IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MAY SESSION, 1999 FILED September 7, 1999 STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9806-CR-00165 ) Cecil Crowson, Jr. Appellate Court Clerk Appellee, ) SHELBY COUNTY ) V. ) HON. CAROLYN WADE BLACKETT, ) JUDGE REDONNA T. HANNA and ) BER NARD O C. L ANE, ) (FIRST DEGREE MURDER; ESPECIALLY ) AGGRAVATED ROBBERY; AGGRAVATED Appellants. ) ROBBERY; AGGRAVATED BURGLARY
FOR THE APPELLANTS: FOR THE APPELLEE:
A. C. WHARTON PAUL G. SUMMERS District Public Defender Attorney General & Reporter Counsel for Defendant Hanna R. STEPHEN JOBE W. MARK WARD Assistant Attorney General Assistant Public Defender 2nd Floor, Cordell Hull Building Counsel for Defendant Hanna 425 Fifth Avenue North Criminal Justice Center, Suite 201 Nashville, TN 37243 201 Poplar Avenue Memphis, TN 38103 JOH N W. P IERO TTI District Attorn ey Ge neral
PATRICIA A. ODELL PAUL F. GOODMAN Counsel for Defendant Lane Assistant District Attorney General 50 North Front Street, Suite 780 Memphis, TN 38103 MICHAEL H. LEAVITT Assistant District Attorney General Criminal Justice Center, Suite 301 201 Poplar Avenue Memphis, TN 38103
OPINION FILED ________________________
CONVICTIONS AFFIRM ED; REMANDED T O TRIAL COURT FOR ENTRY OF CORRECT JUDGMENTS
THOMAS T. WOODALL, JUDGE OPINION The Defendants, Redonna T. Hanna and Bernardo C. Lane, appeal as of right
from their multip le con victions in the S helby C ounty Crim inal Co urt. In this appe al,
Defendant Hanna presents the following three issues for review:
I. Whether the evide nce wa s sufficient to identify Defendant Hanna as the perpetrator of the crimes;
II. Whether the trial court erred in denying Defendant Han na’s motion to suppress his confession a s involuntary; and
III. Whether the convictions for both first degree felony murder and premeditated first degree murder violated Defendant Hanna’s double jeopardy rights.
Defendant Lane presents the following two issues for review:
I. Whether the evidence was su fficient to identify Defendant Lane as the perpetrator of the crimes; and
II. Whether the conv ictions for both fir st degree felony murder and premeditated first degree murder violated Defendant Lane’s double jeopardy rights.
After a careful review of the record, we affirm a ll convictions of both Defendants.
Howeve r, since there is not a judgment in the record reflecting the conviction and
sentence of Defendant Lane for first degree murder (either premeditated or felony
murder), this cause is remanded to the trial court to enter an appropriate judgment
reflecting the conviction and sentence of life imprisonment of Defendant Lane for first
degree murder, including the merger of two convictions into the one judgment for
first degree murder. Defendant Hanna’s case is remanded for the trial court to enter
an appropriate judgment reflecting a conviction of first degree murder and sentence
of life imprisonment and noting that the two convictions of first degree murder w ere
merge d into one judgm ent.
-2- The Defendants were indicted on three counts of aggravated robbery, one
count of especially aggravated robbery, one c ount of espe cially aggravated bu rglary,
one count of first degree felony m urder, and one count of first degree premeditated
murder. A jury found both Defendants guilty as charged on all counts. However,
with the agre emen t of the State , the trial court g ranted D efenda nts’ motions fo r
judgment of acquittal with respect to the e specially aggrava ted burglary count and
instead entered judgment finding them guilty of the lesser included offense of
aggravated burglary. The trial court sentenced both Defend ants to ten (10) yea rs
for each aggrava ted robb ery convic tion, twenty (20) years for especially aggravated
robbery, three (3) years for aggravated burglary, and life imprisonment for first
degree m urder. At the sentencing hearing, the trial judge noted that although she
would accept the jury’s verdicts for both first degree felony murder and first degree
premeditated murde r, she wo uld non etheless merge the two co nvictions for
sentencing purposes and enter only one sentence of life imprisonment for first
degree murde r for each Defen dant. Both Defendants were sentenced as Range I
Standard Offenders, and all sentences were ordered to be served concurrently.
