State v. Aaron Winters/Derwin Thomas

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

MAY SESSION, 1999 FILED August 19, 1999 STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9802-CR-00053 ) Cecil Crowson, Jr. Appellee, ) SHELBY COUNTY Appellate Court Clerk ) V. ) HON. BERNIE WEINMAN, JUDGE ) AARON A. WINTERS and ) (FIRST DEGREE MURDER; ESPECIALLY DER WIN V . THO MAS, ) AGGRAVATED ROBBERY; CONSPIRACY ) TO COMMIT MURDER; ESPECIALLY Appellants. ) AGGRAVATED KIDNAPPING)

FOR THE APPELLANTS: FOR THE APPELLEE:

STEPHEN R. LEFFLER MICHAEL E. MOORE Counse l for Defendan t Winters Solicito r Gen eral 50 North Front Street, Suite 999 Memphis, TN 38103 PETE R M. C OUG HLAN Assistant Attorney General GLENN I. WRIGHT 2nd Floor, Cordell Hull Building Counsel for Defendant Thomas 425 Fifth Avenue North 200 Jefferson Avenue, Suite 300 Nashville, TN 37243 Memphis, TN 38103 JOH N W. P IERO TTI District Attorn ey Ge neral

PAUL F. GOODMAN Assistant District Attorney General

JENNIFER NICHOLS Assistant District Attorney General Criminal Justice Center, Suite 301 201 Poplar Avenue Memphis, TN 38103

OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE

OPINION The Defendants, Aaron A. Winters and Derwin V. Thomas, appeal as of right

their multip le con victions in the S helby C ounty Crim inal Cour t. In this a ppea l, Defen dants p resent th e following issues fo r review:

I. W a s t h e ev i d e n ce sufficient to c onvict th e Defendants (Defendant Winters’ Issue III and Defen dant T homa s’ Issues I and V);

II. W a s Defendant Winters entitled to have h is trial severed from that of Defendant Thomas (Defendant Winte rs’ Issue IV);

III. Did the tria l court err in admitting two photographs of the victims (Defe ndant Th omas’ Issu e II);

IV. Did the State violate the Brady rule (Defendant Thom as’ Issue III);

V. Did the trial c ourt err in admitting letters written by Defendant Thomas as statements against interest (Defenda nt Thom as’ Issue IV);

VI. Did the trial court err in allowing lay witness Alvinse Fitzge rald to testify about Defendant Thomas’ handwriting (D efendant T homas ’ Issue VI);

VII. Did the trial court err in admitting Defendant Winters’ statemen t to police and his letter to a third party (Defend ant W inters’ Issues I and II);

VIII. Did the trial cou rt err in a llowing the victim s’ fam ily mem bers to testify regarding the loss of the victims (Defendant Thomas’ Issue VII); and

IX. Were the aggravators found by the jury in imposing Defendant Thomas’ sentence supported by the evidence (D efendant T homas ’ Issue VIII).

After a ca reful review of the reco rd, we affirm the judgm ents of the trial court.

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Procedu ral History

On February 8, 1996, the Shelby County Grand jury re turned in dictme nts against Defendant Winters, Defendant Thomas, and Seko ur Ba rnes fo r espe cially aggravated kidnapping (two cou nts each), co nspiracy to com mit mu rder (two c ounts each), especially aggra vated robbe ry, and first degree m urder (two cou nts each). Defen dants Win ters an d Th oma s were tried together. The State asked for a severance of Barne s which w as gran ted. W inters’ first attorn ey filed a m otion to sever but was later allowed to w ithdraw from the case. W inters’ second a ttorney apparently did not pursue that motion.

The jury foun d Def enda nt W inters g uilty of two co unts o f espe cially aggrava ted kidnapping and two counts of first degree murder. The jury found Defendant Thomas guilty of two counts of especially aggravated kidnapping, one count of especially aggravated robbery, and two counts of first degree m urder. During the sentencing phase of the trial, the trial court allowed the following two aggravating circumstances to be s ubmitted to the jury: that the murde rs were committed while D efend ants w ere en gage d in committing especially aggravated kidnaping and th at the m urder s were com mitted while Defendants were engaged in especially aggra vated robbe ry.

Defendant Winters received two consecutive sentences of life with the possibility of parole for the murder convic tions. He was also sentenced to two 25 year sentences on the kidnapping convictions to be served concurrently with each other and the murder convictions. Defendant Thomas received two consecutive

-3-sentences of life with out pa role for each murder conviction. He was also sentenced to 25 years on each kidnapping conviction and 25 years on the robbery conviction to be served concurrently to each other and the mu rder con victions. Bo th Defe ndan ts filed tim ely notic es of a ppea l.

Factual Su mma ry

On May 30, 199 5, seventeen year old Ira W est an d sixtee n year old Ma lik Rashad Asberry were killed in an abandoned house in Memphis, Tenn essee . Both were shot at point blank range.

Kenji Lewis testified that he spoke with the victims earlier that day and that they said they were going to meet Defendant Winters and smoke dope. There was testimony that in reality, Defendant Winters was angry at the vic tims fo r calling his mother’s ho use and d isturbing her.

Rodney Edwards, a fourteen year old boy who sold drugs for Defendant Thomas, testified that he met Defendant Thomas on the afternoo n of the m urder to drop off drug money. He then asked Defendant Thomas if he would have a smoke with him and Defendant Thomas agreed. A car drove up at that mom ent with Defendant Winters , Sekour Barnes, the two victims, and two other men inside. Edwards, the two Defendants, the two victims , and B arnes then p rocee ded to walk to an abandoned house which was frequented by drug dealers and users.

