State v. Gerald Henry ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MAY 1996 SESSION
February 25, 1999
STATE OF TENNESSEE, )
) Cecil W. Crowson
Appellee, ) Appellate Court Clerk
No. 01C01-9505-CR-00161
)
) Davidson County
v. )
) Honorable Seth Norman, Judge
)
GERALD LEANDER HENRY, ) (First degree murder, attempted first degree
) murder, especially aggravated kidnapping,
) especially aggravated robbery, and two
Appellant. ) counts of especially aggravated burglary)
For the Appellant: For the Appellee:
Karl Dean Charles W. Burson
District Public Defender Attorney General of Tennessee
and and
David M. Siegel Christina S. Shevalier
Senior Assistant Public Defender and
1202 Stahlman Building Karen Yacuzzo
Nashville, TN 37201 Assistant Attorney Generals of Tennessee
(AT TRIAL & ON APPEAL) 425 Fifth Avenue North
Nashville, TN 37243-0493
Hollis I. Moore, Jr.
and Victor S. Johnson, III
David M. Siegel District Attorney General
Senior Assistant Public Defenders and
1202 Stahlman Building Kymberly Haas
Nashville, TN 37201 Assistant District Attorney General
(AT TRIAL) Washington Square, Suite 500
222 Second Avenue, North
Nashville, TN 37201-1649
OPINION FILED:____________________
JUDGMENTS OF CONVICTION FOR FIRST DEGREE MURDER, ATTEMPTED
FIRST DEGREE MURDER, ESPECIALLY AGGRAVATED KIDNAPPING, AND
ESPECIALLY AGGRAVATED ROBBERY AFFIRMED; JUDGMENT OF CONVICTION
FOR ESPECIALLY AGGRAVATED BURGLARY RELATING TO WILLIAM REX
WEAVER VACATED AND CONVICTION AS MODIFIED TO AGGRAVATED
BURGLARY MERGED WITH THE ESPECIALLY AGGRAVATED BURGLARY
CONVICTION RELATING TO LARRY HARRINGTON; CONVICTION FOR
ESPECIALLY AGGRAVATED BURGLARY OF LARRY HARRINGTON AFFIRMED
BUT JUDGMENT MODIFIED TO REFLECT MERGER
Joseph M. Tipton
Judge
OPINION
The defendant, Gerald Leander Henry, appeals as of right from his
convictions by a jury in the Davidson County Criminal Court for first degree murder, for
attempted first degree murder, especially aggravated kidnapping and especially
aggravated robbery, Class A felonies, and for two counts of especially aggravated
burglary, Class B felonies. The trial court sentenced the defendant as a Range I,
standard offender to life imprisonment for the murder conviction, to twenty years for
each Class A felony conviction, and to ten years for each Class B felony conviction.
The court ordered that the sentences imposed for the first degree murder and the
attempted first degree murder convictions be served consecutively. The defendant
contends that:
(1) the evidence is insufficient to support his convictions;
(2) the trial court erred by admitting the 9-1-1 tape of Larry
Harrington asking for help;
(3) the trial court erred by admitting a videotaped statement of
Sean O’Brien, a codefendant, as a co-conspirator under Rule
803(1.2)(E), Tenn. R. Evid., as the conspiracy did not continue
after both the defendant and O’Brien had been arrested, the
fruits of the crime had been seized, and the defendant had
given a confession;
(4) the trial court erred by excluding the testimony of Dr. H.J.
Francois because his name was not on a notice of experts filed
pursuant to Rule 12.2(b), Tenn. R. Crim. P.;
(5) his two convictions for especially aggravated burglary
stemming from a single entry into a room violate the double
jeopardy clauses of the United States and Tennessee
constitutions;
(6) the trial court erred by not dismissing the especially
aggravated burglary counts because the element of serious
bodily injury had already been prosecuted in two other counts
of the indictment; and
(7) the trial court erred by applying enhancement factors
inappropriately, by finding that no mitigating factors applied,
and by imposing consecutive sentences.
2
We affirm the judgments of conviction for first degree murder, attempted
first degree murder, especially aggravated kidnapping, especially aggravated robbery
and especially aggravated burglary relating to Larry Harrington. We reduce the
conviction for especially aggravated burglary relating to William Rex Weaver to
aggravated burglary pursuant to T.C.A. § 39-14-404(d). However, we merge the
aggravated burglary conviction into the especially aggravated murder conviction relating
to Larry Harrington because double jeopardy principles prohibit the entry of more than
one judgment of conviction imposing more than one sentence for the burglary. We
affirm the conviction for especially aggravated burglary of Larry Harrington but modify
the judgment to reflect the merger of the aggravated burglary into the especially
aggravated burglary.
Lillian Ewing testified that she was at the House of God Church around
noon on July 16, 1992, with Dovie Shuford, a friend who lived in a dormitory room at the
church. She said that as they were leaving, the telephone rang and she answered it.
She stated that she heard a male voice ask for help. Ms. Ewing testified that Ms.
Shuford thought that it was a prank telephone call, but she believed that the man
sounded like he was seriously hurt. She said that she hung up the receiver, and the
telephone rang a second time. She stated that when she answered the telephone, a
man stated, “Help me. Help me. I’ve been shot. I’ve been shot.” She said that he also
told her that he was working for the church. Ms. Ewing testified that she and Ms.
Shuford then drove to the other end of the church property where they believed the
workers were located. She stated that as she drove around the dormitories near
Heiman Street, she saw a man covered in blood on his knees barely open the door to a
dormitory room and say, “Help me.” Ms. Ewing said that as she turned the car around
and drove toward Ms. Shuford’s dormitory room to call the police, she saw police and
firemen looking in the wrong direction. She directed them to the victim.
3
Paulette Weaver, the wife of the murder victim, testified that her husband
worked for National Guardian Security Services. She said that he wore glasses and a
work uniform and that each day he carried only enough cash to buy lunch.
Larry Harrington testified that he worked for National Guardian Security
Services installing alarm systems and that he worked with Mr. Weaver, the murder
victim. He stated that on July 16, 1992, he and Mr. Weaver were installing alarm
systems on air conditioners at the House of God Church. He said that they parked the
company’s white, Astro van in front of the dormitory room in which they were working.
He stated that they ate lunch in the van at approximately 12:30 p.m. Mr. Harrington
testified that after he ate his lunch, he went inside the dormitory room in which they
were working to call his wife on the telephone. He stated that Mr. Weaver remained in
the van in the driver’s seat finishing his lunch. Mr. Harrington said that while he was
talking to his wife, he saw through the open door a white man and a black man, both of
whom he did not know, standing at the passenger’s door of the van. He identified the
defendant as the black man. He stated that he did not see anything in the hands of
either the defendant or the other man. Mr. Harrington testified that he hung up the
telephone and just as he walked out the door, he saw Mr. Weaver climb out the
passenger’s side of the van. Mr. Harrington said that when he asked whether
something was wrong, the man with the defendant pointed a gun at him and told him to
raise his hands. He said that the two men told him and Mr. Weaver to go inside the
room, cursed them, and told them to be quiet.
Mr. Harrington testified that he then saw Mr. Weaver raise his hands
above his head and walk towards him, cooperating with the two men. He stated that he
turned and walked inside the room followed by Mr. Weaver. He said that the defendant
followed Mr. Weaver and that the other man followed them pointing the gun at Mr.
Weaver. Mr. Harrington testified that the two men ordered them to lie face down on the
4
floor. He stated that Mr. Weaver went to the floor first. Mr. Harrington said that before
he could get all the way to the floor, the defendant pulled his hands behind his back and
bound them together with wire used to install the air conditioners. He said that the
defendant also bound his legs together and then bound them together with his hands.
Mr. Harrington described the procedure as being hog-tied. Mr. Harrington testified that
he lay at Mr. Weaver’s feet positioned so he could reach the telephone sitting on the
corner of a table. He said that he did not resist the defendant and the other man.
Mr. Harrington testified that after he was bound, he heard a crash followed
by a moan by Mr. Weaver. He stated that one of the men then said, “Here, use this to
tie him up with.” Mr. Harrington testified that he then heard a gunshot very close to him.
Mr. Harrington was then shot in the back of the head. He stated that after being shot,
he heard someone say, “Let’s get the hell out of here.” He then heard a door slam. Mr.
Harrington said that he became unconscious for approximately five minutes. He
testified that he was bleeding heavily. He said that he heard Mr. Weaver gurgling and
that he saw a lot of blood coming out of his head and mouth, and his glasses were lying
beside him on the floor. He said that Mr. Weaver was hog-tied and was not responsive.
Mr. Harrington testified that he was then able to remove his boots. He
stated that he was also able to free his hands and grab the telephone. He said that he
dialed 9-1-1 and a woman answered but hung up the telephone. He said that he dialed
the number a second time and asked the woman for help. Mr. Harrington testified that
he dialed the number a third time and spoke to the 9-1-1 operator. He said that he told
her that he and Mr. Weaver had been shot and needed help. He stated that while
talking to the woman, he went to the door, opened it a little, looked outside, and then
put the chain lock on the door. He said that the woman told him help was on the way.
The audio cassette tape of the 9-1-1 emergency call was introduced as an exhibit and
played for the jury.
5
Mr. Harrington testified that he saw a car with two people inside pull into
the parking lot and turn around and leave. He said that shortly afterwards, the police
and ambulance arrived and he was taken to the hospital for treatment. Mr. Harrington
testified that he remained conscious until he went into the emergency room and that
when he awoke, he saw news footage on the television showing that the defendant and
Sean O’Brien had been caught. He said that he had no doubt that the two men shown
on the news footage were the ones who had forced him and Mr. Weaver into the room
and shot them. Mr. Harrington identified the gun that was used by the man that was
with the defendant.
Mr. Harrington stated that he was hospitalized for thirteen days. Mr.
Harrington said that he suffered a broken jaw, that he permanently lost his hearing in
his right ear, and that he no longer had perfect vision. He said that he was hospitalized
again for plastic surgery and for surgery to implant a gold weight in his eyelid to allow it
to close.
Mr. Harrington testified that he did not notice anything peculiar about the
defendant. He said that the defendant did not appear to be scared or under duress.
He stated that the defendant was not shaking. Mr. Harrington described the defendant
as a person who had done the acts before or would not think much about doing the
acts. He said that the defendant did not appear to be mentally unsound. Mr.
Harrington stated that the defendant acted like he knew what he was going to do before
he got to the church.
Sergeant Gary Young of the Nashville Metropolitan Police Department
testified that he was dispatched to the church but that the police and the ambulance
had difficulty finding the victims. He said that he eventually saw a dormitory room door
open about one foot. He stated that he found Mr. Harrington and Mr. Weaver inside.
6
Sergeant Young testified that Mr. Weaver had been hog-tied and shot in the back of the
head execution style, and he stated that it was apparent that Mr. Weaver was dead
because of the amount of blood, brain matter, and fragments of teeth that surrounded
him. He said that he assisted Mr. Harrington, who was still bleeding, by placing a
pillowcase under his jaw. He stated that Mr. Harrington had lost a lot of blood.
Sergeant Young testified that when he asked Mr. Harrington who had done this to him,
Mr. Harrington told him it was a black man and a white man.
Sergeant Young identified four photographs of the scene. The
photographs show Mr. Weaver lying face down on the dormitory floor with his hands
and legs tied together. They show the wound to the back of Mr. Weaver’s head and
blood and brain matter surrounding his head. A spent shell casing and fragments of a
broken lamp are lying near Mr. Weaver’s head, and another blood spot appears near
Mr. Weaver’s feet. The photographs reveal wire wrapped around a pair of boots lying
near Mr. Weaver’s head with the receiver of the telephone lying near the boots. Blood
is on both the receiver and the telephone. The photograph also depicts a pair of
glasses lying between the boots and Mr. Weaver’s head.
On cross-examination, Sergeant Young testified that the victims were shot
by a large caliber weapon at a relatively close range. He believed that the victims were
not shot accidentally and that the shooter intended to kill or seriously injure the victims
given the nature of the shootings.
Officer Wayne Hughes of the Nashville Metropolitan Police Department
testified that he retrieved a total of three .45 caliber shell casings and ten bullet
fragments at the scene, with one of the shell casings lying near Mr. Weaver’s head. He
stated that he collected lamp fragments near Mr. W eaver’s body. Officer Hughes also
stated that the wires from the broken lamp were used to tie Mr. Weaver.
7
Lieutenant Ben Joyner of the Tennessee Highway Patrol testified that on
July 16, 1992, he received information to be on the lookout for a Sonitrol van heading
west on Interstate 40. He said that he spoke to a truck driver who told him that he had
seen the van in Jackson. He stated that at about 2:00 p.m., he saw the van exit the
interstate where he was parked on the exit ramp. Lieutenant Joyner testified that he,
along with other officers in marked and unmarked units, followed the van. He stated
that they tried to stop the van by radioing a truck driver and having him slow down, but
the van switched lanes and drove around the truck. Lieutenant Joyner said that they
set up a roadblock because the van was heading back toward the interstate. He stated
that the van stopped at the roadblock momentarily but then headed toward two police
officers. Lieutenant Joyner stated that Sean O’Brien, the driver of the van, then
increased his speed and drove through the roadblock. He stated that O’Brien drove the
van at speeds up to one hundred miles per hour, ran a red light, and forced vehicles off
the road, including a police car. He said that the chase occurred in a populated area.
