IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON JUNE SESSION, 1998 FILED STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9710-CR-00406 ) December 21, 1998 Appellee, ) ) Cecil Crowson, Jr. Appellate C ourt Clerk ) SHELBY COUNTY VS. ) ) HON. JOSEPH B. DAILEY ANTONIO L. SAULSBERRY ) JUDGE & FRANKLIN C. HOWARD, ) ) Appellants. ) (First Degree Murder; Aggravated ) Rob bery)

ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF SHELBY COUNTY

FOR THE APPELLANT: FOR THE APPELLEE: STEFFEN G. SCHREINER JOHN KNOX WALKUP Attorney for App ellant Saulsbe rry Attorney General and Reporter Washington Avenue, Suite 3 Memphis, TN 38103 PETER M. COUGHLAN Assistant Attorney General JOSEPH S. OZMENT 425 5th Avenu e North Attorney for App ellant Howard Nashville, TN 37243 Exchange Avenue Memphis, TN 38103 WILLIAM L. GIBBONS District Attorney General JAMES V. BALL Attorney for App ellant Howard TER RELL L. HAR RIS Exchange Avenue J. ROBERT CARTER Memphis, TN 38103 PHILL IP GE RALD HAR RIS Assistant District Attorneys General Criminal Justice Complex, Suite 301 Poplar Street Memphis, TN 38103

OPINION FILED ________________________ AFFIRMED IN PART; REVERSED IN PART; REMANDED PAUL G. SUMMERS, JUDGE OPINION The Defe ndan ts, Anto nio L. Saulsberry and Franklin C. Howard, pursuant to Tennessee Rule of Appellate Procedure 3(b), appe al as o f right the ir convictions for first degree premeditated murder, esp ecially aggravated robbery, and conspiracy to commit aggravated robbery. In addition, Defendants appeal the trial court’s application of consecutive sentencing. These convictions arose from the robbery of a Memphis T.G.I. F riday’s resta urant an d the m urder of its mana ger, Ge ne Frieling .

Defen dants present ten as signm ents o f error: (1 ) the trial c ourt er roneo usly admitted a photograph of the deceased victim; (2) the evidence was insufficient to show premeditation or intent for first degree murde r; (3) crimina l respons ibility for first degree premeditated murder is not supported by the proof and the trial court erroneous ly charged the jury on crimina l responsibility; (4) the trial court erron eous ly charged the jury on the elements of first degree premeditated murder; (5) the trial court failed to charge the jury of the nee d for mo ral certainty to convict; (6) the trial court failed to instruct the jury that a prio r inconsistent statement could be considered for impeachment purposes only; (7) the trial court erron eous ly admitted a videotape of the crime scene and commented on the portion of tape not sho wn to the jury; (8) the errors made by the trial court amount to cumulative error, requiring a new trial; (9) the trial court erroneously imposed consecu tive sentences; and (10) the trial court failed to grant a necessary mistrial based upon an alleged discovery violation by the State.1

In the interest of clarity, we address these points of alleged error in a different order.

-2- Defen dants were indicted by the Shelby County Grand Jury in July of 1995 on charges of premeditated murder in violation of Tennessee Code Annotated § 39-13-202(a )(1), murder committed during the perpetration of a robbery in violation of § 39-13-202(a)(2), murder committed in perpetration of a burgla ry in violation of § 39-13-20 2(a)(2), espec ially aggrava ted robb ery in violation of § 39- 13-403, and conspiracy to commit a felony in violation of § 39-12-103.

Defen dants were convicted by a jury on February 14, 1997, of first degree premeditated murd er, esp ecially a ggrav ated ro bbery , and c onsp iracy to c omm it aggrava ted robb ery.

Following a sentencing hearing, the trial court sentenced Defendant Saulsberry as a Range II offender to forty years for especially aggra vated robbe ry and ten years for conspiracy. Defendant Howard was sentenced as a Range I offender to twenty-five years for especially aggravated robbery and six years for conspiracy. The trial court ordered all sentences, including life imprison ment, to run con secutively.

I. SUFFICIENCY OF THE EVIDENCE In their second and third issues, Defendants maintain that the evidence presen ted was insufficient to convict them of first degree prem editated mu rder, by either a theory of direct lia bility or a theory of criminal responsibility for the conduct of another. In partic ular, D efend ants c laim th at the “r ecord is devo id of any evidence indicating premeditation or deliberation.” Following a careful exam ination of the re cord, w e con clude that the State d id not present evidence sufficient to permit a jury to con vict Saulsberry of prem editated mu rder, but we affirm the premeditated murder conviction of Howard.

-3- Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support the finding by the trier of fact beyond a reasonab le doubt.” Ten n. R. App. P. 1 3(e). In addition, because conviction by a trier of fact destroys the presumption of innocence and imposes a presumption of guilt, a convicted criminal defendant bears the burden of showing that the evidence was insu fficient. McBee v. State, 372 S.W.2d 173, 176 (Tenn. 1963); see also State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992) (citing State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1976), and State v. Brown, 551 S.W.2d 329, 331 (Tenn . 1977)); State v. Tug gle, 639 S.W.2d 913, 914 (T enn. 19 82); Holt v. State, 357 S.W .2d 57, 61 (T enn. 1962 ).

In its review of the evidence, an appellate court must afford the State “the strongest legitimate view of the evide nce as well as all rea sonab le and leg itimate inferences that may be d rawn therefrom .” Tug gle, 639 S.W.2d at 914 (citing State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)). The court may not “re- weigh or re-evaluate the evidenc e” in the rec ord belo w. Evans, 838 S.W.2d at 191 (citing Cabbage, 571 S.W .2d at 836)). Likew ise, should the review ing court find particular conflicts in the trial testimony, the court must resolve them in favor of the jury ve rdict or trial cou rt judgm ent. See Tug gle, 639 S.W.2d at 914.

The record in this case reveals a cast of five criminal actors: Claude Sharkey, Clashaun (“Shaun”) Sharkey, Kevin Wilson, Defendant Franklin Howard, and Defe ndant Anto nio Saulsbe rry.2 Defendant Saulsberry was

The State joined all five men in the same indictment but tried them separately.

-4- employed at the restaurant prior to January 28, 1995, the date o f this inciden t.

According to the p roof at tr ial, Claude, Shaun, Wilson, and Saulsberry discussed robbing T.G.I. Friday’s restaurant (“Friday’s”) the day before the crime. In the early morning hours of January 28, 1995, after the restaurant closed business for the prior night, Claude, Shaun, Wilson, and Howard drove to Friday’s and waited in the bac k parking lot.

Friday ’s dishwasher John Wong exited the restaurant through its back door to dispo se of th e nigh t’s garbag e, and the perpetra tors used this oppo rtunity to enter the building. Wong heard one man say, “Shoot the mother . . . ,” referring to Wong. He was pushed from behind with a gun and ordered to lie down on the ground , and he comp lied.