Andre Hamilton was also tried along with the Defendants Hanna and Lane , but his
case is not a p art of this appe al.
Sum mary o f the Fac ts
The facts in this case reveal that on December 27, 1993, there was a home
invasion at 6858 Birch Run Lan e in Memphis, Tennessee, during which four
individuals were robbe d. The four victim s were Billy Mo sley, his wife Artis Mosley,
their daughter Danyale Davis, and their son Kenn eth Mosley. D uring the robbe ry,
Kenn eth Mosley was shot once in the back and killed. Police developed the
-3- following four suspects in the crimes: Defendant H anna, De fendant Lan e, Andre
Ham ilton, and D errick Co leman .
Motion to Suppress
During the cour se of the in vestigation , police elicited statem ents from
Defendant Hanna and Andre Hamilton. Both Defendant Hanna and Hamilton
subs eque ntly filed motions to suppress those statements. At the hearing, Sergeant
Charles Richardson of the Shelby County Sheriff’s Department testified. Sergeant
Richardson had actually retired from the Sheriff’s Department by the time of the
hearing. He testified that on December 31, 1993, four days after the crim es, Andre
Hamilton came to the police station ac comp anied b y his mo ther to give a state ment.
Prior to Hamilton’s interview, police had spoken with Derrick Coleman who had
mentioned the names of both Hamilton and Defendant Hanna. Hamilton’s statement
also led p olice to be lieve that D efenda nt Han na was involved in th e crime .
Hanna voluntarily ap peared at the police station the following d ay, January,
1, 1994, to give a statement. Sergeant Richardson informed Hanna that the officer
had learned that he m ight have been involved in a robbery and homicide during
which Kenneth Mosley was shot and killed. Richardson testified that he read Hanna
his Miranda rights and that Han na agre ed to be question ed. Acc ording to
Richardson, he made no threats or promises to Hanna and did not coerce him in any
way. Hanna was an adult at the time of questioning.
On cross-examination at the suppression hearing, Sergeant Richardson
testified that he may have told Defendant Hanna that Andre Hamilton and Derrick
Coleman had already turned themselves in to the police. He also admitted that
-4- Hanna stated that he had n ot com e to talk with the police earlier because he was
scared. However, according to Sergeant Richardson, Hanna did not appear scared
during the interview, nor did he appear to be under the influence of drugs or alco hol.
Defendant Hanna testified in his own behalf at the suppression hearing. He
stated that the police had come to his mother’s home looking for him on December
31, 1993, but that he was not there. Sergeant Richardson left a business card, and
Hanna called to arrange a meeting on the following day. Hanna further testified that
both Andre Hamilton and Derrick Coleman had telephoned him to let him know that
they had give n statem ents. According to H anna , he wa s han dcuffe d to a c hair
during the interview. He also said that Sergeant Richardson cut off the tape recorder
during the interview to tell him what to say, but he could not identify where Sergeant
Richardson had d one s o from lookin g at his statement at the hearing. Defendant
Hanna testified that Sergeant Richardson told him if he would say that Defendant
Lane had been the trigger man as Andre Hamilton and Derrick Coleman had said,
then he (Hanna) would be allowed to go home. Hanna also said that he does not
read very well and that he was scared during the interview. The trial court denied
Defen dant H anna’s motion to suppre ss.
