jury left and the n I

talked to him is b ec ause I don’t think any body was a war e of it. I f they

wer e it was his own do ingand

it w ou ld n ot i mpa c t y our c lie nt at a ll, [d e f e n s e c o u n s e l]

.-14-

DEF ENSE COUNSEL : My conce rn is if they did he ar it I don’t know if they would know the sourc e. An d , I don’t know if that would potentially prejudice [Defenda nt] Ay ers if the jur y he ard wh a t he sa id, be c a

us e Ihe ard wh a t he sa id and it was dire cted . . .

THE TRI AL COURT: Right[,] and y o u we re s t an d i n g n ex t t o h i m

. . . . I hear d it be cause I was looking rig ht at him at the time. Othe rw ise , I

wo uld no t ha ve said wh a t I sa id. Ijus t wanted to stop that. S o , Imake a finding of fa ct the jur y did no t he ar a

ny thi ng he sa id t

ha t th e y c ou ld
un de rs tand

re g ard ing it be ing dir e c te d at the m. F or a ll they know if any

body hear d any

thing, he was talking
a bo ut his op ini on of the State ’s pr oo f, wh ic h would not make any

differ ence

.
Ba sed on our r eview of

the rec ord, we conclude that Def endant has failed to showthat the tr ia l c ourt a bu se d it s d isc re tio n in

de te rm ini ngthat Mr . Curt is’ s isol a te d r e mark did no t c le a rl y prejudice Def

endant. See S t a t e v. Mick ens , 123 S.W .3d 355, 384 (Tenn. Crim. App. 2003) (c on c lud ingtha

t a c o- de fe nd ant’ s si ng le fl a shof a g angsig n in

fr on t of the jur y wa s n ot s o prejudicia l as to warr ant a mid-trial se vera nce) . Def endant is not entitled to relief on this iss ue.

De fe nd ant c on te nd s th a t th e pr e jud ic ia l e ff

e c t of a joi nt tr ia l w a s f

ur the r m anif

e ste d b e c a

us e of the lim itatio ns pla c e d o n h is d ir e c t e xami natio n o f d e fe ns e wi tne ss e s K a y l y n d r a Ay e rs and

Pa tr ic ia Marc hbanks. On direct examination, Mr. Smi th denied that he kne w Ms. Ay ers or Ms. Machba

nks and testified that he had not m ad e any statements to them about the shooting . At the close of the State’s ca se-in-c hief, the tria l court conduc ted a he aringout of the presence of the jury conce rning the proposed te stimony

of De fenda

nt’s witnesses, Ms. Ay ers a nd Ms. Marchba

nks
Ms. Ay ers testified that Mr. Smit h told them that Def endant was upstairs with him when the shooting oc curr ed and that “Da y -Da y ” shot the victim. At the conc lusion of Ms. Ay ers’ testimony the following colloquy

occur red:

T RIA L CO U RT : I thi n k w e n e e d to tr e a t th is a s w e w o uld a Br uton problem in a stateme nt. I think what needs to ha ppen is that [Ms . A y e rs ] ne e ds to b e a llo wed to te sti fy to this alleg ed prior inc onsistent statement. But she’s not goingto be allowed to sa y t h at Da y -Da

y or [ De fe n d an t ] M i l k en we re t h e o n es t h at d i d t h e k i l l i n g. She would be allow ed to say that he said that [Defenda nt] Ay ers wa s not the person who shot. That he wa s wi th him at that tim e

. . . . In o the r w or ds , th is is b e ingof

fered not to pr ov e that [De fe nd ant] Cu rt is-15- did the killing. I t’s being offe red to prove that Corey Smit h’s statement, his testimony is not credible. So, the fa c t th a t [De fe nd ant A y e rs ] wo uld be up sta ir s w ith Mr. Smith and the shooting wa s in the car would not in any way stop y ou from being able t o argue that Mr. Smit h ’s s t atement, that y our client did this, is not
cre dible.