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Edwards testified that he heard Defendant Thomas tell Defendant Winters, “Let’s get these n_ _ _ _ _s in the ho use so we can kill them.” The Defendants went around to the front entrance, and Defendant Winters soon returned brandishing a gun at the two victims . Defendant Winters then began to force the victims into the abandoned house through a side window. One of the victims said he w ould give them anything he had on him, but he was grabbed by the neck and physically forced into the house through the window by Barnes. Barnes never actually entered the house. At some point, victim Asberry’s necklace was taken from h im. Ed wards did not enter the house, but he did hear the victims begging and pleading for their lives. Edwards then heard four shots and he and Barnes ran in opposite directions from the abandoned house.

A neighbor found the bodies lying one on top of the other in the kitchen. The kitchen was used as a bathroom by drug users and was covered with human waste. Victim Asberry’s shoes had been stolen. One victim had been shot in the head and the othe r had be en sho t in the nec k.

After receiving a crimestoppers tip, investigators searched Room 230 of a nearby Mote l 6. This was th e room Defe ndan t Tho mas lived in a nd oth er peo ple frequented. Defendant Thomas’ wallet and victim Asberry’s ne cklace were found in the same drawer in Room 230.

Defendant Winters was present when the search was conducted at the Motel 6. He told police he knew about the murder of two juveniles, and he took them to a vacant house where the murder weapon was hidden. Winters was then taken in for

-5-questioning, and he admitted to being at the scene when the victims were killed. He described how ea ch victim w as sho t, and how someone in the room remo ved vict im Malik’s shoes. He claimed he had nothing to do with the murders, but was o nly a witness to the murders.

Terrance Fitzgerald testified that he was with the Defendants after the murder and that he heard Defendant Thomas talking to Defendant Winters about killing two boys. Fitzgerald overheard Defendant Thomas say that one was shot in the neck and the other in the head. Defendant Thomas was talking about the struggling of one of the victims and how he had to be shot more than once. Fitzgerald also testified that D efend ant T hom as too k his revolver with him w hen h e left the Mote l 6 on the morning of the murders.

Alvinsea Fitzgerald, the sister of Terrance Fitzgerald and former girlfriend of Sekour Barnes, testified that she knew Defendant Thomas because a friend of hers had previously dated Defendant Thomas. Her friend and D efenda nt Tho mas w rote letters to each other and Fitzgerald testified that she read Thomas’ letters and knew his handw riting. Soon after the murders, she began receiving anonymous threatening letters te lling her to keep her brother Terrance quiet. She recognized the handwriting as being that of Defendant Thomas.

Sekour Barnes te stified a t trial as to severa l letters g iven to h im in jail b y Defendant Thomas through an intermediary. Th e letters he discus sed were reviewed by a State handw riting exper t and de termine d to be written by Defendant Thomas. The letters were written to Mike Boyland, Tadarrio Britt (a.k.a. Tech 9), as

-6-well as men nicknamed G. W ayne, Yo Yo, and Crazy Legs. In each of these letters, Defendant Thomas tells the recipient what to say, in detail, about their know ledge of the murders. The letters ask recipients to mem orize their trial te stimon y, to contact him after they speak with investigators, and to destroy the envelopes but keep the letters to prepa re for th eir testim ony. T he lette rs also prom ise he lp in the future for this te stimo ny. Th e trial court adm itted the letters into evidence as statem ents ag ainst intere st.

I. Sufficiency of the Evidence

(Defen dant T homa s’ Issues I and V; D efenda nt W inters’ Issue III) A. Murder conviction as to Defendant Thomas

Defendant Thomas alleges that the evidence was insufficient to con vict him of murder because the proof only placed him at the scene of the crim e. (Sufficiency of the evidence as to Defendant Tho mas ’ robbe ry conv iction is discussed in Issue

IX.)

When an accused challenges the sufficiency of the convicting evidence, the standard is whether, after reviewing the evidence in the light most favorable to the prosection, any rational trier of fact could h ave found the essential elements of the crime beyond a reaso nable d oubt. Jackson v. Virgin ia, 443 U.S. 307, 319 (1979 ). This standard is applicable to findings of guilt predicated upon direct evidence, circumstantial evidence or a combina tion of direct and circum stantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). On appeal, the State is entitled to the strongest legitimate view of the evidence and all inferences

-7-therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Because a verdict of guilt removes the presumption of innocence and replaces it with a presumption of guilt, the accused has the bu rden in this court of illustrating why the evidence is insufficient to support the verdict returne d by the trier o f fact. State v. Tug gle, 639 S.W .2d 913 , 914 (T enn. 1982); State v. Grace, 493 S.W.2d 474, 476 (Tenn. 19 73).

Questions concerning the credibility of the witnesses, the weight and value to be given the evidence, as well as all factual issues raise d by the evidenc e, are resolved by the trier of fa ct, not this co urt. State v. Pappas, 754 S.W .2d 620, 623 (Tenn. Crim. A pp.), perm. to appeal denied, id. (Tenn . 1987). N or may this cou rt reweigh or reevalu ate the ev idence . Cabbage, 571 S.W .2d at 835. A jury verdict approved by the trial judg e accre dits the Sta te’s witnesse s and re solves all co nflicts in favor of the State. Grace, 493 S.W .2d at 476 .

