State of Tennessee v. Franklin Howard

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs May 4, 2004

STATE OF TENNESSEE v. FRANKLIN HOWARD

Appeal from the Criminal Court for Shelby County

No. 95-07822 Joseph B. Dailey, Judge

No. W2002-01680-CCA-R3-CD - Filed November 18, 2004

Following a remand for a new trial on the charge of first-degree premeditated murder, see State v.

Howard, 30 S.W.3d 271 (Tenn. 2000), the defendant, Franklin Howard, was again convicted of first-

degree premeditated murder and was also convicted of felony murder and sentenced to life in prison.

Now on appeal, he challenges the sufficiency of the convicting evidence, the admission of a co-

defendant’s statement, the failure of the trial court to bar the second trial based upon principles of

double jeopardy, the trial court’s jury instructions, the failure to transfer the case to another trial

judge for retrial, and the imposition of consecutive sentencing. We reverse the felony-murder

convictions and dismiss those charges but otherwise affirm the defendant’s first-degree murder

conviction and sentence.

Tenn. R. App. P. 3; Judgments of the Criminal Court are Affirmed in Part; Reversed in

Part.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON and

JERRY L. SMITH , JJ., joined.

Joseph S. Ozment, Memphis, Tennessee, for the Appellant, Franklin Howard.

Michael E. Moore, Solicitor General; J. Ross Dyer, Assistant Attorney General; William L. Gibbons,

District Attorney General; and Robert C. Carter and Jennifer Nichols, Assistant District Attorneys

General, for the Appellee, State of Tennessee.

OPINION

The evidence at retrial established, in the light most favorable to the state, the

following facts. The homicide victim, Gene Frieling, was an employee of TGI Fridays (TGIF)

restaurant chain and was transferred to Memphis to participate in the management of a TGIF

location. In the early morning hours of January 28, 1995, a 9-1-1 emergency call alerted police of

“shots fired” at the TGIF location. Upon arriving at the scene, officers discovered the deceased

victim, sitting in the floor near the office. He had suffered a gunshot wound in his shoulder that

penetrated his lungs and heart. A second man, Preston Shea, was beneath a counter in the office.

Mr. Shea, the TGIF bartender on duty when the restaurant closed, had been shot multiple times,

although he ultimately survived the shooting.

The restaurant’s office was accessed from the rear of the restaurant by a door and a

short hallway. The door could be opened from the inside via an “alarm type” handle but, when

closed, could not be opened from the outside. Officers recovered nine-millimeter shell casings and

two .380 shell casings from the office area. They also recovered a bullet fragment from the person

of Mr. Shea. The officers were unable to extract fingerprints from the crime scene. A regional TGIF

executive came to the scene and determined that, at the time of the assault, the victim had been

preparing to deposit the day’s receipts and that, based upon cash register records, approximately

$5,400 was missing.

John Paul Wong testified that he was working as a dishwasher at TGIF during the

evening of January 27 and early morning hours of January 28, 1995. His duties entailed taking

refuse to the dumpster behind the restaurant after closing and just before the restaurant was secured

for the night. He exited the rear of the building via the hallway and the one-way door. In making

his first trip to the dumpster, he propped open the door with a broom, a common practice among

employees who went outside, intending to re-enter the building. As he started out the door with the

second haul of refuse, he was “pounced upon” by four dark-clothed intruders wearing ski masks.

Someone shoved a gun in his face, threatened to shoot him, and pushed him back into the hall where

he was placed face-down on the floor. Shortly thereafter, a waitress, Jessica Hoard, was placed on

the floor near Mr. Wong. Then, Mr. Wong heard shots and people running. After the intruders left,

Mr. Wong found the homicide victim and Mr. Shea wounded and lying on the floor. He propped

up the homicide victim.

Jessica Hoard testified the restaurant closed at 1:00 a.m. She was waiting for the

victim, who had to balance the account and prepare the bank deposit. At approximately 2:00 a.m.,

a man in dark clothes and a ski mask and brandishing a gun appeared in the rear doorway. A second

man threatened to shoot Ms. Hoard and ordered her to lie on the floor. She saw a third man standing

at the rear door. Soon, she heard shots and screaming.

Preston Shea testified that, as the head bartender when the restaurant closed, he was

helping the manager, Mr. Frieling, account for the receipts. Upon walking out of the office, he

encountered four masked, armed men in the hall. One of them hit Mr. Shea in the head with an

object, and he fell to the floor near the rear door. The men demanded money, and Mr. Shea gave

them his wallet. Some of the men went into the office and passed the restaurant money out to the

other men in the hall. Someone said, “Shoot the m - - - - - f - - - - -,” and then a shot was fired. As

the intruders left through the hall, Mr. Shea was shot. He testified, “I got shot three times for lying

there in a pool of kitchen slop doing exactly what they asked.” When the men left, Mr. Shea crawled

into the office and called 9-1-1.

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Darrick Jones testified that he worked at TGIF on the evening of January 27 until the

restaurant closed at 1:00 a.m. When he went to his car parked in the rear about 1:30 a.m., he saw

a white Pontiac Bonneville or Parisian with a dark top pass through the parking area. The car

contained at least four people.

On February 7, 1995, based upon Mr. Jones’s information and a Crime Stoppers tip,

officers stopped a white Pontiac driven by Claude Sharkey. A young man named Anthony Moore,

also known as Anthony Morgan, was riding in the Pontiac. The officers found a .380 automatic

pistol containing seven live rounds hidden under the Pontiac’s dash board. Within a short time,

officers apprehended Claushaun Sharkey and Kevin Wilson, and pursuant to statements given by

these men, they went to the defendant’s residence. Upon finding the defendant at home and after

obtaining permission to search the house, the officers found a .32 revolver in a box under the

defendant’s mother’s bed, a black leather jacket, and a ski mask.

Apparently prompted by being shown Wilson’s prior statement wherein he implicated

the defendant, the defendant told the officers, “I was there, but I didn’t go inside.” He gave a written

statement in which he recounted that the Sharkeys and Wilson were responsible for the TGIF robbery

and homicide. He admitted that, although he had been asleep in the car, after the other three men

discussed robbing TGIF, he “walked up there” with them. He stated, “I stayed all the way in the

back and they ran in the restaurant and I heard some shots fired so I ran to the car . . . .” The

defendant recounted that, after returning to the Sharkeys’ house, the men gave him $200.

