State v. Kimberly Williams ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
AUGUST SESSION, 1998
FILED
December 29, 1998
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9711-CR-00439
Cecil Crowson, Jr.
) Appellate C ourt Clerk
Appellee, )
)
) SHELBY COUNTY
VS. )
) HON. CHRIS CRAFT
KIMBERLY WILLIAMS, ) JUDGE
)
Appe llant. ) (Direct Appeal - First Degree M urder)
FOR THE APPELLANT: FOR THE APPELLEE:
EDWARD G. THOMPSON JOHN KNOX WALKUP
Assistant Public Defender Attorney General and Reporter
200 Jefferson, Suite 725
Memphis, TN 38103 MARVIN E. CLEMENTS, JR.
Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243
WILLIAM L. GIBBONS
District Attorney General
JERRY R. KITCHEN
DANIEL S. BYER
District Attorney General
201 Poplar Street
Memphis, TN 38103
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE
OPINION
On February 27, 1997, a She lby Co unty jur y conv icted A ppella nt Kim berly
W illiams of first degree murder, especially aggravated kidnapping, aggravated
robbery, attempted a ggravated rob bery, two counts of aggravated assault, and
two counts of aggravated burglary. Following a sentencing hearing on March 17
and 26, 199 7, the trial cou rt impos ed a total s entenc e of life imprisonment plus
twenty-three years. Appellant challenges his sentence for each convic tion as well
as his conviction for first degree murder, raising the following issues:
1) wheth er the evidence was sufficient to sup port the conviction for first
degree m urder:
2) whether the trial court properly applied various enhancement factors to
Appellant’s sentences;
3) whether the trial court properly sentenced Appellant to a longer term of
imprisonment than his co-defendant; and
4) whether the trial court properly denied Appellant’s motion for a list of the
State’s witnesses for the sentencing hearing.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.
I. FACTS
On February 27, 1996, at app roxim ately 1:00 a.m., Coleman Dickson, who
had b een s leepin g on th e floor n ext to his daughter, was awakened by Rodney
Jeffries, who was pointing a black n ine millim eter pistol a t Dickso n’s head . When
Jeffries asked “Wh ere is the dope at,” Dickson resp onded tha t he did not have
any drugs in h is apartm ent. App ellant then entered the apa rtment a nd tied up
Dickson and th en blin dfolde d him . Dicks on su bseq uently told the two me n where
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his .357 handgun was hidden and Appellant then retrieved the gun and loaded
it. The two men also took $70, a gold chain, a ring, a pager, and some keys from
Dickso n.
When Dickson told them that he had previously purchased marijuana from
his neighbor, Appellant and Jeffries decided to enter the neigh bor’s apa rtment.
The two men then cut the bonds on Dickson’s feet and took him across the hall,
despite his pleading to be left with his children and his statement that he was
afraid that if he went into the other apartment he would be shot by whoever was
in it. Appellant then kicked in the back door of the neighbor’s apartment and
Dickson, who was still blindfolded and had his hands tied behind his back, was
shoved in first. Dickson remained blindfolded during all of the subs equen t events
in the sec ond ap artmen t.
Gwe ndolin Pam plin was in bed with Artelia Anderson when she heard the
gunmen kick in the door to her apa rtment a nd yell “Po lice, that [sic] is a b ust.”
Before they co uld go out the bedroom door, one of the gunmen brought Tabitha
Todd into the bedroom while holding a gun to her back. After the second
gunman entered the bed room, th ey ordered everyone to lay on the floor and
began asking for drugs and mo ney. After Anderson said that they didn’t have any
drugs o r mone y, Appe llant took A nderso n out of the bedroo m.
As Appellant was taking Anderson out of the bedroom, Anderson broke
free and attemp ted to lock himself in the bathroom. Jeffries then left the bedroom
and joined Appellant. Appellant then kicked open the bathroom door and began
hitting Anderson in the head with the .357 handgun. Todd testified that during
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this time, one of the gunmen yelled “Put him in the bath—put this nigger in the
bathtub so we can shoot him” and “Look a t my face , nigger, be fore I kill you.”
