FILED

October 21, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

AUGUST SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9707-CR-00259

)

Appellee, )

 ) DAVIDSON COUNTY

V. ) 

)

) HON. SETH NORMAN, JUDGE

HAROLD WAYNE SHAW, ) 

) (SECOND DEGREE MURDER;

Appellant. ) AGGRAVATED KIDNAPPING)

FOR THE APPELLANT: FOR THE APPELLEE:

KARL F. DEAN JOHN KNOX WALKUP 

Metro Public Defender Attorney General & Reporter

WENDY S. TUCKER DARYL J. BRAND

Assistant Public Defender Assistant Attorney General

(At Trial) 2nd Floor, Cordell Hull Building

425 Fifth Avenue North 

JEFFREY A. DeVASHER Nashville, TN 37243

Assistant Public Defender

1202 Stahlman Building VICTOR S. JOHNSON, III

211 Union Street District Attorney General

Nashville, TN 37201

(On Appeal) KIMBERLY HAAS

Assistant District Attorney General

Washington Square 

222 Second Avenue North, Suite 500

Nashville, TN 37201-1649

OPINION FILED ________________________

CONVICTIONS AFFIRMED; SENTENCES REVERSED

AND CASE REMANDED FOR NEW SENTENCING HEARING 

THOMAS T. WOODALL, JUDGE
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OPINION

The Defendant, Harold Wayne Shaw, appeals as of right his convictions for

second degree murder and aggravated kidnapping in the Davidson County Criminal

Court. The trial court sentenced Defendant as a Range II Multiple Offender to thirtyfive (35) years on the second degree murder conviction and eighteen (18) years on

the aggravated kidnapping conviction. The sentences were ordered to be served

consecutively to one another as well as to a prior eight (8) year sentence for a felony

drug conviction. Defendant raises the following six issues in this appeal:

(1) Whether sufficient evidence supported the convictions

for second degree murder and aggravated kidnapping;

(2) Whether the trial court erred in disallowing questioning

of a victim regarding his claim for victim’s compensation;

(3) Whether the trial court erred in admitting testimony

regarding Defendant’s prior incarceration;

(4) Whether the trial court erred in refusing to declare a

mistrial when the State asked a witness if Defendant had

been on the Tennessee Bureau of Investigation’s “Most

Wanted List”;

(5) Whether the trial court committed plain error in failing

to instruct the jury regarding facilitation of second degree

murder as a lesser included offense of premeditated first

degree murder; and

(6) Whether the trial court committed various sentencing

errors.

After a careful review of the record, we affirm Defendant’s convictions, but remand

the case to the trial court for resentencing.
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Summary of the Facts

On December 29, 1993, at approximately 10:00 p.m., police officers and an

ambulance were dispatched to G-Man’s Market on Brick Church Pike in Nashville

in response to a call that a shooting had occurred. Upon arrival, they found 24-yearold Corey Barbee on the floor, bleeding from several gunshot wounds. Barbee told

them that “some dudes got Garland [Brinkley].” The victim was asked if the same

men who had taken Garland had shot him, and Barbee responded “yes.” He told

them that three men in masks had entered the store, fired several shots, and then

taken away the owner of the market (Garland Brinkley).

Barbee was taken to Vanderbilt University Hospital, where over the next few

days he underwent several surgeries. Fourteen days later, on January 12, 1994,

Corey Barbee died of complications from the gunshot wounds to his chest and

abdomen.

Garland Brinkley, whose nickname is “G-Man,” was the owner of G-Man’s

Market. About six months earlier, Brinkley was involved in some drug transactions,

specifically cocaine, with a man he knew as Harold Moore, but whose name was

actually Harold Shaw, the Defendant. Brinkley testified that he and Defendant

agreed that Defendant would “front” the cocaine to Brinkley to sell, and then Brinkley

would later pay Defendant. The cocaine was actually given to Brinkley by a man

named Eric, who Brinkley testified was a “go-between.” Brinkley testified that in two

such transactions, he gave the drugs to someone else to sell. The proceeds from

the drug deals were apparently never given to Brinkley so he in turn never returned

any of the proceeds to Defendant. It is not clear from the record as to the total
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amount and value of the cocaine in the transactions. At the preliminary hearing,

Brinkley said he owed $3,800 for three ounces on the first transaction and $9,000

for 12 ounces on the second deal. However, he told investigators and testified at

trial that the deals involved a quarter kilo valued at $27,000. 

Brinkley testified that on the morning of December 29, 1993, Defendant

telephoned him at the store and demanded that Brinkley turn over his house and his

Chevrolet Blazer as payment for the cocaine debt. Defendant claimed that Brinkley

owed him $27,000 plus a $5,000 late fee, for a total of $32,000. Later that morning,

Defendant came to G-Man’s Market and again demanded payment from Brinkley.

However, Brinkley refused and Defendant left.

Brinkley testified that later that evening, Corey Barbee, known as “Bruno,” was

at the store with Brinkley. Barbee and Brinkley had been friends for several years.