A forensics analyst testified that he could discern no identifiable fingerprints on the

.32 revolver. He analyzed a .380 bullet recovered from the victim and a .380 shell casing found at

the crime scene and determined that they were fired from the .380 pistol recovered from the

Sharkeys’ Pontiac. The officers had also recovered a nine millimeter bullet fragment but found no

evidence of projectiles being fired by a .32 pistol.

In his defense, the defendant called his mother, who testified that the .32 revolver

belonged to her and that she never knew of the defendant taking it. He also called Claude Sharkey’s

ex-girlfriend, who testified that she had never known the defendant to have been a part of the group

of the Sharkeys, Kevin Wilson, and Anthony Morgan, the four of whom were “running buddies.”

Anthony Morgan, Kevin Wilson, and the two Sharkeys testified for the defendant.

Morgan testified that the defendant was not a “running buddy” of the Sharkeys. He denied the truth

of his prior statement that, on Saturday, January 28, 1995, the defendant was at the Sharkeys’ home

when Morgan arrived.

Wilson testified that he, the two Sharkeys, Morgan, and the defendant were all in the

Pontiac in the early morning hours of January 28, 1995. Claude Sharkey suggested robbing TGIF.

The defendant and Morgan stayed in the car, and Wilson testified that the defendant stated that he

would having nothing to do with the robbery. Wilson testified that he and Claude Sharkey had guns.

He heard Claude Sharkey’s gun fire but did not see him shoot the manager. Wilson did not shoot

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the manager but did shoot the bartender, although he claimed he did so unintentionally. Wilson

admitted that his prior statement was contradictory to his trial testimony but maintained that he was

scared when he made the false statements in his pretrial statement. Wilson acknowledged that his

prior statement said that the defendant entered TGIF with the other men, that the defendant had a

pistol, that the pistol resembled the one removed from the defendant’s house, and that the defendant

and Claude Sharkey told Wilson to shoot the bartender; however, Wilson testified that these

statements were untrue and that the defendant never left the car.

Claushaun Sharkey testified that he and Claude Sharkey, the defendant, Kevin

Wilson, and “Little Anthony” Morgan had been together during the day and evening of January 27,

1995, smoking marijuana, drinking, and playing video games. Claude suggested that they rob TGIF.

The five of them traveled to the location, but the defendant was too drunk to get out of the car.

Wilson, Claude Sharkey, and “Little Anthony” had guns; Claushaun Sharkey did not. Claushaun

Sharkey acknowedged that his pretrial statement said that the defendant, rather than “Little Anthony”

Morgan, entered TGIF with the other three men, but he attributed the statement to pressure from the

police. He further acknowledged that his statement claimed that the defendant stood over Preston

Shea and took his wallet and that the robbery had been discussed among the group before going to

the TGIF. In his trial testimony, he denied the truth of these statements.

Claude Sharkey testified that he spent time drinking and smoking marijuana with the

other four men on January 27, 1995. Although he had been thinking about robbing TGIF, he had

not discussed the idea with anyone prior to everyone getting into the Pontiac that night. Although

he was supposed to be taking everyone home, he intentionally took an expressway exit that led to

TGIF. Once there, he parked, told the others of his plans, produced a few ski masks, and asked who

wanted to go. “Little Anthony,” Wilson, and Claushaun Sharkey opted to go, but the defendant was

“too drunk.” He never saw the defendant leave the car. Claude Sharkey testified that he and Wilson

entered the office. He said, “I went in. I asked for money. [The victim] gave it to me, and I still

shot him.” He testified that he had told no one that he was going to shoot anyone during the robbery.

Sharkey then testified that he and Wilson both shot the bartender. He acknowedged that in his

pretrial statement, he said that the defendant came into TGIF and took the money and that he testified

in a previous trial that the defendant carried a gun. He testified that these statements were untrue

and that he made them in consideration of the state’s promise to provide a helpful letter to the parole

board.

The defendant testified that, although he spent time with the Sharkeys, Wilson, and

Morgan on January 27, 1995, there had been no plan to commit a robbery. Although he thought they

were driving him home that night, he was drunk and fell asleep. The Pontiac took the “wrong exit”

and arrived at TGIF. When the robbery plan was discussed at TGIF, the group rebuffed his attempts

to get them to take him home. He testified that they told him to stay in the car until they came back.

When the men returned, Wilson admitted shooting someone. The defendant testified that he had

never removed his mother’s .32 pistol from their house. He claimed his pretrial statement was the

result of being scared when the officers “put[] their hands on [him].” He testified that, following

the robbery, he received $200 in “hush” money.

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Based upon this evidence, the jury convicted the defendant of premeditated first-

degree murder and of two modes of felony first-degree murder. The trial court merged all verdicts

into one first-degree murder conviction and imposed a life sentence.

I. Evidence Sufficiency.

In his first issue on appeal, the defendant claims that the evidence is insufficient to

establish that the victim was killed premeditatedly and deliberately. See Tenn. Code Ann. § 39-13-

202(a) (1991) (first-degree murder is an “intentional, premeditated and deliberate killing of

another”) (emphasis added) (amended, Acts 1995, ch. 460 (effective July 1, 1995)).

When an accused challenges the sufficiency of the evidence, an appellate court’s

standard of review is whether, after considering the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324, 99 S. Ct. 2781,

2791-92 (1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985). This rule applies to findings of

guilt based upon direct evidence, circumstantial evidence, or a combination of direct and

circumstantial evidence. State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990), overruled

on other grounds by State v. Hooper, 29 S.W.3d 1 (Tenn. 2000). In determining the sufficiency of

the evidence, this court does not reweigh or reevaluate the evidence. State v. Matthews, 805 S.W.2d

776, 779 (Tenn. Crim. App. 1990). Questions concerning the credibility of the witnesses, the weight

and value of the evidence, as well as all factual issues raised by the evidence are resolved by the trier

of fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). This court does not substitute its

inferences for those drawn by the trier of fact from the evidence. Liakas v. State, 199 Tenn. 298,

305, 286 S.W.2d 856, 859 (1956); Farmer v. State, 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978).

On the contrary, this court must afford the state the strongest legitimate view of the evidence

contained in the record as well as all reasonable and legitimate inferences which may be drawn from

the evidence. Cabbage, 571 S.W.2d at 835.

