State v. Antonio Saulsberry/Franklin Howard ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JUNE SESSION, 1998
FILED
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9710-CR-00406
) December 21, 1998
Appellee, )
) Cecil Crowson, Jr.
Appellate C ourt Clerk
) SHELBY COUNTY
VS. )
) HON. JOSEPH B. DAILEY
ANTONIO L. SAULSBERRY ) JUDGE
& FRANKLIN C. HOWARD, )
)
Appellants. ) (First Degree Murder; Aggravated
) Rob bery)
ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF SHELBY COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
STEFFEN G. SCHREINER JOHN KNOX WALKUP
Attorney for App ellant Saulsbe rry Attorney General and Reporter
295 Washington Avenue, Suite 3
Memphis, TN 38103 PETER M. COUGHLAN
Assistant Attorney General
JOSEPH S. OZMENT 425 5th Avenu e North
Attorney for App ellant Howard Nashville, TN 37243
217 Exchange Avenue
Memphis, TN 38103 WILLIAM L. GIBBONS
District Attorney General
JAMES V. BALL
Attorney for App ellant Howard TER RELL L. HAR RIS
217 Exchange Avenue J. ROBERT CARTER
Memphis, TN 38103 PHILL IP GE RALD HAR RIS
Assistant District Attorneys General
Criminal Justice Complex, Suite 301
201 Poplar Street
Memphis, TN 38103
OPINION FILED ________________________
AFFIRMED IN PART; REVERSED IN PART; REMANDED
PAUL G. SUMMERS, JUDGE
OPINION
The Defe ndan ts, Anto nio L. Saulsberry and Franklin C. Howard, pursuant
to Tennessee Rule of Appellate Procedure 3(b), appe al as o f right the ir
convictions for first degree premeditated murder, esp ecially aggravated robbery,
and conspiracy to commit aggravated robbery. In addition, Defendants appeal
the trial court’s application of consecutive sentencing. These convictions arose
from the robbery of a Memphis T.G.I. F riday’s resta urant an d the m urder of its
mana ger, Ge ne Frieling .
Defen dants present ten as signm ents o f error: (1 ) the trial c ourt er roneo usly
admitted a photograph of the deceased victim; (2) the evidence was insufficient
to show premeditation or intent for first degree murde r; (3) crimina l respons ibility
for first degree premeditated murder is not supported by the proof and the trial
court erroneous ly charged the jury on crimina l responsibility; (4) the trial court
erron eous ly charged the jury on the elements of first degree premeditated
murder; (5) the trial court failed to charge the jury of the nee d for mo ral certainty
to convict; (6) the trial court failed to instruct the jury that a prio r inconsistent
statement could be considered for impeachment purposes only; (7) the trial court
erron eous ly admitted a videotape of the crime scene and commented on the
portion of tape not sho wn to the jury; (8) the errors made by the trial court amount
to cumulative error, requiring a new trial; (9) the trial court erroneously imposed
consecu tive sentences; and (10) the trial court failed to grant a necessary mistrial
based upon an alleged discovery violation by the State.1
1
In the interest of clarity, we address these points of alleged error in a different order.
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Defen dants were indicted by the Shelby County Grand Jury in July of 1995
on charges of premeditated murder in violation of Tennessee Code Annotated §
39-13-202(a )(1), murder committed during the perpetration of a robbery in
violation of § 39-13-202(a)(2), murder committed in perpetration of a burgla ry in
violation of § 39-13-20 2(a)(2), espec ially aggrava ted robb ery in violation of § 39-
13-403, and conspiracy to commit a felony in violation of § 39-12-103.
Defen dants were convicted by a jury on February 14, 1997, of first degree
premeditated murd er, esp ecially a ggrav ated ro bbery , and c onsp iracy to c omm it
aggrava ted robb ery.
Following a sentencing hearing, the trial court sentenced Defendant
Saulsberry as a Range II offender to forty years for especially aggra vated robbe ry
and ten years for conspiracy. Defendant Howard was sentenced as a Range I
offender to twenty-five years for especially aggravated robbery and six years for
conspiracy. The trial court ordered all sentences, including life imprison ment, to
run con secutively.
I. SUFFICIENCY OF THE EVIDENCE
In their second and third issues, Defendants maintain that the evidence
presen ted was insufficient to convict them of first degree prem editated mu rder,
by either a theory of direct lia bility or a theory of criminal responsibility for the
conduct of another. In partic ular, D efend ants c laim th at the “r ecord is devo id of
any evidence indicating premeditation or deliberation.” Following a careful
exam ination of the re cord, w e con clude that the State d id not present evidence
sufficient to permit a jury to con vict Saulsberry of prem editated mu rder, but we
affirm the premeditated murder conviction of Howard.
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Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings
of guilt in criminal actions whether by the trial court or jury shall be set aside if the
evidence is insufficient to support the finding by the trier of fact beyond a
reasonab le doubt.” Ten n. R. App. P. 1 3(e). In addition, because conviction by
a trier of fact destroys the presumption of innocence and imposes a presumption
of guilt, a convicted criminal defendant bears the burden of showing that the
evidence was insu fficient. McBee v. State, 372 S.W.2d 173, 176 (Tenn. 1963);
see also State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992) (citing State v.
Grace, 493 S.W.2d 474, 476 (Tenn. 1976), and State v. Brown, 551 S.W.2d 329,
331 (Tenn . 1977)); State v. Tug gle, 639 S.W.2d 913, 914 (T enn. 19 82); Holt v.
State, 357 S.W .2d 57, 61 (T enn. 1962 ).
In its review of the evidence, an appellate court must afford the State “the
strongest legitimate view of the evide nce as well as all rea sonab le and leg itimate
inferences that may be d rawn therefrom .” Tug gle, 639 S.W.2d at 914 (citing
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)). The court may not “re-
weigh or re-evaluate the evidenc e” in the rec ord belo w. Evans, 838 S.W.2d at
191 (citing Cabbage, 571 S.W .2d at 836)). Likew ise, should the review ing court
find particular conflicts in the trial testimony, the court must resolve them in favor
of the jury ve rdict or trial cou rt judgm ent. See Tug gle, 639 S.W.2d at 914.
The record in this case reveals a cast of five criminal actors: Claude
Sharkey, Clashaun (“Shaun”) Sharkey, Kevin Wilson, Defendant Franklin
Howard, and Defe ndant Anto nio Saulsbe rry.2 Defendant Saulsberry was
2
The State joined all five men in the same indictment but tried them separately.