Barbee would stop by the market and watch television and would sometimes help

Brinkley clean the store and close it at night. As they were closing the store on the

night of December 29, 1993, the door suddenly flew open and a masked man

stepped in and shot Barbee five or six times. Brinkley described the shooter as a

black male, about six feet tall and 175 pounds, with a hood over his head in addition

to the mask. He was armed with what Brinkley described as a nine millimeter Glock

or Beretta. The shooter was followed into the market by two more men. The second

man had no mask on his face, but only a hood and sunglasses. Brinkley recognized

this man as Harold Moore (Shaw), the Defendant. Defendant was armed with a

pistol-grip shotgun. The third man, who was also masked, was shorter and

chubbier. According to Brinkley, all three men were black. 
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After Barbee was shot, Barbee asked to use the phone to call an ambulance.

He then managed to get to the phone and call 911 for help. Brinkley testified that

the Defendant then ordered Brinkley to leave the market with them. Brinkley said

that he initially refused and that the man who had shot Barbee then “shot me and

grazed my leg.” He testified that the bullet did not enter his leg, but that he has a

scar from being grazed. However, there is apparently no medical record of such a

graze wound. Brinkley eventually got into the 1976 or 1977 blue Chevrolet Impala

with the three men. Barbee was left at the market.

This same evening, Clara Coleman was helping in some remodeling work on

a business located in the same building as G-Man’s Market. She heard gunshots

and looked out in time to see a light blue older model car speed away from the

market. She testified that she saw three or four black m en in the car. Ms. Coleman

did not know Brinkley.

As the car drove off, Defendant told the shooter to put duct tape over

Brinkley’s face and to bind his hands together with the tape also. Defendant held the

shooter’s gun while he taped up Brinkley. According to Brinkley, the car ride lasted

about 15 to 25 minutes. Defendant kept saying to Brinkley, “you think I’m playing

with you?” The car eventually came to a stop and the men pulled Brinkley out and

took him into a garage or shed. They bound his feet with duct tape. There the three

men proceeded to beat Brinkley. Defendant pistol-whipped him. Brinkley testified

that he believes he passed out two or three times during the beatings which he

estimated lasted “for hours.” Defendant then forced Brinkley to make several cellular

phone calls in an effort to have Brinkley’s wife bring the deed to their house. Calls
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were made to Brinkley’s mother, aunt, brother-in-law, and a cousin, but they could

not locate Brinkley’s wife. 

Brinkley said that three or four more black men later joined the group and

participated in the beatings. Brinkley still had tape over his eyes, but he said he

could tell the men were black by their voices. The men took his wallet which had

about $300 cash in it. They cut his pants and inflicted a four to five inch laceration

on his left thigh. According to Brinkley, his attackers poured some liquid on his

wound and attempted several times to light it with a match, although doctors were

unable to find any evidence of burns. However, a trauma surgeon who treated

Brinkley at Vanderbilt testified that lacerations often produce a burning sensation,

particularly if liquid is poured on them. 

The beatings continued until someone said “kill him.” At this point, most of the

men stepped outside to confer, but when they returned Brinkley was told that he was

“lucky.” They then cut the tape from his ankles, threw him back in the car, and drove

to Whites Creek Pike. The car slowed down near the United Parcel Service location

and Brinkley was thrown out. He testified that as he rolled down an embankment,

he heard two or three shots fired. The car then took off. 

Brinkley was able to pull the tape from his eyes enough to see, and he then

walked to the UPS security guard station. One guard called 911 while the other cut

the tape from Brinkley’s face and wrists. An ambulance took Brinkley to Vanderbilt

Hospital where he was treated for a fracture to his upper jaw, a large cut on the back

of his scalp, a cut on his left thigh, injuries to his mouth, and rib pain suggesting a

fractured rib. Brinkley was discharged from Vanderbilt on December 31, 1993.
-7-

Investigators found six nine millimeter shell casings, two outside the market

and four inside. Brinkley acknowledged that the fully-loaded .357 revolver found on

the floor of the market belonged to Barbee, who usually carried it in his coat pocket.

Also, a fully-loaded nine millimeter semiautomatic pistol was found under the cash

register. Brinkley identified that gun as belonging to him. Officer Brad Corcoran

testified that neither of these weapons appeared to have been fired. The only

fingerprints identified at the scene were those of Brinkley and Barbee.

On January 12, 1994, the day Corey Barbee died, homicide detectives Johnny

Lawrence and Mike Roland interviewed Brinkley. They showed Brinkley a

photographic array from which Brinkley identified Defendant as the leader of the

group that kidnapped him and killed Barbee.

The day after Brinkley was released from the hospital, Defendant called him

and reiterated that he wanted the deed to Brinkley’s house. When Brinkley asked

why Defendant allowed Barbee to be killed, Defendant replied, “I don’t give a f---

about him.” Defendant continued to call Brinkley every day and sometimes several

times a day. Brinkley finally called the police because of the harassing calls from

Defendant. Detectives went to Brinkley’s house and recorded two incoming calls

from Defendant. In those calls, Brinkley and Defendant argued about the shooting

of Barbee. However, Detective Clifford Douglas admitted that police made no

attempt to trace the telephone calls, nor was any voice analysis done in an attempt

to determine whether the calls were actually made by Defendant. Defendant

continued to call Brinkley until Brinkley was incarcerated for food stamp fraud.
-8-

Brinkley acknowledged that after the incident, he was admitted to Tennessee

Christian Medical Center where he claimed he remained for about a month for

psychological problems. However, Brinkley admitted on cross-examination that he

was only at the m ental health facility for twelve days. Brinkley told a doctor at the

center that he had been assaulted and kidnapped for no reason by six men.