DEF ENSE COUNSEL : Would she be allowed to sa y who h e t o l d h er was downstairs by

the ca r or in the c ar?

T R I A L C O U R T : I thi nk w e n e e d t o j u s tl e a v e t h a to u t

. B e c a us e if [Defenda nt Ay ers] is upstairs then that’s all that nee ds to happen. I f she wa s talkin g about the other two people that we re in the c ar, a ll that would do is . . . inc ulpate some on e e lse and it w ou ld n ot t e nd

to fu rt he r e xcu lpate y our c lie nt.

Def endant arg ues t hat as a result of t he trial court’s ruling, Ms. Ay ers and Ms. Marchba nks only testified to “the pa

red dow n version” of

Mr. Smith’s s t at em en t s to them thereby hindering Def endant’ s eff

orts to present a

complete de fense . Def

endant c ont ends that had he not been trie d jointly with Mr. Curtis, the wit nesses would have been permitted to testify that Mr. Smith t old them that Mr. Curtis was the shooter.

Te nn e sse e Rul e of

Ev ide nc e 61 3( b) pr ov ide s th a t: [e]xtr ins ic e vid e nc e of

a pr ior inc on sis te nt s ta te me nt by a wi tne ss i s n ot a dmi ssi ble
un l es s the witness is aff

orded a n opportunity

to expl ain or de ny

the same a

nd the opposite party

is affor ded an opportunity to interrog ate the w itness thereon, or the interests of justice r equire otherwise. T his provision does n o t ap ply to admissions of a pa rty opponent as de fined in Tenne ssee Rule of E vidence 803(1.2).

See also State v . Ree ce , 637 S.W .2d 858, 861 (Tenn

. 1 9 8 2 ). Tenne ssee Rule of E vidence 613(b)
a llo ws the int

ro du cti on of othe rw ise ina dmi ssi ble e xtri ns ic e vid e nc e fo r i mpe a c hme nt p ur po se s. Sta te v . M

ar tin , 964 S.W .2d 564, 567 (Tenn. 1998) . A prior inconsistent st atement introduc ed for purposes of impeachme nt, however , may be conside red only

on the issue of c redibility and not as substantive evidenc e. Sta te v . S mi th , 2 4 S

. W

. 3 d

2 7 4 , 2 7 9 (T en n

. 2 0 0 0 ) ( qu o t i n g J on es v . Le no ir City Car W orks , 216 Tenn. 351, 392 S.W.2d 671, 673 (Tenn.1965)) ; Ree ce , 637 S.W. 2d a t 86 1; State v. Jones , 15 S.W .3d 880, 891 (Tenn. Crim. App. 1991)

. Both Ms. Ay ers a

nd Ms. Marchba

nks testified at trial that Mr. Smith told t hem that De fe nd ant w a s w ithhim on Ms . T e rr y ’s po rc h w he n th e sh oo tin g oc c ur re d in c on tr a dic tio n to his tr ia l te sti mony

that D e fe nd ant w a s d ow ns ta ir s at th e vic tim ’s ve hic le wh e n the vi cti m w a s sh ot.-16-

Testimony

that Mr. Smith went further and named Mr. Curtis as the shooter would have provide d another example of inconsistency but such statement could not be co n sidered by the jury as s u b s t an t i v e e v i d en ce t h at M r. C u rt i s wa s , i n fa ct , t h e s h o o t er

. E v en as s u m i n g t h at a m o re t h o ro u gh direc t examination of these rebuttal witnesses might have been possible in a sepa rate trial, Def

endant ha s n ot s ho wn

tha t th e lim itatio n o n th e sc op e of his direct ex ami nat ion, e ve n if e rr or , w a s so prejudicia l as to warr ant a se parate trial. De fenda nt is not entit led to relief

on this iss ue. V. Sentencing Issues

Def endant c halleng es the trial court’s imposition of consecutive se ntence s based on a finding that Def endant wa s a dange rous offender

