# FILED
October 21, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE AUGUST SESSION, 1998
STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9707- CR-00259 ) Appellee, ) ) DAVIDSON COUNTY V. ) ) ) HON. SE TH NORMAN,JUDGE HAR OLD WA

YNE S HAW, ) ) (SECOND DEGREE MURDER; Appe llant. ) AGGRAVATEDKIDNA PPING)

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 Tr ial) 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North JEFFREY A. DeVASHER Nashvill e, TN 37243 Assistant Public Defender 1202 Stahlman Buildi ng VICTO R S. JO HNS ON, III 211 Union Street Distri ct Attorney General Nashvill e, TN 37201 (On App eal) KIMB ERLY HAAS Assistant Distri ct Attorney General Washington Square 222 Second Avenue North, Sui te 500 Nashvill e, TN 37201-1649

OPINION FILED ________________________ CONVICTIONS AFFI RMED; SENTENCES REVERSED AND CASE RE MANDED FOR NEW SENTENCI NG HEARI NG THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Defendant, Harol d Wayne Shaw, appeals as of ri ght his conv iction s for second degree murder and aggra vated kidna pping in the Davidson Count y Criminal Court. The trial court sen tenced De fendant as a Range II M ultiple Offender to thirtyfive (35) years

on the second degree murder convicti on and eighteen ( 18) years on the aggravated ki dnapping convi ction. The sentences were order ed to be served
cons ecutive ly to one anoth er as well as to a prior e ight (8) year senten ce for a felony drug c onvictio n. Def enda nt raise s the fo llowing six issu es in th is app eal:

(1) Whether suffici ent evidence supported the convicti ons for second degre e murder and aggravated kidnapping; (2) Whether the trial court erred in di sallowi ng questioni ng of a victi m regarding his claim for

victi m’s compensation; (3) Whether the trial co urt er red in admit ting testimony regarding Defe ndant’s pri or incarcer ation; (4) Whether the tri al court erred in refusi ng to declare a mistrialwhen th e State asked a witness i f Defendant had been on the Tennessee Bureau of Investi gat ion’s “Most Wa nted List”; (5) Whether the tri al court committed plai n error in fai ling to instruct

the jury regarding facil itati on of second degree murder as a lesser i ncluded offense of premeditated first degree murder; and (6) Wh ether th e trialcourt committed various sentencing errors.
After a careful review of

the record, we affirm Defendant’s convi ctions, but remand the case to t he trialcourt for resentenci ng.-3- Sum mary o f the Fac ts
On December 29, 1993, at approx imately 10: 00 p.m., pol ice offi cers and an ambulance were d ispatc hed to G-Ma n’s Ma rket on Brick C hurch Pike in Nash ville in response to a callthat a shoot ing had occurred. Upon arri val, t hey found 24-yea rold Corey Barbee on the fl oor, bleedi ng from severalgunshot woun ds. Ba rbee to ld them that “ some dude s go t Ga rl and [ Bri nkl ey] .”The v ict im was as ked if thesame men who had taken Garland had shot him, and Barbe e responded “yes .” Hetold them that thr

ee men in masks had entered the store, f ired sever al shots, and then taken awa y the owner of the market (G arland Brinkley).

Barbee was taken to Vanderbil t University Hospital, where over the next few days he underwent sever al surgeri es. Fourteen days l ater, on Januar y 12, 1994, Corey Bar bee d iedof comp li cations f rom the gunshot wounds to his chest and abdomen.

Garland Brinkle y, who se nick nam e is “G -Man ,” was th e own er of G -Man ’s Marke t. About six months earlier, Brinkley was invol ved in some drug transactions, spec ifically cocai ne, w ith a man he knew as Harol d Mo o re, but whose name was actua lly Harold S haw, the Defen dant. Brin kley te s tifi ed that he and Defendant agreed that Defe ndant w ould “fron t” the cocaine to Brinkley to sell , and then Brinkl ey would later pay

Defendant. The cocai ne was actuall y given to Brin kley by a man named Eric, wh o Brink ley testifie d was a “go-b etwee n.” Brin kley tes tified tha t in two such transactions, he gave the drug s to som eone e lse to sell. The proceeds from the drug deals w ere apparently nevergiven to Br inkley s o he in turn never returned any of the proc eeds to Defen dant. It is not cl ear from the r ecord as to t he total-4-

amount and val ue of th e cocaine in t he transacti ons. At the pr eliminary

hearing, Brinkley said he ow ed $3,8 00 for thr ee ounces on the fi rst tr ansaction and $9, 000 for12 ounces on the second deal . However, he t old invest igators and tes tifi ed a t trial that the de als involved a quarte r kilo valued at $27,00 0.
Brinkley te stifi ed t hat on the morni ng of December 29, 1993, Defendant telephoned him at the store and demanded thatBrinkle y turn o ver his h ouse and h is Chevrolet

Blazer as payment for

the cocaine debt . Defendant cl aimed that Bri nkley owed him $27,000 plus a $5,000 late fee, for a total of $32,000. Later that morni ng, Defendant came to G- Man’s Ma rket and agai n demanded p ayment f rom Br inkley
. Howe ver, Brinkle y refused and D efenda nt left.
Brinkley testified that l ater that evening , Corey Barbee, known as “Bruno,” was at the store with Brinkley. Barbee and Brinkley had been friends f or several years. Barbee would stop by the market and watch televi sion and would som etime s help Brinkley clean the store a nd close it at night. As the y were closing t he store on the nightof Dec emb er 29, 1 993, th e doo r sudd enly fle w op en and a masked man stepped in and sh ot B arb ee five or six times. Brinkley described the shooter as a black male, ab out six feet ta ll and 175 pound s, with a hood over his head in addition to the mask. He was armed with what Br inkley des cribed as a ni ne millimeter Glock
or Beretta. T he sho oter was followed in to the marketby two more men. The second
man had no mask on his face, but only a hood and sunglasses. Brinkley recognized this ma n as Haro ld Moore (Shaw), the Defendant. Defendant was armed wit h a pistol-g rip shotgu n. The thi rd man, who was also masked, was shorter and chubb ier. Accor ding to B rinkley, all three men w ere black
.-5- After Barbee was shot, Barbee asked to use the phone to call an ambulance. He then managed to get to the phone and ca ll 911 fo r help. Brinkley testifi ed that the Defendant then or der ed Brinkle y to leav e the m arket w ith them . Brinkle y said thathe initially refus ed and that the m an who had sh ot Barbe e th en “shotme and grazed my l eg.” H e testifi ed that the bullet did not enter his l eg, but that he has a
scarfrom be ing graze d. Howeve r, there is apparen tly no medical rec ord of such a graze wound. Brinkl ey eventual ly got i nto the 1976 or 1977 blue Chevrol et Impa la with the thre e men . Barbee was left at the marke t.