Although documented by the doctor, Brinkely denied at trial telling the doctor that he

heard voices in his head or that he had fears that his friends would turn on him.

There were many inconsistencies in Brinkley’s testimony. For instance,

Brinkley told detectives and he testified at the preliminary hearing that he was shot,

not grazed in the leg as he later claimed. He initially told police that his ankles were

taped while he was in the car and that a hood was placed over his head. However,

at trial he testified that only his hands were bound and that tape, not a hood, was

placed over his eyes. He acknowledged falsely testifying at the preliminary hearing

that his nose was broken, and that both his upper and lower jaws were broken. He

testified that during the beatings that he called his cousin, Becky Bonds, and told her

to go to the G-Man’s Market and try and find his wife. However, Ms. Bonds testified

that Brinkley called her and told her to go to the market in order to put the telephone

back on the hook. Brinkley originally told police that he was assaulted due to a

dispute about “running numbers,” not drugs, at his market. He testified at the

preliminary hearing that he was hospitalized for four or five days. He said that if

hospital records indicated that he spent only one night in the hospital, “I know that

would be a lie.” Brinkley testified at trial that he first met Defendant when both

attended Maplewood High School in 1984 or 1985. However, he admitted testifying

at the preliminary hearing that he met Defendant two years before the shooting at

his auto detail shop. There were also numerous inconsistencies and discrepancies
-9-

in his testimony pertaining to the drug transactions, such as when exactly the

transactions occurred and the amount of drugs and money actually involved. 

I. Sufficiency of the Evidence

Defendant raises two arguments that the evidence was insufficient to convict

him of second degree murder and aggravated kidnapping. First, he contends that

the State failed to prove his identity as perpetrator of the crimes. Second, he argues

that the evidence was insufficient to prove that he was criminally responsible under

Tenn. Code Ann. § 39-11-402 for the conduct of another person in murdering Corey

Barbee.

When an accused challenges the sufficiency of the convicting evidence, the

standard is whether, after reviewing the evidence in the light most favorable to the

prosection, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979).

This standard is applicable to findings of guilt predicated upon direct evidence,

circumstantial evidence or a combination of direct and circumstantial evidence.

State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). On appeal, the

State is entitled to the strongest legitimate view of the evidence and all inferences

therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Because a

verdict of guilt removes the presumption of innocence and replaces it with a

presumption of guilt, the accused has the burden in this court of illustrating why the

evidence is insufficient to support the verdict returned by the trier of fact. State v.

Tuggle, 639 S.W .2d 913, 914 (Tenn. 1982); State v. Grace, 493 S.W.2d 474, 476

(Tenn. 1973).
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Questions concerning the credibility of the witnesses, the weight and value to

be given the evidence, as well as all factual issues raised by the evidence, are

resolved by the trier of fact, not this court. State v. Pappas, 754 S.W.2d 620, 623

(Tenn. Crim. App.), perm. to appeal denied, id. (Tenn. 1987). Nor may this court

reweigh or reevaluate the evidence. Cabbage, 571 S.W.2d at 835. A jury verdict

approved by the trial judge accredits the State’s witnesses and resolves all conflicts

in favor of the State. Grace, 493 S.W .2d at 476. 

Moreover, a criminal offense may be established exclusively by circumstantial

evidence. Duchac v. State, 505 S.W .2d 237 (Tenn. 1973); State v. Jones, 901

S.W.2d 393, 396 (Tenn. Crim. App. 1995); State v. Lequire, 634 S.W.2d 608 (Tenn.

Crim. App. 1981). However, before an accused may be convicted of a criminal

offense based upon circumstantial evidence alone, the facts and circumstances

"must be so strong and cogent as to exclude beyond a reasonable doubt every other

reasonable hypothesis save guilt of the defendant." State v. Crawford, 225 Tenn.

478, 470 S.W .2d 610 (1971); Jones, 901 S.W.2d at 396. In other words, "[a] web of

guilt must be woven around the defendant from which he cannot escape and from

which facts and circumstances the jury could draw no other reasonable inference

save the guilt of the defendant beyond a reasonable doubt." Crawford, 470 S.W.2d

at 613; State v. McAfee, 737 S.W .2d 304, 306 (Tenn. Crim. App. 1987). 

A. Identity

Garland Brinkley identified Defendant as one of three men who entered his

store on the night of December 29, 1993, and kidnapped him after one of the men

shot Corey Barbee. Two weeks after the shooting, homicide detectives interviewed

Brinkley. The detectives showed him a photographic array from which Brinkley
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identified Defendant as the leader of that group. Police subsequently tape-recorded

two phone calls from Defendant to Brinkley, in which the two angrily discussed the

events of December 29, 1993, and the shooting of Barbee. Brinkley identified the

voice at the other end of those calls as that of Defendant. At trial, Brinkley identified

Defendant in the courtroom as the person who was present when Barbee was shot

and when he was kidnapped.

Defendant asserts that Brinkley’s identification testimony was suspect

because of inconsistencies in other areas of his testimony. However, Brinkley’s

identification of Defendant as the perpetrator was never contradicted by any other

evidence or by any inconsistent identifications. Again, he identified Defendant in the

photo lineup as the perpetrator as well as the in-court identification at trial. He also

identified Defendant’s voice on the taped telephone calls. Despite defense counsel’s

attempt to impeach Brinkley, the jury weighed his testimony and found Brinkley’s

identification of Defendant sufficient to convict. 