Moreover, a criminal offense may be established exclusively by circumstantial evidence. Duchac v. State, 505 S.W .2d 237 (Tenn . 1973); State v. Jones, 901 S.W.2d 393, 39 6 (Ten n. Crim. A pp. 199 5); State v. Lequire , 634 S.W.2d 608 (Tenn. Crim. App. 19 81). Ho wever, be fore an a ccused may be convicted of a criminal offense based upon circumstantial evidence alone, the facts and circumstances "must be so stro ng and cogen t as to exclud e beyo nd a re ason able doubt every other reaso nable hypothesis save guilt of the defendant." State v. Crawford, 225 Tenn. 478, 470 S.W .2d 610 (197 1); Jones, 901 S.W.2d at 396. In other words, "[a] web of guilt must be woven around the defendant from which he cannot escape and from which facts and circumstances the jury could draw no other reasonable inference

-8-save the guilt of the defendant beyond a reaso nable d oubt." Crawford , 470 S.W.2d at 613; State v. McAfee, 737 S.W .2d 304 , 306 (T enn. C rim. App . 1987).

Defendant Tho mas told De fenda nt W inters, “L et’s get the se n_ _ _ _ _ s in the house so we ca n kill them .” Defendant Thomas then went to the front entrance of the house while the other boys forced the victims through the window, where they were ultimately murdered. Defendant Thomas had a conversation with Defendant Winte rs which was overheard by Terrance Fitzgerald. In that conversation, Defendant Thomas recalled that one of the boys was shot in the neck and the other in the head. Defendant Thomas also said that one of the victims struggled after he was shot and had to be shot again. Fitzgerald also testified that before Defendant Thomas left the Motel 6 on the morning of the murders, Thomas took his revolver with him. W e find that there was certainly ample evidence that Defendant Thomas shot the victims in the abandoned house. Furth ermore, nu merous letters were admitted into evidence written by Defendant Thomas, telling witnesses to memorize the “scripts” he gave them about what to say in regards to the murders. A rational jury could ha ve believe d that Defend ant T hom as did kill the vict ims. T his issu e is without m erit. B. Anthony question

The issue presented for our consideration here is whether the Defendants’ convictions for aggravated kidnapping violate due process and the mandate of State v. Anthony, 817 S .W .2d 29 9 (Te nn. 19 91), be caus e thes e offen ses w ere m erely incidental to the primary purpose of committing first degree murder (and aggravated robbery as to De fendan t Thom as).

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Addressing the due pro cess co ncerns of wheth er mov emen t incidenta l to an underlying crime is sufficient to support a separate kidnapping conviction, the appe llate co urts of th is state have re cogn ized th at inhe rent in every rape, robbery, and murder is a period of confinement or restraint. Thus, the courts are left to determine "whether the confinem ent, movement, or detention is essentially incidental to the accompanying felony and is not . . . sufficient to support a separate conviction for kidnap ping . . . in and of itself . . . ." Anthony, 817 S.W.2d at 306. In an opinion reiterating the princip les of Anthony, our supreme court held that the focus of an Anthony inquiry is upon the "purpose of the removal or confinement and not the distance or duration . . . ." State v. Dixon, 957 S.W.2d 532, 535 (Tenn. 1997). If the purpose of the removal or confinement is "not necessary for the commission of the [underlying felony]," the kidnapping is not inciden tal to the oth er offens e. Id. We note, however, that there is no bright-line rule for determining whether the removal or confinement of a victim to another place is part of the acco mpan ying felony . See State v. Joseph Tipler, C.C.A. No. 02C01-9611-CR-00384 , fn. 4, She lby Cou nty (Tenn. Crim. A pp., Jack son, Jan . 30, 1998 ), perm. to appeal denied (Tenn., Oct. 12, 1998) The te st remain s a subje ctive one, b ased u pon the facts of ea ch case . Id. If the "movement or confinement was beyond that necessary to consummate the [underlying offense]," the next inquiry is "whether the additional movement or confinem ent: (1) prevented the victim from summoning help; (2) lessened the defen dant's risk of detection; o r (3) created a significant danger or increased the victim's risk of harm ." Dixon, 957 S.W.2d at 535 (citing Anthony, 817 S.W .2d at 306). Affirmative answers to these inquiries support affirmance of a contemporaneous kidnapping. See, e.g., Dixon, 957 S.W.2d at 535. Applying the due process principles announced in Anthony and un der the g uidelines of Dixon, we conclude

-10-that the separate convictions for first degree murder as to both Defendants, aggravated robbery as to Defendant Thomas, and aggravated kidnapping as to both Defen dants in th e case before u s was p roper.

Defendant Thomas

Defendant Thomas argues that his convictions for especially aggravated kidnapping and especially aggravated robbery were based on a single criminal episode. He does not allege that his convictions for first degree murder and espe cially aggravated kidnapping were one episode. In Anthony, the suprem e court noted that every robbery invo lved some confineme nt and, therefore , necessarily included a kidnapping . It ruled, however, that the leg islature did not intend for e very robbery to also be a kidnap ping. Anthony, 817 S.W.2d at 306. The supreme court explained the limitation of the Anthony rule in Dixon as follows:

The Anthony decision should only prevent the injustice which would occu r if a defendant co uld be convicted of kidnaping where the on ly restra int utilized was that necessa ry to complete the act of rape or robbe ry. According ly, any restraint in addition to that wh ich is necessa ry to consummate rape or robbery may su pport a separa te convictio n for kidna pping.

Dixon, 957 S.W .2d at 534 -35.

We first find that the movement of victim Asberry was beyond that necessary to consum mate esp ecially aggravated robbery. Defen dant Tho mas cou ld have robbed victim Asberry outside of the vacant house. We next find that the act of forcing victim Asberry into the house effectively prevented the victim from summoning help, lessened Defendant Thomas’ risk of detection, and increased the risk of harm to the victim. See, e.g., Dixon, 957 S.W .2d at 535 . We conclude that

-11-the evid ence was c ertainly sufficie nt to wa rrant se parate convic tions fo r espe cially aggrava ted robb ery and e specially a ggravate d kidnap ping.