Trial Testimony
The facts presented at trial revealed that in December 1993, Billy Mosley lived
with his wife Ar tis Mos ley, his son K enne th Mo sley, an d his ste pdau ghter D anyale
Davis at 6858 Birch Run Lane in Me mph is, Tennessee. On the evening of
December 27, 199 3, he an d Ms. M osley ha d gone to bed and Kenneth Mosley had
gone out bowling and/or to a wrestling match. Kenneth returned home between
10:00 and 10:30 p.m. Shortly thereafter, Billy Mosley heard a loud “bump” and then
-5- he heard screaming in the house. Billy Mosley got ou t of bed , and a s he o pene d his
bedroom door, a man put a gun in his face a nd told him to get back in the bedroom.
Kenn eth Mosle y also to ld his da d to retu rn to his bedro om. D uring th is time , Billy
Mosley heard someone yelling to Kenneth Mosley, “Where’s the money, where’s the
damn dope.” Billy Mosley and his wife retrea ted to th e bath room off of the ir
bedro om. T hey the n hea rd a sin gle gunshot and Mrs. Mosley ran out of the room.
Billy Mosley heard someone yell a t his wife to get d own o n the flo or. Sh ortly
thereafter, he heard someone say, “We’ve been in this house too long, let’s get out
of here.” Billy Mosley em erged a sh ort time later to find Kenneth Mosley lying on the
floor face down, having been shot in the back. He also noticed that his front door
had been broken down.
Billy Mosley discovered that his wallet and pager, which had been on the
dresser in his bedroom , were missing. He testified that Kenneth Mosley looked as
if he had be en search ed becau se his clothes w ere “open,” and his pants pocke ts
were turned ins ide out. M osley wa s unab le to find the je welry whic h Kenn eth Mosley
norm ally wore. A gallon jug of coins that had been on the floor at the front door was
also missing. Mr. Mosley testified that he had once overheard an argument between
Kenn eth Mosle y and a n individ ual called “Nardo.” Although Billy Mosley was not
very familiar with Nardo, he testified that Nardo had once come to the house and left
a note for Kenneth. However, he could no t remem ber the e xact date of Nardo ’s visit.
The note, which was admitted at trial, stated the following:
Say ma[]n you need to call me soon as po ssible because I don’t know what you pulling. [I] told you I was on my way and you said y ou was not going no w[h]e re. I’m not asking you no more. It’s been a straight month and this is last time. Don’t ta ke this as a [threat]. You just need [to] stop playing. I’m not playing n o more. [pho ne num ber]”
-6- On cross-examination, Billy Mosley stated that he only caught a glimpse of the
man who put a gun in his face. That man had nothing covering his face. Mosley
also testified that he was not harmed during the incident. He said that the gunshot
came after the intruders had been in the house approximately five minutes.
Artis Mosley, Kenneth’s mother, testified to much of the same events as her
husband. She said that she heard her daughter say, “Please don’t hurt me,” and
that she then ran out o f the bathro om an d bedro om to the living room. A man then
put a gun in her face and instru cted he r to lie down on the floor. One of the intrud ers
had a towel covering his face. She observed her son lying on the floor. She saw
another man with a gun ransacking an adjacent bedroo m. T he man with a towel
over his face took Mrs. Mosley’s rings from her fingers. Mrs. Mosley testified further
that Nardo had called their house on several occasions. She said that the voice of
the ma n with a tow el over his fa ce sou nded like that of Na rdo.
Dan yale Davis, Kenneth’s stepsister, testified that she had discovered she
was pregnant earlier on the day of the home invasion. She stated that she was on
the telephone in her bedroom when she heard the loud crash that night. She went
to her bedroom door and as she reached it, the door was thrown open and she saw
a man with a towel over his face holding a gun. The man took money from her purse
and proceeded to move her about the house, instructing her to “find the dope
mone y.” Ms. Davis asked the ma n not to hu rt her bec ause s he was pregna nt, and
the man replied, “well, find the dope money.” They proceeded through the house
looking for money, and as they did so, Ms. Davis saw Kenneth Mosley lying on the
floor with a m an stan ding ove r him ho lding a gu n.