It is well-established that the identification of a defendant as the perpetrator

of the offense for which he is on trial is a question of fact for determination by the

jury. State v. Strickland, 885 S.W .2d 85, 87 (Tenn. Crim. App. 1993), perm to

appeal denied (Tenn. 1994). Further, the identification testimony of a victim is, by

itself, sufficient to support a conviction. Id. Garland Brinkley’s identification of

Defendant as the perpetrator is thus sufficient to support the convictions in this case.

This issue is without merit.

B. Criminal Responsibility
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Defendant argues that he was improperly found criminally responsible for the

conduct of his masked accomplice who shot and killed Corey Barbee. He argues

that there was no proof that he shared any common intent with that assailant or that

he acted with intent to promote or assist in the shooting.

In order to convict Defendant under the theory of criminal responsibility, the

State was required to prove beyond a reasonable doubt that Defendant solicited,

directed, aided or attempted to aid another person to commit the offenses while

“acting with the intent to promote or assist the commission of the offense[s], or to

benefit in the proceeds or results of the offense[s]. See Tenn. Code Ann. § 39-11-

402(2). This code provision is the codification of the “natural and probable

consequences” rule from the comm on law pertaining to aiders and abettors. See

Tenn. Code Ann. § 39-11-402 Sentencing Commission Comm ents; State v. Carson,

950 S.W.2d 951, 953 (Tenn. 1997). Thus, under Tenn. Code Ann. §§ 39-11-401

and 402, an individual in a multiple offender felony is responsible for the criminal

acts of any of the other participants if the individual shares in the intent to commit the

primary felony and the criminal acts committed by the other participants are the

natural and probable consequence of the commission of the primary felony. Id. at

953-54.

The evidence in this case shows that Defendant and the unknown shooter

were united in the common purpose of committing the kidnapping of Garland

Brinkley. Defendant had been involved in drug deals with Brinkley. On the morning

of the shooting, Defendant telephoned Brinkley to demand payment of a drug debt

and later went down to G-Man’s Market for the same purpose. Later that same day,

Defendant and two unidentified masked men together burst into the market at
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closing time. Defendant and at least one of the other men were armed. After the

first masked man shot Barbee, the three perpetrators abducted Brinkley, with

Defendant giving the orders the entire time. As the car drove off, Defendant told the

shooter to put duct tape over Brinkely’s eyes and to bind his hands. Defendant held

the shooter’s gun while the tape was being put on Brinkley. All three men were

clearly united in the com mon purpose of kidnapping Brinkley.

The murder of Corey Barbee occurred as a natural and probable consequence

of the kidnapping. As the men entered the market that evening, the shooting started

almost immediately. The police found Barbee’s own firearm fully loaded and

apparently unfired near his body. The shooting was a natural and probable

consequence of the action by the kidnappers.

The evidence, together with the reasonable inferences from that evidence,

clearly demonstrate the Defendant “knowingly, voluntarily, and with common intent

unite[d] with the principal offenders in the commission of the crime” and is, therefore

liable for their actions. Carson, 950 S.W.2d at 954 (quoting State v. Foster, 755

S.W.2d 846, 848 (Tenn. Crim. App. 1988)). Viewing the evidence in the light most

favorable to the State, as we are required to do upon appeal, a reasonable jury could

have determined that Defendant played an active role in the crime by acting as the

leader of his co-perpetrators, thereby aiding the commission of the offenses and

acting with the intent to assist in the crimes. Clearly, it was reasonable for the jury

to conclude that Defendant’s role exceeded mere presence and that he associated

himself with the venture and shared in the criminal intent of the perpetrators. See

Carson, 950 S.W .2d at 954 (citation omitted). This issue is without merit.
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II. Victim’s Compensation

The trial court refused to allow defense counsel to cross-examine Brinkley

regarding a claim he had filed with the State Division of Claims Administration for

criminal victim’s injury compensation under Tenn. Code Ann. § 29-13-101 et seq. 

During an offer of proof by the defense, Brinkley acknowledged that his claim

had been dismissed. Defendant argues that cross-examination regarding the

victim’s compensation claim should have been allowed as impeachment evidence

of bias or prejudice under Tenn. R. Evid. 616. Defendant contends that the excluded

evidence was relevant to Brinkley’s credibility by its suggestion that the witness

exaggerated his injuries “in a failed attem pt to benefit financially from the crimes

allegedly comm itted by the defendant.” In other words, Defendant argues that

Brinkley was a biased witness because he allegedly had a financial stake in the

criminal prosecution. He also argues that the excluded evidence showed that

Brinkley had made false statements of his injuries in the application for victim’s

compensation.

In the claim filed, Brinkley alleged that he was shot, beaten and kidnapped,

and that he suffered serious injuries to his leg, neck, head, back and ribs. The claim

also alleged that Brinkley knew Defendant “from their neighborhood.” The claim

requested $5,000 for mental health counseling, $3,000 for loss of income, and

$50,000 for “permanent disability.” Brinkley testified at trial that even though he

signed the claim for victim’s compensation that his attorney actually prepared it and

that he did not read it before signing.
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After a careful review of the evidence, we find that it was error to exclude the

aforementioned evidence because it is admissible to impeach Brinkley’s credibility.

