# FILED
February 25, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE MAY 1996 SE SSION STATE OF TENNESSEE, ) ) Appellee, ) No. 01C01-9505-CR-00161

) ) Davidson County v. ) ) Honorable Seth Norman, Judge ) GERALD LEANDER HE NRY, ) (First degree murder,attempted first degree ) murder, espec ially aggravated kidna pping, ) especially aggr

avated robbery, and tw o Appellant. ) counts o f especi ally aggrava ted burgl ary) For the Appellant : For the Appellee : Karl Dean Charles W. Burson District Public Defender Attorney General of Tennessee and and David M. Siegel Christina S. Shevali er Senior Assistant Public Defender and 1202 Stahlman Building Karen Yac uzzo Nashville, TN 37201 Assistant Attorney Gener als of Tennessee (AT TRIAL & ON APPEAL) 425 Fifth Avenue North Nashville, TN 37243-0493 Hollis I. Moore, Jr. and Victor S. Johnson, III David M. Siegel District Attorney General Senior Assistant Public Defenders and 1202 Stahlman Building Kymberly Haas Nashville, TN 37201 Assistant District A ttorney General (AT TRIAL) Washington Square, Suite 500 222 Second Avenue, North Nashville, TN 37201-1649

OPINION FILED:____________________ JUDGMENTS OF CONVICTION FOR FIRST DEGREE MUR DER, ATTEMPTED FIRST DEGREE MURDER, ESPECIALLY AGGRAVATED KIDNAPPING, AND ESPECIALLY AGGRAVATED ROBBER Y AFFIRMED; JUDG MENT OF CONVICTION FOR ESPECIALLY AGGRAVATED BURGLARY RELATING TO WILLIAM REX WEAVER VACATED AND CONVICTION AS MODI FIED TO AGGRAVATED BURGLARY MERGED WITH THE ESPECIALLY AGGRAVAT ED BURGLARY CONVICTION RELATING TO LARR Y HARRINGTON; CONVI CTION FOR ESPECIALLY AGGRAVATED BURG LARY OF LARRY HAR RINGTON AFFIRMED BUT JUDGMENT MODIFIED TO REFLECT MERGER Joseph M. Tipton Judge2 O P I N I O N

The defendant, Gerald Leande r Henry, appeals as of right from his convictions by a j ury in the Davidson County Criminal Cour

t for first degree murder, for attempted first degree murder, especially aggravated kidnapping and especially aggravated robbery , Class A felonies, and for tw o counts of especially ag gravated burglary, Class B felonies. The trial court s entenced the defendant as a Range I, standard offender to life imprisonment for the murder conviction, to twenty years for each Class A felony conv iction, and to ten years for each Class B felony conv iction. The court ordered that the sentences imposed for the first degree mur der and the attempted first degree murder c onvictions be serve

d consecutively. The defendant contends that:

(1) the evidence is insufficient to support his convictions; (2) the trial court erred b y admitting the 9-1-1 t ape of Larr y Harrington asking for help; (3) the trial court erred

by admitting a vid eotaped statement of Sean O’Brien, a codefendant, as a co-conspirator under Rule 803(1.2)(E), Tenn. R. Evid., as the conspiracy did not continue afterboth the defendant and O’Brien had be en a rrested, the fruits of the crime had been s eized, a nd the defendant had given a confession; (4) the trial court erred by excluding the testimony of Dr. H.J. Francois because his name was not on a notice of experts filed pursuant to Rule 12.2(b), Tenn. R. Crim. P.; (5) his two convictions for especially aggravated burglary stemming from a single entry into a room violate the double jeopardy clauses of the United State s and Tennessee constitutions; (6) th e trial court erred by not dismissing the especi al l y aggravated burglary counts bec ause th e elem ent of serious bodily injury

had already been prosecuted i n two other counts of the indictment; and (7) the tri al court erred by applying enhancement factors inappro priately, by finding that no mitig ating factors applied, and by imposing consecutive sentences.3 We affirm the judgments of conviction for first deg ree murder, attempted first degree murder, especially aggravated kidnapping, especially aggravated robbery and especially aggr

avated burglary r

elating to Larry H arrington. We reduce the conviction for especiall y aggravated bur

glary relating

to William Rex Weaver to aggravated burgl ary pursuant to T.C.A. § 39- 14-404(d). However, we merge the aggravated burgl ary conviction into the especially agg ravated murder convic tion relating to Larry Harring

ton because double jeopardy pr inciples prohibit the entr y of more than
on e j ud gm en t of con vi ct io n i mp os in g m or e t ha n o ne

se nt en ce

fo r t he bu rg la ry . We affirm th e convi ction fo r espec ially aggra vated b urglar

y of Lar ry Harringto n but modi fy the judgment to reflect the merger of the aggravated burglary into the especially aggravated burgl ary.

Lillian Ewing tes

tified that she was at the H ouse of God Church around noon on July 16, 1992, with Dovie Shuford, a friend w ho lived in a dormitory

room at the church. She said that as they were leaving, the telephone rang and she answ ered it. She stated that she heard a male voice ask for help. Ms. Ewing testified that Ms. Shuford thought that it was a prank telephone call, but she believed that the man sounded like he was seri ously hurt. She said that she hung up the receiver, and the telephone rang a second time. S he stated that when she answ ered the telephone, a man stated, “Help me. Help me. I’ve been shot. I’ve been shot.” She said that he also told her that he was working for the church. Ms. Ewing testified that she and Ms. Shuford then drove to the other end of the church property w here they believed the workers were l ocated. She stated that as she dr ove around the dormitories near Heiman Street, she saw a man covered in blood on his k nees barely open the door to a dormitory room and say,“Help me.” Ms. Ewing said that as she turned the car around and drove toward Ms.Shuford’s dormitory room t o call the police, she saw police and firemen looki ng in the w rong direc tion. She di rected them t o the victi m.4 Paulette Weaver, the wife of the murder vi ctim, testified that her husband worked for National Guar dian Security Serv

ices. She said that he w ore glasses and a work uniform and that each day he carried only enoug h cash to buy lunch.
Larry Harrington

testified that he worked for National Guardian Securit y Services installi ng alarm systems and that he worked with Mr. Weaver, the murder victim. He stated that on July 16, 1992, he and Mr. We aver were installing alarm systems on air conditi oners at the House of God Church. He said that they parked the company’s white, Astr

o van in front of the dormitory room in which they w

ere working. He stated that they ate lunc h in the van at approxi mately 12:30 p.m. Mr. Har rington testified that after he ate his lunc h, he went inside the dormitory room in which they were working to call his wife on the telephone. He stated that Mr. Weaver remained in the van in the driver

’s seat finishing his l unch. Mr. Harringt on said that while he w as talking to his wife, he saw through the open door a white man and a black man, both of whom he did not know, sta nding at the passenger’s door of the van. He identified the defendant as the black man. He stated that he did not see anything in the hands of either the defendant or the other man. Mr. Harrington test ified that he hung up the telephone and just as he wal ked out the door, he saw Mr. Weaver climb out the passenger’s side of the v an. Mr. Harrington said that when he asked w hether something was wron g, the man with the defendant point ed a gun at him and told him to raise his hands. He said that the two men told him and M r. Weaver to go inside the room, cursed them, and told them to be quiet.

Mr. Harrington test ified that he then saw Mr. Weaver raise his hands above his head and walk towards him, cooperating with the two men. He stated that he turned and walked inside the room followed by Mr . Weaver. He said that the defendant followed Mr. Weaver and that the other m an followed them pointing the gun at Mr. Weaver. Mr. Harrington testified that the two men ordered them t o lie face down on the5

floor. He stated that Mr. Weaver went to the f loor first. Mr. Harrington said that before he could get all the w

ay to the floor, the defendant pulled his hands behind his back and bound them together with w ire used to install the ai r conditioners. He sai d that the defendant also bound his legs tog ether and then bound them together w ith his hands. Mr. Harrington desc ribed the procedure as being hog-tied. Mr. Harr

ington testified that he lay at Mr. Weaver’s feet positi oned so he could reach the telephone sitting on the corner of a table. He said that he did not resist the defendant and th e other man.
Mr. Harrington test ified that after he was bound, he hear d a crash followed by a moan by Mr. Weaver. He stat ed that one of the men then said, “Here , use this to tie him up with.” Mr. Harrington testified that he then heard a gunshot ver y close to him. Mr. Harrington w

as then shot in the back of the head. H e stated that after being shot, he heard someone say, “Let’s get the hell out of here.” He then heard a door slam. Mr. Harrington said that he became unconscious for approximately five minut es. He testified that he was bleedi ng heavily. He s aid that he heard Mr. Weaver gurg ling and that he saw a lot of blood coming out of his head and mouth, and his gl asses were lying beside him on the floor. He sai d that Mr. Weaver was hog-tied and was not responsiv e.
Mr. Harrington testified that he was then able to remove his boots. He stated that he was also abl e to free his hands and grab the t elephone. He said that he dialed 9-1-1 and a woman answ ered but hung up the telephone. H e said that he dialed the number a second time and asked the woman for help. Mr. Harr ington testified that he dialed the number a third time and spoke to the 9-1-1 o perator. He said that he told her that he and Mr. Weaver had been shot and needed help. He stated that while talking to the woman, he w ent to the door, opened it a little, looked outside, and then put the chain lock on the door. He said that the woman told him help was on the way

. The audio cassette tape of the 9-1-1 emer gency call was introduced as an exhibit and played for the jury.6 Mr. Harrington tes

tified that he saw a car w ith two people inside pul l into the parking lot and turn around and leave. He said that shortly afterwards, the police and ambulance arrived and he w as taken to the hospital for tre atment. Mr. Harringt

on testified that he remained consci ous until he went into the emergency room and that when he awoke, he saw news footage on the telev ision showing that the defendant and Sean O’B rien had b een caugh t. He said t hat he ha d no doub t that th e two men s hown on the news footage were the ones who had forced him and Mr. Weaver into the room and shot them. Mr. Harri ngton identified the gun that w as used by the man that was with the defendant.

Mr. Harrington stated that he was hospitalized for thirteen days. Mr. Harrington said that he suffered a broken jaw, that he perman ently lost his hearing in his right ear, and that he no longer had perfect vis ion. He said that he was hospitalized again for plastic surgery and for surgery to implant a gold weight in his eyelid to allow it to close.
Mr. Harrington test ified that he did not notice any thing peculiar about the defendant. He said that the defendant did not appear to be scared or under dur ess. He stated that the defendant was not shaking. Mr. Harr

ington described the defendant as a person who had done the act s before or would not think much about doing the acts. He said that the defendant did not appe ar to be mentally unsound. Mr. Harrington stated that the defendant acted like he kn ew what he was going to do before he got to the church.

Sergeant Gary Young

of the Nashville Metrop olitan Police Department testified that he was dispatched to the church but that the police and the ambulance had difficulty finding the v ictims. He said that he ev entually saw a dormitory room door open about one foot. He stated that he found Mr. Harrington and Mr. Weaver inside.7

Sergeant Young testified that Mr. Weaver had been hog-tied and shot in the back of the head execution style, an d he stated that it was appar ent that Mr. Weaver was dead because of the amount of blood, brain matter, and fragments of teeth that surrounded him. He said that he assisted Mr. Harr ington, who was still ble eding, by placing a pillowcase under his jaw. He stated that Mr. Harrington had lost a lot of blood. Sergeant Y

oung testifi ed that when he asked Mr . Harring

ton who had d one this to hi m, Mr. Harrington tol d him it was a black man and a white man.
Sergeant Young identified four photographs of the scene. The photographs show Mr. Weaver lying face down on the dormitory floor with his hands and legs tied together. They show the wound to the back of Mr. Weaver’s head and blood an d brain matter s urround ing his head. A s pent she ll casi ng and fr agments of a broken lamp are lying

near Mr. Weaver’s head, and another bloo d spot appears near Mr. Weaver’s feet. The photographs rev eal wire wrapped ar

ound a pair of boots lying near Mr. Weaver’s head with the r eceiver of the telephone ly ing near the boots. Blood is on both the receiver and the telephone. The photograph als o depicts a pair of glasses lying be

tween the boots and Mr. Weaver’s head.

On cross-examination, Se rgeant Young testified that the victims wer e shot by a large caliber weapon at a relatively close range. He believed that the victims were not shot acci dentally a nd that the sh ooter intend ed to kill o r seriousl y injure the victims given the nature of the shootings.

Officer Wayne Hughes of the Nashville M etropolitan Police Department testified that he retrieve d a total of three .45 caliber s hell casings and ten bull et fragments at the scene, with one of the shell casings lying near Mr. W eaver’s head. He stated that he collected lamp fragments near Mr. W eaver’s body. Officer Hughes also stated that the wires from th e broken lamp were used to t ie Mr. Weaver.8 Lieutenant Ben Joyner of the Tennessee Highway Patrol testified that on July 16, 1992, he receiv ed information to be on the lookout for a Sonitrol van heading west on Interstate 40. H e said that he spoke to a truck driver who told h im that he had seen the van in Jackson. H e stated that at about 2:00 p.m., he saw the van exit the interstate where he w

as parked on the exit ramp. Lieutenant Joyner testified that he, along with other officers in marked and unmarked units, foll owed the van. He stated that they tried to stop the van by radioing a t ruck driver and hav ing him slow down , but the van switched lanes and drove around the truck . Lieutenant Joyner said that they set up a roadblock because the v an was heading back tow ard the interstate. He stat ed that the van stopped at the roadblock momenta rily but then headed toward two police officers. Lieutenant Joyner s tated that Sean O’Brien, the dri ver of the van, then increased his speed and drov e through the roadblock. H e stated that O’Brien drov e the van at s peeds up

to one hu ndred mi les per hour, r an a red l ight, a nd forced vehicl es off the road, including a poli ce car. He said that the c hase occurred in a populated ar ea.
Lieutenant Joyner testified t hat the van eventually skidded to a stop at a second roadblock approxi mately four miles from the first roadblock. He said that w hen the van stopped, the officers order ed the defendant and O’Brien to get out and to lie on the ground. He stated that the defendant complied with the order s but that O’Brien refused to get out of the van. He testified that they had to open the door and pull O’Brien out of the van. Lieut enant Joyner testified that the defendant appeared to understand the officers’ orders and that the defendant did not act abnormall y.
On cross-examination, Li eutenant Joyner testified that shots were fired at the van when O’Brien t ried to run over the officer s at the first roadblock. H e stated that he found a clip for a pistol in O’ Brien’s front pocket. He s aid that he also recover ed a gun in a wooded area on Pi pkin Road after the defendant gave directions to where he threw the gu n. On redi rect exam ination , Lieute nant Joyn er testif ied that it would ha ve9

been possible for someone to get out of the van when it stopped momentarily before the first roadblock.

