FILED

December 29, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

AUGUST SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9711-CR-00439

)

Appellee, )

)

) SHELBY COUNTY

VS. )

) HON. CHRIS CRAFT

KIMBERLY WILLIAMS, ) JUDGE

)

Appellant. ) (Direct Appeal - First Degree M urder)

FOR THE APPELLANT: FOR THE APPELLEE:

EDWARD G. THOMPSON JOHN KNOX WALKUP

Assistant Public Defender Attorney General and Reporter

200 Jefferson, Suite 725

Memphis, TN 38103 MARVIN E. CLEMENTS, JR.

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243

WILLIAM L. GIBBONS

District Attorney General

JERRY R. KITCHEN

DANIEL S. BYER

District Attorney General

201 Poplar Street

Memphis, TN 38103

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
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OPINION

On February 27, 1997, a Shelby County jury convicted Appellant Kimberly

Williams of first degree murder, especially aggravated kidnapping, aggravated

robbery, attempted aggravated robbery, two counts of aggravated assault, and

two counts of aggravated burglary. Following a sentencing hearing on March 17

and 26, 1997, the trial court imposed a total sentence of life imprisonment plus

twenty-three years. Appellant challenges his sentence for each conviction as well

as his conviction for first degree murder, raising the following issues:

1) whether the evidence was sufficient to support the conviction for first

degree murder:

2) whether the trial court properly applied various enhancement factors to

Appellant’s sentences;

3) whether the trial court properly sentenced Appellant to a longer term of

imprisonment than his co-defendant; and

4) whether the trial court properly denied Appellant’s motion for a list of the

State’s witnesses for the sentencing hearing.

After a review of the record, we affirm the judgment of the trial court.

I. FACTS

On February 27, 1996, at approximately 1:00 a.m., Coleman Dickson, who

had been sleeping on the floor next to his daughter, was awakened by Rodney

Jeffries, who was pointing a black nine millimeter pistol at Dickson’s head. When

Jeffries asked “Where is the dope at,” Dickson responded that he did not have

any drugs in his apartment. Appellant then entered the apartment and tied up

Dickson and then blindfolded him. Dickson subsequently told the two men where
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his .357 handgun was hidden and Appellant then retrieved the gun and loaded

it. The two men also took $70, a gold chain, a ring, a pager, and some keys from

Dickson. 

When Dickson told them that he had previously purchased marijuana from

his neighbor, Appellant and Jeffries decided to enter the neighbor’s apartment.

The two men then cut the bonds on Dickson’s feet and took him across the hall,

despite his pleading to be left with his children and his statement that he was

afraid that if he went into the other apartment he would be shot by whoever was

in it. Appellant then kicked in the back door of the neighbor’s apartment and

Dickson, who was still blindfolded and had his hands tied behind his back, was

shoved in first. Dickson remained blindfolded during all of the subsequent events

in the second apartment. 

Gwendolin Pamplin was in bed with Artelia Anderson when she heard the

gunmen kick in the door to her apartment and yell “Police, that [sic] is a bust.”

Before they could go out the bedroom door, one of the gunmen brought Tabitha

Todd into the bedroom while holding a gun to her back. After the second

gunman entered the bedroom, they ordered everyone to lay on the floor and

began asking for drugs and money. After Anderson said that they didn’t have any

drugs or money, Appellant took Anderson out of the bedroom. 

As Appellant was taking Anderson out of the bedroom, Anderson broke

free and attempted to lock himself in the bathroom. Jeffries then left the bedroom

and joined Appellant. Appellant then kicked open the bathroom door and began

hitting Anderson in the head with the .357 handgun. Todd testified that during
1The record indicates that the trial court used the proper standard when it instructed the jury on first degree

murder.

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this time, one of the gunmen yelled “Put him in the bath—put this nigger in the

bathtub so we can shoot him” and “Look at my face, nigger, before I kill you.”

Anderson then begged the gunmen not to kill him. After a scuffle, one of the

gunmen said “Shoot that nigger,” and shots were fired. Jeffries testified that

Appellant shot twice and then Jeffries shot twice. 

An autopsy revealed that Anderson was shot once in the back and once

in the thigh, with both shots severing major arteries. The autopsy also revealed

that Anderson had sustained several injuries to his head that were consistent with

his being struck several times with a pistol. The cause of Anderson’s death was

multiple gunshot wounds. 