-7- Following the shooting, Ms. Davis was shown two photo arrays by Sergeant
Richardson. She identified Defendan t Hanna in one of the arrays and Defendant
Lane in the o ther on e. She further identifie d both Defendants in court as the
perpetrators. However, Ms. Davis was unable to say who actually shot K enneth
Mosley. Ms. Davis also identified Kenneth Mosley’s address book at trial. That
address book had a listing for Nardo and phone number next to h is name. That
number match ed the tele phone numb er on the note left with B illy Mosley fo r Kenn eth
Mosley.
Sergeant Richardson testified that he learned that the telephone number listed
beside the nam e Nard o in Ken neth Mosley’s address book and on the note left for
Kenn eth Mosley, b elonge d to a pag er register ed to De fendant Lane. While at
Defendant Lane’s home, the police called the number and observed a pager come
vibrating out from under a chest of drawers. Defendant Lane admitted that the pager
was his.
Sergeant Richardson also explained that he took statements from Defendant
Hanna and A ndre H amilto n. Ham ilton indica ted that it was Hanna and Lane who
entered the Mosley home. He also indicated the purpose of going to the Mosley
home was to ge t mone y. After waiting in the car for a time, Hamilton and Derrick
Cole man approached the home. As they did so, they heard a gunshot. Hamilton
then returned back to the vehicle. Defendant Hanna’s statement indicated that
Hanna was indeed inside the Mosley home. According to Defendant Hanna, he was
in a back room when he h eard a gunsho t. Defendant H anna adm itted that they were
all going to split the mo ney, but stated tha t he did not find any m oney.
-8- Sergeant Richardson also retrieved live .380 caliber Winchester ammunition
from Defendant Hann a’s reside nce. During the course of an interview with Derrick
Coleman, Sergeant Richardson learned that a .380 handgun was missing from the
Coleman household. Coleman’s mother gave Sergeant Richardson ammunition
from the spare clip to the gun. Sergeant Richardson sent this ammunition to the
Tennessee Bure au of In vestiga tion for te sting aga inst the bullet recovered from
Kenn eth Mosley’s body and the spent shell recovered from the Mosley home.
Defendant Hanna admitted to having possessed a .380 handgun on the night of the
shooting. Sergeant Richardson also testified that a towel matching the description
of the one worn by one of the intruders was recovered from the vehicle driven by
Andre Ham ilton on the night of the shooting .
Robert Royse, a forensic scientist with the T BI, testified concerning firearms
identification testing. Royse testified that the bullet recovered from Kenneth Mosley
was a .380 auto bullet, and that the spent shell casing recovered from the Mosley
home was a .380 auto Winchester shell. Royse further testified that two live rounds
of ammunition also went to him for testing and that they were .380 auto W inchester.
Dr. Jerry Francisco testified that Kenneth Mosley died from a single gunshot
wound to the back which tore throug h his major org ans and s evered his ao rta. Dr.
Francisco stated that he found no drugs or alcoh ol in Kenneth Mosley’s system. The
distance of the g unshot wa s greater than tw o feet from Ke nneth Mo sley’s body.
Defendant Hanna offered no proof at trial. Defendant Lane offered only the
testimony of Pau l Dalhauser, a genetic testing expert. Dalhauser testified that he
attemp ted to perform D NA te sting o n the to wel rec overe d from Andr e Ham ilton’s
-9- vehicle. However, the towel did not contain enough DNA for analysis, so the test
was inconclusive.
I. Identity
(Defen dants H anna a nd Lan e’s Issue I)
In their first issue on appeal, both Defendants argue that the evidence was
legally insufficient to suppo rt their convic tions. Spe cifically, both D efenda nts
contend that the proof of the identity of the perpetrators was insufficient. They argue
that the Sta te’s pro of did n ot esta blish th at they w ere the individuals who intruded
the Mosley home and committed the offenses therein.
