# FILED
November 26, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE JULY SESSION, 1997 STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9611- CR-00408 ) Appellee, ) ) ) KNOX COUNTY VS. ) ) HON. MARY BETH LEIBOWITZ CHRISTA GAI L PIKE, ) JUDGE ) Appe llant. ) (First Degree M urder-Dea th Penalty)

ON APPEA L FROM THE JUDGMENT OF THE CRIMINAL COURT OF KNOX COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : WILLIAM C. TALMAN JOHN KNOX WALKUP P.O. Box 506 Attorney Generaland Reporter Knoxvill e, TN 37901-0506 KATHY MORANTE JULIE A. MAR TIN Assistant Attorney General P.O. Box 426 425 5th Avenu e North Knoxvill e, TN 37901-0426 Nashvill e, TN 37243 RANDALL E. NICHOLS Distri ct Attor ney General WILLIAM CRABTREE S. JO HELM Assistant Distri ct Attor neys General City-County

Building Knoxvill e, TN 37902
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE-2- 

# OPINION

In this capi tal case, the Defen dant, Ch rista Gail Pike, was convicted of first degree murd er a nd c onsp iracy to comm it fir

st degree murder. Af ter the sentencing hear ing, the j ury found two aggravat ing circ umstances: (1) That the murder was extremely heinous, atroci ous o r cruel i n that it involved tortur

e or serious physical abuse beyond that necessary to produce death; and (2) that the murder was committed for the purpose of

avoiding, interfering wit h or preventi ng a lawful ar rest or pr

osecution of

the Defend ant or anoth er. Ten n. Cod e Ann. § 39-13-204(i )(5) and (6). The j ury found t hat the State had prov en beyon d a
reaso nable doubt thatthe aggravat ing circ umstances outweighed any mitigati ng circumstanc es and sentenced the Defendant to deat h by electr ocution. The Defendant was also sentenced to a consecutive se nte nce of twenty-five(25) years for

the conspir

acy to commit f irst degr ee murder convict ion.
On appeal, the Defen dant rai ses the followi ng issues for our revi ew: (1) Whether the evidence was suf ficien t to support

the verdictof first

degree murder and conspiracy to com mit first degree murder and the s entence of deat h; (2) whether the trial cou rt erred by refu sing to prohib it the news media from covering pretrialproceedings; (3) whether thetrialcourt err ed by refusing t

o grant the Defendant’s moti on for a change of venue; (4) whether the t rial cour t erred b y fail ing to al low the Defendant to selecta jury com posed of a cross-sect ion of the ci tizens of

Tennessee; (5) wheth er the tr ial cou rt erred by allow ing the skull of the vict im into evi dence; (6) whethe r death by electr ocution i s cruel and unusual punishment under the federal and state const itutions;-3- (7) whether the trial cou rt err ed in allowing the state and the Defendant t he same number of per emptor y challenges; and (8) whether thetrial court erre d in its sentencing on t he conspiracy t

o commit fir

st degree murder con victi on. After a review of

the record, we affirm both the convicti ons and the senten ce of dea th.


### BACKGROUND
On January 13, 1995, N. Duncan Whitaker Sutherl and, an employee of the University of Tennessee Grounds Department, di scovered the se mi-nude, slashed and badly

beaten body of a young female near t he greenhouses on the agricu ltural cam pus. He imme diately notified officials.

Officers from the Knoxvill e Police Department and the U.T. Police Department were summ oned to the scene. Off icer John Terr y Johnson test ified at trialthat thebody he found was l ying face down o n debris and was nude f rom the waist up. Blood a nd dirt covered the body and remaining cl othing, andit was apparentthat the victim’s head had been bludgeoned. Multipl e cuts and slas hes appeared on the torso. Officer Johnson stated th at he thought he was looking at the vict im’s face but

he could not be s ure because it was extremely

mutilate d.

As other off icers arrived, they be gan s ecuring thecri me area. The area of the crime s cene tr ipled as of ficers di scovered other spots of bl ood, arti cles of clo thing , footprin ts, and broke n foliag e. W hen o fficers tu rned th e bod y over, it appeared that the v ictim’ s throat had been slashed. A r ag was around th e victi m’s neck. Detec tive Donald R . Cook, of the U .T. Police De part ment ,-4-

accompanied the body to the morgue, and he testi fied at t rial t hat after t he body
was c leaned, i t was apparent t hat a design r esembling a pentagr

am had been carved in the victim’s c hest.

Dr. Sandra Elkins, the Knox County Medi cal Examiner, testif ied at trial that she had per

formed t he au top sy o n th e vi cti m, who was later i dentifi ed by dental records as Col lee n Slem mer. S he tes tified tha t after re movin g the vic tim’s clothi ng and cleaning the body, she had started with the torsoto document major sharp force or

slash and stab wounds. If it was a fairly majorwoun d, she would
measu re it and assign it a letter. Utilizing a cha rt to demons trate her findings, Dr. Elkins described each majo r woun d, later e xplainin g that a t som e poin t it bec ame obvious that if

she l abel ed each wound, she would h ave to go thr ough the alphabetagain, an d unless she “wa nted to sta y there for th ree days, ” she “basic ally threw up [her ] hands and just

said, enume rable [sic] more superfic ial slash wo unds o n the ba ck, arm s and ch est.”

Dr. Elkins no ted num erous s lash and stab wo unds o n the ba ck, a rms, abdomen, and chest. She described a six inch g aping woun d acro ss the midd le of the victim’s n eck wh ich had p enetrate d the fat a nd muscles of the n eck and stated that

she had found ten additional s lash wounds on the vict im’s neck and in the throat area. Other slash wounds were on the vi ctim’s face and it appear ed thata pentagram had been carved on her chest. Dr. Elki ns repeatedly stated that throughout

the infliction of eac h of the se inju ries, sh e was med ically ce rtain that the victi m had been alive because of the vi tal react ion app ear ing around each wound. She stated th at the area ar ound ea ch wound wa s red in appear ance, indicat ing that the he art had stil l been beati ng when the wound was infl icted. She-5-

also testif ied that n one of the aforem entioned wo unds wou ld have rendered the victim unconscious.