II. SUFFICIENCY OF THE EVIDENCE

Appellant contends that the evidence was insufficient to support his

conviction for first degree murder. Specifically, Appellant does not contend that

the evidence is insufficient to prove that he killed Anderson, Appellant merely

contends that the evidence was insufficient for a reasonable jury to find him guilty

of “intentional deliberate premeditated murder.” Initially, we note that Appellant’s

argument that there was no proof of deliberation is irrelevant. The crimes in this

case were committed after the 1995 amendment that eliminated deliberation as

an element of first degree murder. See Tenn. Code Ann. § 39-13-202(a)(1)

(Supp. 1998) (“First degree murder is: A premeditated and intentional killing of

another.”).1
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When an appellant challenges the sufficiency of the evidence, this Court

is obliged to review that challenge according to certain well-settled principles. A

verdict of guilty by the jury, approved by the trial judge, accredits the testimony

of the State's witnesses and resolves all conflicts in the testimony in favor of the

State. State v. Cazes, 875 S.W .2d 253, 259 (Tenn. 1994); State v. Harris, 839

S.W.2d 54, 75 (Tenn. 1992). Although an accused is originally cloaked with a

presumption of innocence, a jury verdict removes this presumption and replaces

it with one of guilt. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence,

on appeal, the burden of proof rests with Appellant to demonstrate the

insufficiency of the convicting evidence. Id. On appeal, “the [S]tate is entitled to

the strongest legitimate view of the evidence as well as all reasonable and

legitimate inferences that may be drawn therefrom.” Id. (citing State v. Cabbage,

571 S.W.2d 832, 835 (Tenn. 1978)). W here the sufficiency of the evidence is

contested on appeal, the relevant question for the reviewing court is whether any

rational trier of fact could have found the accused guilty of every element of the

offense beyond a reasonable doubt. Harris, 839 S.W .2d at 75; Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed.2d 560 (1979). In

conducting our evaluation of the convicting evidence, this Court is precluded from

reweighing or reconsidering the evidence. State v. Morgan, 929 S.W.2d 380, 383

(Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.

App. 1990). Moreover, this Court may not substitute its own inferences “for those

drawn by the trier of fact from circumstantial evidence.” Id. at 779. Finally, Rule

13(e) of the Tennessee Rules of Appellate Procedure provides, “findings of guilt

in criminal actions whether by the trial court or jury shall be set aside if the

evidence is insufficient to support the findings by the trier of fact beyond a

reasonable doubt.” See also Matthews, 805 S.W.2d at 780.
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Although premeditation requires that “the intent to kill must have been

formed prior to the act itself,” “[i]t is not necessary that the purpose to kill pre-exist

in the mind of the accused for any definite period of time.” Tenn. Code Ann. §

30-13-202(d) (Supp. 1998). The element of premeditation is a question for the

jury and may be inferred from the circumstances surrounding the killing. State

v. Gentry, 881 S.W .2d 1, 3 (Tenn. Crim. App. 1993). 

Looking at the facts in the present case in the light most favorable to the

state, as we are required to do, we conclude that the evidence is sufficient to

support the jury's finding of premeditation. Indeed, the evidence showed that

both Appellant and Jeffries were armed when they kicked in the door and entered

the apartment were the killing occurred. After Anderson broke free and

attempted to lock himself in the bathroom, Appellant kicked open the bathroom

door and began hitting Anderson in the head with the .357 handgun. Todd

testified that during this time, one of the gunmen yelled “Put him in the bath—put

this nigger in the bathtub so we can shoot him” and “Look at my face, nigger,

before I kill you.” Anderson then begged the gunmen not to kill him. Todd,

Pamplin, and Dickson all testified that they heard one of the gunmen give an

order to shoot Anderson before the shots were fired. Clearly, a reasonable jury

could infer from this sequence of events that Appellant had time to reflect on what

he was doing before he shot Anderson and thus, that his actions were intentional

and premeditated. This issue has no merit.
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III. APPELLANT’S SENTENCE

Appellant contends that the trial court made several errors in determining

his sentence. Specifically, Appellant contends that the trial court misapplied

several enhancement factors. Under Tennessee law, “[w]hen reviewing

sentencing issues . . . including the granting or denial of probation and the length

of sentence, the appellate court shall conduct a de novo review on the record of

such issues. Such review shall be conducted with a presumption that the

determinations made by the court from which the appeal is taken are correct.”