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employed at the restaurant prior to January 28, 1995, the date o f this inciden t.
According to the p roof at tr ial, Claude, Shaun, Wilson, and Saulsberry discussed
robbing T.G.I. Friday’s restaurant (“Friday’s”) the day before the crime. In the
early morning hours of January 28, 1995, after the restaurant closed business for
the prior night, Claude, Shaun, Wilson, and Howard drove to Friday’s and waited
in the bac k parking lot.
Friday ’s dishwasher John Wong exited the restaurant through its back door
to dispo se of th e nigh t’s garbag e, and the perpetra tors used this oppo rtunity to
enter the building. Wong heard one man say, “Shoot the mother . . . ,” referring
to Wong. He was pushed from behind with a gun and ordered to lie down on the
ground , and he comp lied.
Claude, Shaun, Wilson, and Howard continued through the back area of
the restaurant towa rd the man ager’s office, where they encountered bartender
Preston Shea . Shea saw four armed men3 with sk i mas ks wa lking to ward h im
and screaming. He was knocked to the ground by one perpetrator outside the
manager’s office. At least two men entered the office and screa med, “Give me
the money,” and “Where’s the f__king money.” Shea responded by holding up
his wallet and pleading, “Please, God, take the mo ney and go .” He heard bags
of money being passed from person to person above his head and heard one
man say, “Shoot his ass.” Shea then heard a shot from the manager’s office,
where the perpetrators had already taken the money from the victim, Gene
Frieling.
3
Defendant Howard denied entering the restaurant and denied being armed; however, it is
undisputed that no one else drove to the scene with Claude, Shaun, Wilson, and Howard.
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Wong, remaining on the floor during the disturbance, also heard one of the
perpetrators demand, “Give me the money—give me the money,” an d he heard
Frieling say, “Take it, take it, take it.” Wong heard “[o]ne explosion then two—the
two that I heard , it was like two in one— the swiftne ss of it that foll owed
behind—one behind the other.” Then Frieling said, “Jesus Christ, he shot me,
he shot m e.”
Shea had been repea tedly kic ked d uring th is episode , and as th e men left
the office, he was shot three times—twice in the leg and once in his lower back,
through his bladder and intestines. He then crawled into the office and called
911, but he was too injured to stay with the telephone. As he fell back to the
floor, W ong too k the telep hone a nd finishe d the 91 1 call.
Jessica Hoard, a server at Friday’s, also testified for the State. Hoard was
the only other employee still present on the morning of January 28, and she was
in the dining room of the restaurant when the perpetrators arrived. One of the
men ordered her to wa lk into the kitc hen and commanded, “Get on the floor
before I shoot you.” She heard one person say, “W here’s the m oney,” a coup le
of times, and she then heard at least two gunshots. When she believed the
perpetrators were gone and she could safely stand up, Hoard helped John Wong
attend to the w ound ed Frie ling an d She a. Bec ause Frieling was only barely
breathing, the two uninjured employees decided to lift him from a prone position
to an upright position. Frieling remained in this sitting, slumped posture until he
was found by police and determined dead. An autopsy revealed that the cause
of death was a g unsho t wound to the hea rt.
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On Februa ry 9, 1995 , Defendant Saulsberry made a statement to police
recounting his invo lvement in the e vents preced ing the robbery:
It was first brought up o n my way h ome a d ay before the rob bery.
Me, Claud e, Sha un, an d Kev in [W ilson] were in Claude’s car. He
was taking me h ome from the neighbo rhood. And , we were
smoking “bud” (marijuana) on our way home. And, ah, Claude said,
“Hey, what’s up with Friday’s”? I said, what do you mean what’s up
- you’re ready to start w orking there? Then , he sa id, “Nall, man,
nall, man, I’m talking about hitting that joint.” I said, man, you’re
crazy than a motherf__ker. The n, he s aid, “N all, nigg er, I’m
serious!”. So, we d idn’t say an ything else about tha t. When we got
to my house, we sat in the car on the parking lot outside my house.
Then, “Little Kevin” s aid, “W hat tim e the joint closes”? And, I said,
at one (1) o’clock A.M. Then, Claude had showed me a silver gun.
And, I said, hurry up and get me out of here. I got out of the car and
Shaun got out with me. Then, I said, Shaun, man, is that boy
serio us? Shaun said, “Yes , man, h e’s broke , man”. I sa id, man,
y’all can try that dumb shit if you want too [sic], but I ain’t got nothing
to do with it. B asically, that’s it, really.
Saulsberry denied telling anyone where the safe was located within the
restaurant or how much money would be available there, but he admitted
informing Claude, Shaun, and Wilson how to gain entry from the back of the
restaura nt. The State introduced testimony that Sauls berry w as ultim ately pa id
$50 for his role in the rob bery a nd tha t he wa s dissa tisfied w ith this
amou nt—fa cts that Saulsberry disputed in his statement. It is undisputed,
however, that Saulsberry was not present at T.G.I. Friday’s the night of the
robbery and m urder.
Defendant Howard was present at the crime scene, and his statement to
police on Februa ry 7, 1995 , related eve nts at the re stauran t:
I was riding with them [Claude , Shaun , and W ilson]. Claude said he
said man we nee d to go on and do that. I was sleeping in the back
seat and I h eard h im say we need to go on and do this right. So we
rode up to T.G.I. Friday’s and sat up there in the back part behind
the Steakh ouse R estaura nt and w e went o n and walked up there.
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I stayed all the way in the back and they ran in the restaruant [sic]
and I heard some shots fired so I ran to the car and they ran to the
car and Kevin [Wilson] said I shot him man I shot him . So we le ft
and went back to Claude’s house and then w e just stayed over the re
until the m orning ca me an d I told him to take m e hom e.
According to Howard’s statement, Claude, Shaun, and Wilson were armed when
they entered the res taurant. After the robb ery, Howard received a portion of the
procee ds, althou gh the a moun t is disputed .
W hile we agree with both the State and Defendants that this is quite a
typical felony murder prosecution, we cannot agree with the State that the
evidence supports a ve rdict of premed itated murde r against Sau lsberry. 4 To
support finding s of pre med itation a nd de liberatio n, the S tate relies on
circum stantial evid ence, sp ecifically:
Given the perp etrators’ co mm ands to each o ther to shoot the
employees, the murder of the manager after he had done everything
asked of him, and Shea’s testimony that they came back, stood over
him and shot him three times after he had give n them his wallet, a
rational jury could find that the pe rpetrators deliberate ly went into the
restaurant with a plan.