Dr. Elkins testifi ed that the cause of death was bl unt force injur ies to t he head. She sta ted that the skull show ed a m inimum of four blow s to the head; t wo to the left

side of t he head, one over the right eye, and one in the nose area. The right frontalarea of the s kull had been f ractured as had the bridgeof the n ose. However, the major

wound, label ed as injur y “W”, invol ved most ofthe left side of the head. D r. Elkins determ ined that this injury, cause d by a bluntblow to the left side of t he head, had fractur ed the right

side of the skull and imbedde d part of the skull in th e victim’s b rain. She also found sma ll divots in the sk ull containi ng black part iclesfrom an asphalt chunk which was l aterdeterm ined to have been used to administer the blows.
During this port ion of her testimony, Dr. Elkinswa s allowed to use the victim’s skull to describe t he injuri es. She testified that in order to determine the
cause of death, it was necessary to remove the head of the vict im and have the skull prepared b y Dr. Murray Marks, a forensic anthropologi st atthe Univers ity of Tennessee. She explained that she had cut thetop porti on of the skul l in order to remove the br ain and when she had removed t he brain, s he discovered t hat loose pieces of sku ll were driven into it. She testifi ed thatat that time it seemed there was a larger ho le i n the skullthan the pi eces she had removed fr om the brain would fil l. Dr. Marks had pieced together those loose portion s of the skull and h ad f itted the m into the l eft sidearea of the he ad. Dr. Elk ins then showed the jury a pi ece of skullthat had been gi ven to her t he Friday before the trial and demonstrated that it

fit per fectly into the rest of t he skull. The skull, numerous photog raphs, a nd item s of the victim ’s clothing w ere introd uced into evidenc e.-6- Rober t A. Pollock, the or ientati on speciali st at Knoxvi lle Job Corps, testif ied thathe had spoken with theDefendant on January 13, 1995, concerning a misplaced I.D. card. He st ated tha t after the Defendant had l eft, he not iced a black leather j acket hanging on t he chair where s he had sat. He te stifi ed that he had locked the r

oom at approximately 4:00 p.m. t hat dayand did not return until 7:30 a.m., January

17. He stated t hat on the 17t h, he found the jac ket still hanging on the ch air and took it to the Job Corps’Safety and Secur ity Captai n, William Hudson. Hudson testified that he had called t he Kno x ville Poli ce Depa rtment a nd that O fficer Arthu r Boha nan ha d picked up the jac ket.

Officer Bohanan identi fied the coat, and i t was intr oduced into ev idence. He testif ied that h e had discovere d a small pieceof bone in the i nside pocket of the coat and ha d imme diately taken it to Dr. Mark s at the Universi ty of Tennessee. Dr. Marks testifi ed concerning th e process by whi ch the skullhad been prepared and again demonstrated that the bone fragment gi ven to him by Officer Bohanan fit per

fectly into thebone reconstruc tion of t he skull of

the vi cti m.

Kim Iloil o, a Job Corps resi dent/student and frie nd of the D efenda nt, testif ied that the Defendant told her on January 11 , 1995, theday before t he murder, that she w as going to kill Coll een Slemmer because “she just felt mean thatday .” The followi ng day, the Defendant met Il oilo i n the parki ng lot at appro ximate ly 4:00 p.m. and told her that she needed to find Shadoll a Peterson. Laterthatevening, at approxi mately 8:00 p. m., Iloi lo saw the Defendant leave the Job C or ps Center wit h the vict im, Tadaryl Shi pp, and Shadoll a Peterson. She
saw Shipp return to the C enter a t appro ximate ly 10:15 p.m. The Defendant and Peterso n returne d five minu tes later.-7- Iloilo testif ied that t he Defendant then came to her room to tell her that she had just killed Collee n Slem mer. T he De fenda nt sho wed Ilo ilo a pie ce of Slemmer’s skullshe had kept as a souvenir. The Defendant told Il oilo that she had cut Slem mer’s throat, had beaten he r, and had thrown pieces of asphalt at her head. T he De fendan t stated tha t as she w as cutting Slemm er’s throat, Slemmer was asking her to stop, but that sh e continu ed to cut her throat because “she kept tal king.” I loilo stated that as the Defendant de scribed hi tting Sl emmer in the head wit h a piece of asph alt and car ving a pentagr

am in her chest, she danced around in a ci rcle, smi ling and si nging. Iloil o testifi ed that at breakfast the next morning, Il oilo asked t he Defendant abou t the p iece of skul l and the Defendant told her it wa s in her po cket, stating “And, yes , I ’m ea ting breakfast with it.” Iloilo identified th e black ja cket that h ad previo usly bee n introdu ced into evidence as one si milar to a jacket t he victi m often wore.

On cross-exam in ation, I loilo admitted that she did nothi ng when the Defendant told her of

her intent ion to killSlemmer because she had ju st “bl own [it] off as soon as it was said.” She testifi ed that she had never seen the Defendant fi ght with any one else.
Steph anie Leigh Wilson, another resident/st udent at th e Job Co rps Center, testif ied that on Jan uary 13, 1995, she had been i n class wit h the Defendant when the De fenda nt told her to look at the Defendant’s shoes, stating, “Tha t ain’t mud on my sho es. That’s bloo d.” Wilson stated t hat the Defendant then showed her a piece of human skul l and tol d her that sh e had slashe d Sl emmer’s throat and had beaten her in the head with a rock . On cros s-examinati on, Wilson admitted that in a prior statement to pol ice offi cers, she had stat ed that t he Defen dant told h er that the k illing “had be en a sp ur of the m omen t thing.”-8- Randy York, a criminal invest igator with t he Knoxville Poli ce Depa rtment, testif ied that he had been assigned this case on January 13, 199 5. He testi fied thaton the fol lowing day, he interv iewed the Defendant and TadarylShipp at the Police Depart ment and that he had i nformed them of thei r rights and had taken
a statement f rom the Defendant. He stated thatthe De fenda nt expla ined in detail how the kil ling had o ccurred and told him t hat the bl ood-stained j eans she had
worn during the incident w ere still in her ro om. Sh e also told Offi cer York that she had discarded t

wo pieces of I .D. ofthe vict im and the victi m’s black gloves in a trash can at

a Texaco stati on on Cumb erland Aven ue. The D efendant ga ve consent to search her room an d then we nt with York back to the Jo b Corps C enter
. From there the Defendant retr aced her steps, describi ng what had occurred on the night o f the killing . She e ventu ally took Offi cer York to t he exact locati on where the body was found. The Defendant later gave a tape- recorded statem ent, which w as transc ribed in so me fo rty-six (4 6) pages. Copies of the transcri ption were given to the jury , and t h e jurors wer e allowed to listen to the tape thro ugh ind ividual hea dphon es.

In her statement made to Officer York, the Defendant stated that she and Slemmer had been hav ing pro ble ms forsome time. She recounted an incident whereby she had awakened one night to find Slemmer standing over her wi th a box cutter. She stated th at Slemmer had been “try ing to get [her] boy

friend” and had been “running her mou th” every

wher e. She stated that on the night of t he kill ing, she had planned onl y to fi ght Slemmer and let her know “to l eave me the hell alone.”
According to the D efend ant, sh e ask ed Sle m mer to a ccom pany he r to Blockbuster

Music Store, and as they were wal king, th e Defendant told Slemmer-9-

thatshe had a bag o f “weed” h idden in T yson Pa rk. The group (the Defendant refused to name other part ies who were i nvolved i n the inci dent) smoked marijuanaand bega n walking towa rd the U.T. ca mpus. U pon arr iving at the steam plant on U.T.’ s agricul tural campus, the Defendant and Sl emmer exchanged words. The Defendant then began hit

ting Slemmer and bangi ng her he ad on the Defendant’ s knee. She threw Slemmer on the ground and ki cked her repeated ly. According to the Defendant, as she slammed Slemmer’s head into concre te, Slem mer ke pt asking , “ Wh y a re you doing t his to me?” The Defendant continued to kick Slemm er i n the face and in her side as Slemmer cried.

