# FILED
December 29, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON AUGUST SESSION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9711- CR-00439 ) Appellee, ) ) ) SHELBY COUNTY VS. ) ) HON. CHRIS CRAFT KIMBERLY WILLIA MS, ) JUDGE ) Appe llant. ) (Direct Appeal - First Degree M urder)

FOR THE APPELLANT : FOR THE APPELLEE : EDWARD G. THOMP SON JOHN KNOX WALKUP Assistant Public Defender Attorney Generaland Reporter 200 Jefferson , Suite 725 Memphis, TN 38103 MARVIN E. CLEMENTS, JR. Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243 WILLIAM L . GIB BONS Distri ct Attorney General JERRY R. KI TCHEN DANIEL S. B YER Distri ct Attorney General 201 Poplar Street Memphis, TN 38103
OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE-2- 

## OPINION

On February 27, 1997, a She lby Co unty jur y conv icted A ppella nt Kim berly Wi l li ams of fir

st degree murder, especiall y aggravated kidnapping, aggrav ate d robbery, attempted a ggravated rob bery, two counts of aggravated assault, and two counts of aggr

avated burglary . Followi ng a sentencing hearing on March 17 and 26, 199 7, the trial cou rt impos ed a total s entenc e of life imprisonmentplus twenty-t hree years. Appel lant chal lenges his sentence for each convic tion as well as his convicti on for first degree murder, raising the following issues:
1) wheth er the evidence was sufficient to sup port the conviction for firs t degree m urder: 2) whether the t rial court properly appli ed various enhancement factors to Appellant’s sentences; 3) whether the t rial cour t properl y sentenced Appell ant to alonger term of imprisonment t han his co-defendant; and 4) whether the t rial cour t properl y denied Appellant’ s motion for a li st of the State’s wi tnesses for

the sentenci ng hearing.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

I. FA CTS

On February 27, 1996, at app roxim ately 1:00 a.m., Col eman Dickson, who had b een s leepin g on th e floor n ext to his daughter, was awak ened by Rodney Jeffries, who was pointi ng a black n ine millim eter pistol a t Dickso n’s head
. When Jeffri es asked “Wh ere is th e dope at ,” Dickson resp onded tha t he did not have any drugs in h is apartm ent. App ellant then entered the apa rtment a nd ti e d up Dickson and th en blin dfolde d him . Dicks on su bseq uently told the two me n where-3-

his .357 handgun was hidde n and Appellant t hen retri eved the gun and l oaded it. The two men also took $70, a gold chain, a ring, a pager, and some keys f rom Dickso n.

When Dickson tol d them thathe had previously purchased marij uana from his neighbor, Appellant and Jeffri es decided to enter the neigh bor’s apa rtment. The two men then cut t he bonds on Dickson’s feet and to ok him across thehall, despite his pleadi ng to be lef t with hi s childr

en and his statemen t that h e was afraid that if

he went into the other apar tment he would be shot by whoever was in it. Appell ant then kicked in the back door of the neighbor’s ap artment and Dickson, who was stil l bli ndfolded and had his hands t ied behind hi s back, was shoved in first . Dickson remai ned blindfolded during all of the subs equen t events in the sec ond ap artmen t.

Gwe ndolin Pam plin was in bed with Arteli a Anderson when she heard t he gunmen kick in t h e door to her apa rtment a nd yell “Po lice, that [sic] is a b ust.” Before they co uld go out the bedr oom door, one of t he gunmen brought Tabit ha Todd into the bedroom while hol ding a gun to her back. After the second gunman entered the bed room, th ey o rdered every one to lay on the floor and began asking for drugs and mo ney. After Anders on said that theydidn’t have any drugs o r mone y, Appe llant took A nderso n out of the bedroo m.

