1 “Prior to the set ting of oral argument, the Court shal l review t he record and briefs and consider all errors assigned. The Court may enter an order designating those issu es it wishes add ressed at oral a rgum ent . .

. . ” Tenn . R. Sup. Ct . 12. 2.
1



### IN THE SUPREME COURT OF TENNESS EE

AT NASHVILLE Februar y 4, 20 03 Session
STATE OF TENN ESSEE v. JERRY R AY DAVIDSON

Automa tic Appea

l from th e Court o

f Crimina

l Appeals Criminal Court for Dickson County No. CR2232 Allen Wallace, Judge

No. M1998-00105-SC-DDT-DD - Filed October 20, 2003

The defendant, Jerry

Ray Davidson, was c onvicted of premeditated murder and ag gravated kidn appin g. He was sentenced to death for the pre meditated murder and to a consecutive sentence of twenty y

ears for the agg

ravated kidnapping. The Court of Criminal Appeals aff i rmed t he
conv ictions and the se

ntences . There after, the case was auto maticall

y do cketed in this C our t pursuant to Tennessee Code Annotated section 39-13-206(a)( 1). We entered an order designating the following issues fo

r oral a rgumen t: 1 (1) whe

ther the trial cou rt committed rever sible err or in denying the defendant’s motions for change of ve nue and for additional peremptory challenges; (2) wh ether the trial court committed reversible error in refusing to strike the venire; (3) whether the evidence is suffic ient to sust ain the de fendant ’s convictions; (4) whether the trial court committed
revers ible error by

admitting the testimony of Darla Harvey ; (5) whether the sentencing verdict form was inco mplete

and err oneous; and (6) all issues mandated by Tennessee Code Annotated section 39-13-206(c)(1). Having carefully reviewed these issues and the remainder of the issues raised by the defendant, wefind no me rit to his arguments. Accordingly , we affirm the judgment of the Court of Crimina

l Appeals

. Tenn. Code A nn. § 39-13- 206(a)( 1) (1997) ; Judgme nt of the Court of Crim

inal Appeals Affirmed

J ANICE M. H OLDER , J., delivered the opinion of the court, in which F RANK F. D R OWOTA , III, C.J., and W IL LI AM M. B ARKER , JJ., joined. E. R IL EY A NDERSON , J., filed a dissenting

opinion, jo ined in pa rt by A DOLPHO A. B IRCH , J R ., J., who also filed a dissenting opinion.2 Jack son’s d og wa s found at her ho me. 2

Brock Mehler, Nashville, Tennessee (on appeal) , Michael J. Love (trialand a ppea l), a nd Col lier W. Goodlett (trial only), Clarksville, Tenne ssee, for the appellant, Jerry Ray Davidson.

Paul G. Summers, Attorney Gene ral and Reporter; Michael E. Moore, Solicitor

General; Ali ce B. Lustre, Assistant Attorney Gene ral (on appeal); and Dan Alsobrooks , Di strict Attorney Gene ral (trial only), for the a

ppellee, State of Tennessee.
OPINION

FACTUAL BACKGROUND

Between 8 and 9 p.m. on September 26, 1995 , the victim, Virginia Jackson, and her dog arrived in a ta xi cab at Bronco’s Bar in Dic kson, Tennessee. Jackson was carry ing a large purse and
a white bed

pillow and

wearing multicolor

ed hair clips. When Jackson arrived at Bronco’s Bar, the defenda nt, Jerry Ray Davi dson, was s ittin g qui etly by himse lf dr inkin g be er. Ja

ckso n spent the

next several hours at the bar drinking two beers and talking withthe bartender, Carol Owens, and other bar patr ons. Although Jack son and Da vidson sat

next to one a

nother a t one point , the two did

not converse, and the e

vidence does not su gges t t hat they were a cquainte d. By

closing time, only Jackson, Davidson, and Owens remained in the bar. Owens trie d to call a cab for Jackson, but the cab company wa s closed for the night. Jac kson acc epted a r

