FILED

September 11, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

FEBRUARY 1998 SESSION

STATE OF TENNESSEE, * C.C.A. # 01C01-9703-CC-00087 

Appellee, * GILES COUNTY

VS. * Honorable Jim T. Hamilton, Judge

RICHARD DARRELL MILLER * (Voluntary Manslaughter and 

and JOHNNY WAYNE GARNER, Aggravated Arson)

*

Appellants.

*

For Appellant Miller: For Appellee:

Robert D. Massey John Knox Walkup

P.O. Box 409 Attorney General & Reporter

Pulaski, TN 38478

Ellen H. Pollack

For Appellant Garner: Assistant Attorney General

425 Fifth Avenue North

Hershell D. Koger Cordell Hull Building, 2nd Floor

135 N. First Street Nashville, TN 37243-0493

P.O. Box 1148

Pulaski, TN 38478 Mike Bottoms 

District Attorney General

252 N. Military Avenue

Lawrenceburg, TN 38464

OPINION FILED: _____________________

AFFIRMED

GARY R. WADE, JUDGE
2

OPINION

The defendants, Richard Darrell Miller and Johnny Wayne Garner,

indicted for first degree murder and aggravated arson, were jointly tried and

convicted of voluntary manslaughter and aggravated arson. The trial court

sentenced each defendant to five years for manslaughter and fifteen years for

aggravated arson. The sentences are to be served consecutively.

In this appeal of right, both defendants present the following issues:

(I) whether the evidence is sufficient to support each of

the convictions; and

(II) whether the trial court erred by refusing to instruct

arson as a lesser grade offense of aggravated arson.

The defendant Miller presents two additional issues:

(III) whether the trial court erred by granting the state's

motion to consolidate and by failing to give adequate

instructions on co-defendant Garner's confession; and 

(IV) whether erroneous jury instructions require reversal.

(V) Finally, each defendant claims that the trial court

erred by ordering consecutive sentences.

We affirm the judgment of the trial court.

In the early morning hours of October 27, 1995, Pulaski Fire Chief

Jimmy Thompson responded to a fire at number 37 Town and County Trailer Park. 

Other firemen were already at the scene when Chief Thompson arrived. The victim,

"Bud" Wright, was discovered at the west end of the mobile home; pieces of a table

and chrome dinette chairs were found near the body. Chief Thompson, a certified

fire investigator, suspected arson because of the trauma to the victim and the

unusual position of the furniture. Because he was unable to locate any accelerants,
3

he concluded that he "couldn't definitely say it was arson."

 

Several days later, Officer John Dickey of the Pulaski Police

Department interviewed Garner and Miller about the incident. Miller told Officer

Dickey that at lunchtime on October 26, 1995, he met Garner and the victim at the

victim's trailer. He recalled that about 2:30 P.M., he left the residence with his

brother, Kirk Miller, and they went to their mother's house. Miller stated that he

returned to the victim's residence sometime later. Garner and "three [other] guys,"

who were driving an older model county police car, were present. Miller

remembered that he and Garner then went to a liquor store and to a convenient

mart with the three men before returning to the victim's residence. Miller claimed

that when these men left, he cooked dinner for the victim and that he and Garner

then drove away. When Officer Dickey asked about an injury to his hand, Miller

explained that he hurt himself while working on a roof. 

Garner, who had spent the night of October 25 with the victim,

provided a different account. He recalled Miller arriving at the residence at

lunchtime on the day of the fire and remembered traveling to a liquor store with a

neighbor, Donnie Brown, and then to a convenient store with three men in the white

vehicle. Garner also recalled traveling to a second liquor store. He contended that

when he and Miller left the victim's residence around 6:00 P.M., the three other men,

who he could not identify, were still there.

Dr. Charles Harlan, a forensic pathologist who had performed the

autopsy, found three concurrent causes of death: "blunt trauma to the chest,

inhalation of carbon monoxide, and acute ethanolism." There were fractures to the

sternum and multiple rib fractures caused by repeated blows to the chest area.
4

There had been an overexposure to carbon monoxide, which is a component of

natural gas; the victim, who had a carbon monoxide level of 20 percent, would have

to have had a 40 percent level for that to be classified as a sole cause of death. 

According to Dr. Harlan, the blood alcohol level of the victim, which was .36 percent,

could have caused the death without the other two contributing causes. He

explained that at .30 percent one in one thousand persons might die and at .40

percent level, fifty percent die. Dr. Harlan also observed that there were fourth

degree burns over ninety-eight percent of the body and heat fractures to the teeth. 

An examination of the trachea, however, showed there was no soot present, "which

means that he was not alive at the time that the body was burned ...." 

On October 27, 1995, the day after the fire, Officer Chris Barber

received a call about a fight at the Town and County Trailer Park. When he arrived

at the scene, he learned that defendant Garner had been involved. Garner was

then arrested for public intoxication and transported to the police station. On the

way to the station, Garner told the officer that he could not believe he was being

arrested for "what happened last night." Garner informed Officer Barber that the

victim had been killed the night before and that it was "no accident." When Officer

Barber asked him what he meant, Garner responded, "He was killed." Officer

Barber advised Garner to discuss that matter with an investigator. Garner stated

that he did not want to because "you know what happens to people that tell on other

people." 