This same evening, Clar a Coleman was helping i n some remodeling work on
a busine ss locate d in the sa me bu ilding as G -Man’s M arket. Sh e heard gunsh ots and looked o ut in t ime to see a li ght blue ol der model car speed away from the marke t. She testified that s he saw three or f our black m en in the car. Ms. Coleman did not know Brinkley.

As the car drov

e off, Defendant told the shooter to put duct tape over Brinkle y’s face and to bind his hands toget her with t he tape also. Defendant held t he shoo ter’s gun while he taped up Brinkley. According to Brinkley , the car ride lasted about 15 to 25 minutes. Defe ndant kept say ing to Bri nkley, “ you think I ’m playing with you?” The c ar eve ntually came to a stop and t he men pulled Bri nkley out and tookhim into a gar

age or shed. They bound his feet with d uct tape. There the thre e men proceede d to beat Brinkley. Defendantpistol -whipped him. Brinkley testif ied thathe be lie ves he passed out two or three ti mes during the beat ings which he estimated lasted “for hou rs.” De fenda nt then forced Brinkle y to ma ke se veral c ellu lar phone calls in an e ffort to have Brinkley’s w ife bring the de ed to th eir hou se. Ca lls-6-

were m ade to B rinkley’s m other, au nt, brother- in-law, and a cou sin, bu t they co uld not locate Brinkley’s w ife.
Brinkley said that

three or four more black men later joine d the group and p artici pat ed in the beat ings. Bri nkley sti ll had tape over his ey es, but he sai d he could tell the men we re black by their voic es. The men took his wal let whic h had about $300 cash in it . They cut hi s pants and inf licteda four to f ive inch l aceration
o n his left thigh . Acco rding to Brinkle y, his atta ckers poure d som e liquid on his wound and attempted several ti mes to light it wit h a match, althou gh doctors were unab le to fi nd any evi dence of bu rns. However , a t rau ma surgeon who treated Brinkley at Vanderbil t testified that lacerati ons often produ ce a burning sensat ion, particularly if liqu id is poure d on the m.

The beatings continue d until som eone s aid “kill him.” At this p oint, most of the
men steppe d outside to confer, but when they ret urned Brinkl ey was told that he was “lucky.” They then cut the tape from his a nkles, threw him back in the car, an d drove to Whites Creek Pike. The car slowed down near

the United Parcel Service l ocation and Br inkley was thrown o ut. He testif ied that as he rolled d own an emba nkme nt, he hea rd two or th ree sho ts fired. The car then took off.
Brinkley was able to pul l the tapefrom his eyes enough to see, and he t hen walked to the UPS securi ty guard station. Oneguard call ed 911 while t he other cut the tape fro m Br inkley’s face a nd wris ts. An a mbu lance took B rinkley to Vand erbilt Hospital where he was treated for a fr acture to hi s upperjaw, a large cut on t he back of his scalp, a cut on his left thigh, injuries to his mo uth, and rib pain suggesti ng a fractur ed rib. Brinkley was discharged f rom Vanderbilt on December 31, 1993.-7- Investi gators foundsix nine milli meter shell casings, t wo outside t he market and fourinside. Brinkley acknowledged that

the fully-loaded . 357 revolve r found on the floor of

the marketbelon ged to Barb ee, wh o usu ally carr ied it in his coat p ocket. Also, a full y-loaded ni ne milli meter semiautomati c pistolwas found under the cash register. Brinkley

identified that g un as belonging to him. Offi cer Brad Corcoran testif ied that neithe r of thes e wea pons appe ared to have b een fire d. The only fingerprints i dentifi ed at the scene wer e those of Bri nkley and Barbee.

On January 12, 1994, the day Corey Barbee d ied, homici de detecti ves Johnny Lawrence and Mike Rolan d i nterviewed B rinkley. They sho wed Brinkley a photo graph ic array fro m wh ich Brin kley id entif ied Defendant as t he leader of the group that ki dnapped him and kil led Barbee.

The day after

Brinkley

was released f rom the hosp ital, Def enda nt calle d him and reiter

ated that he wanted the deed to Brinkl ey’s house. When Brinkley asked why Defe ndan t all owed Barbee to be killed, Defend ant replied, “I don’t give a f--- about him.” Defenda nt continued to c all Brinkley every day and sometimes sever al times a day. Brinkley f inally ca lled thepo lice because of the harassi ng calls f rom Defen dant. Detective s went t o Brinkle y’s hou se an d reco rded tw o inco ming calls from Defen dant. In those cal ls, Bri nkleyand Defendant argued about the shooti ng of Barbee. Howev er, Dete ctive Cl iffor d Douglas admitte d that pol ice made no attemptto trace t he telephone calls, nor was any voi ce analysi s done in an attempt to determine w hether the calls w ere a ctuall y made by Defendant. Defendant continued to call Bri nkley unti l Brinkl ey was incarcer ated for f

ood stamp fraud.-8- Brinkley acknowledged that

after t he incident , he was admitted to Tennessee Christi an Medi cal Center w here he cla imedhe rema in ed for about a month for psychologi cal problems. However , Brinkl ey admitted on cross-examinat ion that he
was only at the m enta l health facili ty for twelve days. Brinkl ey told a doc tor at t he center that he had been assa ulted and ki dnapped for norea son by six men. Although documented by the doctor, Brink ely denied at

trialtelli ng the doctor

that he hear d vo ice s i n hi s he ad or that hehad fea rs t hat his fr ien ds wo uldturn on him.