ide home f

rom David son and wa s last seen alive around 11:30 p.m., carry ing her purse and pillow as she got into Davidson’s red pickup truck with her do g.
Members of Jackson ’s family became worried when

they did not hear f

rom her for several day s. On Octobe

r 1, 1995, her fam

ily f iled a miss ing per son repor t with law enforc ement of

ficials, who began an investigation of her disa ppearance. 2

On September 30, 1995, only a f ew days a fter Jackson was last seen, Jackson’s brother-inlaw observed a pile of clothing ly ing along a farm road lea

ding to her house. At that time, he did not connect the clothing with her disappearance. On October 18, howev er, he r

eported the cloth ing to law enforc ement au

thorities

. On October 18 and 19, law enforcement off icers found the following items belong ing t o Jackson along the farm road: hair clips, a cell phone, pa nties, a pillow, a sweatshi rt, and a sock. On October 19, 1995, two deer hunters found Jackson’s decomposing, nude body. The body

was partially buried in a sha llow grave several miles from her house in a wooded area off an old logging

road along the Houston/Dickson County line.

At trial, the condition of Jackson’s body was desc ribed by Dr. Murray

Marks, the fore

nsic anthropo logist

who disinte

rred the body , and by

Dr. Char les Harl an, the f

orensic pathologist

wh o performed

the autop sy

on the body. Dr. Mar

ks stated that the body was f ound lying che st down. The headwas missing, although it appeared that a space had originally

been dug for it in the grave. Par t of the torso and left arm of the

body were exposed, an d the le ft hand w as missi ng. There was3

evidence that anima

ls had gnawed on the left arm, the neck, and the shoulder area. Howeve r, other trauma to the body was inconsistent with animal activity. Dr. Ha rlan observed that the skin at the front and back of the neck had been cut; the trach ea exhibit ed a clean, sharp cut; the hyoid bone, which is located in the upper throat, had also been cut; and the re was clear

disarticulation of the cervical vertebral column. In addition, the torso, including the breast bone, had been clean ly cut open with some t

ype of sharp instrumen

t. This incision ran almost the entire length of the torso from the sternum to the navel and exposed the internal organs. Sev eral s uperficial cuts had been made in the soft tissue next to the large incision. Dr. Harlan opined that both the major incision and the lesser cuts were inflicted

after death. Toxicology tests revea led the presence of alcohol and Prozac in the body, althoug

h the quantity of

these sub stanceswas not de termined . Accor

ding to Dr. Marks , it was possible that Jackson’s neck had been cut and

her head removed after dea th by either animal
or human ac tivity . Dr. Har

lan opine d that a

human being, not an animal, had removed the head a fter death. Relying

on changes in the

body’s color and texture, Dr. Marks concluded that Jackson had been dead for

four to six w eeks. B ase d on the d egree of the body ’s decomposition, Dr. Harlan t estified that death had probably occurred within twenty -four hours of Jackson’s departure from Bronco’s Bar on September 26 , 1995. A caus e of death could not be determined from Jackson’s remains. Dr. Harlan, however , expressed his belie f that he r death w as a res ult

of homicide and that she could have died from wounds to her neck or hea d.

All of the evidence regar

ding Davidson’s role in thekilling is circumstantial. For example, Davidson was a janitor in a hospital department where s urgical inst rumen ts wer e clean ed. Al thou gh he had been a good and reliable e mployee, he did not return to work as scheduled after September 26, 1995. He did not contact any one at work about his absence, andhe w as e ven tu all y fir ed. In addition, he did not return to his residence at his mother’s home for almost three weeks after Jackson’s disappearance. On October 2, 1995, Davidson’s mother informed the Dickson police that he was missing. Mrs. Davidson withdrew the missing person rep ort on October 8, 1995, after Davidson telephoned her. Davidson later re turned to his mother’shouse, once spend ing the n ight, and a second time retrieving a ca mper top for his pickup truck.