Anderson then begged the gunmen not to kill him. After a scuffle, one of the
gunmen said “Shoot that nigger,” and shots were fired. Jeffries testified that
Appe llant shot tw ice and th en Jeffries shot twice .
An autopsy revealed that A nderson was shot once in the back and once
in the thigh, with both shots severing major arteries. The autopsy also revealed
that Ander son ha d sustain ed seve ral injuries to his head that were co nsistent w ith
his being stru ck seve ral times w ith a pistol. The cause of Anderson’s death was
multiple g unsho t wound s.
II. SUFFICIENCY OF THE EVIDENCE
Appellant contends that the evidence was insufficient to supp ort his
conviction for first degree murder. Specifically, Appellant does not contend that
the eviden ce is insufficien t to prov e that h e killed A nders on, Ap pellan t mere ly
contends that the evidence was in sufficie nt for a re ason able jury to find him guilty
of “intentional deliberate premeditated murder.” Initially, we note th at App ellant’s
argument that there was no proof of delib eration is irreleva nt. Th e crim es in th is
case were committed after the 1995 amendment that eliminated deliberation as
an eleme nt of first deg ree mu rder. See Tenn. Code Ann. § 39-13-202(a)(1)
(Supp. 1998) (“F irst degree murde r is: A prem editated a nd intentional killing of
another.”). 1
1
The record indicates that the trial court used the proper standard when it instructed the jury on first degree
murder.
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When an appellant challenges the sufficiency of the evidence, this C ourt
is obliged to review that challenge according to certain well-settled principles. A
verdict of guilty by the jury, approved by the trial judge, accredits the testimony
of the State's witnesses and resolves all conflicts in the testimony in favor of the
State. State v. Cazes, 875 S.W .2d 253 , 259 (T enn. 19 94); State v. Harris , 839
S.W.2d 54, 75 (Tenn. 1992). Although an accused is originally cloaked with a
presumption of innocence, a jury verdict removes this presumption and replaces
it with one of gu ilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence,
on appeal, the burden of proof rests with Appellant to demonstrate the
insufficiency of the con victing evide nce. Id. On appe al, “the [S]tate is entitled to
the strongest legitimate view of the evid ence as well as all reasonable and
legitimate inference s that ma y be draw n therefro m.” Id. (citing State v. Cabbage,
571 S.W .2d 832, 83 5 (Te nn. 19 78)). W here th e suffic iency o f the evid ence is
contested on appe al, the relevant question for the reviewing court is whether any
rational trier of fact could have found the accused guilty of every element of the
offense beyond a reasonable doubt. Harris , 839 S.W .2d at 75; Jackson v.
Virginia, 443 U .S. 307, 3 19, 99 S . Ct. 2781 , 2789, 61 L. Ed. 2d 560 (19 79). In
conducting our evaluation of the convicting evidence, this Court is precluded from
reweighing or reconsidering the evidence. State v. Morgan, 929 S.W.2d 380, 383
(Tenn. Crim. App. 19 96); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.
App. 1990). M oreover , this Cou rt may no t substitute its own inferences “for those
drawn by the trier of fact from circum stantial evidence.” Id. at 779. Finally, Rule
13(e) of the Te nnes see R ules o f Appe llate Pro cedu re prov ides, “fin dings of guilt
in criminal actions whether by the trial court or jury shall be set aside if the
evidence is insufficient to support the findings by the trier of fact beyond a
reasonab le doubt.” See also Matthews, 805 S.W.2d at 780.
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Although premeditation requires that “the intent to kill must have been
formed prior to the act itself,” “[i]t is not necessary that the purpose to kill pre-exist
in the mind of the accu sed for a ny definite p eriod of tim e.” Ten n. Cod e Ann. §
30-13-202(d) (Supp. 1998). The element of premeditation is a question for the
jury and may be inferred from the circumstances surroun ding the k illing. State
v. Gentry, 881 S.W .2d 1, 3 (T enn. C rim. App . 1993).