Officer Ronnie Jackson of the Jacks on Police Department testified that the defendant appeared to understand and did n ot appear disassociated w ith reality when he got out of the van. He described the defendant as cooper ative. Officer Jackson stated that hollow -point bullets cause a lar ger wound. On cross-examination, Officer Jackson testified that a per son using hollow-poi nt bullets should know that they inflict massive damage.

Detective Larry F lair of the Nashville Metropolitan Police Depar tment testified that he and Officer Pat Posti glione went to the Tennessee Highway Patrol headquarters in Jackson after the defendant and O’Brien had been arr ested. He stated that they arrived at approximately 5:00 p.m. and that the defenda nt and O’Brien were being kept in separate rooms. He stated that O’Brien refused to give a stateme nt. He said that he read the defendant his r ights, and the defendant gave an oral statement but refused to allow the officers to tape the statement. Detectiv e Flair stated that the defendant told them that he did not know that O’Brien was go ing to rob or shoot anyone. He testified that the d efendant asked on two different occasi ons about how much time they thought that he w ould get. Detective F lair stated that there w as no question that the defendant was in full possession of his mental faculties. He said that the defendant did not behave abnormally. He said that the defendant did nothi ng to make him believe that he had mental problems.

Detective Flair tes

tified that the defendant described in detail the location where he threw the pi stol out of the van during the pursuit by police, and the defendant accompanied the officers to locate the Colt .45 automatic handgun. H e said that they found the gun in a cocked positi on with a hollow-po int bullet in the chamber and a10

hollow-point bullet i n the clip. Detective Flair testified that he and O fficer Postiglione drove the defendant and O’Brien t o Nashville. He sai d that they stopped at the w recker service to photograph the stolen van along the way. He stated that the defendant did not act out of the ordinary dur ing the two-hour ri de.

On cross-examination, Detective Flair testi fied that he found jewelry on O’Brien. He said that hi s investigation show ed that there were outstandi ng charges against O’Brien for burg larizing his g irlfriend’s home and taking jewelry in New Hampshire. He stated that hi s investigation als o showed that O’Brien had s tolen the Colt .45 automatic handgun in F lorida. Detective F lair testified that at least five bullets had been loaded into the gun cli p. He expressed the opini on that O’Brien had killed someone before given the cruel nature of the shoo tings in this case. Detective Flair said that he learned during his investigation that O’Brien had hit Mr. Weaver with a lamp and that the broken lamp and lampsh ade were placed in the v an. He stated that he found a lamp and a lampshade in the van

.

Detective Flair conceded that he had spoken to other persons who were under the influence of alcohol or dr ugs or had a mental illnes s but could still be understood. He admitted tha t it was possible fo r someone to ac t normally althou gh they were not normal. He identified several items worn by the defendant, a T- shirt, an elastic band, a necklace, a c harm, a pair of blue jeans, a brow n leather belt, and a red, long-sleeve thermal shirt. He stated that the offenses occurred in mid -July on a normal11

summer day. On redirect examination, Detectiv e Flair stated that he beli eved that the defendant was very inv olved in the crimes if he bo und the victims.
Officer Pat Postiglione of the Na shville Metropolit

an Police Department testified regarding the oral statement given by the defendant. He said that the defendant told the officers that he met O’Br ien for the first time when he arrived at Truckstops of America in Nashv ille on July 14 or 15, 1992. The defendant told the officers that he and O’Brien planned to go to California together and that they went to his mother’s house to tell h er goodbye before leavi ng for California on July 16. The defendant said that they did not hav e a vehicle for the trip. He said that as they approached the House of God Church, O’Brien removed a .45 automati c gun from the duffle bag he was carryi ng and walked over to a white van in w hich Mr. Weaver was seated in the driver’s

seat. The defendant told the officers that O’ Brien then used the gun to force Mr. Weaver out of the van thr ough the passenger’s si de door. The defendant claimed that he did not know that O’Brien had the gun w ith him until he removed it from the bag. The defendant to ld the officers that once inside the dormitory room, O’Brien ordered him to tie the victims and he compl ied. The defendant stated that O’Brien then fired the g un three times, shooting firs t into the floor and then into the two victims. He claimed that he did not know or ask why O’Bri en shot the victims. The defendant told the officers that they l eft very quickly , that they took a lamp with them and that they drove aw ay in the van.
Officer Postiglione testified that the def endant told him and Detective Flair that he and O’Brien got on the interstate going w est toward California. The defendant stated that he was awar e that they were being

pursued by the police. H e described the weapon used by O’Brien as a .45 chrome-colored automati c handgun and stated that he threw the gun out the window into a field as ordered by O’Brien when they were12

being chased by the poli ce. The defendant provided a detail ed description of the location where he threw out the gun, and he accompanied the officer s to locate the gun.
Officer Postiglione testified that the defendant did not do or say anything during the interview

or during the driv

e to Nashville to make hi m believe that the defendant was mentally ill . He said that the defendant was nervous but calm during the interview and that he asked a couple of times how much time the officers thought he would get. Officer Posti glione believed that the defendant appeared in control of the situation. He stated that the defendant never asked about the v ictims but rather was more concerned about his sleepi ng and eating arrangements . Officer Postiglione testified that the defendant never menti oned hearing voices or having hallucinatio ns. He said that the defendant told the officer s that he had no permanent address, but he gave the officers his mother’s address and told Office r Postiglione that he had been in Knoxville.
Officer Postiglione testified that when they arriv ed in Nashville at approximately 8:00 p.m., the defendant and O’Brien were book ed and then placed in an interview room where

there was a hidden camer a. He stated

that this w

as the first time that the defendant and O’Brien were together without the presen ce of officers since their arrest. He said that a conversation betw een the defendant and O’Brien was videotaped. The videotape shows the defendant an d O’Brien planning what they were going to say to the pol ice regarding the ev ents surrounding the offense. It al so reflects that the defendant and O’Brien discus sed their history of mental illnesses and the possibility of escaping

liability based on thei r mental condition.

On cross-examination, O fficer Postiglione identified the clothing that the defendant was wearing w hen he was arrested. He stated that the defendant was wearing a red thermal, long-sleeve shirt, a T-shirt, a pair of blue jeans, a leather belt and loafers. Officer Postigli one believed that the defendant w as homeless because he13

was wearing layers of clothing in a manner similar to that of a homeless person. He said that at the time of his arr est, the defendant carried a bag that contained clothing, a religious cassette tape, religious books, a lava rock, a jar containing a clay-like substance, duct tape, a needle, thr ead, and a brace. Officer Postig lione testified that criminals often take items neces sary for their escape, but he conceded that he did not know how some of the items pos sessed by the defendant would aid an escape.
Officer Postiglione said that he found a gun case f or the stolen gun in O’Brien’s duffle bag. Officer Pos tiglione testified that O’ Brien’s fingerprints w ere found on the clip that was dis covered by police. He also testified regardi ng his interview of Mr. Harrington the day

after the offenses occurred. He sai d that Mr. Harringto n described O’Brien as the l eader of the offenses and stated that the defendant stood back and did not say anything. Officer Postiglione testified that Mr. Harrington told him that he did not know who bound him but that he believed that O’Brien shot them because he saw O’Brien ent er and leave with the gun. Officer Postiglione conceded that his investigati on also reflected that O’Brie n was the leader, giv en the fact that O’Brien possessed and used the gun and that the defendant participat ed only by tying the victims.

Office r Postiglio ne testif ied regard ing Mr. Harri ngton’s co ndition two weeks aft er the of fenses occurred . He said th at Mr. Harri ngton rem ained in i ntensive care and that the right si de of his face was extremely swollen, that his jaw

was wired shut, and that he was in pai n and could barely speak. Officer Postiglione believ ed that the defendant knew O’Brien planned to shoot the victims and take their van because they had s pent fo rty-eight h ours living together on the str eet, bec ause the y did not ha ve a vehicle for the trip to California, and because of the ma nner in which the victims were shot. He also believed that the defendant and O’Brien pla nned on eliminating any risk of having witnesses to the crimes by shooting the victims.14 Detective Harold Hane y of the Nashville M etropolitan Police Department testified that he monitored the defendant and O’Brien while they were being held in the interview room together in Nashville. He said that he saw the defendant take something out of his pocket and hi de it under the table. He stat ed that he entered the room and found a spent shell casing from a .45 caliber automatic w eapon.
Officer Tommy Welder testified that he went to the morgue in response to a call from the pathologist. He said that he found a sma ll piece of glitter near a laceration on the victim’s head. A photograph was introduced depicting the area where the glitter was found.

Don Carman, a forensic scient ist with the Tennessee Bure au of Investigation specializing in firearms identification, testified that he examine d the Colt .45 semi-automatic handgun and sai d that the gun functioned properly. He stated that he also examined the bullet frag ments recovered from Mr. Weaver and thos e sent to him. He said that the fragments were very small and were from hollow, lead-core bullets that

had been mutil ated. Mr. C arman testifi ed that the fra gments had so me general rifling characteristics similar to those fired from the Colt .45 semi-autom atic handgun but that they wer e insufficient to be considered a matc h. He stated that he analyzed a clip and tw

o .45 caliber, hollow- point bullets and said that they could be used in the Colt .45 semi-auto matic handgun. On cross-ex amination, he stated that a characteristic of a semi-automatic gun is that the trigger has to be pulled each time it is fired. He said that the Colt .45 semi-automatic handgun had a s ix pound trigger pull.
Officer Ralph Deavers testified that he looked for latent finge rprints on items in the dormitory room as well as on the broken lamp, the Colt .45 semi-autom atic handgun, and the clip taken from O’ Brien’s pocket. He said that the only fingerpri nts he could identify were O’ Brien’s fingerprints o n the clip.15 Dr. John Werther testified tha t he examined Mr. Harrington on July 16 in the emergency room. He said that Mr. Harrington had a wound on the back side of his neck and in front of his cheek. Dr. Werther stated that the bullet exited bel ow the cheekbone causing sever e damage, including sw elling of the face and bruising of the eye area. He testif ied that Mr. Harringt on suff ered dam age to his ear canal and eye socket. He stated that Mr. Harrington also suffered damage to the n erve that controls raising the forehead, closing the eyes, wiggling the nose, and moving the lips and neck, causing facial palsy. Dr. Werther testified that as a result of the facial palsy, Mr. Harrington had to have a gold weight plac ed in his eye so that it would shut and to prevent it from drying

out. He said that the jaw bone was shattered into tw enty to thirty pieces and that the external carotid artery that s upplies the face with blood w as
severe d. Dr. Wert her desc ribed M r. Harr ington ’s inju ry as b eing pa inful an d life threatening, as the likel ihood of infection was great.He testified that additional surgeries were r

equired after Mr. Harr

ington was released from the hospital. He stated that he operated on Mr. Harr ington’s neck because the bul let was close to his spine, causing him to ha

ve pain and numbn ess in h is arm. Dr. Werthe r said t hat a bon e graft from Mr. Harrington’s hip was used to fuse his cervical spine. He stated that he also reconstructed Mr. Har

rington’s cheekbone and his nose because it had collapsed, making it difficult to breathe. Dr. W erther testified that plastic surgery was also necessary.
Dr. Jessie Giles, the medical examiner for Dav idson County, testified that he reviewed the recor

ds of Dr. Gretal Harlan, an assistant medical exami ner who conducted the autopsy of William Rex Weaver. He st ated that the records show that Mr. Weaver died as a result of a gunsh ot wound to the head, causing damage to the skull and tearing and bleeding of the brain. Dr. Gi les testified that the bullet entered at the top of the head and did not exit. He stated that he was unabl e to determine the distance from which the v ictim was shot. He s

aid that there were contus ions and16

bruising around the eye as a result of the skull fractures. He also said that there was a tear at the back of the head with some abrasion resulting from the application of blunt force. Dr. Giles testified that the victim suffered two other lacerations to the head. Dr. Giles expressed the opinion that the victim could have died instantly but that most likely the victim was rende red unconscious, possibly by the laceration to the h ead, and then died very quick

ly.
Shelly Betts, a serolog ist for the Tennessee Bureau of Inves tigation, testified for the defense. She stated that she examined the clothing of the defendant and O’Brien and that she found reddis h-brown stains appeari ng to be blood on O’Brien’s boots and pants. She said that the stains tested presumptively positi ve as blood stains, although she w as unable to confirm the finding. Ms. Betts testified that she found no blood stains on the defendant’s clothing.

Dr. Amin Azimi, a li censed psychologist w ith the Middle Tennessee Mental Health Institute (MTMHI) , testified that he conducted tw o psychological ev

aluations of the defendant after the commission of the offenses. He stated that as a part of the evaluations, he revi ewed the defendant’s medical rec ords from the defendant’s 1989 hospitalization in Il linois after being picked up by the police. He sai d that the records showed that the defendant suffered a brief psy chotic reaction, and the defendant claimed that he saw spider s, that he saw snakes bit ing him, and that he heard v oices telling him to go aw

ay. Dr. Azimi des

cribed a brief psychotic reaction as a disorder charact erized by a br eakdown of real ity la

sting fo r hours

or month s as a re

sult of a severe psycho-social stressor. He testified that a person having a brief psychotic reaction may appear normal on e to two months afterwards

.

Dr. Azimi testified that he was concerned about the defenda nt’s psychological state because the defendant acted oddly in that he was evasiv e and17

secretive, he lacked c

oncern for himself with res pect to the outcome of the case, and he paced the floor. He stated that the def endant reported having visual and auditory hallucinations. Dr. Az imi testified that the defendant clai med that he had heard voices for several years. He said that the defendant told him that he sometimes heard several voices at one time and that he would leave when this happened. Dr. Azimi testified that the defendant told him that he coped with the auditory hallucinations by inflicting pain on himse lf and by p acing the floor. He said that the def endant wa s vague and evasive about his mental status. He st ated that the defendant was also v ague about whether he mutilated his genitals. He stated that he found a ne edle in the defendant’s possession.