Defenda nt Winte rs

Defendant Winters specifically argues that the “evidence at trial presents a scen ario where the kidnapping[s] [were] purely incidental to the offense[s] of murde r.” Althou gh De fenda nt Th oma s did not specifically raise this issue as relative to the murder convictions, the followin g analys is certainly ap plies to him as well. W e believe the two acts of kidnapping were significant enough, in and of themselves, to warrant indepe ndent p rosecu tion. The murders could have been committed outside the vacant house. After refusing to obey the order to get inside the house, the victims were forcibly moved where the Defendants wanted them to go which was inside the house. We also find that bringing the victims into an abandoned house where they would be out of sigh t was clea rly intended to preven t the victims from summoning for help an d to lesse n Defe ndants ’ chance s of getting caught. T here was testimony that the victims pleaded for their lives before they were killed. According to that testimony, these pleadings were barely audible outside the house, further insuring that Defendants’ would not be caught. Likewise, being inside the vacant house certainly incr eased the victims ’ risk of harm . The record is clear that Defendants’ actions were not necessary for the commission of the murders. As such, separate convictions for first degree murder and especially aggravated kidnap ping we re appro priate. Th is issue is w ithout me rit.

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II. Severance

(Defendant Winters’ Issue IV)

Defendant Win ters cla ims in this issu e that th e trial co urt erre d by de nying h is motion to sever his case from that of Defendant Thomas and that this denial was prejud icial. Defen dant W inters’ firs t attorne y filed a m otion to sever o n Apr il 10, 1996. The attorney withdrew from the case on May 8, 199 7, and it appears from the record that Defendant Winters’ second attorney did not pursue the motion. No argument was ever heard on the matter, and no order was entered by the trial court either gra nting or de nying the motion .

First, because this issue was not included in Defendant Winters’ motion for new trial, it has been waived for purposes of appeal. A criminal defendant may make an appeal of right if the issue “was specifically stated in a motion for a new trial; otherwis e such issues w ill be treated a s waived .” Tenn . R. App . P. 3(e). Second, it is a well-established rule of law that the failure to bring a motion to the attention of the trial court constitutes a waiver of the issue. See State v. Locke, 771 S.W.2d 132, 138 (T enn. Crim. App. 19 88), perm. to appeal denied (Tenn. 198 9); State v. Auco in, 756 S.W.2d 705, 709 (Ten n. Crim. A pp. 198 8), cert. denied, 489 U.S. 1084, 109 S. Ct. 1541, 103 L. Ed. 2d 8 45 (198 9); State v. Kinner, 701 S.W.2d 224, 227 (T enn. C rim. App .), perm. to appeal denied (Tenn . 1985); State v. Burtis , 664 S.W.2d 305, 310 (Tenn. Crim. A pp.), perm. to appeal denied (Tenn . 1983). It was the responsibility of Defendant Winters to pursue the motion and obtain a ruling by the trial court on the mo tion. Accordingly, this issue is waived for this reason as well.

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III. Admissibility of Photographs

(Defen dant T homa s’ Issue II)

Defendant Thomas alleges in this issue that the trial court erred in admitting certain photograp hs of the victims. Th e trial court found the ph otographs w ere not particularly gruesome and were necessary for the State’s case.

Rule 403 of the Tennessee Rules of Evidence states that relevant evidence may be excluded if its probative value is substantially outweighed by danger of unfair prejudice. Rule 40 1 states th at eviden ce is releva nt if it has a ten dency to make the existence of any fact that is of cons equence to the determ ination of the action m ore proba ble or less probable than it would without the evidence. Tenn. R. Evid. 401. Whether to admit relevant p hotograph s is within the discretiona ry authority of the trial court and will not be reversed absent a clear showing of an abuse of discretion appearing on the fac e of the rec ord. See State v. B anks, 564 S.W.2d 947, 949 (Tenn. 19 78).

The photographs in que stion s how th e two vic tims in a filthy kitchen lying next to each other. We find the photog raphs to be relevant for several re asons . First, they show where the two boys w ere kille d. The filth and deca y in the k itchen is evident from th e pictu res. T his sup ports th e State ’s reasoning that the two victims would not be in that room willingly, but were rather forced into the room at gun point. Second ly, the photographs show how the boys were killed, in that Ira West must have been killed before Malik Asberry because Asberry is lying on We st’s arm. T his corroborates Defendant Winter’s statement to police about the order in which the

-14-boys were k illed. Th ird, the p hotog raphs show prem editatio n. W hile the deadly wounds themselves are not clearly shown, it is evident the boys were shot in the head, ind icating the shoote r intende d the bo ys to die.

W hile there is blood in one of the photographs, the wounds themselves are not shown. The photographs are not pleasant; however, they are not the type of pictures that so inflam e a jury as to make the prejudice of their admission outweigh their prob ative value . Therefore, we find the trial court did not abuse its discretion in adm itting them . This issu e is withou t merit.

IV. Brady violation

(Defen dant T homa s’ Issue III)

In this issu e, De fenda nt Th oma s claims that the State w ithheld certain exculpatory material from the defense until trial. Specifically, Defendant Thomas argues that a police report containing a typed s heet o f crime stopp er tips s hould have been provided to the defense. The tip he focuses on is one that allege s that “Yo,” a fourteen year o ld black male, had blood on his pants at the rear of the vacant house at the time of the murde r, and tha t William “Booty” D avis was seen a rmed w ith a .38 caliber pistol the da y of the murd ers. The anonymous tip stated that the victims had “violated the code” and were therefore killed.

In Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215 (1963), the Supreme Court held that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the

-15-evidence is material either to guilt or to punishm ent, irrespective of the good faith or bad faith of the pr osecu tion." See also Hartm an v. State , 896 S.W.2d 94, 101 (Tenn. 1995). In order to establish a due process violation under Brady, four prerequisites must b e met:

1. The defendant must have requested the information (unless the evidence is obviously exculpatory, in which case the State is bound to release the information whether reques ted or no t);

2. The State mu st have su ppress ed the info rmation ;

3. The information must have been favorable to the accused; and

4. The info rmation must h ave bee n mate rial.

State v. Edg in, 902 S.W.2d 387, 389 (Tenn. 1995). The burden of proving a Brady violation rests with the defen dant, and the violation must be p roven by a prepon deranc e of the ev idence . Id.

In determ ining th e ma teriality o f undis close d inform ation, a review ing court must establish whethe r "in [the] abs ence [o f the inform ation] [the defendant] received a fair trial, understood as a trial resulting in a verdict worthy of confiden ce." Kyles v. Whitley, 514 U .S. 419, 4 34, 115 S. Ct. 1555 , 1566, 13 1 L. Ed. 2 d 490 (1 995). In other words, eviden ce is co nside red m aterial o nly if there is a reaso nable p robability that had the evidence been disclosed to the defense, the results of the proceeding would h ave bee n different. Edgin , 902 S.W .2d at 390 -91 (citation omitted) .

Genera lly, if there is only a delayed disclosure of information, in contrast to a comp lete failure to disclose exculpa tory inform ation, Brady normally does not apply,

-16-unless the delay itself causes prejudice . Sylvester S mith v. Sta te, C.C.A. No. 02C01-9801-CR-00018, Shelby County (Tenn. Crim. App., Jack son, Dec. 28 , 1998), perm. to appeal granted (Tenn ., July 6, 199 9); State v. Sydney M. Ewing, C.C.A. No. 01C01-9612-CR-00531, Davidso n Cou nty, (Ten n. Crim. A pp., Nashville, June 19, 1998), vacated and reentered, (Tenn. Crim. App., Nashville, Aug. 18, 199 8); State v. Jim Inman, C.C.A. No. 0 3C01-92 01-CR-00020, Campbell County (Tenn. Crim. App., Knoxville, Nov. 23, 19 93) perm. to appeal denied, (Tenn., Knoxville, April 4, 1994). In this case it is clear tha t the de lay in pro viding th e repo rt did no t in itself cause prejudice.

In the present case, Defendant filed a Motion for Exculpatory Evidence which was granted by the trial court. However, the written police rep orts were not given to Defendant Thomas until after the testimony of Captain Houston at trial. In the reports was a crimestoppers tip page where an alleged eyewitness identified two individu als as be ing invo lved in th e hom icides . The p olice report provid es in pertinent part as follows:

The shooters involved in the drive by shooting live in the Longview Heights area. The murder victims found had violated the code and ha d to be be aten up . Involved in the double homicide are:

1. “Yo”, male black, 14 years old, 4'3", looks like a baby, believe to live on Effie Street in a Duplex. Caller stated that he sa w “Yo” with blo od on his wh ite pants directly in the rear of the vacan t house wh ere the bodies were discove red (Effie).

2. William “Booty” Davis, male black, 16 years of age, unknown home address is the shooter who was last seen armed with a .38 caliber pistol. He is under Juven ile Court house arrest and can be easily found.

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Although this issue will be determined on the basis of prejudice rather than a strict Brady analysis, we emphasize that the police reports, containing the pertinent crimestopper tip, should have been turned over by the Sta te to the defe nse prior to trial. The withheld information in this case was clearly favorable to the defendant since, on its face, two totally different suspects are implicated in the murders. Norm ally the defen se sho uld have had the opportu nity to cond uct further and possible fruitful inve stigatio n prior to trial rega rding th e lead s given in a crimes toppers tip.

The State argues that the reports were not “material” beca use th ey wou ld have been inadm issible at trial. The State is correct in that the reports themselves, as police reports, w ould ha ve been hearsa y inadm issible at trial. See Tenn. R. Evid. 801(c) and 803(8 ), Advisory C omm ission C omm ent. The primary problem with the admis sibility of police reports is that the report is hearsay made up of opinion or conclusion not base d on pe rsonal kn owledg e. See McBee v. Williams, 405 S.W.2d 668, 671 (Tenn. 1966). In addition, the crimestopper tip, even thoug h con tained in a police report , is not admissible as a business record where the declarant is not under a busine ss duty to g ive the inform ation. See State v. Allen, 692 S.W.2d 651, 653 (Tenn. Crim. App. 1985). However, the State is wrong in its assumption that because the report would have likely been inadmissible at trial that it was therefore not material information. The prosecution’s duty to disclose is not limited in scope to “compe tent evidence” o r “admissible evide nce.” The d uty extend s to “favo rable

-18-information” unknown to the accused. See State v. Mars hall, 845 S.W.2d 228, 232-33 (Te nn. Crim . App. 19 92).

Nevertheless, since the information was revealed to defendant, albeit during trial, we must determine whether the delayed disclosure was prejudicial. As discussed in Issue I, the evidence presented at trial against Defendant Thomas was overwhelming, and we do not find that disclosure would have altered the outcome in Defendant Thomas’ case. W e note for the record that defense counsel made no effort at the hearing for motion for new trial to sh ow tha t the evid ence was m aterial. Defendant put on no witnesses to support the allegations in the crimestopper tip and no one testified as to what efforts, if any, were made to pursue the alleged “leads” of the named individuals in the tip, and whether anything of value came from that effort. The refore, D efenda nt is not en titled to relief on this issue.