. Specifica lly , Def endant submi ts that the trial cour t failed to make the r equisite finding s set forth in State v. W ilkerson , 905 S.W .2d 933, 939 (Tenn. 1995) and thus may not rely upon Def endant’ s status as a dang erous of fende r in d e te r mi ning w hether

Def endant
s h o u l d s e r v e h i s s e n t e n c e s c o n s e c u t i v e l y.
At the sentenc ing hearing, the State relied on D efe ndant’s pre sentenc e re port which wa s introduced a s an exhibi t w ithout objec tion. Def endant did not offe r any evidenc e at the se ntencing h ea ri n g.
Ac c or din g to t

he pr e se nte nc e re po rt , D e fe nd ant s ta te d th a t he wa s ex pel led fro m H ill c re st Hig h School in the eleventh g rade . Def endant wor

ked periodically at various jobs in the past but has not be en employ ed since 2000. Def endant stated that he joined the “Crips” wh en h e was a pp ro xima te ly

nin e y e ars old

bu t sa id t

hat he e nd e d h is a ff

ili a tio n with

the g anga t so me po int

in 20 00 . D e fe nd ant d e nie d d ri nk inga lc oh ol o r u sin g any ty pe of ill e g a l dr ug s.
Def endant wa s twenty -four

y ear s old at the time the offe nses wer e committed. Acc ording t o t h e p r e s e n t e n c e r e p o rt , D e f e n d an t w a s c o n v i c t e d i n 1 9 9 9 o f a g g r a v a t e d b u r g l ar y, a C l a s s C f e l o n y, and se nte nc e d to thr e e y e ars . In 2 00 0, De fe nd ant w a s c on vic te d of evadi ngarr e st, a Cla ss A misdemeanor; f

elony evadingarr est, a Class E felony ; a nd theft of pr operty

valued ove r $1,000, a Class D felony . Def

endant was sentenc ed to eleve n months, twenty -nine day s for his misdemeanor
e va din g arr e st c on vic tio n, on e y e ar f or his fe lony

e va din g arr e st c on vic tio n, and tw o y ears for his theft convic tion. I n 2003, Def endant wa s convicted of two counts of cr iminal trespass and one count of the ft of pr op e rt y un de r $ 50 0. 00 , a ll m isd e me ano r s e nte nc e s.

Ba sed on the pres en ce o f the Class C and Class D fe lony convictions, the trial cour t sentenc ed De fenda

nt as a Rang e I I , multipl e off ender , for his fa cilitation of es p ec i al l y ag g ravated robber y conviction and a s a Rang e I , standard of fende r, for

his second d egre e murde r convic tion. See T.C.A. §§ 40-35-105; 40-35- 106(a) (1). The trial court found that enhanc ement fac tor (1) ba sed
on De fe nd ant’ s h ist or

y of pr ior c on vic tio ns in ad dit ion to tho se ne c e ssa ry to e sta bli shthe a pp ro pr ia te rang e, wa s applicable to both convictions. Id . § 40-35-114( 1). The tr ial co u rt al s o found enhanc ement fa ctor (9) applicable to D efe ndant’s murder conviction in tha t Defe ndant possessed or employ ed a firea

rm during the commission of the offe nse. Id

. § 40-35-114( 9). Ac cording ly , the trial-17-

c ourt se nte nc e d D e fe nd ant t o tw e nty -t wo y e ars fo r his mur de r c on vic tio n a nd fo ur te e n y e ars fo r h is fac ilitation conviction.