The Defendant and another person he ld the vi ctim down and dragged her to another ar

ea where the Defendant cut her wit h a box cutter . The Defendant stated that as Slem mer scr eamed, she began to hear v oices tel ling her t hat Slemmer would tel l on her and t hat she would go to pr ison for attempted m urder. Slemmer atte mpted to get up and t he Defendant cut her on the back. The Defendant stated tha t Slemm er kept tr y ing to get up and run, te lling the Defendant that if she w ould just let her go she w ould w alk ba ck to h er hom e in Florida. The Defendant tol d her to “shut up” becau se it “was harder to hurt somebody when they’re talki ng to you .” The Defe ndant stated th at the more Slemm er talked, the mo re the Defen dant kicked h er.

Slemmer asked the De fendant what s he was going to do to her, and the Defendant thought she hear d something. The Defendant left t he scene to check out the surrounding ar ea to make sure no one was around. When she returned, the Defen d ant began cutt ing Slemmer across t he throat. When Slemmer-10-

continued to talk , the Defendant cut her throat more. The Defendant stated that the episode lasted “for about thirty m inutes to an ho ur.”

Slemmer attempted to run again, and the De fenda nt threw a rock which hit Slemmer in the b ack o f the he ad. Sh e state d that “th e othe r perso n” also hit Slemmer in the head with a rock. The D efend ant co ntinue d to hit her and then asked her, “Colleen, do you know who’s doing t his to you?, ” but accordi ng to the Defen dant, Slemmer only made groaningnoises. TheDefendant and the ot her person washed their hands and shoes in a mud puddle. They dis carded the box cutter and the miniat ure meat cleaver that had been used i n the inci dent. The D ef endant described dr agging Slemmer to some nearby trees and l eaving her clothe s in the bushes. Af ter the Defendant’s statement was playedfor the jury, pictures of the D efendant an d Tadaryl Shipp, each of them wearing a necklace in the sha pe of a pe ntagram , were intro duced into eviden ce.

Mark A. Wag g oner, an officer with the Knoxville P olice De partme nt, testif ied thathe had been d ispatche d to a Texaco Stati on on Cumberland Avenue where he retrieved a pair of black gloves and two of Sl emmer’s I.D. cards. These it ems were also made exhi bits. Another off icer, Lanny Janeway, used a chart to illustrate each of the l ocationswhere blood or ev idence was found. Photographs of bloody chunks of

asph alt, bloo d dripp ings o n leave s, and pools of blood were introduced int o evidence. The bloody piece of asphalt and t he victi m’s bloody clothi ng were also i ntroduced int o evidence.
Special Agent Ray mond A. DePrie st, a forensic scienti st employed by t he Tennessee Bureau of Invest igation, testif ied that he had re ceived bloodsamples taken from the shoes and cl othing of the Defendant and Shipp. Those items that-11-

he determined had hu man bl ood on them we re se nt to theDNA unit. Margaret Bus h , an employee of t he Tennessee Bureau of Investigati on assigned to t he DNA unit, testifi ed that the shoes of the Defendant and Shipp contai ned an insuffi cientamount of DNA for analysi s but that the blood on t he clothi ng of both had m atched t he DN A pro file of the victim. S he sta ted tha t there w as a 1 in 200,147 chance in the Caucas ian comm unity that there would be such a match and a 1 in 600,018 c hance in the A frican-Ame rican comm unity. The state rested its case.

Dr. Eric Engum, a psychol ogist retained bythe Defe ndant, testif ied for t he d efe nse that he had conducted a clini cal interview and had admini stered a battery of tests to the Defendant . He concluded t hat the Defendant suffers f rom a very severe bord erline p erson ality diso rder an d exhib its signs of can nabis dependence and inhala nt abuse. He testifi ed that the Defendant is not so dysfuncti onal that she needs to be insti tutional ized butthat she has a m ultiplicity of problems in interpe rsona l relation ships , in con trolling h er beh avior, a nd in achieving vocatio nal and ac adem ic goals. H e stated th at the batte ry of tests administeredto the Defendant indicated that she is a n extremely intell igent young
woman.

Dr. Engum stated that it was hi s opinion t hat the Defenda nt did not act with deliberat ion or premedit ation in kill ing Slem mer, b ut had acted in a manner consistent

with his diagnosis of

borderli ne personality disorde r; she lo st con trol. He explained t hat she had danced around when relati ng the ev ent to another person because of the emotional release she exper ienced from havi ng assured through the kill ing of Slemmer that she could maintai n her relat ionship wi th Shipp. When question ed abo ut th e p iece of skull found in the Defenda nt’s coat, Dr.-12-

Engum explain ed tha t the D efend ant ac tually ha s no id ent ity and t he action of taking and s howin g a pie ce of S lemm er’s sk ull to fri ends was herway of gett ing recognition, “ no matter how distorted” t hat recognition was.

On cross-examinat ion, Dr. Engum stated th at there wasno question t hat the Defenda nt had killed Slem mer. He reiterated that it was his opinion that once the attack beg an, the D efendant literall y lost con trol. However, Dr. Engum admitted that it

had been a deliberate actto entice Slem mer to the pa rk to beat her. He admitted that carv ing a pentagram on Sl emmer’s chest and bashing her head had been a deliberate act. He recogni zed thatthe Defe ndant h ad time to calm down w hen sh e left Slem mer to see if anyone was around. He also conceded that the weapons the Defendant carried wi th her and used in the attack might ind icate that s he had intended to kill the victim.

William Bernet, medical director of the psych iatric hosp ital at Va nderb ilt Univer sity, testif ied that h e had reviewed t he statement of the Defendant and Kimb erly Iloil o and the repor ts of Dr Engu m, Dr. Elki ns and Dr. Ma rks. He concluded that alt hough there were satanic elements in th is crime, the pattern
was that of an adolescent dabbl ing in Satani sm. He then describe d a pattern known as the phen ome non o f collect ive agg ressio n, whe reby a group of peo ple gatherand become emotionall y aroused and the e nd result is that they engage in some kind of violent behavior. On cross-examinat ion, Dr. Bernet admitted that he had spoke n neither with the D efenda nt nor an y of the witne sses.

Based o n this evide nce in the guilt phas e, the jury fou nd the D efenda nt, Christa Gail Pike, guilty of fir st degree m urder an d conspiracy to commit fir st degree m urder.-13- In the sent encing phase of the trial , the State reli ed on the evidence presented at the g uilt pha se an d pres ented no furth er proo f. In mitig ation, C arrie Ross, the Defendant’ s aunt, te stifi ed that the Defendant had exper ienced no maternal bonding becau se she was premature and was r aised by her paternal grandmotheruntil she died i n 1988. Ross stated th at the Defendant was s huffled between her m other a nd fath er and that the Defe ndan t’s mother setno rules for her. She testif ied that on the occasions

that the Defendant had vis ited her hous e, she behaved as a “li ttle gi rl,” playing Barbie and dress-up with h er eleven-yearold cousin. On cros s-examinati on, ho wever , Ms. Ross admitted that she had previo usly described the Defendant as a pathologi cal li ar and had been a fraid to h ave the D efendant around her own children. She admitted saying that the Defendant had been out of controlsince she was t welve-year

s old.