This Court has held that “for the purpose of showing interest, or bias, a witness for

the prosecution in a criminal case may be questioned as to whether he has brought

an action against the accused, based on the acts involved in the criminal case.”

State v. Horne, 652 S.W.2d 916, 919 (Tenn. Crim. App. 1983). In the instant case,

the excluded evidence showed that Brinkley, the key witness in this case, sought

monetary compensation in the total amount of $73,000 due to Defendant’s actions.

In seeking such compensation, Brinkley signed a notarized statement averring that

he was permanently disabled. His claim was later dismissed because he was

unable to offer proof of his losses and expenses. At trial, Brinkley’s testimony made

no reference to him being permanently disabled. The excluded evidence could have

suggested to the jury that Brinkley exaggerated the nature of his injuries in an

attempt to benefit financially from the crimes allegedly committed by Defendant.

This is precisely the type of evidence rendered admissible to show bias or prejudice

under Tenn. R. Evid. 616. 

However, as mentioned before, Brinkley’s claim had been dism issed before

he testified at the trial in this case. Therefore, at the time of his trial testimony,

Brinkley had no real pecuniary interest in the case. Furthermore, even though the

claim for compensation was erroneously excluded, we find that ample evidence had

already been admitted regarding Brinkley’s prior inconsistent statements. For

instance, defense counsel vigorously cross-examined Brinkley regarding his prior

statement about the nature and extent of his injuries and the length of his

hospitalization. A Vanderbilt University trauma surgeon who treated Brinkley also

revealed further inconsistencies in Brinkely’s descriptions of his injuries, as did the
-16-

admission notes and discharge summaries recounting his complaints when he was

treated. 

Although we believe that the trial judge should have admitted the evidence,

we do not believe his failure to do so resulted in reversible error. Tenn. R. App. P.

36(b). We find that the trial court’s ruling in not allowing cross-examination regarding

Brinkely’s victim’s compensation claim did not affect the outcome of the trial in this

case, and that any error in not allowing it was harmless. Tenn. R. Crim. P. 52(a);

Tenn. R. App. P. 36(b).

III. Prior Incarceration Statement

In this issue, Defendant argues that the trial court erred in overruling his

objection to Brinkley’s references to Defendant’s prior incarceration. Brinkley

testified on direct examination that he was involved in two cocaine transactions with

Defendant prior to the shooing at G-Man’s Market. During cross-examination of

Brinkley, defense counsel was exploring the timing and circumstances of Brinkley’s

prior drug transactions with Defendant. Defense counsel was also trying to establish

that Brinkley had no personal dealings with Defendant, but only with a man named

“Eric,” described by Brinkley as Defendant’s “go-between.” The following exchange

occurred in the presence of the jury:

Q (By Ms. Tucker): Okay. And I want to look at, if we can,

these deals that you’re talking about. Okay? You said

there were two separate incidents, right?

A: Yeah.

Q: Two separate transactions?
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A: Yes.

Q: That you got through Eric, right?

A: Yes.

Q: And I believe you said it was how long before this

incident happened?

A: Maybe about three weeks. I think about three weeks.

I’m not sure.

Q: Do you remember telling Detective Johnny Lawrence

it was about six and a half months before this incident

happened?

A: What, from the prior time he got out?

Q: I’m talking about the first deal. Was it six and a half

months or three weeks before this incident?

A: Well, when it happened? When the incident

happened?

Q: The first--right.

A: No. When--

Q: The first drug transaction.

A: It was like three weeks in that period of time.

Q: Okay.

A: But after--after he got out of jail--

Ms. Tucker: Okay. Your Honor, I’m going to object to that

as completely irrelevant.

Brinkley’s first reference to Defendant’s incarceration, “the prior time he

[Defendant] got out,” drew no objection from defense counsel. However, counsel did

object to the reference “after he got out of jail,” as irrelevant and nonresponsive. The

trial court overruled the objection, noting that Brinkley’s comment was in fact
-18-

responsive to defense counsel’s question. A few minutes later, the following

exchange occurred, also in the presence of the jury:

Q: (By Ms. Tucker): Those are the only deliveries that you

say were between you and Harold Shaw?

A: Yeah.

Q: The only ones?

A: Yeah.

Q: And they were both delivered by Eric?

A: Right.

Q: Okay. The first transaction, how long before the

shooting of Bruno was it?

A: Like I said at first, he wasn’t even out of jail yet.

Defense counsel made no objection at all to this third reference to Defendant’s

prior incarceration. All three comments regarding Defendant’s previous

incarceration came during defense counsel’s aggressive cross-examination.

Brinkley never mentioned the offense(s) for which Defendant had been incarcerated.

By exploring the timing of Brinkley’s drug deals with Defendant, the defense opened

the door to the relevant fact that their course of drug dealing began while Defendant

was still in jail. As the trial court found, the references made by Brinkley were

responsive to defense counsel’s questions, and we therefore find this issue to be

without merit.

IV. Mistrial
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During cross-examination of a police detective called as a witness by

Defendant, the State asked if Defendant was on the TBI’s “Most Wanted List” at the

time of his taped telephone calls to Brinkley. Defense counsel moved for a mistrial

and the trial court conducted a bench conference out of the hearing of the jury. The

court found that an earlier witness, Homicide Detective Johnny Lawrence, had

already testified, without objection, that Defendant was placed on the TBI’s “Most

Wanted List.” Although the trial court denied the mistrial motion, it did instruct the

prosecutor to not “go any further on it, General.” Defense counsel did not request

a curative instruction.