There were many inconsi stencies i n Brinkley’s test imony. For i nstance, Brinkley told dete ctives and he testified at the prelimina ry hearing that he w as sho t, not grazed in t he leg as he later cla imed . He initia lly told po lice tha t his ankles were taped while he was i n the car and t hat a hood was plac ed over h is head. Howeve r, at trial he te stified th at only hi s hands were bound and that tape, not a

hood, was placed overhis eye s. He a ckno wledg ed fals ely testif ying at t he prelimi nary heari ng thathis nose was broken, and that bot h his upper and lower

jawswere b roke n. He testif ied that duri ng the beati ngs that he called his cou sin, Be cky Bo nds, a nd told her to go to the G-Man’s

Market and tr

y and find his wife. However, Ms. Bonds testifi ed thatBrinkley ca lled her an d told her to go to the market in order to put the te lephone back on the hook . Bri nkley o riginall y told pol ice that he was assaulted du e to a dispute about “running numbe rs,” not dru g s, at hi s market. He test ified at the preliminary hearing t hat he was hosp italized for four or five da ys. He said th at if hospital records ind icated t hat he sp ent on ly one n ight in th e hos pital, “I know that would be a lie.” Bri nkley te stif ied at trial that h e first met D efenda nt when both attended Maplewo od High S chool in 1984 or 1985. Ho wever, he admitted testify ing at the preli minary heari ng that he met Defendant two years be fore the shoot ing at his auto detai l shop. There wer e also numerous inco nsistenci es and discrepanci es-9-

in his testimony pert aining to the drug tr ansactions, such as when exactly the transac tions occ urred an d the am ount of dr ugs an d mon ey actua lly involved.

I. Suffici ency of the Evidence

Defendant raises two arguments that the evi dence was insufficient to convict him of second degree murder and aggravated kidnapping. First, he contends that the State fai led to prov e his ident ity asperpetrator of t he crimes. Second, he argues thatthe evidence was insuff icient to prove t hat he was crimin ally responsibl e under Tenn. Code Ann. § 39-11-402 for the conduct of another person i n murdering Corey Barbee.

When an accused chall enges the suffi ciency of the convicti ng evidence, t he standard is

whether, af

ter revi ewing the evidence i n the li ght most favor able to th e prosection, any rati onal trier of fact could have found the essenti al elements of the cri me beyond a reaso nable d oubt. Jackson v. Virgin ia , 443 U.S. 30 7, 319 (1979 ). This standard is appl icable to findin gs of guil t predicated upon direct evidence, circumstant ial evi de nce or a combinati on of direc t and circ umstantial evidence. State v. Matthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). On appeal, the State is entitled to th e str on gest legi timate vi ew of the evi dence and all i nferences the ref rom. State v. Cabbage , 571 S. W.2d 832, 835 (Tenn. 1978) . Because a verdictof guil t removes the pr esumpt ion of innocence and r eplaces it

with a presumption of guilt, th e acc used has th e burd en in th is court of i llustr ating why

the evidence is insufficient to suppo rt the verdict re turned b y the trier of fact
. State v. Tug gle , 639 S.W .2d 913 , 914 (T enn. 19 82); State v. Grace , 493 S.W.2d 474 , 476 (Tenn. 19 73).-10- Questions concerning the credib ilit y of the wi tnesses, t he weight and value to be given the evidence, as wellas all factualiss ues r aised by the evide nce, are resolved by the t rier of fact, no t this court. State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. A pp.), perm. to app eal denied , id . (Tenn. 198 7). Nor ma y this court reweig h or reevalu ate the ev idence
. Cabbage , 571 S.W .2d at 835. A jury verdic t approved by the trial j udge accredits the State’ s witnesses andresolve s all conflicts in favor of the State. Grace , 493 S.W .2d at 476
.
Moreover, a criminaloffense may be established exc lusively by cir cumstantial evidence
. Duchac v. State , 505 S.W .2d 237 (Tenn . 1973); State v. Jones , 901 S.W.2d 393, 39 6 (Ten n. Crim. A pp. 199 5); State v. Lequire , 634 S.W.2d 608 (Tenn. Cri m. App. 1981). However, before an accused may be co nvic ted of a cri minal offense based upon circumstant ial evi dence alone, t he facts and ci rcumstances "must be so stro ng and cogen t as to exclud e beyo nd a re ason able doubt every other
reaso nable hypothe sis save g uilt of the defe ndant." State v. Crawfo rd , 22 5 Ten n. 478, 470 S.W .2d 610 (1971); Jones , 901 S.W.2d at 396. In oth er words, "[a] web of guilt must

be woven around the def endant from which he cannot escape and from which facts and ci rcumst ances the jury could draw no other r easonable inference
save the guilt of the defenda nt beyond a reaso nable d oubt." Crawford , 470 S.W.2d at 613; State v. McAfee , 737 S.W .2d 304 , 306 (T enn. C rim. App . 1987).
A. Identity Gar land Brinkley

identified Defendant as o ne of three men who entered hi s store on the night of December 29, 1993, and kidnapped hi m after one of t he men shot Corey Barbee. Two weeks after t he shooting, homicide detecti ves inter viewed Brinkley
. Th e detecti ves showed him a photogr aphic array

from which Bri nkley-11-

identif ied Defendant as the leader of t hat group. Pol ice subsequently tape-recorded two phone calls f rom Defendant to Bri nkley, i n which the t wo angrily

discussed the events of Dece mber 2 9, 1 9 93, and the shoot ing of Barbee. Brinkley identified the voice at the other end of those call s as that of Defendant. At

trial , Brinkl ey identi fied Defendant in the cour troom as the pers on who was present when Barbee was s hot and when he was kidnapped.

Defendant asserts that Brinkley’s i dentificati on testimony was suspect because of inco nsiste ncie s in ot her are as of h is testim ony. H owev er, Brin kley’s identif icatio n of Defendant as t he perpetrator was never cont radicted by any other evidence or by any inconsi stent id entifi cations. Again, he i dentifi ed Defendantin the photo lineup asthe perpetrator a s well as the in-cou rt identifi cation at tri al. He also identified Defendant’s v oice on the taped telephone cal ls. Despite defense c ouns el’ s attemptto impeach Bri nkley, t he jury wei ghed his test imony and f ound Brink ley’s identification of Defen dant su fficient to con vict.