Ricky Coleman, who is incarcerated in the Department of Correction

on a theft conviction and who also had other charges pending at the time of trial,

testified that he was in jail with Garner shortly after the fire. He claimed that Garner

informed him that he had been drinking with the victim on the day of the fire and had
5

admitted that when everyone else had left, he and the victim began "scuffling and

fighting." Coleman recalled that Garner acknowledged stabbing the victim several

times, turning on the gas in the kitchen, and then leaving. 

Guy Miller, who lived near the trailer park and knew both defendants

by "name and face," testified that he saw both men leave the trailer park about

10:30 P.M., some ten minutes before the fire. He remembered that they were

"laughing and carrying on, and kept looking back toward [the victim's] trailer." He

recalled that Garner was not wearing a shirt. Later, Guy Miller heard a loud pop and

saw a "big glow in the sky." He stated that the victim's body was located in the

storage area of the trailer, an area in which he was rarely seen. 

Donnie Brown, next-door neighbor to the victim, testified that he drove

Garner and Miller to the store on the morning of the fire and then returned them to

the victim's residence. He recalled that sometime later, Garner asked whether he

had left a knife in his car. When they searched the vehicle, a knife was found on the

passenger side of the seat. He remembered Garner saying that the victim had "said

something [offensive] to" him and that he did not "appreciate being talked to like

that." Brown stated that Garner cursed the victim and threatened to "whup" him. 

Nancy Walls, who lived in a nearby trailer, testified that she saw

Garner at the victim's trailer a couple of days before the fire; he was banging on the

door with a two-by-four. She recalled that at approximately 8:00 P.M. on the

evening of the fire, she heard an argument at the victim's trailer during which Garner

had cursed the victim. 

Roger Dale Clark, who lived two trailers away from the victim, testified
6

that between five and six o'clock P.M., only hours before the fire, he and his nephew

went to the liquor store with Miller and Garner. About forty-five minutes after their

return, Clark and his brother, Tim, returned to their own trailer, which they shared

with their mother; only Garner, Miller, and the victim were left. Clark remembered

that his brother went back to the victim's residence sometime later and he was

asleep by the time his brother returned. Clark acknowledged that he had prior

convictions for aggravated theft, two counts of forgery, unauthorized use of a motor

vehicle, and illegal possession of a controlled substance. 

Tim Clark testified that he stayed with the victim while the others rode

to the liquor store. He also remembered that when he left with his brother, the victim

and the defendants were the only ones there. He recalled that at one point, when

the victim left the main area to go to the bathroom, Miller followed after him. Clark

recalled that he could hear noises that sounded like someone was being beaten and

that when Miller returned to the room, he was wiping his hands. Clark stated that he

did not see the victim after that incident. He provided the police with this information

about a week after the fire. Tim Clark acknowledged prior convictions for passing

worthless checks and theft.

Officer Mike McCallister, who also interviewed both defendants about

the fire, testified that Miller, who admitted being at the victim's trailer on the evening

of the fire, had been drinking with Linda Hughes, Garner, and the other individuals. 

He recalled the defendant Miller claiming that he cooked dinner for the victim before

leaving the trailer with Garner between 6:00 and 6:30 P.M.; Miller claimed that the

victim was alone, intoxicated, and lying on his bed, but not asleep. Officer

McCallister stated that Miller claimed that he had injured his swollen left hand while

doing roofing work. Officer McCallister recalled that Garner provided a similar
7

statement. He remembered Garner saying that everyone was drinking and that Ms.

Hughes and the "three guys" left the trailer about five minutes before he and Miller

did. The officer recalled Garner claiming that when the two men left, the victim was

"fine and ... cutting up." 

Angela Norwood, a defense witness, testified that thirty minutes before

the fire, Garner and Miller arrived at her trailer in a four-door white car driven by

Charles Moore. She stated that the men knocked on her door, but that she did not

answer, and the men soon left. 

Blanch Miller, the defendant Miller's mother, testified that Miller was at

her house until about 11:00 A.M. that morning, at which time she drove him to the

victim's trailer. She stated that the next time she saw her son was at 6:00 P.M.,

when he stopped briefly at her house before returning to the victim's trailer. She

recalled that Miller and Garner returned to her house around 7:00 P.M. and that

defendant Miller was still there at 8:30 P.M. when her sister, Frances Miller, called. 

Ms. Miller testified that Gwen Warren, a neighbor, called at 7:00 P.M. and again at

10:30. She expressed with certainty that neither the defendant Miller nor the

defendant Garner had left her trailer after 7 P.M. on the evening of the fire. 

Kirk Miller testified that he drove his brother, the defendant Miller, from

the victim's trailer to their mother's house at about 5:00 P.M. Frances Miller, an

aunt, testified that the defendant Miller answered the telephone when she called his

mother at 8:30 P.M. 

Gwen Warren also testified for the defense. She recalled hearing

about a fire at the trailer park. When she called Ms. Miller at approximately 10:30
8

P.M. she heard the defendant talking in the background. 