Tenn. Code Ann. § 40-35-401(d) (1997). “However, the presumption of

correctness which accompanies the trial court's action is conditioned upon the

affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d

166, 169 (Tenn. 1991). “The defendant has the burden of demonstrating that the

sentence is improper.” Id.

A portion of the Sentencing Reform Act of 1989, codified at Tennessee

Code Annotated § 40-35-210, established a number of specific procedures to be

followed in sentencing. This section mandates the court's consideration of the

following: 

(1) The evidence, if any, received at the trial and the sentencing hearing;

(2) [t]he presentence report; (3) [t]he principles of sentencing and

arguments as to sentencing alternatives; (4) [t]he nature and

characteristics of the criminal conduct involved; (5) [e]vidence and

information offered by the parties on the enhancement and mitigating

factors in §§ 40-35-113 and 40-35-114; and (6 ) [a]ny statement the

defendant wishes to make in his own behalf about sentencing. 
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Tenn. Code Ann. § 40-35-210 (1997). In addition, this section provides that the

minimum sentence within the range is the presumptive sentence. If there are

enhancing and mitigating factors, the court must start at the minimum sentence

in the range and enhance the sentence as appropriate for the enhancement

factors and then reduce the sentence within the range as appropriate for the

mitigating factors. If there are no mitigating factors, the court may set the

sentence above the minimum in that range but still within the range. The weight

to be given each factor is left to the discretion of the trial judge. State v. Shelton,

854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Act further provides that

“[w]henever the court imposes a sentence, it shall place on the record either

orally or in writing, what enhancement or mitigating factors it found, if any, as well

as findings of fact as required by § 40-35-209.” Tenn. Code Ann. § 40-35-210(f)

(1997). Because of the importance of enhancing and mitigating factors under the

sentencing guidelines, even the absence of these factors must be recorded if

none are found. Tenn. Code Ann. § 40-35-210 (1997) comment. These findings

by the trial judge must be recorded in order to allow an adequate review on

appeal. In addition, “[w]hen imposing sentences for multiple offenses, the trial

court must make separate findings as to which enhancement and mitigating

factors apply to which convictions.” State v. Christopher Blockett, No. 02C01-

9509-CC-00258, 1996 W L 417659, at *4 (Tenn. Crim. App., Jackson, July 26,

1996) (citing State v. Chrisman, 885 S.W.2d 834, 839 (Tenn. Crim. App. 1994).

Because the record indicates that the trial court considered the sentencing

principles and all relevant facts and circumstances, our review of Appellants’

sentences is de novo with a presumption of correctness.
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 evidence that he was involved in the previous robbery. However, the record indicates that

Clifton Jackson testified that he was with Appellant and another man when they went to a residence, kicked down the

door, identified themselves as police, and entered the residence for the purpose of stealing drugs and money. At

some point, Jackson was shot. Foxy Branch, who was living at that apartment at the time, testified that three 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 Police Department testified that Appellant had admitted taking two men to this location

on the night in question. This is clearly enough proof for the trial court to conclude by a preponderance of the

evidence that Appe llant was involve d in this previo us criminal act.

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In determining the sentence for each of Appellant’s convictions, the trial

court found that the only mitigating factor that applied was the fact that Appellant

assisted the authorities in locating Jeffries. See Tenn. Code Ann. § 40-35-113(9)

(1997). The court gave little weight to this factor because Appellant did this only

after he had been arrested and he essentially tried to blame everything on

Jeffries. We agree that no evidence was presented to support a finding that any

other mitigating factors were present.

The trial court also found that at least two of the enhancement factors listed

in Tennessee Code Annotated § 40-35-114 applied to each of Appellant’s

convictions. First, the court found that factor (1) applied because Appellant had

a previous history of criminal convictions or behavior. Appellant argues that the

trial court erred when it applied this factor because it found by a preponderance

of the evidence that Appellant had previously participated in a similar home

invasion robbery.2

 He argues that the trial court’s reliance on this criminal

episode violates his constitutional rights because he had not yet been convicted

of the offense in a jury trial. This argument has no merit. The Tennessee

Supreme Court has held that a trial court may utilize criminal behavior shown by

preponderance of the evidence to enhance sentence, without violating due

process rights under the federal or state constitutions. State v. Carico, 968

S.W.2d 280, 287 (Tenn. 1998). In addition, Appellant had prior convictions for
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driving on a suspended license and simple assault. Thus, the trial court was

clearly correct in applying factor (1) to the sentences for all of Appellant’s

convictions.