Claude, Shaun, Wilson, and Howard continued through the back area of the restaurant towa rd the man ager’s office, where they encountered bartender Preston Shea . Shea saw four armed men3 with sk i mas ks wa lking to ward h im and screaming. He was knocked to the ground by one perpetrator outside the manager’s office. At least two men entered the office and screa med, “Give me the money,” and “Where’s the f__king money.” Shea responded by holding up his wallet and pleading, “Please, God, take the mo ney and go .” He heard bags of money being passed from person to person above his head and heard one man say, “Shoot his ass.” Shea then heard a shot from the manager’s office, where the perpetrators had already taken the money from the victim, Gene Frieling.

Defendant Howard denied entering the restaurant and denied being armed; however, it is undisputed that no one else drove to the scene with Claude, Shaun, Wilson, and Howard.

-5- Wong, remaining on the floor during the disturbance, also heard one of the perpetrators demand, “Give me the money—give me the money,” an d he heard Frieling say, “Take it, take it, take it.” Wong heard “[o]ne explosion then two—the two that I heard , it was like two in one— the swiftne ss of it that foll owed behind—one behind the other.” Then Frieling said, “Jesus Christ, he shot me, he shot m e.”

Shea had been repea tedly kic ked d uring th is episode , and as th e men left the office, he was shot three times—twice in the leg and once in his lower back, through his bladder and intestines. He then crawled into the office and called 911, but he was too injured to stay with the telephone. As he fell back to the floor, W ong too k the telep hone a nd finishe d the 91 1 call.

Jessica Hoard, a server at Friday’s, also testified for the State. Hoard was the only other employee still present on the morning of January 28, and she was in the dining room of the restaurant when the perpetrators arrived. One of the men ordered her to wa lk into the kitc hen and commanded, “Get on the floor before I shoot you.” She heard one person say, “W here’s the m oney,” a coup le of times, and she then heard at least two gunshots. When she believed the perpetrators were gone and she could safely stand up, Hoard helped John Wong attend to the w ound ed Frie ling an d She a. Bec ause Frieling was only barely breathing, the two uninjured employees decided to lift him from a prone position to an upright position. Frieling remained in this sitting, slumped posture until he was found by police and determined dead. An autopsy revealed that the cause of death was a g unsho t wound to the hea rt.

-6- On Februa ry 9, 1995 , Defendant Saulsberry made a statement to police recounting his invo lvement in the e vents preced ing the robbery: It was first brought up o n my way h ome a d ay before the rob bery.

Me, Claud e, Sha un, an d Kev in [W ilson] were in Claude’s car. He was taking me h ome from the neighbo rhood. And , we were smoking “bud” (marijuana) on our way home. And, ah, Claude said, “Hey, what’s up with Friday’s”? I said, what do you mean what’s up - you’re ready to start w orking there? Then , he sa id, “Nall, man, nall, man, I’m talking about hitting that joint.” I said, man, you’re crazy than a motherf__ker. The n, he s aid, “N all, nigg er, I’m serious!”. So, we d idn’t say an ything else about tha t. When we got to my house, we sat in the car on the parking lot outside my house.

Then, “Little Kevin” s aid, “W hat tim e the joint closes”? And, I said, at one (1) o’clock A.M. Then, Claude had showed me a silver gun.

And, I said, hurry up and get me out of here. I got out of the car and Shaun got out with me. Then, I said, Shaun, man, is that boy serio us? Shaun said, “Yes , man, h e’s broke , man”. I sa id, man, y’all can try that dumb shit if you want too [sic], but I ain’t got nothing to do with it. B asically, that’s it, really.

Saulsberry denied telling anyone where the safe was located within the restaurant or how much money would be available there, but he admitted informing Claude, Shaun, and Wilson how to gain entry from the back of the restaura nt. The State introduced testimony that Sauls berry w as ultim ately pa id $50 for his role in the rob bery a nd tha t he wa s dissa tisfied w ith this amou nt—fa cts that Saulsberry disputed in his statement. It is undisputed, however, that Saulsberry was not present at T.G.I. Friday’s the night of the robbery and m urder.

Defendant Howard was present at the crime scene, and his statement to police on Februa ry 7, 1995 , related eve nts at the re stauran t: I was riding with them [Claude , Shaun , and W ilson]. Claude said he said man we nee d to go on and do that. I was sleeping in the back seat and I h eard h im say we need to go on and do this right. So we rode up to T.G.I. Friday’s and sat up there in the back part behind the Steakh ouse R estaura nt and w e went o n and walked up there.

-7- I stayed all the way in the back and they ran in the restaruant [sic] and I heard some shots fired so I ran to the car and they ran to the car and Kevin [Wilson] said I shot him man I shot him . So we le ft and went back to Claude’s house and then w e just stayed over the re until the m orning ca me an d I told him to take m e hom e.

According to Howard’s statement, Claude, Shaun, and Wilson were armed when they entered the res taurant. After the robb ery, Howard received a portion of the procee ds, althou gh the a moun t is disputed .

W hile we agree with both the State and Defendants that this is quite a typical felony murder prosecution, we cannot agree with the State that the evidence supports a ve rdict of premed itated murde r against Sau lsberry. 4 To support finding s of pre med itation a nd de liberatio n, the S tate relies on circum stantial evid ence, sp ecifically: Given the perp etrators’ co mm ands to each o ther to shoot the employees, the murder of the manager after he had done everything asked of him, and Shea’s testimony that they came back, stood over him and shot him three times after he had give n them his wallet, a rational jury could find that the pe rpetrators deliberate ly went into the restaurant with a plan.

In our view, more is required to sustain a conviction for first degree premeditated murder rather than felony m urder. See State v. West, 844 S.W.2d 144, 147-48 (Tenn . 1992); State v. Brown, 836 S.W.2d 530, 540-43 (Tenn. 1992); State v. Boyd, 909 S.W .2d 50 (T enn. C rim. App . 1995). Cf. State v. Leroy Hall, C.C.A . No. 03C0 1-9303 -CR-0 0065, H amilton C ounty (T enn. C rim. App ., Knoxville, Dec. 30, 1996), aff’d by partial incorporation, State v. Hall, 958 S.W.2d 4 Nor, however, can we agree that Saulsberry cannot be retried for felony murder, although this issue is not before us. The jury was strictly instructed to cease deliberations upon finding Defendants guilty of premeditated murder. When the jury found them guilty of premeditated murder, it did not render any further verdicts on homicide charges. This does not equate to an acquittal. State v. Burns, S.W.2d Appendix (Tenn. 1998).