Lieutenant Joyner testified that the van eventually skidded to a stop at a
second roadblock approximately four miles from the first roadblock. He said that when
the van stopped, the officers ordered the defendant and O’Brien to get out and to lie on
the ground. He stated that the defendant complied with the orders but that O’Brien
refused to get out of the van. He testified that they had to open the door and pull
O’Brien out of the van. Lieutenant Joyner testified that the defendant appeared to
understand the officers’ orders and that the defendant did not act abnormally.
On cross-examination, Lieutenant Joyner testified that shots were fired at
the van when O’Brien tried to run over the officers at the first roadblock. He stated that
he found a clip for a pistol in O’Brien’s front pocket. He said that he also recovered a
gun in a wooded area on Pipkin Road after the defendant gave directions to where he
threw the gun. On redirect examination, Lieutenant Joyner testified that it would have
8
been possible for someone to get out of the van when it stopped momentarily before
the first roadblock.
Officer Ronnie Jackson of the Jackson Police Department testified that
the defendant appeared to understand and did not appear disassociated with reality
when he got out of the van. He described the defendant as cooperative. Officer
Jackson stated that hollow-point bullets cause a larger wound. On cross-examination,
Officer Jackson testified that a person using hollow-point bullets should know that they
inflict massive damage.
Detective Larry Flair of the Nashville Metropolitan Police Department
testified that he and Officer Pat Postiglione went to the Tennessee Highway Patrol
headquarters in Jackson after the defendant and O’Brien had been arrested. He stated
that they arrived at approximately 5:00 p.m. and that the defendant and O’Brien were
being kept in separate rooms. He stated that O’Brien refused to give a statement. He
said that he read the defendant his rights, and the defendant gave an oral statement
but refused to allow the officers to tape the statement. Detective Flair stated that the
defendant told them that he did not know that O’Brien was going to rob or shoot
anyone. He testified that the defendant asked on two different occasions about how
much time they thought that he would get. Detective Flair stated that there was no
question that the defendant was in full possession of his mental faculties. He said that
the defendant did not behave abnormally. He said that the defendant did nothing to
make him believe that he had mental problems.
Detective Flair testified that the defendant described in detail the location
where he threw the pistol out of the van during the pursuit by police, and the defendant
accompanied the officers to locate the Colt .45 automatic handgun. He said that they
found the gun in a cocked position with a hollow-point bullet in the chamber and a
9
hollow-point bullet in the clip. Detective Flair testified that he and Officer Postiglione
drove the defendant and O’Brien to Nashville. He said that they stopped at the wrecker
service to photograph the stolen van along the way. He stated that the defendant did
not act out of the ordinary during the two-hour ride.
On cross-examination, Detective Flair testified that he found jewelry on
O’Brien. He said that his investigation showed that there were outstanding charges
against O’Brien for burglarizing his girlfriend’s home and taking jewelry in New
Hampshire. He stated that his investigation also showed that O’Brien had stolen the
Colt .45 automatic handgun in Florida. Detective Flair testified that at least five bullets
had been loaded into the gun clip. He expressed the opinion that O’Brien had killed
someone before given the cruel nature of the shootings in this case. Detective Flair
said that he learned during his investigation that O’Brien had hit Mr. Weaver with a
lamp and that the broken lamp and lampshade were placed in the van. He stated that
he found a lamp and a lampshade in the van.
Detective Flair conceded that he had spoken to other persons who were
under the influence of alcohol or drugs or had a mental illness but could still be
understood. He admitted that it was possible for someone to act normally although
they were not normal. He identified several items worn by the defendant, a T-shirt, an
elastic band, a necklace, a charm, a pair of blue jeans, a brown leather belt, and a red,
long-sleeve thermal shirt. He stated that the offenses occurred in mid-July on a normal
10
summer day. On redirect examination, Detective Flair stated that he believed that the
defendant was very involved in the crimes if he bound the victims.
Officer Pat Postiglione of the Nashville Metropolitan Police Department
testified regarding the oral statement given by the defendant. He said that the
defendant told the officers that he met O’Brien for the first time when he arrived at
Truckstops of America in Nashville on July 14 or 15, 1992. The defendant told the
officers that he and O’Brien planned to go to California together and that they went to
his mother’s house to tell her goodbye before leaving for California on July 16. The
defendant said that they did not have a vehicle for the trip. He said that as they
approached the House of God Church, O’Brien removed a .45 automatic gun from the
duffle bag he was carrying and walked over to a white van in which Mr. Weaver was
seated in the driver’s seat. The defendant told the officers that O’Brien then used the
gun to force Mr. Weaver out of the van through the passenger’s side door. The
defendant claimed that he did not know that O’Brien had the gun with him until he
removed it from the bag. The defendant told the officers that once inside the dormitory
room, O’Brien ordered him to tie the victims and he complied. The defendant stated
that O’Brien then fired the gun three times, shooting first into the floor and then into the
two victims. He claimed that he did not know or ask why O’Brien shot the victims. The
defendant told the officers that they left very quickly, that they took a lamp with them
and that they drove away in the van.
Officer Postiglione testified that the defendant told him and Detective Flair
that he and O’Brien got on the interstate going west toward California. The defendant
stated that he was aware that they were being pursued by the police. He described the
weapon used by O’Brien as a .45 chrome-colored automatic handgun and stated that
he threw the gun out the window into a field as ordered by O’Brien when they were
11
being chased by the police. The defendant provided a detailed description of the
location where he threw out the gun, and he accompanied the officers to locate the gun.
Officer Postiglione testified that the defendant did not do or say anything
during the interview or during the drive to Nashville to make him believe that the
defendant was mentally ill. He said that the defendant was nervous but calm during the
interview and that he asked a couple of times how much time the officers thought he
would get. Officer Postiglione believed that the defendant appeared in control of the
situation. He stated that the defendant never asked about the victims but rather was
more concerned about his sleeping and eating arrangements. Officer Postiglione
testified that the defendant never mentioned hearing voices or having hallucinations.
He said that the defendant told the officers that he had no permanent address, but he
gave the officers his mother’s address and told Officer Postiglione that he had been in
Knoxville.
Officer Postiglione testified that when they arrived in Nashville at
approximately 8:00 p.m., the defendant and O’Brien were booked and then placed in an
interview room where there was a hidden camera. He stated that this was the first time
that the defendant and O’Brien were together without the presence of officers since
their arrest. He said that a conversation between the defendant and O’Brien was
videotaped. The videotape shows the defendant and O’Brien planning what they were
going to say to the police regarding the events surrounding the offense. It also reflects
that the defendant and O’Brien discussed their history of mental illnesses and the
possibility of escaping liability based on their mental condition.
On cross-examination, Officer Postiglione identified the clothing that the
defendant was wearing when he was arrested. He stated that the defendant was
wearing a red thermal, long-sleeve shirt, a T-shirt, a pair of blue jeans, a leather belt
and loafers. Officer Postiglione believed that the defendant was homeless because he
12
was wearing layers of clothing in a manner similar to that of a homeless person. He
said that at the time of his arrest, the defendant carried a bag that contained clothing, a
religious cassette tape, religious books, a lava rock, a jar containing a clay-like
substance, duct tape, a needle, thread, and a brace. Officer Postiglione testified that
criminals often take items necessary for their escape, but he conceded that he did not
know how some of the items possessed by the defendant would aid an escape.
Officer Postiglione said that he found a gun case for the stolen gun in
O’Brien’s duffle bag. Officer Postiglione testified that O’Brien’s fingerprints were found
on the clip that was discovered by police. He also testified regarding his interview of
Mr. Harrington the day after the offenses occurred. He said that Mr. Harrington
described O’Brien as the leader of the offenses and stated that the defendant stood
back and did not say anything. Officer Postiglione testified that Mr. Harrington told him
that he did not know who bound him but that he believed that O’Brien shot them
because he saw O’Brien enter and leave with the gun. Officer Postiglione conceded
that his investigation also reflected that O’Brien was the leader, given the fact that
O’Brien possessed and used the gun and that the defendant participated only by tying
the victims.
Officer Postiglione testified regarding Mr. Harrington’s condition two
weeks after the offenses occurred. He said that Mr. Harrington remained in intensive
care and that the right side of his face was extremely swollen, that his jaw was wired
shut, and that he was in pain and could barely speak. Officer Postiglione believed that
the defendant knew O’Brien planned to shoot the victims and take their van because
they had spent forty-eight hours living together on the street, because they did not have
a vehicle for the trip to California, and because of the manner in which the victims were
shot. He also believed that the defendant and O’Brien planned on eliminating any risk
of having witnesses to the crimes by shooting the victims.
13
Detective Harold Haney of the Nashville Metropolitan Police Department
testified that he monitored the defendant and O’Brien while they were being held in the
interview room together in Nashville. He said that he saw the defendant take
something out of his pocket and hide it under the table. He stated that he entered the
room and found a spent shell casing from a .45 caliber automatic weapon.
Officer Tommy Welder testified that he went to the morgue in response to
a call from the pathologist. He said that he found a small piece of glitter near a
laceration on the victim’s head. A photograph was introduced depicting the area where
the glitter was found.
Don Carman, a forensic scientist with the Tennessee Bureau of
Investigation specializing in firearms identification, testified that he examined the Colt
.45 semi-automatic handgun and said that the gun functioned properly. He stated that
he also examined the bullet fragments recovered from Mr. Weaver and those sent to
him. He said that the fragments were very small and were from hollow, lead-core
bullets that had been mutilated. Mr. Carman testified that the fragments had some
general rifling characteristics similar to those fired from the Colt .45 semi-automatic
handgun but that they were insufficient to be considered a match. He stated that he
analyzed a clip and two .45 caliber, hollow-point bullets and said that they could be
used in the Colt .45 semi-automatic handgun. On cross-examination, he stated that a
characteristic of a semi-automatic gun is that the trigger has to be pulled each time it is
fired. He said that the Colt .45 semi-automatic handgun had a six pound trigger pull.
Officer Ralph Deavers testified that he looked for latent fingerprints on
items in the dormitory room as well as on the broken lamp, the Colt .45 semi-automatic
handgun, and the clip taken from O’Brien’s pocket. He said that the only fingerprints he
could identify were O’Brien’s fingerprints on the clip.
14
Dr. John Werther testified that he examined Mr. Harrington on July 16 in
the emergency room. He said that Mr. Harrington had a wound on the back side of his
neck and in front of his cheek. Dr. Werther stated that the bullet exited below the
cheekbone causing severe damage, including swelling of the face and bruising of the
eye area. He testified that Mr. Harrington suffered damage to his ear canal and eye
socket. He stated that Mr. Harrington also suffered damage to the nerve that controls
raising the forehead, closing the eyes, wiggling the nose, and moving the lips and neck,
causing facial palsy. Dr. Werther testified that as a result of the facial palsy, Mr.
Harrington had to have a gold weight placed in his eye so that it would shut and to
prevent it from drying out. He said that the jawbone was shattered into twenty to thirty
pieces and that the external carotid artery that supplies the face with blood was
severed. Dr. Werther described Mr. Harrington’s injury as being painful and life
threatening, as the likelihood of infection was great. He testified that additional
surgeries were required after Mr. Harrington was released from the hospital. He stated
that he operated on Mr. Harrington’s neck because the bullet was close to his spine,
causing him to have pain and numbness in his arm. Dr. Werther said that a bone graft
from Mr. Harrington’s hip was used to fuse his cervical spine. He stated that he also
reconstructed Mr. Harrington’s cheekbone and his nose because it had collapsed,
making it difficult to breathe. Dr. Werther testified that plastic surgery was also
necessary.
Dr. Jessie Giles, the medical examiner for Davidson County, testified that
he reviewed the records of Dr. Gretal Harlan, an assistant medical examiner who
conducted the autopsy of William Rex Weaver. He stated that the records show that
Mr. Weaver died as a result of a gunshot wound to the head, causing damage to the
skull and tearing and bleeding of the brain. Dr. Giles testified that the bullet entered at
the top of the head and did not exit. He stated that he was unable to determine the
distance from which the victim was shot. He said that there were contusions and
15
bruising around the eye as a result of the skull fractures. He also said that there was a
tear at the back of the head with some abrasion resulting from the application of blunt
force. Dr. Giles testified that the victim suffered two other lacerations to the head. Dr.
Giles expressed the opinion that the victim could have died instantly but that most likely
the victim was rendered unconscious, possibly by the laceration to the head, and then
died very quickly.
Shelly Betts, a serologist for the Tennessee Bureau of Investigation,
testified for the defense. She stated that she examined the clothing of the defendant
and O’Brien and that she found reddish-brown stains appearing to be blood on
O’Brien’s boots and pants. She said that the stains tested presumptively positive as
blood stains, although she was unable to confirm the finding. Ms. Betts testified that
she found no blood stains on the defendant’s clothing.
Dr. Amin Azimi, a licensed psychologist with the Middle Tennessee Mental
Health Institute (MTMHI), testified that he conducted two psychological evaluations of
the defendant after the commission of the offenses. He stated that as a part of the
evaluations, he reviewed the defendant’s medical records from the defendant’s 1989
hospitalization in Illinois after being picked up by the police. He said that the records
showed that the defendant suffered a brief psychotic reaction, and the defendant
claimed that he saw spiders, that he saw snakes biting him, and that he heard voices
telling him to go away. Dr. Azimi described a brief psychotic reaction as a disorder
characterized by a breakdown of reality lasting for hours or months as a result of a
severe psycho-social stressor. He testified that a person having a brief psychotic
reaction may appear normal one to two months afterwards.
