WPC,bb@sNative Lang Date Numbers 1-100 WP_TV07822392P6A)sportsnttd)sermWPTVWPC2 6th NamesAbbreviated Month NamesFull Day NamesAbbreviated Day namesDate/Time PartsDate/Time SuffixesDate/Time FormatsLangDflR{WP}10{WP}01Times{WP}12M~$   M{WP}11   PWP 6.0 captionM{WP}16 # FHP LaserJet 4SiHPPCL5MS,,,,,,0nLh\UN Q(hH  Z 6Times New Roman Regular % X6 0( ($HU-: ,  AZ"Arial RegularHU(: ,cAZ"Arial RegularNw@ A 'D'e'E''D''E''D'Ӏ"4 uM% 3|x'   X~XXX  X X~   Ad FILED X~X    August26,1998CecilW.CrowsonAppellateCourtClerkdAM 0 (8(2$ !  4X   0  R 0D (#$  0  HU: W,cAZ"Arial RegularLU> <@9Z &Courier Regular:+ BB dA D3_""""'dxdR 0D(3$ !  ] AO-C<< C%Level 1Level 2Level 3Level 4Level 5R 0D($$   1  = D//' dxd+ B^P Pd  HH  2$HH  Geneva  <Px443!#4$*$$*$ KK  Geneva  Geneva .,6 Geneva   inion Geneva  inion Geneva 4Q3.5.1'3.5.1, 1996 Corel Corporation Limited,Q3.5.1Created with WordPerfect 3.5.1.5g }Corel WordPerfectxHH(FG(HH(d'hbb@\ZPSetBPJobNStylZwp60versWDatSTR PtPt\TW ( ~   X$ + e 4 8 z$ ( ,   d0  м  D  а 2 " * -  f    6 6 nԿ {WP}10{WP}12{WP}11WP 6.0 caption{WP}16{WP}01"H~@' '" 6{WP}10 <<KK ..,,..,, 6Times۶   HHHзHZзHH~Hз~H~$з(d(ٷ÷(d( 6 HelveticaѷA 7 Xdd7A " 6   Arial Regular" Э     W 6~`jl@'$' 6{WP}10 <<KK  6Times 6 Helvetica $Y@Y@Y@FILED$ 0$' '0F$2August 26, 19982@F@N Cecil W. Crowson$N\' '$Appellate Court ClerkY@Y@Y@W     6 6 60' '0 6AIN THE COURT OF CRIMINAL APPEALS OF TENNESSEEܶ*ζЫAT NASHVILLE*8ܶЫ8FܶAPRIL 1998 SESSIONFTܶTbܶbpܶ  p~ܶSTATE OF TENNESSEE,$$* No. 01C019610CR00419  ~ܶ$$$$$$  ܶ$$ Appellee,$$*Davidson County  ܶ$$$$$$   ܶVS.$$$$$*Hon. J. Randall Wyatt, Jr., JudgeܶܶADRIAN WILKERSON and !$*(Especially Aggravated Robbery,ܶSTEVEN MURPHY,$ !$First Degree Murder, Theft)ܶ$$$$$$*ܶ$$Appellants. ܶ$$$$$$* ܶ&ܶ&4ܶ4BܶBPܶ÷For Appellant Wilkerson: $$$For Appellee:P^ܶ^lܶMark F. Fishburn$$$$John Knox Walkuplzܶ100 Thompson Lane $$$Attorney General & ReporterzܶNashville, TN 37211ܶ(at trial and on appeal)$$$Karen M. Yacuzzoܶ$$$$$$$Assistant Attorney Generalܶ÷For Appellant Murphy:$$$425 Fifth Avenue North  ܶ$$$$$$$Cordell Hull Building, Second Floor!!ܶJeffery A. DeVasher !$$$Nashville, TN 372430493""ܶAssistant Public Defender$$$$$$##ܶ1202 Stahlman Building $$$Nicholas D. Bailey$$ܶNashville, TN 37201$$$and%%ܶ(on appeal) $$$$$Katrin Miller&&ܶ$$$$$$$Assistant District Attorneys GeneralJ''" ''" JܶDavid Baker$$$$$Washington Square, Suite 500(2@ܶAssistant Public Defender$$$ 6 6 Helvetica 6 Helvetica 6222 Second Avenue North 6 6 Helvetica 6 Helvetica 6Ϳ(2@ܶand$$$$$$Nashville, TN 37201 6 6 Helvetica 6 6 6 Helvetica 6͖1649)@NܶKarl F. Dean$$$$$*N\ܶMetropolitan Public Defender$$+\jܶ1202 Stahlman Building $$$,jxܶNashville, TN 37201$$ 6 6 Helvetica 6 6 6 Helvetica 6-xܶ(at trial)$$$$$ 6 6 Helvetica 6 6 6 Helvetica 6.ܶ 6 6 Helvetica 6 6 6 6 Helvetica 6 6ͷ$$$$$$/ܶ 0ܶ 1ܶOPINION FILED:___________________________ 2ܶ 3ܶAFFIRMED AS MODIFIED 4ܶ5ܶGARY R. WADE, JUDGEJ6 6 JܶOPINION7"ܶ$8"0' '$ܶ   6ͪ 6   6ͫ 6ͷ$$The defendants, Adrian Wilkerson and Steven Murphy, were0' 'convicted of especially aggravated robbery, first degree murder, and theft over$1000.00. The defendants were sentenced to life imprisonment for first degreemurder. The trial court imposed Range I sentences of twentyfive years forespecially aggravated robbery and four years for theft. All sentences are to beserved consecutively, for an effective sentence of life plus twentynine years. >0ܶ?ܶ$$In this appeal of right, each defendant presents the following issues:$@' '$ܶ   6ͪ 6   6ͫ 6ͷ$$(1) whether pretrial identification procedures were' 'unnecessarily suggestive requiring suppression at trial;and#C2#ܶD2@ܶ$$(2) whether the trial court erred by instructing the juryon parole eligibility.#F@\#ܶ$ G\j' '$ܶ   6ͪ 6   6ͫ 6ͷThe defendant Murphy presents the following additional issues:0 HjjV' '0ܶ   6ͪ 6   6ͫ 6ͷ$$(3) whether the evidence is sufficient to support hisq' 'convictions for especially aggravated robbery and firstdegree murder during the commission of a felony;# K#ܶ Lܶ$$(4) whether the trial court properly admitted a "lifephotograph" of the victim; and# N#ܶOܶ$$(5) whether the trial court properly permitted a prosecution witness to testify.#Q#ܶ$R' '$ܶ   6ͪ 6   6ͫ 6ͷFinally, each defendant challenges the length and manner of his sentence.bS, S, ' 'bܶT<Wܶ$$We affirm the judgment of the trial court but modify the sentence forespecially aggravated robbery as to each defendant. VWܶWܶ$$On the morning of October 6, 1994, the vehicle of Timothy Thomas, a Tennessee State University student, was stolen from the school parking lot. Thomas described the car as a 1984 Oldsmobile Cutlass Supreme, beige in colorwith maroon wheels and bearing the license plate, "PUZZLED." As he reportedthe missing vehicle to campus security, he received word that police had found hiscar. The steering column had been stripped and a screwdriver, which did notbelong to Thomas, was found in the floorboard.^eܶ_eܶ$$Donald Amos, manager of a chain of movie theaters in Nashville,testified that in 1994, he employed Keith Davenport to manage the Rivergate 8Theater. Davenport conducted daily cash transactions of at least $3,000.00 atThird National Bank. All monies were carried in bank bags labeled "Rivergate 8." On October 6th, a bank employee informed him that Davenport had been robbed. Police recovered $3,891.00 from two bank bags labeled "Rivergate 8." e"ܶf"=ܶ$$Rodman Davenport, the father of Keith Davenport, testified that he6 =g= 6had received word that his son had been shot during a robbery at Third NationalBank. Three hours after his son was transported to Vanderbilt Hospital, he died. Rodman Davenport identified a photograph of his son and pointed out the bulletholes in the vehicle he drove on the date of his death.k=ܶlܶ$$Dorothy Seay, who had just cashed a check at the Third NationalBank, was returning to her car when she heard a loud noise. She then observed atan 1984 Oldsmobile Cutlass with a dark roof and a dark bra over the front grilltravel from Kroger toward the bank and park in two empty parking spaces near hercar. Ms. Seay observed the driver of the Cutlass stop next to a person she laterlearned was Keith Davenport, who was getting into a small, white car. The driver ofthe Cutlass, a tall, black man wearing a white shirt and dark pants, exited thepassenger door, shot the victim twice, and then stooped to grab the bank bags. When he stood up, he looked at Ms. Seay and drove away from the scene. Whileshe did not see the driver of the Cutlass or its license plate, Ms. Seay insisted thatshe got a good look at the robber, only twenty to twentyfive feet away. Shedescribed the gun as a .44 or .357 magnum with an eightinch barrel and brownhandles bearing two circular emblems.  