The trial c ourt found that the circumstance s surrounding the offense were a g g ravated. The tr ial c ourt fo un d th a t c on fi ne me nt f or an e xten de d p e ri od

of tim e wa s n e c e ssa

ry to p ro te c t so c ie ty fr om Defen da

nt’ s unw ill ing ne ss t o le a d a pr od uc tiv e lif e and his “ re so rt ingto c ri min a l a c tiv ity in fu rt he ra nc e of a n a nti -s oc ie ta l li fe sty

le .” Th e tr ia l c ourt

fo un d th a t an e ff

e c tiv e se nte nc e of

thi rt y -s ix y ear s rea sonably

related to the offe nses which consisted of “ba sically murderinga man a

nd dumping him in a park a fter r obbing him of his footba ll equipm ent for the football team, kids that he’ s working with.” Ba sed on these considerations, the trial court found that Defe ndant was a dang erous offe nder f or whom conse cutive sente ncing was a ppropriate

. We note that the leg islature has r ece ntly amende d sever al provisions of the Sentenc ing Reform Ac t of 1989, which be came eff ective June 7, 2005. Howe ver, a lt h o u gh Def endant wa s sentenc ed af

ter the eff ective date of the amende d Act, De fenda nt’s crime in this case occur red pr ior to J une 7, 2005, and De fenda nt did not elect to be sente nced unde r the provisions of the a mended Act by executing a

waiver of his ex post fac to protections. See 2005 Tenn. Pub. Acts ch. 353 § 18. There fore , this case is not a ffe cted by the 2005 amendme nts, and the statutes cited in this opinion
are those that wer e in ef

fec t at the time the instant crimes we re c ommitt ed.

Whe n a de fe nd ant ch a lle ng e s the le ng th or the mann e r o f s e rv ic e of

his or he r s e nte nc e , th is Court must conduct a de novo revie w wit h a presumption that the determinations made by the trial
c ourt are c or re c t. T .C. A. § 4 0- 35 -4 01 (d ); S t a t e v

. Im fe ld , 70 S.W. 3d

69 8, 70 4 ( Te nn . 2 00 2) . T his presumption, howeve r, is conting ent upon an aff irmative showing in the rec ord that the trial c ourt considere d the sentenc ing pr inciples and a ll releva nt fac ts and circu m s t an ces. State v. Pe ttus , 986 S.W .2d 540, 543-44 (Te nn. 1999). I f the rec ord fails to show such consideration, the r eview of the
s e n t e n c e i s p u r e l y de novo. State v . Shelton , 854 S.W .2d 116, 123 (Tenn. Crim. App. 1992)

.
I n making its sente ncing deter minations the trial court must c onsider: (1) th e e v i dence prese nted at the se ntencinghear ing; ( 2) the pre -sentenc e re port; (3) the pr inciples of sente ncing and
argume nts a s to se nte nc ing a lte rn a tiv e s; (4 ) the natur e and c ha ra c te ri sti c s of the c ri min a l c on du c t; (5) a ny appropr iate enha

nceme nt and mitigatingfac tors; ( 6 ) t h e d efe ndant’s potential or la ck of p o te n ti a l f

o r r e h a b il it a ti o n o r tr e a tm e n t; an d ( 7 ) an y s tate me n ts ma d e b y D e f e n d an t in h is own be ha lf

. T. C.A . §§ 40- 35 -1 03 and -2 10 ; State v. W

illiams , 920 S.W .2d 247, 258 (Tenn. Crim. App. 1995). The de fenda

nt bear s the burden of

showing that his sentenc e is improper. T.C.A. § 40-35- 40 1( d) , Se nte nc ingCom mis sio n Co mme nts ; State v. Ashby , 823 S.W .2d 166, 169 (Tenn. 1991)