Whether an occurrence during the course of a trial warrants a mistrial is a

matter which addresses itself to the sound discretion of the trial court, and this Court

will not interfere with the exercise of that discretion absent clear abuse. State v.

McPherson, 882 S.W.2d 365, 370 (Tenn. Crim. App. 1994), perm. to appeal denied

(Tenn. 1994). The burden of establishing the necessity for mistrial lies with the party

seeking it. State v. Williams, 929 S.W .2d 385, 388 (Tenn. Crim. App. 1996). In

making this determination, no abstract formula should be mechanically applied, and

all circumstances should be taken into account. State v. Mounce, 859 S.W.2d 319,

322 (Tenn. 1993).

When the trial court denied Defendant’s motion for a mistrial, Defendant

should have requested a curative instruction. See McPherson, 882 S.W.2d at 371.

“[A]n accused is not entitled to relief when he fails ‘to take whatever action was

reasonably available to prevent or nullify the harmful effect of an error.’” Id. (citing

Tenn. R. App. P. 36(a)). As the McPherson court points out, counsel may have

wanted to avoid calling further attention to the matter by asking for an instruction.
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Such a decision would have been a legitimate trial tactic. 882 S.W.2d at 371.

Nonetheless, failure to request a curative instruction technically waives this issue.

However, even after having reviewed the record, we are unable to conclude

that the second question regarding Defendant being on TBI’s “Most Wanted List“

created a manifest necessity for a mistrial. We cannot say that the question “m ore

probably than not affected the judgment” in this case. Tenn. R. App. P. 36(b); Tenn.

R. Crim. P. 52(a). The question had previously been asked without objection and

the Defendant’s objection and the trial court’s action prevented the witness from

even answering. Thus, we cannot say that the trial court abused its discretion in

denying Defendant’s motion for a mistrial. Any error was harmless. Tenn. R. App.

P. 36(b); Tenn. R. Crim. P. 52(a).

V. Failure to Charge Lesser Included Offense

Defendant argues in this issue that the trial court erred by not charging the jury

with the lesser included offense of facilitation of second degree murder. The jury

was charged on the offenses of premeditated first degree murder, criminal

responsibility for facilitation of first degree murder, and second degree murder. As

to all of these charges, the court instructed the jury regarding the concept of criminal

responsibility for the conduct of another. Defendant contends that facilitation of

second degree murder should have also been charged. However, Defendant failed

to raise this issue in his motion for new trial. In Harrison v. State, 532 S.W.2d 566

(Tenn. Crim. App. 1975), and again later in State v. Spadafina, 952 S.W.2d 444

(Tenn. Crim. App. 1996), this Court held that the failure to raise this very issue in a
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motion for new trial waived the issue on appeal. This Court also stated that unless

the trial court were given an opportunity to address the issue through a motion for

new trial, then the issue will not be considered on appeal. Spadafina, 952 S.W.2d

at 451 (citation omitted); see also Tenn. R. App. P. 3(e).

However, Defendant contends that this Court should recognize plain error in

this instance. This Court may, in an exercise of its discretion, consider an issue

which has been waived. In order for this Court to find plain error, the error must

affect a substantial right of the accused. Tenn. R. Crim. P. 52(b). After a careful

review of the record, we find that the evidence in this case did not fairly raise the

issue of facilitation of second degree murder as a lesser offense, and the trial court

therefore properly omitted it from the jury instructions. This Court has held that a

jury should be instructed on facilitation only when the evidence raises an issue that

the defendant “lacked the intent to promote or assist in, or benefit from, the

[underlying] felony’s comm ission.” State v. Utley, 928 S.W.2d 448, 452 (Tenn. Crim.

App. 1995). The general rule is that a trial court need only instruct on a lesser

offense when the evidence would support a conviction for that offense. State v.

Trusty, 919 S.W .2d 305, 311 n.5 (Tenn. 1996). 

The record in the case sub judice, as fully explained in Issue I, clearly

supports Defendant’s conviction for criminal responsibility for the shooting of Corey

Barbee, and is devoid of any evidence upon which a rational jury could have found

him guilty of mere facilitation. A defendant is responsible for facilitation of a felony

if “knowing that another intends to com mit a specific felony, but without the intent

required for criminal responsibility under § 39-11-402(2), the person knowingly

furnishes substantial assistance in the commission of the felony.” Tenn. Code Ann.
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§ 39-11-403 (emphasis added). There is no evidence in the record that Defendant

knew of his accomplice’s intent to shoot Barbee but lacked the intent to benefit from

the felonious conduct. On the contrary, the evidence shows that Defendant knew

of the armed kidnapping and the natural and probable consequence that a shooting

would occur, and he intended to benefit from it all. The evidence showed that the

armed kidnapping was part of an effort by Defendant to collect drug debts from

Brinkley. Thus, the evidence showed an intent by Defendant “to benefit in the

proceeds or results of the offense,” a key element of the intent required for criminal

responsibility. See Tenn. Code Ann. § 39-11-402(2). Therefore, Defendant lacked

the mental state for facilitation. In the context of plain error, we see nothing that

affects the substantial rights of Defendant. See Tenn. R. Crim. P. 52(b). This issue

is without merit.