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 have found the essential elements of the
crime beyond a reaso nable d oubt. Jackson v. Virgin ia, 443 U.S. 30 7, 319 (1979 ).
This standard is applicable to findings of guilt predicated upon direct evidence,
circumstantial evidence or a combination of direct and circumstantial evidence.
State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). On appeal, the
State is entitled to th e strongest legitimate view of the evidence and all inferences
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, th e acc used has th e burd en in th is court of illustrating why the
evidence is insufficient to suppo rt the verdict re turned b y the trier of fact. State v.
Williams, 914 S.W.2d 940, 945 (Tenn. Crim. App. 1995) (citing State v. Tug gle, 639
S.W.2d 913, 914 (Tenn. 1982)); State v. Grace, 493 S.W.2d 474, 476 (T enn. 1973 ).
-10- Questions concerning the credibility of the witnesses, the weight and value to
be given the evidence, as well as all factual issues raised by the evide nce, are
resolved by the trier of fact, no t this court. State v. Pappas, 754 S.W.2d 620, 623
(Tenn. Crim. A pp.), perm. to appeal denied, id. (Tenn. 198 7). Nor ma y this court
reweig h or reevalu ate the ev idence . Cabbage, 571 S.W .2d at 835. A jury verdic t
approved by the trial judge accredits the State’s witnesses and resolve s all conflicts
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. 1981). However, before an accused 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 hypothe sis save g uilt of the defe ndant." State v. Crawfo rd, 225 Tenn.
478, 470 S.W .2d 610 (1971); 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
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).
In the case sub judice, the State offered sufficient evidence establishing
Defen dants as the perpetrators of the crimes. Artis Mosley testified that the voice
of the man with a towel over his face sounded like that of the individual identified as
Nardo (Defen dant Lane). K enneth Mosley’s addres s book was ad mitted into
evidence and it contained a telephone number next to the name Nardo. Upon
-11- investigation, police learned that the phone numbe r was registered to a pager
belonging to Defen dant La ne. Furth ermor e, Dan yale Da vis identified b oth
Defen dants from photo arrays shown to her by Sergeant Richardson two days after
the crime s. At trial, M s. Dav is aga in identified both Defen dants as the p erpetrators
in her home. Moreover, Defendant Hanna’s own statement to police indicated that
he was in fact present at the Mosley home during the crimes. It is well-established
that the identification of a defendant as the perpetrator of the offense for which he
is on trial is a question of fact for determination by the jury. State v. Strickland, 885
S.W.2d 85, 87 (T enn. C rim. App . 1993), perm . to app eal de nied (Tenn. 199 4).
Further, the identifica tion testimony of a victim is, by itse lf, sufficient to su pport a
conviction. Id. Dany ale Davis’ identification of both D efendants a s the perpetrato rs
is thus sufficient alone to support the convictions in the case. This issue is without
merit.
II. Motion to Suppress
(Defen dant H anna’s Issue II)
In his second iss ue on app eal, Defenda nt Hanna argues that the trial court
erred in denying the motion to suppress his statement to police. Defendant Hanna
contends that this statement was not voluntary and was coerced from him with the
prom ise tha t he co uld go home if he identified Defendant Lane as the trigger man.
Defendant Hanna also points out that his youth (he was 18 years old at the time of
the statement) and his lack of formal education affected his decision to make a
statem ent.
-12- An appe llate co urt sho uld up hold a trial court’s decisio n on a m otion to
suppress, unless the evidence in the record preponderates against the finding.
State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998). Questions of credibility of
witnesses, the weight and value of the evidence, and resolution of conflicts in the
evidence are matters entrusted to the trial judge as the trier of fact. State v. Odom,
928 S.W.2d 18, 23 (Ten n. 199 6). Th e party preva iling in the trial cour t is entitled to
the strong est leg itimate view of th e evidence, as well as all reasonable and
legitimate inference s that ma y be draw n from th e eviden ce. Id.