Looking at the facts in the present case in the light most favorable to the
state, as we a re require d to do, w e conc lude that th e eviden ce is sufficie nt to
support the jury's finding of premeditation. Indeed, the evidence showed that
both Appellant and Jeffries were armed when they kicked in the door and entered
the apartment were the killing occurred. After Anderson broke free and
attempted to lock himself in the bathroom, Appellant kicked open the bathroom
door and began hitting Anderson in the head with the .357 handgun. Todd
testified that du ring this time, one of the gunmen yelled “Put him in the bath—put
this nigger in the bathtub so we can shoot him” and “Look at my face, nigger,
before I kill you.” Anderson then begged the gunmen not to kill him. Todd,
Pamplin, and D ickson all testifie d that they heard one of the gunmen give an
order to shoot A nderso n before the shots were fired . Clearly, a reasona ble jury
could infer from this sequ ence o f events tha t Appella nt had tim e to reflect on what
he was doing before he shot Anderson and thus, that his actions were intentional
and pre medita ted. This issue ha s no m erit.
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III. APPELLANT’S SENTENCE
Appellant contends that the trial court made several errors in determining
his senten ce. Spe cifically, Appellant contends that the trial court misapplied
several enhancement factors. Under Tennessee law, “[w]hen reviewing
sentencing issues . . . including the granting or denial of proba tion and th e length
of sentence, the appellate co urt shall conduct a de novo review on the record of
such issues. Such review shall be conducted with a presumption that the
determinations made by the co urt from which the appea l is taken are correct.”
Tenn. Code Ann. § 40-35-401(d) (1997). “However, the presumption of
correctness which accompanies the trial court's action is conditioned upon the
affirmative showing in the record that the trial court considered the sentencing
principles and all relevant facts and circu mstance s.” State v. Ashby, 823 S.W.2d
166, 169 (Tenn. 1991). “The defendant has the burden of demonstrating that the
sentence is im proper.” Id.
A portion of the Sentencing Reform Act of 1989, codified at Tennessee
Code Annotated § 40-3 5-210 , estab lished a num ber of s pecific procedures to be
followed in sentencing. This section mandates the court's consideration of the
following:
(1) The evidence, if any, received at the trial and the sentencing hearing;
(2) [t]he presentenc e report; (3) [t]he principles of sentencing and
argum ents as to sentencing alternatives; (4) [t]he nature and
characteristics of the criminal conduct involved; (5) [e]vidence and
information offered by the parties on the enhancement and mitigating
factors in §§ 40-35-113 and 40-35-114; and (6 ) [a]ny statement the
defend ant wishe s to ma ke in his ow n beha lf about se ntencing .
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Tenn. Code Ann. § 40-35-210 (1997). In addition, this section provides that the
minimum sentence within the range is the presump tive sentence. If there are
enhancing and mitigating factors, the court must start at the minimum sentence
in the range and enhance the sentence as appropriate for the enhancement
factors and then reduce the sentence within the range as appropriate for the
mitiga ting factors. If there are no mitigating factors, the court may set the
sentence above the minimum in that range but still within the range. The weight
to be given each factor is left to the discretion of the trial judge . State v. Shelton,
854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Act further provides that
“[w]henever the co urt imp oses a sen tence , it shall p lace on the record either
orally or in writing, what enhancement or mitig ating fa ctors it fo und, if a ny, as w ell
as findings of fact as requ ired by § 4 0-35-20 9.” Ten n. Cod e Ann. § 40-35-2 10(f)
(1997). Because of the importance of enhancing and mitigating factors under the
sentencing guidelines, even the abse nce o f these factors mus t be rec orded if
none are found. Tenn. Code Ann. § 40-35-210 (1997) comment. These findings
by the trial judg e mu st be re corde d in ord er to allo w an a dequ ate rev iew on
appe al. In addition, “[w]hen imposing sentences for multiple offenses, the trial
court must make separate findings as to which enhancement and mitigating
factors apply to which convic tions.” State v. C hristophe r Blocke tt, No. 02C01-
9509-CC-00258, 1996 W L 4176 59, at *4 (T enn. C rim. App., Jackson, July 26,
1996) (citing State v. Chrisman, 885 S.W.2d 834, 839 (Tenn. Crim. App . 1994).
Because the record indica tes that the trial court cons idered the sentencing
principles and all relevant facts and circumstances, our review of Appellants’
sentences is de novo with a presumption of correctness.