VI. Sentencing

When an accused challenges the length, range, or the manner of service of

a sentence, this court has a duty to conduct a de novo review of the sentence with

a presumption that the determinations made by the trial court are correct. Tenn.

Code Ann. § 40-35-401(d). This presumption 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).

In conducting a de novo review of a sentence, this Court must consider the

evidence adduced at trial and the sentencing hearing, the presentence report, the

principles of sentencing, the arguments of counsel relative to sentencing
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alternatives, the nature of the offense, and the defendant’s potential for

rehabilitation. Tenn. Code Ann. § 40-35-210; State v. Parker, 932 S.W.2d 945, 955-

56 (Tenn. Crim App. 1996).

If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principals set out under the sentencing law, and that

the trial court's findings of fact are adequately supported by the record, then we may

not modify the sentence even if we would have preferred a different result. State v.

Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim. App. 1991). After a careful review of

the record, we conclude that the trial court failed to follow proper statutory

sentencing guidelines, and therefore, review by this Court will be de novo without the

presumption of correctness.

A. Range

Defendant was sentenced by the trial court as a Range II Multiple Offender.

However, the State concedes, and we agree, that Defendant should be sentenced

as a Range I Standard Offender. See Tenn. Code Ann. § 40-35-202(a). 

B. Enhancement Factors

The trial court found the five following enhancement factors to be applicable

to Defendant’s convictions of second degree murder and aggravated kidnapping:

1. Defendant has a previous history of criminal

convictions or criminal behavior in addition to those

necessary to establish the appropriate range;

2. Defendant was a leader in the commission of an

offense involving two (2) or more criminal actors;
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3. The offense involved more than one victim;

4. Defendant treated or allowed a victim to be treated with

exceptional cruelty during the commission of the offense;

and 

5. Defendant had no hesitation about committing a crime

when the risk to human life was high.

See Tenn. Code Ann. § 40-35-114(1), (2), (3), (5) and (10). The trial court found no

applicable statutory mitigating factors. Defendant does not contest the applicability

of the enhancement factor pertaining to his previous history of criminal behavior or

the factor pertaining to him being a leader where there are two or more criminal

actors. See Tenn. Code Ann. § 40-35-114(1) and (2). Defendant also does not

challenge the applicability of the exceptional cruelty factor to the aggravated

kidnapping conviction. See Tenn. Code Ann. § 40-35-114(5). However, Defendant

does challenge three other factors to the second degree murder conviction, and two

factors to the aggravated kidnapping conviction.

First, the State concedes, and we agree, that enhancement factor (3), that the

offense involves multiple victims, does not apply in this case. See Tenn. Code Ann.

§ 40-35-114(3). Defendant was convicted of the second degree murder of the victim

Barbee, and was convicted of the aggravated kidnapping of the victim Brinkley. This

Court has held that where a defendant is convicted of a separate offense against

each of the two victims, this enhancement factor does not apply. See State v.

Williamson, 919 S.W.2d 69, 82 (Tenn. Crim. App. 1995); Tenn. Code Ann. § 40-35-

114(3). Therefore, enhancement factor (3) should not be applied to either conviction.

Next, Defendant contends that the enhancement factor involving exceptional

cruelty to the victim does not apply to the second degree murder conviction. See
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Tenn. Code Ann. § 40-35-114(5). However, he does concede that it applies to the

aggravated kidnapping conviction. The evidence shows that victim Corey Barbee

was shot five or six times by his assailant and died approximately two weeks later

in the hospital. This Court has held that the application of Tenn. Code Ann. § 40-35-

114(5) requires a finding of cruelty over and above that inherently attendant to the

crime for which the defendant is convicted. State v. Embry, 915 S.W.2d 451, 456

(Tenn. Crim. App. 1995). This factor has typically been applied in situations where

the victim(s) were tortured or abused. See State v. Davis, 825 S.W.2d 109, 113

(Tenn. Crim. App. 1991), perm. to appeal denied (Tenn. 1992). Although it was

undoubtedly cruel to shoot the victim multiple times at close range, this case

involved no extended length of torture, nor any unusual type of abuse that would

uphold this factor. We find no evidence in the record to support a finding of

exceptional cruelty. See State v. John Dennis Rushing, C.C.A. No. 01C01-9501-

CR-00020, Davidson County (Tenn. Crim. App., Nashville, Feb. 13, 1996). In State

v. Thomas Edward Murphy, Jr., C.C.A. No. 02C01-9502-CC-00032, Fayette County

(Tenn. Crim. App., Jackson, June 28, 1996), this Court held that Tenn. Code Ann.

§ 40-35-114(5) did not apply to a second degree murder conviction where the victim

was shot twice in the chest and once in the head. 

Furthermore, the victim’s medical complications which may have caused him

to suffer before his ultimate death do not affect the applicability of this particular

enhancement factor. This Court has specifically limited the application of Tenn.

Code Ann. § 40-35-114(5) to the treatment of the victim during the commission of

the offense. See State v. Robert William Holmes, C.C.A. No. 01C01-9303-CC00090, Montgomery County (Tenn. Crim. App., Nashville, Aug. 11, 1994), perm. to

appeal denied (Tenn. 1995). Based on the foregoing, we find that the trial court
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erred in applying enhancement factor (5) to the second degree murder conviction,

but as Defendant concedes, it is applicable to the aggravated kidnapping conviction.