The United States Suprem e Court has interpreted the Fifth A mendm ent in part
to require that an in crimin ating s tatem ent or c onfes sion b e freely and vo luntarily
given in order to be admissible. This even applies to statements obtained after the
proper Miranda warnings have b een issu ed. See State v. Kelly, 603 S.W.2d 726
(Tenn. 1980). S tateme nts and confessions not made as a result of custodial
interroga tions mu st also be voluntary to be adm issible. See Arizona v. Fulima nte,
499 U.S. 279, 286-88, 111 S. Ct. 1246, 125 2-53, 113 L. E d. 2d 302 (19 91). It must
not be extracted by “any sort of threats or violence, nor obtained by any direct or
implied promis es, howeve r slight, nor b y the exertio n of any im proper in fluence.”
Bram v. United States, 168 U.S. 532, 542-43, 18 S. Ct. 183, 187, 42 L. Ed. 568
(1897) (citation omitted) . Moreover, due process requires that confessions tendered
in response to either physical or psychological coercion be suppressed. Rogers. v.
Richmond, 365 U.S. 534, 540-41, 81 S. Ct. 735, 739, 5 L. Ed. 2d 760 (1961); Kelly,
603 S.W.2d at 728-29. This has evolved into the “totality of circumstances” test to
determine whethe r a confe ssion is vo luntary. Fulima nte, 499 U.S. at 285-87, 111
S. Ct. at 125 1-52; State v. Crump, 834 S.W .2d 265 , 271 (T enn.), cert. denied, 506
U.S. 905, 11 3 S. Ct. 298, 12 1 L. Ed. 2d 22 1 (1992).
-13- The voluntariness test un der the Ten ness ee Co nstitutio n has been held to be
more protective of individual rights than the test under the United States
Constitution. See State v. Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994). For the
relinquishment of rights to be effective, Defenda nt must have personal awareness
of both the n ature of the right and th e cons equen ces of ab andon ing his righ ts. See
id. at 544-45 . Additiona lly, his statem ents can not be the result of intim idation,
coercion or dece ption. Id. at 544. In determining whether the statements w ere
voluntary, the reviewing court looks at the totality of the circumstances surrounding
the relinqu ishme nt of the righ t. Id. at 545.
The trial court found that the statemen ts were ma de voluntarily. W e have
studied the evidence, and considering the totality of the circumstances, we cannot
conclude that the trial court erre d by den ying De fendan t’s motion to supp ress o n this
issue. Again, the court’s determination that the statements were given knowingly
and voluntarily is binding upon the appellate courts unless the defendant establishes
that the evidence in the record preponderates against the trial court’s ruling.
Henning, 975 S.W.2d at 299.
In the instant case, Sergeant Charles Richardson testified that Defendant
Hanna voluntarily appeared at the police station for questioning. Hanna had
previously learned that both Andre Hamilton and Derrick Coleman had given
statem ents to police. S ergean t Richard son inform ed De fendan t of the purpose of
the questioning and Hanna signed a Miranda rights w aiver fo rm afte r being read h is
rights. According to Sergeant Richardson, Hanna did not appear scared during the
intervie w and did no t appe ar to be unde r the influ ence of drug s or alc ohol.
-14- Defendant Hanna testified at the hearing that he was handcuffe d to a c hair
during the interview and that he was scared. He further said that Sergeant
Richardson actually cut off the tape recorder during the interview in orde r to tell him
exactly what to say. On cross-examination, however, Hanna was unable to pinpoint
in his statement where Sergeant Richardson had actually cut off the tape recorder.