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In determining the sentence for each of Appellant’s convictions, the trial
court found that the only mitigating factor that applied was the fact that Appellant
assisted the autho rities in locating Jeffries. See Tenn. Code Ann. § 40-35-113(9)
(1997). The c ourt ga ve little we ight to th is facto r beca use A ppella nt did th is only
after he had been arrested and he essentially tried to blame everything on
Jeffries. We agree th at no evid ence w as pres ented to suppo rt a finding that any
other m itigating facto rs were p resent.
The trial court also found tha t at least two of the enh ancem ent factors listed
in Tennessee Code Annotated § 40-35-1 14 ap plied to each of App ellant’s
convictions. First, the court found that factor (1) applied because Appellant had
a previous history of criminal convictions or behavior. Appellant argues that the
trial court erred when it applied this factor because it found by a preponderance
of the evidence that Appellant had previously participated in a similar home
invasion robbery. 2 He ar gues that the trial cou rt’s reliance on this criminal
episode violates his constitutional rights because he had not yet been convicted
of the offense in a jury trial. This argument has no merit. The Tennessee
Supreme Court ha s held tha t a trial court may utilize criminal behavior shown by
preponderance of the evidence to enhance sentence, without violating due
process rights u nder th e fede ral or sta te con stitutions. State v. Carico, 968
S.W.2d 280, 2 87 (T enn. 1 998). In additio n, App ellant had prior convictions for
2
Initially, Appella nt argues that the re was not en ough pro of for the trial cou rt to conclud e by a
preponderance of the evidence that he was involved in the previous robbery. However, the record indicates that
Clifton Jackson testified that he was with Appellant and another man when they went to a residence, kicked down the
door, identified themselves as police, and entered the residence for the purpose of stealing drugs and money. At
some point, Jackson was shot. Foxy Branch, who was living at that apartment at the time, testified that three men
broke into the apartme nt, that numero us gunshots w ere fired, and that after the incide nt there was b lood eve rywhere.
Donald Ross of the Memphis Police Department testified that Appellant had admitted taking two men to this location
on the night in question. This is clearly enough proof for the trial court to conclude by a preponderance of the
evidence that Appe llant was involve d in this previo us criminal act.
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driving on a suspended license and simple assault. Thus, the trial court was
clearly correct in applying factor (1) to th e sen tence s for all o f Appe llant’s
convictions.
The trial court also applied factor (8), that the defendant has a previous
history of unwillingness to c omply with con ditions of release into the comm unity,
to all of Appe llant’s conv ictions. See Tenn. C ode Ann . § 40-35-114 (8) (1997).
Howeve r, the court did not give this factor much weight because it involved a
misdemeanor sentence. Appellant does not challenge the application of this
factor an d we ag ree that the trial court wa s correc t in applying it.
The trial court found that enhancement factor (2) applied to the convictions
for the aggravated robbery and especially aggravated kidnapping of Dickson
because Appellant was the leader in those two offen ses. See Tenn. Code Ann.
§ 40-35-114(2) (1997). The court based its decision on the fact that Appellant
had stated in his pre-trial confession that he was the one who tied Dickson up,
took his necklace, and intended to take him across the hall to the other robb ery.
The court also based its decision on other evidence which established that
Appellant was the one who took Dickson’s gun. Appellant argues that the fact
that Jeffries was the one who drove the car to the apartment and was the one
who entered Dickson’s apartment first shows that Appellant was not the leader.
W e disagree. This Court has stated that “enhancement for being a leader in the
commission of an offense does not require that the defendant be the sole leader
but only that he be ‘a’ leader.” State v. Hicks, 868 S.W.2d 729, 731 (Tenn. Crim.
App. 1993) Further, “[b]oth of two criminal actors may be ‘a leader in the
commission of an offense.’” Id. Indeed, this Court found in Hicks that while the
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co-defendant led the preparation, the defendant clearly led the perpetration and
thus, both were leaders in the commission of aggravated robbery. Id. Thus,
even if Jeffries led the preparation, as Appellant apparently claims, the trial court
could still conclude that Appellant was the leader in the perpetration of the
offenses against D ickson. B ecaus e we m ust review the trial c ourt’s
determ ination that Appellant was a leader in these two offenses with a
presumption of correctness, we conc lude th at the tria l court w as co rrect in
applying factor (2).