. When a Def

endant is convic ted of multiple crimes, the tria l court, in its discretion, may order the se nte nc e s to ru

n c on se c uti ve ly

if it f ind s b y a pr e po nd e ra

nc e of the e vid e nc e that a de fe nd ant f a lls into one of seven cate g ories listed in Tenne ssee Code Annotated se ction 40-35-115. In this inst ance , the t rial court found t hat Defenda nt was “a dange rous offender whose behavior indi cate s littl e or no reg ard f or human life, a

nd no hesitation about committing a crime in w hich the risk to human life is hig h.” T.C.A. § 40-35-115( a)( 4). I f the trial court rests its de terminat i o n o f c o nsecutive-18-

sentenc ing on this c ateg ory , the court must make two a dditional findings. Im fe ld , 70 S.W .3d at 708. First, the tria l court must find that an extended sentenc e is nec essar y to protect the public f

rom further criminal conduc t by

Def endant, a nd, s ec o n d , it must find consec utive sentenc ing to be
re as o n ably

related to the seve rity

of the off

enses. W ilkerson , 905 S.W .2d at 939. Althoug h such specific fac tual finding s are unnece ssary for the othe r categ ories enume rate d in Tennesse e Code Annotated se ction 40-35-11 5 (b ), the impositi on of conse cutive sente nces is also guided by the g ener al sentenc ing pr inciples that the length of a se ntence be ‘justly deser ved in re lation to the seriousness of the offe nse’ a nd ‘no g reater than that deserve d for the of fense committed.’” Im

fe ld , 70 S.W. 3d a t 70 8 (q

uo tin g T. C.A

. §§ 40 -3 5- 10 2( 1) and -1 03 (2 )) ; State v. Lane , 3 S.W .3d 456, 461 (Tenn. 1999) . Once appropr iate fa ctors have been found, it is within t he sound discre tion of the trial court whe ther or not to impose conse cutive or c oncurr ent sentenc es. See State v. Adams , 973 S.W .2d 224, 230-31 (Te nn. Crim. App. 1997).

The trial c ourt specif

ically addre ssed the W

ilkerson fac tors at the sentenc ing hear ing. That is, the trial court found that Defe ndant’s continual e ng ag ement in cr iminal ac t i vity since re aching adulthood evidenc ed a ne ed to protec t society from fur ther criminal conduct by Def endant, a nd that the ef fec tive sentenc e wa s rea sonably related to the seve rity of the offe nses. Ba sed on our re view of the re c or d, we c on c lud e that the le ng th of De fe nd ant’ s se nte nc e is “ ‘j us tly de se rv e d in re la tio n to the s e r io u s n e s s o f

th e o f f e n s e ’ ” an d

“ ‘ n o g r e a te r

th anth a t d e s e r

v e d f o r th e o f f e n s e s committed.’” Def endant is not entitled to relief on this iss ue. Although not r aised on appea l, w e obser ve that the tria l court’s a

pplication of enha

nceme nt fa c tor (9 ) t o e nh anc e De fe nd ant’ s se nte nc e fo r his se c on d de g re e mur de r c on vic tio n is p ro ble ma tic in light of B la k

e lyv. W ashington , 5 4 2 U

. S

. 2 9 6 , 1 2 4 S

. C t

. 2 5 3 1 , 1 5 9 L. E d

. 2 d 4 0 3 ( 2 0 0 4 )

. In Blak e ly , the United States Supreme Court conclude d that the “‘ statutory maxi mum’ for Apprendi [v. New Jersey , 5 3 0 U. S

. 466, 120 S.Ct . 2348, 147 L . Ed. 2d 435 (2000),] purposes is the maximum sentenc e a court m ay impose solely on the basis of the f acts re flec ted in the jury

verdic t or admitted by the def endant. Bl ak

e ly , 542 U.S. at 303. Our supre me cour t has rec ently

conclude d that other than a d e f

e n d an t’ s p r io r c r im in a l c o n v ic ti o n s ( o r o th e r e n h an c e me n t f a c to r s a d mi tt e d to by

the defe ndant), the a

pplication of enha

nceme nt fac tors by

the trial co u rt ra ther than a jury , which incre ases the de fenda

nt’s sentenc e beyond the statutorily presumptive minimum sentence, de prives the de fe nd ant o f h is o r her S ix th A me ndme nt r ig ht t o h a ve a jur y de te rm ine wh e the r t

ho se enhanc ement fa ctors apply

. State v. Gome z , 2 3 9 S

. W

. 2 d

7 4 0 (T en n

. 2 0 0 7 ) ( ci t i n g Cunningham v. Cal ifo rn ia , 549 U.S. ___, 127 S. Ct. 856, 860, 166 L