At the time of the offense in question, January 28, 1995, the premeditated form of

first-degree murder was defined as the “intentional, premeditated and deliberate killing of another.”

See Tenn. Code Ann. § 39-12-202(a) (1991) (amended, Acts 1995, ch. 460 (effective July 1, 1995)).

The element of premeditation requires a previously formed design or

intent to kill. Deliberation, on the other hand, requires that the killing

be done with a cool purpose - - in other words, that the killer be free

from the passions of the moment. Moreover, as indicated in our

recent opinion in State v. Brown, [836 S.W.2d 530, 543 (Tenn.

1992),] the fact that “premeditation can be formed in an instant” must

be viewed in contrast to the element of deliberation, which obviously

cannot be formed “instantaneously.” While it remains true that no

specific length of time is required for the formation of a cool,

dispassionate intent to kill, Brown requires more than a “split-second”

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of reflection in order to satisfy the elements of premeditation and

deliberation.

State v. West, 844 S.W.2d 144, 147 (Tenn. 1992) (citations omitted).

In bidding to overturn his premeditated murder conviction, the defendant argues in

his brief that “[t]here is simply no evidence in the record to support premeditation, deliberation or

intent on the part of the defendant to commit the offense of [p]remeditated [f]irst [d]egree [m]urder.

. . . [T]here is no evidence . . . that [the defendant] fired a gun or even had one with him.” As such,

the defendant’s argument fails to account for a statutory complicity theory of the defendant’s

vicarious liability for the premeditated homicide of the victim. “A person is criminally responsible

for an offense committed by the conduct of another if . . . [a]cting with intent to promote or assist

the commission of the offense, or to benefit in the proceeds or results of the offense, the person

solicits, directs, aids, or attempts to aid another person to commit the offense.” Tenn. Code Ann.

§ 39-11-402 (2003). If the evidence is sufficient to show that the active perpetrator premeditatedly

and deliberately killed the victim and that the defendant was criminally responsible for his act

pursuant to Code section 39-11-402, then that evidence establishes the defendant’s guilt of

premeditated murder. See State v. Berry, 141 S.W.3d 549, 565 (Tenn. 2004) (“A person found

criminally responsible for an offense committed by another is guilty to the same degree as the

principal offender.”). Indeed, our supreme court, in the defendant’s appeal from his original jury

conviction of premeditated first-degree murder, held “that the natural and probable consequences

rule can be used to sustain a defendant’s conviction for first-degree premeditated murder based upon

criminal responsibility for the conduct of a co-defendant.” State v. Howard, 30 S.W.3d 271, 273

(Tenn. 2000).

The intentional, premeditated, and deliberate nature of Claude Sharkey’s actions in

shooting the victim are best illustrated by his own testimony: “I asked for the money. [The victim]

gave it to me, and I still shot him.” See West, 844 S.W.2d at 147 (although “dispassionate intent to

kill . . . requires more than a ‘split-second’ of reflection,” no specific length of time is required for

the formation of a “cool, dispassionate intent to kill”). Sharkey procured a firearm and used it to kill

an unarmed, subdued victim. See State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997) (procurement

of weapon and use of deadly weapon upon unarmed victim mentioned as circumstantial indicia of

premeditation). Claude Sharkey, who testified that the robbery of the TGIF was his idea, evinced

calmness immediately after the murder by returning to his house and playing video games with his

friends. See id. (a defendant’s calmness after a homicide may reflect that the act was done

premeditatedly). Also significant as a reflection upon Sharkey’s murderous intent is his testimony

that, as he was leaving TGIF, he along with Wilson fired shots into a prone Preston Shea. Thus, we

are able upon our review of the evidence to discern beyond a reasonable doubt that Claude Sharkey

premeditatedly and deliberately killed Mr. Frieling.

The next issue is whether the defendant is guilty via a theory of criminal

responsibility. Although the defendant, Wilson, and the Sharkeys testified that the defendant never

left the car during the robbery, the jury heard eyewitness testimony that four intruders were involved.

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The defendant’s pretrial statement, admitted as evidence against him, articulates that the four persons

who went to TGIF that night were Wilson, the two Sharkeys, and himself. Moreover, in his

statement, the defendant said that the robbery was discussed among the men and that the guns were

present in the car before they arrived at TGIF. The defendant stated that, after parking the car, “we

went on and walked up there.” (Emphasis added.) He stated that he stayed in the back. In his

statement, he neither admitted nor denied that he possessed a weapon. He admitted that after the

robbery, he returned to the Sharkeys’ house and received $200 from the TGIF money, although a

total of approximately $5,400 was stolen.

To be sure, the defendant offered evidence that he was either unaware of or a non-

participant in the robbery and resulting crimes, but the jury, within its province as trier of fact and

final arbiter of the credibility of witnesses and the weight to be assigned to their testimony, was free

to reject the in-court claims of the Sharkeys, Wilson, and the defendant. Indeed, from the record

before us, impeachment of the Sharkeys and Wilson via their prior inconsistent statements, see Tenn.

R. Evid. 613(b), was palpable. Likewise, the jury was free to accredit the defendant’s pretrial

statement that he was the fourth intruder at TGIF on January 28, 1995. As such, in the light most

favorable to the state, this evidence evinces the defendant’s intent to promote or assist the

commission of the robbery, the target crime, and that he aided or attempted to aid the others in

committing the robbery. Based upon the trial court’s instructions on criminal responsibility for the

conduct of another, including instructions on the necessity of a finding that the resulting crime was

a natural and probable consequence of the target crime, the jury obviously accredited the evidence

inculpating the defendant and found that the homicide was a natural and probable consequence of

the robbery. The evidence supports such findings. The defendant’s conviction of premeditated first-

degree murder is affirmed.

II. Violation of Right of Confrontation.

Based upon Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620 (1968), the

defendant challenges as plain error the propriety of a police officer’s testimony about Kevin Wilson’s

pretrial statement. In Bruton, the Supreme Court established that a defendant’s constitutional right

to confront witnesses is violated when a co-defendant’s pretrial statement which incriminates the

defendant is introduced at a joint trial. Id. at 126, 88 S. Ct. at 1622.