Dr. Azimi testified that he was concerned about the defendant’s
psychological state because the defendant acted oddly in that he was evasive and
16
secretive, he lacked concern for himself with respect to the outcome of the case, and
he paced the floor. He stated that the defendant reported having visual and auditory
hallucinations. Dr. Azimi testified that the defendant claimed that he had heard voices
for several years. He said that the defendant told him that he sometimes heard several
voices at one time and that he would leave when this happened. Dr. Azimi testified that
the defendant told him that he coped with the auditory hallucinations by inflicting pain
on himself and by pacing the floor. He said that the defendant was vague and evasive
about his mental status. He stated that the defendant was also vague about whether
he mutilated his genitals. He stated that he found a needle in the defendant’s
possession.
Dr. Azimi acknowledged that the defendant was found to be competent to
stand trial and not committable and that an insanity defense was not supported by the
facts of the case. He conceded that although the defendant became more cooperative
with the staff, the defendant was unable to remain free from hallucinations for two
weeks and his oddities continued. Dr. Azimi described the defendant as a follower, but
he stated that the defendant was not dangerous. He diagnosed the defendant as
having an atypical psychosis, a mental illness or disorder that causes hallucinations,
delusions and odd conduct. Dr. Azimi said that the defendant’s illness was a continuing
one, unlike a brief reactive psychosis.
On cross-examination, Dr. Azimi testified that the defendant was
hospitalized in Illinois for less than two days and was released without medication or
follow-up treatment. He stated that the hospital staff attended to the defendant after
the police arrested him for disorderly conduct because he was knocking on doors in a
neighborhood and asking to use the telephone to call his father. He said that the
defendant was diagnosed in Illinois as having a brief psychotic reaction due to his lack
17
of sleep and food, and he stated that all of the defendant’s symptoms disappeared
once the defendant ate and slept.
Dr. Azimi acknowledged that the defendant had told another doctor that
he had not heard voices when he met O’Brien or before the offenses occurred. He also
acknowledged that the defendant had told a social worker that he knew that O’Brien
had a gun because they had shot it in the alley. The defendant also told the social
worker that when O’Brien ordered him to tie the victims, he refused and instead held
the gun on the victims while O’Brien tied them. Dr. Azimi testified that the defendant
told the social worker that the gun had accidentally discharged.
Dr. Azimi conceded that the defendant had no organic brain injury and
that he had stated in his report that the defendant’s symptoms did not suggest a serious
mental illness and did not require medication. He also admitted that the defendant’s
behavior during interviews did not raise a question of delusional thinking or
hallucinations, but rather the defendant was often lucid, coherent and rational. Dr.
Azimi explained that the defendant told him that he heard voices when he was by
himself and that when he was active, the voices went away. He said that the
defendant’s vocabulary, reasoning and memory were within the normal range of
intelligence. Dr. Azimi testified that the defendant lacked concern about the outcome of
the case in that he admitted his guilt and stated that he should be punished. He
explained that it was possible that the defendant recognized the reality of a sentence
during the two years of incarceration pending the trial.
On redirect examination, Dr. Azimi testified that the defendant would be
influenced by O’Brien being armed with a weapon because the defendant was a
follower. He said that the defendant could shut down under some circumstances. He
stated that a person can be mentally ill even though the person is intelligent or does not
18
have any organic brain injury. Dr. Azimi conceded on recross examination that the
defendant did not tell him that he was under stress or that he heard voices or saw
snakes at the time of the offenses or when he was fleeing from the police. However, he
said that the defendant told him that he left the dormitory room after O’Brien fired the
second shot because he heard voices telling him to leave.
Dr. H.J. Francois, a physician at MTMHI, testified that he performed a
physical examination of the defendant. He said that he found a lesion in the right
testicle in the groin. He stated that his findings were normal, except for an enlarged
right testicle.
Several of the defendant’s family members testified regarding the
defendant’s unusual behavior since 1989. His wife testified that the defendant had
been living with her and her three children for five years when he left and went to
Nashville for no reason in 1989. She said that the defendant appeared very confused
when he left and that he took no money with him, and he carried only a small duffle
bag. The defendant’s wife testified that the defendant called her when he arrived at the
bus station in Nashville and told her that he was going to a hotel with a prostitute. She
stated that the defendant also called her when he was hospitalized in Illinois in 1989
and that he told her that he had been arrested for hitchhiking and that a big bear had
followed him.
The defendant’s wife testified that the defendant’s behavior changed
again in November 1990 when he told her and her family that he had to follow the Trail
of Tears. She said that the defendant also told her that he felt that someone was
calling him and that he felt wind blow through the house and knock him down. She
stated that the defendant carved a walking stick to take with him and that he told her
that it was to keep the dogs away. She testified that the defendant left again with no
19
money for approximately two weeks. She said that the defendant called her from
Memphis and she sent him a bus ticket to come home. The defendant’s wife testified
that the defendant did not explain why he had left when he returned home. She stated
that the defendant was normally a neat person, but when he returned home, his clothes
were torn and his hair was out of place. She testified that on both occasions that the
defendant left home, he was employed and their relationship was good. She stated
that after the second occasion, he was not interested in working, but instead he stayed
home all day watching television and reading the Bible, although he had shown no
interest in religion before he left home.
The defendant’s wife testified that the defendant left a third time and
stayed gone for approximately two to three weeks. She stated that the defendant
called her from Jackson, Mississippi and asked her to move there with her children,
although he had no job or housing arrangements. She said that she eventually
purchased a bus ticket and sent it to him, and the defendant returned home. The
defendant’s wife testified that she stopped living with the defendant in February 1991
and had little contact with him. She conceded that she knew nothing about the
defendant’s mental status in 1992 when the offenses occurred.
The defendant’s father and stepmother testified that they picked up the
defendant in Illinois after the defendant had been in the hospital there in 1989. They
said that the defendant was distant and that he told them that he was hitchhiking to St.
Louis. They stated that the defendant did not have any clothes with him and that they
had to pick up the defendant’s clothes at a bus station in Nashville. They testified that
they then took the defendant with them to stay in Chattanooga. They said that the
defendant’s grandfather gave the defendant a car while he was there, but the
defendant did not drive it. The defendant’s father and stepmother stated that they
20
offered to send the defendant to chef school, but he left and went to Nashville. They
said that he did not take any money or his car with him.
The defendant’s father and stepmother both testified that they did not see
or hear from the defendant until May 1992 when the defendant came to stay with them
in Chattanooga. They said that the defendant had changed his appearance in that he
wore bands in his long hair, a bag on a rope around his neck, and old clothes that were
not appropriate for the weather. The defendant’s father stated that the defendant wore
tailored suits and had short hair before his condition changed. The defendant’s father
and stepmother testified that the defendant also wore Ace bandages very tightly around
his waist, legs, wrists and arms. They said that the bands around the defendant’s arms
were so tight that he could barely bend his arms, and they caused his arms to swell and
become discolored. They stated that the defendant also wore a headband wrapped
tightly around his head. The defendant’s father and stepmother testified that the
defendant explained his appearance by telling them that it was related to his Hindu
religion.
The defendant’s father and stepmother testified that the defendant’s
behavior also changed. They stated that he scratched himself all over with a piece of
pumice rock, and he kept an electric knife under his bed. The defendant’s stepmother
testified that the defendant told him that he scratched himself because he felt things
crawling on him, although nothing was on his skin. The defendant’s father and
stepmother testified that the defendant usually sat in his room and did nothing but that
he also walked a lot and would often leave for several hours before returning home.
They said that the defendant carried a Bible with him at all times and that he had more
than one Bible. They offered to get the defendant an apartment and let him operate
their ceramic shop, but he left again in June 1992 under similar circumstances. The
defendant’s stepmother stated that the defendant called her two or three times after he
21
left asking her for money, but she said that she had no physical contact with the
defendant until after he was arrested in July. On cross-examination, the defendant’s
stepmother testified that she and the defendant’s father never sought mental health
assistance for the defendant.
Dr. Pamela Auble, a clinical psychologist, testified that she conducted a
psychological evaluation of the defendant in June 1994. She stated that she did not
conduct any independent psychological testing but rather relied upon Dr. Azimi’s results
of testing conducted approximately one week earlier. She stated that she also
reviewed the defendant’s school records, the records from earlier psychological
evaluations, letters from counsel, and police records, including photographs of the
scene and the videotape of the conversation between the defendant and O’Brien.
Dr. Auble testified that the defendant had a history of odd behavior,
including pacing with his head tilted sideways or with shaving cream on his nose,
carrying food in his pocket, or keeping food in his room until it fermented. She said that
the defendant had also heard voices for many years. She explained that the defendant
told her that he often heard seven or eight voices at one time and that he was not
always able to understand the voices. Dr. Auble testified that the defendant told her
that the voices disturbed him and caused him to become tense when the voices were
too loud or too many. She stated that the defendant controlled the tension by inflicting
pain on himself. She said that the defendant told her that the voices instructed him to
inflict pain on himself. Dr. Auble stated that the defendant used a method called
acupressure where he placed thick bands tightly around various parts of his body,
including his genitals. Dr. Auble said that the defendant told her that if acupressure did
not work, he would stick himself with a pen, rub his skin raw, exercise excessively, or
pace continuously.
22
Dr. Auble diagnosed the defendant as having an atypical psychosis, a
major mental illness. She said that the defendant’s condition worsened when he was
tired or under stress. She also stated that the defendant was not a violent person and
that he would withdraw from a tense situation. Dr. Auble expressed the opinion that
because of his illness, the defendant was not able to deal with stress as a normal
person would. Dr. Auble believed that the defendant did not form the specific intent to
harm anyone.
On cross-examination, Dr. Auble testified that she believed that the
defendant was not an active participant in the crimes. She said that the defendant told
her that O’Brien ordered him to tie the victims and gave him wire to do so but that he
told O’Brien that he could not do it after he started to tie the victims. Dr. Auble
acknowledged that the doctors at MTMHI found no evidence of a serious mental illness,
although they also diagnosed the defendant with an atypical psychosis. She believed
that the diagnosis by the doctors at MTMHI was indicative of a serious mental illness.
I. SUFFICIENCY OF THE EVIDENCE
The defendant contends that the evidence is insufficient to support his
convictions. He argues that the evidence is insufficient (1) because there is no
evidence of his intent, premeditation and deliberation to kill the victims, (2) because
there is no evidence of his knowing participation in the crimes, and (3) because the
evidence of his serious mental problems negated any showing that he knowingly
participated in the crimes. The state responds that there is sufficient evidence to
establish beyond a reasonable doubt the defendant’s guilt of the offenses. We agree.
Our standard of review when the sufficiency of the evidence is questioned
on appeal is "whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
23
crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.
2781, 2789 (1979). This means that we do not reweigh the evidence, but presume that
the jury has resolved all conflicts in the testimony and drawn all reasonable inferences
from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d 542, 547
(Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
First, the defendant asserts that there is insufficient evidence to show that
he premeditated, deliberated or intended to kill the victims when he entered the
dormitory room to establish his guilt beyond a reasonable doubt for the offenses of
attempted first degree murder and especially aggravated burglary. He argues that the
proof, at most, supports a conviction for attempted second degree murder. The
defendant acknowledges that the facts show some degree of acquiescence or
participation by the defendant in robbing and kidnapping the victims, but he contends
that the jury could just as reasonably infer an intent not to kill but rather to immobilize
and leave the victims unharmed after their being bound. However, the jury obviously
did not believe the defendant’s assertion of limited involvement. It is not this court’s
function to reweigh the evidence, and the guilty verdict, approved by the trial court,
resolves all conflicts in the testimony in favor of the state. State v. Hatchett, 560
S.W.2d 627, 630 (Tenn. 1978).
The defendant was charged with and convicted of attempted first degree
murder. To be guilty of criminal attempt, the defendant must have acted with the kind
of culpability necessary for first degree murder. See T.C.A. § 39-12-101. At the time of
the offense, first degree murder was defined as the unlawful, intentional, premeditated
and deliberate killing of another. T.C.A. §§ 39-13-201, -202(a)(1) (1991). Our criminal
code defined a deliberate act as “one performed with a cool purpose,” and a
premeditated act as “one done after the exercise of reflection and judgment.” T.C.A. §
39-13-201(b)(1)-(2) (1991). The defendant was also charged with and convicted of two
24
counts of especially aggravated burglary. To be guilty of especially aggravated burglary
as charged in separate counts of the indictment, the defendant must have burglarized
the House of God Church with the intent to commit first degree murder, and William
Rex Weaver and Larry Harrington must have suffered serious bodily injury. See T.C.A.
§§ 39-14-402, -404(a).
Viewing the evidence in the light most favorable to the state, the jury could
have concluded beyond a reasonable doubt that the defendant premeditated,
deliberated and formed the intent to kill the victims. The evidence shows that the
defendant and O’Brien planned to go to California and that the defendant had gone to
his mother’s house to say goodbye before leaving for California on July 16. The
defendant and O’Brien did not have a vehicle for the trip. As the defendant and O’Brien
were walking toward the House of God Church, O’Brien removed the .45 Colt semi-
automatic gun loaded with hollow-point bullets from the dufflebag he was carrying and
walked over to the van in which Mr. Weaver was sitting. The defendant knew that
O’Brien had a gun because they had shot it in an alley. O’Brien then forced Mr.
Weaver and Mr. Harrington into the dormitory room at gunpoint, and the defendant
followed them inside.
The evidence shows that once inside the dormitory room, the defendant
and O’Brien ordered the victims to lie face down on the floor, but before Mr. Harrington
could get all the way to the floor, the defendant pulled Mr. Harrington’s hands behind
his back and used wire to tie them together as he forced him to the floor. Mr.