It is wel l- establi shed that t he identi ficati on of a defendant as the perpet rator of the offens e for which h e is on tr ial i s a question of fact for det ermination by the jury. State v. Strickl and , 885 S.W .2d 85, 87 (Tenn . Crim. A pp. 199 3), perm to appeal denied (Tenn. 199 4). Further, the identifica tion testim ony of a victi m is, by itself, suffic ient to s upport a conviction
. Id . Garland Bri nkley’s identif icatio n of Defendant as the perpe trator is th us su fficient to supp ort the c onvictio ns in th is case. This issu e is withou t merit.

B. Crim inal Res ponsib ility-12- Defendant argues that he was i mproperly found criminal ly responsi ble for t he conduct of his masked accompli ce who shot and kil led Corey Barbee. He argues thatthere was no proof that he shared any common intent with that assailant

or that he acted wit h intent t

o promote or assi st in t he shooting.

In order to c onvict Defendant under the theory of criminal responsibi lity , the State was req uired to pro ve beyon d a reas onable doubt t ha t Defendant sol icited , directed, aided or attempted to aid anot her person to commit the o ffenses while “acting with the i ntent to pr omote or assist

the commission of

the offense[s ], or to bene fit in the proceeds or results o f the offens e[s]. See Tenn. Code Ann. § 39-11- 402(2). This co de provis ion is the co dification of th e “natu ral an d prob able consequences” rul e from the comm on law pertaining to aiders and ab ettors. See Tenn. Code Ann. § 39-11-402 Sente ncing 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 indi vidual i n a multipl e offender felony i s responsibl e for the criminal acts of any of th e othe r particip ants if th e individ ual sh ares in the inte nt to co mm it the primary f elony and the crimi nal acts committed by the other partici pants are the natural and pr

obable consequence of the commission of

the primary felony. Id . at 953-54.

The evidence in this ca se shows that Defe ndant and the unknown shooter were united i n the common purpose ofcomm itti ng the kidnappi ng of Garland Brinkley. Defen dant h ad be en invo lved in drug deals wi th Brinkl ey. On the morning of the shooti ng, Defendant telephoned Brinkl ey to demand payment ofa drug debt and later went

down to G-Man’s Market for thesame pu rpose. Later that sa me day, D efendan t and two unident ified masked men tog ether burst into the market at-13-

closing time. Defendant and at least one of the ot her men were armed. After the first mask ed ma n shot B arbee, th e three p erpetrato rs abdu cted Brin kley, with Defendant giving the o rders the entire time . As the ca r drove off, Defendant told the shooter to put duct

tape over

Brinkely’s eyes and to bind his hands. Defendantheld the shooter’s

gun while t he tape was being put on Brinkley. A ll three men we re clearly united in the com mon pu rpose of kidna pping Brinkley.

The murder of Cor ey Barbee occurred as a naturaland probable conseq uenc e of the kidnappi ng. As the men entered the market that eveni ng, the shoot ing started almost i m mediately. The police found Barbee’s own fi rearm full y loaded and appa rently unfired ne ar his b ody. T he sh ooting was a natura l and p robab le consequence of the action by the kidnappers.

The evidence, toge ther wi th the reasonab le infer ences from that

evidence, clearly demonstrate theDefendant “knowingly , voluntarily , and with common intent unite[d]with the principaloffenders i n the comm ission of the crime ” and is, therefore liable for thei r ac tions. Ca rson , 950 S.W.2d at 954 ( quoting State v. Foster , 755 S.W.2d 846, 848 (Tenn. Crim. App. 1988)). Viewing the evi dence in the light most favora ble to the State, as we are req uired to do up on ap peal, a reaso nable jury cou ld have determined that Defendant played an act ive rol e in the cr ime by acting as t he leader of his co- perpetrators, ther eby ai ding the commission of t he offenses and acting with the inten t to assi st in t he crimes. Clea rly, it was reas onable for t he jury to conclude that Defendant ’s role exceeded mere presence and t hat he associated hims elf with the ven ture and shared in the crim inal intent of th e perpe trators. See Carson , 950 S.W .2d at 954 (citation om itted). This is sue is with out me rit.-14- II. Vi ctim’s Compensati on

The tri al cour

t ref used to al low defe nse counsel to c ross-examine Br inkley regarding a claim he had fi led with t he State Divisi on of Claims Admini strati on for crimin al victim ’s injury com pensa tion unde r Tenn . Code Ann. § 29-13-101 et seq . During an offer

of proof by

the de fense , Brinkle y ackn owled ged th at his cla im had been dism is sed. Defendant argues t hat cross-ex amination rega rding the victim’s compe nsation claim s hould have been allowed as impeachment evidence of bias or prej udice under Tenn . R. Evid. 61 6. Defendant contends that the excluded evidenc e was relevant to Brinkl ey’s credibil ity by i ts suggestion that t he witness exaggerated his injuries “in a failed attem pt to bene fit financ ia lly f rom the crimes allege dly comm itte d by the defendant .” In ot her words, Defen dant argues that Brinkley was a biased wit ness because he all egedly ha d a financi al stake i n the criminal prosecuti on. He also argues that the ex

clu ded evidence showed t hat Brinkley had made false s tatem ents o f his injur ies in th e app lication for victim ’s compensation.

In the clai m filed, Brinkley alleged t hat he was shot , beaten and kidnapped, and thathe suffered serious i njuries t o his leg, neck, head, back and rib s. The claim also alleged t hat Brinkl ey knew Defendant “ from the ir neigh borho od.” T he cla im requested $5,000 for men ta l health counseling, $3,000 for l oss of income, and $50,000 for “ per manent disabil ity. ” Brinkl ey testi fied at t rial t hat even though he signed the clai m for vict im’s compensatio n thathis atto rney a ctually prepared it and that he di d not read it before sig ning.-15- After a careful review of

the evidence, we find that it was error to exclude the aforementioned evidence beca use it is admissible to im peach B rinkley’s credibility. This Court has held that “for the purpose of showing interest , or bias, a witness for the prosecuti on in a cri minal case may be quest ioned as to whet her he has brought
an act ion against

the accused, base d on the acts i nvolved i n the crimi nal case. ” State v. Horne , 652 S.W.2d 916, 919 (Tenn . Crim. A pp. 198 3). In the instant case, the exclu ded ev idence showed that Brinkley , the key wi tness in t his case, sought moneta ry com pens ation in the tota l amo unt of $ 73,00 0 due to Def enda nt’s actions. In seeking such compensati on, Brinkl ey signed a notarized statement averr ing that he was permanently disabled. His cl aim was later dismissed because he was unab le to offer p roof of h is losses and expenses. At trial , Brinkl ey’s test imony made
no reference to him being permanentl y disabled. The excluded evidence co uld have suggested to the j ury that Brinkley

exaggerated t he natur e of his i nj uries in an attemptto bene fit financially from the crime s alleged ly comm itte d by Defen dant. This is precisel y the ty pe of evidence rendered admissible to show bias or pr ejudice under T enn. R . Evid. 616
.