V. Admiss ibility of Letters

(Defendant Thomas’ Issue IV)

In this issue, Defendant Thomas contests the admissibility of letters he w rote while he was incarcerated. The letters were written to various people telling them what to say about the murders and his own whereabouts on the day of the murde r. They conta in specifics about the m urder , includ ing de tails witn esse s are s pecific ally supposed to remember as well as things witnesses are suppose d to “forget.” They were admitted against Defendant Thomas, who did not testify at trial, as statem ents agains t interest. See Tenn. R . Evid. 804(b)(3).

W e note that we are un able to locate a specific motion in the record regarding the suppression of the letters or an order granting or denying such motion.

-19-Appa rently though there was a pre-trial hearing on the matter held January 12, 1998. After reviewing the transc ript from the hearing , it is unclear whether Defendant Thomas’ objection to the admissibility of the letters was based on relevancy or hearsay. Regardless, the trial court ruled that the letters would be admissible at trial as statem ents ag ainst intere st. See Tenn. R. Evid. 804(b)(3). At trial, Defendant Thom as did no t object to the introductio n of the lette rs.

After a thorough review of the letters, we find that they were not offered for the truth of the matter asserted (and thus not qualifying as hearsay), but to show that Defendant Thomas lied in an attempt to cover up his participation in the murder. See Tenn . R. Evid. 8 01(c). In oth er words , the record reflects tha t the State essentially intended to prove th e falsity of the le tters, not the truthfulnes s of the matters asserted in them. Even if the letters could be characterized as hearsay, they could have been properly admitted as admissions agains t a party-op ponen t. See Tenn. R. Evid. 803(1.2)(A). Although the trial court erred in its reasoning admitting the letters into evidence, we find the letters were clearly admissible for the reasons stated above. We also fin d that th e letters were r elevan t beca use a jury cou ld certain ly have infe rred that Defendant Thomas was attempting to get potential witnesses to perjure themselves to show that he was innocent of the charges against him. Also, Defendant’s other allegations within this issue, that the State used the wrong process for ad mission of the letters and that some letters never reached the intende d recipien ts, are m eritless.

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VI. Lay Witness’s Identification of Defendant’s Handwriting

(Defen dant T homa s’ Issue V I)

Defendant Thomas alleges that the testim ony of A lvinsea Fitzgera ld identifyin g his handwriting in threatening letters he wrote to her was improper as the proper foundation was not laid.

A lay witness must be familiar with the signature and handwriting of the maker by personal exp erience in orde r to identify the make r of a handwriting. Tenn. R. Evid. 901(b)(2 ); State v. Harris , 839 S.W .2d 54, 70 (Tenn . 1992). The competency of the witn ess to identify p articular han dwriting is a ma tter for th e trial jud ge’s discretion . Id. at 70.

Ms. Fitzgerald lived with Defendant Thomas, his girlfriend, and others for several month s in 1993 and 19 94. Durin g that time , she would be present when Defendant Thom as would w rite “love” letters to his girlfriend. Ms. Fitzgerald testified that she saw him write these letters “numerous” times. She also testified that she would read these letters as well. However, on cross-examination, she testified that she sa w him w rite his girlfriend only one or two time s.

The Rules o f Evidenc e do no t list a minimum number of times that a witness must have seen a particular h andwritin g before being ab le to testify as a lay witness regarding that hand writing. In the instant case, Ms. Fitzgerald lived in the same house with D efend ant T hom as, sa w him write lette rs to his girlfriend , and p ositively identified Defe ndan t Tho mas ’ hand writing a t trial. We find that the trial court did not

-21-abuse its discretion in allowing Fitzgerald to give her opinion that the threatening letters were in Defen dant T homa s’ handw riting. This iss ue is witho ut merit.

VII. Admission of Statement to Police and Redaction

(Defen dant W inters’ Issue I and II) A. Winters’ Statement

In this issue, D efenda nt W inters first alleg es that his statement should not have been admitted into eviden ce. Specifically, Defendant Winters concedes it was proper to read the statement to the jury, bu t alleges it wa s error to allow the ju ry to take it into the deliberation room because it would place undue emphasis on the statem ent to the e xclusion o f all other evid ence.

In the statement, Defendant Winters admits his presence at the crime scene but claims he was just a bystander. The statement was properly admitted as an admission of a party o ppone nt. See Tenn. R. Evid. 803(1.2)(A). Furthermore, the trial court properly admitted the statement as substantive evidence. Defendant Winters’ claim that the jury would “improperly” use the evidenc e is wh olly unsupported by the rec ord. The jury was prope rly instructed and is pre sume d to have followed its in structions . See State v. Blackmon, 701 S.W.2d 228, 233 (Tenn. Crim. App . 1985). B. Redaction of Winters’ Letter

Defendant Win ters ne xt argu es tha t the trial c ourt er red in redacting a portion of a letter he w rote to a third party. He claims that the redacted version prejudiced

-22-him in the eyes of the jury becaus e it turned an excu lpatory statement into a “virtual confession.” The original version reads as follows:

I Aaron Winters [Defendant] admit that me and Rodney Edwards was at the crime scene and S ekou r Barn es did n’t have anything to do w ith it and was not around at the time that this happen. And Derwin V. Thomas [Defendant] was the trigger man and said he was going to have me and Rodney Edwa rds killed if we said anyth ing. And this was given without any threats of promises.