In our view, more is required to sustain a conviction for first degree
premeditated murder rather than felony m urder. See State v. West, 844 S.W.2d
144, 147-48 (Tenn . 1992); State v. Brown, 836 S.W.2d 530, 540-43 (Tenn.
1992); State v. Boyd, 909 S.W .2d 50 (T enn. C rim. App . 1995). Cf. State v. Leroy
Hall, C.C.A . No. 03C0 1-9303 -CR-0 0065, H amilton C ounty (T enn. C rim. App .,
Knoxville, Dec. 30, 1996), aff’d by partial incorporation, State v. Hall, 958 S.W.2d
4Nor, however, can we agree that Saulsberry cannot be retried for felony murder, although this
issue is not before us. The jury was strictly instructed to cease deliberations upon finding
Defendants guilty of premeditated murder. When the jury found them guilty of premeditated
murder, it did not render any further verdicts on homicide charges. This does not equate to an
acquittal. State v. Burns, S.W.2d Appendix (Tenn. 1998).
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679, 703-06 (Te nn. 199 7); State v. Frank W hitmore, C.C.A. No. 03C01-9404-CR-
00141, Bloun t County (Te nn. C rim. A pp., Kn oxville, June 19, 1997). Because
this crime was c omm itted prio r to our le gislatu re’s m odification of the eleme nts
of premeditated murder, we must analyze these facts under prior law requiring
deliberatio n as an eleme nt of the offe nse.
In State v. Brown, our supreme court re-examined premeditation and
deliberation, recognizing that over time, “prosecutors and ju dges had a ppare ntly
fallen into the error of commingling these two elements by using the terms
interchan geably.” 836 S.W.2d at 539. According to the Brown court, this
perception constituted a “substantial departure from the traditional law of
homicide”—a departure which prompted the legislature to redraft the first degree
murder statute to define preme ditation an d delibera tion. Id. at 542. As defined
by statute, a premeditated act was “one done after the exercise of reflection and
judgm ent,” and a deliberate act was “one performed with a cool purpo se.” Id.
(quoting former T enn. C ode An n. § 39-1 3-201(b )).
In light of this legislative clarification and what the Brown court perceived
to be persistent infidelity to the historical foundation of first degree murder, the
court emphatically rejected an amalgamation of the two formerly distinct mental
states. Id. at 543. In addition, the court stated:
[W]e think it is time to rec ognize . . . that “[m]ore than a split-second
intention to kill is required to constitute preme ditation,” wh ich “by its
very nature is not instantaneous, but requires some time inte rval.”
. . . [I]t is now abundantly clear that the deliberation n ecessary
to establish first-degree murde r canno t be formed in an in stant. It
requires proof . . . that the homicide was “committed with a ‘cool
purpos e’ and w ithout pas sion or pro vocation . . . .”
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Id. (quoting Sentencing Commission Comments to former § 39-13-201(b))
(alterations in originals). In Brown, the defendant’s premeditated murder
conviction could not stand where the State offered circumstantial proof “that the
defendant acted maliciously toward the child, in the heat of passion or anger, and
without adequate provocation.” Id. (footnote om itted). Furthermore , the court
refused to find that repeated blows to the victim can alone support an inference
of prem editation o r deliberatio n. See id.
In State v. West, decided just six m onths after Brown, the suprem e court
considered a case much like the one at bar. 844 S.W.2d 144 (Tenn. 1992). The
State argued that the de fendan t’s emotio nal state a nd action s after the
crime— calmnes s, failure to tell others about the crime, and concealment of the
murder weapo n—in dicated p remed itation and deliberatio n. Id. at 148. Rejecting
this argument, the court explained, “The element of premeditation requires a
previo usly formed design or intent to kill. . . . Deliberation, on the other hand,
requires that the killing b e done with a coo l purpose —in oth er words , that the
killer be free from the passions of the mom ent.” Id. at 147 (cita tions om itted); see
State v. Boyd , 909 S.W .2d 50, 54 -55 (Te nn. Crim . App. 19 95).
The West court d ecline d to rec ogniz e con cealm ent of evidence after a
crime as probative of intent held prior to the crime, stating, “One who kills another
in a passionate rage may dispose of the weapon when reason returns just as
readily as the cool, dispassionate killer.” 844 S.W.2d at 148. W hile the court
acknowledged that proof of calm ness after a crime may be plausible evidence of
preme ditation an d delibera tion, it failed to find any evidence material to show a
calm emotional s tate an d note d that th e defe ndan t’s beh avior ind icated simp ly
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“indifference to the victim and fea r of detection.” Id. Finally, the court rejected
the State’s theory that the defendant left the scen e of a hea ted argu ment w ith the
victim, obta ined his g un at ho me, an d went b ack to the scene to kill the victim:
W hile the sta te’s the ory m ay be tr ue, it rem ains only a theory,
because the pros ecution has no evidence to support it. No one
witnessed the defendant’s retrieval of a gun, nor does any
circumstantial eviden ce exis t to sup port this theory. . . . Thus, a jury
would have to engage in pure speculation to conclude that the
defendant had re turned to his hous e in order to get a gun with which
to shoot [the victim]. Although the jury is permitted to disbelieve the
defen dant’s testimony, it may not construct a theory based on no
eviden ce at a ll.
Id.
In the case at bar, we find no evidence—direct or circumstantial—sufficient
to perm it a jury to fin d prem editatio n and delibe ration o n the p art of A ntonio
Sauls berry, who wa s not eve n prese nt when the mu rder was comm itted. The
record clearly reveals that Antonio Saulsberry did not participate in the actual
robbery; therefore, his conviction must be based upon criminal responsibility for
the con duct of the shoote r, rather tha n direct liability.
By statute, crim inal respo nsibility require s that a de fendan t, “[a]cting with
intent to prom ote or as sist the commission of the offense, or to benefit in the
proceeds or results of the offense, . . . solicits, d irects, a ids, or a ttemp ts to aid
another pe rson to com mit the offense.” T enn. Cod e Ann. § 39 -11-402(2). The
record contains some evidence which, if believed by the jury, would at best
support an inference that Saulsberry (1) aided a robbery, with the intent th at a
robbery be committed; and (2) intended or expected to receive some proceeds
from the robbery. The record does not, however, contain any evidence that
Saulsberry intended to assist in the commission of a mu rder, intend ed that a
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murder take place, or intend ed to bene fit in the proceeds or re sults of a murd er,
whatever they may be. There is no evidence tending to show an intention, or
even an expe ctation, prio r to the rob bery, th at mu rder w ould facilitate the robbery.