Harrington testified that the defendant did not appear to be scared. The defendant then
bound Mr. Harrington’s feet together with the wire and then bound his feet to his hands.
After Mr. Harrington was bound, Mr. Weaver was hit in the head with a lamp, knocking
him unconscious. O’Brien then gave the defendant the electrical wires from the lamp,
and the defendant hog-tied Mr. Weaver. O’Brien then shot the victims in the head,
25
killing Mr. Weaver and severely injuring Mr. Harrington. The defendant and O’Brien
immediately left the church, taking the victim’s van as transportation for their trip to
California. We believe that based on this evidence, any rational juror could have found
beyond a reasonable doubt the essential elements of attempted first degree murder
and especially aggravated burglary.
The defendant’s second contention regarding the sufficiency of the
evidence is that the evidence is insufficient to show that he knowingly participated in
any of the offenses. Specifically, he asserts that his conduct supported a conviction of
only facilitation of the crimes of first degree murder, especially aggravated kidnapping,
and especially aggravated robbery. Although the defendant concedes that Mr.
Harrington’s testimony that the defendant bound him would by itself demonstrate his
knowing participation in the offenses, he argues that there was other substantive
evidence that contradicted the testimony and showed his limited involvement.
However, as stated earlier, conflicts in the evidence are resolved in favor of the state
when a guilty verdict is approved by the trial court. Hatchett, 560 S.W.2d at 630. Also,
the trial court instructed the jury on facilitation of the crimes, and the jury rejected the
theory, obviously concluding that the evidence supported convictions for first degree
murder, especially aggravated kidnapping and especially aggravated robbery. The
evidence supports those conclusions.
Third, the defendant argues that the evidence is insufficient to support his
convictions given the evidence of his serious mental problems. He contends that the
expert, psychiatric testimony and the lay testimony of the defendant’s mental illness
negated any showing that the defendant knowingly participated in the offenses. The
state responds that there is no evidence to show that the defendant experienced any
kind of psychotic episode when he committed the offenses. We believe that there is
some evidence that the defendant experienced a psychotic episode near the time of the
26
offenses, given the defendant’s odd behavior shortly before the offenses took place.
Nevertheless, the evidence supports the jury’s decision that the defendant was able to
form the requisite culpable mental state to commit the offenses charged. See State v.
Hall, 958 S.W.2d 679, 688-92 (Tenn. 1997). The evidence is sufficient to support the
defendant’s convictions.
II. ADMISSION OF VIDEOTAPED STATEMENT
The defendant contends that the trial court erred by admitting the
videotaped statement as a statement by a co-conspirator made during the course of
and in furtherance of the conspiracy, an exception to the hearsay rule under Rule
803(1.2), Tenn. R. Evid. The state responds that the videotaped statement was
properly admitted.
The defendant filed a motion to exclude the videotaped conversation
between the defendant and O’Brien, asserting that the evidence constituted
inadmissible hearsay, and the introduction of the evidence would violate the
Confrontation Clause of the United States Constitution and the Tennessee Constitution.
He argued that the videotaped conversation did not fall within the co-conspirator
statement exception to the hearsay rule because the statements were not made during
the course of the conspiracy. Although he acknowledged that O’Brien was available to
be called as a witness because O’Brien had entered a guilty plea and was in jail at the
time, the defendant argued that the videotape was inadmissible because its admission
would violate his right to confrontation. He asserted that a different issue was
presented if the state wanted to redact the videotape. The state responded that the
videotape was admissible as a statement made by a co-conspirator. It also contended
that it was impossible to redact the videotape. The defendant countered that the
conspiracy had ended at the time of the videotaped conversation because the
defendant and O’Brien had been arrested, and the defendant had given an
27
incriminating statement. The state asserted that the conspiracy was ongoing because
the defendant and O’Brien were taking steps to conceal the crime or thwart the
prosecution.
The trial court ruled that the videotape was admissible under the co-
conspirator statement exception to the hearsay rule. The court did not state the nature
of the conspiracy, but it ruled that the conspiracy had not ended at the time of the
conversation between the defendant and O’Brien. The trial court also noted that
O’Brien could be subpoenaed by either party, given that he was confined in the local
jail.
The record reflects that a videotape of the approximately twenty-seven
minute conversation was played for the jury at trial. The defendant and O’Brien stated
several times throughout the videotaped conversation that they believed they were
being monitored, and portions of the videotape are difficult to understand because the
defendant and O’Brien were whispering or mouthing words. Throughout the videotape,
O’Brien was seen repeatedly feeling and examining the underside of the table in front of
him. At one point, the defendant also looked under the table.
The videotape reflects that O’Brien called himself a cold-blooded killer.
O’Brien denied that he intended to shoot anyone, stating that the gun went off, and he
became nervous and scared. O’Brien told the defendant that he was sticking with the
story. The defendant immediately questioned O’Brien about the nature of the story,
and O’Brien replied that he said that he stole a van that had the keys inside in a nearby
parking lot. O’Brien told the defendant that he would not say anything about what the
defendant did because he did not want the defendant to tell on him. O’Brien also told
the defendant that he hoped that the defendant did not tell what O’Brien had done.
O’Brien asked the defendant what the defendant told the officers, and the defendant
28
replied that he told them that the gun went off and that he did not know exactly what
happened. The defendant said that he did not tell the officers that O’Brien did it.
The videotape shows that O’Brien then instructed the defendant not to
say anything else, and the defendant replied that he would not and that he would be
quiet. O’Brien also told the defendant several times that the defendant only heard
shots but that he did not see it happen. The defendant replied each time, “I dreamed
it.” The defendant stated that he wished that he had dreamed it but that they found the
gun. O’Brien told the defendant that the gun would have O’Brien’s prints all over it, and
the defendant agreed. O’Brien asked the defendant whether the defendant grabbed
the gun, but the defendant’s response was inaudible. O’Brien then stated, “So, your
fingerprints are on it, too?” The defendant and O’Brien then discussed the death
penalty and whether O’Brien would be sentenced to death if he was found guilty. The
defendant then stated something about Exit 85, and O’Brien replied that they should
have gotten off at Exit 85. O’Brien then told the defendant that he was glad that they
were in jail because now he did not have to live with it.
The videotape reflects that the defendant and O’Brien also discussed their
history of mental illnesses. O’Brien told the defendant that he had some mental
problems, and the defendant responded that he also had some problems. O’Brien then
stated that he could tell the authorities that they were “happy” when it happened, and
perhaps he would not be charged with first degree murder. O’Brien told the defendant
that he was charged with first degree murder, attempted murder, and assault with a
vehicle on an officer. O’Brien stated that the assault was based on the roadblock,
although he did not have any intentions of running anyone down. The defendant
replied that someone said that the defendant tried to run through the roadblock.
29
The videotape shows that O’Brien then stated that he wondered if the
room was bugged. He then said the following:
Don’t . . . tell ‘em anything I did, just tell ‘em stuff that
you did, okay? And that’ll keep you out of it, okay? Ya’ hear.
And I’ll do the same thing. I’m not going to say anything you
did. Only the stuff I did, cause that’s all they’re worried about.
They’re not worried about what you did. You can tell ‘em your
story. . . . No, I’m not gonna tell ‘em you did anything with the
van. If they ask, I’m just gonna say, “I dunno.” All right?
The defendant nodded affirmatively, and O’Brien continued, “This way we don’t get
ourselves in trouble. Or we get ourselves in trouble, and I give it to you, you give it to
me. I’m already looking at twenty to forty years, anyway.”
The next several minutes of the videotape are inaudible because the
defendant and O’Brien began whispering. It shows that the two continued to talk,
discussing the charges, potential sentences, and the procedure for the trial and the
appeal. O’Brien told the defendant that the victim got himself untied and called the
police, and he said that there was blood on the floor. O’Brien also stated that he should
have tried to drive around the cop at the end of the road. The defendant’s next
statement is unintelligible, and O’Brien stated that he did not have any shots left in the
gun. O’Brien told the defendant that they thought that the defendant helped him out
and that they were going to shoot them in the car. O’Brien then reminded the
defendant not to tell what O’Brien did. O’Brien told the defendant, “All we wanted was
the car. We did not want that to happen. You know that. I don’t even know why I did
that.” O’Brien told the defendant again that the defendant could tell the police whatever
he wanted as long as he did not involve O’Brien.
The videotape reflects that O’Brien then asked the defendant how many
shots he heard and how many shots that he told the police had been fired. The
defendant’s response was unintelligible. O’Brien then told the defendant, “Alright, that’s
the one that hit the floor. That’s all you need to tell ‘em, the one that hit the floor.
30
Alright?” He explained to the defendant that one shot hit the floor as he was trying to
discharge the gun. O’Brien said that he did not know what he was doing because he
went into shock, a state of hysteria. O’Brien stated that he wondered what the victim’s
family was doing, and he then called himself a cold-blooded killer. O’Brien and the
defendant then whispered close to each other, and the defendant looked under the
table. O’Brien then stated that the defendant did not even need to mention his name.
O’Brien told the defendant that when he tried to discharge the gun, “the gun went off. I
got scared, nervous. Get it?” The defendant then asked O’Brien where he got the gun.
When O’Brien stated that the gun was stolen, the defendant replied several times, “We
could have left it there.” O’Brien responded that the police would have found the gun,
and the defendant stated, “We got our story together.” O’Brien told the defendant,
“What’s done is done.”
The defendant made a statement that was unintelligible, and O’Brien
responded that the police found it. The defendant then said, “So they know we were in
there.” O’Brien responded affirmatively, stating that the police found the broken lamp
on the floor and that they had a huge box of evidence. O’Brien then reminded the
defendant that he did not have to mention O’Brien’s name. The videotape ends with
O’Brien stating, “You know they’re listening.”
Hearsay is defined as “a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Tenn. R. Evid. 801(c). Hearsay is not admissible except as provided by the
rules of evidence or otherwise by law. Tenn. R. Evid. 802. Pursuant to Rule
803(1.2)(A), Tenn. R. Evid., the hearsay rule does not exclude a “statement offered
against a party that is . . . the party’s own statement in either an individual or a
representative capacity.” The hearsay rule also does not exclude “a statement by a
co-conspirator of a party during the course of and in furtherance of the conspiracy.”
31
Tenn. R. Evid. 803(1.2)(E). Admission into evidence is conditioned upon these facts
being proved by a preponderance of the evidence. State v. Stamper, 863 S.W.2d 404,
406 (Tenn. 1993).
Initially, we note that the statements made by the defendant during the
conversation with O’Brien qualify as admissions under Rule 803(1.2)(A). Thus, they
were admissible. However, we must also determine whether the trial court properly
ruled that O’Brien’s statements contained on the videotaped conversation meet the
requirements for the co-conspirator exception to the hearsay rule. Declarations of a co-
conspirator that would otherwise be inadmissible may be offered as proof when the
following conditions are met: (1) there is evidence of the existence of the conspiracy
and the connection of the declarant and the defendant to it; (2) the declaration was
made during the pendency of the conspiracy; and (3) the declaration was made in
furtherance of the conspiracy. State v. Gaylor, 862 S.W.2d 546, 553 (Tenn. Crim. App.
1992).
The defendant asserts that a conspiracy for hearsay exception purposes
does not extend to measures of concealment or obstruction of justice. The state
responds that under T.C.A. § 39-12-103(e)(1), the conspiracy was ongoing because the
defendant and O’Brien were undertaking measures to conceal the crime and obstruct
justice by manufacturing a story to frustrate police investigation. In pertinent part, that
statute provides:
(a) The offense of conspiracy is committed if two (2) or more
people, each having the culpable mental state required for the
offense which is the object of the conspiracy and each acting
for the purpose of promoting or facilitating commission of an
offense, agree that one (1) or more of them will engage in
conduct which constitutes an offense.
...
(e)(1) Conspiracy is a continuing course of conduct which
terminates when the objectives of the conspiracy are
completed or the agreement that they be completed is
32
abandoned by the person and by those with whom the person
conspired. The objectives of the conspiracy include, but are
not limited to, escape from the crime, distribution of the
proceeds of the crime, and measures, other than silence, for
concealing the crime or obstructing justice in relation to it.
(2) Abandonment of a conspiracy is presumed if neither the
person nor anyone with whom the person conspired does an
overt act in pursuance of the conspiracy during the applicable
period of limitation.
(3) If an individual abandons the agreement, the conspiracy is
terminated as to that person only if and when the person
advises those with whom the person conspired of the
abandonment, or the person informs law enforcement
authorities of the conspiracy and of the person’s participation
therein.
T.C.A. § 39-12-103. The statute, by its terms, extends the objectives of the offense of
conspiracy to commit a substantive crime to include concealing the crime and
obstructing justice relative to it.
However, subsection (g) states that the statute is not “intended to modify
the evidentiary rules allowing statements of co-conspirators in furtherance of a
conspiracy.” T.C.A. § 39-12-103(g). The defendant argues that this provision renders
T.C.A. § 39-12-103 inapplicable to the determination of whether the co-conspirator
exception to the hearsay rule applies. Previous case law is less than clear as to
whether the criminal code definition of the offense of conspiracy has any bearing on
the requirements for the co-conspirator hearsay exception. See Neil P. Cohen et al.,
Tennessee Law of Evidence § 803(1.2).6, at 521 (3d ed. 1995).