-8- 679, 703-06 (Te nn. 199 7); State v. Frank W hitmore, C.C.A. No. 03C01-9404-CR- 00141, Bloun t County (Te nn. C rim. A pp., Kn oxville, June 19, 1997). Because this crime was c omm itted prio r to our le gislatu re’s m odification of the eleme nts of premeditated murder, we must analyze these facts under prior law requiring deliberatio n as an eleme nt of the offe nse.

In State v. Brown, our supreme court re-examined premeditation and deliberation, recognizing that over time, “prosecutors and ju dges had a ppare ntly fallen into the error of commingling these two elements by using the terms interchan geably.” 836 S.W.2d at 539. According to the Brown court, this perception constituted a “substantial departure from the traditional law of homicide”—a departure which prompted the legislature to redraft the first degree murder statute to define preme ditation an d delibera tion. Id. at 542. As defined by statute, a premeditated act was “one done after the exercise of reflection and judgm ent,” and a deliberate act was “one performed with a cool purpo se.” Id. (quoting former T enn. C ode An n. § 39-1 3-201(b )).

In light of this legislative clarification and what the Brown court perceived to be persistent infidelity to the historical foundation of first degree murder, the court emphatically rejected an amalgamation of the two formerly distinct mental states. Id. at 543. In addition, the court stated: [W]e think it is time to rec ognize . . . that “[m]ore than a split-second intention to kill is required to constitute preme ditation,” wh ich “by its very nature is not instantaneous, but requires some time inte rval.” . . . [I]t is now abundantly clear that the deliberation n ecessary to establish first-degree murde r canno t be formed in an in stant. It requires proof . . . that the homicide was “committed with a ‘cool purpos e’ and w ithout pas sion or pro vocation . . . .”

-9- Id. (quoting Sentencing Commission Comments to former § 39-13-201(b)) (alterations in originals). In Brown, the defendant’s premeditated murder conviction could not stand where the State offered circumstantial proof “that the defendant acted maliciously toward the child, in the heat of passion or anger, and without adequate provocation.” Id. (footnote om itted). Furthermore , the court refused to find that repeated blows to the victim can alone support an inference of prem editation o r deliberatio n. See id.

In State v. West, decided just six m onths after Brown, the suprem e court considered a case much like the one at bar. 844 S.W.2d 144 (Tenn. 1992). The State argued that the de fendan t’s emotio nal state a nd action s after the crime— calmnes s, failure to tell others about the crime, and concealment of the murder weapo n—in dicated p remed itation and deliberatio n. Id. at 148. Rejecting this argument, the court explained, “The element of premeditation requires a previo usly formed design or intent to kill. . . . Deliberation, on the other hand, requires that the killing b e done with a coo l purpose —in oth er words , that the killer be free from the passions of the mom ent.” Id. at 147 (cita tions om itted); see State v. Boyd , 909 S.W .2d 50, 54 -55 (Te nn. Crim . App. 19 95).

The West court d ecline d to rec ogniz e con cealm ent of evidence after a crime as probative of intent held prior to the crime, stating, “One who kills another in a passionate rage may dispose of the weapon when reason returns just as readily as the cool, dispassionate killer.” 844 S.W.2d at 148. W hile the court acknowledged that proof of calm ness after a crime may be plausible evidence of preme ditation an d delibera tion, it failed to find any evidence material to show a calm emotional s tate an d note d that th e defe ndan t’s beh avior ind icated simp ly -10- “indifference to the victim and fea r of detection.” Id. Finally, the court rejected the State’s theory that the defendant left the scen e of a hea ted argu ment w ith the victim, obta ined his g un at ho me, an d went b ack to the scene to kill the victim: W hile the sta te’s the ory m ay be tr ue, it rem ains only a theory, because the pros ecution has no evidence to support it. No one witnessed the defendant’s retrieval of a gun, nor does any circumstantial eviden ce exis t to sup port this theory. . . . Thus, a jury would have to engage in pure speculation to conclude that the defendant had re turned to his hous e in order to get a gun with which to shoot [the victim]. Although the jury is permitted to disbelieve the defen dant’s testimony, it may not construct a theory based on no eviden ce at a ll. Id.

In the case at bar, we find no evidence—direct or circumstantial—sufficient to perm it a jury to fin d prem editatio n and delibe ration o n the p art of A ntonio Sauls berry, who wa s not eve n prese nt when the mu rder was comm itted. The record clearly reveals that Antonio Saulsberry did not participate in the actual robbery; therefore, his conviction must be based upon criminal responsibility for the con duct of the shoote r, rather tha n direct liability.

By statute, crim inal respo nsibility require s that a de fendan t, “[a]cting with intent to prom ote or as sist the commission of the offense, or to benefit in the proceeds or results of the offense, . . . solicits, d irects, a ids, or a ttemp ts to aid another pe rson to com mit the offense.” T enn. Cod e Ann. § 39 -11-402(2). The record contains some evidence which, if believed by the jury, would at best support an inference that Saulsberry (1) aided a robbery, with the intent th at a robbery be committed; and (2) intended or expected to receive some proceeds from the robbery. The record does not, however, contain any evidence that Saulsberry intended to assist in the commission of a mu rder, intend ed that a -11- murder take place, or intend ed to bene fit in the proceeds or re sults of a murd er, whatever they may be. There is no evidence tending to show an intention, or even an expe ctation, prio r to the rob bery, th at mu rder w ould facilitate the robbery.

Although the State directs our attention to Saulsberry’s statement, in which he recalls that Claude S harkey s howed him a silve r gun, to de mons trate Saulsberry knew a nd intend ed that a m urder oc cur; we b elieve this evidence tends to show only that Saulsberry knew an armed robbery could occur. Next, the State points to Claude’s statement to Saulsberry, “I’m talking about hitting that joint.” Here again, we find no evidence to support knowledge of any act other than robbery, much less intent for any other act to occur. Though murder is a consequence of many armed robberies, a finding of intent in this case requires “pure speculation” of the type warned against in West. We again emphasize that our focus is on whether the e vidence is sufficient to su pport convictions for premed itated first degree m urder, rather than felony m urder.

Saulsberry’s premeditated murder conviction is reversed.

Likewise, with res pect to Frank lin How ard, the Defe ndan t argue s that a ll circumstantial evidence presented by the State to show premeditation and deliberation is probative only of an intent to rob. The State produced evidence sufficient to perm it a jury to fin d that H oward particip ated in the robbery by entering Friday ’s resta urant c arrying a weapon, though this testimony was disputed. The State offered no proof, however, that Howard murdered the victim in this case, Gene Frieling . In fact, th e only gun found in Howard’s possession was conc lusively determined not to match shells and bullet fragments recovered.

-12- Therefore, Howard’s conviction must also be based upon his criminal respon sibility for the co nduct o f the shoo ter.