Linda Hughes, who lived a few trailers away from the victim when the

fire occurred, testified that she was at the victim's trailer before the fire. She left and

upon her return a few hours later, did not see either defendant present at the trailer. 

On her second visit, she smoked crack cocaine with Timothy Clark, Roger Clark,

and Charles Moore; she remembered that all three of the men were there when she

left. Ms. Hughes acknowledged giving a prior statement to police in which she

made no reference to her second visit to the victim's residence. She explained that

she decided to "change [her] story" when she quit using illegal drugs.

I

The defendant Miller challenges the sufficiency of the evidence for his

aggravated arson conviction. The defendant Garner argues there is insufficient

evidence for both of his convictions. 

On appeal, the state is entitled to the strongest legitimate view of the

trial testimony and all reasonable inferences which might be drawn therefrom. State

v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses,

the weight to be given their testimony, and the reconciliation of conflicts in the proof

are matters entrusted to the jury as trier of fact. Byrge v. State, 575 S.W.2d 292,

295 (Tenn. Crim. App. 1978). The relevant question is whether, after reviewing the

evidence in the light most favorable to the state, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. State v.

Williams, 657 S.W.2d 405, 410 (Tenn. 1983); Tenn. R. App. P. 13(e). 

A person commits the crime of arson when he "knowingly damages
9

any structure by means of a fire or explosion" without the owner's consent. Tenn.

Code Ann. § 39-14-301(a)(1). Arson becomes aggravated where "one (1) or more

persons are present therein." Tenn. Code Ann. § 39-14-302. 

Viewed in the light most favorable to the state, the evidence

establishes that Miller and Garner were the last people to see the victim alive. Tim

Clark testified that before he left, Miller had severely beaten the victim. Miller, who

had a swollen left hand the day after the fire, was seen leaving the area a few

minutes before the trailer exploded; he was "laughing and carrying on, ... looking

back toward" the victim's residence. The body was discovered in the storage room

in the trailer, an area he rarely occupied. Furniture from the kitchen and living room

had been piled on top of the victim. One of the contributing causes of death was an

extraordinarily high level of carbon monoxide. These circumstantial facts are

sufficient to support the verdict of guilty of aggravated arson. They support the

state's theory that the defendants disabled the victim, placed him in the storage

room, piled furniture on him, started the fire, and then left.

Miller argues that the state's own expert could not determine that the

cause of the fire was arson. He cites Ricketts v. State, 241 S.W.2d 604, 605 (Tenn.

1951), where our supreme court held that "if nothing appears but the mere fact [of a

fire,] the presumption is that the fire was a result of accident or some providential

cause."

Proof of an arson requires two "fundamental facts": "a burning" and

"some criminal agency which caused the burning." Collins v. State, 445 S.W.2d

931, 933 (Tenn. Crim. App. 1969). The state, however, is not necessarily required

to use expert testimony in an arson case. In State v. Henley, 774 S.W.2d 908
10

(Tenn. 1989), the defendant was convicted of two counts of first degree murder and

one count of aggravated arson. In that case, the fire marshall suspected arson but

there was "no physical evidence of that fact." Id. at 914. The defendant argued that

in the absence of "any proof of a criminal agency which caused the burning," he

could not be convicted of arson. Id. at 913. Our supreme court nonetheless found

the evidence sufficient. One victim at the scene of the fire had died from a gunshot

wound; the other died of burns and gas inhalation. A witness had seen the

defendant drive toward the scene of the fire minutes before the fire occurred. 

Henley was seen leaving the area soon after the fire started. In our view, the ruling

in Henley governs in this case. 

The defendant Miller also argues that because it was undisputed that

the victim was dead at the time the fire began, an element of the crime of

aggravated arson, that a "person" be present, was not proved. Tenn. Code Ann. §

39-14-302. Miller argues a corpse, rather than a "person" was present and that

burning a corpse is a separate crime. See Tenn. Code Ann. § 39-17-312. 

While Dr. Harlan did testify that the victim had already died when the

fire began, the evidence shows that the defendants, who were the last to leave, 

disabled the victim before leaving the trailer. Minutes after their departure, the trailer

erupted into flames. Gas, a contributing cause of death, also was a factor in the fire. 

Under these circumstances, there is sufficient evidence to support the conclusion

that the defendants completed all of the acts necessary to cause the fire prior to

leaving the trailer. In short, the victim qualified as a "person" when the arson was

initiated. That he died while the defendants were in the act of starting the fire, rather

than after the explosion, does not afford the defendant Miller relief from this

conviction.
11

There is also ample evidence to support Garner's conviction for

aggravated arson. In addition to the proof outlined above, Garner admitted to a

cellmate that he turned on the gas in the trailer before his departure. These facts

establish his liability for aggravated arson. 

Garner also challenges the sufficiency of the evidence for his voluntary

manslaughter conviction. "Voluntary manslaughter is the intentional or knowing

killing of another in a state of passion produced by adequate provocation sufficient

to lead a reasonable person to act in an irrational manner." Tenn. Code Ann. § 39-

13-211(a). Here the proof establishes some type of ongoing feud between Garner

and the victim. The proof also shows Garner was involved in an attack upon the

victim before his departure and that he turned on the gas as he left, thereby

establishing "knowing" acts. Trauma to the chest and overexposure to carbon

monoxide were contributing causes of death. In our view, these facts are sufficient

to support the jury's verdict of guilty of voluntary manslaughter. 