In State v. Walker, 910 S.W.2d 381 (Tenn. 1995), the defendant was
convicted of murder, armed robbery and conspiracy to commit a felony. On appeal, he
complained that statements by his co-conspirators made to others well after the murder
and robbery occurred were hearsay and improperly admitted into evidence. Thus, the
defendant framed the issue as an evidentiary one.
33
In discussing the issue, the court noted that historically all acts or
declarations of a co-conspirator may be given in evidence against another co-
conspirator
from the time the conspiracy had its origin until its design has
been consummated, or until it is abandoned. But the
declarations or acts of one cannot be admitted against
another, unless the facts and circumstances warrant the
conclusion that a conspiracy was existing at the time of such
declarations or acts.
910 S.W.2d at 384-85. However, it also noted the definition of a criminal conspiracy in
T.C.A. § 39-12-103, indicating that it abrogated our conspiracy law relative to how long
a conspiracy continues, although the court stated that it was applying the prior
conspiracy law in effect at the time of the offenses. 910 S.W.2d at 385.
Then the court referred to Rule 803(1.2)(E), Tenn. R. Evid., and noted
that the analysis under it was the same as the prior law. It concluded that the robbery
conspiracy ended with the robbery and stated that the murder of the robbery victim was
incidental to it. As for a conspiracy to conceal the murder and the murder weapon, it
concluded that subsequent statements about the robbery and shooting went far beyond
concealment and were inadmissible. Id. at 386.
Unfortunately, our supreme court did not explore the relationship, if any,
between T.C.A. § 39-12-103 and Rule 803(1.2)(E), Tenn. R. Evid. However, its
recognition of the evidentiary rule reflects that the rule will control on the issue of
admissibility of hearsay statements. Also, given the express statement in the statute
that the evidentiary rules are not modified, we will follow suit in the present case, which
does not charge the offense of conspiracy.
As previously noted, historically, a conspiracy to commit a substantive
crime did not extend to measures for concealing the crime or obstructing justice, absent
specific proof showing that the concealment of the crime or the obstruction of justice
34
furthered the objectives of the conspiracy. Gaylor, 862 S.W.2d at 554 (statements
reflecting an ongoing effort to conceal held to be made during the course of conspiracy
to commit first degree murder to collect the victim’s life insurance when the insurance
proceeds, the goal of the conspiracy, had not been collected); see also Grunewald v.
United States, 353 U.S. 404, 401-05, 77 S. Ct. 963, 972-74 (1957) (“a vital distinction
must be made between acts of concealment done in furtherance of the main criminal
objectives of the conspiracy, and acts of concealment done after these central
objectives have been attained, for the purpose only of covering up after the crime”). A
continuing agreement to conceal the crime after its commission is not to be implied
from the mere fact that a conspiracy to commit the substantive crime existed and overt
acts were taken to cover up the crime. See Krulewitch v. United States, 336 U.S. 440,
443-44, 69 S. Ct. 716, 718-19 (1949); Grunewald, 353 U.S. at 401-05, 77 S. Ct. at 972-
74.
In the present case, the defendant and O’Brien were spotted in the stolen
van around 2:00 p.m. in Jackson, Tennessee, approximately an hour and one-half after
the offenses occurred. Any conspiracy to commit the murders and kidnapping would
have ended upon their consummation at the church, absent proof by a preponderance
of the evidence that the conspiracy continued. On the other hand, the fact that they
were using the stolen van to go west would indicate that their goal for the robbery of
obtaining a vehicle in order to go to California was still being pursued at the time of their
arrest. However, even that goal ended when the two were arrested. Moreover, the
recorded discussion between the defendant and O’Brien reflects that no previous
agreement to conceal or obstruct justice existed relative to the crimes. Thus, we
believe the evidence preponderates against a finding that O’Brien’s statements about
the offenses were admissible as co-conspirator statements under the original
conspiracy. This does not end our inquiry, though. In Walker, our supreme court
noted that a separate conspiracy to conceal the circumstances of the original crime
35
could exist and might give rise to the admission of concealment statements in a case in
which the original conspiracy is relevant and proven. Such proof existed in this case.
The videotape of the conversation between the defendant and O’Brien
reflects that O’Brien told the defendant not to say anything else, and the defendant
agreed to remain quiet. The defendant also nodded when O’Brien told the defendant
not to tell the police about O’Brien’s conduct. We believe that this evidence sufficiently
establishes a conspiracy to conceal the earlier committed crimes and to obstruct justice
in relation to them.
However, statements made before the existence of the conspiracy are not
admissible as a co-conspirator exception to the hearsay rule. Walker, 910 S.W.2d at
385. In this case, the conspiracy to conceal did not begin until O’Brien told the
defendant not to say anything else and the defendant agreed, stating that he would be
very quiet. Therefore, any statement made by O’Brien before the defendant agreed to
be quiet should not have been admitted because the statements were not made during
the course of the conspiracy.
As for the statements made by O’Brien after the conspiracy to conceal
began, we hold that they were made in furtherance of the conspiracy to conceal the
substantive crimes. For the statement to be made in furtherance of the conspiracy, it
must advance in some way the objectives of the conspiracy and not merely inform the
listener of the declarant’s activities. State v. Hutchison, 898 S.W.2d 161, 170 (Tenn.
1994). In this regard, we note that a statement is not in furtherance of the conspiracy if
it is merely “a narrative statement of past conduct between the conspirators.” Walker,
910 S.W.2d at 386. We also note that casual and purposeless conversation between
or among co-conspirators may not satisfy the requirement that the conversation
occurred in furtherance of the conspiracy. Id. at 170.
36
We believe that O’Brien’s statements detailing the commission of the
offenses advanced the conspiracy to conceal the substantive crimes in that they
allowed the defendant and O’Brien to match their stories. Similarly, O’Brien’s
declarations that he had mental problems suggested that he wanted the defendant to
corroborate his story, thus advancing the conspiracy to conceal the crimes. The
discussions relating to the evidence obtained by police permitted the defendant and
O’Brien to tailor their version of the crimes to the evidence against them.
Although the three requirements for the co-conspirator hearsay exception
have been met, the issue now becomes whether O’Brien’s statements made during the
new conspiracy to conceal the substantive crimes may be used to show the defendant’s
involvement in the crimes charged. We note that some jurisdictions hold that evidence
of the new conspiracy to conceal an earlier, completed conspiracy is inadmissible to
show participation in or the acts of the conspiracy to commit a substantive crime. See
United States v. DiDomenico, 78 F.3d 294, 303-04 (7th Cir. 1996), cert. denied, 117 S.
Ct. 507 (1996). Yet other jurisdictions hold that the statements made by co-
conspirators during the cover-up conspiracy are admissible in the trial for the
substantive offense if the statements are made at a time proximate to the commission
of the substantive crime. See State v. Buschkopf, 373 N.W.2d 756, 764-65 (Minn.
1985); People v. Meagher, 388 N.E.2d 801, 805 (Ill. App. Ct. 1979). We believe that
the latter is appropriate, and we conclude that the statements made by O’Brien
pursuant to and in furtherance of concealing the original conspiracy that had just ended
were admissible.
In addition, we believe that most of O’Brien’s statements were admissible
in order to give the defendant’s statements sensible context. See State v. Jones, 598
S.W.2d 209, 223 (Tenn. 1980). The record reflects that the primary value of the
videotape to the state was that it showed that the defendant’s mental awareness during
37
the conversation rebutted his claim that because of his mental condition, he could not
form the requisite mental intent. We believe that under Jones, O’Brien’s statements
were admissible for such purposes. However, Jones holds that a trial court should
instruct the jury that such statements are not to be considered as substantive evidence
but only as an aid to provide meaning to a defendant’s statement. Such an instruction
was not given in this case.
In any event, we hold that any error was harmless beyond a reasonable
doubt. Although O’Brien’s statements contain several references to the specifics of the
crimes, the same evidence was properly introduced through other means. Moreover,
O’Brien’s statements implicated O’Brien and supported the defendant’s theory that
O’Brien was the shooter. O’Brien called himself a cold-blooded killer and stated that he
did not plan on shooting the victims. Also, O’Brien told the defendant what he should
and should not tell the police, suggesting that O’Brien was the leader of the two. Under
these circumstances, we hold beyond a reasonable doubt that the defendant was not
harmed by the admission of O’Brien’s statements.
III. LIMITATION OF EXPERT TESTIMONY
The defendant asserts that the trial court erred by limiting the testimony of
Dr. Francois to the contents of his report because he did not include Dr. Francois’ name
on the list of expert witnesses given to the state as required by Rule 12.2(b), Tenn. R.
Crim. P., relating to notice of intent to use expert testimony of the defendant’s mental
condition. He argues that the trial court incorrectly applied Rule 12.2(b) because Dr.
Francois’ testimony related to a physical condition, not a mental condition, of the
defendant. The defendant contends that the testimony should not have been limited
because he complied with the requirements of discovery pursuant to Rule 16(b)(1)(B),
Tenn. R. Crim. P., as he gave a copy of Dr. Francois’ report to the state before trial.
38
Before Dr. Francois testified, a bench conference was held, and the state
objected to Dr. Francois’ testimony because it had neither received Dr. Francois’ report
during discovery nor been given notice that he would be called as an expert witness.
Defense counsel stated that Dr. Francois’ report was contained in the staff conference
report filed by Dr. Faroogue, although he conceded that Dr. Francois’ name did not
appear on the report. In response, the state withdrew its objection as long as the
testimony of Dr. Francois was limited to the one paragraph contained in the staff
conference report. Defense counsel responded that Dr. Francois would only testify
about the one paragraph.
The trial court then permitted Dr. Francois to testify but limited his
testimony to the paragraph contained in the staff conference report. Contained in the
physical examination portion of the staff conference report is a paragraph regarding the
physical examination of the defendant on June 1, 1994. It describes the defendant’s
general appearance, including his height, weight, temperature, pulse and blood
pressure. It also states that the findings were normal, with the exception of an enlarged
right testicle.
Dr. Francois testified that the results of his examination were that he
found a lesion of the right testicle. When defense counsel asked him to describe the
lesion, the state objected on the ground that Dr. Francois’ testimony was limited to his
report, and the trial court sustained the objection. Defense counsel then had Dr.
Francois read his findings from his report, including the finding that the defendant had
an enlarged right testicle, and asked him what would cause an enlarged right testicle.
The state objected on the same grounds, and the trial court sustained the objection.
Defense counsel immediately asked for a jury-out hearing in order to make an offer of
proof.
39
During the offer of proof, Dr. Francois testified that the defendant’s
enlarged testicle could be caused by a birth defect, excessive trauma, abnormal growth
or by wrapping a band around the shaft of the penis. He stated that to result in an
enlarged testicle, a band would have to be used for a long period of time. He said that
it would cause great pain. Dr. Francois stated that the elastic band that was found
wrapped around the defendant’s waist could also be wrapped around the base of the
penis. Defense counsel argued that the excluded testimony was relevant because it
corroborated evidence that the defendant used self-inflicted pain to focus his attention
elsewhere during a psychotic episode and that the defendant was wearing a strap when
he was taken to the jail. The trial court then stated that it had initially bent the rules to
permit Dr. Francois to testify.
Pursuant to Rule 12.2(b), Tenn. R. Crim. P., the defendant must give
written notice to the state before trial and file a copy of such notice with the clerk if the
defendant “intends to introduce testimony relating to a mental disease or defect or any
other mental condition of the defendant bearing on the issue of his . . . guilt . . . .” If the
defendant fails to provide notice as required, the court may exclude the testimony of
any expert witness offered by the defendant on the issue of the defendant’s mental
condition. Tenn. R. Crim. P. 12.2(d); see also State v. Russell, 735 S.W.2d 840, 842
(Tenn. Crim. App. 1987) (trial court properly excluded evidence of expert testimony on
the issue of mental condition when the defendant failed to provide written notice to the
state and failed to file a copy of the notice). The defendant must also permit the state
to inspect and copy any results or reports of physical or mental examinations. Tenn. R.
Crim. P. 16(b)(1)(B).
The state argues that the defendant has waived the issue pursuant to
Rule 103(a)(2), Tenn. R. Evid., by failing to object on grounds that the testimony should
not have been limited because he complied with Rule 16(b)(1)(B), Tenn. R. Crim. P.,
40
and on grounds that the trial court erroneously applied Rule 12.2(b), Tenn. R. Crim. P.
We do not believe that the issue has been waived. Pursuant to Rule 103(a)(2), Tenn.
R. Evid., error may not be based upon a trial court’s decision to exclude evidence
unless the substance of the evidence and the specific evidentiary basis supporting
admission were made known to the court by offer or were apparent from the context.
The defendant followed these requirements.
We hold that the defendant was required to give the state advance notice
of his intent to call Dr. Francois as an expert witness under Rule 12.2(b), Tenn. R. Crim.
P. We reject his argument that no notice was required because he desired to
introduce evidence of a physical condition, as opposed to a mental condition, of the
defendant. In this case, the defendant sought to introduce Dr. Francois’ testimony to
corroborate other testimony of the defendant’s mental condition. In this regard, Dr.
Francois’ proffered testimony qualified as “expert testimony relating to a mental disease
or defect” under Rule 12.2(b), Tenn. R. Crim. P. If, as the defendant contends, the
testimony related solely to the defendant’s physical condition, the evidence would be
irrelevant and thus inadmissible. See Tenn. R. Evid. 401, 402. Therefore, the
defendant was required to provide the state with advance notice that he intended to call
Dr. Francois as an expert witness.