There was also e

vidence that Davi dson was i n the are a where the body was foun d in th e d ays followin g Jackson’s disappearance. Between O ctober 4 and 6, 1995, approximately a week aft e r Jackson disappeared, Melinda Jones saw Davidson driving a red truc k very slowly down Old Yellow Creek Ro ad in Di ck so n C ou nt y. Jones saw an object in the passenger seat that wa s tightly wrapped in a whit e sheet and was about as high as Davidson’s shoulder. As the truck went by , Jones saw the white object f all over onto Davidson, who pushed it away

. Later that evening , Jones observed the
sametruck tra

veli ng in th e opposite direction at a high rate of speed. Jones also testified that she remembered

seeing the same truck go down the r oad a few days to a week earlier, shortly after Jackson disappeared. At that time, the truck was going very slowly, and Jones, who was able to see inside the vehicle as it passed, noticed that “there was something that wasn’t right about the passenger’s seat.” Jackson’s body was discovered about one and a half miles from Jones’s home.

Ad di ti on al ly, between October 2 and 6, 1995, around 8 to 9 a.m., Davidson came into Kim’s One Stop Market not far

from Jones’s home. He was wearing work pants a nd was covered with dirt4

to his waist. According to one w i tness, Davidson looked “like he’d been digging in like a garden
or something.” Davidson sat in the store drinkinga cup of coffee for about an hour bef ore driving away in a red pickup truck with a camper top. A week later he returned to the mar

ket to pur chase a soft drink.

The State’s proof also showed that on September 29 and 30, 1995, Davidson made purchases at a grocery store andat a Wal-M art in Wave rly , Tennes see, in the county just southwest of the area where Jackson’s body was found. On October 4, 1995, aro und the time Melinda Jones saw Davidson driving his truck down Old Yellow Creek Road, Davidson also made a withdrawal from
an automatic teller at a bank in Erin, Tennessee, in HoustonCounty. All of these transactions place Davidson in the vicinity where Jackson’s body was found at a time shortly a fter her disappearance.

Other sightings of Davidson

after Jac kson’s dis appear

ance al so conne ct him with the ki llin g. For example, on October 9, 1995, Davidson reappeared at Bronco ’s Bar in Dickson . When Owe ns, the bartender, asked

him where he had taken Jackson on September 26, 1995, Davidson told her that he had dropped Jackson off at a K ro ge r g ro ce ry s to re . La te r t ha t s am e d ay, when Timothy Eads of the Dickson Co

unty Sheriff ’s Depa rtment we nt to Bron co’s Ba r to spea k with Owe

ns, Davidson was still t here. After Owens identified Davidson as the man who had take n Jackson home, Eads questioned Davidson about Jackson for several minutes. Davidson informed Eads that he had left Jackson at the Kroger parking lot ar ound midnight. Davidson appear ed nervo us and unc omfortab le during his conve

rsation w ith Eads a

nd left t he bar so on after Eads. When Eads tried to contact Davidson again, Davidson could not be loc at ed. On October 18, 1995, Eads executed a searc h warrant at Davidson’s residence. He seized an expended 20-g auge shotgun shel l that was later determined to have been fired from a shotg un found in Davidson’s truck.

On October 12, 1995, Davidson came into the L akeview Tavern in Cumberland City and ordered a beer. The bar

tender, Darla

Harvey , testifie d that his pants and shoes we re cove red with dirt. For over an ho ur, Davidson sat in the bar and stared at Harvey while sipping his beer. Disturbed by Davidson’s appe aranceand behavior, Harvey went outside and examined Davidson’s truck. At that time, the bed of the truck was covered with a ca mper top that

had been spray

painted redeveryw

here but the back window. Harvey looked inside the camper and sawa dirt y sleepin g bag,
a dirty shovel, a chain, a nd two Rubb ermaid c ontainer s. According to Harvey , the truck was “very messy,” as if Davidson had been living in it. Harvey informed some of

the bar patrons that she was afraid of David son, who th

en left th e bar at the patr ons’ req uest.
On October 19, 1995, Davidson was arrested at Robert’s Creek Bar near Cu ba La nding in Hu mp hr eys County. At the time of the arre st, Investigator Ted Ta rpley spoke with Davidson