y Nܶz N iܶ$$Ms. Seay provided police with a statement describing the robbery and6 i{ i 6waited in the bank conference room for a possible identification. Asked to view twomen to determine if she recognized either of them from the shooting and cautionedto be very careful in rendering a positive identification, Ms. Seay identified thedefendant Wilkerson, who was handcuffed and sitting in the backseat of a policevehicle, as the person who fired the fatal shot. Later, she identified him at thepreliminary hearing and then at trial. She could not identify the defendant Murphy. i 6ܶ 6 Qܶ$$Estella Parker, a teller at Third National Bank, testified that she hearda gunshot and looked out the bank window. From only fifty feet or so away, shethen heard two more shots and saw a man holding a gun and two bank bags enterthe open passenger door of a slowly moving car. She described the man as a tall,black man with short hair; he wore a white tshirt and jeans. Ms. Parker describedthe car as an older model Cutlass or Monte Carlo, beige or yellow in color with abrown top and dark wheels, and the murder weapon as dark brown with a longbarrel. She stated that the victim fell to the ground within two feet of the tall man. Ms. Parker asserted that nothing blocked her view of the incident. At a showup atthe bank, she identified the defendant Wilkerson, standing in handcuffs withanother man, as the person she saw jump into the car with the bank bags. Although she was unable to identify the defendant Murphy, she recognized the gunrecovered by police as that used by Wilkerson in the robbery. J Q   Jܶ ܶ$$Linda Boone, who was in the Third National Bank lobby at the time ofthe shooting, heard two pops and saw a man lying on the ground in front of her car. She then observed a black man carrying a "big gun" lean over the victim andremove a bank bag from underneath his arm. The robber then got into thepassenger side of a car she described as a 1982 or 1983 beige Cutlass withburgundy top. Ms. Boone could not identify the driver or the person who fired theshots and she could not see the license plate of the Cutlass.  ܶ ܶ$$Grady Welch, who was cashing a check at the Third National Bank,heard two gunshots outside the bank, looked out the window and saw a black manwearing a white tshirt leaning over the victim. He observed the robber reach downfor the bag and then run between cars to a beige car with a dark top. Welch couldnot see the robbers face and could not see the driver of the getaway vehicle. While he followed the car in his truck, he was unable to see the license plate. Uܶ U pܶ$$Mark Nelson, who was in the parking lot at the time, heard a gunshotfollowed by two more gunshots. When he saw a woman running in the parking lottoward Kroger, he returned to his car where he saw a cream or beige colored Buickor Regal with tinted windows "flying up the parking lot ...." He could not describe6  6the individuals inside. $$$ pܶ"ܶ$$Robert Newland, who was leaving the bank just before the shooting, testified that he saw "a unique looking fellow ... black, with red hair" drive by slowlyin a tan car. Moments later, he heard gunshots and saw another black man gettinginto the same tan car. He recalled the redhaired man driving in his direction andsaw the license plate "PUZZLED.""ܶܶ$$Patty Fought, who lives about one mile from the Third National Bank,testified that around noon she was cleaning house when she noticed an oldermodel beige car with tinted windows and a bra over the grill quickly stop in front ofher house. She detected a lot of movement within the car and when both car doorsopened, a white man with a dark tshirt and jeans exited on the drivers side. Ablack man wearing a white tshirt and jeans exited the passenger door, holdingwhat appeared to be a bundle of material. The two men walked toward GallatinRoad. Ms. Fought went outside and saw the license plate "PUZZLED"; the car wasstill running. Ms. Fought called police and talked with Bart Pangburn, the UPSdriver, about what she had observed. Within an hour, police drove the two to ashowup only three blocks away. Ms. Fought, after viewing each handcuffeddefendant, identified the two men as the same two men who had stopped their6  6vehicle in front of her house. "I didnt get a good look at their faces when they gotout of the car, but I said, they looked like the men that got out of the car. ... [basedupon] the clothes they had on, their ... body build and their profile." She positivelyidentified the defendants again at the preliminary hearing. At trial, Ms. Foughtidentified the defendant Wilkerson as the passenger who exited the car with thebundle and the defendant Murphy as the driver.ܶܶ$$While acknowledging that she had never attempted to identify themen from a group, she testified that she had no difficulty in identifying thedefendants.&ܶ$$&Aܶ$$Pangburn testified that he was delivering packages on Gibson Driveat about noon on the date of the robbery when he noticed two men step outside astalled yellow midsized car with brown vinyl roof. He recalled that a man of mixedrace, having very light brown skin, braided red hair, and thick eyeglasses, walkedahead of the other man saying, "hurry up." The other man, who Pangburndescribed as black and tall, walked hurriedly and carried a sweatshirt. Pangburnthen drove his truck past the two men and looked in his rearview mirror, recallingthat he could see their faces clearly. The man carrying a bundled sweatshirtcrossed the street and placed it in a drainage ditch. Pangburn, who then drove6  A 6around the block, saw the defendants approaching Old Hickory Boulevard. Hethen saw a police car, stopped, and reported what he had observed. At a showup,Pangburn recognized the men as the same men who exited the stalled car; heexpressed no doubt about the accuracy of the identification. Pangburn positivelyidentified the defendants at a preliminary hearing and at trial. He identified thedefendant Wilkerson as the man who carried the bundle and the defendant Murphyas the man he had seen walking with Wilkerson.Aܶܶ$$Just before noon, Officer William Kirby, who had received a radiodispatch that a car suspected to have been used in a robbery had beenabandoned on Gibson Drive, found the Oldsmobile with license plate, "PUZZLED,"blocking the south lane of traffic. The passenger door was ajar and the steeringcolumn had been "peeled" by a screwdriver. He received a description from Ms.Fought: one black and one white male, between twentyfive and thirty years of age;both were about the same height but one was heavier than the other. He recalledthat Pangburn, who was also on the scene, similarly described the defendant. Pangburn reported that one of the men, who could have been white or black, hadred hair and that a bundle had been left in the drainage ditch.  *ܶ$$*Eܶ$$Officer J.W. Davis, who flies the Metro Helicopter, received a radio call6 E E 6reporting the bank robbery and a description of the suspects. He then saw twoblack males walking north on Gallatin Road near a Kentucky Fried Chicken; as hecircled above, they entered the restaurant. While conceding that the two men werenot behaving suspiciously, Officer Davis reported their location and hovered until apatrol car arrived. Eܶܶ$$Lieutenant Harry Bell, of the Goodlettsville Police Department, wasserving a warrant when he overheard a radio dispatch describing the suspectsinvolved in a shooting. Lt. Bell then spotted two men fitting the suspects'description "pushing each other and ... carrying on ... but as they did that theywould turn around ... like they were looking to see if someone was following them." Lt. Bell observed the men enter a Kentucky Fried Chicken.