Although the State directs our attention to Saulsberry’s statement, in which
he recalls that Claude S harkey s howed him a silve r gun, to de mons trate
Saulsberry knew a nd intend ed that a m urder oc cur; we b elieve this evidence
tends to show only that Saulsberry knew an armed robbery could occur. Next,
the State points to Claude’s statement to Saulsberry, “I’m talking about hitting
that joint.” Here again, we find no evidence to support knowledge of any act
other than robbery, much less intent for any other act to occur. Though murder
is a consequence of many armed robberies, a finding of intent in this case
requires “pure speculation” of the type warned against in West. We again
emphasize that our focus is on whether the e vidence is sufficient to su pport
convictions for premed itated first degree m urder, rather than felony m urder.
Saulsberry’s premeditated murder conviction is reversed.
Likewise, with res pect to Frank lin How ard, the Defe ndan t argue s that a ll
circumstantial evidence presented by the State to show premeditation and
deliberation is probative only of an intent to rob. The State produced evidence
sufficient to perm it a jury to fin d that H oward particip ated in the robbery by
entering Friday ’s resta urant c arrying a weapon, though this testimony was
disputed. The State offered no proof, however, that Howard murdered the victim
in this case, Gene Frieling . In fact, th e only gun found in Howard’s possession
was conc lusively determined not to match shells and bullet fragments recovered.
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Therefore, Howard’s conviction must also be based upon his criminal
respon sibility for the co nduct o f the shoo ter.
The State argues that intent can be inferred from the general conduct o f
the perpetrators: comm ands b y one to shoot the employees of the restaurant, the
fact that the victim was killed d espite compliance with the robbery, and the fact
that Shea wa s shot desp ite giving them his w allet. Evidence regarding the
severity or cruelty of the act can be relevant to premeditation and deliberation on
the part of the principal a ctor. See State v. Brown, 836 S.W.2d 530, 541-42
(Tenn. 1992); State v. Lero y Hall, C.C.A. No. 03C01-9303-CR-00065, Hamilton
Coun ty (Tenn . Crim. A pp., Kno xville, Dec. 30 , 1996), aff’d by partial
incorporation, State v. Hall, 958 S.W .2d 679 , 705 (T enn. 19 97).
In State v. Frank W hitmore, a principal’s actions cast a circumstantial
shadow of intent onto a companion, in the absence of direct evidence of the
com panio n’s intent p rior to the murd er— eviden ce su ch as an ag reem ent to k ill,
words of encou ragem ent, or assistance in preparatory operations with knowledge
that a murd er would occur. C.C.A. No. 03C0 1-9404 -CR-0 0141, B lount Co unty
(Tenn. Crim. App., Knoxville, June 19, 1997). In Wh itmore, a panel of this Co urt
affirmed the defendant’s conviction for premeditated murder based upon criminal
respon sibility where the evidence showed that the defendant drove with Williams,
the principal in the murder, to the victim’s home for the purpose of committing a
burglary and theft. The testimony indicated that the defendant and Williams
intended only to scare the victim with a knife carried by Williams—in fact, they
waited until they thought he had gone to bed before entering. However, the
evidence also revealed that, once inside the house, they encountered the victim,
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and William s bega n to fight with him. As the armed Williams wrestled for several
minutes with the victim, who was vigorously fighting back, the defendant moved
through the hou se sea rching for m oney. T he defe ndant m ade no attemp ts to
stop the struggle or disassociate himself from the enterprise at that point. From
this evidence, we believed the jury could have reasonably concluded that, once
the struggle bega n within the hom e, the defenda nt formed or shared or
acquie sced in th e intent tha t a murd er occu r.
W e think the re solution o f Defend ant Howard’s criminal liability for
premeditated murder is governed by the T enne ssee Supr eme Cour t’s 1997 case
of State v. Carson, 950 S.W.2d 951 (Tenn. 1997). In Carson, the defen dant,
Gary, and Stover met to discuss robbing a TV repair store in Knoxville. The
defendant Carson had been in the store before. He described the layout and
where mone y could be found. Carson gave a weapon to each of his cohorts.
The trio drove to th e store. C arson w aited in the car while Gary and Stover
entered the store under a ruse that they needed to have a stereo repaired.
Gary and Stover held two em ployees , Adam s and M cGah a, at gunp oint.
They forced the victims into a rear room , searche d them, and stole $130 from
Adams. Gary and Stover bound the victims with telephone cord, closed the do or,
and told the victims not to attempt to escape. They then fired three shots through
the door and almost hit the victims.
Upon leaving the store, Gary and Stover were surprised to find the car and
Carson gone. They exchanged gunfire with police, and they fled. All three
culprits were later found and arrested.
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Carson was charged like his codefendan ts. Gary an d Stove r pled gu ilty
and testified against Carson. Although Carson did not testify, his police
statement admitted driving his co defend ants to the scene but denied knowledge
that a robbe ry would o ccur. He said he believed G ary and S tover were going to
the store to sell the gu ns they b rought.
The jury found Carson guilty of aggravated robbery, aggra vated assa ult
(two counts), and felony reckless endangerment. Carson argued on appeal that
he lacked the culpable mental state for the offenses committed by his partners
in crime.
Carson adopted the “natu ral and p robable conse quenc e” rule. See id. at
955. This rule is based on the premise that criminal aiders and a bettors shou ld
be respo nsible for crim es “the y have natura lly, prob ably an d fores eeab ly put in
motion .” Id. Carson’s convictions were all affirmed. The Court opined “that the
evidence was sufficient to find that the de fenda nt, havin g direc ted an d aide d in
the aggravated robbery with the intent to promote or benefit from its commission,
was crimin ally resp onsib le for all of the offenses committed by his codefendants,
to wit: aggravated a ssault and felon y reckless end angerm ent.” Id. at 956.
W e are of the opinion that Carson dictates H oward’s criminal re spons ibility
for premeditated murder. While in the parking lot and before entering the
restaura nt, one of the pe rpetrators stated , “Shoot th e moth er . . .,” referring to
W ong. All four perpetrators then entered the restaurant armed, acted with a
common purpose, committed acts of violence against various employees, shot
and wound ed one emplo yee, and sh ot and killed another. Under these
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circumstances, Howa rd cann ot escap e crimina l respons ibility for prem editated
murder by claiming he did not share the criminal intent or premeditation with the
actual triggerman. Hence, we find the evidence sufficient to find How ard guilty
of prem editated m urder.