Pursuant to Rule 12.2(d), the trial court may exclude the testimony of any
expert witness offered by the defendant on the issue of the defendant’s mental
condition if pretrial notice of the intent to present such expert testimony is not given.
Rule 12.2, Tenn. R. Crim. P., conforms to the federal rule. Committee Comment, Tenn.
R. Crim. P. 12.2. The objective of the requirement of pretrial notice is to give the state
time to rebut evidence of a defendant’s mental condition, which often requires reliance
upon expert testimony. See Notes of Advisory Committee on Rules, Fed. R. Crim. P.
12.2(b), 18 U.S.C.A. (West 1986). However, in considering the exclusion of evidence:
41
evidence should not be excluded except when it is shown that
a party is actually prejudiced by the failure to comply with the
discovery order and that the prejudice cannot be otherwise
eradicated. The exclusionary rule should not be invoked
merely to punish either the State or the defendant for the
deliberate conduct of counsel in failing to comply with a
discovery order. The court’s contempt powers should be used
for this purpose. Rules 12 and 16, as well as the other Rules
of Criminal Procedure were adopted to promote justice; they
should not be employed to frustrate justice by lightly depriving
the State or the defendant of competent evidence.
State v. Garland, 617 S.W.2d 176, 185-86 (Tenn. Crim. App. 1981) (citation omitted).
In this case, the trial court did not inquire into the potential prejudice to the
state by the admission of Dr. Francois’ testimony explaining the possible causes of the
enlarged testicle. Rather, it summarily ruled that Dr. Francois’ testimony should be
limited to the statement provided in the report. Before excluding evidence for
noncompliance with Rule 12.2(b), the trial court must determine that the admission
would prejudice the party against whom the evidence is introduced and that the
prejudice cannot be mitigated by other means. Without a proper inquiry by the trial
court, there is no way to conclude from the existing record whether the state was
prejudiced or whether the prejudice could have been mitigated to such an extent as to
allow the admission of the evidence. Therefore, we hold that the trial court abused its
discretion by limiting Dr. Francois’ testimony to the report without conducting this
inquiry.
However, we hold that the error was harmless. Dr. Auble testified that the
defendant told her that he inflicted pain on himself by wrapping thick bands around his
genitals, allowing him to control tension that resulted from the voices he heard. The
defendant’s father and stepmother testified that the bands the defendant wore around
42
his arms were so tight that the defendant could barely bend his arms and that the
bands caused his arms to swell and become discolored. Evidence was also introduced
that the defendant was wearing an elastic band at the time of his arrest. From this
evidence, the jury could infer that the defendant wrapped the bands around his genitals,
causing the enlargement of his right testicle. We do not believe that the erroneous
exclusion of Dr. Francois’ testimony more probably than not affected the judgment.
See T.R.A.P. 36(b); Tenn. R. Crim. P. 52(a).
IV. ADMISSION OF 9-1-1 TAPE
The defendant complains that the trial court erred by admitting the 9-1-1
tape because the evidence had little or no probative value and that any probative value
was substantially outweighed by the danger of unfair prejudice and by the needless
presentation of cumulative evidence. See Tenn. R. Evid. 403. He also argues that the
trial court erroneously allowed the state to use the 9-1-1 tape to bolster the
uncontradicted testimony of the victim. The defendant contends that the state should
have been limited to introducing Mr. Harrington’s testimony detailing his conversation
with the 9-1-1 operator. The state responds that the trial court did not err by admitting
the 9-1-1 tape because the tape was relevant to show the identity of the defendant and
O’Brien and because it corroborated several parts of the victim’s testimony. The state
asserts that the tape is even more reliable than the victim’s testimony because it
contains statements made moments after the offenses took place. We hold that the
trial court erred by admitting the tape but that the error was harmless.
Before trial, the defendant filed a motion to exclude the 9-1-1 tape,
arguing that it was inadmissible because it was unfairly prejudicial and constituted
hearsay. See Tenn. R. Evid. 403, 802. He argued that the tape was of marginal
probative value because neither identity nor the victim’s injuries were contested by the
defendant. He argued that the tape was extremely inflammatory. The defendant
43
asserted that the victim could testify regarding his statements to the 9-1-1 operator but
that the 9-1-1 tape itself was inadmissible because the probative value was
substantially outweighed by the danger of unfair prejudice. He also argued that the
introduction of the tape constituted improper bolstering of the victim’s uncontradicted
testimony. The state responded that the 9-1-1 tape was particularly relevant because
the victim described the offenses committed against him and the perpetrators. The trial
court held that the 9-1-1 tape was admissible, ruling that the probative value
outweighed the danger of unfair prejudice.
At trial, the victim testified during direct examination regarding his
conversation with the 9-1-1 operator, and the 9-1-1 tape was played for the jury. It
reveals that Mr. Harrington told the operator that he and Mr. Weaver had been shot in
the head, that there was a lot of blood, and that they needed help. He stated that they
were in a dormitory room at the House of God Church on Heiman Street. He said that
he and Mr. Weaver worked for National Guardian Security Services and that they were
working at the church. Mr. Harrington told the operator that they were eating lunch in a
white, Astro van when a white man and a black man forced them inside the dormitory
room, shot them, and then took their van. He said that he did not hear the men leave
but that they were no longer in the room. Mr. Harrington stated that he did not know the
two men and did not know what they were wearing. The tape reflects that when the
operator asked Mr. Harrington to describe the perpetrators, Mr. Harrington stated that
they were about twenty-five years old.
The 9-1-1 tape also reveals that Mr. Harrington stated several times,
“please hurry,” and that he asked numerous times whether the police or ambulance
were there. The operator responded by telling Mr. Harrington that they were hurrying
and by telling him to “hold on,” to not talk if it made him feel uncomfortable, or to lie
down and to put pressure on his head. Mr. Harrington stated that he heard sirens and
44
that he saw a white car. The tape reflects that the police and the ambulance had
difficulty locating the victims.
On cross-examination, the victim was asked one question: whether he
was bound after being made to lie face down. The victim answered yes to the question.
The admissibility of evidence under Rule 403, Tenn. R. Evid., is a matter
within the trial court’s discretion and will not be reversed on appeal absent an abuse of
that discretion. See State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997). Under Rule
401, Tenn. R. Evid., evidence is relevant if it has “any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.” Relevant evidence is generally
admissible. Tenn. R. Evid. 402. However, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of delay, waste of time, or needless
presentation of cumulative evidence. Tenn. R. Evid. 403. Hearsay is not admissible
unless an exception to the rule of exclusion applies. Tenn. R. Evid. 802.
First, we address the defendant’s improper bolstering argument. In
support of his argument, the defendant relies upon State v. Benton, 759 S.W.2d 427,
433-34 (Tenn. Crim. App. 1988). Initially, we note that Benton was decided before the
adoption of the Tennessee Rules of Evidence. In Benton, this court held that the trial
court erred by admitting a videotaped statement of the victim. Id. The court reasoned
that the videotape should not have been admitted because the victim’s credibility had
not been attacked on cross-examination. Id. The court stated that:
prior consistent statements may be admissible, as an
exception to the rule against hearsay, to rehabilitate a witness
when insinuations of recent fabrication have been made, or
when deliberate falsehood has been implied. But before prior
consistent statements become admissible, the witness’
45
testimony must have been assailed or seriously questioned to
the extent that the witness’ credibility needs shoring up.
Id. at 433-34. We agree that the 9-1-1 tape constituted hearsay and was not
admissible because the victim’s credibility had not been attacked. However, the
evidence was admissible under the excited utterance exception to the hearsay rule.
See Tenn. R. Evid. 803(2).
Next, we address the defendant’s argument relating to relevance and the
exclusion of relevant evidence. In support of his Rule 403 argument, the defendant
relies upon State v. Smith, 868 S.W.2d 561 (Tenn. 1993). In Smith, our supreme court
addressed the admissibility of a 9-1-1 call from a victim under Rule 403. Identity was a
key issue in Smith as the defendant presented an alibi defense. The tape of the 9-1-1
call introduced in Smith contained a statement by one of the victims saying the
defendant’s name as he was being attacked. Id. at 577. Noting that the call was
particularly relevant to establishing the identity of the defendant as the killer, the court
ruled that the tape of the 9-1-1 call was admissible. Id. In ruling that the tape was
admissible, the court distinguished State v. Pendergrass, 586 P.2d 691 (Mont. 1978),
because the tape in Smith contained a statement by one of the victims saying the
defendant’s name as he was being attacked. Smith, 868 S.W.2d at 577. Pendergrass
held that a hysterical emergency call by a rape victim was inadmissible because the
prejudicial danger outweighed the tape’s probative value and because the evidence
was introduced simply to bolster the already overwhelming evidence that the rape
occurred, a fact the defendant did not dispute. 586 P.2d at 691.
We conclude that the 9-1-1 tape in the present case was relevant to the
material issues of identity and the nature of Mr. Harrington’s injuries. See Tenn. R.
Evid. 401. The 9-1-1 tape reflects that Mr. Harrington told the operator that a black
man and a white man forced him and Mr. Weaver into the dormitory room, shot them,
46
and then took their van. He described the two men as being about twenty-five years
old.
On the other hand, although relevant under Rule 401, we conclude that
the 9-1-1 tape should have been excluded because the probative value of the evidence
was substantially outweighed by the danger of unfair prejudice and the needless
presentation of cumulative evidence. See Tenn. R. Evid. 403. The contested issue at
trial was the degree of the defendant’s involvement, not his identity. The 9-1-1 tape
added nothing to show that the defendant actively participated in the offenses. Rather,
the 9-1-1 tape related more to the identity of the perpetrators. At trial, the defendant did
not dispute that he was present when the offenses occurred, arguing instead that his
involvement was limited. Moreover, Mr. Harrington testified virtually to everything that
was contained on the 9-1-1 tape, including the identification of the defendant as the
person who bound him. In this respect, the evidence was cumulative. Also, unlike
Smith, the introduction of the tape presented a danger of unfair prejudice to the
defendant. The tape reflects that Mr. Harrington, although not hysterical, feared the
return of the defendant and O’Brien, that he was in great pain, that he repeatedly stated
“please hurry,” that the operator responded by telling the victim to hold on, stop talking,
and lie down, and that the police and ambulance had difficulty finding the victim. We
believe that there was a risk that the jury could have been inflamed by these
statements. We believe that the probative value of the evidence was substantially
outweighed by the danger of unfair prejudice. Therefore, the trial court erred by
admitting the 9-1-1 tape.
The defendant argues that the error was not harmless given the fact that
the tape shows that the victim was in pain and feared the return of his assailants and
given the prosecutor’s reliance upon the tape during closing argument. During closing
argument, the prosecutor described the 9-1-1 call as a “bone-chilling” call. He also
47
referred to Mr. Harrington repeatedly saying, “Please hurry, please hurry. I’ve bled all I
can bleed, please hurry, please hurry.” The prosecutor argued that Mr. Harrington
believed that Mr. Weaver was alive because he heard a gurgling noise. The prosecutor
argued that Mr. Harrington feared the return of his assailants. The defendant did not
object to the state’s closing argument. The state responded that the erroneous
introduction of the 9-1-1 tape was harmless because the proof of the defendant’s guilt
was overwhelming.
We agree that the error was harmless. See T.R.A.P. 36(a); Tenn. R.
Crim. P. 52(a). We do not believe that the erroneous introduction of the 9-1-1 tape
more probably than not affected the result of the trial. As earlier stated, the 9-1-1 tape
added almost nothing to the state’s case. The substance of the emergency telephone
call was provided through the testimony of the victim. Likewise, though we view the
introduction of the 9-1-1 tape as presenting a danger of unfair prejudice, we do not
believe that the tape was of such an inflammatory nature as to require a reversal. The
victim, though obviously in pain, was coherent and not hysterical. We hold that the trial
court erred by introducing the 9-1-1 tape but that the error was harmless.
V. DOUBLE JEOPARDY
The defendant asserts that his convictions for two counts of especially
aggravated burglary violate the double jeopardy clauses of the United States
Constitution and the Tennessee Constitution. The defendant was indicted in separate
counts for the especially aggravated burglaries of Mr. Weaver and of Mr. Harrington.
The counts allege that the defendant entered the House of God Church with the intent
to commit first degree murder and that Mr. Weaver and Mr. Harrington suffered serious
bodily injury. The defendant argues that because the offense of especially aggravated
burglary is a crime against property and not persons, he cannot be convicted of two
counts of especially aggravated burglary based on the single entry into the church.
48
The double jeopardy clauses of both the United States and Tennessee
Constitutions state that no person shall be twice put in jeopardy of life or limb for the
same offense. U.S. Const. amend. V; Tenn. Const. art. I, § 10. The clause has been
interpreted to include the following protections: “It protects against a second
prosecution for the same offense after acquittal. It protects against a second
prosecution for the same offense after conviction. And it protects against multiple
punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.
Ct. 2072, 2076 (1969); State v. Denton, 938 S.W.2d 373, 378 (Tenn. 1996). It is the
last protection that is of interest in this case.
In Denton, our supreme court set forth the procedure for analyzing a claim
that two offenses are the same for double jeopardy purposes. It stated that the
resolution of a double jeopardy punishment issue under the Tennessee Constitution
requires the following: (1) an analysis of the statutory offenses under Blockburger v.