As Appellant was taking And erson out of the bedroom, Anderson broke free and attemp ted to lock himself in the bat hroom. Jeffries then l eft the bedr oom and joined Appellant. Appellant t hen kicked open the bathroom door an d began hitti ng Anderson in the head with t he .357 ha ndgun. Todd testified that during1 The record indicates that the t rial court

used the proper st

andard when it i

nstructed t

he jury on fi

rst degree murder. -4- this time, one of

the gunmen yell ed “Put him in t he bath—put this n i g ger in the bathtub so we can shoot hi m” an d “ Look a t my face , nigger, be fore I kill you.” An der son then begged the gunmen not t o killhim. After

a scuffl e, one of th e gunmen said “Shoot t ha t nigge r,” and shot s were fir

ed. Jeffries test ified t hat Appe llant shot tw ice and th en Jeffries shot twice
.

An autopsy reveal ed that A nderson was shot once in the back and once in the thigh , with bot h shots severi ng major arteries. The autopsy also revealed thatAnder son ha d sustain ed seve ral injuries to his head that were co nsistent w ith his being stru ck seve ral times w ith a pistol. The cause of Anderson’s deat h was multiple g unsho t wound s.

II.SUFFICI ENCY OF THE EVI DENCE
Appellant

contends that

the evidence was insu fficient to supp ort his convicti on forfirst

degree murder. Speci fically, Appell ant does not contend that the eviden ce is ins ufficien t to prov e that h e killed A nders on, Ap pellan t mere ly contends that the evidencewas in sufficie nt for a re ason able jury to find him guilty of “intent ional del iberate pr emeditated murder.”

Init iall y, we note th at App ellant’s argument that ther

e was no proofof delib eration is irreleva nt. Th e crim es in th is
case were committed af ter the 1995 amendment t hat elimi nated deliberat ion as an eleme nt of first deg ree mu rder. See Tenn . Cod e Ann. § 39-13-202( a)(1) (Supp. 1998) (“F irst degree murde r is: A prem editated a nd intenti on al kil ling of another.”). 1-5- When an appellant

challenges t he suffi ciency of the evidence, this C ourt is obliged to review that chal lenge according to certai n well-settl ed principles. A verdictof guil ty by th e jury, approved by t he trialjudge, accr edits th e testimony of the State' s witnesses and r esolves all conf licts

in the testimonyin favor of the State. State v. Cazes , 875 S.W .2d 253 , 259 (T enn. 19 94); State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992). Although an accused is o r iginal ly cloaked with a presumption of innocence, a jury verdict r emoves this pres umption and replaces it with one of gu ilt. State v. Tug gle , 639 S.W.2d 913, 914 (Tenn. 1982) . Hence,
on appeal, t he burden of proof rests wit h Appellant t o de monstrate the insuffici ency of the con victing evide nce. Id. On appe al, “the [S]tate is entitled to the stronge st leg iti mate view o f the evid ence as well as all reaso nable and legitimate inference s that ma y be draw n therefro m.” Id. (citi ng State v. Cabbage , 571 S.W .2 d 8 32, 83 5 (Te nn. 19 78)). W here th e suffic iency o f the evid ence is contested on appe al, the relev ant questi on for the r

eviewing cour

t is wheth er any rationaltrier

of fact could have fou nd the accused gui lty of every el ement of the offense beyond a reasonable doubt. Harris , 839 S.W .2d at 75; Jackson v. Virgini a , 443 U .S. 307, 3 19, 99 S . Ct. 2781 , 2789, 61 L. Ed.2d 560 (19 79). In conducting ourevaluati on of the convicti ng evidence, t his Court i s precluded f rom reweighing or reconsid ering the ev idence. State v. Morgan , 929 S.W.2d 380, 383 (Tenn. Cri m. App. 19 96); State v . Matt hews , 805 S.W.2d 776, 779 (Ten n. C ri m. App. 1990). M oreover , this Cou rt may no t substitute its own inferences “for those drawn by the trier of fact from circum stantial evidence.” Id. at 779. Finally, Rule 13(e) of the Te nnes see R ules o f Appe llate Pro cedu re prov ides, “fin dings of guilt in criminal actions whet her by the t rial cour t or jur y shall beset aside i f the evidence is insuf