The trial court also applied factor (8), that the defendant has a previous

history of unwillingness to comply with conditions of release into the community,

to all of Appellant’s convictions. See Tenn. Code Ann. § 40-35-114(8) (1997).

However, the court did not give this factor much weight because it involved a

misdemeanor sentence. Appellant does not challenge the application of this

factor and we agree that the trial court was correct in applying it.

The trial court found that enhancement factor (2) applied to the convictions

for the aggravated robbery and especially aggravated kidnapping of Dickson

because Appellant was the leader in those two offenses. See Tenn. Code Ann.

§ 40-35-114(2) (1997). The court based its decision on the fact that Appellant

had stated in his pre-trial confession that he was the one who tied Dickson up,

took his necklace, and intended to take him across the hall to the other robbery.

The court also based its decision on other evidence which established that

Appellant was the one who took Dickson’s gun. Appellant argues that the fact

that Jeffries was the one who drove the car to the apartment and was the one

who entered Dickson’s apartment first shows that Appellant was not the leader.

We disagree. This Court has stated that “enhancement for being a leader in the

commission of an offense does not require that the defendant be the sole leader

but only that he be ‘a’ leader.” State v. Hicks, 868 S.W.2d 729, 731 (Tenn. Crim.

App. 1993) Further, “[b]oth of two criminal actors may be ‘a leader in the

commission of an offense.’” Id. Indeed, this Court found in Hicks that while the
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co-defendant led the preparation, the defendant clearly led the perpetration and

thus, both were leaders in the commission of aggravated robbery. Id. Thus,

even if Jeffries led the preparation, as Appellant apparently claims, the trial court

could still conclude that Appellant was the leader in the perpetration of the

offenses against Dickson. Because we must review the trial court’s

determination that Appellant was a leader in these two offenses with a

presumption of correctness, we conclude that the trial court was correct in

applying factor (2).

The trial court found that enhancement factor (9), that Appellant possessed

a firearm during the commission of an offense, only applied to the aggravated

burglary of Pamplin’s apartment. See Tenn. Code Ann. § 40-35-114(9) (1997).

Appellant does not challenge the application of this factor and we agree that it

was correctly applied because use of a firearm is not an element of the offense

of aggravated burglary. See State v. Baker, 956 S.W.2d 8, 17 (Tenn. Crim. App.

1997).

The trial court found that enhancement factors (10) and (16), that Appellant

had no hesitation in committing a crime when the risk to human life was high and

that the crime was committed under circumstances under which the potential for

bodily injury to the victim was great, applied only to the especially aggravated

kidnapping of Dickson. See Tenn. Code Ann. § 40-35-114(10), (16) (1997). It

is true that generally, a court could not apply these factors to enhance a sentence

for especially aggravated kidnapping conviction because a high risk of death or

bodily injury is inherent in the offense. See State v. Claybrooks, 910 S.W.2d 868,

872 (Tenn. Crim. App. 1994) (“Although not a designated element of the offense,
3Even if the facts had not demonstrated a culpability distinct from and appreciably greater than that incident

to the crime, the trial court could still have applied theses factors because “[b]oth factors may be applied in situations

where individuals other than the victim 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 injured during the

kidnapp ing of her father a nd subseq uent shooting in the next do or apartment.

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any enhancement factor which is inherent in the offense itself may not be used

to increase the defendant’s sentence.”). However, the Tennessee Supreme

Court has stated that enhancement factors which are inherent in the nature of the

offense may be applied to the sentence if they “demonstrate a culpability distinct

from and appreciably greater that incident to the crime.” State v. Poole, 645

S.W.2d 93, 98 (Tenn. 1997). In this case, the trial court expressly stated that it

was not relying on Appellant’s use of a gun when it found that these factors

applied. The court stated that it found that these factors applied because

Appellant and Jeffries had taken Dickson out of his apartment and thrown him

into the second apartment knowing that there might be gunfire. We agree. By

forcing Dickson into the second apartment ahead of themselves, knowing that

there was a great possibility that he would be shot, Appellant and Jeffries

demonstrated “culpability distinct from and appreciably greater than” that inherent

in the crime itself. Dickson had already been subjected to risk of death or bodily

harm when he was tied up at gunpoint and taken out of his apartment into the

hall. By throwing him into the second apartment ahead of themselves and

leaving him partially tied up while shots were being fired, Appellant and Jeffries

greatly increased this risk beyond what was necessary to complete the especially

aggravated kidnapping. The trial court correctly applied factors (10) and (16) to

the sentence for this offense.3

In short, Appellant has not met his burden of showing that the trial court

misapplied any enhancement factors. In addition, we cannot say that the trial
4The trial court imposed a sentence of twenty-three years for the especially aggravated kidnapping of