ܶܶ$$When Officer Melton Elrod entered the KFC restaurant, he noticed ablack male sitting at a table with an elderly white man. He described the blackmale as wearing a white tshirt and sweating profusely, but not eating. Officer Elrodalso saw a lightskinned black male with red hair seating himself at a differenttable. At that point, the defendants were arrested.VܶVqܶ$$Officer Danny Duncan testified that he handcuffed the defendant6 q q 6Murphy, placed him in the patrol car, and read him his rights. He then droveMurphy to Gibson Drive and the bank for showups. Officer Daniel Lane, whoarrested Wilkerson, drove him to Gibson Drive and the bank for showups. Duringthe drive, Wilkerson asked Officer Lane what the charges would be, what kind ofbond he would have to make, and whether he would go to state or federal prison. Detective Norris Tarkington also testified that Wilkerson inquired about the possiblelengths of sentence for robbery, attempted robbery, and attempted murder.qYܶYtܶ$$Officer David Pugh found a sweatshirt hidden in the drainage ditch. Inside were a .357 Dan Wesson Arms revolver and two locked "Rivergate 8" bankbags. The revolver contained three spent cartridges and three live rounds. Thegun had unburned powder on the handle and smelled as if it had been firedrecently. Officer Pugh found no finger prints on the victim's car but did recoverbullet fragments. He lifted two latent palm prints from the Oldsmobile. tܶ1ܶ$$Gwen Gregory, who examines latent prints for the Metro PoliceDepartment, testified that latent palmprints lifted from the hood of the Oldsmobilematched those of Murphy. Doctor Ann Bucholtz, the Davidson County MedicalExaminer, testified that the victim suffered a lethal gunshot wound to his abdomenthat pierced his liver and that the wound was surrounded by stippling, indicating6  1 6the victim was shot at close range. Special Agent Steve Scott of the TennesseeBureau of Investigation concluded that the bullet fragments found in the victim's carwere fired from the Dan Wesson Arms .357 revolver.  1ܶ 4ܶ߀I 4Oܶ$$The defendant Murphy maintains that his right to due process wasviolated by the suggestive showup on Gibson Drive. He does not challenge theshowup at Third National Bank. Wilkerson challenges both of the showups. Heclaims a due process violation and a deprivation of his Sixth Amendment right tocounsel. Oܶܶ(a) Third National Bank Showup ܶ$$At the suppression hearing, Officer Roll testified that at approximately12:45 P.M., almost one hour after the robbery and shooting, the suspects arrived atthe bank for the showup. Officer Roll interviewed Ms. Seay and Ms.    Parker    individually and kept them separated throughout the identification process. Heinformed each as follows: $ ' '$ܶ   6ͪ 6   6ͫ 6ͷ$$[W]e had a couple of individuals that we were bringing to' 'the bank, that I wanted her to realize that just becausesomebody was at the bank, it wasn't necessarily sayingthat we were saying they were involved, that that she6   6needed to rely on her memory and that that she couldnot feel any kind of pressure .... If it was not the person... that she saw, then we definitely did not want her tomake an identification.# #ܶ$!!' '$ܶ   6ͪ 6   6ͫ 6ͷOfficer Roll testified that the suspects stood on the sidewalk in front of the bank's!F' 'oneway windows. According to the officer, Ms. Seay "was very confident abouther identification [of Wilkerson]. She said there was no doubt in their mind ...." Ms.Seay did not identify Murphy. Whereas Ms. Parker was "98 percent" certain aboutthe defendant Wilkerson, who was the gunman, she could not identify thedefendant Murphy. '!ܶ(ܶ$$Recently, our supreme court ruled that testimony presented at trialmay be considered by an appellate court in deciding the propriety of the trial court'sruling on a motion to suppress. State v. Johnny M. Henning, ___ S.W.2d ___, No.02S019707CC00065, slip op. at 14 (Tenn., at Jackson, June 22, 1998). At trial,both Ms. Seay and Ms. Parker testified confidently about the accuracy of theidentifications..ܶ/ܶ(b) Gibson Drive Showup0ܶ$$At the suppression hearing, Officer Sheffield testified that prior to theshowup, he told Ms. Fought and Pangburn that "two possible suspects" had been6 2 6detained. He recalled informing them that they would drive by slowly to see if the"two individuals who were possibly suspects ... were the ones that they observedleaving the area." He denied doing or saying anything that would influence theidentification process. As he drove by, each witness looked at the suspects andmade a positive identification. Officer Sheffield stated that neither witness washesitant and that both seemed positive about the identification. 8ܶ9ܶ$$At the hearing on the motion to suppress, Pangburn recalled thatpolice drove him up the street because, "[t]hey needed me to identify the peoplewho they thought might have done just they thought, you know, were involved inwhat happened." He recalled that he and Ms. Fought talked about what they hadseen and then rode together in the rear of a patrol car to view the suspects. Theofficer drove slowly and Pangburn was able to see first one suspect and thenanother. He remembered that he and Ms. Fought identified the men "pretty muchsimultaneous[ly]." Each suspect was seated in the rear of a patrol car andWilkerson appeared to be handcuffed.  BܶCܶ$$Ms. Fought recalled that a police officer informed her "that theythought they had the guys they were looking for and wanted us to identify see ifwe could identify them." Her description of the showup was substantially the same6 F 6as Pangburn's. She admitted talking with Pangburn about what she and he hadobserved prior to the showup but denied having been influenced by theconversation. IyܶJyܶ$$Following the motion hearing, the trial court ruled as follows:$K' '$ܶ   6ͪ 6   6ͫ 6ͷ$$[The showup] that was done at the bank by Detective' 'Roll ... the way [he] handled that matter was textbookfashion. He handled it just exactly the way it shouldhave been. The people were separate from each otherwhen they made the identification. He was very careful,very conscientious and very professional in the way hehandled that and the Court found nothing at all about   that that    was inappropriate. That motion ... wasoverruled .... # T -#ܶ$$$[As for the showup on Gibson Drive] the matterwasn't handled quite the way it ... could have been ... Ithink under all the circumstances here that the waythese identifications were made and having listened toboth of these witnesses here today were done in such away where they were not unduly influenced .... I thinkeven though they were in the same car, that [Pangburn]testified when they observed these men that they wereidentified almost simultaneously .... I think that neitherattempted to influence the other. ... # ^ - #ܶ$$$Neither do I find that the officers attempted toinfluence the identification. ... [The witnesses] havemade the identification, have made it again here today. And the Court is of the opinion they made thatidentification based on what they observed rather thansomeone trying to influence them to identify someperson.#e !#ܶـ***f!!)ܶ$$$[Applying the Neil v. Biggers factors] I think clearly6 !)