ficien t to support

the f indings b y the tr ier of f act beyond a reasonab le doubt.” See also Matthews , 805 S.W.2d at 780.-6- Althoug h premeditati on requires t hat “the i ntent to k ill must have been formed prior to the act itsel f,” “ [i]t

is not necess ary that

the purpose to kill pre-exist in the mind of the accu sed for a ny definite p eriod of tim e.” Ten n. Cod e Ann. § 30-13-202(d) ( Supp. 1998). The el ement of premeditat ion is a quest ion for the jury and may be inferr ed from the ci rcu ms tances surroun ding the k illing. State v. Gentry , 881 S.W .2d 1, 3 (T enn. C rim. App . 1993).
Looking at the facts in the pres ent case in t he light most favorabl e to the state, as we a re require d to do, w e conc lude that th e eviden ce is sufficie nt t o support the jury's fi nding of premedi tation. Indeed, th e evidenc e showed that both Appellant

and Jeffri es were armed when they ki cked in the door and entered the apartment were t he kill ing oc curred. Af ter Anderson br

oke free and attempted to lockhimself i n the bathroom, Appel lantkicked open the bathroom door and began hittingAn derson in the head with the .357 handgun. Todd testif ied that du ring this time, one of the gunmen yelled “ Put him in thebath—put this nigger in the bathtub s o we can shoot him” and “ Look at my face, n igger, before I kil l you.”

Anderson then begged t he gunmen not to kil l him. Todd, Pamplin, and D ickson all testifie d that they heard one of the gunmen give an orderto shoot A nderso n before the shots were fired

. Clearly, a reasona ble jury could infer from this sequ ence o f events tha t Appella nt had tim e to reflect on what he was doing befor

e he shot Anderson and t hus, that his acti ons were intent ional and pre medita ted. This issue ha s no m erit.-7- III . APP ELLANT’ S SENTENCE
Appellant

contends that

the tri al court made several err ors in dete rmining his senten ce. Spe cifically, A ppellan t contends t hat the trial court misapplied several enhancement factor s. Under Tennessee law , “[w] he n reviewi ng sentencing issues . . . incl uding the granti ng or denial of proba tion and th e length of sentence, the appellate co urt shall conduct a de novo revi ew on the record of such issues. Such review shallbe conducted with a presu mpt ion that t he determinati ons made by the co urt fr om which the appea l is taken are correct.” Tenn. Code Ann. § 40- 35- 401(d) (1997). “However, t he presumption of correctne ss w hich accompanies t he trialcourt's action i s conditi oned upon the affirmative showing in t he record that the tri al court considered thesentencing principl es and all relevant facts and circu mstance s.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). “The defendant has t he burden of demonstr ating thatthe sentence is im proper.” Id.

A por ti on of theSentenci ng Re form A ct of1989, codif ied at Tennessee Code Annotated § 40-3 5-210 , estab lished a num ber of s pecific procedures to be followed in sentenci ng. This sect ion mandat e s the court 's consider ation of t he following:
(1) The evidence, if any, r eceived at t he trialand the sentenci ng hearing; (2) [t]he presentenc e report; (3) [t]he pri nc iples of sentencing and argum ents as to sentenci ng al tern atives; (4) [t]he nature and characteristi cs of the crimin al conduct i nvolved; (5) [e]vidence and informati on offered by the parti es on the enhancementand mitigati ng factors in §§ 40-35-11 3 and 40-35-114; an d (6 ) [a] ny statement t he defend ant wishe s to ma ke in his ow n beha lf about se ntencing
.-8-