When the officer in this case testified about the interrogation of the defendant, which

led to a written, inculpatory statement, the officer mentioned that the defendant’s statement was

prompted by telling the defendant that Wilson had given a statement implicating the defendant. The

officer then testified that the defendant asked to see Wilson’s statement. The court allowed the

officer to read portions of Wilson’s statement in which Wilson implicated the defendant in the

crimes. The trial court instructed the jury that Wilson’s statement should not be used to determine

the truth of Wilson’s accusation of the defendant; rather, it could be used to “demonstrate what

actions were taken by this officer to satisfy the questions of this defendant.”

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The defendant now argues that this procedure violated his right to confront Wilson

as a witness against him. He asks this court to address the issue by noticing plain error because, at

trial, he failed to object to the introduction of Wilson’s statement until after a substantial portion of

the statement had already been admitted into evidence. See Tenn. R. Evid. 103(a) (error may not be

predicated upon a ruling admitting evidence unless a substantial right of the party is affected and

“timely objection or motion to strike appears of record”).

The state advances the arguments that the claim is indeed waived because of the lack

of a timely objection and that, in any event, Bruton was not violated where the extrajudicial

statement was not offered to prove the truth of the matter therein asserted. The state cites as the

purpose of admitting Wilson’s statement the objective of demonstrating what prompted the

defendant’s own statement. Adding interest to the issue is the defendant’s calling as trial witnesses

not only Wilson, but also Morgan and the two Sharkeys. In his appellate brief, the defendant claims

that he was forced to call Wilson as a witness after the trial court admitted Wilson’s statement in the

state’s case-in-chief.

As noted, the defendant did not timely object to the introduction of Wilson’s

statement; however, Tennessee Rule of Criminal Procedure 52(b) authorizes the appellate court to

notice at any time an error affecting the defendant’s substantial rights, though not properly raised on

appeal, in the discretion of the appellate court “where necessary to do substantial justice.” See State

v. Brooks, 909 S.W.2d 854, 863 (Tenn. Crim. App. 1995) (double jeopardy issue recognized as plain

error even though technically waived by procedural default); State v. Thomas J. Faulkner, Jr., No.

E2000-00309-CCA-R3-CD, slip op. at 11-13 (Tenn. Crim. App., Knoxville, Apr. 17, 2001)

(appellate court declines to notice Bruton claims as plain error), perm. app. denied (Tenn. 2001).

The Tennessee Supreme Court has adopted standards for evaluating whether an alleged error is

proper for notice as plain error:

(a) the record must clearly establish what occurred in the trial court;

(b) a clear and unequivocal rule of law must have been breached;

(c) a substantial right of the accused must have been adversely

affected;

(d) the accused did not waive the issue for tactical reasons; and

(e) consideration of the error is “necessary to do substantial justice.”

State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 626,

641-42 (Tenn. Crim. App. 1994)). In Smith, the supreme court emphasized that “all five factors

must be established by the record before this Court will recognize the existence of plain error, and

complete consideration of all the factors is not necessary when it is clear from the record that at least

one of the factors cannot be established.” Id. at 283.

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The law has long recognized that “the right of cross-examination is included in the

[Sixth Amendment] right of an accused in a criminal case to confront the witnesses against him.”

Pointer v. Texas, 380 U.S. 400, 404, 85 S. Ct. 1065, 1069 (1965). Thus, in Bruton, the High Court

held that, in a joint trial where a co-defendant does not -- and cannot be compelled to -- testify, the

prosecution’s introduction of the co-defendant’s extrajudicial statement which incriminates the

defendant violates the defendant’s “right of cross-examination secured by the Confrontation Clause

of the Sixth Amendment.” Bruton, 391 U.S. at 126, 88 S. Ct. at 1622. The Bruton Court found

constitutional error despite the trial court’s instructions to the jury not to consider the co-defendant’s

statement in determining the guilt or innocence of the defendant. Id. at 136, 88 S. Ct. at 1628.

In the present case, we are underwhelmed by the state’s asserted justification for

introducing Wilson’s statement, which was that the state wished to explain the officer’s actions in

eliciting the defendant’s pretrial statement. We fail to see the materiality and relevance of explaining

the officer’s actions to the point of revealing the details of Wilson’s statement. See Tenn. R. Evid.

402 (“Evidence which is not relevant is not admissible.”). At any rate, assuming that Wilson’s

confession engendering the defendant’s pretrial statement was a relevant and material fact, it had

been established by the officer’s testimony to that effect; there was no apparent need to delve into

the substance of the statement. See id. 403 (relevant evidence may be excluded when the “probative

value is substantially 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 evidence”).1

Thus, having rejected an “other purpose” rationale for admitting Wilson’s

extradjudicial statement, we move to a Confrontation Clause analysis of the issue. In Crawford v.

Washington, 541 U.S. ___, 124 S. Ct. 1354 (2004), the United States Supreme Court held, “Where

testimonial evidence[, such as statements resulting from police interrogation,] is at issue, . . . the

Sixth Amendment demands what the common law required: unavailability and a prior opportunity

1

Because we view the introduction of W ilson’s extrajudicial accusations of the defendant to be irrelevant or,

in any event, inadmissible pursuant to Rule 403, we do not analyze the issue whether the Sixth Amendment allows an

“other purpose” exception to the general rule of excluding extrajudicial, testimonial statements made by an available

declarant or made in the absence of a cross-examination opportunity. See Crawford v. Washington, 541 U.S. ___, ___,

124 S. Ct. 1354, 1374 (2004). W e simply note that, although the hearsay rule would not be violated when the statement

is not offered to prove the truth of the matter asserted, see Tenn. R. Evid. 801(c), the Sixth Amendment’s ambit of

protection is not necessarily coterminous with evidence law when the proposed extrajudicial statement is testimonial in

nature, such as prior testimony at a preliminary hearing, before a grand jury, in a former trial, or resulting from police

interrogations. See generally Crawford, 541 U.S. at ___, 124 S. Ct. at 1374. W e question whether the non-hearsay use

of W ilson’s statement places the evidence beyond the reach of the Sixth Amendment. Likewise, although Tennessee

Rule of Evidence 404(b) authorizes the use of evidence besmirching the defendant’s character when the evidence is

offered for a relevant purpose other than showing the defendant’s propensity to offend, see Tenn. R. Evid. 404, we

question whether the rigors of the Sixth Amendment are satisfied merely because those of Rule 404(b) have been met.