II. ADMISSION OF EVIDENCE
In their first and seventh issues, Defendants contest the decision of the trial
court to adm it a photograph of the deceased victim and a videotape of the crime
scene made by police. They allege that admission of these pieces of evidence
was error, p rejudic ing the ir right to a fair trial. W e find n o error in the tria l court’s
decision to adm it this evidenc e.
A. Ph otogra ph of th e Dec ease d Victim
The photograph to which Defendants object d epicts the victim after his
death, seated on the floor of the restaurant office. The photograph was taken by
police at the scene and introduced as an exhibit to testimony. Defendants argue
both that the probative value was substantially outweighed by its prejudicial value
and that its admission constituted the needless presentation of cumulative
evidence. Defendants claim that the only po ssible function of the evidence was
to inflame the jury. We disagree.
Tennessee Rule of Evidence 403 governs Defendants’ claim: “Although
relevant, evidence may be excluded if its probative value is subs tantially
outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evide nce.” Te nn. R. E vid. 403. In
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Tennessee, we have long “followed a policy of liberality in the admission of
evidenc e.” State v. Banks, 564 S.W .2d 947 , 949 (T enn. 19 78); see State v. Ode ll
Smith , C.C.A. No. 02C01-9707-CR-00259, Shelby County (Tenn. Crim. App.,
Jackson, Aug. 10, 1998). In this respect, the trial court is entrusted with wide
discretion to adm it or refus e a ten dered piece of evidence. See State v.
Harbison, 704 S.W .2d 314 , 317 (T enn. 19 86); Banks, 564 S.W .2d at 949 .
Our supreme court has prescribed factors for a trial judge to consider when
deciding whethe r to adm it a certain ph otograp h, including :
the value of photographs as evidence, that is, their accuracy and
clarity, and whether they were taken before the corpse was moved,
if the position and location of the body when found is material; the
inadequacy of testimonial evidence in relating the facts to the jury;
and the need for the evide nce to estab lish a pr ima fa cie cas e of gu ilt
or to rebut the defendant’s contentions.
Banks, 564 S.W .2d at 951 . Here, the photog raph wa s accura te and clear; and
although the victim had been moved, the photograph correctly depicted the
position in which he died and was found by police—he was still breathing when
moved. Furthermore, the photograph was not inflammatory or gruesome. No
blood w as evide nt, and no wound s were e xposed .
Defendants’ claim that the value o f the ph otogra ph co uld on ly be to inflame
the jury is incorrect. The S tate presented three witnesse s to this crime, a ll of
whom testified extensively to the manner in which the events happened, including
the shoo ting of th e victim in his offic e and the m oving o f his body to perm it him
to breathe. The introduced photograph served to corroborate this testimony and
to bolster the credibility of the Sta te’s witnes ses. For this reason, the photograph
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was relevant yet not needlessly cumulative. See State v. Robinson, 930 S.W.2d
78, 84 (T enn. C rim. App . 1995).
B. Vid eotap e of Cr ime S cene and V ictim
The same general policies should be considered by the trial court ruling on
admis sibility of a video tape. See State v. Bigbee, 885 S.W.2d 797, 807 (Tenn.
1994); State v. R onnie Michael C authern, C.C.A. No. 02C01-9506-CC-00164,
Gibson Coun ty (Tenn . Crim. A pp., Jack son, De c. 2, 1996 ), aff’d by partial
incorporation, State v. Cauthe rn, 967 S.W.2d 726, 743 (Tenn. 1998). Our
supreme court has stated that “the admissibility of authentic, relevant videotapes
of the crime scene or victim is within the sound discretion of the trial judge, and
his ruling on the adm issibility of such evidence w ill not be overturned without a
clear showin g of abu se of disc retion.” State v. Van Tran, 864 S.W.2d 465, 477
(Tenn. 1993); see State v. McCary , 922 S.W.2d 511, 515 (Tenn. 1996) (in dicta).
Although Defendant Saulsberry failed to raise this assignment of error in
his motion for new trial, we will address the issue with respect to both
Defendants. At trial, the State played a videotape for the jury containing scenes
of the restaurant shortly after the police arrived. Defendants present no
argument for exclusion of the videotape, and we find no reason why the tape
would fail to satisfy Tennessee Rule of Evidence 401 for relevancy. Tenn. R.
Evid. 401 (“‘Relevant evidence’ means evidence having any tendency to make
the existence of any fact that is of consequence to the determination of the action
more probable or les s proba ble than it w ould be without the evidenc e.”). In
addition, we find no pre judice that wo uld substantially outweigh the pro bative
value of the videotap e. See Tenn . R. Evid. 40 3.
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Defenda nts argue that the trial court erred by announcing to the jury that
portions of the tape displaying removal of the victim’s body would not be shown
to them. D efendants claim that by informing the jury exactly what it would not
see, the trial judge prejudiced their right to a fair trial. We disagree and find no
error. The trial judge’s simple statement that the videotape showed removal of
the de ceas ed’s body co uld not ha ve com munic ated inform ation of a prejudicial
nature to the jury. Cf. Cauthern , 967 S.W.2d at 744 (affirming by incorporation
this Court’s decision that a videotape of police removing the defendant’s body
from the scene w as adm issible when it was relevant and w hen the prob ative
value did not outweigh the prejudicial value). Therefore, Defendants’ claim of
error rega rding ad mission of the pho tograph and vide otape a re withou t merit.
III. JURY INSTRUCTIONS
In issues three through six, Defendants charge error in the instructions
given by the trial court to the jury. Beca use De fendan ts presen ted only the sixth
issue in their motions for new trial, we are permitted to c onsider the oth ers waived
as a matter of proce dure. See Tenn. R. App. P. 3(e). However, in the interest
of facilitatin g furthe r review of this case, an d beca use the State did not object, we
have examined all alleged erro rs. We c onclude tha t Defendan ts’ claims are
without m erit.
Genera lly, a jury charge “should be considere d preju dicially e rrone ous if
it fails to fairly submit the legal issues or if it mis leads the jury a s to the applic able
law.” State v. Hodges, 944 S .W .2d 34 6, 352 (Ten n. 199 7) (citing Graham v.