Tenn. Code Ann. § 40-35-210(1997). I n additi on, this section pr

ovides that

the minimum sentence within t he range is the presump tive sentence. If there are enhancing and mitigat ing factors, the court must start at the minimum sentence in the range and enhance t he sentence as appropriate for the enha ncemen t f a ctors and then reduce t he sentence wit hin the range as appropriate for the mitiga tin g factors. If ther e are no miti gating fac tors, t he court may set the sentence above the minimum in that range butstil l withi n the range. The wei ght to be given each factor is lef t to the di scretion of the trial judge
. State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Cri m. App. 1992). The Act furthe r provides t hat “[w]henever

the co urt imp oses a sen tence , it shall p lace on the r ecord either orally or in wri ting, what enhancement or mitig ating fa ctors it fo und, if a ny, as w ell
as finding s of factas requ ired by § 4 0-35-20 9.” Ten n. Cod e Ann. § 40-35-2 10(f) (1997). Because of the importance of enhancing and mit igating factors under the sentencing guideli nes, even t he abse nce o f these factors mus t be rec orded if
none are found. Tenn. Code Ann. § 40-35-210 ( 1997) comment. These fi ndings by the trial judg e mu st be re corde d in ord er to allo w an a dequ ate rev ie w o n appe al. In a ddition, “[w]hen i mposing sentences for multipl e offenses, the tri al court mus t mak e separate fi ndings as to whi ch enhancement and miti gating factors apply to which convic ti ons.” State v. C hristophe r Blocke tt , No. 02C01- 9509-CC-00258, 1996 W L 4176 59, at *4 (T enn. C rim. A p p., Jackson, July 26, 1996) (citi ng State v. Chrisman , 885 S.W.2d 834, 839 (Tenn. Crim. App . 1994). Because the record indica tes that the trial court cons idere d th e sentencing principl es an d all relevant facts and circumstances, our rev iew of Appellants’ sentences is de novo with a presumption of corr ectness.2 Initially, Appella nt argues that the re was not en ough pro of for the trial cou rt to conclud e by a preponderance of the evi dence that he was

involved in t

he previous robbery.

However, the record i ndicates th

at Clifton Jackson testif

ied that he was with Appellant and another man when they went to a residence, kicked down the door, i denti fied t hemsel ves as police, and en

tered t he residence

for t he purpos

e of st ealin g drugs and money . At some point, Jackson was shot. Foxy Branch, who was li

ving at th

at apartment at t

he time, testifi

ed that thre

e men broke into the apartme nt, that numero us gunshots w ere fired, and that after the incide nt there was b lood eve rywhere. Donald Ross of

the Memphis Pol

ice Departme

nt testifi ed that Appel

lant ha d admitte

d taking two men to t

his location on the night in question. This is clearly enough proof for the tri al court to conclude by a preponderance of the evidence that Appe llant was involve d in this previo us criminal act. -9- In determining the sentence for each of Appell ant’s con vic tions, t he trial court found that the only mit igatingfactor t hat appli ed was the fact that Appell ant assisted the autho rities in locating Jeffries. See Tenn. Code Ann. § 40-35-113(9) (1997). The c ourt ga ve little we ight to th is facto r beca use A ppella nt did th is only after he ha d been ar rested and he essent ially tried to blame everyt hing on Jeffries. We agree th at no evid ence w as pres ented to suppo rt a findingthatany other m itigating facto rs were p resent.

The trial court also found tha t at least two of the enh ancem ent factors listed in Tennessee Code Annot ated § 40 -35-1 14 ap plied to each of App ellant’s convictions. First, the court f ound thatfactor ( 1) applied because Appellant had
a previous hi story of

criminal convicti ons or behavior . Appellant argues that

the trialcourt err

ed when it appl ied this factor because it found by a preponderance of the evidence that Appell an t had previ ously pa rt ici pat ed i n a s imi lar home invasion robbery. 2 He ar gues that the trial cou rt’s reli ance on this cri minal episode violates his constitutionalrights because he had not yet been convicted of the offens e in a jury trial. This argument has no meri t. The Tennessee Supr eme Court ha s held tha t a trialcourt mayutili ze criminalbehavior shown by preponderance of the evi dence to enhance senten ce, without violat ing due process rights u nder th e fede ral or sta te con stit utions. State v. Carico , 968 S.W.2d 280, 2 87 (T enn. 1 998). In additio n, App ella nt had pr ior convi ctions for-10-

drivi ng on a suspended license and simple ass ault. Thus, the trial court was clearly correct i n applying f ac to r (1) to th e sen tence s for all o f Appe llant’s convictions.