The State argues that intent can be inferred from the general conduct o f the perpetrators: comm ands b y one to shoot the employees of the restaurant, the fact that the victim was killed d espite compliance with the robbery, and the fact that Shea wa s shot desp ite giving them his w allet. Evidence regarding the severity or cruelty of the act can be relevant to premeditation and deliberation on the part of the principal a ctor. See State v. Brown, 836 S.W.2d 530, 541-42 (Tenn. 1992); State v. Lero y Hall, C.C.A. No. 03C01-9303-CR-00065, Hamilton Coun ty (Tenn . Crim. A pp., Kno xville, Dec. 30 , 1996), aff’d by partial incorporation, State v. Hall, 958 S.W .2d 679 , 705 (T enn. 19 97).

In State v. Frank W hitmore, a principal’s actions cast a circumstantial shadow of intent onto a companion, in the absence of direct evidence of the com panio n’s intent p rior to the murd er— eviden ce su ch as an ag reem ent to k ill, words of encou ragem ent, or assistance in preparatory operations with knowledge that a murd er would occur. C.C.A. No. 03C0 1-9404 -CR-0 0141, B lount Co unty (Tenn. Crim. App., Knoxville, June 19, 1997). In Wh itmore, a panel of this Co urt affirmed the defendant’s conviction for premeditated murder based upon criminal respon sibility where the evidence showed that the defendant drove with Williams, the principal in the murder, to the victim’s home for the purpose of committing a burglary and theft. The testimony indicated that the defendant and Williams intended only to scare the victim with a knife carried by Williams—in fact, they waited until they thought he had gone to bed before entering. However, the evidence also revealed that, once inside the house, they encountered the victim, -13- and William s bega n to fight with him. As the armed Williams wrestled for several minutes with the victim, who was vigorously fighting back, the defendant moved through the hou se sea rching for m oney. T he defe ndant m ade no attemp ts to stop the struggle or disassociate himself from the enterprise at that point. From this evidence, we believed the jury could have reasonably concluded that, once the struggle bega n within the hom e, the defenda nt formed or shared or acquie sced in th e intent tha t a murd er occu r.

W e think the re solution o f Defend ant Howard’s criminal liability for premeditated murder is governed by the T enne ssee Supr eme Cour t’s 1997 case of State v. Carson, 950 S.W.2d 951 (Tenn. 1997). In Carson, the defen dant, Gary, and Stover met to discuss robbing a TV repair store in Knoxville. The defendant Carson had been in the store before. He described the layout and where mone y could be found. Carson gave a weapon to each of his cohorts.

The trio drove to th e store. C arson w aited in the car while Gary and Stover entered the store under a ruse that they needed to have a stereo repaired.

Gary and Stover held two em ployees , Adam s and M cGah a, at gunp oint.

They forced the victims into a rear room , searche d them, and stole $130 from Adams. Gary and Stover bound the victims with telephone cord, closed the do or, and told the victims not to attempt to escape. They then fired three shots through the door and almost hit the victims.

Upon leaving the store, Gary and Stover were surprised to find the car and Carson gone. They exchanged gunfire with police, and they fled. All three culprits were later found and arrested.

-14- Carson was charged like his codefendan ts. Gary an d Stove r pled gu ilty and testified against Carson. Although Carson did not testify, his police statement admitted driving his co defend ants to the scene but denied knowledge that a robbe ry would o ccur. He said he believed G ary and S tover were going to the store to sell the gu ns they b rought.

The jury found Carson guilty of aggravated robbery, aggra vated assa ult (two counts), and felony reckless endangerment. Carson argued on appeal that he lacked the culpable mental state for the offenses committed by his partners in crime.

Carson adopted the “natu ral and p robable conse quenc e” rule. See id. at 955. This rule is based on the premise that criminal aiders and a bettors shou ld be respo nsible for crim es “the y have natura lly, prob ably an d fores eeab ly put in motion .” Id. Carson’s convictions were all affirmed. The Court opined “that the evidence was sufficient to find that the de fenda nt, havin g direc ted an d aide d in the aggravated robbery with the intent to promote or benefit from its commission, was crimin ally resp onsib le for all of the offenses committed by his codefendants, to wit: aggravated a ssault and felon y reckless end angerm ent.” Id. at 956.

W e are of the opinion that Carson dictates H oward’s criminal re spons ibility for premeditated murder. While in the parking lot and before entering the restaura nt, one of the pe rpetrators stated , “Shoot th e moth er . . .,” referring to W ong. All four perpetrators then entered the restaurant armed, acted with a common purpose, committed acts of violence against various employees, shot and wound ed one emplo yee, and sh ot and killed another. Under these -15- circumstances, Howa rd cann ot escap e crimina l respons ibility for prem editated murder by claiming he did not share the criminal intent or premeditation with the actual triggerman. Hence, we find the evidence sufficient to find How ard guilty of prem editated m urder.

II. ADMISSION OF EVIDENCE In their first and seventh issues, Defendants contest the decision of the trial court to adm it a photograph of the deceased victim and a videotape of the crime scene made by police. They allege that admission of these pieces of evidence was error, p rejudic ing the ir right to a fair trial. W e find n o error in the tria l court’s decision to adm it this evidenc e.

A. Ph otogra ph of th e Dec ease d Victim The photograph to which Defendants object d epicts the victim after his death, seated on the floor of the restaurant office. The photograph was taken by police at the scene and introduced as an exhibit to testimony. Defendants argue both that the probative value was substantially outweighed by its prejudicial value and that its admission constituted the needless presentation of cumulative evidence. Defendants claim that the only po ssible function of the evidence was to inflame the jury. We disagree.

Tennessee Rule of Evidence 403 governs Defendants’ claim: “Although relevant, evidence may be excluded if its probative value is subs tantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evide nce.” Te nn. R. E vid. 403. In -16- Tennessee, we have long “followed a policy of liberality in the admission of evidenc e.” State v. Banks, 564 S.W .2d 947 , 949 (T enn. 19 78); see State v. Ode ll Smith , C.C.A. No. 02C01-9707-CR-00259, Shelby County (Tenn. Crim. App., Jackson, Aug. 10, 1998). In this respect, the trial court is entrusted with wide discretion to adm it or refus e a ten dered piece of evidence. See State v. Harbison, 704 S.W .2d 314 , 317 (T enn. 19 86); Banks, 564 S.W .2d at 949 .

Our supreme court has prescribed factors for a trial judge to consider when deciding whethe r to adm it a certain ph otograp h, including : the value of photographs as evidence, that is, their accuracy and clarity, and whether they were taken before the corpse was moved, if the position and location of the body when found is material; the inadequacy of testimonial evidence in relating the facts to the jury; and the need for the evide nce to estab lish a pr ima fa cie cas e of gu ilt or to rebut the defendant’s contentions.