The trial cou rt was fa ced w ith con flicting te stimony which presented a
credibility question for the trial judge . In its findin gs of fa ct, the tria l court s pecific ally
found that Defendant Hanna knowingly, voluntarily, and intelligently waived his
Miranda rights. Th e trial judge further state d that she was no t persuaded by
Han na’s testimony that he did not understand his rights. The trial cou rt spec ifically
found that she was not persuaded by Defendant’s testimony that he was promised
he could go home if he gave a statem ent. We have reviewed the record and find
that the evidence does not preponderate against the trial co urt’s ruling. See
Henning, 975 S .W .2d at 2 99. W e are u nable to gran t relief to D efend ant on this
issue.
III. Double Jeopardy
(Defen dant H anna’s Issue III an d Defe ndant L ane’s Iss ue II)
Both Defe ndan ts argu e in this issue th at the ju ry’s finding of guilt as to bo th
preme ditated murder and felony murder violates double jeopardy principles.
Defen dants argue that the jury’s finding of guilt on the second count of the
indictment, charging first degre e preme ditated murd er, after it had already found guilt
as to the first count charging first degree felony m urder, constituted dou ble jeopardy.
-15- Defen dants contend that the trial court there fore imp roperly de nied their m otions to
set aside the verd ict of guilt as to first degree prem editated mu rder.
W e find Defendants’ conte ntions to be w ithout m erit as a pane l of this Court
has previously held that a dual finding of guilt as to both premeditated and felony
murder does not violate double jeopardy protections. See State v. Addison, 973
S.W.2d 260 (Tenn. Crim. App. 1997), perm. to appeal denied (Tenn. 1998). In a
case involving a single killing where the jury has found the defendant guilty under
both theories of first degree prem editated mu rder and felony m urder, the trial court
shou ld acce pt both verdicts but en ter only one ju dgm ent of c onviction, thereby
merging the two verdic ts. Id. at 267; Carter v. S tate, 958 S.W.2d 620, 624-25 (Tenn.
1997). The single judgment of conviction should note the merger of the two cou nts
returned by the jury. See Addison, 973 S.W.2d at 267.
In the case sub judice, the trial court attempted to follow the correct procedure.
At the sentencing hearing, the trial court noted that the Defendants had been
convicted of both first degree premeditated murder and first degree felony murde r.
In sentencing Defendants, however, the trial judge specifically noted that she was
merging the two counts as to each Defendant. Accordingly, each Defendant was
senten ced to a s ingle life term for the con viction of first de gree m urder.
The State has noted in its brief that there are two judgments reflecting a
conviction of Defen dant H anna fo r first degree murde r. One o f these reflects a
conviction for felony murder in the perpetration of robbery and the other for
premeditated first degree murder. The State sub mits that one o f the judgm ents
mista kenly had Defendant’s Hanna’s name rather than Defenda nt Lane. Ho wever,
-16- each judgment lists Defendant Hanna’s date of birth and social security numbe r.
There is no judgment in the record on appeal reflecting a conviction of Defendant
Lane for either felony murder or first degree premeditated murd er in accordance
with the ve rdict of the jury .
W e are also unable to find in the record any order as to either
Defendant reflecting tha t the conv ictions for first degree murde r were m erged. In
situations such as this, the a ppropriate proc edure is for the trial court to spe cifically
note the merger of two convictions of first degree murder in one judgment for each
Defendant reflecting a conviction of first degre e murd er. Addison, 973 S.W.2d at
267.
W e affirm the convictions of Defendant Hanna and Defendant Lane for
the offenses for which they were found guilty by the jury. Howeve r, we find it
necessa ry to remand this case to the trial court to enter a judgment a s to each
Defendant reflecting a conviction for first degree murder and specifically noting that
the two convictions for first degree m urder were merged into one judgment for each
Defen dant. Furtherm ore, the trial co urt is to enter an order s triking th e prev iously
entered judgments of first degree murder for Defendant Hanna.
____________________________________ THOMAS T. W OODALL, Judge
CONCUR:
___________________________________
-17- JOHN H. PEAY, Judge
___________________________________ JOE G. RILEY, Judge
-18-