The trial court found that enhancement factor (9), that Appellant possessed
a firearm during the commission of an offense, only applied to the aggravated
burglary of Pam plin’s apa rtment. See Tenn. Code Ann. § 40-35-11 4(9) (1997).
Appellant does not challenge the application of this factor and we agree that it
was correctly applied because use of a firearm is not an element of the offense
of aggravated burglary. See State v. Baker, 956 S.W.2d 8, 17 (Tenn. Crim. App.
1997).
The trial court found that enhancement factors (10) and (16), that Appellant
had no hesitation in committing a crime when the risk to human life was high and
that the crime was committed under circumstances under which the potential for
bodily injury to the victim was great, applied only to the especially aggravated
kidnapping of Dickson. See Tenn . Code Ann. § 4 0-35-11 4(10), (16 ) (1997). It
is true that generally, a court could not apply these factors to enhance a sentence
for especially aggravated kidnapping conviction because a high risk of death or
bodily injury is inherent in the offense. See State v. Claybrooks, 910 S.W.2d 868,
872 (Tenn. Crim. App. 1994) (“Although not a designated element of the offense,
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any en hanc eme nt facto r which is inherent in the offense itself may not be used
to increase the defendant’s sentence.”). However, the Tennessee Supreme
Court has stated that enhancement factors which are inherent in the nature of the
offense may be applied to the sentence if they “demonstrate a culpability distinct
from and appreciab ly greater that incident to the crime.” State v. Poo le, 645
S.W .2d 93, 98 (Tenn . 1997). In this case, the trial court expressly stated that it
was not relying on Appellant’s use of a gun when it found th at these factors
applied. The co urt stated th at it found tha t these factors applied because
Appellant and Jeffrie s had taken Dicks on ou t of his a partm ent an d throw n him
into the second apartmen t knowing that the re might be gunfire. We agree. By
forcing Dickson into the second apartment ahead of themselves, knowing that
there was a g reat pos sibility that he w ould be shot, Appellant and Jeffries
demonstrated “culpability dis tinct from and appre ciably greater than” that inherent
in the crime itself. Dickso n had a lready be en sub jected to risk of death or bodily
harm when he was tied up at gunpoint and taken out of his apartment into the
hall. By thro wing him into the second apartment ahead of themselves and
leaving him partially tied up while shots were being fired, Appellant and Jeffries
greatly increased this risk beyond what w as ne cess ary to co mple te the e spec ially
aggravated kidnapping. The trial court correctly ap plied facto rs (10) an d (16) to
the sentence for this offense.3
In short, Appellant has not m et his burden o f showing that the trial court
misapplied any enhancement factors. In addition, we cannot say that the trial
3
Even if the facts had not demonstrated a culpability distinct from and appreciably greater than that incident
to the crime, the trial court could still have applied theses factors because “[b]oth factors may be applied in situations
where individuals other than the victim are in the area and are subject to injury.” State v. Sims, 909 S.W.2d 46, 50
(Tenn. Crim. App. 1995). In this case, Dickson’s young daughter could easily have been injured during the
kidnapp ing of her father a nd subseq uent shooting in the next do or apartm ent.
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court abused its discretion in determining the length of each sentence.4 This
issue ha s no m erit.