Banks, 564 S.W .2d at 951 . Here, the photog raph wa s accura te and clear; and although the victim had been moved, the photograph correctly depicted the position in which he died and was found by police—he was still breathing when moved. Furthermore, the photograph was not inflammatory or gruesome. No blood w as evide nt, and no wound s were e xposed .

Defendants’ claim that the value o f the ph otogra ph co uld on ly be to inflame the jury is incorrect. The S tate presented three witnesse s to this crime, a ll of whom testified extensively to the manner in which the events happened, including the shoo ting of th e victim in his offic e and the m oving o f his body to perm it him to breathe. The introduced photograph served to corroborate this testimony and to bolster the credibility of the Sta te’s witnes ses. For this reason, the photograph

-17- was relevant yet not needlessly cumulative. See State v. Robinson, 930 S.W.2d 78, 84 (T enn. C rim. App . 1995).

B. Vid eotap e of Cr ime S cene and V ictim The same general policies should be considered by the trial court ruling on admis sibility of a video tape. See State v. Bigbee, 885 S.W.2d 797, 807 (Tenn. 1994); State v. R onnie Michael C authern, C.C.A. No. 02C01-9506-CC-00164, Gibson Coun ty (Tenn . Crim. A pp., Jack son, De c. 2, 1996 ), aff’d by partial incorporation, State v. Cauthe rn, 967 S.W.2d 726, 743 (Tenn. 1998). Our supreme court has stated that “the admissibility of authentic, relevant videotapes of the crime scene or victim is within the sound discretion of the trial judge, and his ruling on the adm issibility of such evidence w ill not be overturned without a clear showin g of abu se of disc retion.” State v. Van Tran, 864 S.W.2d 465, 477 (Tenn. 1993); see State v. McCary , 922 S.W.2d 511, 515 (Tenn. 1996) (in dicta).

Although Defendant Saulsberry failed to raise this assignment of error in his motion for new trial, we will address the issue with respect to both Defendants. At trial, the State played a videotape for the jury containing scenes of the restaurant shortly after the police arrived. Defendants present no argument for exclusion of the videotape, and we find no reason why the tape would fail to satisfy Tennessee Rule of Evidence 401 for relevancy. Tenn. R. Evid. 401 (“‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or les s proba ble than it w ould be without the evidenc e.”). In addition, we find no pre judice that wo uld substantially outweigh the pro bative value of the videotap e. See Tenn . R. Evid. 40 3.

-18- Defenda nts argue that the trial court erred by announcing to the jury that portions of the tape displaying removal of the victim’s body would not be shown to them. D efendants claim that by informing the jury exactly what it would not see, the trial judge prejudiced their right to a fair trial. We disagree and find no error. The trial judge’s simple statement that the videotape showed removal of the de ceas ed’s body co uld not ha ve com munic ated inform ation of a prejudicial nature to the jury. Cf. Cauthern , 967 S.W.2d at 744 (affirming by incorporation this Court’s decision that a videotape of police removing the defendant’s body from the scene w as adm issible when it was relevant and w hen the prob ative value did not outweigh the prejudicial value). Therefore, Defendants’ claim of error rega rding ad mission of the pho tograph and vide otape a re withou t merit.

III. JURY INSTRUCTIONS In issues three through six, Defendants charge error in the instructions given by the trial court to the jury. Beca use De fendan ts presen ted only the sixth issue in their motions for new trial, we are permitted to c onsider the oth ers waived as a matter of proce dure. See Tenn. R. App. P. 3(e). However, in the interest of facilitatin g furthe r review of this case, an d beca use the State did not object, we have examined all alleged erro rs. We c onclude tha t Defendan ts’ claims are without m erit.

Genera lly, a jury charge “should be considere d preju dicially e rrone ous if it fails to fairly submit the legal issues or if it mis leads the jury a s to the applic able law.” State v. Hodges, 944 S .W .2d 34 6, 352 (Ten n. 199 7) (citing Graham v. State, 547 S.W.2d 531 (Tenn. 1977), and State v. Forbes, 918 S.W.2d 431, 447 (Tenn. Crim. App. 1995)). In addition, “[i]t is the duty of a trial judge to give a -19- comp lete charge of the law a pplicable to the facts of a case .” State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986) (citing State v. Thompson, 519 S.W.2d 789, 792 (Tenn . 1975)); see State v. Burkley, 804 S.W.2d 458, 461 (Tenn. Crim. App. 1990). This Court also stated in Burkley, “In delive ring its c harge , a cou rt shou ld guard against an instruction which would withdraw from the jury’s consideration any issue or evidence which they are entitled to consider.” 804 S.W.2d at 461.

A. Instructions on Premeditated Murder Defendants’ fourth issue assigns error to the trial court’s charge on first degree premeditated murder for two reasons: (1) because the judge used the phrase, “that the killing was inten tional,” rathe r than “tha t the defendant acted intentionally”; and (2) because the element of deliberation was separated on the page from the other elem ents of the offense . We find n o prejudicial error.

Tennessee Pattern Jury Instruction 7.01(a ), the pr oper in structio n for this case,5 reads, in re levant pa rt: For you to find the defendant guilty of this offense, the state must have proven beyond a reasonable doubt the existence of the following essential elements: (1) that the defend ant unlaw fully killed the a lleged victim ; and (2) that the defen dant ac ted intentio nally. A per son ac ts intentiona lly with respec t to the na ture of th e con duct o r to a res ult of the co nduc t when it is the pe rson’s conscious o bjective or desire to enga ge in the c onduc t or cause the resu lt; and (3) that the killing was deliberate. A deliberate act is one performed with a cool purpose; and (4) that the killing was p remed itated.

Tennessee Pattern Jury Instruction 7.01(a) is the proper instruction for offenses committed prior to July 1, 1995, the effective date of legislative changes to the statute.

-20- Tenn. Pattern Jury Instructions 7.01(a) (4th ed. 1995). Because Defendants’ latter argume nt concerns the visual impact of the instructions on the jury, we reprint the relevant portion as written in this case: For you to find the defendant guilty of this offense, the sta te must have proven beyond a reasonable doubt the existence of the following essential elements: that the defendant unlawfully killed the alleged victim; and that the killing was intentiona l. A person acts inten tionally with respect to the nature of the c onduct or to a re sult of the conduct when it is the pe rson’s conscious o bjective or desire to engage in the conduct or cause the result; and that the killing wa s delibera te. A delib erate act is one performed with cool purpose; and that the killing was premeditated.

Although the elements “that the killing was intentional” and “that the defendant acted intentionally” do convey different meanings, we decline to find the distinction s ubstan tial enoug h to misle ad the jury to Defendants’ prejudice.