Garner also argues that because the defendant Miller caused the

trauma to the chest of the victim and because voluntary intoxication was also a

contributing factor, he cannot be held criminally responsible for the death. We

disagree. Garner's argument ignores proof that he admitted to a cellmate that he

"stabbed" the victim several times. By turning the gas on in the trailer, Garner was

the source of a third contributing factor, the carbon monoxide poisoning. To convict

the defendant of homicide, it "is not necessary that his act ... be the sole cause, nor

the most immediate cause of death." State v. Roberson, 644 S.W.2d 696, 699

(Tenn. Crim. App. 1982). All that is required is that the defendant unlawfully

"contributed to the death of the deceased." Id. (citing Letner v. State, 299 S.W.

1049 (Tenn. 1927)). If an act of the accused contributes to the death, he may be
12

held responsible even though the acts of a third party may have also contributed to

the death. 40 C.J.S. Homicide § 5 (1991). 

II

The next issue is whether the trial court erred by refusing to charge

arson as a lesser grade offense of aggravated arson. Both defendants argue that 

there is insufficient evidence of aggravated arson and that an arson instruction was

required based upon the proof presented at trial. 

The trial court has a duty to give a complete charge of the law

applicable to the facts of the case. State v. Harbison, 704 S.W.2d 314, 319 (Tenn.

1986). It is settled law that "where there are any facts that are susceptible [to an

inference] of guilt of any lesser included offense or offenses, then there is a

mandatory duty upon the trial judge to charge on such offense or offenses. Failure

to do so denies a defendant his constitutional right of trial by a jury." State v.

Wright, 618 S.W.2d 310, 315 (Tenn. Crim. App. 1981) (citations omitted). When

there is a trial on a single charge of a felony, there is also a trial on all lesser

included offenses, "as the facts may be." Strader v. State, 362 S.W.2d 224, 227

(Tenn. 1962). Trial courts may omit an instruction on a lesser included offense only

when the record is devoid of evidence to support an inference of guilt of the lesser

offense. State v. Stephenson, 878 S.W.2d 530, 550 (Tenn. 1994); State v. Boyd,

797 S.W.2d 589, 593 (Tenn. 1990). There is an affirmative duty on the part of the

trial judge to charge the jury on lesser included offenses charged in the indictment

whether requested to do so or not. See Howard v. State, 578 S.W.2d 83, 85 (Tenn.

1979). 

In State v. Boyce, 920 S.W.2d 224 (Tenn. Crim. App. 1995), this court
13

ruled that an omission of a lesser included offense from the charge to the jury

always requires a new trial. The opinion was largely based upon the ruling of our

supreme court in Poole v. State, 61 Tenn. 288, 294 (1872):

However plain it may be to the mind of the Court that one

certain offense has been committed and none other, he

must not confine himself in his charge to that offense. 

When he does so he invades the province of the jury,

whose peculiar duty it is to ascertain the grade of the

offense. However clear it may be, the Court should

never decide the facts, but must leave them

unembarrassed to the jury.

On the other hand, "[w]here the evidence in a record clearly shows

that the defendant was guilty of the greater offense and is devoid of any evidence

permitting an inference of guilt of the lesser offense, the trial court's failure to charge

on a lesser offense is not error." Stephenson, 878 S.W.2d at 530. This court has

held that no instruction is required where the evidence shows that the crime was

committed and the only issue is whether this particular defendant was the one who

committed the crime. Price v. State, 589 S.W.2d 929, 932 (Tenn. Crim. App. 1979). 

"Where the State's evidence establishes that the crime specified in the indictment

was committed and the defendant seeks only to establish an alibi, leaving the

State's evidence as to the degree of crime uncontradicted, no instructions on lesser

included offenses are required." State v. Barker, 642 S.W.2d 735, 738 (Tenn. Crim.

App. 1982).

In State v. Trusty, our supreme court observed that "Tennessee law

recognizes two types of lesser offenses ... : a lesser grade or class of the charged

offense and a lesser included offense." 919 S.W.2d 305, 310 (Tenn. 1996). The

trial judge has a statutory duty to charge the jury "on lesser grades or classes of the

charged offense supported by the evidence." Id.; Tenn. Code Ann. § 40-18-110.

The trial judge also has a duty grounded in case law to instruct the jury on lesser
14

included offenses. Trusty, 919 S.W.2d at 311.

A lesser grade or class of the charged offense is determined by

reference to the statutory scheme. Id. For example, varying grades and classes of

homicide are defined at Tenn. Code Ann. § 39-13-201 and codified at Tenn. Code

Ann. §§ 39-13-202 et. seq.

The other type of lesser offense is one "necessarily included in the

indictment." Trusty, 919 S.W.2d at 311. In Wright v. State, 549 S.W.2d 682 (Tenn.