Dr. Azimi acknowl edged that the defendant was found to be c ompetent to stand trial and not committable and that an insanity defense w as not supported by the facts of the case. He conced ed that a lthough t he defe ndant be came mor e cooper ative with the st aff, th e defen dant was u nable to remain f ree from hallucin ations f or two weeks and his oddities c ontinued. Dr. Azimi des cribed the defendant as a follower, but he stated that the defendant was not dan gerous. He diagnosed the defendant as having an atypical psychosis, a mental illness or disorder that causes hallucinations, delusions and odd conduct. Dr . Azimi said that the defendant’ s illness was a cont inuing one, unlike a brief reactiv e psychosis.

On cross-examination, D r. Azimi testified that the defendant was hospitalized in Illi nois for less than two day s and was released without medication or follow-up treatment. He st ated that the hospital staff attended to the defendant after the police arrested him for di sorderly conduct because he was knocking on door s in a neighborhood and asking to use the telephone to call his father. He said that the defendant was diagnosed in Illinois as having a brief psychotic reaction due to his lack18

of sleep and food, and he stated that all of the defendant’s symptoms disappeared once the defendant ate and slept.

Dr. Azimi acknowl edged that the defendant had told another d octor that he had not heard voices when he met O’Brien or before the off enses occurred. He also acknowledged that the defendant had told a social worker that he knew that O’Bri en had a gun because they had shot it in the alley. The defendant al so told the social worker that when O’Brien ordered him to tie the victims, he refused and instead held the gun on the victims w hile O’Brien tied them. D r. Azimi testified that the defendant told the social worke r that the gun had accidental ly discharged.

Dr. Azimi conceded that the defendant had no organic brain i njury and that he had stated in his repor t that the defendant’s symptoms did not suggest a serious mental illness and did not require medication. He also admitted tha t the defendant’s behavior during inter

views did not rai se a question of delusional thi nking or hallucinations, but rather the defendant was of ten lucid, coherent and rational. Dr. Azimi explained that the defendant told him that he heard voi ces when he was by himself and that when he was active, the voices w ent away. He said tha

t the defendant’s vocabulary, r easoning and memory wer e within the normal rang e of intelligence. Dr. A

zimi testified that the defendant l acked concern about the outcome of the case in that he admitted his guilt and stated that he shou ld be punished. He explained that it was possible that the defendant recognized the reality of a sente nce during the two years of incarceration pending the trial.

On redirect examination, Dr. Azimi testified that the defendant would be influenced by O’Brien being armed with a weapon because the defen dant was a follower. He said that the defendant could shut down unde r some circumstances. He stated that a person can be mentall y ill even though the person is intellig ent or does not19

have any organic br

ain injury. Dr. Azimi conceded on recross ex amination that the defendant did not tell him that he w as under stress or that he he ard voices or saw snakes at the time of the offenses or w hen he was fleeing from the poli ce. However, he said that the defendant told him that he l eft the dormitory room after O’B rien fired the second shot because he heard vo ices telling him to l eave.

Dr. H.J. Francois, a physician at MTMHI, t estified that he performed a physical examination of the defendant. He said that he found a lesi on in the right testicle in the groin.He stated that his findings were normal, except for an enlarged right testicle.
Several of the defendant’s family members testified regarding the defendant’s unusual behavior si nce 1989. His wife testified that the defendant had been living with her and her three children for five years when h e left and went to Nashville for no reason in 1989. She said that the defendant appear ed very confused when he left and that he took no money with him, and he carried only a small duf fle bag. The defendant’s wife testified that the defendant called her when he arrived at the bus station in Nashvil le and told her that he was going to a hotel wi

th a prostitute. She stated that the defendant also called her when he was hospit alized in Illinois

in 1989 and that he told her that he had been ar rested for hitchhiking and that a big bear had followed him.

The defendant’s wife testified that the d efendant’s behavior changed again in November 1990 when he told her and her family that he had to fo llow the Trail of Tears. She said that the defendant also t old her that he felt that someone w as calling him and that he felt w ind blow through the hous e and knock him down. She stated that the defendant carved a w alking stick to take w

ith him and that he told her that it was to keep the dogs away. She testified that the defendant left again with no20

money for approximately two weeks. She said that the defendant called her from Memphis and she sent him a bus ti cket to come home. The defendant’s wife testified that the defendant did not explain w hy he had left when he retur ned home. She stated that the defendant was normally a neat person, but when he re turned home, his clothes were torn and his hair

was out of place. She testified that on both occasions that the defendant left home, he was employed and their relationship w as good. She stated that after the second occasion, he w as not interested in wor king, but instead he stay ed home all day watching

television and reading the Bible, although he had show n no interest in religi on before he left home.

The defendant’s wife testified that the d efendant left a third time and stayed gone for approxi mately two to three w eeks. She stated that the defendant called her from Jackson, Mi ssissippi and asked her t o move there with her c hildren, although he had no job or housing arrangements. She said that she eventu ally purchased a bus ticket and sent it to him, and the defendant returned ho me. The defendant’s wife testified that she stopped living with the defendant in February 1 991 and had little contact wi th him. She conceded that she knew nothing about the defendant’s mental status in 1992 w hen the offenses occurred.
The defendant’s father and stepmother testified that they picked up the defendant in Illinois after the defendant had been in the hospital there in 1989. They said that the defendant was dist ant and that he told them that he w as hitchhiking to St. Louis. They stated that the defendant di d not have any clothes w ith him and that they had to pick up the defendant’s clothes at a bus station in Nashv ille. They testified that they then took the defendant with them to stay in Chattanoog a. They said that the defendant’s grandfather gave t he defendant a car while he w as there, but the defendant did not drive it. The defendant ’s father and stepmother stated that they21

offered to send the defendant to chef school, but he l eft and went to Nashvill e. They said that he d id not take an y money or

his car with him.
The defendant’s father and stepmother both testi fied that they did not see or hear from the defendant until May 1992 when the defendant came to stay with them in Chattanooga. They said that the defendant had changed his appear ance in that he wore bands in his long hair, a bag on a rope around his neck, and old clothes that were not appropriate for the weather. The defen dant’s father stated that the defen dant wore tailored suits and had short hair before his condition cha nged. The defendant’s father and stepmother testified that the defendant al so wore Ace bandages v ery tightly ar

ound his waist , legs, w rists and ar ms. They sai d that the band s around the d efendant’s ar ms were so tight that he c

ould barely bend his arms , and they caused his arms t o swell and become discolored. They stat ed that the defendant also wore a hea dband wrapped tightly around his he

ad. The defendant’s father and stepmother testi fied that the defendant explained his appearance by telling them that it was related to his H indu religion.

The defendant’s father and ste pmother testified that the defen dant’s behavior also changed. They stated that he scratched hi mself all over with a piece of pumice rock, and he kept an elec tric knife under his bed. The defendant’ s stepmother testified tha t the defend ant told him th at he scratched himself beca use he felt th ings crawling on him, although nothing was on hi s skin. The defendant’s father and stepmother testified that the defendant usual ly sat in his room and di d nothing but that he also walked a lot and w ould often leave for several hours before returning home. They said that the defendant carried a Bible with him at all times and th at he had more than one Bible. They offered to get the defendant an apartment and let him operate their ceramic shop, but he l eft again in June 1992 under simi lar circumstances. The defendant’s stepmother stated that the defendant called her two or thr ee times after he22

left asking her for money, but she said that she had no phys ical contact with the defendant until after he was arrested in July. On cross-examination, the def endant’s stepmother testified that she and the defendant’s father never sought ment al health assistance for the defendant.

Dr. Pamela Auble, a clinic al psychologist, tes

tified that she conducted a psychological ev

aluation of the defendant in June 1994. She st ated that she did not conduct any independent psyc hological testing but rather relied upon Dr. Azimi’s results of testing conducted approximately one week earlier. She stated that she also reviewed the defendant’s s chool records, the recor ds from earlier psycholo gical evaluations, letters from c ounsel, and police records, including photographs of the scene and the videotape of the conv ersation between the defendant and O’ Brien.

Dr. Auble testified that the defendant h ad a history of odd behavior, including pacing w

ith his head tilted sidew ays or with shav

ing cream on his nose, carrying food in his pocket, or keeping food in his room until it fermented. She sai d that the defendant had also heard voices for many years. She ex plained that the defendant told her that he often heard seven or eight voices at one time and that he was not always able to unders

tand the voices. Dr. Au ble testified that the defendant told her that the voices disturbed him and caused him to become te nse when the voices were too loud or too many. She stat ed that the defendant controlled the tens ion by inflicting pain on himself. She said that the de fendant told her that the voices instructed him to inflict pain on himself. Dr. Auble stated that the defendant used a method c alled acupress ure where h e placed thick ban ds tightly a round vari ous parts of his bo dy, including his genitals. Dr. Auble said that the defendant told her that if acupressure did not work, he would s

tick himself with a pen, r ub his skin raw, ex

ercise excessiv

ely, or pace continuously.23 Dr. Auble diagnosed the defendant as having an atypical

psychosis, a major mental illness. She s aid that the defendant’s condition w orsened when he was tired or under stress. She also stated that the defendant wa s not a violent person and that he would withdra

w from a tense situation. D r. Auble expressed the opi nion that because of his illness, the defendant was not able to deal with stress as a normal person would. Dr. Aubl e believed that the defendant did not form the specific intent to harm anyone.

On cross-examination, D r. Auble testified that she beli eved that the defendant was not an active participant in the crimes. She said that the defendant told her that O’Brien ordered hi m to tie the victims and g ave him wire to do so but that he told O’Brien that he could not do it after he started to tie the victims. Dr. Auble acknowledged that the doctors at MTMHI found no evidence of a serious mental illness, although they also diag nosed the defendant with an atypi cal psychosis. She bel ieved that the diagnosis by th e doctors at MTMHI was indicative of a serious mental illness.

I. SUFFICIENCY OF THE EVIDENCE The defendant contends that the evidence is insufficient to support his convictions. He arg ues that the evidence is i nsufficient (1) because there is no evidence of his intent, premeditation and deliberatio n to kill the victims, (2) because there is no evidence of his knowing participati on in the crimes, and (3) bec ause the evidence of his serious mental problems negated any showing that he knowingly participated in the crimes . The state responds that there i s sufficient evidence to establish beyond a reasonabl e doubt the defendant’s guilt of the offenses. We agree.

Our standard of review when the sufficiency of the ev idence is questioned on appeal is "whether, after v iewing the evidenc

e in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements o f the24

crime beyond a reasonable doubt ." Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This means that w e do not reweigh the ev idence, but presume that the jury has resolv

ed all conflicts in the test imony and drawn all r easonable inferences from the evidence in favor of the s tate. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage , 571 S.W.2d 832, 83 5 (Tenn. 1978).

First, the defendant asserts th at there is insufficient evi dence to show that he premeditated, deliberated or intended to kill the vi ctims when he entered the dormitory room to establi sh his guilt beyond a reasonable doubt for the offenses of attempted first degree murder and especially aggr avated burglary. He argues that the proof, at most, supports a conv iction for attempted second degr ee murder. The defendant acknowledges that the facts show some degree of acq uiescence or participation by the defendant i n robbing and kidnapping the victims, but he contends that the jury could j ust as rea sonably in fer an in tent not to kill but rather to immobili ze and leave the victims unharmed after their being bound. However, the jury obviously did not believe the defendant’s assertion of limited involvement. It is not this court’s function to reweigh the ev idence, and the guilty v erdict, approved by the trial court, resolves all conflict

s in the testimony in fav or of the state. State v. Hatchett , 560 S.W.2d 627, 630 (Tenn. 1978).

The defendant was charged wi th and convicted of attempted first degree murder. To be guilty of cr iminal attempt, the defendant must have acted with the kind of culpability necessary for first degree murder. See T.C.A. § 39-12-101. At the time of the offense, first degree murder w as defined as the unlawful, intent ional, premeditated and deliberate killing

of another. T.C.A. §§ 39-13-201, - 202(a)(1) (1991). Our criminal code defined a deliberate act as “ one performed with a cool purp ose,” and a premeditated act as “one done after th e exercise of reflection and j udgment.” T.C.A. § 39-13-2 01(b)(1) -(2) (1991 ). The de fendan t was also ch arged with a nd convict ed of two25

counts of especially aggravated burglary. To be guilty of especially aggravated burglary as charged in separate count s of the indictment, the defendant must hav e burglarized the House of God Church with the intent to commit first deg ree murder, and William Rex Weaver and Larry Harri ngton must have suffered serious bodily injury. See T.C.A. §§ 39-14-402, -404(a).

Viewing the evidence in the light most favorable to the state, the jury could have concluded beyond a rea sonable doubt that the defendant premeditated, deliberated and formed the intent to k ill the victims. The ev

idence shows that the defendant and O’Brien planned to go t o California and that the defendant had g one to his mother’s house to say goodbye before leaving for California on July 16.The defendant and O’Brien did not have a vehicle for the trip. As the defendant and O’Brienwere walking toward the House of God Church, O’Brien removed the .45 Colt semiautomatic gun loaded with hollow-point bullets from the dufflebag he was carry ing and walked over to the v

an in which Mr. Weaver was sitting. The defendant knew th at O’Brien had a gun because they had shot it in an alley. O’Brien then forced Mr. Weaver and Mr. Harrington into the dormitory room at gunpoi nt, and the defendant followed them inside.

The evidence shows that onc e inside the dormitory r oom, the defendant and O’Brien ordered the v ictims to lie face down on the floor, but before Mr. Harr ington could get all the way

to the floor, the defendant pulled Mr . Harrington’s hands beh ind his back and used wire to tie them together as he forced him to the f loor. Mr. Harrington testified that the defendant did not appear to be scared.The defendant then bound Mr. Harrington’ s feet together with the w ire and then bound his feet to his ha nds. After Mr. Harrington w

as bound, Mr. Weaver was hit in the head with a lamp, knocki ng him unconscious. O’Brien then gave the defendant the electr ical wires from the lamp, and the defendant hog-tied Mr. Weaver. O’B rien then shot the victi ms in the head,26

killing Mr. Weaver and sev erely injuring M r. Harrington. The defendant and O’Brien immediately left the church, taking the victim’s van as transportation for their trip to California. We believe that based on this evidence, any rational juror could have found beyond a reasonable doubt the ess ential elements of attempted first deg ree murder and espe cially aggra vated bur glary.