Howeve r, as mentioned befor e, Brinkley’s claim ha d been dism issed before he testified at the trial in this case . There fore, a t the ti me of his trial testimon y, Brinkley had no real pecuni ary interest in t he case. Furt hermore, even though the claim for compensati on was erroneously excluded, we find that a mple evidence had
a lready been admitted rega rding Brinkley’s pr ior i nconsistent statements. Fo r instance, defense counsel vigorously cross-examined Brink le y regardi ng his pri or statementabout the nat ure and extent of h is injurie s and the len gth of h is hospital izatio n. A Van derbilt U niv ersity trauma surgeon who treated Brinkley al so revealed further

inconsistencies in Brinkely’ s descriptions of hi s injuries, as did the-16-

admission notes and dischargesummaries recounti ng his complaint s when he was treated.
Although we believe t hat the trial j udge should have admit ted the evi dence,
we do not be lieve his failure to do so re sulted in re versible err or. Tenn. R. App. P. 36(b). We find thatthe trial c ourt’s ru ling in not all owing cross-ex amination rega rding Brinke ly’s victi m’s compensation cl aim did not af fect the o utcome of thetrial in this case, and th at any e rror in n ot allo wing i t was harm less. Tenn. R . Crim. P. 52(a); Tenn. R . App. P. 36(b).

III. Prior I ncarcerati on Statement

In this i s sue, D efend ant arg ues th at the tria l court e rred in o verrulin g his objecti on to Brinkley’s reference s to Defend ant’s prior incarcera tion. B rinkley testif ied on direct examination that hewas invo lved i n two cocaine transactio ns with Defendant prior to the shooing at G-Man’s Market. During cross- examination of Brinkley, defense counsel was explori ng the timing and ci rcumstances of Brinkle y’s prior drug transactions wit h Defendant. Defense counsel was also trying to establish thatBrinkley

had no personal deal ings wit h Defendant, but only wit h a man named “Eric,” described by Brinkley as Defendant’s “go-between. ” The foll owing exchange occurred in the presence of the jury:

Q (ByMs. Tucker) : Okay. And I want to loo k at, if we can, these d eal s that yo u’re talk ing ab out. O kay? Y ou sa id there we re two se parate in cidents, rig ht? A: Yeah. Q: Two separate transactions?-17- A: Yes. Q: Th at you go t through Eric, right? A: Yes. Q: And I be lieve you sa id it w as h ow lon g befo re this incident happened? A: Maybe about th ree we eks. I think about t hree weeks. I’m not sure
. Q: Do you remember telling Detective Johnny Lawrence it was about six

and a half months bef ore this i ncident happened? A: W hat, from the prior tim e he go t out? Q: I’ m t alk ing ab out the first dea l. Wa s it six an d a ha lf month s or three weeks before th is incident? A: We ll, when it hap pened ? W hen th e incident happened? Q: Th e first--right. A: No. W hen-- Q: The first

drug transact ion. A: It was l ike three week s in that period of t ime. Q: Okay. A: But after--after he g ot out of jail-- Ms. Tucker: Okay. Your Honor, I’ m going to object to that as com pletely irreleva nt.

Brinkle y’s first

reference to Defendant’s i ncarcerati on, “the prior ti me he [Defen dant] got out,”

drew no object ion from defens e coun sel. How ever, c ouns el did object to the reference “after he got out of jail ,” as irrel evant and nonresponsive. The trialcourt ove rruled the objection , noting tha t B rin kley’s comment was in fact-18-

responsive to defense cou nsel’ s quest ion. A few minu tes late r, the following exchange occurred, also in th e presenc e of the jury:

Q: (ByMs. Tucker): Those ar e the only del iveri es that you say were b etween you and HaroldShaw? A: Yeah. Q: The only ones? A: Yeah. Q: And they were both delivered by Eri c? A: Righ t. Q: Okay. T he first trans action, how lon g before the shooting of Bruno was it? A: Like I sa id at first, he wa sn’t even o ut of jail yet.

Defense coun sel m ade n o obje ction a t all to this th ird refer ence to Def enda nt’s prior incarceration. All three comments regarding Defendant’s p revio us incarcerat ion came during defense counsel’s aggr essive cros s-examinati on. Brinkley never ment ioned the o ffense(s)for which Defendant had been incar cerated. By exploring the timing of Brinkley ’s drug de als with D efenda nt, the defense opened the doorto the rel evant fact that thei r course of drug dealing began while Defendant
was stillin jail . As th e trial court found, the refere nces ma de by Brinkley w ere responsive to defense counsel’s q ue stions, and we therefor e find thi s issue to be without m erit.

IV. Mist rial-19- During cross -exam ination of a po lice de tective c alled a s a wit ness b y Defen dant, the State asked i f Defendant was on t he TBI’s “Most Wanted List ” atthe ti me of his taped teleph one calls to Brinkley. Defense counsel moved for a mistri al and the trialcourt conducted a bench conference out of the heari ng of the j ury. The
c ourt fou nd that an earl ier wit ness, Homicide Detec tive Johnny

Lawrence, had alre ady testified, without objection, that D efendant wa s placed on the TBI’s “M os t Wanted List.” Alth ough the trial c o urt denied t he mistria l motion, it di d instruc t the prosecutor to not “go any further on it , General.” Defense counsel did not request a curativ

e instruc

tion.