Glenn Pike, the Defendant ’s father, testif ied that h e had kicked the Defendant out of hi s house in 1989 and t hat he had signed adoption paper s for her prior to her eighteen th birthday. On cr oss-e xamin ation, h e adm itted tha t in 1989, there had been an allegat ion that the Defen dant had a bused his two -yearold daught er by a second wi fe. He stated that he was unabl e to make th e Defendant do her schoolwor k and that she had always lied andbee n manipulati ve.

The Def end ant’s mother, Carissa Hansen, a l icensed pract ical nurs e, testif ied that the D efenda nt had lived with her 95 % of th e ti me since her grand moth er’s death. S he adm itted smo king m arijuana w ith the Defe ndan t in orderto “esta blish a friends hip .” She r elated that the Defendant had taken an overdose shortly after the death of her paternalgrandmother. Hansen also-14-

testif ied that one of

her boy friends had whipped the Defendant with a bel t and that she had t he boyfri end arrested.

On cross-examinat ion, Ms. Hansen admitted t hat the Defendant had been
a problem for ten years. She admit ted that the Defenda nt had pulled a “butcherknife”on the previ ously mention ed boyfri end. She testified that the Defendant had lied to he r and st olen from her on numerous occasions and had qui t high scho ol. She stated that she had no control over the Defendant si nce she was eight year

s old. Fol lowing Ms. Hansen’ s testi mony, the defense rested.

A s rebuttal proof, H arold James Underwood, Jr ., a Unive rsity of Tennessee police officer, testif ied that on January 13, 199 5, he was assigned t o secure the murder scene in thi s case. He test ified t hat the Defendant came to the scene at appro ximate ly 4:00 p.m. and asked him why t he area had been marked off. She then questioned hi m concerning theidentit y of the v ictim and whet her or not the police had a ny s uspects. Underwood testifi ed that the Defendant seemed amused as she was giggli ng and moving around.

Based on the proo f, the j ur y found t he existence of t he foll owing two aggravati ng circumstances bey ond a reason able do ubt: (1) That the murder was extrem ely heinous, atrociou s or cruel in that it involved torture or serious phys ical abuse beyond tha t necessary to produc e death; and (2)that the murder was committed for the purpose of avoid ing, interferi ng with or pr eventing a l awful
arres t or p rosecution of the Defendant or another. Tenn. Code Ann. § 39-13- 204(i)( 5) and (6). I n additi on, the ju ry found t hat the State had proven beyond a
reaso nable doubt that the aggravat ing circumstancesoutweighed any mi tigati ng circumstances and as a result , sentenced t he Defendant to deat h.-15- 

### TRIAL ERRORS A. Suff iciency

of the Proof

The Defendant argues that theState did not prove every

element of t he offensesof first

degree murder and consp iracy to commit fir st degree murder beyond a reaso nable d oubt. Sp ecifically, in reg ard to th e first degree murder convicti on, the Defendant argues that

the State did not i ntroduce any evidence relati ng to deliberation or of the Defendant having the opportuni ty to refl ect upon her actions af

ter “t he mind was free f rom the influen ce of exci tement or passio n.” She argues that t here was no proofoutside of the uncorrobor

ated statement

of the Defenda nt that Shado lla Peterson or T adaryl Shipp parti cipated i n the murder
so as to warrant

the conviction of

conspiracyto commit fi rst degree murder . The Defendant also maintains that the proof was insufficient to justify the jury’ s se ntence of death and t hat the ju ry fai led to properly consi der and weigh the mitigating factors against the aggravati ng factors.

When an accused chall enge s the suffic iency of t he convicti ng evidence,
we must review the evidence in t he light most favorabl e to the prosecu tio n in determining whether "any rationaltrier

of fact could have fou nd the essenti al eleme nts of the crime beyon d a rea sona ble doubt." Jack son v. V irginia , 443 U. S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We do not rewei gh or reevaluate the evidence and are requir ed to afford the state the strong est legitim ate viewof the proof co ntained i n the record a s well as a ll reasona ble and legitimate inferences

which may be draw n therefro m. State v. Cabbage , 571 S.W.2d 832, 835 (Ten n. 1978).-16- Questions concerning the credibility of witnesses, the weigh t and valu e to be given to t he evidence, as well as factua l issues raised b y the evidence a re resolved by the tr ier of fac t, not this court. Cabbage , 571 S.W .2d at 835 . A guilty verdictrende red by the jury a nd ap prove d by the trial judge accredits the testimony

of the witnesses for the state, and a presumption of guilt replaces t he presumption of innoce nce. State v. Grace , 493 S.W.2d 474, 476 (Ten n. 1973).

An appellant

cha lleng ing the suf

ficien cy of the pr

oof has the bur

den of illustrati ng to this court why the eviden ce is insuffi cient to support t he verdict returned by the tr ierof fact in his o r her cas e. This court willnot disturb a verdi ct of guilt forlack of sufficient evidenc e unless the fac ts contained in the record and any inferences

which may be d rawn from the facts are i nsuffic ient, as a matter of law, for

a rational trier of fact to find the appe llant gu ilty beyo nd a re ason able doubt. State v. Tug gle , 639 S.W .2d 913, 914 (Tenn. 198 2).

Tennessee C ode A nnotated sect ions 39-13-201(a) and -201(b) provide thata deliberate act i s "one performed with a coolpurpose" and a pre meditated act is "one done af

ter the exercise of

reflect ion and judgment. " The existence of premeditati on and deliberation i s a question of fact thatmay be inferr

ed from the
manner and circu mstan ces of the homic ide. State v. Tune , 872 S.W.2d 922, 925 (Tenn. Crim. App. 1993). In Tune , this Court held that

"[w]hile willful killing w ith
a dead ly weap on is n ot suffic ient by it sel f to support an inference of premeditati on, there were ot her circumstances before t he jurors from which th ey could infer the exis tence o f both pre medita ti on and d elibera tion in th is Defen dant's m ind." Id
.-17- In the li ght most favor able t o the State, the evidence reflects that the Defendant told a f riend the day before the killing that s he was going to ki ll the vi cti m. A lso, du ring the ki lling, the Defendant made repeated attacks on t he victim over a period of ti me in which she could have reflected upon her acti ons, espe cially when she left the vict im to see i f anyo ne else was around. By the Defe ndan t’s own s tatem ent, the reaso n for killin g the vic tim wa s to assure t hat the victim c ould n ot testif y agai nst her for “attempted murder .” And fi nally, the Defe ndan t’s own expert admit ted that t he act of car rying a box cutter and meat cleaver was a d eliberate a ct. We are satisfied that the ev idence in t his case was suffic ientto establ ish t he eleme nts of prem editation a nd delibe ration so a s to warrant t he jury’ s verdict in the f irst degr

ee murder convict ion.