Dickson , ten years for the a ggravated robbery o f Dickson, a nd four years for the aggra vated burg lary of Dickso n’s

apartment, with these three sentences to run concurrently. The trial court imposed a sentence of life imprisonment

for the first degree murder of Anderson, four years for the attempted aggravated robbery of Anderson, four years for

the aggravated assault of Todd, four years for the aggravated assault of Pamplin, and five years for the aggravated

burglary of Pamplin’s apartment, with these five sentences to run concurrently. The court then ordered the sentences

for the crimes against Dickson to run consecutive to the crimes against Anderson, Todd, and Pamplin, for an

effective sentenc e of life plus twenty-thre e years. 

5

Jeffries was sentenced to three years for the attempted aggravated robbery of Anderson, eight years for 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 burglary of Dickson’s apartment, three years for the aggravated burglary

of Pamplin’s apartment, fifteen years for the especially aggravated kidnapping of Dickson, and life imprisonment for

the first degree m urder of A nderson. A ll sentences we re ordere d to be serv ed conc urrently.

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court abused its discretion in determining the length of each sentence.4 This

issue has no merit.

IV. DISPARITY IN SENTENCES

Appellant contends that his sentence should be reduced because the trial

court did not comply with the Sentencing Reform Act of 1989 when it sentenced

him to a longer term of imprisonment than co-defendant Jeffries.5 Appellant cites

the case of State v. Jenkins, 733 S.W.2d 528 (Tenn. Crim. App. 1987), as

support for this proposition. While it is true that this Court did state that the

disparity in sentences in that case should be eliminated, this was because the

disparity was unjustified. Id. at 533. Indeed, this Court has stated that under the

1989 Act, “

[A] case-by-case approach to sentencing underlies this Act as a

fundamental policy. An individual criminal is sentenced based on the

nature of the offense and the totality of the circumstances in which it was

committed, including the defendant’s background. Any case-by-case

approach will embody discretion, since all of the appropriate factors and

circumstances must be weighed and considered as a whole for the

disposition of each case. But, [inequalities in sentences that are unrelated

to a purpose of this chapter should be avoided. The implication is that,

while more uniformity of sentences is one goal of the Act . . . some justified

disparity or inequality in sentences necessarily results from a case-by-case
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method by which an offender receives the sentence he deserves but not

a sentence greater than that . . . for the offense committed.

State v. Fletcher, 805 S.W.2d 785, 788 (Tenn. Crim. App. 1991) (quoting State

v. Moss, 727 S.W .2d 229, 235–36 (Tenn. Crim. App. 1986)). Thus, not all

disparities in sentencing must be eliminated, only those that are unjustified

require elimination.

In this case, the trial court gave several reasons why it was sentencing

Jeffries and Appellant to different terms of imprisonment. The court stated that

Appellant’s case was “completely different” from that of Jeffries’ because in

Appellant’s case, the State had shown that Appellant had a previous history of

committing similar “crimes involving weapons and danger.” Further, the court

stated that while “Jeffries is extremely remorseful and has done everything he

can to make up for what he did,” “[Appellant’s] whole attitude during the trial was

one of ‘Mr. Jeffries did everything.’” The court also stated that while it believed

that Jeffries was “not a danger to society,” Appellant was “an extremely

dangerous person, and for that reason, he needed the appropriate sentencing

that he got to protect society from him.” The court also found that the

enhancement factors in Jeffries case were “more than made up for by the fact

that he is so remorseful.” We cannot say that the trial court was wrong in making

these determinations. Indeed, “[t]he trial court, as the trier of fact at sentencing

hearings, has the opportunity to observe the manner and the demeanor of the

witnesses. Consequently, this Court gives great weight to the determinations

made by the trial court concerning the credibility of the witnesses; and this Court

will not interfere with the trial court's findings of fact in this regard unless the

evidence contained in the record clearly preponderates against these findings.”
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State v. Melvin, 913 S.W.2d 195, 202 (Tenn. Crim. App. 1995). In short, we hold

that the trial court was justified in sentencing Appellant and Jeffries to different

terms of imprisonment.