The redacted version is as follows:

I Aaron W inters [Defendant] admit that me and Rodney Edwards was at the crime scene and Seko ur Ba rnes d idn’t have anything to do with it and was not around at the time that this happ en. And this was g iven witho ut any thre ats or promises.

The statement of a non-testifying co-defendant implicating another defendant violates the constitutional rights of the latter in a joint trial. Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1 968). T he rulin g in Bruton is based on the acknowledgment that “admission of a co-defendant’s confession implicating a defendant at a joint trial constitutes prejudicial error eve n though the trial court may give clear, conc ise an d und erstan dable instruc tions th at con fessio ns co uld on ly be used against a co-defendant and must be disregarded with respect to any other defend ant.” State v. Bailey, 865 S.W.2d 7, 9 (Ten n. 1993 ). Post-Bruton cases make it clear, however, that the rule in Bruton does not apply to confessions which do not implicate the nonconfessing defend ant. Also, Bruton does not apply to confessions from which all references to the nonconfessing defendant have been effectively deleted provided that, as deleted, the confession will not prejudice the confessing defend ant. See Wh ite v. State, 497 S.W .2d 751 (Te nn. Crim. Ap p. 1973). We note

-23-that Defendant Thomas would not have a Bruton challenge to the redacted statem ent.

After a careful review of the Defendant Winters’ original statement and the redacted version of his statement, we are of the opinion that the trial court did not err in redacting the sta tement in the manner it did. A redacted statement will be prejudicial if it “so alters its substance o r deletes therefrom substantially exculpa tory informa tion.” Dento n v. State, 945 S.W. 2d 793, 801-02 (Tenn. Crim. App. 1996) (citations omitted). Although the original version does say that Defendant Thomas was the “trigger m an,” whic h would be con sidered exculpa tory information, this information is essentially redundant in that the jury was presented evidence that Defendant Thomas, not Defendant Winters, was the actual shooter. Defendant Winte rs adm its only in the statement to being at the scene of the crime with Barnes and Ed wards. T his issue is without m erit.

VIII. Victim Impact Evidence

(Defen dant T homa s’ Issue V II)

Defendant Thom as alleges in this issue that the trial court erred in allowing the families of the victims to testify during the sentencing phase for the murder convictions. Defend ant Th omas ackno wledge s that this w as not a d eath pe nalty case, as the State withdrew its intention to seek the death penalty on August 8, 1997, but nonetheless asserts “the law regarding victim impact in capital cases should app ly to all cases.”

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Neither Defenda nt Thom as nor De fendant W inters objected to the witnesses’ testimony at the sentencin g hea ring un til after the y had te stified. T herefo re, this issue should b e waived . See Ten n. R. A pp. P. 3 6(a). H owev er, eve n if sub stantive ly addressed, this issue is meritless. First, this was not a capital cas e so th e victim impact eviden ce wa s clear ly admissible. Second, our su prem e cou rt recen tly held that victim im pact e videnc e and argum ent is p ermis sible under both the United States and T ennes see co nstitutions. See State v. Nes bit, 978 S.W.2d 872, 889 (Tenn. 1998). In additio n, the c ourt he ld that s uch e videnc e is permissible under the Tennessee capital sentencin g statute beca use it is “relevant to punishm ent.” Id. Even if the case sub judice was a capita l case, after re viewing the victim impact testimony in light of the guidelines set forth in Nesb it, our conclusion that the testimon y is adm issible wo uld be the same . This issu e is withou t merit.

IX. Aggravators and Sentencing

(Defen dant T homa s’ Issue V III)

In his final issue, Defendant Thom as argues that the aggrava tors were insufficient to sup port the sente nces of life with out pa role and that the sentence s are excessive. Because this issue was not included in Defendant Thomas’ motion for new trial, it has been waived for purposes of appeal. A criminal defendant may make an appeal of right if the issue “was specifically stated in a motion for a new trial; otherwise such issues will be treated as waived.” Tenn. R. App. P. 3(e). Even addres sed on the me rits, howev er, it is without m erit.

-25-A. Aggrava tors

The jury found that one murder was committed while Defendant Thomas was engaged in the comm ission of aggrava ted kidnapp ing and agg ravated robbe ry. The aggravating circumstance found by the jury on the second count of murder was that the murder was committed while Defendant Thomas was engaged in aggravated kidnapping. First, as we dis cuss ed in Issue I, the evidence presented at trial was more than sufficie nt to co nvict him of especially aggravated kidnapping. Second, we likewise find the evide nce su fficient to support the aggravator that the murder was committed during the perpetration of a robbery. Defendant Thomas alleges that the gold herringbone necklace fou nd in his hotel room was not prop erly identified. Rodney Edwards testified that victim Asberry’s gold herringbone necklace was taken from him before he was killed. At trial, victim Asberry’s sister, Jennifer, testified that the necklace found in Defendant Thomas’ drawer was in fact her brother’s necklace. In making this identification, the victim’s sister testified that the necklace was distinc tively dented in many places. She said the victim dented it purposely to make it look different from his two siste rs’ necklaces. In addition, she testified the clasp was not functio ning properly. The herringbone necklace found in Thomas’ hotel room had distinctive dents and a broken clasp. This was sufficient evidence from which the jury could have concluded that the necklace was that of vic tim Asberry’s.