In regard to the co nspiracy to com mit first degree m urder c onv iction , the Defendant maint ains tha t there was no proof beyond her “uncorrobor

ated statem ent” that a box cu tter had been us ed on the vic tim or that

others had attacked the vict im with cutting i nstruments. In her statement to the police, the Defendant related that others were with her when the killi ng took place. She also stated that a person re ferred to as “he” ha d participated in the tortu re of the victim and that thi s person had brought a mini ature meatcleaver wi th him that evening.

The ess enceof consp iracy hasalwaysbeen an a gre ement to commi t a cri me . State v. Hodgkinson , 778 S.W .2d 54, 58 (Tenn . Crim. A pp. 198 9). A
cons pir acy requi res a knowing i nvolvement. However, no formal or expressed agreement is necessary a nd the agree ment m ay be p roved by ci rcumstantial evidence. State v. Shrop shir e , 874 S.W .2d 634, 641 (Tenn. Crim . App. 1993 ). “The unlawful confederati on may be establi shed by circ umstantial evidence and the conduct of t he parties in t he execution of the cri minal enterprise. Conspir acy-18-

impliesconcert of

design and n ot participa tion in every detail of exe cution.” Randolph v. State , 570 S.W.2d 869, 871 (Tenn. Crim. App. 1978). A confession may sustai n a convict ion where ther e is other evidence suf ficien t to show th e commission of a c rime by s omeo ne. Franklin v. State , 513 S.W.2d 146, 151 (Tenn . Crim. A pp. 197 4).

In this case there was aconfession by the Defendant

that she and anot her person refe rred to as “ he” accompanied the v ictim to Tyson Park. Both t he Defendant and a nothe r perso n partic ip ated in d ragging the victim to a more isolat ed locati on and mutilat ing the vi ctim with a box cutter and a meat cleaver. A witnes s testifie d that th e Def enda nt state d she was g oing to kill the vict im the day before the murder. A wit ness testi fied that the Defendant, Tadaryl Shipp and Shad olla Peterso n left with the v ictim and returned togeth er later that eveni ng without the vic tim. DNA testingof the Defendant’s and Shipp’ s clothi ng revealed blood stains matchi ng that of t he victi m’s. Both theDefendant and S h ipp wore penta gram neck laces and a “Satanic Bibl e” was recover ed from a search of Shipp ’s room. The Defendantadmitted t hat she and the other person carved t he pentagram in the victin’s ch est. The Defe ndant c ontends that the proof was insuffi cientto demonstrate that she possessed the requisite reflection to su pport the convicti on for conspiracy to co mmit first-degree murder. Yet, the re is amp le circumstant ial evidence that the Defendant and Shipp deli berately planned and executed the k illi ng.
Finally, the Defendant contends that t he proof was i nsuffic ient to j ustify the jury’s senten ce of dea th and that the jury failed to properl y consider and weigh the mitiga ting fac tors ag ainst th e agg ravatin g factors . However, the re cord-19-

revea ls that the ap plication of b oth of the aggravati ng factors was supported by evidence.

Th e jury found that the aggravati ng circumstance t hat the mur der wa s espe cially “heinous, atrocio us or c ruel” w as ap plicab le in thi s case. The medical examinertestifi ed that there were so many wounds on the victi m’s b ody they could no t be cataloged . The victim’s throa t had been slashed repe atedly, defensive wounds were on he r right arm, and a t least four heavy blows had been administeredto her head. A pentagram had been carved in her che st. The medical examiner repeatedly test ified t hat all of the wounds pri or to the f inal bl ow to the he ad ha d bee n ma de wh ile the vic tim wa s ali ve and consci ous. W e conclud e that the re cord am ply supp orts app lication of this a ggravato r.

The jury al so found that the aggravat ing circ umstance that t he murder was c omm itt ed for the purpose of “avoi ding, in terfer ing with o r preventi ng a lawful arrest” was applicabl e. The Defe ndan t, herse lf, told offic ers tha t as the victim continued to beg for he r life, she told the victim t hat she was not goi ng to be “rotti ng in jai l because of [ her] stupi d a ss.” Sh e als o stated t hat a voice kept telli ng her that s he would go to prison for attempted murder if s he letthe victim go. We conclude tha t there was ample evidence to support the applicat ion of this aggravator.

The m itigating circumstan ces offered to the jury were thatthe Defendant had no signif icant hi story of prior criminal activi ty, t hat the murder was committed while the Defendant was under t he influ ence of extr eme mental or emotional disturbance , tha t the Defendant was young, that the capacity of the Defendant to appreciate the wrongful ness of her conduct or to conform her conduct to t he1 Tenn essee Suprem e Cou rt Rule 30 becam e effec tive Janu ary 1, 1996 , and wa s a one year pilot project whi ch was to expir e on December 31, 1996. However, on December 30, 1996, the rule, as am ended , was m ade pe rma nent. -20- requirem ents of the la w was subs tantially impaired as a result of mental di sease or intox icatio n, and any other mit igating factor that was rai sed by the evi dence. The Defendant argued that her diffi cult chi ldhood should al so be considered as mitigati on.
Again, in reviewing t he evidence in the li ght most favorabl e to the State, a rational juror could have concluded that the appli cable aggravat ing circumstance s outweighed the mitig ating f actors. Therefor

e, we conclude that

the sentence of death was supported by the evi dence.

B. Media Coverage

The Defendant argues t hat the trial court erred by ref using t o gran t her motion to deny tel evision coverage of the pret rial proceedings. The Defendant asserts that me dia cove rage in the case m ade jury s election d ifficult, but th e Defen da nt presents no pr oof that a j uror was biased because of the cov erage. The Defendant also ass erts that the cameras in the cour troom “arguabl y affected witness testimony and was gene rally disru pti ve of the pr oceedings,”

but again, the Defendant ci tes no specif ic instances to just ify t his conclusi on.
Supr eme Court Rule 3 0 provides for in -court media coverage at t rial proceedings. 1 Cove rage is subje ct, at all tim es, to th e auth orit y of the j ud ge to “(i) control t he conduct of t he proceedings before the court ; (ii ) maintain d ecorum and prevent di stracti on; (ii i) guarantee the safety of any party, witness, or juro r; and (iv) ensure the fai r and imparti al administ ration of justi ce.” Rul e 30(A)(1),-21-

(D)(2). Further, Rule 30 (D)(2) allows t he trialcourt, upon a proper s howing , to limit in-court

media covera ge in order to accommodate any of these i mportant interests. This Court ha s held tha t Rule 30 presum ptively entitl e s the media to i ncourt came ra covera ge. State v. Freddie Morrow , C.C. A. No. 01C01- 9601- CC00022, Robertson County (Tenn. Cri m. App., Nashvil le, Apr. 12, 1996). Given this presum pti on , any fi nding that such coverage shoul d be denied, l imited, suspended, or terminated must be supp orte d by substantial evi dence that at least
one of the fou r i nterests in Rule 30(A)(1)and (D)(2) is of concern i n the case before the court. The burden of proof in produc ing this evid ence is o n the pa rty seeking li mits on media cover age.