The defendant’s second contention rega rding the sufficiency of the evidence is that the evidence is insufficient to show that he knowingly participated in any of the offenses. Specifically , he asserts that his conduct supported a conviction of only facilitatio n of the crimes of first degree murder, especi ally aggravated kidna pping, and especially aggravated robbery. Although the defendant concedes that Mr. Harrington’s testimony that the defendant bound him would by itself demonstrate his knowing pa rticipat ion in the offens es, he argu es that th ere was oth er substa ntive evidence that contradicted the testimony and showed hi s limited involvement

. However, as stated ea rlier, conflicts in the evidence are resolv ed in favor of the state when a guilty v

erdict is approved by

the trial court. Hatchett , 560 S.W.2d at 630. Also, the trial court instruc

ted the jury on facilitati on of the crimes, and the jury rejected the theory, obviously

concluding that the evi dence supported convictions for first degree murder, especially ag gravated kidnapping a nd especially aggr avated robbery. The evidence supports those con clusions.

Third, the defendant argues that the evidence is insuf ficient to support his convictions giv

en the evidence of his seriou s mental problems. He contends that the expert, psychiatric testimony and the lay testimony of the defendant’s men tal illness negated any showing

that the defendant knowingly participated in the offenses. The state responds that there is no evidence to show that the defendant experienced any kind of psychotic episode when he committed the off enses. We believe that there is some evidence that the defendant ex perienced a psychotic epi sode near the time of the27

offenses, given the defendant’s odd behav ior shortly before the offenses t ook place. Nevertheless, the ev

idence supports the jury ’s decision that the defendant w as able to form the requisite culpable mental state to commit the offenses charg ed. See State v. Hall , 958 S.W.2d 679, 688-92 (Tenn. 1997). The evidence i s sufficient to support the defendant’s convictions.

II. ADMISSION OF VIDEOTAPED STA TEMENT The defendant contends that the trial cour t erred by admitting the videotaped statement as a statement by a co-conspirator made during the course of and in furtherance of the conspiracy, an exception to the he arsay rule under Rule 803(1.2), Tenn. R. Evid. The s tate responds that the videot aped statement was properly admitted.

The defendant filed a motion to exclude the videotaped conversation between the defendant and O’Brien, a sserting that the evi dence constituted inadmissible hearsay, an d the introduction of the evide nce would violate the Confrontation Clause of the United States Constitution and the Tenness ee Constitution. He argued that the videot aped conversation did not fall within the co-conspi rator statement exception to the hears ay rule because the statements were not made during the course of the conspiracy . Although he acknowledg ed that O’Brien was av ailable to be called as a witness because O’Brien had entered a g uilty plea and was i n jail at the time, the defendant argued that the v ideotape was inadmissibl e because its admission would violate his right to confrontation. He asserted that a different issue w as presented if the state wanted to redact the videotape. The state responded that the videotape was admissi ble as a statement made by a co-conspirator. It also cont ended that it was impossible to redact the videotape. The defendant countered that the conspiracy had ended at the t ime of the videotaped convers ation because the defendant and O’Brien had been arreste d, and the defendant had given an28

incriminating statement. The state asserted that the conspiracy was ongoing because the defendant and O’Brien were t aking steps to conceal the crime or thwart the prosecution.

The trial court ruled that the videotape was admissi ble under the coconspirator statement exception to the hearsay rule. The court did not state the nature of the conspiracy, but it r uled that the conspiracy had not ended at the time of the conversation between th e defendant and O’Brien. The trial court also noted that O’Brien could be subpoenaed by either party, giv

en that he was confined in the l ocal jail.

The record reflects that a v ideotape of the approximately twenty-seven minute conversation wa s played for the jury at trial. The defendant and O’Brien stated several times throughout the videotaped conversation that they believed they were being monitored, and portions of the videotape are difficult to un derstand because the defendant and O’Brien were w hispering or mouthing w ords. Throughout the video tape, O’Brien was seen repeat edly feeling and examini ng the underside of the table in front of him. At one point, the defendant also l ooked under the table.

The videotape reflects that O’B rien called himself a cold- blooded killer. O’Brien denied that he intended t o shoot anyone, stating that the gun went off, and he became nervous and scared. O ’Brien told the defendant that he w as sticking with

the story. The defend ant imme diately qu estione d O’Brien about th e nature of the st ory, and O’Brien replied that he s aid that he stole a van that h ad the keys inside in a ne arby parking lot. O’Bri en told the defendant that he would not say anything about w

hat the defendant did because he did not want the de fendant to tell on him. O’Brien also told the defendant that he hoped that the defendant did not t ell what O’Brien had don e. O’Brien asked the defendant what the defendant told the officers, and the defendant29

replied that he told them that the gun went off and that he did not know exactly what happened. The defendant said that he did not tel l the officers that O’Brien di d it.

The videotape shows that O’ Brien then instructed the defendant n ot to say anything else, and the defendant replied that he w ould not and that he would be quiet. O’Brien also told the defendant several times that the def endant only heard shots but that he did not see it happen. The defendant replied each time, “ I dreamed it.” The defendant stated that he wished that he had dreamed it but that they found the gun. O’Brien told the defendant that the gun would have O ’Brien’s prints all over it, and the defendant agreed. O’Brien as ked the defendant whether the defendant g rabbed the gun, but the defendant’s response was inaudible. O’Br

ien then stated, “So, your fingerprints are on it, t

oo?” The defendant and O’Brien then dis cussed the death penalty and whether O’B rien would be sentenced to death if he was found guilty . The defendant then stated someth ing about Exit 85, and O’Brien replied that they should have gotten off at Exit 85. O ’Brien then told the defendant that he w as glad that they were in jail because now he did not have to li ve with it.
The videotape reflects that the defend ant and O’Brien also discussed their history of mental illness es. O’Brien told the defendant that he had some mental problems, and the defendant responded that he also had some problems. O’Br ien then stated that he could tell the authorities that they w ere “happy” when it

happened, and perhaps he would not be char ged with first degr

ee murder. O’Brien told the defendant that he was charged w ith first degree murder, at tempted murder, and assault wi th a vehicle on an officer. O’Brien stated that the assault was based on the roadblock, although he did not have any intentions of running anyo ne down. The defendant replied that someone said that the defendant tried to run through t he roadblock.30 The videotape shows that O’ Brien then stated that he wond ered if the room was bugged. He t hen said the f ollowing:

Don’t . . . tell ‘em anything I did , just tell ‘em stuff that you did, okay? And that’ll keep you out of it, okay? Ya’ hear. And I’ll do the same thing. I’m not going to say any thing you did. Only

the stuff I did, cause that’s all they’re worried about. They’re not worried about what you did. You c

an tell ‘em your story.

. . . No, I’m not gonna tell ‘ em you did anything w ith the van. If they ask, I’m ju st gonna say, “I dunno.” All right? The defendant nodded affirmatively, and O’ Brien continued, “This w ay we don’t get ourselves in trouble. Or we get ourselv es in trouble, and I giv

e it to you, you gi

ve it to me. I’m already looking at twenty to forty years, anyway.”

The next several minutes of the videotape are inaudible because the defendant and O’Brien began whispering. It shows that the two continued to talk, discussing the charg es, potential sentences, and the p rocedure for the trial and the appeal. O’Brien told the defendant that the victim got himse lf untied and called the police, and he said that there was blood on the floor. O’Brien also stated that he should have tried to drive aro und the c op at the end of th e road. T he defe ndant’s next statement is unintelligi ble, and O’Brien stated that he did not have any shots l eft in the gun. O’Brien told the defendant that they thought that the defendant hel ped him out and that they were goi ng to shoot them in the car. O’Brien then reminded the defendant not to tell what O’Br ien did. O’Brien told the defendant, “All we wanted was the car. We did not want that to happ en. You know that. I don’t even know why I did that.” O’Brien told the defendant again that the defendant could tell the police whatever he wanted as long as he di d not involve O’Bri en.

The videotape reflects that O’B rien then asked the defendant how many shots he heard and how many shots that he told the police ha d been fired. The defendant’s response was unintelligible. O’Brien then told the def endant, “Alright, that’s the one that hit the floor. That’s al l you need to tell ‘em, the one that hit the floor.31

Alright?” He expl ained to the defendant that one shot hit the floor as he was tryi ng to discharge the gun. O’B rien said that he did not know what he was doing because he went into shock, a state of hysteria. O’Brien stated that he wondered what the victim’s family was doing, and h e then called himself a cold-bl ooded killer. O’Brien and the defendant then whispered close t o each other, and the defendant looked under the table. O’Brien then stated th at the defendant did not even need to menti on his name. O’Brien told the defendant that w hen he tried to discharge the gun, “the gun went off. I got scared, nervous. Get it?” The defendant then asked O’Br ien where he got the g un. Whe n O ’B ri en stat ed th at th e g un wa

s s to le n, th e d ef en da nt

re pl ie d s ev

er al ti me s, “We could have left it there.” O’Brien responded that the pol ice would have found the g un, and the defendant stated, “We got our story tog ether.” O’Brien told the defendant, “What’s done is done.”

The defendant made a statement that was unint elligible, and O’Bri en responded that the police found it. The de fendant then said, “So they know we were in there.” O’ Brien respo nded affirmativ ely, stati ng that the p

olice found th e broken lamp on the floor and that they had a hug e box of evidence. O’Bri en then reminded the defendant that he did not have to mention O’Brien’s name. The videotape ends with O’Brien stating, “You know they’re listening.”

Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing , offered in evidence to prov e the truth of the matter asserted.” Tenn. R. Evi d. 801(c). Hearsay i s not admissible except as provided by the rules of evidence or otherwise by law. Tenn. R. Evid. 802. Pursuant to Rule 803(1.2)(A), Tenn. R. Evi d., the hearsay rule does not exclude a “statement offered against a party that is . . . the party’s own statement in either an individual or a representative capacity.” The hearsay rule als o does not exclude “a statement by a co-conspirator of a party during the course of and in furtherance of the conspiracy.”32

Tenn. R. Evid. 803(1.2)(E) . Admission into evidenc e is conditioned upon these facts being proved by a pr

eponderance of the evidence. State v. Stamper , 863 S.W.2d 404, 406 (Tenn. 1993).

Initially, we note

that the statements made by the defendant d uring the conversation with O ’Brien qualify as admis sions under Rule 803(1.2)( A). Thus, they were admissible. However, we must also determine whether the trial court properly ruled that O’Brien’s st

atements contained on the videotape d conversation meet the requirements for the co-cons pirator exception to the hearsay rule. Declarations of a coconspirator that would otherwise be inadmissi ble may be offered as proof when the following conditions are met: (1) there is evidence of the existence of the consp iracy and the connection of the declarant and the defendant to it; (2) the declar ation was made during the pendency of the conspiracy; and (3) the declaration was made in furtherance of the conspiracy. State v. Gaylor, 862 S.W.2d 546, 553 (Tenn. Crim. App. 1992).
The defendant asserts that a conspirac y for hearsay except ion purposes does not extend to measures of conce alment or obstruction of justi ce. The state responds that under T.C.A. § 39-1 2-103(e)(1), the conspir acy was ongoing because the defendant and O’Brien were undertaking measures to conce al the crime and obstruct justice by manufacturing a story to frustrate poli ce investigation. I n pertinent part, that statute provides:

(a) The offense of conspiracy is committed if two (2) or more people, each having the culpabl e mental state required for the offense which is the

object of the conspiracy and each acti ng forthe purpose of promoting or faci litating commission of an offense, agree thatone (1) or more of them will engage in conduct which constitute s an offense.

. . . (e)(1) Conspiracy is a continuing course of conduct which terminates when the objec tives of the conspiracy are completed or the agreement that they be completed is33 abandoned by the person and by those with w hom the person conspired. The obje ctives of the consp iracy i nclud e, but are not limited to, esc

ape from t he crime , distr ibution of th e proceeds of the cr ime, and measures, other than silence, for concealing the crime or obstructing justice i n relation to it. (2) Abandonment of a conspiracy is presumed if neither the person nor anyone with w hom the person conspired d oe s an overt act in pursuance of the conspiracy during the applicable period of limitation. (3) If an individual abandons the agreement, the conspiracy is terminate d as to that person only if and w hen the person advisesth ose with whom the person c onspired of the aba n donment, or the person informs law enforcement authorities of theconspiracy and of the person’s participati on therein. T.C.A. § 39-12-103. The statute, by its terms, extends the obj ectives of the offense of conspiracy to commit a su bstantive crime to incl ude concealing the crime and obstructing justice r

elative to it.

Howev er, subs ection ( g) stat es that t he statu te is no t “inte nded to mo

dify the evi dentiar

y rules allow

ing sta tements of co-co nspirat ors in fu rtheran ce of a conspiracy.” T.C.A. § 39-12-103(g). The defendant argues that this provision rende rs T.C.A. § 39-12-103 inapplicabl e to the determination of whether the co-conspirator exception to the hearsay rule applies. Previ ous case law is less than clear as to whether the criminal c

ode definition of the offense of conspiracy h as any bearing on the requirements for the co-c onspirator hearsay ex

ception. See Neil P. Cohen et al., Tennessee Law of Evidence § 803(1.2).6, at 521 (3d ed. 1995).