IV. DISPARITY IN SENTENCES
Appellant conte nds th at his sentence should be reduced because the trial
court did not comply with the Sentencing Reform Act of 1989 when it sentenced
him to a longer term of imprisonment than co-defendant Jeffries.5 Appellant cites
the case of State v. Jenk ins, 733 S.W.2d 528 (Tenn. Crim. App. 1987), as
support for this pro position. While it is true that this Court did state that the
disparity in sentences in that case should be eliminated, this was because the
disparity was unjustified. Id. at 533. Indeed, this Court has stated that under the
1989 A ct, “
[A] case-by-case approach to sentencing underlies this Act as a
fundamental policy. An individual crimin al is sentenced based on the
nature of the offense and the totality of the circumstances in which it was
committed, including the defendant’s background. Any case-by-case
approach will embody discretion, since all of the appropria te factors and
circumstances must be weighed and considered as a whole for the
disposition of each ca se. But, [inequalities in sentences that are unrelated
to a purpose of this chapter should be avoided. The implication is that,
while more u niformity of s entenc es is one goal of the Act . . . some justified
disparity or inequality in sentences necessarily results from a case-by-case
4
The trial court imposed a sentence of twenty-three years for the especially aggravated kidnapping of
Dickson , ten years for the a ggravated robbery o f Dickson, a nd four year s for the aggra vated burg lary of Dickso n’s
apartment, with these three sentences to run concurrently. The trial court imposed a sentence of life imprisonment
for the first degree murder of Anderson, four years for the attempted aggravated robbery of Anderson, four years for
the aggravated assault of Todd, four years for the aggravated assault of Pamplin, and five years for the aggravated
burglary of Pamplin’s apartment, with these five sentences to run concurrently. The court then ordered the sentences
for the crimes against Dickson to run consecutive to the crimes against Anderson, Todd, and Pamplin, for an
effective sentenc e of life plus twenty-thre e years.
5
Jeffries was sentenced to three years for the attempted aggravated robbery of Anderson, eight years for the
aggravated robbery o f Dickson, thr ee years for the aggravated assault of To dd, three yea rs for the aggra vated assau lt
of Pamplin, three years for the aggravated burglary of Dickson’s apartment, three years for the aggravated burglary
of Pamplin’s apartment, fifteen years for the especially aggravated kidnapping of Dickson, and life imprisonment for
the first degree m urder of A nderson. A ll sentences we re ordere d to be serv ed conc urrently.
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method by which an offender receives the sentence he deserves but not
a sentence greater than that . . . for the offense committed.
State v. Fletcher, 805 S.W.2d 785, 788 (Tenn. Crim. App. 1991) (quoting State
v. Moss, 727 S.W .2d 229 , 235–3 6 (Ten n. Crim. A pp. 198 6)). Thu s, not all
disparities in sentencing must be eliminated, only those that are unjustified
require elimination.
In this case, the trial court gave several reasons why it was sentencing
Jeffries and Appellant to different terms of imprisonment. The court stated that
Appe llant’s case was “completely differen t” from that of J effries’ b ecau se in
Appellant’s case, the State had shown that Appellant had a previous history of
committing similar “crimes involving weapon s and dan ger.” Further, the co urt
stated that while “Jeffries is extremely remorseful and has done everything he
can to mak e up for w hat he d id,” “[Appellant’s] whole attitude during the trial was
one of ‘Mr. Jeffries did everything.’” The court also stated that while it believed
that Jeffries was “not a d ange r to soc iety,” Ap pellan t was “a n extre mely
dangerous person , and for that reason, he needed the appropriate sentencing
that he got to protect society from him.” The court also found that the
enhancement factors in Jeffries case were “more than made up for by the fact
that he is so remorseful.” We cannot say that the trial court was wrong in making
these determinations. Indeed, “[t]he trial court, as the trier of fact at sentencing
hearings, has the opportunity to observe the manner and the demeanor of the
witnesses. Consequently, this Court gives great weight to the determinations
made by the trial court concerning the credibility of the witnesses; and this Cou rt
will not interfere with the trial court's findings of fact in this regard unless the
evidence conta ined in the record clearly prep ondera tes aga inst these findings.”
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State v. Melvin , 913 S.W.2d 195, 202 (Tenn. Crim. App. 19 95). In sho rt, we ho ld
that the trial court was justified in sentencing Appellant and Jeffries to different
terms o f imprison ment.