Whether an occu rrence d uring th e c ourse of a trialwarrants a mistrialis a matterwhich addresses itself to the sound discre tion of the trial court, and this C ourt wil l not interfere with the exe rcise of tha t discretion absen t clear abu se. State v

. McPherson , 882 S.W.2d 365, 370 (Tenn . Crim. A pp. 199 4), perm. to appeal denied (Tenn. 1994). The burden of establish ing the ne cessity for mistrial lies w ith the party
s eek ing it. State v . Wil li ams , 929 S.W .2d 385 , 388 (T enn. C rim. App . 1996). In making this determination, no abstract formula shoul d be mechanically applied, and all circums tances should b e taken into acco unt. State v. Mounce , 859 S.W.2d 319, 322 (Ten n. 1993).

When the tri al court de nied Defen d ant’s moti on for a mist rial, Defendant shou ld have requested a c urative instruc tion. See McPherson , 882 S.W.2d at 371. “[A]n accused is not

entitl ed t o relief

when he fail s ‘to take whatever act ion was reasonably av

ailabl e to prevent

or nullify the harmful effec t ofan erro r.’” Id . ( citing Tenn. R. App. P. 36(a) ). As the McPherson court poin ts out, counsel may have wanted to avoid calling further attention to the matter by a sking for a n inst ruction.-20-

Such a decision would have bee n a legit imate tri al tacti c. 882 S.W.2d at 371. Nonetheless, fail ure to r equest a c urati ve inst ructi on techni cally wa ives t his issue.

However, even af

ter havi ng reviewed the rec ord, we are unable to concl ude thatthe second question regardin g Defe ndant b eing on TBI’s “M ost W anted L ist“ created a man ifest nece ssity for a m istrial. We cannot say that the question “m ore proba bly than notaffecte d the ju dgm ent” in th is case. Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a) . The q uestion had previously been asked wit hout object ion and the Defendant’s obj ection and t he trialcourt’s action prev ented the witness f rom even an sweri ng. Th us, we cann ot say th at the tria l court a buse d its disc retion in denying Defe ndan t’s motion for a mistrial . Anyerror was harmless. Tenn. R. App. P. 36(b); Ten n. R. Crim. P. 5 2(a).

V. Failure to Charge Lesser Incl uded Offense

Defendant argue s in this issue that the tri al court erred by not charging the jury with the lesser

included offense of facilitation of second de gree mu rder. The jury
was charge d on the off enses o f premeditated first degree murder, criminal respon sibility forfaci litatio n of f irst degreemurder, and seco nd degree murder . As to all of these charges, the court i nstructed the jury regarding the concept of cr iminal respon sibility for the cond uct of anot her. Defendant contends that

facil itati on of second degree murder should have a lso been charged. However, Defendant failed to raise thi s issue in hi s motion for new trial . In Harrison v. State , 532 S.W.2d 566 (Tenn. Crim. App . 1975), and a gain later i n State v. Spadafina , 952 S.W.2d 444 (Tenn. Cri m. App. 1996), t his Court hel d that the f ailure to raise thi s very i ssue in a-21-

motion for new t rial waived the i ssue on appeal. This Court also stated that unless the trial court were given an opportunity to addr ess the issue through a motion for
new trial , then the issue wi ll not be considered on appea l. Spadafina , 952 S.W.2d at 451 (c itation om itted); see also Tenn. R . App. P. 3(e).

Howeve r, Defendant contends that this Court

should recogni ze plain er rorin this instance. This Court may, i n an exer cise of i ts discr etion, consider an i ssue which has been waived. In order f or this Cou rt to fi nd plain error, t he error must affecta substanti al right of t he accused. Tenn. R. Cr im. P. 52(b) . After a careful review of the record, we f ind that t he evidence i n this case di d not fairly rai se the issue of faci litat ion of second degr ee murder as a lesser offense, and the trial court theref ore properly o mitted it from the jury instru ctions. Th is Court h as held th at a jury should be inst ructed on facil itati on only when theevidence rai ses an issue t hat the defend ant “lacke d the inten t to prom ote or a ssist i n, or benefit from, t he [underly ing] felony’s comm ission.” State v. Utley , 928 S.W.2d 448, 452 (Ten n. C ri m. App. 1995). The gene ral rul e is that a trialcourt need onl y instruct on a lesser offense w hen the e vidence would su pport a c onviction fo r that offens e. State v. Trusty , 919 S.W .2d 305 , 311 n.5 (T enn. 19 96).

The record in t he case sub judice , as fully e xplain ed i n Issu e I, clea rly suppo rts Defe ndan t’s convicti on for cri minal responsi bilit y for t he shooting of

Corey Barbee, and is devoid of anyevidence upon whi ch a ration al jury could have found him guilty of mere facilitation. A d efenda nt is respo nsible for fa cilitation of a felony if “knowi ng that anot her inten ds to com mit a spe cific felony, but without the intent required for cri minal responsi

bilit y under § 39-11-402( 2) , the pe rson k nowin gly furnishes

substanti al assistance i n the commission of the felony. ” Tenn. Code Ann.-22-

§ 39-11-403 (emph asis add ed). There is no evi dence in the r ecord that Defendant knew of his accompl ice’s i ntentto sho ot Bar bee b ut lack ed the intent to bene fit from the felonio us conduct . On the contr ary, th e evidence shows t hat Defendant knew of the armed kidnappi ng and the natural an d proba ble cons equen ce that a shooting
w ould occur, and he i ntended to benef it fr om it all . The evidence showed tha t th e armed kid nap ping was part of an effor t by Defendant

to coll ect drug debts from Brinkley. Thus, the evi dence showed an intent by Defendant “t

o benefit in the proceeds or result

s of the offens e,” a key el ement of the i ntent requi red for criminal responsibility. See Tenn. Code Ann. § 39-11-402(2). Therefor e, Defendant l acked the mental state for faci litat ion. In the cont ext of p lain err or, we see nothi ng that affects the substan tial rights of Defen dant. See Tenn. R. Crim. P. 52(b). This issue is without m erit.

VI. Sentenci ng
When an accused challenges the l ength, range, or t he manner of servi ce of
a senten ce, this cou rt has a du ty to condu ct a de novo review of th e sente nce with
a presumption t hat the determinations made by t he trialcourt are correct. Tenn. Code Ann. § 40-3 5-401(d). Th is presump tion is "conditioned up on the affirmative showing in the reco rd th a t the trial court considered t he sentencing principl es and all relevant fac ts and circ umsta nces." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).