. Ed. 2d 856 (2007))

. Thus, consideration of Def endant’ s prior cr iminal hist ory , to w hich the trial court g ave g reat w eig ht “does not off end the Six th Amendment.” Id

. As noted above , Def

endant did not execute a waiver as a mea ns of elec ting se ntencingunder the Blak e ly -compliant 2005 ame ndments to the s entenc ing law. I n setting the leng th of Def endant’ s sentenc e for

his facilitation of espe cially ag g ravated ro b b er y

conviction, howeve r, the trial c ourt considere d only

Def endant’ s prior cr iminal hist ory , and thus no Six th Amendment conc erns a re i m p l icated. Id

. A s f

o r h is s e n te n c e f

o r s e c o n d d e g r e e mu

r d e r , D e f e n d an t is li mi te d to p la in

err or-19-

r e v ie w o f th is s e n te n c in g is s u e b e c a u s e h e d id

not raise a Bl akely

iss ue a s to the le ng th o f h is sentenc e for

this conviction either at tria l or on appe al. Id . at 737.

Be fore an er

ror is re cog nized as plain err or, it must be “plain” a nd must affe ct a substantial rig ht of the ac cused. The term “pla in” equates to “cle ar” or “obvious.” See United States v. Olano , 50 7 U .S. 72 5, 73 4, 11 3 S. Ct . 1 77 0, 17 77 (1 99 3) . Pl a in e rr or is n ot e rr or

that is sim

ply c on sp ic uo us ; rathe r, i t is especia lly

eg reg ious error

that strikes at the fa irness, integ rity , or public re putation of judicial proce eding s. See State v. W ooden , 658 S.W .2d 553, 559 (Tenn. Crim. App. 1983). In Sta te v. Adk isson , 8 99 S.W. 2d

62 6 ( Tenn. Cr im . App . 1 99 4) , th is c ourt de fi ne d “ su

bs tanti a l r ig ht” a s a rig ht of “funda

mental proportions in the indictment pr ocess, a rig ht to the proof of ever y element of the offe nse and ... c onstitut ional in nature.” Id . at 639.

Ba sed on our r eview, e ven thoug h the t rial court erre d in considering enhanc ement fa ctor (9) in determining the leng th of Def endant’s s en t ence for his sec ond deg ree murder c onviction, consideration of Defe ndant’s prior criminal convictions was e ntitled to sufficient weig ht to just ify the enha nceme nt of Def

endant’ s sentence for his sec ond deg ree murder c onv i ct i o n fr o m the p r e s u mp ti v e s e n te n c e o f tw e n ty y e ar s to tw e n ty

- tw o y ear s. S ee Gomez , 239 S.W .3d at 743 (obser ving that the extent of the weig ht pla ced on the defe ndants’ history of pri o r c riminal
c on vic tio ns may

we ll j us tif

y the imp os iti on

of the ma ximum se nte nc e fo r a ll c on vic tio ns ). Thus , consideration of the Six th Amendment conc erns r aised by the trial cour

t’s misap plication of
e nh anc e me nt f

a c tor (9 ) i s n ot n e c e ssa

ry to do su bs tanti a l jus tic e and De fe nd ant is no t e nti tle d to pla in
err or re view.

CO NC LU SION

Af te r a tho ro ug h r e vie w o f t

he re c or d, we a ff

ir m th e jud g me nts of

the tr ia l c ourt

.

___________________________________ THOMAS T. WOODAL L , J UDGE