In addition to justifiably imposing a longer term of imprisonment on

Appellant, the trial court was also justified in ordering the consecutive sentencing

of Appellant. Consecutive sentencing is governed by Tennessee Code

Annotated § 40-35-115. The trial court may order consecutive sentencing if it

finds that one or more of the required statutory criteria exist. State v. Black, 924

S.W.2d 912, 917 (Tenn. Crim. App. 1995). Further, the court is required to

determine whether the consecutive sentences (1) are reasonably related to the

severity of the offenses committed; (2) serve to protect the public from further

criminal conduct by the offender; and (3) are congruent with general principles

of sentencing. State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995). In this

case, the court found that the statute was satisfied because Appellant was a

dangerous offender whose behavior indicates little or no regard for human life

and he had no hesitation in com mitting an offense when the risk to human life

was high. See Tenn. Code Ann. § 40-34-115(4) (1997). The court based this

decision on the fact that Appellant had no hesitation in committing the crimes in

this case after he had participated in the previous armed home invasion where

one of his accomplices was shot. The court also found that consecutive

sentencing was reasonably related to the offenses committed because of the way

Appellant treated Anderson before he killed him and because armed home

invasion is “one of the most horrible crimes that can be com mitted.” The court

also concluded that consecutive sentences would be the best way to protect

society. Finally, although the trial court did not expressly state that it had
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considered whether consecutive sentences were congruent with the general

principles of sentencing, we conclude in our de novo review that this requirement

is satisfied in this case. Thus, we hold that the trial court did not abuse its

discretion when it imposed consecutive sentences on Appellant when it had not

done so with Jeffries.

 

V. DENIAL OF APPELLANT’S PRE-TRIAL MOTION

Appellant contends that the trial court erred when it denied his pre-trial

motion for a list of the State’s witnesses for the sentencing hearing. We agree.

In fact, the Tennessee Supreme Court held in State v. Buck, 670 S.W.2d 600,

606 (Tenn. 1984), that it was error for a trial court to overrule the defendant’s

objection to the testimony of two witnesses during the sentencing hearing

because the State had failed to list names of witnesses in response to the

defendant’s pre-pretrial motion for discovery. Further, this Court has previously

stated that the State has a statutory duty to disclose the identity of the witnesses

it intends to use. State v. Taylor, 661 S.W.2d 695, 699 (Tenn. Crim. App. 1983);

State v. Ronald David Lee, No. 03C01-9410-CR-0039, 1995 WL 395840, at *7

n.2 (Tenn. Crim. App., Nashville, July 6, 1995).

However, the fact that the trial court erroneously denied Appellant’s motion

does not mean that he is automatically entitled to relief. Indeed, the State’s

statutory duty to disclose witness names is merely directory, not mandatory.

State v. Harris, 839 S.W .2d 54, 68 (Tenn. 1992). “The determination of whether

to allow [an undisclosed] witness is left to the sound discretion of the trial judge.”

State v. Kendricks, 947 S.W .2d 875, 883 (Tenn. Crim. App. 1997). “A defendant
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will be entitled to relief for nondisclosure only if he or she can demonstrate

prejudice, bad faith, or undue advantage.” Id. Appellant has failed to show how

he was prejudiced by the nondisclosure of the names of witnesses to be called

at the sentencing hearing. In his brief, Appellant only challenges the testimony

of the State’s witnesses regarding Appellant’s participation in another armed

robbery for which he was not convicted. However, the record reveals that

Appellant’s trial counsel ably cross-examined these witnesses. Further, there is

nothing in the record that indicates that Appellant’s trial counsel objected to the

testimony of these witnesses on nondisclosure grounds. Appellant has failed to

show what more he could or would have done if he had known the names of

these witnesses before trial. What Appellant really appears to be concerned with

is the substance of the witnesses’ testimony, not the fact that their names were

not disclosed before trial. However, “[I]n this context, it is not the prejudice which

resulted from the witness’ testimony but the prejudice which resulted from

defendant’s lack of notice which is relevant to establish prejudice.” Id. In short,

Appellant has failed to show that any prejudice resulted for nondisclosure and he

has not even alleged bad faith or undue advantage. We see no abuse of

discretion by the trial judge in allowing these witnesses to testify.

Accordingly, the judgment of the trial court is AFFIRMED.

____________________________________

JERRY L. SMITH, JUDGE
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CONCUR:

___________________________________

DAVID H. WELLES, JUDGE

___________________________________

JOHN K. BYERS, SENIOR JUDGE