. Davidson denied giving Jackson a ride on September 26. After Officer Eads joined the inter rogation, Davidson changed his story and stated that he had left Jackson at the Kroger p arking lot before driving to Nashville. He claimed that he stay ed in Nashville until 3 or 4 a.m., returned home, and then left the next morning for East Tennessee. Eads and Ta rpley did not inform Davidson that Jackson’s body had bee

n found. Whe n a sked to hy pothesize about wha

t might ha

ve happe ned to Jackson, Davidson

responded, “May

be somebo dy g ot her and chaine d her toa tree. ” Davids on also3 For purposes of investigation, the general locati on where the body and other evidence w as foun d was broken down int o two areas : the grav e site area wher e the body was actual ly f ound and the ca mpsite area acros s the loggi ng road from the grav e. 5 told Eads andTarpley tha

t they might find Jackson with her head and hands missing to keep any one from identifying

the body. After

Davidson was informed that the body had been found, he was asked what he had done with the head, and he replied, “I haven’t told you

that I killed her y

et.” Davidson later said that h

e might h ave some

thing to s ay

but could not say it y

et. He also told the officers that he had quit his job because “things were just ge tting tense” and he decided to leave.

Searches of Davidson, his truck, and the area where the body wasdiscovered y ielded several items linking him to the killing. On his person, the arresting officer s found a .25 caliber automatic pistol, a chrome knuckle knife with the blade open, a pair of handcuffs, a box of .25 calib er bulle

ts, and a live 20-gauge shell. The pistol was loade d an d ready to fire. At the time of

his arre st, Davidson’s truck did not have a camper top on it. His truck

appear ed to h ave bee n driv en thr ough mud and vegetation. Moreover, the truck contained the following items: an Ozark Trails tent, two shotgun s, a knife, handcuff key s, clothing, flashlights, cans of red spray pai nt , and Marlboro cigar ettes. Officers also found numerous items at the campsite or grave site 3 that belonged to either the defendant or to Jackson. The items included a box for an Ozark Trails tent, shells that had been fire d from the sh ot gu n f ou nd in Da vi ds on ’s tr uc k, a k ni fe , h an dc uf fs th at ma tc he d t he ke ys discovered

in the Da vidso n’s truck, packages and fr agments of Marlboro cigar ettes, a tool box resembling one previously see n on Davidson’s truck, cans of red spray paint, cl othing a

nd flashlights similarto those

in Davidson’s truck, and two receipts reflecting a withdrawal from Davidson’s bank account on Octobe

r 4, 1995, at an aut

omatic teller in Er

in, Tenne ssee. Per sonal item s belong ing to Jackson, such as her sandals, billfold, a hair clip, a brush, a

prescription bottle, and cigarette case , were fo und at the campsite as well.

In addition, the bottom of the passenger seat in Davidson’s truck had been cut out. A cha

in and padlock foundaround the passenger seat we re arranged in such a ma

nner that they could be used to restrain a passenger. Blood on the passenger seat and he ad rest tested positive for human blood. D NA testin g indicated that the blood samples from the truck did not match Davidson’s DNA. Instead, the samples were consistent with Jackson’s DNA. According to a report from LabCorp, Inc., only one in 265,000 people would be expected to have DNA matching tha t of Jackson.