!g!) 6there was the opportunity of each of these witnesses toview this suspect at the time they said they did. [Ms.Fought] was cleaning her house. All of a sudden a carstops real quick ... in a driving lane in front of her house.... She obviously had an opportunity to look at theperson. And she's testified that her identification [comesfrom] a profile, from the clothing and the body build. ...#n!)!#ܶ$$$[Mr. Pangburn] was obviously very suspicious thewhole time. And so I think his attention was on thesetwo people. ...#q!!#ܶ$$$I think the prior description that they gave was []accurate. ...#s!!#ܶ$$$The level of certainty of the witness at theconfrontation, I don't think there's any doubt in theirminds, then or now, about who these men were .... Andthe length of time between the crime and confrontationwas ... within an hour.#x!"5#ܶـ***y"5"Cܶ$$$I think both of these witnesses made aconscientious, sincere identification based on what theyobserved, not what someone else said or how they werepresented. And your motion on that ground is ... denied.#}"C"{#ܶ$~"{"' '$ܶ   6ͪ 6   6ͫ 6ͷ0"""B' '0ܶ 6 6 Helvetica 6 6 6 6 Helvetica 6 6ͷ$$Our scope of review is limited. A trial court's findings of fact areconclusive on appeal unless the evidence preponderates otherwise. State v.Odom, 928 S.W.2d 18 (Tenn. 1996); State v. Tate, 615    S.W.2d    161, 162 (Tenn.   Crim   . App. 1981); Graves v. State, 512    S.W.2d    603, 604 (Tenn.    Crim   . App. 1973);see Tenn. R.    Crim   . P. 12(e).  6 6 Helvetica 6 6 6 Helvetica 6 "#+ܶ #+#Fܶ$$To be admissible as evidence, an identification must not have been6 #F#F 6conducted in such an impermissibly suggestive manner as to create a substantiallikelihood of irreparable misidentification. Simmons v. United States, 390 U.S. 377(1968). In Neil v. Biggers, 409 U.S. 188 (1972), the Supreme Court held that areliable identification procedure, even though suggestive, will not negate anidentification of the defendant. The factors determining whether the procedure wastoo suggestive to accept as reliable were determined to be the following: $#F$' '$ܶ   6ͪ 6   6ͫ 6ͷ$$(1) the opportunity of the witness to view the criminal at$' 'the time of the crime;#$$/#ܶ$/$=ܶ$$(2) the witness' degree of attention;#$=$K#ܶ$K$Yܶ$$(3) the accuracy of the witness' prior description of thecriminal;#$Y$u#ܶ$u$ܶ$$(4) the level of certainty demonstrated by the witness atthe confrontation; and #$$#ܶ $$ܶ$$(5) the length of time between the crime and theconfrontation.# $$#ܶ$ $$' '$ܶ  з 6ͪ 6   6ͫ 6 6 6ͷId. at 199.0 $$$f' '0ܶ $% ܶ$$Physical or photographic lineups are the preferred methods ofidentification. Either procedure has been determined to be much less suggestivethan a "showup," where the victim is either presented with a suspect or a singlephotograph of the suspect. State v. Terry M. Henderson, No. 01C019401CR 6 %^% 6 00012, slip op. 5 (Tenn. Crim. App., at Nashville, Oct. 6, 1994), app. denied, (Tenn.,Jan. 3, 1995). A showup consisting of a one-on-one confrontation between aneyewitness and a defendant, while not ideal, may meet constitutional guidelines ifconducted on-the-scene within a short time of the offense. Johnson v. State, 596S.W.2d 97, 103 (Tenn. Crim. App. 1979) (citing Russell v. State, 489 S.W.2d 535(Tenn. Crim. App. 1972); Bracken v. State, 489 S.W.2d 261 (Tenn. Crim. App.1972)).  6 6 Helvetica 6 6 6 Helvetica 6 "[T]he United States Supreme Court and this Court have repeatedlycondemned the use of showups to establish the identification of a personsuspected of committing a criminal offense unless (a) there are imperativecircumstances which necessitate a showup, or (b) the showup occurs as an onthe  scene investigatory procedure shortly after the commission of the crime." State v.Thomas, 780 S.W.2d 379, 381 (Tenn. Crim. App. 1989) (footnotes omitted); State v.Moore, 596 S.W.2d 841 (Tenn. Crim. App. 1980); State v. Robert L. Ware, Jr., No.M94161 (Tenn. Crim. App., at Knoxville, July 18, 1995), app. denied, (Tenn., Jan.8, 1996). A showup is sometimes considered reliable because of the temporalproximity to the offense; it "'fosters the desirable objectives of fresh, accurateidentification which in some instances may lead to the immediate release of aninnocent suspect and at the same time enable the police to resume the search forthe fleeing culprit while the trail is fresh.'" Moore, 596 S.W.2d at 844 (quoting Batesv. United States, 405 F.2d 1104, 1106 (D.C.Cir. 1968)).J% ' '' Jܶ''ܶ$$ 6 6 Helvetica 6The trial court found the showup to be properly conducted andconcluded that the identifications were reliable.  6 6 Helvetica 6Each witness had an opportunityto view the defendant under circumstances that would indicate attentiveness. Thesound of gunshots alerted both Ms. Seay and Ms. Parker to the incident in the bankparking lot. Ms. Seay, who stood within twentyfive feet of the defendant Wilkerson,recalled many details about his actions and the weapon he carried and was quitecertain about the accuracy of her identification. Ms. Parker's description ofWilkerson was also consistent with her prior statements and she expressedcertainty about the identity of the defendant Wilkerson.  6 6 Helvetica 6The showup wasconducted within an hour of the shooting. 6 6 Helvetica 6  6 6 Helvetica 6In this instance, the witnesses did notspeak to each other about what each had observed. Each made an identificationindependently. Neither witness identified Murphy. 6 6 Helvetica 6 In our view, the evidence doesnot preponderate against the trial court's findings. In consequence, we find noerror by the admission of the showup identification testimony of Ms. Seay and Ms.Parker.')eܶ 6 6 Helvetica 6ͷ 6 6 Helvetica 6 6 6 6 Helvetica 6 6 6 Helvetica 6 6ͷ)e)ܶ$$Clearly, the Gibson Drive showup was suggestive. The defendantswere handcuffed and sitting in police cars, the witnesses had discussed what theyhad seen, and their identifications were not entirely independent. By the use of the6 )) 6factors in Neil v. Biggers, however, the showup was not so suggestive as to createa likelihood of a misidentification. Both witnesses had an opportunity to view themen and had clearly focused their attention on their actions. Ms. Fought andPangburn provided police with consistent descriptions, although they were notparticularly detailed. Officer Sheffield testified that each witness positivelyidentified the defendants within thirty minutes of the initial sighting. The trial courtmade extensive findings. The evidence supports the ruling. In our view, theshowup identification testimony of Ms. Fought and Pangburn was properly admittedat trial.  6 6 Helvetica 6 )*ܶ**ܶ$$The defendant Wilkerson has also contended that the showupsdeprived him of his Sixth Amendment right to counsel. He argues that a defendanthas a right to counsel at a lineup identification after arrest without a warrant, citingGreer v. State, 443 S.W.2d 681, 686 (Tenn. Crim. App., 1969) and State v. Mitchell,593 S.W.2d 280, 187 (Tenn. 1980). *+vܶ+v+ܶ$$The trial court ruled on this ground as follows:$++' '$ܶ   6ͪ 6   6ͫ 6ͷ$$$[A] person's Sixth and Fourteenth Amendment+' 'right to counsel attaches only at or after the time theadversary judicial proceedings have been initiated. Andthat has been interpreted ... in Tennessee [to be] when a6 ++ 6person is taken before a magistrate and a warrant isissued, which was considered ... a formal charge. #+,#ܶـ***,,ܶ$$$So the Court is of the opinion, ... that the ... right tocounsel had not attached at the time of this showup thatwas within one hour of these men becoming suspects. So that ... will also be respectfully overruled.