See Crawford, 541 U.S. at ___, 124 S. Ct. at 1369 (“malleable [evidence-law] standard often fails to protect against

paradigmatic confrontation violations”). In the present case, the defendant’s claim of error is neither based upon the

hearsay rule nor Rule 404; rather, it is based upon the Confrontation Clause embodied in the Sixth Amendment.

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for cross-examination.” Id. at ___, 124 S. Ct. at 1374.2 Thus, our analysis is directed by the two

elements required for admitting against a defendant in a criminal trial a police interrogative

statement: (1) that the extrajudicial declarant was unavailable at the time of trial, and (2) that the

defendant on trial had a prior opportunity to cross-examine the declarant.

a. Unavailability.

In the present case, Wilson was obviously physically available; he appeared at trial

and testified on behalf of the defendant. The question that arises is whether he was rendered

unavailable because of the possibility that he might assert his privilege against self-incrimination.

See U.S. Const. amend. V; Breeden v. Independent Fire Ins. Co., 530 S.W.2d 769, 775 (Tenn. 1975)

(for purposes of applying the hearsay rule exception for statements made against pecuniary or penal

interests, court ruled that an extrajudicial declarant is unavailable who “is present in court and

refuses to testify on the ground of self-incrimination”). We know that, in the classic Bruton

scenario, the co-defendant/declarant is unavailable because he is a defendant in a joint trial, a

circumstance whereby the state is forbidden to force him to testify. See, e.g., Schmerber v.

California, 384 U.S. 757, 761, 86 S. Ct. 1826 (1966) (stating that the Fifth Amendment privilege

against self-incrimination under our United States Constitution “protects an accused only from being

compelled to testify against himself, or otherwise provide the State with evidence of a testimonial

or communicative nature”); State v. McAlister, 751 S.W.2d 436, 440 (Tenn. Crim. App. 1987); see

also State v. Gilbert, 751 S.W.2d 454, 463 (Tenn. Crim. App. 1988) (defendant electing to testify

in support of his defense and taking the witness stand waives his “constitutional rights, federal and

state, against self incrimination as to matters which were relevant, material and germane to the issues

which the jury would be required to resolve”).

In the present case, the state could have compelled Wilson to take the witness stand.

See State v. Dooley, 29 S.W.3d 542, 551 (Tenn. Crim. App. 2000) (witness who is not criminal

defendant may not assert privilege against self-incrimination to defeat compulsory process to testify

but is relegated to asserting the privilege in response to specific questions). Had he testified for the

state, Wilson would not have enjoyed the privilege against self-incrimination with respect to the

homicide on trial because, according to his testimony, he had been convicted of first-degree murder

in the killing of Mr. Frieling. It also appears that his conviction was the result of a guilty plea. See

Howard, 30 S.W.3d at 275 n.5. The upshot is that, having been finally convicted of the murder, he

apparently had no basis for a claim of privilege against self-incrimination. See State v. Barone, 329

Or. 210, 986 P.2d 5, 20-21 (Or. 1999).

Moreover, the burden of showing the unavailability of a witness typically rests upon

the proponent of the witness -- in this case, the state. See State v. James Roy McCoy, No. 01-C-01-

2

In addition to illustrating examples of “testimonial” evidence (testimony given at prior judicial proceedings

and statements resulting from police interrogation), Crawford defines a “testimonial” statement as one “made under

circumstances which would lead an objective witness reasonably to believe that the statement would be available for use

at a later trial.” Crawford, 541 U.S. at __, 124 S. Ct. at 1364, 1374.

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9103-CR-00090 (Tenn. Crim. App., Nashville, Nov. 21, 1991). All in all, the record fails to

establish that Wilson was unavailable, and as such, the state’s use of his statement accusing the

defendant of the crimes on trial was a priori a violation of the defendant’s Sixth Amendment rights.

b. Cross-examination opportunity.

In Crawford, the Supreme Court said that the use of extrajudicial, testimonial

statements, is dependent not only upon the unavailability of the declarant, but also upon the existence

of “a prior opportunity for cross-examination.” Crawford, 541 U.S. at ___, 124 S. Ct. at 1374

(emphasis added). Despite the requirement of a “prior” opportunity to cross-examine, we recognize

that, for nearly as long as Bruton has been on the books, the declarant’s ultimate live testimony in

the case on trial cures any possible Sixth Amendment violation. See generally Nelson v. O’Neil, 402

U.S. 622, 91 S. Ct. 1723 (1971).

In O’Neil, a federal habeas corpus action, the petitioner had been tried jointly with

a co-defendant whose extrajudicial confession was introduced by a police officer. The confession

incriminated the petitioner. Id. at 623-25, 91 S. Ct. at 1724-25. After the state closed its case-in-

chief at trial, the co-defendant testified in his own defense; he denied making the extrajudicial

statement and denied the truth of the matters asserted therein. Id. at 625, 91 S. Ct. at 1725. In

rejecting the petitioner’s bid to overturn his conviction based upon Bruton, the Court held that

“where a codefendant takes the stand in his own defense, denies making an alleged out-of-court

statement implicating the defendant, and proceeds to testify favorably to the defendant concerning

the underlying facts, the defendant has been denied no rights protected by the Sixth and Fourteenth

Amendments.” Id. at 629-30, 91 S. Ct. at 1727. See also McCracken v. State, 548 S.W.2d 340, 343

(Tenn. Crim. App. 1976) (Bruton “not applicable when the confessing defendant testifies and the

non-confessing defendant has an opportunity to cross-examine him”); State v. Eakins, 776 S.W.2d

134, 135 (Tenn. Crim. App. 1989) (Bruton “applicable only to joint trials in which there is admitted

into evidence a non-testifying co-defendant’s confession inculpating the defendant”).

O’Neil demonstrates that the appellate courts should evaluate the confrontation

problem from a perspective of the entire trial, viewing what transpired after the extrajudicial

statement was introduced and not merely analyzing the introduction of the statement in isolation.

In O’Neil, the state had closed its case-in-chief, and although O’Neil had no power to command his

co-defendant to testify, his cross-examination and confrontation interests were nevertheless served

by the co-defendant ultimately taking the stand and denying the truth of the statement attributed to

him, coupled with O’Neil’s opportunity to cross-examine the co-defendant. The co-defendant’s

testimony as described above removed his privilege against self-incrimination as a bar to O’Neil’s

cross-examination of him and allowed him to be cross-examined by O’Neil.