State, 547 S.W.2d 531 (Tenn. 1977), and State v. Forbes, 918 S.W.2d 431, 447
(Tenn. Crim. App. 1995)). In addition, “[i]t is the duty of a trial judge to give a
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comp lete charge of the law a pplicable to the facts of a case .” State v. Harbison,
704 S.W.2d 314, 319 (Tenn. 1986) (citing State v. Thompson, 519 S.W.2d 789,
792 (Tenn . 1975)); see State v. Burkley, 804 S.W.2d 458, 461 (Tenn. Crim. App.
1990). This Court also stated in Burkley, “In delive ring its c harge , a cou rt shou ld
guard against an instruction which would withdraw from the jury’s consideration
any issue or evidence which they are entitled to consider.” 804 S.W.2d at 461.
A. Instructions on Premeditated Murder
Defendants’ fourth issue assigns error to the trial court’s charge on first
degree premeditated murder for two reasons: (1) because the judge used the
phrase, “that the killing was inten tional,” rathe r than “tha t the defendant acted
intentionally”; and (2) because the element of deliberation was separated on the
page from the other elem ents of the offense . We find n o prejudicial error.
Tennessee Pattern Jury Instruction 7.01(a ), the pr oper in structio n for this
case,5 reads, in re levant pa rt:
For you to find the defendant guilty of this offense, the state
must have proven beyond a reasonable doubt the existence of the
following essential elements:
(1) that the defend ant unlaw fully killed the a lleged victim ;
and
(2) that the defen dant ac ted intentio nally. A per son ac ts
intentiona lly with respec t to the na ture of th e con duct o r to a res ult
of the co nduc t when it is the pe rson’s conscious o bjective or desire
to enga ge in the c onduc t or cause the resu lt;
and
(3) that the killing was deliberate. A deliberate act is one
performed with a cool purpose;
and
(4) that the killing was p remed itated.
5
Tennessee Pattern Jury Instruction 7.01(a) is the proper instruction for offenses committed
prior to July 1, 1995, the effective date of legislative changes to the statute.
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Tenn. Pattern Jury Instructions 7.01(a) (4th ed. 1995). Because Defendants’
latter argume nt concerns the visual impact of the instructions on the jury, we
reprint the relevant portion as written in this case:
For you to find the defendant guilty of this offense, the sta te
must have proven beyond a reasonable doubt the existence of the
following essential elements:
that the defendant unlawfully killed the alleged victim; and that
the killing was intentiona l. A person acts inten tionally with
respect to the nature of the c onduct or to a re sult of the
conduct when it is the pe rson’s conscious o bjective or desire
to engage in the conduct or cause the result; and
that the killing wa s delibera te. A delib erate act is one
performed with cool purpose; and
that the killing was premeditated.
Although the elements “that the killing was intentional” and “that the
defendant acted intentionally” do convey different meanings, we decline to find
the distinction s ubstan tial enoug h to misle ad the jury to Defendants’ prejudice.
Consideration of the first elem ent, “that the defendant unlaw fully killed the alleged
victim,” should have eliminated any confusion in the minds of the jurors.
(Em phas is added.) Clearly, conviction upon this particular instruction, as
opposed to criminal responsibility, requires a finding that the defendant hims elf
was the “triggerm an.”
Second, we find no error in the visual appearance of the elements.
Though the second element—intent—contains a period prior to its explanation,
so does the third elem ent of d elibera tion. At a mere glanc e, the in structio n cou ld
be slightly c onfus ing to th e jury; bu t we find that eve n a ca reful rea ding is
unnecessary to clearly understand the instruction.
B. Instruc tion on M oral Cer tainty
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Defen dants next com plain that the jury instruction on reasonable doubt
violated due pro cess pro tections. In their fifth is sue, b riefly cons isting o f a sing le
quote , Defendants contest the trial court’s use of Tennessee Pattern Jury
Instruction— Criminal (T.P .I.) 2.03(a). 6 Specifically, they argue that omission of
the term “moral certainty” reduced the jury’s perception of the degree of certainty
required to convict to a point less than that required by the Due Process Clause.
We find no violation of Defendants’ due process rights.
“[T]he Constitu tion neithe r prohibits trial c ourts from defining reason able
doubt nor requires them to do so as a matter o f course.” Victor v. Nebraska, 511
U.S. 1, 5 (199 4). Furthermore, “so long as the court instructs the jury on the
necessity that the defendant’s guilt be proved beyond a reasonable doubt, the
Cons titution does not require that any particular form of words be used in
advising the jury of the governm ent’s burden o f proof.” Id. (citations omitted).
Therefore, it seems that, with respect to reasonable doubt, a trial court’s error
must typically be one of commission, rather than omission. There can be no
mistake in failing to employ distinctive words or phrases, so long as the charge
given is complete and accurate. Beca use w e find th at T.P .I. 2.03( a)— curren tly
the alternate reason able doubt jury instruction for this state—a ccurately conve ys
the level of certainty mandated by In re W inship, 397 U.S. 358, 364 (1970), we
conclude that absence of the term “moral certainty” is of no consequence.
6
We also note that the single case used by Defendants to show error by the trial court, State
v. Derek Denton, C.C.A. No. 02C01-9409-CR-00186, Shelby County (Tenn. Crim. App.,
Jackson, Aug. 2, 1996), actually held that giving an instruction identical to the one in this case
was not error.
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Our supreme court has e xpres sly perm itted the use o f “mor al certa inty” in
this state’s jury ins tructions. See Carter v. State, 958 S.W.2d 620, 626 (Tenn.
1997) (“The phrase is permissible if the context in which the instruction is given
‘clearly convey[s ] the jury's res ponsib ility to decide the verdict based on the fac ts
and law.’”) (quoting State v. Nich ols, 877 S.W .2d 722, 734 (Tenn. 199 4)). Cf.
Austin v. Bell, 126 F.3 d 843, 8 47 (6th C ir. 1997), cert. denied, 118 S. Ct. 1526(1998) (also accepting a “moral certainty” instruction). We note carefully and
explicitly, however, that our supreme court has allowed use of the term, not
encouraged its use. But cf. State v. Jose Holmes, C.C.A. No. 02C01-9505-CR-
00154, Shelby County (Tenn. Crim. App., Jackson, Dec. 10, 1997); State v.
Derek Denton, C.C.A. No. 02C01-9409-CR-00186, Shelby County (Tenn. Crim.
App., Jackson, Aug. 2, 1996) (both expressing a preference for T.P.I. 2.03, rather
than T.P.I. 2.03(a )).