Consideration of the first elem ent, “that the defendant unlaw fully killed the alleged victim,” should have eliminated any confusion in the minds of the jurors. (Em phas is added.) Clearly, conviction upon this particular instruction, as opposed to criminal responsibility, requires a finding that the defendant hims elf was the “triggerm an.”

Second, we find no error in the visual appearance of the elements.

Though the second element—intent—contains a period prior to its explanation, so does the third elem ent of d elibera tion. At a mere glanc e, the in structio n cou ld be slightly c onfus ing to th e jury; bu t we find that eve n a ca reful rea ding is unnecessary to clearly understand the instruction.

B. Instruc tion on M oral Cer tainty -21- Defen dants next com plain that the jury instruction on reasonable doubt violated due pro cess pro tections. In their fifth is sue, b riefly cons isting o f a sing le quote , Defendants contest the trial court’s use of Tennessee Pattern Jury Instruction— Criminal (T.P .I.) 2.03(a). 6 Specifically, they argue that omission of the term “moral certainty” reduced the jury’s perception of the degree of certainty required to convict to a point less than that required by the Due Process Clause.

We find no violation of Defendants’ due process rights.

“[T]he Constitu tion neithe r prohibits trial c ourts from defining reason able doubt nor requires them to do so as a matter o f course.” Victor v. Nebraska, 511 U.S. 1, 5 (199 4). Furthermore, “so long as the court instructs the jury on the necessity that the defendant’s guilt be proved beyond a reasonable doubt, the Cons titution does not require that any particular form of words be used in advising the jury of the governm ent’s burden o f proof.” Id. (citations omitted).

Therefore, it seems that, with respect to reasonable doubt, a trial court’s error must typically be one of commission, rather than omission. There can be no mistake in failing to employ distinctive words or phrases, so long as the charge given is complete and accurate. Beca use w e find th at T.P .I. 2.03( a)— curren tly the alternate reason able doubt jury instruction for this state—a ccurately conve ys the level of certainty mandated by In re W inship, 397 U.S. 358, 364 (1970), we conclude that absence of the term “moral certainty” is of no consequence.

We also note that the single case used by Defendants to show error by the trial court, State v. Derek Denton, C.C.A. No. 02C01-9409-CR-00186, Shelby County (Tenn. Crim. App., Jackson, Aug. 2, 1996), actually held that giving an instruction identical to the one in this case was not error.

-22- Our supreme court has e xpres sly perm itted the use o f “mor al certa inty” in this state’s jury ins tructions. See Carter v. State, 958 S.W.2d 620, 626 (Tenn. 1997) (“The phrase is permissible if the context in which the instruction is given ‘clearly convey[s ] the jury's res ponsib ility to decide the verdict based on the fac ts and law.’”) (quoting State v. Nich ols, 877 S.W .2d 722, 734 (Tenn. 199 4)). Cf. Austin v. Bell, 126 F.3 d 843, 8 47 (6th C ir. 1997), cert. denied, 118 S. Ct. 1526 (1998) (also accepting a “moral certainty” instruction). We note carefully and explicitly, however, that our supreme court has allowed use of the term, not encouraged its use. But cf. State v. Jose Holmes, C.C.A. No. 02C01-9505-CR- 00154, Shelby County (Tenn. Crim. App., Jackson, Dec. 10, 1997); State v. Derek Denton, C.C.A. No. 02C01-9409-CR-00186, Shelby County (Tenn. Crim.

App., Jackson, Aug. 2, 1996) (both expressing a preference for T.P.I. 2.03, rather than T.P.I. 2.03(a )).

Our courts have u pheld a “m oral certainty” jury instruction when confronted with defendants’ arguments that the instruction itself, when given, permits a level of proof lower tha n that con stitutionally req uired for co nviction. See Carter, 958 S.W.2d at 625-2 6; Nicho ls, 877 S.W .2d at 734 (u se of “moral certainty” perm issible when context further explained reasonab le dou bt and prope rly reflected evidentiary certainty); Pettyjohn v. State, 885 S.W.2d 364, 365-66 (Tenn. Crim. A pp. 199 4); State v. Hallock, 875 S.W.2d 285, 294 (Tenn. Crim.

App. 1993); see also Amy K . Collignon , Note, Searching for an Acceptable Rea sona ble Doub t Jury Ins truction in Light of Victor v. Nebraska, 40 St. Louis U.

L.J. 145, 171 (1996) (“[A]lthough the Supreme Court hesitated upon the accep tability of phrases su ch as ‘mora l certainty’ . . . , interpreting courts have

-23- gleaned only that the instruction must pass constitutional muster having been read as a whole .”).

Now, howeve r, these pa rticular De fendan ts com plain that failure to provide a “moral certainty” instruction also encourages conviction upon a reduced degree of proof. W e recently addre ssed this very issue with respec t to T.P.I. 2 .03(a) in State v. Henning, C.C.A. No. 02C01-9703-CC-00126, Madison County (Tenn. Crim. A pp., Jack son, O ct. 24, 1997); and we find no reason to deviate from our conclusion in that case that the ins truction is not co nstitutio nally deficient. See id. at 9; see also Denton, C.C.A. N o. 02C 01-940 9-CR -00186 , slip op. at 8 (“[W ]e cannot conclude that the trial court erred by refusing to include the phrase <moral certainty’ in its ch arge.”).

In Henning, we noted that T.P .I. 2.03(a) “tracks virtually identical language of pattern reasonable doubt instructions approved by a majority of the federal circuits.” Id.; see also Colligno n, supra, at 171 (“Clearly, the instruction with the most supp ort com es from the Fe deral J udicia l Cente r. Tha t charg e exclu des a ll referenc e to ‘mor al certainty’ o r ‘substan tial doubt.’”) (foo tnote om itted).

Rea sona ble doubt instructions not including the term “m oral certainty” have been more widely used since the Supreme Cour t’s opin ion in Victor v. Nebraska, 511 U.S. 1 (1994), in which the Court expressed concern that the term c ould have “lost its historical meaning.” Id. at 13. There, the Court held “moral certainty” constitutional within an in struction th at “lends c ontent to th e phras e.” Id. at 14, 16 (“The instruction thus explicitly told the jurors that their conclusio n had to be based on the evidence in the case. Other instructions reinforc ed this -24- messa ge.”). Because of the changing nature of the ph rase over time , however, the Victor Court clearly state d that it d id not c ondo ne us e of the phras e in reason able doubt jur y instruction s. See id. at 16. As the Court noted, “the definitions of reasonable doubt most widely used in the federal courts do not conta in any refere nce to m oral certain ty.” Id. at 16-17 ; see id. at 24 (Ginsbu rg J., concurring in part and concurring in the judgment) (“I agree . . . with the Cour t’s suggestion that the term <moral certainty,’ while not in itself so misleading as to render the instructions unconstitutional, should be avoided as an unhelpful way of explainin g what re asona ble dou bt mea ns.”).