In State v. Walker , 910 S.W.2d 381 (Tenn. 1995), the defendant was convicted of murder, armed rob bery and conspiracy to commit a felony. On appeal, he complained that statements by hi s co-conspirators made to others well after the murder and robbery occurred w ere hearsay and improperl y admitted into evidence.Thus, the defendant framed the issue as an evident iary one.34 In discussing the issu e, the court noted that histori cally all acts or declarations of a co-conspir ator may be given in

evidence against anothercoconspirator from the time the conspiracy h ad its origin until i ts design has been consummated, or u ntil it is abandoned. But the declaration s or a cts of one cannot be admitted against another, unless the facts and circumstan ces warrant the conclusion that a conspiracy w as existing at

the tim e of such declarations or acts. 910 S.W.2d at 384-85 . However, it also noted the definition of a criminal conspiracy in T.C.A. § 39-12-103, indicating that it abrogated our consp iracy law rela tive to how long a conspiracy continues, although the court stated that it was applying

the prior conspiracy law i n effect at the time of the offenses. 910 S.W.2d at 385.

Then the court referred to Rule 803 (1.2)(E), Tenn. R. Evi d., and noted that the analysis under it was the same as the prior law. It concluded that the robbery conspiracy ended with the robbery and stated that the murder of the robbery v ictim was incidental to it. As for a conspiracy to conceal the murder and the murde r weapon, it concluded that subsequent statement s about the robbery and shooti ng went far beyond concealment and were inadmiss ible. Id. at 386.

Unfortu nately, o ur suprem e court di d not expl ore the re lationsh ip, if an y, between T.C.A. § 39-12-103 and R ule 803(1.2)(E), Tenn. R. Ev id. However, its recognition of the evidenti ary rule reflects that the rule will contr ol on the issue of admissibility of hearsay statements. Also, giv

en the express statement in the statute that the evidentiary rules are not modified, we will follow suit in the present case, which does not charge the offens e of cons piracy.

As previou sly noted, historica lly, a cons piracy to co mmit a su bstanti ve crime did not extend to measur es for concealing the cri me or obstructing justi ce, absent specific proof showing that the concealment of the crime or the obstruction of justice35

furthered the objectives of the c onspiracy. Gaylor , 862 S.W.2d at 554 (statements reflecting an ongoing effort to conceal held to be mad e during the course of conspiracy to commit first degree murder to collect the victim’s life insurance when the insurance proceeds, the goal of the conspi racy, had not been collect ed); see also Grunewald v. United States , 353 U.S. 404, 401-05, 77 S. Ct. 963, 972-74 (1957) (“a v ital distinction must be made between acts of concealment done in furtherance of the main criminal objectives of the conspirac y, and acts of concealment done after these central objectives have been att ained, for the purpose only of cov ering up after the crime”) . A continuing agreement to conc eal the crime after its commiss ion is not to be implied from the mere fact that a conspiracy to commit the substantive crime existed and overt acts were taken to cov

er up the crime. See Krulewitch v. Un ited States , 336 U.S. 440, 443-44, 69 S. Ct. 716, 718-19 (194 9); Grunewald , 353 U.S. at 401-05, 77 S. Ct. at 972- 74.
In the present case, the defendant and O’ Brien were spotted in the stolen van around 2:00 p.m. in Jacks on, Tennessee, approximately an hour and one-half after the offenses occurred. Any conspiracy to commit the murders an d kidnapping would have ended upon their consummation at the chu rch, absent proof by a preponderance of the evidence that the conspir acy continued. On the other hand, the fact that they were using the stolen

van to go west w

ould indicate that their g oal for the robbery of obtaining a vehicle in order to go to California was still being pursued at the time of their arrest. However , even that goal ended w hen the two were arr

ested. Moreover, the recorded discussion betw een the defendant and O’Brien reflects that no previous agreeme nt to con ceal or ob struct ju stice exist ed relati ve to the cr imes. Th us, we believe the evidence pr eponderates against a finding that O’Brien’s statements ab out the offenses were admissible as co-conspirator statements un der the original conspiracy. This does not end our inquiry, thou gh. In Walker , our supreme court noted that a separate cons piracy to conceal the circumstan ces of the ori ginal cri me36

could exist and might give rise to the admission of concealment statement s in a case in which the original

conspiracy is rel evant and proven. Such pr oof existed in this case.
The videotape of the conversati on between the defendant and O’Brien reflects that O’Brien told the defendant not to say anything else, and the defendant agreed to remain quiet. The defendant also nodded when O’Brie n told the defendant not to tell the police about O’Brien’s conduct. W e believe that this evidence sufficiently establishes a conspiracy to conceal the earlier committed crimes and to obst ruct justice in relation to them.

However, statements made before the existence of the conspir acy are not admissible as a co-conspir ator exception to the hears ay rule. Walker , 910 S.W.2d at 385. In this case, the conspi racy to conceal did not begin until O’Brien tol d the defendant not to say anything else and the defendant agreed, stati ng that he would be very quiet. Therefore , any statement made by O’Br ien before the defendant agreed to be quiet should not have been admitted because the statements w ere not made during the course of the conspiracy

.

As for the statements made by O’Br ien after the conspiracy t o conceal began, we hold that they were made in furtherance of the c onspiracy to conceal the substantive crimes. For the statement to be made in furthe rance of the conspiracy, it must advance in some way the objectives of the conspi racy and not merely i nform the listener of the declarant’s activities. State v. Hutchison , 898 S.W.2d 161, 170 (Tenn. 1994). In this regard, we note that a statement is not in furtherance of the conspiracy if it is merely “a narrative statement of past conduct between the conspirators.” Walker , 910 S.W.2d at 386. We also note that casual and purposeless conv ersation between or among co-conspirators may not satisfy the req uirement that the conversati on occurred in furtherance of the cons piracy. Id. at 170.37 We believe that O’Brien’s statements deta iling the commission of the offenses advanced the conspiracy to conceal the substantiv e crimes in that they allowed the defendant and O’Brien to match their stories. Similarly, O’Brien’s declarations that he had mental pr oblems suggested that he w anted the defendant to corroborate his story , thus advancing the cons piracy to conceal the c rimes. The discussions relating

to the evidence obtained by police permitted the defendant and O’Brien to tailor their

version of the crimes to the evidence against them.
Although the three requir ements for the co-conspirator h earsay exception have been met, the issue now becomes whether O’Brien’ s statements made during the new conspiracy to conceal the substantive crimes may be used to show the defendant’s involvement in the crimes charged. We note that some jurisdictions hold that evidence of the new conspiracy to conceal an earlier, complet ed conspiracy is inadmi ssible to show participation in

or the acts of the conspiracy to commit a substantive cr ime. See United States v. DiDomenico , 78 F.3d 294, 303-04 (7th Cir. 1996), cert. denied , 117 S. Ct. 507 (1996). Yet other jurisdictions hold that

the statements made by coconspirators during the cover-up conspiracy are admissible in the tri al for the substantive offense if the statements ar e made at a time proximate to the commission of the substantive crime. See State v. Buschkopf , 373 N.W.2d 756, 764-65 (Minn. 1985); People v. Meagher , 388 N.E.2d 801, 805 (Ill. App.Ct. 1979). We believe that the latter is appropriate, and we conclude that the stat ements made by O’Brien pursuant to and in furtherance of conce aling the original conspiracy that had just ended were admissible.

In addition, we believe that most of O’Brien’s statements were admissible in order to give the defendant’s statements sensible conte xt. See State v. Jones , 598 S.W.2d 209, 223 (Tenn. 1980). The record reflects that the primary value of the videotape to the state was that it showed that the defendant’ s mental awareness during38

the conversation rebutted hi s claim that because of his mental condition, he could not form the requisite mental intent. W e believe that under Jones , O’Brien’s statements were admissible for such purposes. However, Jones holds that a trial court should instruct the jury that such statements are not to be considered as substa ntive evidence but only as an aid to prov ide meaning to a defendant’s statement. Such an instruction was not given in this case.

In any event, we hold that any error was harmless beyond a reasonable doubt. Although O’Brien’s statements contain several references to the specifics of the crimes, the same evidence was properly introduced through other means. Moreover, O’Brien’s statements impli cated O’Brien and supported the defendant’s theory that O’Brien was the shooter . O’Brien called himself a cold-blooded killer and s tated that he did not plan on shooting the victims. Also, O’Brien told the defendan t what he should and should not tell the police , suggesting that O’ Brien was the leader of the t wo. Under these circumstances, we hold beyond a reasonable doubt th at the defendant was not harmed by the admission of O’Br ien’s statements.

III. LIMITATION OF EXPERT TESTIMONY The defendant asserts that the trial court erred by limit ing the testimony of Dr. Franco is to the contents of his r eport because he did not i nclude Dr. Francois’ name on the list of expert witnesses given to the state as required by Rule 12.2(b), Tenn. R. Crim. P., relating to notice of intent to use expert testimony of the defendant’s mental condition. He argues that the trial court incorrectly applied Rule 12.2(b) because Dr. Francois’ testimony r

elated to a physical condi tion, not a mental condition, of the defendant. The defendant contends that the testimony should not have been limited because he complied with the requirements of discovery pursuant to Rule 16(b)(1)(B), Tenn. R. Crim. P., as he gav e a copy of Dr. Francois ’ report to the state before tr ial.39 Before Dr. Francois testified, a bench conference was held, and the state objected to Dr. Francois’ testimony because it had neither received Dr. Francois’ report during discovery

nor been given notice that he would be called as an expert witness. Defense counsel stated that Dr. Francois’ report was contained in the staf f conference report filed by Dr. Fa roogue, although he conceded that Dr. Francois’ name di d not appear on the report. In respon se, the state withdrew its objection as long a

s the testimo ny of Dr . Franc

ois wa s limit ed to the one para

graph c ontained in the s

taff conferen ce repor

t. Defen se couns

el resp onded tha

t Dr. Fr ancois w ould only testi

fy about the one paragraph.

The trial court then permitted Dr. Francois to testify but limited his testimony to the paragrap h contained in the staff conference repor t. Contained in the physical examination portion of the staff conference report is a paragraph regarding the physical examination of the defendant on June 1, 1994. It describes the defendant’s general appearance, includi ng his height, wei ght, temperature, pulse and bl ood pressure. It also states that the findings were nor mal, with the excepti on of an enlarged right testicle.

Dr. Francois testified that the results of his exami nation were that he found a lesion of the right testi cle. When defense counsel asked him to describe t he lesion, the state objected on the ground that Dr. Francois’ testimony was limited to his report, and the trial court sustained the objection. Defense counsel then had Dr. Francois read his findings from his report, includi ng the finding that the defendant had an enlarged right test icle, and asked him what w ould cause an enlarged rig ht testicle. The state objected on the same ground s, and the trial court sus tained the objection. Defense counsel immediately as ked for a jury-out heari ng in order to make an offer of proof.40 During the offer of proof, Dr. Francois testified tha t the defendant’s enlarged testicle could

be caused by a birth defect, ex cessive trauma, abnormal g rowth or by wrapping a band around the shaft of the penis. He st ated that to result in an enlarged testicle, a band w ould have to be used for a long period of time. He said that it would cause great pain. Dr. Francois st ated that the elastic band that w as found wrapped around the defendant’s w aist could also be wr

apped around the base of the penis. Defense counsel argued that the excluded testimon y was relevant because it corroborated evidence that the defendant used self-inflicted pain t o focus his attention elsewhere during a ps

ychotic episode and that the defendant was wearing a strap when he was taken to the jail.The trial court then stated that it had initially bent the rules to permit Dr . Francoi s to testi fy.

Pursuan t to Rule 1 2.2(b), T enn. R. Cri m. P., th e defen dant mus t give written notice to the s

tate before trial and file a copy of such notice with the cl erk if the defendant “intends to introduce test imony relating to a mental disease or defect or any other mental condition of the defendant beari ng on the issue of his . . . g uilt . . . .” If the defendant fails to provide notice as required, the court may exclude the testimony of any expert witnes

s offered by the defendant on the issue of the de fendant’s mental condition. Tenn. R. Crim. P.12.2(d); see also State v. Russell , 735 S.W.2d 840, 842 (Tenn. Crim. App. 1987) (tri al court properly ex cluded evidence of expert t estimony on the issue of mental condition w hen the defendant failed to provide written notice to the state and failed to file a copy of the notice). The defendant must also permi t the state to inspect and copy any results or reports of physical or mental examinations. Tenn. R. Crim. P. 16(b)(1)(B)

.

The state argues that the defendant has w aived the issue pursuant t o Rule 103(a)(2), Tenn. R. Evid., by failing to object on grounds that the testimony should not have been limited because he complied with Rule 16( b)(1)(B), Tenn. R. Cri m. P.,41

and on grounds that the trial court erroneously appl ied Rule 12.2(b), Tenn. R. C rim. P. We do not believe that the issue has been w aived. Pursuant to Rule 103(a)(2), Tenn. R. Evid., error may not be based upon a trial court’s decision to exclude evidence unless the substance of the evi dence and the specific evidenti ary basis supporting admission were made know n to the court by offer or w ere apparent from the context. The defendant followed these requiremen ts.

We hold that the def endant was required to give the state advance notice of his intent

to call Dr . Francois

as an exper

t witness under Rule 1 2.2(b), Tenn.R. Crim. P. We reject his argument that no notice was required because he desired to introduce evidence of a phy sical condition, as opposed to a mental condition, of the defendant. In this case, the defendant soug ht to introduce Dr. Franc ois’ testimony to corroborate other testimony of the defenda nt’s mental condition. In this regard, Dr. Francois’ proffered testimony qualified as “expert testimony relating to a menta l disease or defect” under Rule 12.2(b) , Tenn. R. Crim. P. If, as the defendant contends, the testimony related solely to the defendant’s physical c ondition, the evidence w ould be irrelevant and thus inad missible. See Tenn. R. Evid. 401, 402. Therefore, the defendant was required to provide the state with advance notice that he intended to call Dr. Francois as an ex

pert witness.
Pursuant to Rule 12.2(d), th e trial court may ex clude the testimony of any expert witness offered by the defendant on the issue of the defendant’s mental condition if pretrial noti ce of the intent to present such ex pert testimony is not g iven. Rule 12.2, Tenn. R. Crim. P., conforms to the federal rule. Commit tee Comment, Tenn. R. Crim. P. 12.2. The objecti ve of the requirement of pretr ial notice is to giv

e the state time to rebut evidence of a defendant’s me ntal condition, which often requires reliance upon expert testimony. See Notes of Advisory C ommittee on Rules, Fed. R. Cr im. P. 12.2(b), 18 U.S.C.A. (West 1986). How ever, in considering

the exclusion of evidenc e:42 evidence should not be excluded except w hen it is shown that a party is actually

prejudiced by the failure to comply with the discovery

order and that the prejudice cannot be otherwise eradicated. The exc lusion ary rule should not be i nvoked merely to punish either the State or the defendant for the deliberate conduct of coun sel in failing to comply with a discovery

order. The court’s contempt powers should be used forthis purpose. Rules 12 and 16, as well as the other Rules of Criminal Procedure w ere adopted to promote justice; they should not be employed to frustrate j ustice by lightly depriving the State or the defendant of competent evi dence. State v. Garland , 617 S.W.2d 176, 185-86 (Tenn. Crim. App. 1981) (c itation omitted).