The same is true in the present case. Even though the state had closed its case-in-

chief that included evidence that might have flowered into a Bruton violation, the defendant called

and questioned the obviously available Wilson, as well as Morgan and the two Sharkeys. On direct

examination, Wilson (and the Sharkeys) testified favorably to the defendant and maintained that the

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defendant did not join in the scheme to rob TGIF. Although Wilson generally admitted making the

pretrial statement that had placed the defendant inside TGIF during the robbery and assaults, he

denied the truth of the statement. The defendant attempted to buttress Wilson’s trial testimony with

the strikingly similar testimony of the Sharkeys. Based upon O’Neil, the defendant’s interest in

confronting Wilson, as the author of the complained-of pretrial statement, was to elicit testimony

favorable to the defendant and in contradiction of the extrajudicial statement.

Thus, based upon O’Neil, we hold that the defendant’s calling and use of Wilson as

a favorable witness cured the pending Sixth Amendment violation. Alternatively, the admission of

Wilson’s statement was harmless error beyond a reasonable doubt. See Tenn. R. Crim. P. 52(a);

Cruz v. New York, 481 U.S. 186, 193, 107 S. Ct. 1714, 1719 (1987) (confrontation violation subject

to harmless-error analysis). Wilson and the Sharkeys testified and variously denied making portions

of their respective statements and/or advanced the claim that Morgan was the fourth intruder in

TGIF, not the defendant. The defendant affirmatively chose to insert this testimony as substantive

evidence of his innocence.3 In this situation, the use of Wilson’s pretrial statement in the state’s

case-in-chief constitutes harmless error beyond a reasonable doubt. As such, we decline to notice

plain error.

In passing, we are unpersuaded by the defendant’s claim in his appellate brief that he

was compelled to call Wilson and the Sharkeys to testify because the trial court had erroneously

admitted Wilson’s statement. See State v. Kerley, 820 S.W.2d 753, 757 (Tenn. Crim. App. 1991)

(“conclusory statements made by counsel in petitioner’s brief are not evidence”). Even though the

tactic to call these witnesses may have been disastrous, the witnesses were called amidst the Bruton-

O’Neil legal context above described. The officer’s testimony would not be reviewed in isolation,

and regardless of the defendant’s motive for calling the witnesses, the substance and effect of

Wilson’s live testimony, in particular, was destined to contribute to the Bruton analysis. Against this

context, the defendant’s motive for calling Wilson and the Sharkeys is not dispositive. At any rate,

the record does not establish the motive for calling Wilson as a defense witness.

III. Principles of Double Jeopardy As a Bar to Retrial

of the Counts of Felony Murder.

The defendant claims that principles of double jeopardy bar his retrial for and

convictions of felony murder. In the defendant’s original trial, he was indicted on three different

counts of first-degree murder for the killing of Mr. Frieling: premeditated murder in the first count,

felony murder committed in the perpetration of a robbery in the second count, and felony murder in

the perpetration of burglary in the third count. He was also charged with especially aggravated

robbery and conspiracy to commit aggravated robbery. See generally Howard, 30 S.W.3d 271. In

Howard, the supreme court explained the trial court’s treatment of the homicide charges in the

original trial:

3

The record includes a voir dire examination of the defendant wherein he acknowledged the advice of counsel

not to call W ilson and the Sharkeys as witnesses and affirmed his desire to call them, despite counsel’s contrary advice.

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At the conclusion of the evidence, with regard to the counts

of premeditated murder and felony murder, the court instructed the

jury to consider the charges in the following sequence: (1) first-degree

premeditated murder; (2) first-degree murder during the perpetration

of a robbery; (3) first-degree murder during the perpetration of a

burglary; (4) facilitation of first-degree premeditated murder; (5)

facilitation of first-degree murder during the perpetration of robbery;

and (6) facilitation of first-degree murder during the perpetration of

burglary. The court instructed the jury that after it reached a verdict

with regard to first-degree murder on any of the above theories, it

should proceed directly to deliberate on the remaining charges of

especially aggravated robbery and conspiracy. Thus, if the jury

convicted Howard of premeditated first-degree murder, they were not

to consider felony murder or facilitation of first-degree or felony

murder. . . .

....

The jury convicted Howard of premeditated murder,

especially aggravated robbery, and conspiracy to commit aggravated

robbery.

Id. at 274-75.

On remand, despite the absence of verdicts on the felony-murder charges in the

original trial, the defendant was again tried on the three first-degree murder charges, and the jury in

the second trial returned guilty verdicts in all three first-degree murder counts.

Double jeopardy principles embodied in the Fifth Amendment to the United States

Constitution protect defendants from twice being placed in jeopardy for the same offense by barring

(1) a second prosecution for the same offense following acquittal, (2) a second prosecution for the

same offense after conviction, and (3) multiple punishments for the same offense. North Carolina

v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076 (1969); Benton v. Maryland, 395 U.S. 784, 89

S. Ct. 2056 (1969); see also Tenn. Const. art. 1, § 10; State v. Denton, 938 S.W.2d 373, 378 (Tenn.

1996). Moreover, a trial proceeding that is terminated without an acquittal or conviction may bar

a subsequent prosecution for the same offense. For instance, when a mistrial is declared without the

consent of the accused and without the manifest necessity of a mistrial, retrial is barred. State v.

Skelton, 77 S.W.3d 791, 798-99 (Tenn. Crim. App. 2001).

Skelton adjudicated a double jeopardy issue very similar to the one at bar. Defendant

Skelton was tried on charges of attempted first-degree murder and aggravated assault, the charges

growing out of one assault committed upon one victim. Based upon Skelton’s guilty plea to

aggravated assault, the jury convicted him of that offense but reported that it had reached no verdict

on the attempt to commit first-degree murder charge. Id. at 794-95. Hearing that report, the trial

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court sua sponte discharged the jury. Id. at 795. Subsequently, the state sought to bring the

defendant to trial again for attempt to commit first-degree murder, and the defendant obtained an

interlocutory appeal to have the retrial barred on principles of double jeopardy. Id. at 796. This

court held that “the termination of [the original] trial proceedings, without a finding that a manifest

necessity existed to do so, and without the defendant’s request or consent, was improper [and was]

an acquittal for purposes of double jeopardy.” Id. at 797. The court barred Skelton’s retrial for

attempt to commit first-degree murder.