In the case at ba r, we are convinced that T.P.I. 2.03(a) is not constitutionally deficient for lack of the phras e “moral certain ty.” Therefore, we find no erro r in the trial cou rt’s use of this alternative ju ry instruction .

C. Instruc tion on P rior Incons istent State ments Defendants’ sixth assignment of error co ncerns the trial cour t’s refusal to issue a contemporaneous curative instruction to the jury when the prio r inconsistent statements of Claude Sharkey were introduced for impeachment purposes. Defendants claim that the judge should have instructed the jury that the statement could be used only for impeachment, not as substantive evidence.

Defendants correctly assert that failure by a trial court to issue a contemporaneous curative ins truction for prior inconsistent statements could, under some circu mstance s, constitute reversible err or. According to State v. Reece, 637 S.W .2d 858 (Te nn. 1982), failure to give a limiting instruction creates revers ible error when “the impeaching testimony is extremely damaging, the need -25- for the lim iting ins truction is app arent, a nd the failure to give it results in substantial prejud ice to the rights of the ac cused.” Id. at 861.

This case is readily distinguishable from Reece, howeve r. In Reece, the limiting instruction was ne ver given, not even as part of the general jury charge.

In this case, the jury was instructed at the end of testimony that it could consider impeaching prior inconsistent statements only for purposes of assessing credibility.

Although we are awa re of cases in wh ich federal courts h ave held a limiting instruction as part of the gen eral jury charge insufficient where the impeaching testimony is extrem ely dam aging, w e need not deter mine w hether th is issue is a matter of constitutional or evidentiary import, because Defendants have failed to properly c ite to the rec ord. See Tenn. R. App. P. 27(g) (“[R]eference in the briefs to the record shall be to the pages of the reco rd involved .”). In their brief, Defen dants inform the Co urt that the impeached witness’ testimony can be found between pages 422 and 450 of the record, but they do not identify which portions of the testimony they consider damaging and do not establish how improper use of the testimony prejudice d them . The only gu idanc e prov ided b y Defe ndan ts is this: The testimony of Claude Sharkey can be found in the trial transcript from pages 422 thru [sic] 450. (V ol. VII and VIII) The testimony of Sharkey occurred on February 13, 1997. A review of that testimony clearly leaves room for confusio n by the jury as to what th ey cou ld consider for guilt o r innoc ence versus impe achm ent es pecia lly where the jury was not charg ed with the proper use of such testimony until the afternoon of February 14, 1997, during the court’s regular charg e to the jury. It is als o clea r that ce rtain statem ents in Sha rkey’s p reviou s state men t if taken as substan tive evidence would be extremely damaging to both Appellants. ...

-26- In the present case if the jury took Sharkey’s statements as substantive evidence, which Appellants submit they did, it is an understatement to say that it resulted in substantial prejudice.

The whole of Claude Sharkey’s testimony consists of impeachment by prior inconsistent statem ents. W here D efenda nts fail to mea ningfully cite to the record such that alleged prejud icial error can be identified, we decline to search the record fo r it.

D. Instruc tion on C riminal Re spons ibility Defendants’ third issue for review alleges that the trial court erred by failing to specifically instruct the jury that it must reach a unanimous decision on the theory behind their verdict. For example, if a portion of the jury convicted them as directly liable for the murder, a portion of the jury convicted based upon criminal responsibility for the conduct of C laude Sha rkey, and a po rtion of the jury convicted based upon criminal responsibility for the conduct of Kevin Wilson, then Defendants claim the decisio n wou ld have violated their constitutional right to a una nimou s verdict.

This issue is m oot as to D efenda nt Sauls berry. As to Defendant Howard, we find the argument meritless. In State v. Williams, 920 S.W.2d 247 (Tenn. Crim. App. 1995 ), this Cou rt did not ac cept a sim ilar argum ent. In Williams, the victim could not pinpoint which criminal held her down and which one of the two actua lly raped her. The defendant argued the possibility of a nonuna nimous jury verdict beca use th e State could not pro ve if he was the a ctual rapist or an aide r. Our Cour t found that in T enne ssee , unde r our crim inal res pons ibility statute, it makes no differen ce. A defendant crimin ally resp onsib le for a p rincipa l’s acts is just as guilty as the principa l actor.

-27- IV. CONSECUTIVE SENTENCING In their ninth issue, Defendants argue that the trial court erred in imposing consecutive senten ces, con tending that the evid ence d oes no t indicate Defen dants are dangerous offenders with little or no regard fo r huma n life. W e find no error in the trial court’s consideration or decision.

This Court reviews the length, range, or m anner of service of sentence imposed by the trial court based upon a de novo standa rd. See Tenn. Code Ann. § 40-35-401(d). However, we owe the trial court’s determination a presumption of correctness, see id., so long a s the trial cou rt “place[s] o n the rec ord its reasons for arriving at the final sentencing decision ” and exh ibits com pliance w ith the statutory se ntencing guideline s and p rinciples. State v. W ilkerson, 905 S.W.2d 933, 934 (T enn. 1995 ). Here, the record contains a leng thy and compre hensive deliberation by the trial court regarding Defendants’ sentencing, and we therefore accord the sente nce a p resum ption of co rrectnes s.

Defen dants bear the burd en of sho wing tha t the sente nce is im proper. See State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 199 1). Defendants allege that the aggreg ate term of life imprisonment “is quite reasonably sufficient in the terms of length to ade quate ly punish [Defendants] and to adequately protect society,” but they have nowh ere identified any err ors comm itted by the trial court or why consecu tive sentencing is not appropriate in this case. They have failed to carry their burden.

-28- In the inte rest of ju stice, however, we have examined the sentencing transcript and a re satis fied tha t cons ecutive sente ncing is app ropria te in this case. T ennes see Co de Ann otated § 40-35-1 15 gove rns our a nalysis: (a) If a defendant is convicted of more than one (1) criminal offense, the court shall order sente nces to run c onse cutively or con curren tly as provided by the criteria in this section. (b) The cou rt may order se ntences to run consecutively if the cou rt finds by a p repond erance of the evide nce tha t: ... (4) The defendant is a dangerous offender whose behavior indicates little or no regard for human life, and no hesitation about committing a crime in which the risk to human life is high.

Id. § 40-35 -115(a), (b )(4). More over, The proof must also establish tha t the terms imp osed are reaso nably related to the severity of the offenses comm itted and are necessa ry in order to protect the public from further criminal acts by the offend er. In ad dition, the Sentencing Reform Act requires the application of the s enten cing p rinciple s set fo rth in the Act ap plicab le in all cases. The Act requires a principled justification for every sentence, including, of course, consecutive sentencing.