In this case, the trial c

ourt did not inquire int

o the potential prejudice to the state by the admission of Dr . Francois’ testimony explaining the possi ble causes of the enlarged testicle. Rather, it summarily rul ed that Dr. Francois’ t estimony should be limited to the statement prov ided in the report. Before ex cluding evidence for noncompliance with Rule 1 2.2(b), the trial court must determine that the admission would prejudice the part y against whom the ev idence is introduced and that the prejudice cannot be mitigat ed by other means. Without a proper inqui ry by the trial court, there is no way

to conclude from the existi ng record whether the state was prejudiced or whether the prejudice could have been mitigated to such an extent as to allow the admission of the ev idence. Therefore, we hold that the trial court abused its discretion by limiting Dr. Francois’ testimony to the report without conducting this inquiry.

However, we hol d that the error was har mless. Dr. Auble testified that the defendant told her that he inflicted pa in on himself by wrapping thick bands around his genitals, allowing

him to control tension that r esulted from the voices he hear d. The defendant’s father and stepmother testified that the bands the defendant wore aroun d43

his arms were so tig ht that the defendant could barely bend his arms and that the bands caused his arms to sw ell and become discolored. Ev idence was also introdu ced that the defendant was wearing an elastic band at the time of his arrest. From this evidence, the jury could infer that the defendant wrapped the bands around his genitals, causing the enlargement of his right testicle. We do not believ e that the erroneous exclusion of Dr. Franc

ois’ testimony more probab ly than not affected the judgment. See T.R.A.P. 36(b); Tenn. R. Crim. P. 52(a).

IV. ADMISSION

OF 9-1-1 TAPE The defendant complains that th e trial court erred by admitting the 9-1-1 tape because the evidence had li ttle or no probative v

alue and that any probativ e value was substantially outweighed by the danger of unfair prejudice and by the needless presentation of cumulative ev idence. See Tenn. R. Evid. 403. He als o argues that the trial court erroneousl

y allowed the state to

use the 9-1-1 tape to bolster the uncontradicted testimony of the victim. The defe ndant contends that the state should have been limited to introdu cing Mr. Harring ton’s testimony detaili ng his conversation with the 9-1-1 operator . The state responds that the tri al court did not err by admitting the 9-1-1 tape because the tape w as relevant to show the identity of the defendant and O’Brien and because it corr oborated several parts of the victim’s testimony . The state asserts that the tape is even more reliable than the victim’s testimony because it contains statements made moments after the offenses took place. We hold that the trial court erred by admitting the tape but that the error was harmless.

Before trial, the defendant filed a motion to exclude the 9-1-1 tape, arguing that it w

as inadmissible because it was unfairly prejudi cial and constituted hearsay. SeeTenn. R. Evid. 403, 802. He argued that the tape was of mar ginal probative value because neither identity nor the victim’s injuri es were contested by the defendant. He argued that the tape w as extremely inflammatory . The defendant44

asserted that the victi m could testify regardi ng his statements to the 9-1- 1 operator but that the 9-1-1 tape itself w as inadmissible because the pr obative value was substantially outwei ghed by the danger of unfair pr ejudice. He also argued that the introduction of the tape constitut ed improper bolstering of the victim’s uncontradic ted testimony. The state responded that the 9-1-1 tape was particularly relevant because the victim described the offenses committed against him and the per petrators. The trial court held that the 9-1-1 tape was admissible, ruli ng that the probative v alue outweighed the danger of unfair prejudice.
At trial, the victim testified during direct examination regarding his conversation with the 9-1-1 operator, and the 9-1- 1 tape was played for the j ury. It reveals that Mr. Harrington told the operator that he and Mr. We aver had been shot in the head, that there was a lo t of blood, and that they needed help. He stated that they were in a dormitory

room at the House of God Church on H eiman Street. He said that he and Mr. Weaver worked for National Guardian Secu rity Services and that they were working at the churc

h. Mr. Harrington t

old the operator that they w ere eating lunch in a white, Astro van when a white man and a black man forced them inside the dormitory room, sh ot them, and then took the ir van. He sa id that he did not he ar the me n leave but that they were no l onger in the room. Mr. H arrington stated that he di d not know the two men and did not know w hat they were wear

ing. The tape reflects that w hen the operator asked Mr. Harr ington to describe the per petrators, Mr. Harri ngton stated that they were about twe nty-five years ol d.

The 9-1-1 tape also reveals that Mr. Harrington stated several times, “please hurry,” and that he asked numerous times whether the police or ambu lance were there. The operator r esponded by telling Mr. Harrington that they were hurrying and by telling him to “hold on,” to not talk if it made him feel uncomf ortable, or to lie down and to put pressure on hi s head. Mr. Harring ton stated that he heard sirens and45

that he saw a white ca r. The tape reflects that the poli ce and the ambulance had difficulty locating the v

ictims.

On cross-examination, the victim was asked one question: whether he was bound after being made to l ie face down. The victim an swered yes to the q uestion.

The admissibility of evi dence under Rule 403, Tenn. R. Ev id., is a matter within the trial cour

t’s discretion and wi ll not be reversed on appeal absent an abuse of that discretion. See State v. DuBose , 953 S.W.2d 649, 65 2 (Tenn. 1997). Under Rule 401, Tenn. R. Evid., evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence t o the determination of the action more probable or less probable than it would be without the evidence.” Relevant evidence is generally admissib le. Tenn . R. Evid. 4 02. However , evidence may be exclu ded if it s probati ve value is substantiall

y outweighed by the danger of unfair prejudice, c onfusion of the issues, or misleading the jury, or by considerations of delay, waste of time, or needless presentation of cumulative evidence. Tenn. R. Evid. 403. Hearsay is not admissible unless an exception to the r ule of exclusion applies. Tenn. R. Evid. 802.

First, we address the defendant’s improper bolsteri ng argument. In support of his argument, the defendant r elies upon State v. Benton , 759 S.W.2d 427, 433-34 (Tenn. Crim. App. 1988). Initially, we note that Benton was decided before the adoption of the Tennessee Rules of Evi dence. In Benton , this court held that the tr ial court erred by admitting a videotaped statement of the vi ctim. Id. The court reasoned that the videotape should not hav e been admitted because the vict im’s credibility had not been attacked on cross-ex amination. Id. The court stated that: pr ior consistent statements may be admissible, as a n exception to the rule against hearsay, to rehabilitate a witness when insin uations of recent fabrication hav e been made, or when deliberate falsehood has been implied. But before prior consistent s tatements become admissible, the witness’46 testimony

must have been assailed or seriously questi oned to the extent that the witnes s’ credibility need s shoring up. Id. at 433-34. We agree that the 9-1-1 tape const ituted hearsay and was not admissible because the vi ctim’s credibility had not been attacked. Howev er, the evidence was admissi ble under the excited utter ance exception to the hearsay rule. See Tenn. R. Evid. 803(2).

Next, we address the defendant’s argument relating to relevance and the exclusion of relevant e

vidence. In support of his R ule 403 argument, the defendant relies upon State v. Smith , 868 S.W.2d 561 (Tenn. 1993). In Smith , our supreme court addressed the admissibility of a 9-1-1 call from a victim under Rule 403. Identity was a key issue in Smith as the defendant presented an alibi def ense. The tape of the 9-1-1 call introduced in Smith contained a statement by one of the v ictims saying the defendant’s name as he was being attacked. Id. at 577. Noting that the cal l was particularly relevant to establishing the identity of the defendant as the killer, the cou rt ruled that the tape of the 9-1-1 cal l was admissible. Id. In ruling that the tape w as admissible, the court dist inguished State v. Pendergrass , 586 P.2d 691 (Mont. 1978), because the tape in Smith contained a statement by one of the v ictims saying the defendant’s name as he was being attacked. Smith , 868 S.W.2d at 577. Pendergrass held that a hysterical emergency call by a rape victim was i nadmissible because the prejudicial danger outweighed the tape’s probative value and because the evidence was introduced simply

to bolster the already overwhelming ev idence that the rape occurred, a fact the defendant did not di spute. 586 P.2d at 691.

We conclude that the 9-1-1 tape in the present c ase was relevant to the material issues of identity and the nature of Mr. Harri ngton’s injuries. See Tenn. R. Evid. 401. The 9-1-1 tape reflects that Mr. Harrington told the operator that a b lack man and a white man forced hi m and Mr. Weaver i nto the dormitory room, shot them,47

and then took their van. He described the two men as being about twenty-five years old.
On the other hand, although rel evant under Rule 401, w e conclude that the 9-1-1 tape should have been excluded because the proba tive value of the evidence was substantially outweighed by the danger of unfair prejudice and the needless presentation of cumulative ev idence. See Tenn. R. Evid. 403. The contest ed issue at trial was the degr

ee of the defendant’s involvement, not his identity. The 9-1- 1 tape added nothing to show that the defendant actively participated in the offenses. Rather, the 9-1-1 tape related more to the identity of the perpet rators. At trial, the defendant did not dispute that he was present when the offenses occu rred, arguing instead that his involvement was l imited. Moreover, Mr. Harrington testified v irtually to ever

ything that was contained on the 9-1-1 tape, including the identification of the defendant as the person who bound him. In this respect, the evidence was cumulative. Also, unlike Smith , the introduction of the tape pres ented a danger of unfair prejudice to the defendant. The tape reflects that Mr. H arrington, although not hysterical, feared the return of the defendant and O’Brien, that he was in great pain, that he repeatedly stated “please hurry,” tha t the operator re sponded by tellin g the victim to hold o n, stop talking,
an d l ie down , a nd th at

th e p ol ice a nd am bu la nce h ad di ffi cu lt y f in di ngth e v ic

ti m. We believe that there was a risk that the jury could have been inflamed by these statements. We believe that th e probative value of the evidence was substantially outweighed by the dang er of unfair prejudice. Therefore, th e trial court erred by admitting the 9-1-1 tape.

The defendant argues that the error was not harmless giv en the fact that the tape shows that the vi ctim was in pain and feared th e return of his assailants and given the prosecutor’ s reliance upon the tape durin g closing argument. During closing argument, the prosecutor described the 9-1-1 call as a “bone-chilling” call. He also48

referred to Mr. Harrington repeatedly saying, “Please hurry, please hurry. I’ve bled all I can bleed, please hurry, please hurry.” The pros ecutor argued that Mr. H arrington believed that Mr. Weaver was alive because he heard a g urgling noise. The pro secutor argued that Mr. Harri ngton feared the return of his ass ailants. The defendant did not object to the state’s closi ng argument. The state responde d that the erroneous introduction of the 9-1-1 tape was harmless because the proo f of the defendant’s guilt was overwhelming.

We agree that the error was harmless

. See T.R.A.P. 36(a); Tenn. R. Crim. P. 52(a). We do not believe that the erroneous introduction of the 9-1-1 tape more probably than not affected the re sult of the trial. As earl ier stated, the 9-1-1 tape added almost nothing to the state’ s case. The substance of the emergenc y telephone call was provided

through the testimony of the v ictim. Likewise, tho ugh we view th e introduction of the 9-1-1 tape as presenting a danger of unfair prejudice, we do not believe that the tape was of such an inflammatory nature as t o require a revers

al. The victim, though obvi ously in pain, was coherent and not hysterica l. We hold that the trial court erred by introdu cing the 9-1-1 tape but that the error was harmles s.

V. DOUBLE JEOPARDY The defendant asserts that his convictions for two counts of especially aggravated burgl ary violate the doubl e jeopardy clauses of the Uni ted States Constitution and the Tennessee Cons titution. The defendant was indi cted in separate counts for the especially aggravated burgl aries of Mr. Weaver and of Mr. Harri ngton. The counts allege that the defendant enter ed the House of God Church with the intent to commit first degree murder and that Mr. Weaver and Mr. Harri ngton suffered serious bodily injury. The defendant argues that because the offense of especi ally aggravat ed burglary is a crime agai nst prope rty and not persons, he canno t be convic ted of two counts of especially agg ravated burglary based on the single entry into the church.49 The double jeopardy clauses of bot h the United States and Tennessee Constitutions state that no per son shall be twice put i n jeopardy of life or limb for the same offense. U.S. Const. amend. V; Tenn. Cons t. art. I, § 10. The clause has been interpreted to include the foll owing protections: “ It protects against a sec ond prosecution for the same offense after acqui ttal. It protects agains

t a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same off ense.” North Carolina v. Pearce , 395 U.S. 711, 717, 89 S. Ct. 2072, 2076 (1969); State v. Denton , 938 S.W.2d 373, 378 (Tenn. 1996). It is the last protection that is of interest in this case.