The defense

present ed evide nce atte mpting to

counter the prosecution’s cir cumstantial evidence. There was testimony that two tires on Jackson’s truck had been punctured by a knife about two days befor

e she d isappeared. In a

ddition, a forensi c patholo gist who testifie d for the

defense criticized the manner in which the State’s forensic pathologist had per fo rmed the aut opsy and preserved th e b od y. The def

ense pat hologist also comp lained th at the qua ntity of alcohol and Prozac in Jackson’s body

should have been determined. The defense introduced Jackson’s medical records reflecting her hospitalizations between 1978 and 1995 for depression and drug and a lcohol abuse in
an attempt to show that Jackson might have died from an overdose of alcohol a nd/or Prozac. Her medical record s in clude a report that she had once overdosed on the dr ug Soma and had been4 In th is cas e, th e defendant was in dicted on ch arges of pre med itated m urde r and felony m urde r. The trial court inst ructed the ju ry that i t coul d find t he defendant

guil ty of count 1 (pr emeditat ed murder) or count 2 (felony murder), but not both. As we explained in State v. Howard :

W hile it was not error for t he tri al court

to deli ver sequen tial

jury inst ructi ons, we have previous ly ur ged tri al court s to al low juri es to cons ider al l theor ies of firstdegree murder. We are compelled to emphasize this point agai n: a tri al court shou ld instruct

a jury to render a verdict as to each count of a multi ple count indictment which requires specif ic jury fin dings on di ffe rent t heories of fi rst- degree murd er. If the jur y doe s return a verd ict of guilt o n mo re than one th eory o f firstdegree murder, the court may merge the offenses and imp ose a si ngl e judg ment of conviction. The benef

it s of instructing the jury in th is mann er are impo rtant. First, the double jeopardy pro blem of retry ing a def end ant after a subse que nt app ellate opini on reverses a conviction as unsupported by evidence is precl uded. Second, the State will

have a basi s to prot ect oth er convi ctions to whi ch it may be e ntitle d. Third, in light of our decision in State v. Middlebrooks , 840 S.W .2d 317 (19 92),
a jury ver dict o n eac h char ged offense will all ow the St ate t o use th e fel ony murder aggravator as an aggravati ng circumstance in s entencing.

30 S.W .3d 271, 275 n.4 (Tenn. 2000) (citations omitted).
6 pronounced

dead. In addition, a bottle labeled for a pr escription for thirty pills of Prozac dispensed
on September 25, 1995, contained only five tablets when found at Jackson’s ho m e after her disappearance. To counter the inference that Davidson could have used a surgical instrument from his workp lace to c

ut Jackson’ s body , the def ense pre sented te stimony

that no sur

gical instrumen

ts had been reported missing from Davidson’s place of employment. Finally , t he defe nse presented the testimony of a DNA e xpert who was unable to corroborate the fin dings of the State ’s experts

. The expert challenged the opinion that the DNA test ruled out Davidson as the source of the blood found on the passenger seat of his truck. The de fense expert admitted, however, that she had made no indepe ndent exam

ination or analy sis and wa s only

reviewing L abCorp, I

nc.’s findings.

At the conclusion of the evidence, the jury convicted Davidson of first degree premeditated murder and aggra vated kidn appin g. 4 The trial then moved to the sentenc ing pha se to determine the punishmen

t. During the sentencing phase, the State presented proof that Davidson

had bee n convict ed in 1971 for assault and battery with the intent to commit rape, in 1976 for assault and battery with the intentto ravish and to have unlawful carnal knowledg e of a female over 12 y

ears of age, and in 1983 for felonious crime agai nst natu re and for felonious sexual battery . A Tennessee Bureau of Investigation

agent tes tified tha

t J ackson’s body ha

d been mutilated by cutting the neck area and torso. Photographs showing the mutilation were re-introduced.