In the present case, the record before t he court ref lects onl y the g eneral statementof counsel t hat pr etrialmedia coverage woul d make jury sel ection difficult and wo uld dep rive the De fendan t of a fair trial bec ause it “ar guab ly aff ected witness testimony and was gener ally di sruptive of the proceeding s. ” There is no evi denc e to subst antiate the De fendant’s claim s. Although jury selecti on was lengthy, there is no assertio n that any par ticula r juror was bi ased because of the media coverage. The Defendant provi des no proof that testimony
was affected or that t he proceedings were disrupted. We cannot, therefor e, conclude that the t rial cour t abused its discret ion in f ailingto exclude pretri al media coverag e.
C. Change of Venue

The Defendant argues t hat the trial court erred by failingto grant her motion for a change of venue. She mainta ins that a majority of prospe ctive jurors-22-

admitted that they

had heard detai led informati on about the case. The Defendant cites t he Un it ed State s Sup remeCour t decis ion in Irvi n v. Dowd , 366 U.S. 717, 81 S.Ct. 16 39, 6 L.Ed.2 d 751 (1961 ), in support of t he propositi on that a change of venue sho uld be granted if extensive pretrial publ icity was such that the court shou ld presum e th e jury i s tainte d even if pr ospective j urors stated that they would be able to set aside what they had seen or heard.

Howeve r, in Dowd , jury sele ction l asted more than four weeks. Als o the Supr eme C ourt specifically stated that due to “swift, wi despread and diverse methods of com mun ication ,” it is not required that jurors be t

otally ignorant of

the facts and iss u es involved. 366 U.S. at 722, 81 S.Ct. at 1642. The court also stated that “[i]t is s ufficien t if the juror can layaside his i mpression or opi nion and rendera verdictbased on the evidence presented i n court.” 366 U.S. at 723, 81 S.Ct. at 1643. I n Dowd , the panel consisted of 430 per sons. The c ourt itse lf excused 268 of tho se pers ons du e to their fixed op inions of g uilt, and 103 w ere excused beca use o f their conscienti ous objecti on to th e death penal ty. 366 U.S. at 727, 81 S.C t. at 164 5. Th e voir dire record indi cated that 370 of the prospective jurors ente rtained so me op inion as to gu ilt, ranging from me re suspicion to absolu te cer tai nty . Of

the twelv

e jurors sel ected, ei ght thought t he Defen dant wa s guilty. Id
.

In the present case, alt hough many potentia l juror s had indicated that they had heard something about the case in t he media, every juror who said he or she
was famili ar with t he case said that he or she co uld disre gard the repor ts and renderan impartial decisi on. All potenti al jurors w ho said they could not disregard the reports were excused fo r cause. The Defendant has cited n o specifi c response fr

om any seated juro r that was t roublesome.-23- D. Excusal of Juro rs
The Defendant asserts that thetrialcourt impanel led a jury thatwas prodeath penalty and i mproperly exc used for cause t hose prospecti ve juror s that indicated thatthey were oppos ed to the d eath pe nalty. The D efenda nt sugg ests thatthe trial cour t erred in de nying he r propos al that a “do n’t ask, do n’t t ell ,” procedure be used where by juro rs wou ld not b e requ ired to te ll the court ab out their personal fee lings about the d eath pena lty.

In Wainwright v. Witt , 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985 ), the United State Suprem e Court reaffirm ed as the pro per standard fordetermining when a prospecti ve juror may be excluded for

cause because of his or her vi ews on capitalpunishment the test of“wheth er the ju ror’s vie ws wo uld ‘prevent or substant ially

impair the performance of hi s duties as a j urori n accordance with his instru ctions an d his oath .’ ” In State v. Alley , 776 S.W.2d 506, 518 (T enn. 19 89), cert . denied, 493 U .S. 1037, 110 S.Ct. 758 ( 1990), the Tennessee Supr eme Cour t held that “t he trialcourt’s finding of the bias of a j uror because of his v iews of capi tal punishment shallbe accorded a presumption of correctness and the burden shal l rest upon the Defendant to e st ablish by convinc ing eviden ce that tha t determ ination wa s errone ous.”

The Defendant notes t hat in the pr esent case the t rial cour t examined prospective jurors extensi vely regarding t heir thoughts ab out the de ath pen alty and allowed counselto exam in e those who indi cated that they had a probl em with the death pe nalty in an effort to rehabil itate t hem. The Defendant cites no prospective juror who was excluded that shoul d not have been. Applying t he-24-

standard as set forth in Alley , the Defendant has fail ed to establish by convinci ng evidenc e that the c ourt’s actio ns were erroneo us. This issue is with out me rit.

E. Use of the Skull as Evidence
The Defendant next

complains that

pursuant to Rule 403 of the Tennessee Rules of Evide nce, th e sku ll of the vic tim sh ould have be en exclu ded be cause its probative value wa s substa nti ally ou tweighed by i ts prejudi cial ef fect. The Defendant asserts t hat the skul l was also cumul ative ev idence because pri or to its admission, numerous p h otographs of t he skull wer e admitted to show the damage to the vic

tim’s head.

The State argues that the intr oduction of

the skull was an i mportant port ion of the medicaltestimony. The medical examiner testif ied that she had sent the skull to a fore nsic an thropo logist to be rec onstru cted b ecau se sh e cou ld not te ll exactly what had happened wit hout the reco nstructi on. The skull was used by the medical examiner to show the amou nt of force th at was a pplied to it, as we ll as the w eapon that was u sed. Pie ces of as phalt we re emb edded in the sku ll.

In this case, the skullhad been thorough ly clean sed and w as no mo re prejudici al or gruesome than a model di agram would have been. Dr. Elkins , the medical examiner, testified that the recon structe d sku ll would illustrate to the jury what had occurred to the v ictim and demonstr ate the amount of

force that

was applied as wel l as the t ype of weap on use d to inflict the head injuries . Ther e is
no question that the nature and ty pe of inj uries sustained by the deceased and the manne r in which death o ccurred we re relevant cons iderations by the jury. Moreover, the sk ull w as used to illustrate t hat the pi ece of skullfound in t he-25-

Defe ndan t’s jacket f it perfec tly into the reconstructed skull. The skull was, therefor e, highly r

el ev ant in establishi ng the circ umstances surroundi ng the offense
. See State v. Cazes , 875 S.W.2d 253, 263 (T enn. 19 94); cert
. denied , 115 S.Ct. 74 3, 130 L .Ed2d 6 44 (199 5); State v. Morris , 641 S.W.2d 883, 888 (Tenn . 1982). T his issue is without m erit.