Skelton controls the present case. The defendant suffered the attachment of jeopardy

on the charges of felony murder in the first trial, and that proceeding ended upon the discharge of

the jury without verdicts being rendered. As in Skelton, the defendant had “virtually nothing to

object to” and cannot be deemed to have consented to the termination of the trial on the felony-

murder charges. See id., 77 S.W.3d at 800 (accused must have “realistic opportunity to object, prior

to a trial court’s sua sponte declaration of a mistrial”; appellate court will not presume a realistic

opportunity to object in the face of a record that inadequately reflects the original proceedings).

Furthermore, we discern in the record no hint of a manifest necessity to discharge the

original jury without verdicts on the felony-murder charges. We point out that in Howard, the

defendant’s appeal from his original trial, our supreme court commented that the trial court should

have allowed the jury to consider “all theories of first-degree murder.” Howard, 30 S.W.3d at 274

n.4. The court said that when a jury returns guilty verdicts on more than one theory of a single first-

degree murder, the trial court should then resolve the double jeopardy issue by merging the offenses

and imposing “a single judgment of conviction.” Id. The court noted that such a procedure

eliminates “the double jeopardy problem of retrying a defendant after a subsequent appellate opinion

reverses [the imposed conviction].” Id. (emphasis added). Essentially, on direct appeal from the

original trial, the supreme court saw no reason for discharging the jury without verdicts on the

felony- murder charges, and neither do we see a reason -- much less a necessity -- in the record

before us. Thus, in the present case, the double jeopardy “problem” must now be solved by vacating

the convictions of felony murder and dismissing those charges.

IV. Jury Instructions.

The defendant claims that the trial court erred in instructing the jury on the lesser-

included offense of second-degree murder. He argues that the court should have given the second-

degree murder charge suggested by this court in State v. Page, 81 S.W.3d 781 (Tenn. Crim. App.

2002). In Page, this court reversed a conviction of second-degree murder, a result-of-conduct crime,

because the trial court instructed the jury that a person acts knowingly if the person acts with merely

an awareness that his conduct is of a particular nature or that particular circumstances exist rather

than instructing that the person acts knowingly, for purposes of a result-of-conduct crime, only when

the person is aware that the conduct is reasonably certain to cause the result. Id. at 788. The Page

court suggested the following jury charge regarding the offense of second-degree murder:

Any person who commits second-degree murder is guilty of a crime.

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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 defendant unlawfully killed the alleged victim; and

(2) that the defendant acted knowingly.

“Knowingly” means that a person acts with an awareness that

[his][her] conduct is reasonably certain to cause the death of the

alleged victim.

The requirement of “knowingly” is also established if it is

shown that the defendant acted “intentionally.”

“Intentionally” means that a person acts intentionally when it

is the person’s conscious objective or desire to cause the death of the

alleged victim.

Id.

The defendant seems to argue not that the holding in Page was violated by the trial

court’s then-conventional, briefer charge on second-degree murder, but that the use of the Page

second-degree-murder charge would have facilitated a better chance of a diminished capacity

argument with respect to second-degree murder.

We need not fathom the argument too deeply, however, because the claim is moot.

The trial court rendered sequential jury instructions; the jury was instructed to consider first-degree

murder before considering the lesser-included offenses and that a conviction of first-degree murder

pretermitted consideration of any lesser-included offense. The jury is presumed to have followed

the court’s instruction. See State v. Shaw, 37 S.W.3d 900, 904 (Tenn. 2001). In this situation, when

the jury did not consider the offense of second-degree murder, any instructional error is harmless

beyond a reasonable doubt. See State v. Douglas Marshall Mathis, No. M2002-02291-CCA-R3-CD,

slip op. at 6-7 (Tenn. Crim. App., Nashville, Mar. 3, 2004), perm. app. denied (Tenn. 2004); State

v. Robert Faulkner, No. W2001-02614-CCA-R3-DD, slip op. at 30-33 (Tenn. Crim. App., Jackson,

Sept. 26, 2003). Thus, we reject the defendant’s claim of error in the trial court’s instructions on

second-degree murder.

V. Failure to Recuse.

The defendant claims the trial judge erred in failing to grant his pretrial motion for

the judge to disqualify himself from presiding over the defendant’s second trial. The defendant bases

his claim for disqualification merely upon the fact that the judge presided over the defendant’s first

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trial. He cites no authority to support the claim that a judge’s presiding over a previous trial that

resulted in a reversal on appeal ipso facto disqualifies the judge from presiding over the new trial.

Recusal is appropriate whenever a trial judge’s impartiality can be reasonably

questioned. Tenn R. Sup. Ct. 10, Code of Judicial Conduct, Canon 3(E)(1); State v. Cash, 867

S.W.2d 741, 749 (Tenn. Crim. App. 1993). A trial judge’s denial of a motion to recuse will be

upheld absent a showing of abuse of discretion. Cash, 867 S.W.2d at 749. Reasons which warrant

recusal include:

(a) the judge has a personal bias or prejudice concerning a

party or a party’s lawyer, or personal knowledge of disputed

evidentiary facts concerning the proceeding;

(b) the judge served as a lawyer in the matter in controversy,

or a lawyer with whom the judge previously practiced law served

during such association as a lawyer concerning the matter, or the

judge has been a material witness concerning it.

Tenn. R. Sup. Ct. 10, Code of Judicial Conduct, Canon 3E(1)(a), (b).

We find nothing in the record that suggests that the trial court abused its discretion

in overruling the motion to recuse. We know of no rule of law that compels the recusal of or

disqualifies a trial judge merely because the judge presided over a previous trial in the same case,

and the defendant has cited no law to that effect. Therefore, this claim of error is unsupported both

factually and legally.

VI. Cumulative Errors.

In the defendant’s next argument for reversal, he claims that cumulative errors require

reversal of his convictions. We have already reversed his convictions of felony murder based upon

principles of double jeopardy. Those principles in no way impugn the conviction of premeditated

murder. Moreover, we have discerned no reversible Confrontation Clause error or other error. Thus,

there exist no errors to accumulate.