#,,V#ܶ$,V,d' '$ܶ   6ͪ 6   6ͫ 6ͷ0,d,,dp' '0ܶ$$A defendant has the right to counsel at all "'critical' stages in thecriminal justice process 'where the results might well settle the accused's fate andreduce the trial itself to a mere formality.'" Maine v. Moulton, 474 U.S. 159, 170(1985) (quoting United States v. Wade, 388 U.S. 218, 224 (1967)); Mitchell, 593S.W.2d at 286. In Tennessee, an arrest warrant, or a preliminary hearing if noarrest warrant is issued, or an indictment or presentment, when the charge isinitiated by the grand jury, marks the initiation of criminal charges to which the SixthAmendment right to counsel attaches. Mitchell, 593 S.W.2d at 286; State v. Frasier,914 S.W.2d 467 (Tenn. 1996). Because no formal criminal charges for theseoffenses had been initiated against Wilkerson, he did not have an unconditionalright to have counsel present at the showup. Mitchell, 593 S.W.2d at 287. Inconsequence, there was no violation of his Sixth Amendment right to counsel. ,-ܶ--ܶIIJ-- -- Jܶ$$The defendants challenge the trial court's instruction to the jury onparole eligibility. Each contends that Tenn. Code Ann.  4035201(b)(2) isunconstitutionally vague, violates due process by depriving the defendants of a fairand impartial jury, and infringes on constitutionally mandated separation of powers. The state responds that the statute is constitutional and the issue is waivedbecause the defendants requested this instruction. . .ܶ..ܶ$$The defendants requested a charge as to the range of punishment,Tenn. Code Ann.  4035201(b)(1), but objected to a charge on release eligibility,Tenn. Code Ann.  4035201(b)(2). The trial court refused to alter the instructionand gave it in its entirety. ./2ܶ/2/Mܶ$$For the offense of especially aggravated robbery, the defendantswould qualify for a sentence of between fifteen to twentyfive years and could beeligible for parole after serving as little as 1.77 years. Upon a conviction for firstdegree murder, the defendants would receive a life sentence and could be eligiblefor parole after twentyfive years. If convicted of theft, the defendants could beparoleeligible upon serving 0.24 years of a possible sentence between two andfour years. /M0 ܶJ0 0% 0 0% Jܶ$$The trial court also charged facilitation as lesser included offenses. Ifconvicted of facilitation to commit especially aggravated robbery, the defendantscould serve a sentence between eight to twelve years but could be eligible forrelease in as little as 0.94 years. For facilitation to commit first degree murder, thedefendants were subject to a sentence of fifteen to twentyfive years and might beeligible for parole after a service of 2.95 years. Convictions for facilitation of theftwould result in a sentence of one to two years and possible parole eligibility afterservice of 0.20 years. Finally, the court instructed that a joyriding conviction carrieda sentence of eleven months and twentynine days. The jurors were instructed thatthey could "weigh and consider the meaning of a sentence of imprisonment."  051Cܶ1C1^ܶ$$In State v. Howard E. King, ___ S.W.2d ___, No. 02S019703CR  00021 (Tenn., at Jackson, July 6, 1998), the defendant challenged theconstitutionality of Tenn. Code Ann.  4035201(b)(2) (Supp. 1994), claiming thestatute violated separation of powers and due process. Slip op. at 5. The courtupheld the statute:$1^1' '$ܶ   6ͪ 6   6ͫ 6ͷ$$We conclude that Tenn. Code Ann.  4035201(b)(2)1' 'does not violate the Separation of Powers Clauses ofthe Tennessee Constitution. Neither is the statuteimpermissibly vague, nor does it require a misleadingjury instruction. Additionally, we are satisfied that thejury based its verdict upon the law and evidence, in6 2+1 6accordance with the instructions of the trial court. Thus,we find that neither the Due Process Clause of theUnited States nor the Tennessee Constitution wasviolated by the jury instruction given pursuant to the' 'statute.   ; #1228' ';ܶ 6 6 6 6ͷId., slip op. at 17. The court was careful to limit its holding to the circumstances ofthe case:$%22' '$ܶ   6ͪ 6   6ͫ 6ͷ$$Significantly, [the jury members] were additionally2' 'instructed that they were not to attempt to fix punishmentfor the offense and that the sentencing information was"for your information only." When the trial court explains,as it did here, that the sentencing, parole, and earlyrelease information is not to be considered in thedetermination of guilt or innocence, then certainly nodue process violation has occurred.#-23B#ܶ$.3B3P' '$ܶ  з 6ͪ 6   6ͫ 6 6 6ͷId., slip op. at 16 (emphasis added); but see State v. Jason M. Weiskopf, No.3P' '02C019611CR00381, slip op. at 7 (Tenn. Crim. App., at Jackson, Feb. 4, 1998),app. pending, (May 6, 1998).13P3ܶ233ܶ$$In Weiskopf, this court found plain error in the jury charge because thejury was instructed they could "weigh and consider the meaning of a sentence ofimprisonment." Weiskopf, slip op. at 8. Under our law, the jury determines the guiltor innocence of the accused but does not determine the length of imprisonment. Id.; Tenn. Code Ann.  4035201(a). Such an instruction is constitutionally infirmbecause the jury is permitted to base its decision on information other than that6 4C84y 6adduced at trial. Weiskopf, slip op. at 9. 934ܶ:44ܶ$$Erroneous jury instructions do not constitute reversible error in everyinstance, however. State v. Bush, 942 S.W.2d 489, 505 (Tenn. 1997). InWeiskopf, the primary issue was the degree of homicide. Weiskopf, slip op. at 9. The court found harmful error because it could not conclude that the "ridiculouslylow, earliest release eligibility dates of 1.06 years and 0.21 years for seconddegree murder and voluntary manslaughter, as compared to the earliest releaseeligibility date of twentyfive (25) years for first degree murder ... had no impactupon the jury ...." Id., slip op. at 10.B45|ܶC5|5ܶ$$ Here, the trial court charged the jury with the same instructionprovided in Weiskopf, i.e., that the jury may "weigh and consider the meaning of asentence of imprisonment." The primary issue for the jury was identity, not thedegree of homicide. The state presented a strong case which consisted ofnumerous eyewitnesses who testified confidently and consistently as to what eachhad observed. The state presented numerous items of physical evidence,including palm prints, clothing, and photographs of the stolen vehicle. The proofincluded the murder weapon, which contained three spent casings, bulletfragments from the victim's car that were conclusively fired from the murder6 6oL5 6weapon, and the proceeds of the robbery still contained in locked "Rivergate 8"bank bags. The defendants presented no proof. In our view, this was not a case inwhich the jury may have imposed a guilty verdict for felony murder in order toensure the defendants served a greater sentence. Thus, the instruction washarmless beyond a reasonable doubt. See State v. Michael Dinkins, No. 02C01  9702CE00075 (Tenn. Crim. App., at Jackson, Mar. 12, 1998) (holding thatcharging the parole eligibility instruction was harmless error). S57Wܶ 6 6 Helvetica 6 6 6 6 Helvetica 6 6ͷT7W7rܶ܀IIIU7r7ܶ$$ 6 6 Helvetica 6The defendant Murphy contends that the evidence is insufficient tosupport the verdicts of guilt for  6 6 Helvetica 6especially aggravated robbery  6 6 Helvetica 6and felony murder 6 6 Helvetica 6. On appeal, of course, the state is entitled to the strongest legitimate view of theevidence and all reasonable inferences which might be drawn therefrom. State v.Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, theweight to be given their testimony, and the reconciliation of conflicts in the proof arematters entrusted to the jury as trier of fact. Byrge v. State, 575 S.W.2d 292, 295(Tenn. Crim. App. 1978). When the sufficiency of the evidence is challenged, therelevant question is whether, after reviewing the evidence in the light mostfavorable to the state, any rational trier of fact could have found the essentialelements of the crime beyond a reasonable doubt. State v. Williams, 657 S.W.2d6 8`8 6405, 410 (Tenn. 1983); Tenn. R. App. P. 13(e). a78ܶ 6 6 Helvetica 6ͷ 6 6 Helvetica 6 6 6 6 Helvetica 6 6 6 Helvetica 6 6ͷb88ܶ 6 6 Helvetica 6 6 6 6 Helvetica 6 6ͷ$$At the time of the offenses, felony murder was defined under the 1989Act as "a reckless killing of another committed in the perpetration of, or attempt toperpetrate any first degree murder, arson, rape, robbery, burglary, theft, kidnappingor aircraft piracy." Tenn. Code Ann.  3913202(a)(2) (Supp. 1994). To sustain aconviction for felony murder, "the killing must have been in pursuance of, ratherthan collateral to the unlawful act described by the statute." State v. Severs, 759S.W.2d 935, 938 (Tenn. Crim. App. 1988). The death of the victim must have had"an intimate relation and close connection with the felony, ... and not be separate,distinct, and independent from it ...." Farmer v. State, 296 S.W.2d 879, 883 (Tenn.1956).  l8: ܶm: :%ܶ$$Robbery is defined as "the intentional or knowing theft of propertyfrom the person of another by violence or putting the person in fear." Tenn. CodeAnn.  3913401(a). Especially aggravated robbery is robbery "[a]ccomplishedwith a deadly weapon; and ... [w]here the victim suffers serious bodily injury." Tenn.Code Ann.  3913403(a). r:%:ܶs::ܶ$$The mental state of intentional is satisfied "when it is the person's6 :t: 6conscious objective ... to engage in the conduct or cause the result." Tenn. CodeAnn.  3911302(a). A person acts knowingly "when the person is aware that theconduct is reasonably certain to cause the result." Tenn. Code Ann.  3911  302(b). One is reckless "when the person is aware of but consciously disregards asubstantial and unjustifiable risk [and to do so] constitutes a gross deviation fromthe standard of care that an ordinary person would exercise ...." Tenn. Code Ann. 3911302(c). 6 6 Helvetica 6{:;ܶ|;;ܶ$$ 6 6 Helvetica 6Accomplice liability provides a basis for conviction of the defendantMurphy. Tenn. Code Ann.  3911302(a).  6 6 Helvetica 6In State v. Maxey, 898 S.W.2d 756, 757(Tenn. Crim. App. 1994),  6 6 Helvetica 6 6 6 Helvetica 6this court held that the statute attaching criminal liabilityfor the conduct of another requires the culpable mental state of intent.  6 6 Helvetica 6 6 6 Helvetica 6Knowing,reckless, and negligent mental states are insufficient. Id. For the evidence to besufficient to sustain a conviction under the criminal responsibility for the conduct ofanother statute, there must be proof that the defendant intended, as defined inTenn. Code Ann.  3911302(a), to promote or assist the commission of theoffense, or to benefit in the proceeds or results of the offense. Tenn. Code Ann. 3911402(2). In addition, there must be proof that the defendant solicited,directed, aided, or attempted to aid another to commit the offense. Id.  6 6 Helvetica 6An aider andabettor under our code may be held responsible not only for the intended criminal6 <; 6offense but also for any other crime committed by an accomplice as a "natural andprobable consequence of the crime originally aided and abetted." State v. Carson,950 S.W.2d 951, 952 (Tenn. 1997). 6 6 Helvetica 6;=oܶ 6 6 Helvetica 6 6 6 6 Helvetica 6 6ͷ=o=ܶ$$Taking the facts in a light most favorable to the state, a rational trier offact could have found that the defendant Murphy stole the Cutlass for the purposeof committing a robbery. He then drove the vehicle to the bank parking lot andstopped quickly next to the victim's car so that the defendant Wilkerson could shootthe victim and grab the bank bags. Murphy fled the scene in the stolen vehicle withWilkerson and the proceeds. Several blocks away, Murphy hurriedly abandonedthe vehicle and Wilkerson hid the contraband. Murphy ordered Wilkerson, "hurryup." =>bܶ>b>}ܶ$$The jury may infer the intent of the accessory from his "presence,companionship, and conduct before and after the offense ...." State v. McBee, 644S.W.2d 425, 42829 (Tenn. Crim. App. 1982). Murphy's intent to rob the victim maybe inferred from his actions in stealing and driving the car, stopping beside thevictim, making a getaway, waiting for Wilkerson to hide the proceeds and weapon,and attempting to evade authorities. In our view, a rational trier of fact could havefound Murphy guilty as an accomplice to especially aggravated robbery and first6 ??U 6degree felony murder. >}?eܶ?e?ܶۀIV??ܶ$$The defendant Murphy also maintains that the trial court erred byadmitting a "life photograph" of the victim. The state responds that the photographwas properly admitted to prove the identity of the victim. ??ܶ 6 6 Helvetica 6 6 6 6 Helvetica 6 6ͷ?@ܶ$$The admissibility of photographs is governed by Tenn. R. Evid. 403. See State v. Banks, 564 S.W.2d 947 (Tenn. 1978). "Although relevant, evidencemay be excluded if its probative value is substantially outweighed by the danger ofunfair prejudice, confusion of the issues, or misleading the jury ...." Tenn. R. Evid.403. The evidence must be relevant and its probative value must outweigh anyprejudicial effect. Banks, 564 S.W.2d at 95051. Whether to admit the photographsis within the discretionary authority of the trial court and will not be reversed absenta clear showing of an abuse. State v. Dickerson, 885 S.W.2d 90, 92 (Tenn. Crim.App. 1993); State v. Allen, 692 S.W.2d 651, 654 (Tenn. Crim. App. 1985). Photographs of homicide victims, while alive, should not be admitted at trial unlessrelevant to a material issue; however, such an error is almost always harmless. See, e.g., State v. Strouth, 620 S.W.2d 467 (Tenn. 1981). @AKܶJAKAf AKAf Jܶ$$In our view, the "life photograph" was improperly admitted.  