Defendant also challenges the applicability to both convictions of

enhancement factor (10), “no hesitation to commit the crime when the risk to human

life was high.” Tenn. Code Ann. § 40-35-114(10). The courts of this State have

consistently held that this factor does apply, however, when persons other than the

intended victim are present and placed at risk of harm. See, e.g., State v. Ruane,

912 S.W.2d 766, 784 (Tenn. Crim. App. 1995); State v. Makoka, 885 S.W.2d 366,

373 (Tenn. Crim. App. 1994). In this case, Brinkley was present and in close

proximity when the intruders entered the market and fired five or six shots at Corey

Barbee. Also, the intrusion by the three men, at least two of whom carried firearms

with the intent to kidnap Brinkley, placed Barbee at risk of his life and in fact resulted

in his death. Therefore, each of Defendant’s offenses was committed under

circumstances which created a high risk to the life of a person other than the

intended victim. The trial court properly applied enhancement factor (10) to both the

second degree murder conviction and the aggravated kidnapping conviction. 

In summary, upon remand for resentencing within Range I, the trial court

should apply enhancement factors (1), (2) and (10) to the second degree murder

conviction and enhancement factors (1), (2), (5) and (10) to the aggravated

kidnapping conviction.

C. Consecutive Sentencing

In ordering that Defendant’s sentences for aggravated kidnapping and second

degree murder be served consecutively, the trial court stated:
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[T]he Court recalls that this was a case where an innocent

bystander, in all effect, was just shot down because, it’s

apparent from the proof in this case, the Defendant did not

receive his money from drug transactions.

The scourge of this community is based on drug

transactions. Most of the difficulty we have in this court is

the result of drug transactions. This [c]ourt has no

sympathy, whatsoever, for an individual that participates,

or commits, murder to enforce drug transactions.

The trial court failed to follow proper statutory sentencing procedure, in that it did not

set forth the required statutory reasoning in imposing consecutive sentences.

Therefore, on rem and of this case to the trial court, it must state specific findings of

fact and conclusions of law on the record if consecutive sentencing is imposed. 

Defendant also contends that even if consecutive sentencing was proper in

the case sub judice, the trial court nevertheless erred in ordering his sentences in

this case to be served consecutively to his sentence in another case, Davidson

County Criminal Court docket no. 92-A-104. Defendant argues that the conviction

in that case has not been reduced to judgment and the sentence has not yet been

imposed, thereby not making it a previously imposed sentence to which the present

sentences may be run consecutively.

The detailed facts surrounding this issue reveal that in May of 1993,

Defendant went to trial and was convicted by a jury on the charge of possession of

cocaine with intent to deliver, a Class B felony. The trial court sentenced Defendant

to eight (8) years as a Range I Offender. However, subsequently on a post-verdict

motion for judgment of acquittal, the trial court concluded that the evidence of

Defendant’s intent to deliver was insufficient. The court therefore set aside the

verdict, acquitted Defendant of felony possession, and sentenced him to eleven (11)
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months and twenty-nine (29) days for misdemeanor cocaine possession. The State

appealed. See State v. Harold Wayne Shaw, C.C.A. No. 01C01-9312-CR-00439,

slip op. at 1, Davidson County (Tenn. Crim. App., Nashville, Oct. 24, 1996).

The State’s appeal was pending at the time Defendant committed the offenses

in this case. On October 24, 1996, this Court issued its decision reversing the trial

court’s action. This Court expressly ordered the following in regard to sentencing:

The case is remanded to the trial court for it to reinstate

the eight-year sentence and five thousand dollar fine and

to enter a judgment of conviction for possession of

cocaine with the intent to deliver, a Class B felony. 

Id., slip op. at 4. Defendant did not apply to the supreme court for permission to

appeal, and the mandate issued January 2, 1997.

The effect of this Court’s reversal of the trial court’s action was to restore the

original felony conviction as if the trial court had never set it aside. A decision of an

appellate court reversing or modifying a trial court decision is effective retroactively

to the date of the original judgment, unless the appellate court judgment specifies

otherwise. Gotten v. Gotten, 748 S.W.2d 430, 431 (Tenn. App. 1987).

In defendant’s case, this Court explicitly directed the trial court on remand to

reinstate the Class B felony conviction and the eight (8) year sentence as well as the

original fine imposed. Shaw, C.C.A. No. 01C01-9312-CR-00439, slip op. at 4.

Defendant’s 1993 felony conviction for possession of cocaine with intent to deliver

was therefore reinstated retroactively to the date it was originally entered. That

makes the eight (8) year sentence on that conviction a previously imposed sentence.

The trial court was therefore authorized by Tenn. R. Crim. P. 32(c)(2) to run the
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sentences in this case consecutively to the sentence in the earlier case. This issue

is without merit.

Conclusion

Based on all the foregoing, Defendant’s convictions for second degree murder

and aggravated kidnapping are affirmed. The case is remanded to the trial court for

resentencing in accordance with this opinion.

____________________________________

THOMAS T. W OODALL, Judge

CONCUR:

___________________________________

JOHN H. PEAY, Judge

___________________________________

L.T. LAFFERTY, Special Judge