1977), our supreme court outlined the test to determine whether an offense is lesser

and included in the greater offense. Quoting the late Justice Weldon White in

Johnson v. State, 397 S.W.2d 170, 174 (Tenn. 1965), the court ruled as follows:

The true test of which is a lesser and which is a greater

crime is whether the elements of the former are

completely contained within the latter, so that to prove

the greater the State must first prove the elements of the

lesser.

Wright, 549 S.W.2d at 685-86.

Two years later, our supreme court again addressed the subject:

We believe that the better rule, and the one to be

followed henceforth in this State, is the rule adopted

implicitly by this court in Wright v. State, supra, that, in

this context, an offense is necessarily included in another

if the elements of the greater offense, as those elements

are set forth in the indictment, include, but are not

congruent with, all elements of the lesser. If there is

evidence to support a conviction for such a lesser

offense, it must be charged by the trial judge. T.C.A. §

40-2519 [now Tenn. Code Ann. § 40-18-118(a)]; Whitwell

v. State, 520 S.W.2d 338 (Tenn. 1975).

Howard, 578 S.W.2d at 85.

Arson is a lesser grade of aggravated arson. It is also a lesser
15

included offense. We must conclude, however, that an arson was not an alternative

in this case. The defendants were either guilty of the greater crime, based upon the

proof offered at trial, or nothing at all. The defense to the charges was that of alibi. 

Several defense witnesses testified that Miller and Garner were at Ms. Blanch

Miller's residence when the fire occurred. The purpose of Ms. Hughes' testimony

was to suggest that someone other than the defendants was responsible for the fire. 

The victim was in the trailer when the series of acts, including the release of carbon

monoxide gas, resulting in the fire were begun. In our view, the jury's only task was

to determine the identity of the perpetrator, not the degree of the arson. Price, 589

S.W.2d at 932. 

A possible argument is that because the victim died before the fire

actually began, there was a reasonable basis for the jury to conclude that a simple

arson occurred. The defendants insist that there is proof that there was not "a

person" inside the structure when the fire occurred; therefore, the arson could not

have been aggravated. 

This court addressed a similar issue in State v. Alcorn, 741 S.W.2d

135 (Tenn. Crim. App. 1987). In that case, the defendants were convicted of

possession of "[t]hirty grams or more of any substance containing cocaine." Id. at

138 (citing Tenn. Code Ann. § 39-6-417(c)(1)(E) (Supp. 1986)). Tests established

that they possessed 26.39 grams of "pure cocaine" and that the remaining

ingredient was a "cutting agent." Id. at 137. The defendants argued that because

the amount of cocaine was less than thirty grams, they were entitled to an

instruction on lesser offenses. Id. at 139. The trial court, however, found that as a

matter of statutory interpretation, the amount they possessed satisfied the thirtygram amount. Id. This court ruled the matter to be a "question of law, not of fact." 
16

Thus, the defendants were not entitled to a jury charge on lesser offenses. Id. 

Here, no set of circumstances, whether offered by the state or the

defense, established that the victim was a corpse at the time steps were initiated to

commit the arson. Because it is undisputed that carbon monoxide gas was present

in the body, thereby contributing to both the fire and the death of the victim, the

defendants cannot prevail on this issue, whether the question is one of law or fact.

III

The defendant Miller argues that the trial court erred by not granting a

severance and by failing to instruct the jury on co-defendant Garner's confession to

cellmate Coleman. The defendants were indicted separately; the state, however,

filed a motion to consolidate. The defendant Miller filed an objection to

consolidation, arguing Garner's pretrial statements would inculpate Miller, but Miller

would not be able to cross-examine Garner, thus causing a Bruton problem. See

Bruton v. United States, 391 U.S. 123 (1968). The trial court granted the state's

motion. 

During the state's case-in-chief, Ricky Coleman testified that he was

incarcerated with defendant Garner after the fire and that Garner discussed the

events leading up to the victim's death. When Miller renewed his objection, arguing

that the state either had "to figure a way to keep Mr. Miller out of it or Mr. Miller is

entitled to a separate trial," the state, out of the presence of the jury, instructed its

witness to not say "anything in regard to Mr. Miller." 

Coleman testified that Garner told him that he was at the trailer

drinking when he and the victim got into a fight. Garner informed Coleman that he
17

stabbed the victim several times and then turned the gas on in the kitchen before

leaving. During cross-examination by Attorney Koger, the defendant Garner's

attorney, the following exchange occurred:

Attorney Koger: You said [in your prior statement]

that apparently there was an ... extension cord tied

around [the victim's] legs?

Coleman: That wasn't done by Mr. Garner.

Attorney Koger: Pardon?

Coleman: That wasn't done by Mr. Garner.

Attorney Koger: But here again, if we had testimony

in here that when the body was found, there was nothing

wrapped around the legs or anything unusual about that,

that wouldn't be consistent, either, would it?

Coleman: Well, I don't know.

Attorney Koger: Well, it wouldn't be the same thing

that you are saying that he told you?

Coleman: Well, I'm just--that's what I said. What he

told me.

Attorney Koger: Sure. That makes it inconsistent. 

Right?

Coleman: If you say so. 