The trialcourt als o applied factor (8) , that t he defendant has a pr evious history of unwillingness to c omply with con ditions of release into the comm unity, to all of Appe llant’s conv ictions. See Tenn. C ode Ann . § 40-35-114 (8) (1997). Howeve r, t he co urt did not give thi s factor much wei ght because it involved a misdemeanor sentence. Appel lant does not challenge t he appl icatio n of this factor an d we ag ree that the trial court wa s correc t in applying it.

The trialcourt found that enhancement factor (2) applied to the convicti ons fo r the aggravated robbery and especially aggravated kidnapping of Dickso n because Appellant was the leader in those two offen ses. See Tenn. Code Ann. § 40-35-114(2) (1997). The court based its decision on the fact that App ellant had state d in his pr

e-tri al confessi on that he was t he one who tied Dic kson up , tookhis necklace, and intended to take hi m across the hall to the other robb ery. The court als o based its deci sion on other evidence w h ich establ ished that Appellant

was the one who took Di ckson’s gu n. Ap pellant argues that t he fact that Jeffri es was the one who drove the car to the apartment and was the on e who entered Dickson’ s apartment fi rst shows t hat Appellant was not theleader. We disagree. This Court has stated that “enhancement for bei ng a leader i n the commission of an offen se does not requi re that the defendant

be the sole l eader but only that he be ‘a’ leader.” State v. Hicks , 86 8 S. W.2d 7 29, 731 (Ten n. C ri m. App. 1993) Further, “[b] oth of two criminal actors m ay b e ‘a leader in the commission of an offense.’” Id. Indeed, th is Court found in Hicks that whil e the-11-

co-defendant

led the preparati on, the defend ant clearly led the perpetrati on and thus, both were leader s in the commissi on of aggravated robbery. Id. Thus,
even if Jef

fries l ed the preparat ion, as Appel lantapparently clai ms, the trial court could stil l conclud e that Appellant was t he leader i n the perpetr ation of t he offensesagainst D ickson. B ecaus e we m ust r eview t he trial c ourt’s determ inati on t hat Appellant was a leader i n these two of fenses wit h a presumption of correctne ss, we conc lude th at the tria l court w as co rrect in applying factor (2).

The tria l court found th at enhancement factor (9), that Appell ant possessed
a firearm during the commissi on of an offense, only app lied to the ag gravated burglary of Pam plin’s apa rtment. See Tenn. Code Ann. § 40-35-11 4(9) (1997). Appellant

does not challenge the applicat ion of this fact or a nd we agree that it
was correctly appl ied because use of a firearm is not an element of the off ense of aggravated burglary. See State v. Baker , 956 S.W.2d 8, 17 (Tenn. Cr im. App. 1997).

The trialcourt found that enhanc e ment factors (10) and (16) , that Appel lant had no hesitat ion in committ ing a crime when the r isk to human life was high and thatthe crime wascommitted under circumstances und er which the potentialfor bodily injury

to the vi ctim was great , ap p lied onl y to the espec ially aggravated kidnapping of Dic kson
. See Tenn . Code Ann. § 4 0-35-11 4(10), (16 ) (1997). It is true that generally, a court could not appl y these factors t o enhance a sentence forespeciall y aggravated kidnapping conv iction because a high risk of death or bodily injury is inherent i n the offense. See State v. Claybrooks , 910 S.W.2d 868, 872 (Tenn. Crim. App. 1994) (“Although not a designated element of t he offense,3 Even if the facts had not demonstrated a culpabili ty distinct f

rom and appreciably greater than that incident to the crime, the tri

al court could still have appli ed theses factors because “[b]oth factors may be applied in s ituations where indivi