In conducting a de novo review of a sentence, t his Court must cons id er the evidence adduced at tr ial and t he sentencing hearing, t he presentence report, t he princi p les of sentenci ng, the arguments of counsel r

elativ e to sentenci ng-23-

alternatives, the nature of the offens e, and the defend ant’s p otentialfor rehabilitation. Tenn . Code Ann. § 4 0-35-21 0; State v. Parker , 932 S.W.2d 945, 955- 56 (Tenn . Crim App . 1996).

If our rev iew refle cts tha t the tria l court followed the statut ory sentenci ng procedure, impo sed a lawful s enten ce afte r havin g giv e n due considerat ion and properweight to t he factors an d princip als setout under the sentencing l aw, and that the trialcourt's findings of fact are adequately supported by t he record, t hen we may not modify th e sente nce eve n if we wo uld have preferred a different re sult. State v. Fletcher , 805 S.W .2d 785 , 789 (T enn. C rim. App . 1991). A ft er a car eful rev iew of t he record , we conclude that the trial court failed to follow prope r statutory sentencing guideli nes, and therefor e, revi ew by this Cour

t willbe de novo without t he presumption of correctness.
A. Range Defendant was sentenced by the trial court as a Range II M ultiple Offender. Howeve r, the State conc edes , and w e agre e, that D efend ant sh ould be sentenced as a Ra nge I Sta ndard O ffender. See Tenn . Code Ann. § 4 0-35-20 2(a).

B. Enhan cemen t Factors The trial cou rt found the five fo llowing enha ncem ent fac tors to b e app licable to Defendant’ s convict ions of second deg ree murder and aggravated kidnappi ng:

1. Defenda nt has a previ ous history of crimi nal convict i ons or criminal behavior in addition to those necessary to establis h the appropri ate range; 2. Defend ant was a leader in the commissi on of an offense involvi ng two (2) or more criminal actor s;-24- 3. T he of

fen se i nvo lv ed mo re t han o ne v ict im; 4. Defendant tr

eated or all owed a victim to be treate d with exceptionalcruelty

during the commission of the off ense; and 5. Def enda nt h ad no

hes it ati on ab out

commi tt inga cr ime when the risk

to human life was high.
See Tenn. Code Ann. § 40-35-114(1) , (2), (3), ( 5) and (10). The trialcourt found no applic able statutory mitigati ng factors. Defendant does not contest t he applicab ility of the enhancement factor pertaini ng to his pr

evious history of

criminal behavior or the factor per

taining to him being a leader where t here are two or more criminal actors. See Tenn. C ode Ann . § 40-35-114 (1) and (2). Defenda nt also does not challengethe appli cabili ty of t he exceptionalcruelty factor to the aggravated kidnapping convicti on. See Tenn. Code Ann. § 40-35-114(5). However, Defendant does challenge t hree other factors to the secon d degree murde r convi ction, and two factors t o the aggravated kidnapping conv iction
.
First, the State concedes, and we agree, that enh ancem ent factor (3), that the offense involves multipl e victi ms, does not apply i n this case. See Tenn. Code Ann. § 40-35-114(3). Defendant was convi cted of th e second degre e mu rder of the victim Barbee, and was convicted of the aggrav ated kidnappi ng of the victim B rinkley. T his Court has held that

where a defen dant is con victed of a separate of fense against each of the tw o victim s, this e nhan cem ent fac tor doe s not a pply
. See S tate v. Williamson , 919 S.W .2d 69, 82 (Tenn . Crim. A pp. 199 5); Ten n. Cod e Ann. § 40-35- 114(3). Therefore, enhan cement factor (3) should not be applied to either co nvicti on.
Next, Defendant contends that the enhancementfactor i nvolvi ng exceptional cruelty to the vi ctim does not apply to the second degree murder co nvi ction. See-25-

Tenn. Code Ann. § 40-35-114(5). However, he does concede that it appliesto the aggravated kidna pping convic tio n. The evidence shows t hat vict im Corey Barbee
was shot f ive or

six t imes by hi s assail ant and di ed approxi mately t wo we eks la ter in the hospital. This Cour t has held t hat the appl icatio n of Tenn. Code Ann. § 40-3 5- 114(5) requ ires a finding of cruelty over a nd above that inhere ntly attenda nt to the
c ri me for which the defen dant is co nvicted. State v. Emb ry , 915 S.W.2d 451, 456 (Tenn. Crim. App. 1995). This factor has typically been appl ied in sit uationswhere the victim(s) we re tortured or abus ed. See State v. Davis , 825 S. W.2d 10 9, 113 (Tenn. Crim. A pp. 199 1), perm. to appeal denied (Te nn. 1992). Alt hough it was undo ubted ly cruel to shoot the vi ctim multi ple times at close ran ge , this case involved no exten ded len gth of torture , n or any unus ual type of abu se tha t would upho ld this fac tor. We f ind no evidence in the record to support a findi ng of exceptionalcruelty. See Sta te v. John Dennis Rushing , C.C.A. No. 01C01- 9501- CR-00020, Davidson Coun ty (Tenn . Crim. A pp., Nashvill e, Feb. 13, 1996) . In State
v. Thom as Edwa rd Murphy, Jr. , C.C.A. No. 02C01- 9502-CC-00032, Fayette C ounty (Tenn. C rim. App., Jack son, June 2 8, 1996), this Court held that Tenn. Code Ann. § 40-35-114(5) did not appl y to a second degre e mu rder co nviction where the victim was sh ot twice in the chest an d once in the hea d.
Furthermore, the victi m’s medical com plicatio ns wh ich m ay hav e cau sed h im to suffer bef

ore his ul timate deat h do not affect the appl icabil ity of this part icular enhancement factor. This Court has sp ecifical ly li mited the appl icatio n of Tenn. Code Ann. § 40 -35 -11 4(5 ) t o th e tr eat ment of t he v ict im d uring the co mmission of the offense. See State v. Rob ert W illi am Holmes , C.C. A. No. 01C01- 9303- CC00090, Montgo mery C ounty (T enn. C rim. App ., Nashville, A ug. 11, 19 94), perm. to appeal denied (Tenn . 1995). B ased o n the fore going, w e fi nd t hat the trial court-26-