Defendant Thomas also alleges that proper identification could not be made because the officer w ho reco vered the necklac e did not ta g it on the day it was found. Apparently Lieutenant Rogers secured the necklace in a safe overnight and then tagged it the next day. Defendant Thomas implied during cross-examination of Lieutenant R ogers that som eone c ould ha ve gone to the prop erty division of the

-26-police station, broken into the safe, removed the necklace that was there, a nd put the victim’s necklace in place of the one taken. However, we find that the fact the necklace was in the secure area overnight, that it was tagged the next day, and that the officer stated it looked like the necklace he recovered from Defendant Thomas’ hotel room, was sufficient to establish the identity of the necklace.

Defendant Thomas also a lleges that eve n if the n eckla ce wa s prop erly admitted into evidence, no jury could have tied it to him because there were other peop le who may have been staying in his hotel room. The neckla ce wa s foun d in the room where Thomas lived and in the same drawer as Th omas’ wa llet. A jury could have concluded that Defendant Thomas put the necklace there with his wallet when he returned to the room and emptied his pockets. Accordingly, we find that the aggravator that the Defendant committed a robbery during the murder was p roper ly applied. B. Sentencing

Defendant Thomas presents no argument on this issue and fails to e ven cite any authority, and therefore , this issue s hould b e waived . See Tenn. R. App. P. 27(a)(7). He simply states that he was not the leader, he had a minimal criminal record, and he received a n honorab le discharge from the military. Nevertheless, we will address the merits of this issue.

When an accused challenges the length, range, or the manner of service of a sentence, this court has a duty to conduct a de novo review of the senten ce with a presu mption that the de termina tions ma de by the trial court are correct. T enn.

-27-Code Ann. § 4 0-35-40 1(d). Th is presum ption is “conditioned up on the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstanc es.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). There are, however, exceptions to the presumption of correctness. First, the record must demonstrate that the trial court considered the sentencing principles and all relevant fac ts and circ umsta nces. Id. Second, the presumption does not ap ply to the legal conclusions reached by the trial court in sentencing. Third, the presumption does not apply when the determinations m ade by the trial court are predicated upon u ncontro verted fac ts. State v. S mith, 898 S.W.2d 742, 745 (Tenn. Crim. A pp. 199 4), perm. to appeal denied, id. (Tenn . 1995).

Our review requires an analysis of: (1) The evidence, if any, received at the trial and sentencing hearing; (2) the presentence report; (3) the principles of sentencing and the arguments of counsel relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6) any statements made by the defendant in his own behalf; and (7) the defendant’s potential for reha bilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, & -210; see Sta te v. Smith , 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).

If our review reflects tha t the trial court fo llowed the statutory sentencing procedure, imposed a lawful sentence after having given due consideration and proper weight to the facts and principles set out under the sentencing law, and that the trial court’s findings of fact are adequately supported by the record, then we may not modify th e sente nce eve n if we wo uld have preferred a different re sult. State v. Fletcher, 805 S.W .2d 785 , 789 (T enn. C rim. App . 1991).

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Consec utive sentences (unless mandated by statute or rule) should be imposed only after the proof establishes (1) that the term s imp osed are rea sona bly related to the severity of the offenses committed; (2) the sente nce is ne cessar y to protect the public from furth er criminal acts by the offender; and (3) that the defendant meets at leas t one of the criteria as set fo rth in Tennessee Code Annotated section 4 0-35-11 5(b). State v. Wilkerson, 905 S.W.2d 933 (Tenn. 199 5).

In sentencing Defendants Thomas and Winters to consecutive sentences, the court state d the follow ing:

The [c]ourt wou ld further order as to each of the defendants, and the [c]ourt finds based on all the evidence in the case, the type of activity, the [c]ourt finds from the proof that they seem to be very dangerous actors who do have the potential for and the danger of being a d anger to this community and a danger to other parties and a danger apparently under the present circumstances.

The [c]ourt finds that the murder charges as to each defendant should be run consecutive, one to the other, and the oth er offen ses w ould be run concurrent with those charges.

Based on the foregoing, the trial court ob viously foun d Defe ndant T homa s to be a dangerous offender. However, a finding that a defendant is a dangerous offender, standing alone, will no t justify conse cutive sen tencing. See, e.g., State v. Braden, 867 S.W.2d 750 (Tenn. Crim. App. 19 93); State v. Woods , 814 S.W.2d 378 (Tenn. Crim. App . 1991). A finding tha t an extended sentence is nec essary to protect the public against further criminal conduct by the defendant and that the consecu tive sentences must reasonably relate to the severity of the offenses comm itted mus t also be e stablishe d. Wilkerson, 905 S.W .2d at 939 .

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We find from the record that consecutive sentencing is necessary to protect the public against further criminal conduct by Defendant and that consecutive sentencing is reason ably related to the seve rity of the offen ses com mitted. See id. Defe ndan t’s behavior demonstrated a co ntemp tible lack of c oncern for hum an life and an absence of human decency. Defendant Thomas took the two boys to the abandoned house under the pretense of smo king dope. The victims were then forced into the house, and after listening to their pleas for mercy, Defendant Thomas brutally shot them. One of the victims said he would give them anything they wanted, but they were killed anyway and left to die on a floor covered in human waste. Even from behind bars, Defen dant T homa s has co ntinued to mak e threats clearly demo nstrating the n eed to b e confine d. Althou gh the trial co urt failed to make the specific findings req uired by Wilkerson, we find that the appropriate facto rs are clearly present under o ur powe r of de novo review. Tenn. Code Ann. § 40-35-401(d). Cons ecutive sente ncing is appropriate in this case. This issue is without merit.

Based on all the foregoing, the judgment of the trial court is affirmed.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ JOHN H. PEAY, Judge

___________________________________ JOE G. RILEY, Judge

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