Our courts have u pheld a “m oral certainty” jury instruction when confronted
with defendants’ arguments that the instruction itself, when given, permits a level
of proof lower tha n that con stitutionally req uired for co nviction. See Carter, 958
S.W.2d at 625-2 6; Nicho ls, 877 S.W .2d at 734 (u se of “moral certainty”
perm issible when context further explained reasonab le dou bt and prope rly
reflected evidentiary certainty); Pettyjohn v. State, 885 S.W.2d 364, 365-66
(Tenn. Crim. A pp. 199 4); State v. Hallock, 875 S.W.2d 285, 294 (Tenn. Crim.
App. 1993); see also Amy K . Collignon , Note, Searching for an Acceptable
Rea sona ble Doub t Jury Ins truction in Light of Victor v. Nebraska, 40 St. Louis U.
L.J. 145, 171 (1996) (“[A]lthough the Supreme Court hesitated upon the
accep tability of phrases su ch as ‘mora l certainty’ . . . , interpreting courts have
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gleaned only that the instruction must pass constitutional muster having been
read as a whole .”).
Now, howeve r, these pa rticular De fendan ts com plain that failure to provide
a “moral certainty” instruction also encourages conviction upon a reduced degree
of proof. W e recently addre ssed this very issue with respec t to T.P.I. 2 .03(a) in
State v. Henning, C.C.A. No. 02C01-9703-CC-00126, Madison County (Tenn.
Crim. A pp., Jack son, O ct. 24, 1997); and we find no reason to deviate from our
conclusion in that case that the ins truction is not co nstitutio nally deficient. See
id. at 9; see also Denton, C.C.A. N o. 02C 01-940 9-CR -00186 , slip op. at 8 (“[W ]e
cannot conclude that the trial court erred by refusing to include the phrase 511 U.S. 1 (1994), in which the Court expressed concern that the term c ould
have “lost its historical meaning.” Id. at 13. There, the Court held “moral
certainty” constitutional within an in struction th at “lends c ontent to th e phras e.”
Id. at 14, 16 (“The instruction thus explicitly told the jurors that their conclusio n
had to be based on the evidence in the case. Other instructions reinforc ed this
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messa ge.”). Because of the changing nature of the ph rase over time , however,
the Victor Court clearly state d that it d id not c ondo ne us e of the phras e in
reason able doubt jur y instruction s. See id. at 16. As the Court noted, “the
definitions of reasonable doubt most widely used in the federal courts do not
conta in any refere nce to m oral certain ty.” Id. at 16-17 ; see id. at 24 (Ginsbu rg J.,
concurring in part and concurring in the judgment) (“I agree . . . with the Cour t’s
suggestion that the term 920 S.W.2d 247 (Tenn.
Crim. App. 1995 ), this Cou rt did not ac cept a sim ilar argum ent. In Williams, the
victim could not pinpoint which criminal held her down and which one of the two
actua lly raped her. The defendant argued the possibility of a nonuna nimous jury
verdict beca use th e State could not pro ve if he was the a ctual rapist or an aide r.
Our Cour t found that in T enne ssee , unde r our crim inal res pons ibility statute, it
makes no differen ce. A defendant crimin ally resp onsib le for a p rincipa l’s acts is
just as guilty as the principa l actor.
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IV. CONSECUTIVE SENTENCING
In their ninth issue, Defendants argue that the trial court erred in imposing
consecutive senten ces, con tending that the evid ence d oes no t indicate
Defen dants are dangerous offenders with little or no regard fo r huma n life. W e
find no error in the trial court’s consideration or decision.
This Court reviews the length, range, or m anner of service of sentence
imposed by the trial court based upon a de novo standa rd. See Tenn. Code Ann.
§ 40-35-401(d). However, we owe the trial court’s determination a presumption
of correctness, see id., so long a s the trial cou rt “place[s] o n the rec ord its
reasons for arriving at the final sentencing decision ” and exh ibits com pliance w ith
the statutory se ntencing guideline s and p rinciples. State v. W ilkerson, 905
S.W.2d 933, 934 (T enn. 1995 ). Here, the record contains a leng thy and
compre hensive deliberation by the trial court regarding Defendants’ sentencing,
and we therefore accord the sente nce a p resum ption of co rrectnes s.
Defen dants bear the burd en of sho wing tha t the sente nce is im proper. See
State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 199 1). Defendants allege that the
aggreg ate term of life imprisonment “is quite reasonably sufficient in the terms of
length to ade quate ly punish [Defendants] and to adequately protect society,” but
they have nowh ere identified any err ors comm itted by the trial court or why
consecu tive sentencing is not appropriate in this case. They have failed to carry
their burden.
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In the inte rest of ju stice, however, we have examined the sentencing
transcript and a re satis fied tha t cons ecutive sente ncing is app ropria te in this
case. T ennes see Co de Ann otated § 40-35-1 15 gove rns our a nalysis:
(a) If a defendant is convicted of more than one (1) criminal offense,
the court shall order sente nces to run c onse cutively or con curren tly
as provided by the criteria in this section.
(b) The cou rt may order se ntences to run consecutively if the cou rt
finds by a p repond erance of the evide nce tha t:
...
(4) The defendant is a dangerous offender whose behavior indicates
little or no regard for human life, and no hesitation about committing
a crime in which the risk to human life is high.
Id. § 40-35 -115(a), (b )(4). More over,
The proof must also establish tha t the terms imp osed are
reaso nably related to the severity of the offenses comm itted and are
necessa ry in order to protect the public from further criminal acts by
the offend er. In ad dition, the Sentencing Reform Act requires the
application of the s enten cing p rinciple s set fo rth in the Act ap plicab le
in all cases. The Act requires a principled justification for every
sentence, including, of course, consecutive sentencing.
Wilkerson, 905 S.W .2d at 938 ; see also State v. Dale Nolan, C.C.A. No. 01C01-
9511-CC-00387, Sequa tchie Co unty (Te nn. Crim . App., N ashville, June 26,
1997), perm. to app. denied (Tenn . 1998).
In the case at ba r, the trial court explicitly found that Defendants satisfied
the requ iremen ts of § 40-3 5-115(b )(4):
As to the consecutive request, Mr. Howard does have an
extensive record. And in my judgment, he is clearly a dangerous
offender. He has shown no hes itation to comm it a crime when the
risk to hum an life was high.