6 6 Helvetica 6 Helvetica 6"[I]t addedlittle or nothing to the sum total of knowledge of the jury." See State v. ChristopherS. Beckham, No. 02C019406CR00107, slip op. at 1920 (Tenn. Crim. App., atJackson, Sept. 27, 1995) (remanded for sentencing). In Beckham, wherephotographs of the deceased victim prior to death were admitted, this courtrecognized that the "evidence appears to have been offered by the prosecution forthe sole purpose of invoking the sympathy of the jury." Beckham, slip op. at 20. Nonetheless, in context of the record as a whole, the error was found to beharmless. Id. We reach the same conclusion here. Although the photographs ofthe victims prior to their deaths usually have no probative value, we cannot say thatthe trial court so abused its discretion by their admission so as to have affected theverdict. AvBܶ 6 6 Helvetica 6 6 6 6 Helvetica 6 6ͷBBܶVBBܶ$$The defendant Murphy argues that the trial court improperly allowedprosecution witness Newland to testify and, alternatively, that the trial court shouldhave granted him a continuance. The state, however, maintains that the defendantwas provided with a summary of Newland's expected testimony three days prior totrial and had an opportunity to interview Newland before he testified. BCwܶJCwC Cw C Jܶ$$Murphy relies upon Tenn. Code Ann.  40-17-106, which creates theduty for the district attorney general to endorse on each indictment or presentmentthe names of the witnesses he intends to summon for the state. It is well settled inTennessee that this provision is directive, rather than mandatory. State v.Hutchison, 898 S.W.2d 161, 170 (Tenn. 1994); State v. Harris, 839 S.W.2d 54, 69(Tenn. 1992); State v. Street, 768 S.W.2d 703, 711 (Tenn. Crim. App. 1988); Statev. Crabtree, 655 S.W.2d 173, 177 (Tenn. Crim. App. 1983); Thomas v. State, 465S.W.2d 887, 889-90 (Tenn. Crim. App. 1970). The purpose of this section is to limitthe possibility of surprise and to provide the defendant a basis upon which toprepare a theory of defense against his accusers. State v. Melson, 638 S.W.2d342, 364 (Tenn. 1982); Street, 768 S.W.2d at 710-11; State v. Roberson, 644S.W.2d 696, 699 (Tenn. Crim. App. 1982). The failure to list or provide the namesof witnesses neither disqualifies the witness nor entitles the defendant to relief,unless prejudice can be shown. Hutchison, 898 S.W.2d at 170; Harris, 839 S.W.2dat 69; Roberson, 644 S.W.2d at 699. "In this context, it is not the prejudice whichresulted from the witnesses testimony but the prejudice which resulted from thedefendant's lack of notice which is relevant...." State v. Jesse Eugene Harris, No.88-188-III (Tenn. Crim. App., at Nashville, June    7), app.    denied, (Tenn., Aug. 7,1989). Because Murphy had notice of the content of Newland's testimony and hadan opportunity to interview him, we find no prejudice.JCE E!!E JܶEEܶ$$The law addressing Murphy's alternative contention, the grant of acontinuance, is also well settled. The grant or denial of a continuance rests withinthe sound discretion of the trial court. State v. Seals, 735 S.W.2d 849, 853 (Tenn.Crim. App. 1987). Its determination will not be overturned unless there is "a clearshowing of an abuse of discretion, to the prejudice of the defendant." Woods v.State, 552 S.W.2d 782, 784 (Tenn. Crim. App. 1977); Frazier v. State, 466 S.W.2d535, 537 (Tenn. Crim. App. 1970). Murphy had knowledge of Newland's testimonyand an opportunity to interview him. In this instance, the trial court did not abuse itsdiscretion.  EFܶFFܶۀVIFGܶ$$Murphy and Wilkerson challenge the length and manner of service oftheir sentences. When there is a challenge to the length, range, or manner ofservice of a sentence, it is the duty of this court to conduct a de novo review with apresumption that the determinations made by the trial court are correct. Tenn.Code Ann.  4035401(d). This presumption is "conditioned upon the affirmativeshowing in the record that the trial court considered the sentencing principles andall relevant facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn.1991); see State v. Jones, 883 S.W.2d 597 (Tenn. 1994). "If the trial court applies6 G""G 6inappropriate factors or otherwise fails to follow the 1989 Sentencing Act, thepresumption of correctness falls." State v. Shelton, 854 S.W.2d 116, 123 (Tenn.Crim. App. 1992). The Sentencing Commission Comments provide that the burdenis on the defendant to show the impropriety of the sentence.  GHfܶHfHܶ$$Our review requires an analysis of (1) the evidence, if any, received atthe trial and sentencing hearing; (2) the presentence report; (3) the principles ofsentencing and the arguments of counsel relative to sentencing alternatives; (4) thenature and characteristics of the offense; (5) any mitigating or enhancing factors;(6) any statements made by the defendant in his own behalf; and (7) thedefendant's potential for rehabilitation or treatment. Tenn. Code Ann.  4035  102, 103, and 210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987). The record in this case demonstrates that the trial court made adequate findings offact.  HItܶItIܶ$$In calculating the sentence for felony convictions committed beforeJuly 1, 1995, the presumptive sentence is the minimum within the range if there areno enhancement or mitigating factors. Tenn. Code Ann.  4035210(c) (1990)(amended July 1, 1995 to provide that the presumptive sentence for a Class Afelony as the midpoint in the range). If there are enhancement factors but no6 I##I 6mitigating factors, the trial court may set the sentence above the minimum. Tenn.Code Ann.  4035210(d). A sentence involving both enhancement and mitigatingfactors requires an assignment of relative weight for the enhancement factors as ameans of increasing the sentence. Tenn. Code Ann.  4035210. The sentencemay then be reduced within the range by any weight assigned to the mitigatingfactors present. Id.  IJܶ$$JJܶ$$At the sentencing hearing, the trial judge found that Wilkerson andMurphy have a history of criminal behavior in addition to that necessary to establishthe appropriate range of sentencing. Tenn. Code Ann.  4035114(1). As toWilkerson, the court found that he had a history of unwillingness to comply with theconditions of a sentence involving release to the community. Tenn. Code Ann. 4035114(8). The court stated that it gave a "great amount of weight" to theseenhancement factors, found no mitigators and imposed maximum sentences oftwentyfive years for especially aggravated robbery and four years for theft. JKܶKKܶ$$We affirm the imposition of the maximum sentence for theft. The trialcourt, however, erroneously applied Tenn. Code Ann.  4035210(c) (1995), notyet in effect at the time these offenses were committed, to enhance the sentence forespecially aggravated robbery. That statute provides that the presumptive6 L'$$K 6sentence is the midpoint in the range rather than the minimum. Thus, there is nopresumption of correctness as to the sentence imposed for the Class A felony ofespecially aggravated robbery. Our review of that sentence must be de novo. KLܶLLܶ$$The defendant Murphy has an extensive criminal history. As ajuvenile, he was placed in an intervention program for malicious destruction ofproperty and truancy. He also committed third degree burglary and was placed onprobation. The same year he was adjudicated for malicious destruction of property,grand larceny, and violation of probation. As an adult, he incurred a plentitude ofcharges, many of which resulted in convictions. For example, he was convicted ofpossession of a weapon with intent to go armed in 1989, reckless endangermentand two instances of theft of property in 1991. In 1993, he was convicted of severalcounts of theft and placed on probation. The instant offenses occurred in 1994,while he was on probation. Murphy refused to provide any information regardinghis mental or physical health or employment or family background.  #LMܶ$MNܶ$$The defendant Wilkerson also has a lengthy criminal record. In 1991,he was arrested and convicted of resisting arrest and driving on a suspendedlicense. He also accumulated misdemeanor convictions for theft of property,possession of a weapon, driving on a revoked license, criminal impersonation, and6 NS(%%N 6a probation violation. Wilkerson left school in the tenth grade and has a history ofmarijuana, cocaine, heroin and alcohol abuse. He admitted to selling cocaine ashis livelihood. +NNܶ,NNܶ$$The defendants' sentences for especially aggravated robbery warrantenhancement. Wilkerson has a history of criminal convictions and criminalbehavior, Tenn. Code Ann.  4035114(1), and a history of unwillingness tocomply with conditions of a sentence involving release to the community, Tenn.Code Ann.  4035114(8). Murphy likewise has a history of criminal convictionsand behavior, Tenn. Code Ann.  4035114(1), and he was on probation whilethese offenses were committed, Tenn. Code Ann.  4035114(13). Beginning atthe minimum in the range, which is fifteen years, and giving great weight to theseenhancement factors, we arrive at a sentence for each defendant of twentyoneyears for especially aggravated robbery.  6NOܶ7OPܶ$$Prior to the enactment of the Criminal Sentencing Reform Act of 1989,the limited classifications for the imposition of consecutive sentences were set outin Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976). In that case our supreme courtruled that aggravating circumstances must be present before placement in any oneof the classifications. Later, in State v. Taylor, 739 S.W.2d 227 (Tenn. 1987), the6 P<&&P 6court established an additional category for those defendants convicted of two ormore statutory offenses involving sexual abuse of minors. There were, however,additional words of caution: $?PP' '$ܶ   6ͪ 6   6ͫ 6ͷ$$[C]onsecutive sentences should not routinely bePQ' 'imposed . . . and . . . the aggregate maximum ofconsecutive terms must be reasonably related to the' 'severity of the offenses involved.  ;CPQ@Q%{' ';ܶTaylor, 739 S.W.2d at 230. The Sentencing Commission Comments adopted thecautionary language. Tenn. Code Ann.  4035115. The 1989 Act is, in essence,the codification of the holdings in Gray and Taylor; consecutive sentences may beimposed in the discretion of the trial court only upon a determination that one or' 'more of the following criteria 6{WP}11  1   N 6&& "H~@' '" 6{WP}10 <<KK  6Times 6{WP}12HH~$$  1   6 6 Helvetica 6  6 6Times 6 6 HelveticaThe first four criteria are found in Gray. A fifth category in Gray, based on a specific number of'  'prior felony convictions, may enhance the sentence range but is no longer a listed criterion. See'  'Tenn. Code Ann.  4035115, Sentencing Commission Comments. 6 6Times 6 6Courier$&$N֭ exist:0HQ@QQ' '0ܶ   6ͪ 6   6ͫ 6ͷ$$(1) The defendant is a professional criminal who hasQ!' 'knowingly devoted himself to criminal acts as a majorsource of livelihood;#KQQ#ܶLQRܶ$$(2) The defendant is an offender whose record ofcriminal activity is extensive;#NRR#ܶORR-ܶ$$(3) The defendant is a dangerous mentally abnormalperson so declared by a competent psychiatrist whoconcludes as a result of an investigation prior tosentencing that the defendant's criminal conduct hasbeen characterized by a pattern of repetitive orcompulsive behavior with heedless indifference to6 RsU''8R 6consequences;#VR-R#ܶWRRܶ$$(4) The defendant is a dangerous offender whosebehavior indicates little or no regard for human life, andno hesitation about committing a crime in which the riskto human life is high;  #[RR#ܶ\RRܶ$$(5) The defendant is convicted of two (2) or morestatutory offenses involving sexual abuse of a minor withconsideration of the aggravating circumstances arisingfrom the relationship between the defendant and victimor victims, the time span of defendant's undetectedsexual activity, the nature and scope of the sexual actsand the extent of the residual, physical and mentaldamage to the victim or victims;#dRSc#ܶeScSqܶ$$(6) The defendant is sentenced for an offensecommitted while on probation;#gSqS#ܶhSSܶ$$(7) The defendant is sentenced for criminal contempt.# iSS#ܶ$ jSS' '$ܶ   6ͪ 6   6ͫ 6ͷTenn. Code Ann.  4035115(b).0 kSSS&' '0ܶ lSSܶ$$In Gray, our supreme court ruled that before consecutive sentencingcould be imposed upon the dangerous offender, as now defined by subsection(b)(4) in the statute, other conditions must be present: (a) that the crimes involvedaggravating circumstances; (b) that consecutive sentences are a necessary meansto protect the public from the defendant; and (c) that the term reasonably relates tothe severity of the offenses. rSTܶJsTT Ts((T Jܶ$$In State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995), our highcourt reaffirmed those principles, holding that consecutive sentences cannot berequired of the dangerous offender "unless the terms reasonably relate[] to theseverity of the offenses committed and are necessary in order to protect the public(society) from further criminal acts by those persons who resort to aggravatedcriminal conduct." The Wilkerson decision, which modified somewhat the strictfactual guidelines for consecutive sentencing adopted in State v. Woods, 814S.W.2d 378, 380 (Tenn. Crim. App. 1991), described sentencing as a "humanprocess that neither can nor should be reduced to a set of fixed and mechanicalrules." Wilkerson, 905 S.W.2d at 938.  }TUܶ~UUܶ$$The trial court ordered the defendants to serve each sentenceconsecutively, including the life sentence, for an effective sentence of life plustwentynine years. The trial court found Wilkerson to be a dangerous offender withan extensive criminal history who had no regard for human life. Tenn. Code Ann.4035115(b)(2), (4). As for Murphy, the court ruled that he had an extensivecriminal history and committed the offenses while on probation. Tenn. Code Ann. 4035115(b)(2), (6). In our view, the court's decision to impose consecutivesentences is more than adequately supported by the record. These offensesinvolved aggravating circumstances and the length of sentence is reasonably6 V))U 6related to the severity of the crimes involved which resulted in a senseless andrandom loss of life. That the defendants committed a crime of violence with the useof a weapon justifies a lengthy period of incarceration in order to protect the publicfrom future harms.  UWRܶWRWmܶ$$Accordingly, the judgment of the trial court is affirmed. Thedefendants' sentences for especially aggravated robbery are modified to twenty  one years. As a result, the effective sentence for each defendant is life plus twenty  five years. $WmW' '$ܶ   6ͪ 6   6ͫ 6ͷ0WWW' '0ܶ$$$$$$__________________________________WXܶ$$$$$$Gary R. Wade, JudgeXXܶXXܶXX-ܶCONCUR: X-X;ܶ X;XIܶ XIXWܶ________________________________ XWXeܶThomas T. Woodall, Judge XeXsܶXsXܶXXܶ________________________________XXܶL.T. Lafferty, Special Judge