VII. Sentencing.

In the defendant’s final issue, he claims that the trial court erred in imposing his first-

degree murder sentence to run consecutively to his previous sentences for especially aggravated

robbery and conspiracy to commit aggravated robbery.

When there is a challenge to the length, range, or manner of service of a sentence, it

is the duty of this court to conduct a de novo review of the record with a presumption that the

determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (2003). This

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presumption is “conditioned upon the affirmative showing in the record that the trial court

considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823

S.W.2d 166, 169 (Tenn. 1991). “The burden of showing that the sentence is improper is upon the

appellant.” Id. In the event the record fails to demonstrate the required consideration by the trial

court, review of the sentence is purely de novo. Id. If appellate review reflects the trial court

properly considered all relevant factors and its findings of fact are adequately supported by the

record, this court must affirm the sentence, “even if we would have preferred a different result.”

State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

In making its sentencing determination, the trial court, at the conclusion of the

sentencing hearing and after determining the range of sentence and the specific sentence, then

determines the propriety of sentencing alternatives by considering (1) the evidence, if any, received

at the trial and the sentencing hearing; (2) the presentence report; (3) the principles of sentencing

and arguments as to sentencing alternatives; (4) the nature and characteristics of the criminal

conduct involved; (5) evidence and information offered by the parties on the enhancement and

mitigating factors; (6) any statements the defendant wishes to make in the defendant’s behalf about

sentencing; and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-210(a),

(b) (2003); id. § 40-35-103(5) (2003); State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).

Consecutive sentencing may be imposed in the discretion of the trial court upon a

determination that one or more statutory criteria exist, and the criterion used in the present case is

that the “defendant is a dangerous offender whose behavior indicates little or no regard for human

life, and no hesitation about committing a crime in which the risk to human life is high.” Tenn.

Code Ann. § 40-35-115(b)(4) (2003). In State v. Wilkerson, 905 S.W.2d 933, 937-38 (Tenn. 1995),

limited by State v. Lane, 3 S.W.3d 456 (Tenn. 1999), the supreme court imposed two additional

requirements for consecutive sentencing under the dangerous-offender category -- the court must find

consecutive sentences are reasonably related to the severity of the offenses committed and are

necessary to protect the public from further criminal conduct.

The trial court’s application of the dangerous-offender category to the defendant was

expressed in terms of a strong denunciation of the actions of Claude Sharkey and Kevin Wilson, the

persons who shot the victims during the robbery. The trial judge spoke eloquently of these two men

appearing in court to testify and showing no remorse upon seeing Mr. Shea present in the courtroom.

Indeed, Sharkey’s and Wilson’s actions define them as dangerous offenders. The trial court,

however, did not differentiate between the defendant as an accomplice, on the one hand, and Wilson

and Sharkey, on the other.

This court has previously upheld the imposition of consecutive sentencing based upon

the following facts.

Each of the robberies was committed at a retail store open to the

public. The Defendant provided the gun for six robberies and one

attempted robbery. The Defendant himself pointed the gun at one of

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the convenience store clerks who was robbed. The same gun was

used in the final attempted robbery by the Defendant’s accomplice,

during which shots were fired and the accomplice was shot. There

is no question that armed robberies of convenience stores frequently

result in loss of life. The Defendant’s repeated participation in these

crimes earned him the sobriquet, “dangerous offender.”

State v. Kenny Carson Cockrell, Jr., No. W2002-00545-CCA-R3-CD, slip op. at 4-5 (Tenn. Crim.

App., Jackson, Apr. 2, 2003) (emphasis added); see also State v. Barry F. Braden, No.

M2001-00226-CCA-R3-CD, slip op. at 16-17 (Tenn. Crim. App., Nashville, Jul. 26, 2002) (although

the defendant had no prior adult criminal record, dangerous-offender classification upheld when,

during a five-day period, defendant and accomplices perpetrated two robberies, both of multiple

victims, with the use of a gun) perm. app. denied (Tenn. 2002). In the present case, however, even

in the version of events most favorable to the state, the defendant participated in only one robbery

and his role, compared to that of Claude Sharkey and Wilson, was relatively passive.

The presentence report in this case reveals that the eighteen-year-old defendant

possessed a criminal conviction record of aggravated burglary and a juvenile record of two

adjudications of aggravated burglary, two adjudications of theft, and an adjudication of possession

of marijuana with intent to sell. Thus, prior to the invasion of TGIF, the defendant had been

previously convicted or adjudicated guilty of four aggravated burglaries – burglaries of “buildings

. . . designed or adapted for the overnight accommodation of persons.” See Tenn. Code Ann. § 39-

14-401(1)(A) (2003) (defining habitation); id. § 39-14-103(a) (2003) (proscribing aggravated

burglary as burglary of a habitation). This court has characterized burglaries of habitations as

“particularly dangerous,” see, e.g., Ernest Lee Lands v. State, No. 03C01-9404-CR-00145, slip op.

at 4 (Tenn. Crim. App., Jackson, May 19, 1995), perm. app. denied (Tenn. 1995), and has

“recognized that the potential for bodily injury to the victim is great when [aggravated burglaries]

are committed,” State v. David Scarbrough, No. E1998-00931-CCA-R3-CD, slip op. at 25 (Tenn.

Crim. App., Knoxville, Jul. 11, 2001), perm. app. denied (Tenn. 2002). The defendant’s four

previous aggravated burglary offenses bespeak a lack of regard for human life.

Moreover, this court has previously upheld the imposition of consecutive sentences

despite the defendant’s guilt via a theory of criminal responsibility. State v. Carl Preston Durham,

No. E1999-02640-CCA-R3-CD, slip op. at 39 (Tenn. Crim. App., Knoxville, Apr. 12, 2001)

(consecutive sentences of life and fifteen years not excessive, disproportionate, or cruel and unusual

punishment, despite defendant’s passive role in the homicide), perm. app. denied (Tenn. 2001).

Given the defendant’s penchant for committing aggravated burglaries and the nature and

circumstances of the conviction offense in the present case, we are loath to conclude that the trial

court abused its discretion in imposing consecutive sentencing. We hold that the record supports the

sentencing determination.

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VIII. Conclusion.

We reverse the defendant’s convictions of felony murder and dismiss those charges.

We affirm his conviction of premeditated murder and the imposition of consecutive sentencing.

___________________________________

JAMES CURWOOD WITT, JR., JUDGE

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