United States, 284 U.S. 299, 52 S. Ct. 180 (1932); (2) an analysis, guided by the
principles of Duchac v. State, 505 S.W.2d 237 (Tenn. 1973), of the statutory evidence
used to prove the offenses; (3) a consideration of whether there were multiple victims or
discrete acts; and (4) a comparison of the purposes of the respective statutes. Denton
938 S.W.2d at 281. None of the steps are determinative but rather the results of the
analysis of each step must be weighed and considered in relation to each other. Id.
The state conceded during oral argument in this case that multiple
convictions for especially aggravated burglary are not permissible, and it requested that
the especially aggravated burglary conviction relating to Mr. Weaver be dismissed. We
agree that double jeopardy principles prohibit convictions for more than one offense of
especially aggravated burglary under the circumstances of this case. However, we do
not agree that the charges relating to Mr. Weaver must be dismissed because of the
double jeopardy violation.
49
A dismissal is not the only legitimate option available when double
jeopardy principles are violated. State v. Addison, 973 S.W.2d 260, 267 (Tenn. Crim.
App. 1997), app. denied (Tenn. June 29, 1998). In Addison, this court stated that:
there is no need to “dismiss,” “vacate,” or “strike,” a particular
“conviction” if what is meant by the term “conviction” is the
return of the jury verdict of guilt. Rather, the jury verdict stands
as a legitimate finding of fact and law which the trial court
should preserve by merging the same offense counts into one
judgment of conviction . . . that notes the merger of counts with
each other. . . . Such a merger and imposition of a single
judgment of conviction protects against double jeopardy and
preserves the validity of the jury verdicts for future avoidance
of problems related to unnecessarily dismissed “charges” or
“convictions.” See, e.g., State v. Davis, 613 S.W.2d 218, 221
(Tenn. 1981).
Id.
In this case, the jury returned guilty verdicts for both counts of especially
aggravated burglary. The counts charge the same offense of especially aggravated
burglary, but each alleges separate injured victims. However, double jeopardy
principles are violated by the entry of more than one judgment of conviction imposing
more than one sentence for the burglary. Therefore, the separate counts should have
been merged, and a single judgment of conviction should have been entered. The
nature of the judgment of conviction to be upheld on appeal is controlled by our
discussion of the defendant’s Oller claim.
VI. OLLER CLAIM
The defendant contends that the trial court erred by refusing to dismiss
the especially aggravated burglary counts. He argues that a dismissal is required under
T.C.A. § 39-14-404(d) because the element of serious bodily injury had already been
prosecuted for charges of first degree murder and especially aggravated robbery.
Pursuant to T.C.A. § 39-14-404(d), the acts that constitute especially aggravated
burglary may be prosecuted under the especially aggravated burglary section or any
other applicable section, but not both. In support of his claims, the defendant cites
50
State v. Holland, 860 S.W.2d 53 (Tenn. Crim. App. 1993) and State v. Oller, 851
S.W.2d 841 (Tenn. Crim. App. 1992). However, as the state correctly points out, these
cases do not require that the counts be dismissed. Rather, they hold that the conviction
for especially aggravated burglary must be modified to aggravated burglary when
subsection (d) prohibits the prosecution and conviction for especially aggravated
burglary. Holland, 860 S.W.2d at 60; Oller, 851 S.W.2d at 843.
We hold that the especially aggravated burglary conviction cannot stand
based upon the injuries sustained by Mr. Weaver because it violates T.C.A. § 39-14-
404(d). The act of killing Mr. Weaver constituted the serious bodily injury necessary to
enhance the offense from aggravated burglary to especially aggravated burglary. In
this case, the defendant was prosecuted and convicted of the first degree murder and
the especially aggravated robbery of Mr. Weaver. 1 Under these circumstances, T.C.A.
§ 39-14-404(d) prohibits the prosecution and conviction for especially aggravated
burglary based upon Mr. Weaver’s injuries. See Oller, 851 S.W.2d at 843. Under Oller,
the conviction based upon Mr. Weaver’s injuries must be modified to aggravated
burglary. Therefore, only a finding of guilt for aggravated burglary remains with respect
to the injuries sustained by Mr. Weaver.
However, the especially aggravated burglary conviction stands based
upon the injuries sustained by Mr. Harrington because T.C.A. § 39-14-404(d) was not
violated. The defendant was prosecuted and convicted of both attempted first degree
murder and especially aggravated burglary. The offense of attempted first degree
murder does not require a showing of serious bodily injury. State v. Trusty, 919 S.W.2d
305, 313 n.7 (Tenn. 1996). Although the defendant was indicted for the especially
1
W e also no te that the d efenda nt was c harged in separa te coun ts of the ind ictmen t with
two counts of especially aggravated kidnapping of Mr. Weaver. One count alleged that the kidnapping
was accomplished with a deadly weapon, and the other count alleged that the victim suffered serious
bod ily injury. T he st ate e lecte d to p roce ed on the c harg e alleg ing th e use of a d ead ly wea pon , and it
dism issed the other co unt.
51
aggravated robbery of Mr. Harrington, an offense containing serious bodily injury as an
element, the charge was dismissed at the close of the state’s proof. Therefore, the
prosecution and conviction for especially aggravated burglary based upon Mr.
Harrington’s injuries do not violate T.C.A. § 39-14-404(d).
As earlier noted, double jeopardy principles prohibit the entry of more than
one judgment of conviction imposing more than one sentence for the burglary. The jury
verdicts of guilt for the offense must be merged. In State v. Banes, 874 S.W.2d 73
(Tenn. Crim. App. 1993), this court stated:
In the circumstance, in which two guilty verdicts are
returned as to alternative charges, the guilty verdict on the
greater charge stands and the guilty verdict on the lesser
charge merges into the greater charge. The judge should
enter a judgment of conviction on the greater offense and a
judgment merging the lesser offense into the greater.
Id. at 81. In this case, findings of guilt for aggravated burglary and especially
aggravated burglary stand. The finding of guilt for the lesser offense of aggravated
burglary merges into the greater offense of especially aggravated burglary. Therefore,
we hold that the judgment of conviction relative to Mr. Weaver shall be vacated, and the
conviction shall be merged with the especially aggravated burglary conviction relating to
Mr. Harrington.
VII. SENTENCING
The defendant complains that the trial court imposed an excessive
sentence. He argues that the trial court erred by applying enhancement factors, by
finding that no mitigating factors existed, and by imposing consecutive sentences. The
state responds that the trial court imposed appropriate sentences. We agree.
Appellate review of sentencing is de novo on the record with a
presumption that the trial court's determinations are correct. T.C.A. § 40-35-401(d). As
the Sentencing Commission Comments to this section note, the burden is now on the
52
defendant to show that the sentence is improper. This means that if the trial court
followed the statutory sentencing procedure, made findings of fact that are adequately
supported in the record, and gave due consideration and proper weight to the factors
and principles that are relevant to sentencing under the 1989 Sentencing Act, we may
not disturb the sentence even if a different result were preferred. State v. Fletcher, 805
S.W.2d 785, 789 (Tenn. Crim. App. 1991).
However, "the presumption of correctness which accompanies the trial
court's action is conditioned upon the affirmative showing in the record that the trial
court considered the sentencing principles and all relevant facts and circumstances."
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the purpose of
meaningful appellate review,
the trial court must place on the record its reasons for arriving
at the final sentencing decision, identify the mitigating and
enhancement factors found, state the specific facts supporting
each enhancement factor found, and articulate how the
mitigating and enhancement factors have been evaluated and
balanced in determining the sentence. T.C.A. § 40-35-210(f)
(1990).
State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994).
Also, in conducting a de novo review, we must consider (1) the evidence,
if any, received at the trial and sentencing hearing, (2) the presentence report, (3) the
principles of sentencing and arguments as to sentencing alternatives, (4) the nature
and characteristics of the criminal conduct, (5) any mitigating or statutory enhancement
factors, (6) any statement that the defendant made on his own behalf and (7) the
potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103, -210; see Ashby,
823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229, 236-37 (Tenn. 1986).
The sentence to be imposed by the trial court is presumptively the
minimum in the range unless there are enhancement factors present. T.C.A. § 40-35-
53
210(c).2 Procedurally, the trial court is to increase the sentence within the range based
upon the existence of enhancement factors and, then, reduce the sentence as
appropriate for any mitigating factors. T.C.A. § 40-35-210(d)-(e). The weight to be
afforded an existing factor is left to the trial court's discretion so long as it complies with
the purposes and principles of the 1989 Sentencing Act and its findings are adequately
supported by the record. T.C.A. § 40-35-210, Sentencing Commission Comments;
Moss, 727 S.W.2d at 237; see Ashby, 823 S.W.2d at 169.
At the sentencing hearing, Mr. Harrington testified regarding the extent of
his injuries suffered during the offenses. He stated that he had undergone fourteen
surgeries as a result of his injuries from the offenses, including surgery to repair his
inner ear canal and a fracture in his neck and surgery to place a gold weight in his
eyelid. He said that he had also undergone plastic surgery. Mr. Harrington testified
that he had migraines at least twice a week and that he could not function when he had
a migraine. He said that he had surgery on his neck in an attempt to cure the migraines
but that it did not help. Mr. Harrington testified that he had to go to a doctor to receive
an injection to relieve the pain, but the injections did not always work. Mr. Harrington
stated that he lost all hearing in his right ear, was partially blind in his right eye, and had
problems with balance. He stated that his eyesight was getting worse and that his eyes
did not tear properly. Mr. Harrington testified that because his facial muscles had
deteriorated, his teeth rubbed against his jaw causing sores inside his mouth. He
stated that he had also been treated by a psychologist for depression.
Mr. Harrington testified that he was thirty-six years old when the offenses
occurred. He stated that he had worked at National Guardian for five years and that he
had not been able to work since the offenses. He testified that he had financial
problems as a result of his inability to work, requiring him to sell several sentimental
2
For Class A felonies committed on or after July 1, 1995, the presumptive sentence is the
midp oint of the ra nge. See T.C.A. § 40-35-210(c).
54
possessions to obtain money. He stated that his relationship with his children had been
affected and that he and his wife had experienced marital problems as a result of the
injuries he sustained. He also said that he could no longer ride or train horses, a hobby
that he had enjoyed since he was five or six years old.
Linda Harrington, Mr. Harrington’s wife, explained the many ways that her
husband’s life had been changed by the injuries he sustained from the offenses,
including the financial difficulties. She also testified regarding her husband’s
depression. She testified that Paulette Weaver, the widow of William Rex Weaver, had
planned to testify at the sentencing hearing but that she had experienced a nervous
breakdown and was unable to attend.
The presentence report reflects that the then thirty-year-old defendant had
no prior criminal record. The defendant introduced as exhibits at the sentencing
hearing copies of his medical records relating to psychological evaluations and
interviews by Dr. Azimi and by Dr. Auble. The medical records relating to the
defendant’s hospitalization in Illinois were also introduced as well as a copy of his
school records that reflect that he did poorly in school and was absent often.
The trial court called Kim Bone, a probation officer. Ms. Bone testified
that she went to the jail to interview the defendant as part of her preparation of the
presentence report but that the defendant refused to talk to her. She stated that as a
result, she was unable to interview the defendant.
At the conclusion of the sentencing hearing, the trial court sentenced the
defendant as a Range I, standard offender to twenty years for each Class A felony
conviction and to ten years for each Class B felony conviction. The court ordered that
55
the sentences imposed for the first degree murder and the attempted first degree
murder convictions be served consecutively.
The trial court rejected the defendant’s theory that he was an unwilling
participant in the crimes. It found instead that the defendant did not attempt to stop
O’Brien from shooting the victims but instead helped bind the victims. It also stated that
the evidence suggested that the defendant might have handled the gun at some point.
The trial court stated that the defendant did nothing to disassociate himself from
O’Brien as evidenced by the defendant remaining with O’Brien until their arrest.
In sentencing the defendant, the trial court enhanced his sentences for
the attempted first degree murder, especially aggravated robbery, especially
aggravated kidnapping, and especially aggravated burglary convictions based upon the
following enhancement factors pursuant to T.C.A. § 40-35-114:
(3) the offenses involved more than one victim;
(6) the personal injuries inflicted upon or the amount of
damage to property sustained by or taken from the victim was
particularly great; and
(10) the defendant had no hesitation about committing the
crimes when the risk to human life was high.
The trial court did not explain its factual basis for the application of the enhancement
factors. Although the state argued and the defendant conceded that factor (9) applied
because the defendant possessed a firearm during the commission of the offense, the
trial court did not state that it enhanced the defendant’s sentence based upon this
factor.
The trial court found that no mitigating factors applied. Specifically, it
rejected the following mitigating factors:
(4) the defendant played a minor role in the commission of the
offenses;
56
(8) the defendant was suffering from a mental condition that
significantly reduced his culpability for the offenses;
(11) the defendant, although guilty of the crimes, committed
the offenses under such unusual circumstances that it is
unlikely that a sustained intent to violate the law motivated the
criminal conduct;
(12) the defendant acted under duress or under the domination
of the codefendant; and
(13) the defendant had no prior criminal record and was not a
violent person.
See T.C.A. § 40-35-113. With respect to consecutive sentencing, the state and the
defendant limited their argument to the provision allowing for consecutive sentencing for
a dangerous offender. See T.C.A. § 40-35-115(b)(4). However, the trial court did not
explain its reasons for ordering the defendant to serve the sentence of life
imprisonment for the first degree murder conviction consecutive to the twenty-year
sentence for the attempted first degree murder conviction.