In mitigation, the defense presented the testimony of Davidson’s mother, several of his coworker s, and his minister. Davidson’s mother related that, as a child, he ha d lived with hi s grandpare nts and had not completed school because he was alway s in trouble with the law. She described her son as a

quiet boy who had fe

w friends. He had no contact with his father throug hout7

his life. At s ome indef

inite time in the past , he had s pent one t o two years a

t Central State Hospital for mental problems. Davidson’s mother testified about how badly Da vidson had taken his younger brother’s death in Vietnam and how h e had helped her at home. Next, several of Davidson’s c oworkers testified that he was a good worker, a g ood friend, and a nice, considerate man who would help any one. The

y f ound Davi dson’s inv olvement in Jackson’ s murder

inconsi stent wi th his behavior when he w as around them. The last witne ss for the d

efense was Joe Ingle, a minister, who describ e d Davidson as quiet and passive, with an interest in the Bible’s prophetic books and a n opennes s to lea rning n ew things. Ing le opined that Davidson would not be a threat in prison and would par

ticipate in work or

educati onal prog

rams.
Based on this proof the jury found that the State ha d proven beyond a

reasonable doubt

the following statutory

aggr avating circumst ances: (1) the defendant was previously convicted of one (1) or more felonies, othe r than the present charge, w hose statutory elements involve the use of violence to the per son; (2) th e murder was know ingly

committed

by t h e defe ndant while in the commission of a ki dnapp ing; and (3) the defendant knowingly mutilated the body of the victim after death. Tenn. Code Ann. § 39-13-204(i)(2), (7), (13) (1991 & Supp. 1995). In addition, the jur y found that t he St ate had prove n that the aggra vatin g c ircumstan ces outweighed any mitigating circumstances bey ond a reasonable d oubt. As a result, the jury sentenced Davidson to death for the murder of Virginia Jackson.
ANALYSIS Change of Ve

nue
Davidson filed a pre-trial motion for a change of venue in April 1997, and t he trial cour t co nducted a full evidenti a

ry hear ing. Davidson presented articles from the Tennessean , the Nashville Banner , and the Dickson Co unty Herald newspapers that had

appear ed from O ctober 1 995 to June 1996, as well as a videotaped newscast from a Na shville television station that had aired in January 1997. He argued that the news ac counts had reported information about the discovery of Jackson’s bo dy, the deta

ils of the crime, and

his prior criminal behavior, including his convictions for sexual offense s. Davidson

further argue d that m edia coverage often me ntioned this case and Jackson’s
name in connection with proposed legislation for monitoring conv icted sex offenders. Davidson argu ed that the media cove rage a lso repor ted infor mation ab out Jackson ’s “prominent family,” whic h included the founders of a local hospital, a probate judge , and a state representative. Davidson asserted that the information had been disseminated so widely and was so prejud

icial tha t a fair trial
co ul d n ot be he ld in Di ck so n C ou nt y.
The State argued that Davidson f ailed to establish grounds for a change in venue and presented the testimony of a criminal investig ator and a court clerk who had c onducted

“informa l”
su rv eys in Dickson and Cheatham Counties. These ind

ividuals a pproach ed numer ous adult c itizens, presuma bly at random, and asked several questions designe d to gauge the citizens’ level of familiar ity with the defendant, the victim, and the pending murder cha rge. Both witnesses testified that the majority of persons they interviewed in Dickson and Cheatham Counties had for med n o8

opinion with respect to the pending trialagainst Davidson. Although many individuals knew that Jackson had beenkilled, most did not recognize Davidson’s name. The State also presented seve ral witnes ses, including the Dickson County Sherif f, who opined that a fair trial could be con ducte d without a change of venue.

The trial court entered a detailed written orde r stating that it had considered the evidence introducedat the evidentiary hearing and had analy

zed a numbe rof factors with respect to venue. See State v. Hoover , 594 S.W.2d 743, 746 (Tenn. Crim. App. 1979) (enumerating seventeen fa ctors that are relevant in determining whether a change in venue

is necessary ). In deny

ing the motion, the trial court found:

While the severity of the

offense charged is ver

y grave and is ca pable of being sensational ized, the d efendant has presented no evidence that this has occurred. L

ikewise, there has been no evidence presented of any threats, demonstrations , or other hostility aga inst the defendant

. . . .