F. Cruel and Unusual Punishment
The Defendant conten ds that the punishm ent imp osed u pon he r, death by electrocut ion, is crueland unusual punis hment under the state and federal
cons tit utions. However, thi s issue has been previously decided by t he Tenne s see Supre me C ourt and determ ined to be without m erit. See State v. Cazes , 875 S.W .2d 253 (Tenn . 1994); State v. How ell , 868 S.W.2d 238 (Tenn. 1993); State v. Black , 815 S.W .2d 166 (Te nn. 1991).
G. Peremptory Challenges

The Defendant contends that at t he time of t he offens e, the ru les in effect gave the Defendant

fifteen (15) perem ptory challe nges com pared to the S tate’s eight. See Rul e 24(d), Tenn . R. Cri m. P. (19 95). H owev er, at the time o f trial, the rules had b een c hang ed to g iv e an equ al num ber of pe rempto ry challeng es to both the D ef endan t and the S tate. See Rule 24 (d), Ten n. R. Crim . P. (1996 ). The Defendant arguesthat appl icatio n of the new rul e violated the ex pos t facto provisi on of the Tennessee Constitution whi ch requires that rul es not be applied to events which oc curred p rior to their en actme nt.

The term "e x post

facto" as u sed in Arti cle I , § 10, cl. 1, of the U. S. Constitut ion, provides that "[ n]o state shall . .. pass any ... ex post facto l aw." The-26-

T enn essee Constitut ion's ex po st facto prohibit ion found i n Articl e I, § 11, provides: That laws m ade fo r the pu nishment of acts committed previ ous to the existence of such laws, and by them only decl ared criminal a re contra ry to the principles of a free G overnm ent; wherefore no Ex post fa cto law shall be ma de.
Two criti cal elements must be present for a law to fall wit hin the prohi bition. First, it "mus t be retr ospe ctive, tha t is, it must app ly to events occurring before its enactment"; and second, "it must disadva ntage th e offend er affected by it." Miller v. Flor ida , 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987) (quoting We aver v. Graham , 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981)); State v. Ricci , 914 S.W .2d 475 , 480 (T enn. 19 96). F urthermor e, Tenn essee Code Annota ted sectio n 39-11 -112 pro vides that:

wheneverany penal sta tute or penal l egislat ive act of the stateis repeal ed or amend ed by a sub sequent leg islative act, any offense, as defined by the statute or act bei ng repealed or am ende d, com mitted while such statute or act was in full force an effect s hall be pro secute d unde r the act or s tatute in effec t at the t ime of the commissi on of the of fense. Yet, the United States Sup reme C ourt has held that laws which change a rule of eviden ce, but wh ich do no t i ncrease the punishment nor change the eleme nts of the offense or the ultim ate fac ts nec essa ry to esta blish g uilt, but o nly
remove existing rest rictions on the competency of certa in classes of evidence or of person s as witne sses do not cons titute ex pos t facto laws
. State v. Bragan , 920 S.W.2 d 227 , 24 1 (Te nn. Cri m. App. 19 95) (citation s omitted ). In Dobbe rt v. Florida , 432 U .S. 282, 2 93, 97 S .Ct. 2290, 53 L.Ed.2d 344 (19 77) , t he Su pre me Court h eld tha t the prohibition of ex pos t facto laws does not extend to eve ry change of law that

"may work to t he disadvantage of a defe ndan t." Instea d, it is intended to secure " substanti ve personal rights" f rom retroact ive depri vation and-27-

does not "limit

the legislat ive control of remedies and modes of procedure which do not affect matters o f substan ce." Id. Thus, laws whic h change rules of procedure but which donot affect a ny subs tantial right of a defendant are not ex post facto laws.
Here, it is

apparent that

the tri al court appl ied a proceduralrule that had been amended after t he commission ofthe crimes in quest ion. The Defendant also claim s that th e right to a fair and imparti al jury was impaired by

the increase in perem ptory cha llenges fo r the State . Howe ver, t he De fendant has not proffered any evidence thatthe jury , as it was composed by the State’s using t he additionalperemp tory challenges, pre vented her f rom re ceiving a fair trial. Absent pr oof t hat the Defendant was disadvantaged or that a substanti ve right
was impaired by t he amended procedural r ule, we cannot conclude that an e x post facto violation oc curred. T his issue is without m erit.

H. Sentenci ng on the Conspiracy Convi ction

The Defendant argues that the tri al co urt erred in sen tencing t he Defendant to a conse cutive s entence of t wenty-five (25) year s for the convicti on of conspiracy to commit fi rst-degree murder. The Defendant complains that the tri al court inappropri ately used t he aggravati ng circum sta nce that t he crime was espe cially cruel to se ntence her to the maxi mum sentence. She furt her complains that the trial co urt erred in determ ining that s he was a dangerous offender and ordering her to serve t he sentence conse cutively to the dea th sentence.-28- When an accused challenges t he length, range, or t he manner of service of a sen tence , this court hasa duty to conduct a de novo review of the sentence with a presumption t hat the det ermi nations m ade by th e trial court a re correc t. Tenn. Code A nn. § 40-35-4 01(d). This pre sumption is “c onditi oned upon the affirmative showing in t he record that the tri al court considered thesentencing principl es and all relevant facts and circum stances.” State v. Ashby , 823 S.W.2d 166, 169 (T enn. 1991 ).

In conducting a de novo review of a sentence, this court mustconsider: (a) the evidence, if any, r ec eive d at the trial and t he sentencing hearing; (b)the presentence report; (c) the principl es of sentenci ng and argu ments as to sentencing alternat ives; ( d) the natur e and characteri stics of the crimi nal conduct involved; (e) any statutory mitigati ng or enhancement factors; (f) any statement thatthe Defendant made o n his own behalf; a nd (g) the potential o r lack of potentialfor rehab ilitation or treatm ent. Tenn . Code Ann. § § 40-35-102, 1- 103, and -21 0; see State v. S mith , 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).

If our revi ew reflect

s that thetrialcourt fol lowed the statutory sentencing procedure, imposed a lawful sentence after having giv

en due considerat ion and properweight to t he factors and princi ples setout under the sentenci ng law, and thatthe tri al court’ s findi ngs are adequatel y supported by the record, then we may not modify the s entence even i f we would have pr eferred adiffer

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

At the sentenci ng hearing, t he State call ed as its only witness Of ficer Deb bie Wade, a Cor rection s Office r with the Knox Coun ty She riff’s Depa rtment. She testif ied that o n the day the Defendant was sentenced t o die, she gave-29-

Officer Wade a letter and requested that it be pass ed to herco-De fendan t, Tadaryl Shipp. O fficer Wade gave the letter to her li eutenant and was told not to pass it to M r. Shipp. The letter was introduced into evi dence and read as follows: Tad aryl, hey, love, I j ust wanted you to know how

much I love you. I have ten months to li ve. Imagine that. I would spend every moment wit h you if I could, baby. I want t o tell you to tel l them you li ed in your state men t and go along wit h mine. Do you have a copy of mine? If not, I’ ll give you one. O kay? I love you big bunches, baby, and no matter what they do to me they can ’t change what’s in m y heart. Ple ase write me. I miss you so much
. You see what I got for tr ying to be nice to t hat whore. I went ahead and bashed her brains out so she w ould d ie quic kly inst ead of let ting her bleed to death and suffer m ore and they fu ckin fry me. Ain ’t

that so me sh it . Pl easewri te a nd t ellme what you’r e feeli ng. Bake r sa id h e wou ld g iv e yo u so me pape r and shit whi le you are out there. Al so tell your lawyer if he wa nts m e to I’ll test ify, testify fo r you, I w ill. Love y ou for th e rest o f my life. L ittle devil.