In Denton , our supreme court set forth the procedure for ana lyzing a claim that two offenses are the same for double jeopardy purposes. It s tated that the resolution of a double jeopardy punishment issue under the Tennessee Constitution requires the following: (1) an analysis of the statutory offenses under Blockbur ger v. United States , 284 U.S. 299, 52 S. Ct. 180 (19 32); (2) an analysis,guided by the princi ples of Duchac v. State , 505 S.W.2d 237 (Te nn. 1973), of the statutory evidence used to prove the offenses; (3) a consideration of whether ther e were multiple vi ctims or discrete acts; and (4) a comparison of the purposes of the respec tive statutes. Denton 938 S.W.2d at 281. None of the steps are determinativ e but rather the results of the analysis of each step must be w eighed and considered in r elation to each other. Id.
The state conceded during oral argument in this case that multiple convictions for especial ly aggravated bur glary are not permis

sible, and it requested that th e e sp ec ia ll y agg ra

va te d b ur gl ar y c on vi ct io n r

el at in g t o M r. Wea

ve r b e d is mi ss ed . We agree that double jeopardy principles prohibit c

onvictions for more than one offense of especially aggr

avated burglary unde r the circumstances of this c ase. However, w

e do not agree that the charges relating to Mr. Weaver must be di smissed because of the double jeopardy viola

tion.50 A dismissal is not the only legitimate option available when double jeopardy principles are violated. State v. Addison , 973 S.W.2d 260, 267 (Tenn. Crim. App. 1997), app. denied (Tenn. June 29, 1998). In Addison , this court stated that:

there is no need to “dismiss,” “va cate,” or “strike,”

a particular “con victio n” if what is meant by the te rm “conviction” is the return of the jury verdict of guilt. Rather, the ju ry verdict stands as a legitimate finding of fact and l aw which the t rial co urt should preserve by mergi ng the same offense counts into one judgmentof conviction . . . that notes the merger of counts with each other. . . . Such a merger and i mposition of a single judgmentof conviction pro tects aga inst d ouble jeopardy and preserves

the validity

of the jury verdicts for future avoidance of problems related to unnece ssar ily dismissed “char ges” or “convictions.” See , e.g. , State v. Davis , 613 S.W.2d 218, 221 (Tenn. 1981). Id.
In this case, the jury returned guilty verdicts for both counts of especially aggravated burgl ary. The counts charge the same offense of especially agg ravated burglary, but each al leges separate injured v ictims. However , double jeopardy principles are viol ated by the entry of more than one judgment of conviction i mposing more tha n one sen tence fo r the burgl ary. There fore, th e separa te count s should h ave been merged, and a single j udgment of conviction should have been entered. The nature of the judgment of convicti on to be upheld on appeal is contr olled by our discussion of the defendant’s Oller claim.

VI. OLLER CLAIM The defendant contends that the trial court erred by refusing to dismiss the especially agg ravated burglary counts. He argues that a dismissal is requir ed under T.C.A. § 39-14-404(d) because the element of serious bodily i njury had already been prosecuted for charges of first degree murder and especiall y aggravated rob bery. Pursuant to T.C.A. § 39-14-404( d), the acts that constitute especially aggr avated burglary may be pr

osecuted under the especially aggravated burgl ary section or any other applicable section, but not both. In support of his clai ms, the defendant cites1 W e also no te that the d efenda nt was c harged in separa te coun ts of the ind ictmen t with two counts of espe ciall y aggravat ed kidnapping of

Mr. Weaver. One count all eged that t he kidnapping was accomplished wit h a deadly weapon, and the ot her count al leged that the vict im suffered seri ous bod ily injury. T he st ate e lecte d to p roce ed on the c harg e alleg ing th e use of a d ead ly wea pon , and it dism issed the other co unt. 51 State v. Holland , 860 S.W.2d 53 (Tenn. Crim. App. 1993) and State v. Oller , 851 S.W.2d 841 (Tenn . Crim. App. 1992). However, as the state correctly points out, these cases do not require that the counts be dismissed. Rathe r, they hold that the conv iction for especially aggr

avated burglary mus

t be modified to aggravated burglary when subsection (d) prohibits the prosecution and convic tion for especially ag gravated burglary. Holland , 860 S.W.2d at 60; Oller , 851 S.W.2d at 843.

We hold that the especially aggrav ated burglary conv

iction cannot stand based upon the injuries sustai ned by Mr. Weaver because it vi olates T.C.A. § 39-14- 404(d). The act of killing Mr. Weaver constituted the serious bodily injury nec essary to enhance the offense from aggravated bur glary to especiall

y aggravated bur

glary. In this case, the defendant was pr osecuted and convicted of the firs t degree murder and the especially aggravated robbery of Mr. Weaver. 1 Under these circumstances , T.C.A. § 39-14-404(d) prohibits the prosecution and conviction for especiallyaggravated burglary based upon Mr. Weaver’s injuries. See Oller , 851 S.W.2d at 843. Unde r Oller , the conviction based upon M r. Weaver’s injuries must be modified t o aggravated burglary. Therefore, only a finding of guilt for aggravated burglary remains with respect to the injuries sustained b y Mr. Weaver.
However, the especi ally aggravat ed burglary convi ction stands based upon the injuries sustained b y Mr. Harringt

on because T.C.A. § 39-14-404(d) was not violated. The defendant was pr osecuted and convicted of both attempt ed first degree murder and especially ag gravated burglary. The offense of attempted first degree murder does not require a s howing of serious bodil y injury. State v. Trusty , 919 S.W.2d 305, 313 n.7 (Tenn. 1996). Although the def endant was indicted for the especially52

aggravated robbery

of Mr. Harrington, an offense c ontaining serious bodil

y injury as an element, the charge was di smissed at the close of the state’ s proof. Therefore, the prosecution and conviction for especially aggravated burglary based upon Mr. Harrington’s injur

ies do not violate T.C.A. § 39-14-404(d).
As earlier noted, double jeop ardy principles pro hibit the entry of more than one judgment of conviction imposing more than one sente nce for the burglary. The jury verdicts of guilt for the offense must be merged. In State v. Banes , 874 S.W.2d 73 (Tenn. Crim. App. 1993), this court stated:

In the circum stance, in which two gu ilty verd icts are returned as to alternative c harges, the gu ilt y verdict on the greater charge sta nds and t he guilty verdi ct on the lesser charge merges into the greater charg e. T he judge should enter a judgmen t of conviction on the gr eater offense and a judgment merging the les ser offense into the greater. Id. at 81. In this case, findings of guilt for aggravated burglary and especially aggravated burgl ary stand. The finding of gui lt for the lesser offense of aggrav ated burglary merges i nto the greater offense of especially aggravated burgl ary. Therefore, we hold that the judgment of conv iction relative to M r. Weaver shall be vacated, and the conviction shall be mer ged with the especiall

y aggravated bur

glary convicti on relating to Mr. Harrington.

VII. SENTENCING

The def endant c omplain s that the trial cour t impose d an exces sive sentence. He argues that the trial court erred by

applying enhancement factors,by finding that no mitigating factors existed, and by imposing consecutive s entences. The state responds that the trial court imposed appropriate sentences. We agree.
Appellate review of sentencing is de novo on the record with a presumption that the trial co urt's determinations are c orrect. T.C.A. § 40-35-401( d). As the Sentencing Commission C omments to this section note, the bu rden is now on the53

defendant to show that the sentence is improper. T his means that if the trial court followed the statutory sentencing procedure, made findings of fact that are adequately supported in the record, and gave due consideration and proper weight to the fa ctors and principles that are r elevant to sentencing under the 1989 Sentencing Act, w e may not disturb the sentence even if a different result were pr eferred. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

However, "the presumpti on of correctness which ac companies the trial court's action is conditioned upon the affirmative showi ng in the record that the tr ial court considered the sentenci ng principles and all relevant facts and circums tances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the purpose of meaning ful appe llate revie w,

the trial court must place on the record its reasons for arriving at t he final sentencing decision , identify the mitigating and enhancement factors found, state the specific facts supporting each enhancement factor found, and articulate h ow the mitigating and enhancement factors have been eva luated and balanced in determining the s entence. T.C.A. §

40-35-2 10(f) (1990). State v. Jones , 883 S.W.2d 597, 59 9 (Tenn. 1994).

Also, in conducting a de novo review, we must consider (1) the evi dence, if any, received at the t rial and sentencing heari ng, (2) the presentence r eport, (3) the principles of sentencing and arguments as to sentencing alternatives, (4) the natu re and characteristics of the c riminal conduct, (5) any mitigating or statuto ry enhancement factors, (6) any statement that the defendant made on his own behalf and ( 7) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-10 2, -103, -210; see Ashby , 823 S.W.2d at 168; State v. Moss , 727 S.W.2d 229, 236-37 (Tenn. 1986).

The sentence to be imposed by the tr ial court is presumptiv

ely the minimum in the range unless th ere are enhancement factors present.T.C.A. § 40-35-2 For Class A fel onies committed on or af ter July 1, 1995, t he presumptive sentence is the midp oint of the ra nge. See T.C.A. § 40-35-210(c). 54 210(c). 2 Procedurally, the tr ial court is to increa

se the sentence within the range based upon the existence of enhancement factors and, then, reduce the sentence as appropriate for any mitig ating factors. T.C.A. § 40-35 -210(d)-(e). The wei ght to be afforded an existing factor is left to the trial court's discretion so long as i t complies with the purposes and principles of the 1989 Sente ncing Act and its findings are adequately supported by the record. T.C.A. § 40-35-210, Sentencing Comm ission Comments; Moss , 727 S.W.2d at 237; see Ashby , 823 S.W.2d at 169.

At the sentencing hearing , Mr. Harrington tes tified regarding the ex

tent of his injuries suffered during the offenses. He stated that he had undergone fourteen surgeries as a result of his injuries from the offenses, includin g surgery to repair his inner ear canal and a fracture in his neck and surgery to place a gold weight in his eyelid. He said that he had also undergone plastic surgery. Mr. H arrington testified that he had migraines at leas t twice a week and tha

t he could not function when he had a migraine. He said that he had surgery on his neck in an attempt to cure the mig raines but that it did not help. Mr. H arrington testifie d that he had to go t o a docto r to receive an injection to reliev

e the pain, but the injections did not always w ork. Mr. Harring

ton stated that he lost all heari ng in his right ear , was partially blind in his right ey e, and had problems with balance. H e stated that his eyesig ht was getting w orse and that his eyes did not tear properly. Mr. Harrington tes tified that because his facial musc les had deteriorated, his teeth rubbed against his jaw causing sores inside his mouth. He stated that he had also been treated by a psychologist for depression.
Mr. Harrington test ified that he was thirty -six years old w

hen the offenses occurred. He stated that he h ad worked at National Gua rdian for five years and that he had not been able to work si nce the offenses. He testified that he had financial problems as a result of his i nability to work,requiring him to sel l several sentimental55

possessions to obtain money. He stated that his relati onship with his chil dren had been affected and that he and his wife had ex perienced marital problems as a result of the injuries he sustained. H e also said that he could no l onger ride or train hor ses, a hobby that he had enjoyed since he w as five or six y

ears old.
Linda Harrington, Mr . Harrington’s w ife, explained the many w ays that her husband’s life had been changed by the injuries he sustained from the offenses, including the financial difficulties. She also testifie d regarding her husband’s depression. She testified that Paulette Weaver, the widow of William Rex Weaver, had planned to testify at the sentencing hearing but that she had experienced a nervous breakdown and was unable to attend.

The presentence report reflects that the then thirty-y ear-old defendant had no prior criminal rec

ord. The defendant introduced as exh ibits at the sentencing hearing copies of his medical records relating to psychological ev aluations and interviews by

Dr. Azimi and by D r. Auble. The medical records relating to the defendant’s hospitalization in Illinois were also introduced as well as a copy of his school records that reflect that he did poorly in sc hool and was absent often.

The trial court called Ki m Bone, a probation officer. Ms. Bone testified that she went to the jail to interview the defendant as part of her preparation of the presentence report but that the defend ant refused to talk to her. She stated that as a result, she was unable t o interview the defendant.
At the conclusion of the sentencing hearing, the trial cour

t sentenced the defendant as a Range I, standard offender to twenty years for eac h Class A felony conviction and to ten y

ears for each Class B felony conviction. The court or dered that56

the sentences imposed for the first d egree murder and the attempted firs t degree murder co nvictions be served c onsecut ively.

The trial court rejected the defendant’s theory that he w as an unwilling participant in the crimes . It found instead that the defendant did not attempt to stop O’Brien from shooting the v ictims but instead helped bind the victims. It also s tated that the evidence suggested that the defendant might have handled the gun at some point. The trial court stated that the defendant did nothing to disassoc iate himself from O’Brien as evidenced by the defendant remaining with O’Brien until their ar rest.
In sentencing the defendant, the tri al court enhanced his sentences for the attempted first degree murder, especially aggravated robbery, especially aggravated kidnapping , and especially agg ravated burglary convictions based upon the following enhancement factors pursuant to T.C.A. § 40-35-114:

(3) the offense

s involv ed more than on e victim; (6) the personal injuries i nflicted upon o r the am ount of damage to property sustained by or taken from the victim was particularly gr

eat; and (10) the defendant had no hesitation about com mi tting the crimes when the risk to human life was high. The trial court did not ex plain its factual basis for the application of the enhancement factors. Although the state ar gued and the defendant conceded that factor ( 9) applied because the defendant possessed a firearm d uring the commission of the offense, the trial court did not state that it enhanced the defen dant’s sentence based upon this factor.
The trial court found that no mitigating factors applied. Specifically, it rejected the following mitigating factors:

(4) the defendant played a minor role in the commission of the offenses;57 (8) the defenda nt was sufferin g f rom a me ntal condition that significantly reduced his culpability for the offenses; (11) the defendant , al though guilty of the cr imes, committed the offenses under such unusual circums ta nc es that it is unlikelythat a sustained intent to v iolate the law motiva

ted the criminal conduct; (12) the defendant acted under duress or under the domination of the codefendant; and (13) the defendant had no prior criminal recor d and was not a violent person. See T.C.A. § 40-35-113. With respect to consecut ive sentencing, the st ate and the defendant limited their argument t o the provision allow

ing for consecutive sent encing for a dangerous offender. See T.C.A. § 40-35-115(b)(4). However, the tri al court did not explai n its reasons for

orderi ng the d efendant to serv e the sentence of l ife imprisonment for the first degr ee murder conviction cons ecutive to the twenty

-year sentence for the attempted first degr ee murder conviction.