Wilkerson, 905 S.W .2d at 938 ; see also State v. Dale Nolan, C.C.A. No. 01C01- 9511-CC-00387, Sequa tchie Co unty (Te nn. Crim . App., N ashville, June 26, 1997), perm. to app. denied (Tenn . 1998).

In the case at ba r, the trial court explicitly found that Defendants satisfied the requ iremen ts of § 40-3 5-115(b )(4): As to the consecutive request, Mr. Howard does have an extensive record. And in my judgment, he is clearly a dangerous offender. He has shown no hes itation to comm it a crime when the risk to hum an life was high.

The facts o f this ca se we re so s hock ing an d app alling th at it is inconceivable to me that under any interpretation of the dangerous offender category these individuals would not be considered to be dangerous offenders. The facts that are in the record with regard to all four of them being armed, all four of them showing up at that back door, single file, marching into the store, each one h aving h is own respo nsibility with regard to the completion of this robbery. The shootings that occurred with Mr. Frieling and Mr. Shea.

-29- Their absolute and total lack of remorse after this is over, as evidenced by testimony from severa l individu als of the fact that they went back to the home of the one individual and played Nintendo for the rest of the night. That’s just pretty amazing testimony that we heard during the course of this trial. That individuals after having participated in a crime of this sort would go back to a house and play Nintendo for several hours until, I guess, they got sleepy and went to sleep. It is just -- it’s unbelievable. Clearly dangerous offenders.

With respect to Defendant Saulsberry, the court stated, In my judgment, for the same reasons as those I indicated with regard to Mr. Howard, I thin k that c onse cutive s enten cing is approp riate in this case as well.

The offense is so reprehensible and so atrocious, so unfathomable, that it is hard fo r me to imagine anyone defining this, these individuals, as anything other than dangerous offenders.

The court also found no hesitation to commit an offense w hen the risk to human life was high: I think that’s clearly established. And I think the case law suppo rts it. I think there were -- well, I know tha t the record reflects that there were other individuals in the restaurant, the dishwashe r, the waitress, others who were all put at risk. The potential to -- or the risk to th eir life was high. They were very much endangered during this whole episode, even though they were fortunate enough to have been spared. So I think that factor clearly applies.

Finally, the trial court specifically addres sed wheth er an aggregate sentence reasonably related to the severity of the offenses involved. The court stated, You have a robbery that w as taking place , and a store manager who is saying, here, take the money, doing everything to comply with what the robbers were asking, and yet was shot. And then beyond that, the assistant manager, lying on the ground, doing everything he cou ld to com ply with what was being demanded, who was then gratuitously shot and left to die.

I mea n, I think it is a situa tion wh ere it is clearly disting uisha ble from, fo r exam ple, a h oldup where in the process of struggling over the money, somebody gets shot or something of that sort. [Tha t] is all part and parcel of th e robbe ry itself.

These events were all separate, independent, inexplicable, inexcusable, outrageous, unconscionable acts that are clearly distinguishable, I think.

-30- W e also find in the sentencing transcript ample evidence to show that the term imposed was n eces sary to protec t the pu blic from further crimes committed by these D efenda nts. At the tim e of sentencing, each Defendant had an extensive history of crim inal beha vior. In addition, the court found, for both, at least a limited h istory of unw illingness to comp ly with the cond itions of a sentence involving release into the community. Our review of the above evidence is not affected by our finding of insufficient evidence to support premeditation and deliberation on the part of Defendant Saulsberry. We are convinced the trial judge fulfilled his duty in sentencing as to both Defendants.

V. DISCOVERY MOTION Defendants’ ninth issue assigns error to the trial court’s failure to grant a mistrial based upon an alleg ed disco very violation by the Sta te. Defen dants argue that the State did no t comply with T ennesse e Rule of Crim inal Procedu re 16, which requires disclosure of certain evidence by the State: Upon request of the defendant, the state shall permit the defendant to inspect and c opy or photog raph any re sults or reports o f . . . scien tific tests o r expe rimen ts, or co pies th ereof, w hich a re within the possession, custody or control of the state, the existence of which is known, or by the exercise of due diligence may become known, to the district atto rney gen eral and which ar e mate rial to the preparation of the defense or are intended for use by the state as eviden ce in ch ief at the trial.

Tenn. R. Crim . P. 16(a)(1 )(D). Spe cifically, Defe ndants argue th at the Sta te should have produced, in response to their Rule 16 disc overy reques t, a report of tests performed on the .32 caliber revolver seized from Defendant How ard’s residen ce.

-31- The State replies first that Rule 16 is inapplicable because the test performed on the weapon was not a “scien tific test” and becaus e the expert made no “report.” Rather, the State argues , the expert simply observed whether the barrel of the gun contained residue, to determine whether it had been cleaned since last fired, and he made only handwritten notes of the result. Although we do not accept the State’s argument, we need not find this test within Rule 16 because we conclude that even if there was a violation, Defendants were not prejudiced.

Rule 16 prescribes the rem edies for violation of its provisions : “the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances.” Tenn. R. Crim. P. 16(d)(2). Here, the trial court offered to a llow Defe ndants ’ counse l an oppo rtunity to inspec t the notes , which he declined to do. Th e record reflects tha t counsel objected to the existen ce of th e alleg ed viola tion, bu t that he did not, in fact, move for a mistrial at this point. Although D efendants a ssert that they mo ved for a mistria l, they have not prov ided a citation to the record to permit meaningful appellate review.

Furthermore, the evide nce no t disclosed to Defen dants revealed only that the gun fo und in Defe ndan t How ard’s h ome had n ot bee n clea ned s ince last fired; the evidence did not reveal when the gun had been las t fired. Defen dants have identified no prejudice—they have simp ly asserted that prejudice resulted—and we ca nnot o urselve s iden tify any p rejudic e. The trial judge was within his d iscretion in re fusing an y reques t for a mistria l.

-32- VI. CUMULATIVE ERROR W e have concluded that only one error occurred and have remedied that error by reversin g one D efenda nt’s convic tion for first deg ree prem editated murder. We find no cumulative error warranting further modification.

VII. CONCLUSION In conclusion, Defendant Saulsberry’s conviction for first degree premeditated murder is not supported by sufficient evidence, and such conviction is therefore reversed and his case is remanded for a new trial on the charge of felony murd er as a lleged in Counts 2 and 3 of the indictment. We conclude that the trial court committed no oth er erro r. W e affirm convic tions fo r espe cially aggravated robbery and cons piracy as to both D efendants. W e affirm Defendant Howard’s murder conviction. Consecutive sentencing is affirmed. This c ase is remanded for such other proceedings as may be warrante d and c onsisten t with this opinion .

_________________________ PAUL G. SUMMERS, JUDGE

CONCUR:

_____________________________ DAVID H. WELLES, JUDGE

_____________________________ JOE G. RILEY, JUDGE -33- -34-