The trialcourt cl assifi ed the Defen dant as a Ran ge I, standard off ender on the convic tion for c onsp iracy to c omm it first degree mu rder. The trial court al so considered several enha ncem ent an d mitig ating fa ctors in setting the sentence above the minimum presumptiv e sent enc e of fif

teen (15) years. Fir

st, the t rial court applied enhancement f actor number (2), t hat “[t]he Defendant was a leader in the commission of an offense involving two (2) or m ore criminal acto rs.” Tenn. Code Ann. § 40-3 5-114(2). Th e trial judge then stated that factor num ber ( 5) , that“[t] he Defendant tr eated or all owed a victi m to be treated with exce ptional cruelty during the commission of the offens e,” wou ld not b e relied upon heavily because it had al ready been used i n sentencing the Defendant to death on the othercoun t. Tenn. C ode An n. § 40-3 5-114(5 ). Factor n umbe r (7), that “[t]h e offense involved a victim an d was c omm itted to gratify the Defendant’ s desire for pleasure and excitement ,” factor number (9), t hat “[t]he Defendant posses sed or-30-

employed a fi rearm, expl osive devi ce or other deadly weapon during t he commission of the offense,” and factor numb er (10), that “[ t]he Defendant

had no hesitati on about committi ng a crime when the risk to human life was high,” were also fo und to be appli cable. Tenn. Code Ann. §§ 40-35-114 (7) ,(9), an d (10)

. The trial court found that no mit igating factors wer e applicabl e.

We find err

or with only one of the trial court’s appli cations of enhancement factors. The trialjudge held t hat the Defendant had no hes itati on abo ut committing a cri me when t he ri sk to human l ifewas hi gh. Te nn. Code Ann. § 40-35-114 (10). We believe that the court improperly applied t his enhancement factor. Enha ncem ent factor (10) refers to the defendant havi ng "no hesitation about committing a crime when the ri sk to human life is hig h." This Court has previo usly recognized that factor s which are inherent i n a particu lar offense, even if not designated a s an elem ent, sh ould n ot be g iven su bstan tive weig ht in increasi ng a senten ce. See, e.g. , State v. S cott , 735 S.W .2 d 825 , 830 (Tenn. Cri m. App. 1987). We conclude t hat the ri sk to human lif e is inher

ent in the grading of the offe nse of conspir acy to commit f irst- degree murder. Accor ding to Ten ness ee Co de An notate d sec tion 39 -12-1 07, “co nspira cy is an offense one (1) classif icatio n lower than t he most seriou s offense that is the object of the consp iracy.” First- degree murder is c lassif ied as a cap i tal offense, therefore
c onspiracy to commit fi rst-degree murder is a Clas s A felony, a class reser ve d for only the m ost seriou s offense s.
Moreover, the ind ictme nt con tains a llegatio ns in support of the element of conspiracy that an over t act be taken, that the Defen dant an d two oth ers left the Job Corps center, took the vi ctim to an isolated locati on and attacked her with a box cutter. Not only is the ri sk to human life inherent i n the offense, in t he case-31-

sub judice , high risk

acts were i ncluded in t he indictment as c harged in su pport of an elem ent of the crim e. See Tenn. C ode Ann . § 39-12-103 (a), (d). Enhancement factors may be applied “if not themsel ves essenti al elements of the offense as charged in the i ndictment.” Tenn. Code Ann. § 40-35-114. For both of thes e rea sons, we conclude that enhancement factor shoul d not have been applied.

The evidence produc ed at trial, inclu ding the D efenda nt’s own s tateme nt, and the letter introduce d at the sentencing heari ng would certai nly support the factor that she was a leader i n the commission of the off ense. The statement

of the Defendant, t he testi mony concerning her recounting of the i ncident to others, the fact that

she carried a

piece of the victim’s sk ull as a souven ir, and her return to the scene were evi dence of her desire f or excitement and pleasure. Again, by her own statement, the Defendant admit ted carry ing a deadly weapon.
Although we dis agree with the trial cou rt’s findingthat the Defendant’s age and lack of a significa nt histo ry of prio r crim ina l activities were n ot app licable mitigati ng factors, we cann ot conclude th at the trial court erred in sentenci ng the Defendant to the maximum sentence of twenty-five (25) years. Cle arly, when the
a pplicab le enhancing factors are weighed ag ainst th e mitigat ing factors, the record supports the tri al court’ s sentence.

The trial court found that consecutive sentences were warranted because the Defendant is a dangerous o ffend er whose behavior indicates lit

tle or no regard for human life and had no hesitat ion about committing a crime in which the riskto hum an life was high. See State v. W i lkerso n , 905 S.W.2d 933, 937-39 (Tenn. 1995). Again, given the c ircumstan ces surrounding t his offe nse,-32-

espe cially the heinous nat ure of the crime and the fact th at the Defendant showed no remorse, we concl ude that the Defendant met th e criteria for
consecu tive sentencing and the trialcourt did not abuse her discreti on in orderi ng such. T he sen tencing is sues ra ised by the Defen dant are without m erit.


### CONCLUSION
Upon careful r

eview of t he record, we conc lude that the Def enda nt has offered nogrounds that warrant relief

from her convictions of premeditated first degree murder and conspir acy to commit f irst degr ee mur der. M oreover , we conclude that theDefendant has fail ed to establ ish any ground war ranting r elief from the sentence of death and the consec utive sentence of twent y-f ive (25) years.
Therefore, after a t horough revi ew of the issues and the record before us
as mandated by Tennessee Code Annotated section 39- 13-206(b) and ( c), and for the r easons stated herein, w e affirm the appellan t’s senten ce of dea th. W e conclude that the s entence was not im pose d in an arbitrary f ashion, the evidence suppo rts the jury’s fi nding of t he aggravati ng circumstan ces , and the evidence suppo rts the jury’s fin ding th at the aggrav ating ci rcumstances outwei gh any mitigati ng circu mstances. Moreover , a comparat ive pr oporti onalit

y revi ew, consideri ng both the c ircums tances of the crim e and th e nature of the app ellant, convincesus that t he sentence of deat h is neit her excessive nor dispro portiona te to the penalty i mposed in similar cases.
Accordingly , the judg ment of the t rial cour t is af firmed.-33- ____________________ ____________ _ DAVID H. WELLES , JUD GE

CONCUR:

__________________________________ THOMAS T. WOODALL, J UDGE

__________________________________ JOHN K. BYERS, SENIORJUDGE