duals other t

han the vict

im are in the

area and are subject

to injury.” State

v. Sims , 909 S.W.2d 46, 50 (Tenn. Crim. App. 1995). In this case, Dickson’s young daughter could easily have been injur ed during the kidnapp ing of her father a nd subseq uent shooting in the next do or apartm ent. -12- any en hanc eme nt facto r which is inherent i n the offense i tself may not be used t o inc rea se t he defen dant’s sentence .” ). Howe ver , t he Te nnes see Supr eme Court has stated that enhancement factors which are inherent i n the nature of the offense may be applied to the sentence if they“demonstrate a culpabili ty disti nct from an d appreciab ly greater that incident to the crime.” State v. Poo le , 64 5 S.W .2d 93, 98 (Tenn . 1997). In this case, the tri al court expressly st ated that

it
was not rely ing on Appell ant’s use of a g un when it found th at these factors applied. The co urt stated th at it fo und tha t th ese factors applied because Appel lant an d Jeffrie s had taken Dicks on ou t of his a partm ent an d throw n him into the second apartmen t knowing that the re might be gunfi re. We agree. By forcing Dickson into the second apa rtment ahead of t hemselves, knowi ng that there was a g reat pos sibility that he w ould be shot, A ppe llant an d Jeffri es demonstrated “culpability dis ti nct from and appre ciably g reater t han” that i nherent in the crime itself. Dickso n had a lready be en sub jected to risk of death or

bodily harm when he was tied up at gunpoint and taken ou t of hisap artment into the hall. By thro win g him int o the second apart ment ahead of themselves and leaving him partial ly ti ed up while shots were being f ired, Appellant and Jeffri es greatly increased this ri sk beyond what w as ne cess ary to co mple te the e spec ially aggravated kidnapping. The trialcourt correctly ap plied facto rs (10) an d (16) to the sentence for this of fense. 3

In short, App ellant has not m et his burden o f showing that the trial court misapplied an y e nhancement factor s. In addi tion, we cannot say that the tri al4 The trial court i mposed a sent

ence of t wenty- three y ears for the espec

ially aggravat

ed kidnappi

ng of Dickson , ten years for the a ggravated robbery o f Dickson, a nd four year s for the aggra vated burg lary of Dickso n’s apartment, with these three s entences to run concurrently. The trial court imposed a sentence of life imprisonment for the first degree murde

r of Anderson, four

years f or the at tempted agg

ravated r obbery of Ande

rson, f our years

for the aggravate

d assault of

Todd, four years for

the aggravat

ed assault of

Pamplin, and fi

ve years for t

he aggravated burglary of Pampli

n’s apartment

, with t hese five sentences to ru n concurrently. The court then or dered the senten

ces for the cri

mes against Dick

son to run consecut

ive to the cr

imes against

Anderson, Todd, and Pamplin, f or an effective sentenc e of life plus twenty-thre e years.

5 Jeffries was sentenced to three y ears for the attempted aggravated robbery of Anderson, eight years f or the aggravated robbery o f Dickson, thr ee years for the aggravated assault of To dd, three yea rs for the aggra vated assau lt of Pamplin, three years for the aggravated burglar y of Dickson’s apartment, three years for the aggravated burglary of Pamplin’ s apartmen t, fi fteen y ears for the espec

ially aggravat

ed kidnappi

ng of Dickson, and li

fe imprisonment f

or the first degree m urder of A nderson. A ll sentences we re ordere d to be serv ed conc urrently. -13- court abused its discr etion in determining the length of each sentence. 4 This issue ha s no m erit.

IV. DI SPARITY I N SENTENCES
Appellant

conte nds th at his sentence should b e reduced because thetrial court did not comply

with theSentencing Reform Act of 1989 when it sentenced him to a longer

term of imprisonment than co-defendant Jeff ries. 5 Appellant c ites the case of State v. Jenk in s , 733 S.W.2d 528 (Tenn. Cri m. App. 1987), as support for t his pro posit ion. While it is true that thi s Court did state that t he disparity in sent ences in that case should be el iminated, this was because t he disparity was unjusti fied. Id. at 533. Indeed, th is Court has st ated that unde r the 1989 A ct, “
[A] case-by -cas e approach to sentencing underlies t his Act as a fundamental policy. An indivi dua l crimin al is sentenced based on the nature of the offense and the total ity of the circ umstances in whic h it was committed, includ ing the defendant’s background. Any case-by-case approach will embody discreti on, since al l of the app ropria te factor s and circumstancesmust be weighed and considered as a whole for the disposit ion of each ca se. But, [i nequaliti es in sentences that are unr elated to a purpose of this chapter should be avoi ded. The implica tion is that, while more u niformity of s entenc es is one goal of the Act .
. . some justif ied disparity or inequality