No limiting instructions were given to the jury. Defendant Miller argues that the

above exchange, wherein Colemen testified that Garner did not restrain the victim

with an extension cord, implicated Miller. He also argues that the only proof of an

arson is Garner's statement that he turned on the gas in the kitchen and then left. 

 

Rules 8, 13, and 14, Tenn. R. Crim. P., govern when codefendants

may be tried together. Rule 8(c) states that "two or more defendants may be joined

in the same indictment, presentment, or information: (1) if each of the defendants is

charged with accountability for each offense included; or (2) if each of the

defendants is charged with conspiracy, and some of the defendants are also
18

charged with one or more offenses alleged to be in furtherance of the conspiracy." 

Rule 13(a) of the Tennessee Rules of Criminal Procedure provides that the court

"may order consolidation of two or more indictments, presentments, or information

for trial if the offenses and all defendants could have been joined in a single

indictment, presentment, or information pursuant to Rule 8." 

Offenses which are permissively joined under Rules 8 and 13 may be

severed upon motion of the defendant as a matter of right under Rule 14:

(c) Severance of Defendants.

(1) If a defendant moves for a severance because an

out-of-court statement of a codefendant makes reference

to the defendant but is not admissible against the

defendant, the court shall determine whether the state

intends to offer the statement in evidence at trial. If so,

the court shall require the prosecuting attorney to elect

one of the following courses:

(i) A joint trial at which the statement is not

admitted into evidence or at which, if admitted, the

statement would not constitute error; or

(ii) A joint trial at which the statement is admitted

into evidence only after all references to the moving

defendant have been deleted, if, as deleted, the

confession will not prejudice the moving defendant; or

(iii) Severance of the moving defendant. 

Absent a showing of prejudice, a reviewing court may not overturn the

trial court's exercise of discretion on the issue of severance. State v. Coleman, 619

S.W.2d 112, 116 (Tenn. 1981); State v. Hopper, 695 S.W.2d 530 (Tenn. Crim. App.

1985). 

The statement of a non-testifying co-defendant implicating another

defendant violates the constitutional rights of the latter in a joint trial. Bruton v.

United States, 391 U.S. 123 (1968). The ruling in Bruton is based on the

acknowledgment that "admission of a co-defendant's confession implicating a
19

defendant at a joint trial constitutes prejudicial error even though the trial court may

give clear, concise and understandable instructions that confessions could only be

used against a co-defendant and must be disregarded with respect to any other

defendant." State v. Bailey, 865 S.W.2d 7, 9 (Tenn. 1993). 

After Bruton, a plurality of the United States Supreme Court had held

that where both defendants have given interlocking confessions and the trial judge

gives an appropriate limiting instruction, the defendant's constitutional rights are not

violated. Parker v. Randolph, 442 U.S. 62 (1979). In Cruz v. New York, 481 U.S.

186 (1987), however, the United States Supreme Court held that even if the

defendant's own confession is admitted and the jury is correctly instructed as to how

to analyze the nontestifying co-defendant's confession, the Confrontation Clause is

violated if the nontestifying co-defendant's confession implicates the defendant. 

Under Cruz, a Bruton error may be avoided by "proper redaction of the confession." 

State v. Person, 781 S.W.2d 868, 872 (Tenn. Crim. App. 1989). 

It is only when all connecting references to the defendant are redacted

from the co-defendant's statement that the evidence may be admitted. See Dorsey

v. State, 568 S.W.2d 639, 642 (Tenn. Crim. App. 1978); Taylor v. State, 493

S.W.2d 477, 480 (Tenn. Crim. App. 1972). Any violation of the defendant's rights

under the Confrontation Clause may be subjected to a harmless error analysis. 

Cruz, 481 U.S. at 194; State v. Porterfield, 746 S.W.2d 441, 446 (Tenn. 1988). 

In our view, the state took appropriate measures to protect defendant

Miller's right to confront adverse witnesses. Coleman was instructed not to make

any reference to defendant Miller's participation; he complied with that directive. 

The above-quoted exchange, wherein Coleman testified that Garner did not bind the
20

victim's legs with an extension cord, did not implicate Miller only because further

cross-examination clearly established that there was no proof that anyone had

bound the victim's legs. The point of the cross-examination, in our interpretation,

was that no one had bound the victim's legs, not that Miller had done so. 

Even if the testimony did imply Miller had bound the victim's legs, an

inference unsupported by any other facts in evidence, Tim Clark testified that just

before he left, he overheard Miller severely beat the victim. In our view, any Bruton

error which may have inadvertently occurred by the exchange was harmless beyond

a reasonable doubt. Porterfied, 746 S.W.2d at 446. 

The defendant Miller also argues that Garner's confession that he

turned on the gas and then left is the only evidence of an arson. Thus, he argues

that absent Garner's confession, he could not be found guilty of arson. We cannot

agree. There is ample other evidence of Miller's participation in the aggravated

arson. See Henley, 774 S.W.2d at 914. Miller was one of the last people seen with

the victim at the trailer. A short time before the fire, he beat the victim and was then

seen leaving the trailer. The victim's body, which had a high level of carbon

monoxide gas, was found in the storage area, an area where the victim was rarely

seen. 