A. ENHANCEMENT FACTORS
The defendant contends that the trial court erred by finding that
enhancement factors (3), (6) and (10) applied. First, he asserts that the trial court
inappropriately applied enhancement factor (3) because the defendant was indicted
separately and convicted of the crimes against each victim. The state concedes that
the trial court inappropriately applied factor (3). With the exception of the especially
aggravated burglary, we agree that the application of the enhancement factor under the
facts of this case was inappropriate. See State v. Williamson, 919 S.W.2d 69, 82
(Tenn. Crim. App. 1995) (factor (3) may not be applied when the defendant is
separately convicted of the offenses committed against each victim). As mentioned
earlier, the aggravated burglary conviction is merged into the especially aggravated
burglary conviction. Under these circumstances, enhancement factor (3) is applicable
given the fact that the offense involved more than one victim.
57
As for enhancement factor (6), relative to particularly great injuries, the
defendant concedes that it may be applied to the attempted first degree murder
conviction because it is not an essential element of the offense. See State v. Nix, 922
S.W.2d 894, 903 (Tenn. Crim. App. 1995) (holding that particularly great personal injury
is not an essential element of attempted first degree murder). However, with respect to
the remaining convictions, he argues that great personal injuries are inherent in every
especially aggravated robbery, especially aggravated kidnapping and especially
aggravated burglary because those offenses require serious bodily injury as an
element.
With respect to the offenses of especially aggravated robbery and
especially aggravated burglary, these offenses as alleged in the indictment require
proof of serious bodily injury. In State v. Jones, 883 S.W.2d 597 (Tenn. 1994), our
supreme court concluded that “proof of serious bodily injury will always constitute proof
of particularly great injury.” Id. at 602. Therefore, factor (6) should not have been
applied to these offenses because the factor is an essential element of the offenses.
Relative to the offense of especially aggravated kidnapping, the conviction
was based upon the defendant’s use of a deadly weapon, not because Mr. Weaver was
killed. Thus, particularly great personal injuries are not inherent in the offense of
especially aggravated kidnapping. We believe that the severe injuries suffered by the
victims qualify as particularly great personal injuries for purposes of enhancing the
defendant’s sentences under factor (6) for the attempted first degree murder of Mr.
Harrington and the especially aggravated kidnapping of Mr. Weaver.
We note that the trial court did not apply factor (9), relative to use of a
deadly weapon, although the state argued that it was applicable, and the defendant
conceded that the factor is not an essential element of the offense of attempted first
58
degree murder and may be appropriately considered to enhance the sentence. See
State v. Jackson, 946 S.W.2d 329, 334 (Tenn. Crim. App. 1996) (factor (9) applicable
to attempted first degree murder). We agree that the factor should have been applied
to the attempted first degree murder. As for the offenses of especially aggravated
kidnapping and especially aggravated robbery, the defendant argues that the factor is
an essential element of the offenses as charged. We agree. However, factor (9)
should have been considered to enhance the defendant’s sentences for especially
aggravated burglary because the defendant possessed or employed a firearm during
the commission of the offense. The use of a firearm is not an element of especially
aggravated burglary. T.C.A. § 39-14-405(a); see also State v. Baker, 956 S.W.2d 8, 17
(Tenn. Crim. App. 1997) (factor (9) applicable to enhance sentence for aggravated
burglary conviction). Therefore, factor (9) is applicable to the offenses of attempted first
degree murder and especially aggravated burglary.
The defendant argues that factor (9) should be given little weight because
the evidence showed that O’Brien stole the gun used in the crimes and that O’Brien, not
the defendant, shot the victims. We disagree. Given the fact that the defendant held
the gun during the commission of the offenses and disposed of the gun when chased
by police, we conclude that factor (9) should be given considerable weight.
Relative to enhancement factor (10), the defendant asserts that it cannot
be applied because it is an essential element of the offenses of especially aggravated
kidnapping and especially aggravated robbery as both offenses involved the use of a
deadly weapon. See State v. Kern, 909 S.W.2d 5, 8 (Tenn. Crim. App. 1995) (factor
(10) inapplicable when based solely upon the defendant’s use of a deadly weapon).
The test for determining whether an enhancement factor is an essential element of an
offense is whether the same proof necessary to establish a particular element would
also establish the enhancement factor. See Jones, 883 S.W.2d at 601. The
59
determination of whether a particular enhancement factor should be applied is made on
a case-by-case basis. See State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).
Initially, we note that the trial court failed to state the specific facts
supporting the application of factor (10). At the sentencing hearing, the state argued
that the factor applied because several people, including two state troopers, were
endangered during the high-speed chase in Jackson. On appeal, the state asserts
without further explanation that the trial court properly applied enhancement factor (10)
based upon the defendant’s actions at the scene as testified to by Mr. Harrington.
We do not believe that factor (10) is applicable based upon the
endangerment of lives during the high-speed chase that took place in Jackson
approximately one and one-half to two hours after the commission of the offenses. We
acknowledge that factor (10) may be applied if the facts “demonstrate a culpability
distinct from and appreciably greater than that incident to the offense” for which the
defendant is convicted. Jones, 883 S.W.2d at 603 (emphasis added). This court has
held that the factor applies when persons other than the victims alleged in the
indictment are placed at risk during the commission of the offense. State v. Sims, 909
S.W.2d 46, 50 (Tenn. Crim. App. 1995). The rationale is that when there are others at
risk besides the victim, this demonstrates a culpability greater than that required to
prove the offense. Jones, 883 S.W.2d at 603.
In Jones, our supreme court cites State v. Lambert, 741 S.W.2d 127, 134
(Tenn. Crim. App. 1987), as an example of the proper application of enhancement
factor (10). Jones, 883 S.W.2d at 603. In Lambert, the defendant, before striking two
persons, drove an automobile recklessly through the University of Tennessee area of
Knoxville while the streets and sidewalks were crowded with motorists and pedestrians.
The court explained that the Lambert court properly determined that factor (10) applied
60
because the defendant created a high risk of death or serious bodily injury to many
people before killing the victims, demonstrating a culpability distinct from and
appreciably greater than that incident to the offense for which he was convicted. Jones,
883 S.W.2d at 603.
Although we believe that lives were placed at risk during the pursuit by
police, we do not believe that the risk was created incident to the commission of the
offenses in this case. The police chase did not occur shortly after the commission of
the offenses. Rather, the police chase occurred approximately one and one-half to two
hours after the crimes were committed. Under these circumstances, factor (10) is not
applicable.
However, we believe that based upon Mr. Harrington’s testimony, factor
(10) is applicable to the especially aggravated kidnapping, especially aggravated
robbery, and especially aggravated burglary convictions. Mr. Harrington testified that
he was present when the offenses were committed against Mr. W eaver, and Mr.
Weaver was present when the offenses were committed against Mr. Harrington. Both
Mr. Weaver and Mr. Harrington were in direct peril when the defendant committed the
offenses against the other person. Under these circumstances, the facts of this case
“demonstrate a culpability distinct from and appreciably greater” than that incident to
the offenses as required for the application of factor (10) under Jones. Id. (emphasis
added). Therefore, the trial court properly applied factor (10). We believe the factor
deserves considerable weight.
B. MITIGATING FACTORS
Next, the defendant contends that the trial court erred by finding that no
mitigating factors applied. First, he argues that the trial court should have considered
that he played a minor role in the commission of the offense. See T.C.A. § 40-35-
61
113(4). However, he concedes that the evidence shows that he made statements to a
social worker that he held the gun during the commission of the offenses. The
defendant also acknowledges that the evidence establishes that he threw the gun out
the window when chased by police. The trial court rejected the defendant’s theory that
he played a minor role and instead found that the defendant actively participated in the
crimes. The record supports the trial court’s conclusion.
Next, the defendant asserts that there is ample evidence that he was
suffering from a mental condition that significantly reduced his culpability for the
offenses. See T.C.A. § 40-35-113(8). We agree. The circumstances surrounding the
commission of the present offenses are similar to earlier occasions when the defendant
was suffering from a mental condition in that the defendant decided to leave home for
no reason. The defendant also told Dr. Azimi that he left the dormitory room after
O’Brien shot the gun because he heard voices. The personal belongings taken by the
defendant for the trip to California suggest that the defendant was suffering from a
mental condition. When arrested, the defendant was wearing clothing inappropriate for
the weather and was wearing bands similar to those he used to relieve anxiety from
auditory hallucinations. Under these circumstances, the factor should have been
considered. However, we do not believe that the evidence that the defendant suffered
from a mental condition at the time the offenses were committed was strong.
Therefore, the factor should only be given minimal weight.
The defendant argues that the trial court should have considered that he
committed the crimes under such unusual circumstances that it is unlikely that he had a
sustained intent to violate the law, see T.C.A. § 40-35-113(11), and that he acted under
duress, see T.C.A. § 40-35-113(12). We disagree. As previously mentioned, the trial
court concluded that the defendant was an active participant in the planned crimes.
62
The record supports the trial court’s conclusion. It properly rejected factors (11) and
(12).
As for the defendant’s contention that the trial court should have
considered his lack of a prior criminal record, the state concedes that the factor is
applicable. We agree that the trial court should have considered the defendant’s lack
of a prior criminal record. We hold that the factor should be given moderate weight.
C. MODIFICATION OF SENTENCES
We need not remand for resentencing due to the trial court’s
misapplication of enhancement and mitigating factors given the fact that the record is
sufficient to conduct a de novo review. Although we conclude that the trial court
inappropriately applied enhancement factor (3) and failed to consider mitigating factors
(8) and (13) with respect to the attempted first degree murder conviction, the defendant
is not necessarily entitled to a reduction in the sentence imposed by the trial court. In
consideration of the record before us, we hold that enhancement factor (6), particularly
great personal injuries, and enhancement factor (9), possession or employment of a
deadly weapon, apply to the attempted first degree murder conviction. See T.C.A. §
40-35-114(6), (9). These enhancement factors are entitled to great weight under the
circumstances of this case. We also hold that mitigating factors apply: factor (8), the
defendant’s mental condition significantly reduced his culpability, and factor (13), the
defendant’s absence of a prior criminal record. However, the mitigating factors do not
deserve great weight. Under these circumstances, the mid-range sentence of twenty
years for this Class A felony is justified.
As for the especially aggravated kidnapping conviction, enhancement
factors (6) and (10) are applicable. With respect to the especially aggravated robbery
conviction, enhancement factor (10) applies. The enhancement factors are deserving
63
of great weight, unlike the applicable mitigating factors (8) and (13). We believe that
given the applicable enhancement and mitigating factors, a twenty-year sentence is
warranted for the convictions for especially aggravated kidnapping and especially
aggravated robbery.
As for the remaining especially aggravated burglary conviction, we hold
that the trial court properly sentenced the defendant to ten years incarceration.
Enhancement factors (3), (6), (9) and (10) apply to the offense, as do mitigating factors
(8) and (13).
D. CONSECUTIVE SENTENCING
The defendant challenges the imposition of consecutive sentences. He
argues that he does not meet the requirements for a dangerous offender under T.C.A.
§ 40-35-115(b)(4). He also argues that a sentence of life imprisonment consecutive to
a twenty-year sentence does not reasonably relate to the severity of the offenses
committed by the defendant given his lack of a prior criminal record. The state counters
that there is no prohibition against imposing consecutive sentences for youthful, first-
time offenders, and it argues that consecutive sentences are warranted in the case.
We conclude that consecutive sentences are appropriate in this case.
Initially, we note that the trial court failed to state its reasons for imposing
consecutive sentencing. Therefore, our review of the issue of consecutive sentencing
is de novo without a presumption of correctness.
The defendant and the state limited their arguments with respect to
consecutive sentencing to the provision providing for consecutive sentencing for
dangerous offenders. See T.C.A. § 40-35-115(b)(4). We agree that this provision is
the only one applicable in this case. Consecutive sentencing may be ordered if the trial
64
court finds by a preponderance of the evidence that 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.” T.C.A. § 40-35-
115(b)(4). A finding that the defendant is a dangerous offender will not, standing alone,
justify consecutive sentencing. State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).
In addition to a finding that the defendant is a dangerous offender, consecutive
sentencing requires further findings that an extended sentence is necessary to protect
the public against the defendant’s future criminal conduct and that the sentences will
reasonably relate to the severity of the offenses committed. Id.
We conclude that ordering the attempted first degree murder sentence to
be served consecutively was warranted in this case. We acknowledge that the
defendant’s youth and lack of a prior criminal record indicate a capability for
rehabilitation. However, the defendant’s poor school record and excessive
absenteeism from school weigh in favor of consecutive sentencing. Also, the
circumstances surrounding the offenses reflect particularly violent behavior and show
that the defendant has little or no regard for human life and no hesitation about creating
a risk to human life. These factors also support a finding that consecutive sentencing is
necessary to protect society from the defendant and that consecutive sentences are
reasonably related to the severity of the defendant’s criminal conduct.
E. CONCLUSION
In consideration of the foregoing and the record as a whole, we affirm the
judgments of conviction for first degree murder, attempted first degree murder,
especially aggravated kidnapping, and especially aggravated robbery. We vacate the
conviction on the count charging especially aggravated burglary relative to William Rex
Weaver and reduce it to aggravated burglary. Also, we merge it with the conviction on
the count charging especially aggravated burglary relative to Larry Harrington. We
65
affirm the judgment of conviction for especially aggravated burglary relative to Larry
Harrington but modify the judgment of conviction to reflect the merger of the convictions
on the two burglary counts into one especially aggravated burglary judgment.
______________________________
Joseph M. Tipton, Judge
CONCUR:
____________________________
Gary R. Wade, Presiding Judge
_____________________________
William M. Barker, Special Judge
66