in se ntences necessa rily resul ts from a case-by-case-14- method by which an offender receives t he sentence he deserv es but not a sentence greater than that . . . f or the offense committed.
State v. Fletcher , 805 S.W.2d 785, 788 (Tenn. Cr im. App. 1991) (quoti ng State
v. Mo ss , 727 S.W .2d 229 , 235–3 6 (Ten n. Crim. A pp. 198 6)). Thu s, not al l disparit ies in sentenci ng must be el iminated, only those that are unj ustifi ed require el iminati on.

In this case, the tri al court ga ve several reason s why it was sentencing Jeffri es and Appellant to differentterms of i mprisonment. The court stat ed that Appe llant’s case was “completely differen t” fr om t hat of J effries’ b ecau se in A ppe llant’s case, the State had shown that Appellant had a previous hi story of
c omm itti ng similar “crimes involving weapon s and dan ger.” Further, the co urt stated that while “Jef

fries i s extr eme ly remorsef ul and has done ever ything he
can to mak e up for w hat he d id,” “[Appell ant’s] whol e attit ude during thetrialwas one of ‘Mr. Jeffri es did every thing.’ ” The court als o stated t hat while it beli eved thatJeffri es was “ not a d ange r to soc iety,” Ap pellan t was “a n extre mely dangerous person , a nd forthat reason, he needed the appropr iate sentencing thathe g ot to protect societ y from him.”

The court also found that t he enhancement factors i n Jeffri es case were “more t han made up for by the fact thathe is so remorseful. ” We cannot say that t he trialcourt was wrong i n making these determinati ons. Indeed, “[t]he trial court, as the trier of fact at sentenci ng hearings, has the opport unity to observe the manner and the demeano r of the witnesses. Consequently, this Court gives great

weight to t he determinati ons made by the trial court concerning t he credibi lity of the witnesses; and this Cou rt will not interfere with t he trialcourt's findings of fact in this

regard unless

the evidence conta ined in the record clearly prep ondera tes aga inst these findings.”-15-

State v. Melvin , 91 3 S. W.2d 1 95, 202 (Ten n. C ri m. App. 19 95). In sho rt, we ho ld thatthe tria l court was j ustifi ed in sentenci ng Appellant an d Jeffri es to dif ferent terms o f imprison ment.

I n additio n to just ifiably imposing a l onger term of i mprisonment o n Appe llant, the tri al court was also just ified i n ordering t he consecutive sentencing of A pp ellant. Consecutive sentencing is governed by Tennessee Code Annotated § 4 0-35- 115. T he trial c ourt m ay ord er con secu tive sen tencin g if it finds that one or

more o f the requ ired statuto ry criteria exist. State v. Black , 924 S.W.2d 912, 91 7 (Ten n. Crim. A pp. 199 5). Furthe r, the court is required to determine whether

the consecutive sentences (1 ) are reasonably related to the severity of the off

enses committed; (2) serve to protect t he public f rom further criminal c onduc t by the offen der; and (3) are congruent with generalprincipl es of senten cing. State v. Wilkerson , 905 S .W .2d 93 3, 939 (Ten n. 199 5). In this case, the court found that t he statute was satisf ie d because Appellant was a dangerous offender whose b ehavior i ndicates l ittl e or no regard f or hum an lif e and he ha d no he sitati on in com mitting an offense w hen the risk to hum an life
was high. See Tenn. Code Ann. § 40-34-115 (4) (1997 ). The court b ased this decision on the fact tha t Appe llant ha d no h esitatio n in com mitting the crim es in this case after