Miller also complains that the trial judge failed to give a limiting

instruction when Coleman's testimony was admitted into evidence. In Richardson v.

Marsh, 481 U.S. 200, 211 (1987), the Supreme Court addressed admission of a

properly redacted confession accompanied by limiting instruction:

The rule that juries are presumed to follow their

instructions is a pragmatic one, rooted less in the

absolute certitude that the presumption is true than in the

belief that it represents a reasonable practical
21

accommodation of the interests of the state and the

defendant in the criminal justice process. On the precise

facts of Bruton, involving a facially incriminating

confession, we found that accommodation inadequate.

...[T]he calculus changes when confessions that do not

name the defendant are at issue. ... We hold that the

Confrontation Clause is not violated by the admission of

a nontestifying codefendant's confession with a proper

limiting instruction when, as here, the confession is

redacted to eliminate not only the defendant's name, but

any reference to her existence. 

This court has interpreted Richardson as requiring a limiting

instruction; the failure to give one, however, may be found to be harmless. Person,

781 S.W.2d at 872. The trial judge erred by failing to give a limiting instruction. We

conclude, however, that that omission clearly had no impact on the verdict. See id. 

IV

Miller also argues that the trial court erred by refusing to give a special

jury instruction that "if nothing appears but the fact of burning, there is a

presumption that fire was a result of accidental or providential cause." (citing

Ricketts v. State, 241 S.W.2d 604 (Tenn. 1951)). 

The trial court, of course, has a duty to give a complete charge of the

law applicable to the facts of the case. Harbison, 704 S.W.2d at 319. While the

defendant may request special instructions, jury instructions are sufficient where

they adequately state the law. See, e.g., State v. Tyson, 603 S.W.2d 748 (Tenn.

Crim. App. 1980). When a trial court's charge to the jury is complete, it need not

give additional special instructions requested by the defendant. See State v. Story,

608 S.W.2d 599, 603 (Tenn. Crim. App. 1980). 

The trial judge instructed on aggravated arson as follows: 
22

Aggravated arson: Any person who commits the

offense of aggravated arson is guilty of a crime.

For you to find the defendants guilty of this

offense, the State must have proven, beyond a

reasonable doubt, the existence of the following essential

elements:

One, that the defendants, by means of fire or

explosion, damaged a structure as described in the

indictment;

And two (a), that the defendants did so without the

consent of all persons who have a possessory,

proprietary, or security interest therein;

Or (b), that the defendants did so with intent to

destroy or damage the structure for any unlawful

purpose.

And three (a), that one or more persons were

present therein;

Or (b), that a person suffered bodily injury as a

result of the fire or explosions;

And four, that the defendants acted knowingly.

To constitute a burning within the meaning of this

instruction, it is not necessary that the subject of the fire

be destroyed. There is sufficient burning if the nature of

the combustible to which the fire or explosive is set is

changed or charred.

***

Property means anything of value, including, but

not limited to, money, real estate, or tangible or intangible

personal property.

In our view, the trial court's instructions on aggravated arson were

correct and complete statements of the law. Thus, the trial court did not err by

refusing to give the special instruction.

V

The final issue is whether the trial court erred by ordering each

defendant to serve consecutive sentences. Each defendant was sentenced to five

years for manslaughter, which has a range of three to six years, and fifteen years for

aggravated arson, which has a range of fifteen to twenty-five years. The sentences

were ordered to be served consecutively for effective terms of twenty years. Both

defendants argue that the trial court did not make the appropriate findings on the
23

record to support imposition of consecutive sentences. 

Garner was twenty-seven years old when his presentence report was

compiled. He has seven prior convictions for public intoxication, one aggravated

assault conviction, two simple assault convictions, and one conviction for stalking. 

The aggravated assault conviction occurred in 1994 and the defendant received five

years on probation. The report indicates that the defendant takes medication for

depression and uses alcohol excessively. He has a sporadic work history as a

laborer.

Miller has over fifteen prior convictions for public intoxication. He also

has prior convictions for resisting arrest, driving on a revoked license, reckless

driving, DUI, disobeying traffic laws, and failing to stop at the scene of an accident. 

He completed the ninth grade and obtained certification for tack welding and inner

shield welding. He worked as a carpenter for his brother, Kirk Miller, from 1986 until

1995. 

Barbara Watson, the victim's brother, testified that the trauma of losing

her brother was exacerbated by the fact that foul play was involved. She and her

family asked that both defendants receive the maximum sentences possible. The

victim's mother, Geraldine Wright, testified that her son's death "tore [her family] to

pieces." 

When a challenge is made to the length, range, or manner of service

of a sentence, it is the duty of this court to conduct a "de novo review ... with a

presumption that the determinations made by the court from which the appeal is

taken are correct." Tenn. Code Ann. § 40-35-401(d). The Sentencing Commission
24

Comments provide that the burden is on the defendant to show the impropriety of

the sentence. 

Our review requires an analysis of (1) the evidence, if any, received at

the trial and sentencing hearing; (2) the presentence report; (3) the principles of

sentencing and the arguments of counsel relative to sentencing alternatives; (4) the

nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)

any statements made by the defendant in his own behalf; and (7) the defendant's

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and 

-210.