erred in applying enha ncement factor (5) to the second degree murder convi ction, but as Defe ndant c onced es, it is applica ble to the aggravated kidnapping conv iction
.
Defendant also ch alleng es the applic abili ty to both convict ions of enhancement factor (10) , “no hes itation to commi t t he c ri me when the ris k to human l ife wa s high.” Tenn . Code An n. § 40-35-11 4(10). The c ourts of this State ha ve cons istently held that

this factor doesapply, however, when per sons other t han the intended victi m are present and placed at risk of harm
. See , e.g. , State v. Ruane , 912 S.W.2d 766, 784 (Tenn. Crim. A pp. 199 5); State v. Makoka , 885 S.W.2d 366, 373 (Tenn . Crim. A pp. 199 4). In this cas e, Brinkl ey wa s present and in close proximity when the int ruders enter ed the market and f ired five or six shots at Corey Barbee. Also, the intrusi on by the three men, at least t wo of whom carr iedfi rea rms with the intent to ki dnap Brinkley, placed Barbee at ri sk of his li fe and in factresulted in his death. Therefor e , each of Defendant’s offen ses was committed under circumstanceswhich created a high ri sk to the l ife of a person other than t he intended victim. The trial cou rt prop erly applied enhancement f actor (10) to both the
secon d degre e murd er convic tion and th e aggra vated kidn apping conviction
.

In summary, upon remand for r esentencing within R ange I, the trial court shou ld apply enhancement factors (1) , (2) and ( 10 ) to th e second degree murder convicti on and enhancement factors ( 1), (2) , (5) and ( 10) to the aggr avated kidnapping conv iction
.
C. Consecutive Sentencing In ordering t hat Defendant’ s sentences for aggravated kidnapping a nd second degree murder be served consecutively, t he trialcourt stated:-27- [T]he Court recalls that thi s was a case where an i nnocent bystander, in all effect, was j ust sh ot dow n bec ause , it’s apparentfrom the proof in thi s case, the Defendant did not receive his money from drug transacti ons. The scourg e of th is community i s based on drug transactions. Most o f the diffic ulty we h ave in th is cour t is the result o f drug transact ions. This [c]ourt has no sympathy, whatsoeve r, foran individual t hat participates, or commits, murder to enforce drug transacti ons.
The trial court failed to follow proper statu tory sentencing pr ocedure, in that it

did not set forth the r equired statutory reasoning in imposing consecutive sentences. Therefore, on rem and o f this case to the t rial cour t, it must state specific fi ndings of fact and c onclusio ns of law o n the rec ord if cons ecutive se ntencing is impos ed.

Defendant also con tends tha t even if c o nsec utive se ntenc ing wa s prop er in the case sub judice , the trial court nevertheless err ed in orderi ng his sente nces in this case to be s erved cons ecutive ly to his sentence in another case, Davidson Coun ty Criminal Court docket no. 92-A-104. Defendant argues that the convicti on in thatcase has not been reduced to judgment and the sentence has not yet b een imposed, thereby

not making it a prev iously i mposed sentence to whic h the present sentences may be run consecutively.

The detaile d facts surrounding t his issue r eveal that

in May of 1993, Defendant went to trial and was conv icted by a jury on t he charge of possess ion of cocaine with intent to deliver, a Class B felony . The tri al court s entenced Defendant to eight (8) years as a Range I O ffender. However, subsequent ly on apost-verdict motion for judgm ent of acq uittal, the trial cou rt conclud ed that t he evidence of Defe ndan t’s intent to deliver was i nsuffic ient. The cour t therefore set asi de the verdict, acqu itted D efend ant of fe lony po sses sion, a nd se ntenc ed him to eleven (11)-28-

months and twenty-ni ne (29) days for misdemeanor cocaineposse ssion. T he State appealed. See State v. Harold Wayne Shaw , C.C.A. No. 01C01-9312-CR-00439, slip op. at 1, Davidso n County (T enn. Crim. A pp., Nashville, Oc t. 24, 1996).

The State’s appealwas pending at t he time Defendant com mitted the offenses in this case. On October 24, 1996, thi s Court issued its deci sion rever sing thetrial court’s a ction. This Court expr essly order

ed the fol lowing i n regard to sentencing: The case is remanded to the tri al court f or it to re instate the eight-year sentence and f ive thousand d ollar f ine and to enter a judgment of convicti on for poss ession of cocaine with the inte nt to deliver, a Class B felony. Id ., sl ip o p. at 4. Def enda nt d id n ot a ppl y t o th e su pre me co urt for per mi ssion t o appeal, and t he mandate issued Januar y 2, 1997.

The effect of

this Court ’s rever

sal of t he trialcourt’s action was to restore t he originalfelony conviction as if the trial cou rt had never set i t aside. A decision of an appellate court reversing or modi fying a trial co urt dec ision is e ffective r etroac tively to the date of

the origi nal judgment, unless the appel late court judgment specif ies otherwis e. Gotten v. Gott en , 748 S.W .2d 430, 431 (Tenn. Ap p. 1987).

In defen dant’s case, this Cou rt explicitly directed the trial court on rem and to reinstate the Class B felony conv iction and the eight (8) year sentence as wellas the originalfine impo sed. Shaw , C.C.A. No. 01C01 -9312-C R-00439, sli p op. at 4. Defendant’s 1993 f

elony convi ction fo r possession of cocaine wit h intent

to deli ver was therefo re reins tated re troactiv ely to the date it w as orig inally ent ered. That makes the eight (8)year sentence on that convi ction apreviousl y imposed sentence. The trial court was the refore aut horized by Tenn. R. Crim. P. 32( c)(2) to run the-29-

sentences in this case conse cutively to the senten ce in the e arlier case
. This issue is without m erit.

Conclusion

Based on all the fore going , Defendant’ s convict ions for s econd degree murder and aggrava ted kidna pping a re affirme d. The case is remanded to t he trialcourt for resentencin g in accordance wi th this opinion.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ JOHN H. PEAY, Judge

___________________________________ L.T. LAFFERTY, Special Judge