he had parti cipated i n the previ ous armed ho me invasion whe re one of his acco mplices was sh ot. The c ourt also fo und tha t c onsecut ive
s entencing was reasona bly relatedto the offense s committe d because of the wa y Appellant

treated Ander

son be for

e he kil ledhim and beca use arme d hom e invas ion is “on e of the mos t horrible crimes tha t can be com mitted.” The c ourt also conclude d t hat consecutive sentences would be the best way to protect
s ociety. Fi nally, although t he trialcourt did not expressly state t hat it had-16-

considered whether consecutive sentences were congruent wit h the general principl es of sentencing, we conclude in our de novo revi ew that thi s requirement is satisfie d in this case . Thus , we ho ld that th e trial court did not abu se its discreti on when it i mposed consecutive se ntences on Appell ant when it had not done so with Jeffri es.

V. DEN IAL

OF APP ELLAN T’S P RE-TRI AL MOTI ON
Appellant

contends that

the tri al court erred whe n it deni ed his pre-t rial motion for a li st of the State’s wi tnesses for the sentenci ng hearing. We agree. In fact, t he Tennessee Supreme Court held i n State v. Buck , 670 S.W.2d 600, 606 (Tenn. 1984), t hat it was error for a tri al court t o overrul e the defenda nt’ s ob jecti on to the testimony of t wo witnesses dur ing the sentencing heari ng because the State had failed to list names of witnesses in response to the defen dant’s pre-pret rial motion for discov ery. Fu rther, th is Cou rt has p reviou sly stated that the S tate has a sta tutory duty to discl ose the ident ity of the witnes ses it intends to use. State v. Taylor , 661 S.W.2d 695, 699 (Tenn. Crim. App . 1983); State v. Ronald Davi d Lee , No. 03C01-9410 -CR-0039, 1995 WL 39 5840, at *7 n.2 (Tenn . Crim. App., N ashville, July 6, 1995).

Howeve r, the fac t that the trial cou rt erron eous ly denie d App ellant’s motion does not me an that he is autom atically entitled to relief. Indee d, th e State’s statutory duty to di sclose wit ness names is merely di rectory, not mand ato ry. State v. Harris , 839 S.W .2d 54, 68 (Tenn . 1992). “The determinat ion of whether to allow [a n und isclose d] witne ss is left t o the sound discr

etion of t he trialjudge.” State v. Kendricks , 947 S.W .2d 875 , 883 (T enn. C rim. App . 1997). “A defendant-17-

will be entitl ed to r elief for non disclosu re only if he o r she can demo nstrate prejudice, bad faith, or undu e advantag e.” Id. Appellant h as fail ed to showhow he was prejudi ced by the nondi sclosure of the names ofwitnesses to be called at the sen tencing h earing. In his brie f, Appe llant on ly challenges t he testi mony of the State’ s witnesses r egarding A ppellan t’s part icipat ion in anot her armed robbery fo r which he was not convicted. However, the r ecord reveal s that Appe llant’s trial counsel ably cross -examined these witness es. Further, there is nothing in the record that i ndicates t hat Appellant’s tri al counsel obj ected to t he testimony

of these witness es on non disclosure ground s. Appella nt has faile d to show what more he could or woul d have done if he had known the names of these witnessesbefore trial. W hat Ap pellan t really appea rs to be co ncerne d with is the substance of the w itness es’ tes timon y, not the fact tha t their names were not disclos ed be fore tria l. How ever, “[I]n this con text, it is notthe prejudice which resulted from the wit ne ss’ testimony but the prejudi ce which resul ted from defen dant’s lack of noticewhich is re levant to es tablish pre judice.” Id. In short, Appellant

has fail ed to show that any prejudi ce resulted for nondisclosur

e and he has not e ven alleged bad faith or undue advantage. We see no abuse of discretion by the trial judge in allowing these w itnesses to testify.

According ly, the j udgment of t he trial cour

t is AFFIRMED
.

____________________________________ JERRY L . SMI TH, J UDGE-18-

CONCUR:

___________________________________ DAVID H. WELLES , JUD GE

___________________________________ JOHN K. BYERS, SENIORJUDGE