Prior to the enactment of the Criminal Sentencing Reform Act of 1989,

the limited classifications for the imposition of consecutive sentences were set out in

Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976). In that case our supreme court

ruled that aggravating circumstances must be present before placement in any one

of the classifications. Later, in State v. Taylor, 739 S.W.2d 227 (Tenn. 1987), the

court established an additional category for those defendants convicted of two or

more statutory offenses involving sexual abuse of minors. There were, however,

additional words of caution: "[C]onsecutive sentences should not routinely be

imposed . . . and . . . the aggregate maximum of consecutive terms must be

reasonably related to the severity of the offenses involved." Taylor, 739 S.W.2d at

230. The Sentencing Commission Comments adopted the cautionary language. 

Tenn. Code Ann. § 40-35-115. The 1989 Act is, in essence, the codification of the

holdings in Gray and Taylor; consecutive sentences may be imposed in the

discretion of the trial court only upon a determination that one or more of the
1

The first four criteria are found in Gray. A fifth category in Gray, based on a specific number

of prior felo ny conviction s, ma y enhanc e the sen tence ra nge bu t is no longe r a listed criterion . See

Tenn. Code Ann. § 40-35-115, Sentencing Comm ission Comments.

25

following criteria1

 exist:

(1) The defendant is a professional criminal who has

knowingly devoted himself to criminal acts as a major

source of livelihood;

(2) The defendant is an offender whose record of

criminal activity is extensive;

(3) The defendant is a dangerous mentally abnormal

person so declared by a competent psychiatrist who

concludes as a result of an investigation prior to

sentencing that the defendant's criminal conduct has

been characterized by a pattern of repetitive or

compulsive behavior with heedless indifference to

consequences;

(4) The defendant is a dangerous offender whose

behavior indicates little or no regard for human life, and

no hesitation about committing a crime in which the risk

to human life is high; 

(5) The defendant is convicted of two (2) or more

statutory offenses involving sexual abuse of a minor with

consideration of the aggravating circumstances arising

from the relationship between the defendant and victim

or victims, the time span of defendant's undetected

sexual activity, the nature and scope of the sexual acts

and the extent of the residual, physical and mental

damage to the victim or victims;

(6) The defendant is sentenced for an offense

committed while on probation;

(7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b).

In Gray, our supreme court ruled that before consecutive sentencing

could be imposed upon the dangerous offender, as now defined by subsection

(b)(4) in the statute, other conditions must be present: (a) that the crimes involved

aggravating circumstances; (b) that consecutive sentences are a necessary means

to protect the public from the defendant; and (c) that the term reasonably relates to
26

the severity of the offenses.

In State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995), our high

court reaffirmed those principles, holding that consecutive sentences cannot be

required of the dangerous offender "unless the terms reasonably relate[] to the

severity of the offenses committed and are necessary in order to protect the public

(society) from further criminal acts by those persons who resort to aggravated

criminal conduct." The Wilkerson decision, which modified somewhat the strict

factual guidelines for consecutive sentencing adopted in State v. Woods, 814

S.W.2d 378, 380 (Tenn. Crim. App. 1991), described sentencing as a "human

process that neither can nor should be reduced to a set of fixed and mechanical

rules." Wilkerson, 905 S.W.2d at 938. The record must show that the sentencing

principles and all relevant facts and circumstances were considered before the

presumption of correctness applies.

Because the trial judge failed to make any findings as to why he

ordered the sentences to be served consecutively, our review is de novo without the

presumption of correctness. As to Garner's sentence, we find two grounds for

imposing consecutive sentences: 

(1) the defendant is an offender whose record of criminal

activity is extensive; and

(2) the defendant is sentenced for an offense committed

while on probation.

See Tenn. Code Ann. § 40-35-115(b)(2), (6). We also find that the term is

"reasonably related [] to the severity of the offenses committed." Wilkerson, 905

S.W.2d at 938. The twenty-year sentence is also necessary to protect society from

"further criminal acts." Garner has exhibited an escalating pattern of violence,

starting with simple assault convictions, then aggravated assault, and now
27

aggravated arson and manslaughter. Consecutive sentences for Garner are entirely

appropriate. 

In our de novo review of Miller's sentence, we find that he is "an

offender whose record of criminal activity is extensive." Tenn. Code Ann. § 40-35-

115(b)(2). Although his prior criminal history does not show a pattern of committing

violent crimes, his record is extensive. He has over fifteen prior convictions for

public intoxication. He also has prior convictions for resisting arrest, driving on a

revoked license, reckless driving, DUI, disobeying traffic laws, and failing to stop at

the scene of an accident. The convictions date back to 1984. Most of the

convictions appear to have been alcohol related. Absent a lengthy period of

incarceration, further misconduct appears likely. In our view, the twenty-year

sentence is reasonably related to the severity of the offenses. See Wilkerson, 905

S.W.2d at 938. We also approve of the imposition of consecutive sentences for

Miller. 

Accordingly, the judgment of the trial court is affirmed.

__________________________________

Gary R. Wade, Judge

CONCUR:

________________________________

William M. Barker, Special Judge

________________________________ 

Curwood Witt, Judge