A. ENHANCEMENT FA CTORS The defendant contends that the trial cour t erred by finding that enhancement factors (3), (6) and (10) applied. First, he asserts that th e trial court inappropriately applie

d enhancement factor (3) because the defendant was indicted separately and convic

ted of the crimes against each v ictim. The state concedes that the trial court inappropriately applied factor (3). W ith the exception of the especially aggravated burgl ary, we agree that the application of the enhancement factor under the facts of this case was inappr opriate. See State v. Williamson , 919 S.W.2d 69, 82 (Tenn. Crim. App. 1995) (factor (3) may not be applied when the def endant is separately convicte

d of the offenses committed against each v ictim). As mentioned earlier, the aggrav

ated burglary conv

iction is merged into th e especially aggr avated burglary conviction. Under these circumstances, enhancement factor (3) is applicable given the fact that the o ffense involv

ed more than on e victim.58 As for enhancement factor (6), rel ative to particularl y great injuries, the defendant concedes that it may be appl ied to the attempted first degree murder conviction because it i s not an essential element of the offense. See State v. Nix , 922 S.W.2d 894, 903 (T enn. Crim. App. 1995) (holding that particularly great personal injury is not an essential element of attempt ed first degree murder). However, with respect to the remaining convictions, he argues that great personal injuries are inherent in every especially aggravated robbery, especially aggravated kidnapping and especially aggravated burgl ary because those offenses requi re serious bodily i njury as an element.
With respect to the offenses of especially agg ravated robbery and especially aggravated burglary, these offenses as alleged in the indictment require proof of serious bodily inj ury. In State v. Jones , 883 S.W.2d 597 (Tenn. 1994), our supreme court concluded that “proof of serious bodily inj ury will alw ays constitute proof of particularly great injury.” Id. at 602. Therefore, factor (6) shoul d not have been applied to these offenses because the factor is an essential element of the offenses.

Relative to the offense of especiall y aggravated ki dnapping, the conviction was based upon the defendant’s use of a de adly weapon, not because M r. Weaver was killed. Thus, particular ly great personal i njuries are not inherent i n the offense of especially aggr

avated kidnapping. We believe that th e severe injuries suffered by the victims qualify as

particularly gr

eat personal injuries for pur poses of enhancing the defendant’s sentences under fact or (6) for the attempted first degree murder of Mr. Harrington and the especi ally aggravat ed kidnapping of Mr. Weaver.

We note that the tria l court did not apply fac

tor (9) , relat ive to u se of a deadly weapon, although the state argued that it w as applicable, and the defendant conceded that the factor is not an essential elem ent of the offense of att empted first59

degree murder and may be appr opriately considered t

o enhance the sentence. See State v. Jackson , 946 S.W.2d 329, 33 4 (Tenn. Crim. App. 1996) (factor (9) applicable to attempted first degree murder ). We agree that the factor should have been applied to the attempted first degree murde r. As for the offenses of especially aggravated kidnapping and especially aggravated robbery, the defendant argues that the f actor is an essential element of the offenses as char ged. We agree. However, factor (9) should have been considered to enhance the def endant’s sentences for especially aggravated burgl ary because the defendant possessed or employed a firearm durin g the commission of the offense . The use of a firearm is not an element of especially aggravated burgl ary. T.C.A. § 39-14-405( a); see also State v. Baker , 956 S.W.2d 8, 17 (Tenn. Crim. App. 1997) (factor (9) applicable to enhance sent ence for aggravated burglary conviction). Therefore, factor (9) is applicable to the offense s of attempted first degree murder and especiall y aggravated bur

glary.
The defendant argues that facto r (9) should be given little weight because the evidence showed that O ’Brien stole the gun used in the crimes and that O’Bri en, not the defendant, shot the victims. W e disagree. Given the fact that the defendant held the gun during the commissi on of the offenses and disposed of the gun whe n chased by police, we concl ude that factor (9) should be g iven considerable w eight.
Relative to enhancement factor ( 10), the defendant asserts that it cannot be applied because it is an es sential element of the offenses of especially aggravated kidnapp ing and

especia lly ag grava

ted robbery as both offen ses inv olved t he use of a deadly weapon. See State v. Kern , 909 S.W.2d 5, 8 (Tenn. Crim. App. 1995) (factor (10) inapplicable when

based solely upon the defendant’s use of a deadly weapon). The test for determining whether an enhancement factor is an essent ial element of an offense is whether the same proof necessa ry to establish a particular element would also establish the enhancement factor

. See Jones , 883 S.W.2d at 601. The60

determination of whether a part icular enhancement factor should be applied is made on a case-by-case basis. See State v. Poole , 945 S.W.2d 93, 96 (T enn. 1997).

Initially, we note

that the trial court failed to state the specific facts supporting the applicatio n of factor (10). At the sentencing hearing, the state argu ed that the factor applied because several people, including two state troop ers, were endangered during the hig h-speed chase in Jackson. On appeal, the state asserts without further explanat ion that the trial court pr operly applied enhancement factor (10) based upon the defendant’s actions at the scene as testified to by Mr. Harrington.

We do not believe that factor (10) is appli cable based upon the endangerment of lives durin g the high-speed chase that took place in Jackson ap pr ox im at el y o ne

an d o ne -h al f t o t

wo ho ur s a ft er th e c om mi ss io n of t he

of fe ns es . We acknowledge that factor ( 10) may be applied if the facts “ demonstrate a culpability distinct from and appreciably greater than that incident to the offense ” for which the defendant is convicted. Jones , 883 S.W.2d at 603 (emphasis added). This court ha s held that the factor applies w hen persons other than the vi ctims alleged in the indictment are placed at ri sk during the commission of the offense. State v. Si ms , 909 S.W.2d 46, 50 (Tenn. Crim. App. 1995). The rational e is that when there are o thers at risk besides the vic

tim, this demonstrates a culpab ility greater than that required to prove the offense. Jones , 883 S.W.2d at 603.

In Jones , our supreme court cites State v. Lambert , 741 S.W.2d 127, 134 (Tenn. Crim. App. 1987), as an ex ample of the proper application of enhanc ement factor (10). Jones , 883 S.W.2d at 603. In Lambert , the def endant, before s triking two persons, drove an automobile recklessly throug h the University of Tennessee area of Knoxville whi le the streets and sidew alks were crowde

d with motorists and pedes trians. The court explained that the Lambert court properly determi ned that factor (10) applied61

because the defendant created a high r isk of death or serious bodil y injury to many people before killing the v ictims, demonstrating a culpability distinct from and appreciably greater

than that incident to the offense for w hich he was convict

ed. Jones , 883 S.W.2d at 603.

Although we believe

that lives were pl aced at risk during the pursuit by police, we do not believ e that the risk was cr

eated incident to the commission of the offenses in this case. The police c hase did not occur shortly after the commission of the off enses. Ra ther, the police ch ase occur red appro ximately o ne and on e-half t o two hours after the crimes wer e committed. Under these cir cumstances, factor (10) is not applicable.

However, we bel ieve that based upon Mr. H arrington’s testimony , factor (10) is applicable to the especially aggr avated kidnapping, especi ally aggravat ed robbery, and especially aggravated burgl ary convictions. Mr. Harrington tes tified that he was present when the offenses were committed against Mr. W eaver, and Mr. Weaver was present when the offenses w ere committed against Mr. Harrington. Both Mr. Weaver and Mr. Harringt on were in direct per

il when the defendant committed the offenses against the other person. Under these circum stances, the facts of this case “demons trate a cu lpabilit y distinct from and appreciably greater ” than that incident to the offenses as required for the application of factor (10) under Jones

. Id. (emphasis added). Therefore, the trial cour t properly applied factor (10). We believe the factor deserves considerable w eight.

B. MITIGATING FACTORS Next, the defendant contends that the trial court erred by finding that no mitigating factors appli ed. First, he argues that the trial court should have considered that he played a minor role in the commission of the offense. See T.C.A. § 40-35-62

113(4). However, he concedes that the evidence s hows that he made statements to a social worker that h e held the gun during the c ommission of the offenses. The defendant also acknowledges that the evidence establishes that he threw the gun out the window when ch ased by police. The trial court rejected the defendant’s th eory that he played a minor role and i nstead found that the defendant actively participated in the crimes. The record supports the trial court’s conclusion.

Next, the defendant asserts that there is ample evidence that he was suffering from a mental condition that significantly reduced his culpability for the offenses. See T.C.A. § 40-35-113(8). We agree. The cir cumstances surrounding the commission of the present offenses are si milar to earlier occas ions when the defendant was suffering from a mental condition in that the defendant decided to l eave home for no reason. The defendant also told Dr . Azimi that he left the dormitory room after O’Brien shot the gun because he heard voices. The person al belongings taken by the defendant for th e trip to Ca lifornia su ggest that the defendant w

as suffering

from a mental condition. When arrested, the defendant was wearing clothing

inappropriate for the weather and was w earing bands similar to those he used to relieve a nxiety from auditory hallucinations . Under these circumstance s, the factor should have been considered. However, we do not believe that the evidence that the defendant suffered from a mental condition at the time the offenses were committed was s trong. Therefore, the factor should only be given minimal wei ght.

The defendant argues that the trial court should have consider ed that he committed the crimes under such unusual circumstances that it is unlikely that he had a sustained intent to viol ate the law, see T.C.A. § 40-35-113(11), and that he acted under duress, see T.C.A. § 40-35-113(12). We disagree. As previously mentioned, the trial court concluded that the defendant w as an active participant in the planned crimes.63

The record supports the trial court’s conclusion. It

properly rejected factor s (11) and (12).

As for th e defen dant’s co ntentio n that th e trial cou rt should have considered his lack of a prior criminal record, the state concedes that the factor is applicable. We agree that the trial court sho uld have considered the defendant’s lack of a prior criminal recor d. We hold that the factor should be given moder ate weight.

C. MODIFICA

TION OF SENTENCES We need not remand for resentencing due to the trial court’s misapplication of enhancement and mitigating factors given the fact that the record is sufficient to conduct a de novo review. Although we conclude that the trial court inappropriately applied enhancement factor (3) and f ailed to consider mitigating factors (8) and (13) with r

espect to the attempted first degr ee murder conviction, the defendant is not necessarily entitled to a reduction in the sentence imposed by the tria l court. In consideration of the record before us, we hold that enh ancement factor (6), particularly great personal

injuri es, and e nhanceme nt factor (9), po ssessi on or emp loyment of a deadly weapon, apply to the attempted first degree murde r conviction. See T.C.A. § 40-35-114(6), (9). These enhan cement factors are entitled to g reat weight under the circumstances of this case. We also hold that mitigating factors appl y: factor (8), the defendant’s mental condition sig nificantly reduced his culpability, and factor ( 13), the defendant’s absence of a prior cri minal record. Howev er, the mitigating factor s do not deserve great wei ght. Under these circumstances, the mid-range sente nce of twenty years for this Class A felony is justified.

As for the especially ag gravated kidnapping c onviction, enhancement factors (6) and (10) are applicable. With respect to the especially aggravated robbery conviction, enhancement factor ( 10) applies. The enhancement factors ar e deserving64

of great weight, unli ke the applicable mitigati ng factors (8) and (13). We believe that given the applicable enhancement and mitigating factors, a twenty-year sentence is warranted for the convictions for especially aggravated kidnapping and especially aggravated robbery

.

As for the remaining especially aggravated burglary conviction, we hold that the trial court proper ly sentenced the defendant to ten y ears incarceration. Enhancement factors (3), (6), (9) and (10) apply to the off ense, as do mitigating factors (8) and (13).

D. CONSECUTIVE SENTENCING

The defendant challenges the imposition of consecutive sentences. He argues that he does not meet the r equirements for a dangerous offender under T.C.A. § 40-35-115(b)(4). He al so argues that a sentence of life imprisonment consecutive to a twenty-year s

entence does not reasonably r elate to the severity

of the offenses committed by the defendant given his lack of a prior criminal record. The stat e counters that there is no prohibiti on against imposing consecutive sentences for youthful, firsttime offenders, and it argues that c onsecutive sentences are w arranted in the case. We conclude that consecutive sentences are appropriate in this case.

Initially, we note

that the trial court failed to state its reasons for imposi ng consecutive sentencing . Therefore, our review of the issue of consecutive sent encing is de novo without a presumption of cor rectness.

The defendant and the state limited their arguments with respec t to consecutive sentencing to the provision prov

iding for consecutive s

entencing for dangerous offenders. See T.C.A. § 40-35-115(b)(4). We agree that this provision is the only one applicable in this case. Consecutiv e sentencing may be order ed if the trial65

court finds by a preponderanc e of the evidence that the defendant is “a dangerous offender whose behavior indi cates little or no reg ard for human life, and no hesitation about committing a crime in which the risk to human l ife is high.” T.C.A. § 40- 35- 115(b)(4). A finding that the defendant is a dangerous offender will not, standing alone, justify consecutive s

entencing. State v. Wilkerson , 905 S.W.2d 933, 939 (Tenn. 1995). In addit ion to a f inding th at the de fendan t is a dange rous off ender, co nsecutive sentencing requires further findings that an extended sentence is nece ssary to protect the public against the defendant’s future crimina l conduct and that the sentences will reasonably relate to the s everity of the offenses committed. Id.
We conclude that ordering the attempted first degree murder sentence to be served consecutive ly was warr anted in this case. We acknowledge that the defendant’s youth and lack of a pri or criminal record in dicate a capability for rehabili tation. However, th e defen dant’s po or school record an d excessive absenteeism from school weig h in favor of consecutive s entencing. Also, the circumstances surrounding the offenses reflect particularl y violent behavior

and show that the defendant has little or no r egard for human life and no hesitati on about creating a risk to human life. These factors also support a f inding that consecutive sentencing is necessary to protect society from the defendant and th at consecutive sentences are reasonably related to the severity of the defendant’s c riminal conduct.

E. CONCLUSION In consideration of the foregoing and the record as a whole , we affirm the judgments of conviction for first degree murder, attempt ed first degree murder, especially aggr

avated kidnapping, and espec ially aggrav

ated robbery. We vacate the conviction on the count char ging especially aggravated burgl ary relative to William Rex Weaver and reduce it to aggravat ed burglary. Also, we merge it with the conviction on th e c ou nt ch ar gi nges pe ci al ly

ag gr av at ed bu rg la ry

re la ti ve to La rr y H ar ri ng to n. We66

affirm the judgment of conviction for espe cially aggravated burglary relative to Larry Harrington but modify the judgment of conviction to r eflect the merger of the convi ctions on the two burglary

counts into one especially aggravated burgl ary judgment.

______________________________ Joseph M. Tipton, Judge

CONCUR:

____________________________ Gary R. Wad e, Presiding Judge

_____________________________ William M. Barker, Specia l Judge