The facts o f this ca se we re so s hock ing an d app alling th at it
is inconceivable to me that under any interpretation of the
dangerous offender category these individuals would not be
considered to be dangerous offenders. The facts that are in the
record with regard to all four of them being armed, all four of them
showing up at that back door, single file, marching into the store,
each one h aving h is own respo nsibility with regard to the completion
of this robbery. The shootings that occurred with Mr. Frieling and
Mr. Shea.
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Their absolute and total lack of remorse after this is over, as
evidenced by testimony from severa l individu als of the fact that they
went back to the home of the one individual and played Nintendo for
the rest of the night. That’s just pretty amazing testimony that we
heard during the course of this trial. That individuals after having
participated in a crime of this sort would go back to a house and
play Nintendo for several hours until, I guess, they got sleepy and
went to sleep. It is just -- it’s unbelievable. Clearly dangerous
offenders.
With respect to Defendant Saulsberry, the court stated,
In my judgment, for the same reasons as those I indicated
with regard to Mr. Howard, I thin k that c onse cutive s enten cing is
approp riate in this case as well.
The offense is so reprehensible and so atrocious, so
unfathomable, that it is hard fo r me to imagine anyone defining this,
these individuals, as anything other than dangerous offenders.
The court also found no hesitation to commit an offense w hen the risk to
human life was high:
I think that’s clearly established. And I think the case law
suppo rts it. I think there were -- well, I know tha t the record reflects
that there were other individuals in the restaurant, the dishwashe r,
the waitress, others who were all put at risk. The potential to -- or
the risk to th eir life was high. They were very much endangered
during this whole episode, even though they were fortunate enough
to have been spared. So I think that factor clearly applies.
Finally, the trial court specifically addres sed wheth er an aggregate sentence
reasonably related to the severity of the offenses involved. The court stated,
You have a robbery that w as taking place , and a store
manager who is saying, here, take the money, doing everything to
comply with what the robbers were asking, and yet was shot. And
then beyond that, the assistant manager, lying on the ground, doing
everything he cou ld to com ply with what was being demanded, who
was then gratuitously shot and left to die.
I mea n, I think it is a situa tion wh ere it is clearly
disting uisha ble from, fo r exam ple, a h oldup where in the process of
struggling over the money, somebody gets shot or something of that
sort. [Tha t] is all part and parcel of th e robbe ry itself.
These events were all separate, independent, inexplicable,
inexcusable, outrageous, unconscionable acts that are clearly
distinguishable, I think.
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W e also find in the sentencing transcript ample evidence to show that the
term imposed was n eces sary to protec t the pu blic from further crimes committed
by these D efenda nts. At the tim e of sentencing, each Defendant had an
extensive history of crim inal beha vior. In addition, the court found, for both, at
least a limited h istory of unw illingness to comp ly with the cond itions of a sentence
involving release into the community. Our review of the above evidence is not
affected by our finding of insufficient evidence to support premeditation and
deliberation on the part of Defendant Saulsberry. We are convinced the trial
judge fulfilled his duty in sentencing as to both Defendants.
V. DISCOVERY MOTION
Defendants’ ninth issue assigns error to the trial court’s failure to grant a
mistrial based upon an alleg ed disco very violation by the Sta te. Defen dants
argue that the State did no t comply with T ennesse e Rule of Crim inal Procedu re
16, which requires disclosure of certain evidence by the State:
Upon request of the defendant, the state shall permit the defendant
to inspect and c opy or photog raph any re sults or reports o f . . .
scien tific tests o r expe rimen ts, or co pies th ereof, w hich a re within
the possession, custody or control of the state, the existence of
which is known, or by the exercise of due diligence may become
known, to the district atto rney gen eral and which ar e mate rial to the
preparation of the defense or are intended for use by the state as
eviden ce in ch ief at the trial.
Tenn. R. Crim . P. 16(a)(1 )(D). Spe cifically, Defe ndants argue th at the Sta te
should have produced, in response to their Rule 16 disc overy reques t, a report
of tests performed on the .32 caliber revolver seized from Defendant How ard’s
residen ce.
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The State replies first that Rule 16 is inapplicable because the test
performed on the weapon was not a “scien tific test” and becaus e the expert
made no “report.” Rather, the State argues , the expert simply observed whether
the barrel of the gun contained residue, to determine whether it had been cleaned
since last fired, and he made only handwritten notes of the result. Although we
do not accept the State’s argument, we need not find this test within Rule 16
because we conclude that even if there was a violation, Defendants were not
prejudiced.
Rule 16 prescribes the rem edies for violation of its provisions : “the court
may order such party to permit the discovery or inspection, grant a continuance,
or prohibit the party from introducing evidence not disclosed, or it may enter such
other order as it deems just under the circumstances.” Tenn. R. Crim. P.
16(d)(2). Here, the trial court offered to a llow Defe ndants ’ counse l an oppo rtunity
to inspec t the notes , which he declined to do. Th e record reflects tha t counsel
objected to the existen ce of th e alleg ed viola tion, bu t that he did not, in fact, move
for a mistrial at this point. Although D efendants a ssert that they mo ved for a
mistria l, they have not prov ided a citation to the record to permit meaningful
appellate review.
Furthermore, the evide nce no t disclosed to Defen dants revealed only that
the gun fo und in Defe ndan t How ard’s h ome had n ot bee n clea ned s ince last
fired; the evidence did not reveal when the gun had been las t fired. Defen dants
have identified no prejudice—they have simp ly asserted that prejudice
resulted—and we ca nnot o urselve s iden tify any p rejudic e. The trial judge was
within his d iscretion in re fusing an y reques t for a mistria l.
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VI. CUMULATIVE ERROR
W e have concluded that only one error occurred and have remedied that
error by reversin g one D efenda nt’s convic tion for first deg ree prem editated
murder. We find no cumulative error warranting further modification.
VII. CONCLUSION
In conclusion, Defendant Saulsberry’s conviction for first degree
premeditated murder is not supported by sufficient evidence, and such conviction
is therefore reversed and his case is remanded for a new trial on the charge of
felony murd er as a lleged in Counts 2 and 3 of the indictment. We conclude that
the trial court committed no oth er erro r. W e affirm convic tions fo r espe cially
aggravated robbery and cons piracy as to both D efendants. W e affirm Defendant
Howard’s murder conviction. Consecutive sentencing is affirmed. This c ase is
remanded for such other proceedings as may be warrante d and c onsisten t with
this opinion .
_________________________
PAUL G. SUMMERS, JUDGE
CONCUR:
_____________________________
DAVID H. WELLES, JUDGE
_____________________________
JOE G. RILEY, JUDGE
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