In addition to justifiably imposing a longer term of imprisonment on
Appe llant, the trial court was also justified in ordering the consecutive sentencing
of Appellant. Consecutive sentencing is governed by Tennessee Code
Annotated § 40-35- 115. T he trial c ourt m ay ord er con secu tive sen tencin g if it
finds that one or more o f the requ ired statuto ry criteria exist. State v. Black, 924
S.W.2d 912, 91 7 (Ten n. Crim. A pp. 199 5). Furthe r, the court is required to
determine whether the consecutive sentences (1) are reasonably related to the
severity of the offenses committed; (2) serve to protect the public from further
criminal c onduc t by the offen der; and (3) are congruent with general principles
of senten cing. State v. Wilkerson, 905 S .W .2d 93 3, 939 (Ten n. 199 5). In this
case, the court found that the statute was satisfied because Appellant was a
dangerous offender whose behavior indicates little or no regard for human life
and he had no he sitation in com mitting an offense w hen the risk to hum an life
was high. See Tenn. Code Ann. § 40-34-115(4) (1997 ). The court b ased this
decision on the fact tha t Appe llant ha d no h esitatio n in com mitting the crim es in
this case after he had participated in the previous armed home invasion whe re
one of his acco mplices was sh ot. The c ourt also fo und tha t consecutive
sentencing was reasonably related to the offenses committed because of the way
Appellant treated Anderson before he killed him and because armed home
invasion is “one of the mos t horrible crimes tha t can be com mitted.” The c ourt
also concluded that consecutive sentences would be the best way to protect
society. Finally, although the trial court did not expressly state that it had
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considered whether consecutive sentences were congruent with the general
principles of sentencing, we conclude in our de novo review that this requirement
is satisfie d in this case . Thus , we ho ld that th e trial court did not abu se its
discretion when it imposed consecutive sentences on Appellant when it had not
done so with Jeffries.
V. DENIAL OF APPELLANT’S PRE-TRIAL MOTION
Appellant contends that the trial court erred when it denied his pre-trial
motion for a list of the State’s witnesses for the sentencing hearing. We agree.
In fact, the Tennessee Supreme Court held in State v. Buck, 670 S.W.2d 600,
606 (Tenn. 1984), that it was error for a trial court to overrule the defendant’s
objection to the testimony of two witnesses during the sentencing hearing
because the State had failed to list names of witnesses in response to the
defen dant’s pre-pretrial motion for discov ery. Fu rther, th is Cou rt has p reviou sly
stated that the S tate has a sta tutory duty to disclose the identity of the witnesses
it intends to use. State v. Taylor, 661 S.W.2d 695, 699 (Tenn. Crim. App . 1983);
State v. Ronald David Lee, No. 03C01-9410 -CR-0039, 1995 WL 39 5840, at *7
n.2 (Tenn . Crim. App., N ashville, July 6, 1995).
Howeve r, the fac t that the trial cou rt erron eous ly denie d App ellant’s motion
does not me an that he is autom atically entitled to relief. Indee d, the State’s
statutory duty to disclose witness names is merely directory, not mand atory.
State v. Harris , 839 S.W .2d 54, 68 (Tenn . 1992). “The determination of whether
to allow [a n und isclose d] witne ss is left to the sound discretion of the trial judge.”
State v. Kendricks, 947 S.W .2d 875 , 883 (T enn. C rim. App . 1997). “A defendant
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will be entitled to relief for non disclosu re only if he o r she can demo nstrate
prejudice, bad faith, or undu e advantag e.” Id. Appellant has failed to show how
he was prejudiced by the nondisclosure of the names of witnesses to be called
at the sen tencing h earing. In his brie f, Appe llant on ly challenges the testimony
of the State’s witnesses regarding Appellant’s participation in another armed
robbery for which he was not convicted. However, the record reveals that
Appe llant’s trial counsel ably cross -examined these witness es. Further, there is
nothing in the record that indicates that Appellant’s trial counsel objected to the
testimony of these witness es on non disclosure ground s. Appella nt has faile d to
show what more he could or would have done if he had known the names of
these witnesses before trial. W hat Ap pellan t really appea rs to be co ncerne d with
is the substance of the w itness es’ tes timon y, not the fact tha t their names were
not disclos ed be fore tria l. How ever, “[I]n this con text, it is not the prejudice which
resulted from the witness’ testimony but the prejudice which resulted from
defen dant’s lack of notice which is re levant to es tablish pre judice.” Id. In short,
Appellant has failed to show that any prejudice resulted for nondisclosure and he
has not even alleged bad faith or undue advantage. We see no abuse of
discretion by the trial judge in allowing these w itnesses to testify.
Accordingly, the judgment of the trial court is AFFIRMED.
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JERRY L. SMITH, JUDGE
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CONCUR:
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DAVID H. WELLES, JUDGE
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JOHN K. BYERS, SENIOR JUDGE
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