. . . . While the defendant did produce evidence of pu bl ic it y, he presented
no affida vits or othe

r evidence that th

is publicity

affected or infected the community. While this court declines to give substantial weig ht to the State’s surveys, the State also provide d testimony from various county officials that

a jury could be obta

ined in Dic kso n C oun ty. In the court’s opinion, th

e eviden ce is insu fficien

t to show that venue should be changed at this time.

We begin our analy sis with the familiar principle that

a criminal offense shall be prosecuted in the count

y where the

offense was committed, unle ss otherwise provided by statute or court r ule. See Tenn. R. Crim. P. 18(a). Venue may be changed on motion

of the defendant “if it appears to the court that, due to undue excitement against the defendant in the c ounty where the offense was committed or any

other ca use, a fa ir trial p robably could not be had.” Tenn. R. Crim. P. 21(a); see also State v. Dellinger , 79 S.W.3d 458, 481 (Tenn. 2002) (append ix). A mo tion for a change of
venue shall be accompanied by a ffidavits alleging the facts that constitute “undue excitement” or other grounds. Tenn. R. Crim. P. 21(b).

The fact that a juror ha s been exposed to p re-tria l publicity

does not by

itself wa rrant a change in venue. See State v. Mann , 959 S.W.2d 503, 532 (Tenn. 1997). A court must instead consider a number

of factors , including the nature and extent of pre-trial publicity , the degree of publicity in the area from which the venire will be drawn, the existence of hostility or demonstrations agains tthe defe

ndant, and the leng

th of time b etween

the pre- trial publ

icity and the trial. See Hoover , 594 S.W.2d at 746. A court must also consider the effect that pre-trial publicity may

have
on jury selection. See id. Relevant factors in this regard include the size of the area from which the venire will b e dra wn, the potential jurors’ familiarity with the pre-trial publicity, the e ffect on5 Davidson did not chall enge Sensi ng for c ause on t his bas is but

did chal lenge h er parti cipati on for caus e based
on her view s on the death pena lty. Althou gh Se nsing state d that sh e belie ved in cap ital punish men t in “certain circum stance s,” her res ponses cla rif ied t hat she w ould c onsi der the ci rcums tanc es of the case , f

oll ow the appl icable law, and render a ve rdict

based on the evi den ce. Sh e said th at she w ould not vo te for the death pena lty autom atically. Acc ord ingly, the t

rial court did not err in r efu sin g to e xcus e herforcause on this b asis. See W ainwrig ht v. W itt , 469 U.S. 412, 424 (1985) (removal f or cause onl y when “ the ju ror’s views would prevent or subst anti ally impair the perf ormance of [the juror’ s] duties”).
9 potential jurors shown during jury selection, and the defendant’s use of peremptory challenges and for-cause challenge s. See id.

The trial court ha s the disc retion to d

etermine whether to gran t a chang e of venu e, and its decision will be rev ers ed only for a clear abuse of discretion. See Dellinger , 79 S.W.3d at 481. Moreover, before

a convic tion will be

revers ed for the trial c ourt’s fa ilure to g rant a change of venue,
an accuse d must

establish “that the jurors who actually sat we re biased and/or prejudiced.” Id. ; see also Mann , 959 S.W.2d at 532.

The record demonstrates that the trial court did not abuse its discretion in denying Davidson’s motion for a

change of venue. The trial c ourt considered numerous relevant factors a nd determined that the nature and conduct

of the pre-trial publicity

was informative but not

sensatio nal or unf

airly prejudic ial. More over, al though th e news a ccounts a ffecte d the are a inwhich the venire was later selected, the trial court found that most of the pre-trial publicity occ urred several months before the trial and was not pr

ejudicia l or perv asive either shor

tly b efore o

r during the trial

. The record also demonstrates tha t t he trial court conducted a meticulous and detailed jury selection processfrom Aug ust 4 to August 19, 1997. The voir dire examination involved over two hundredpotentia

l jurors. As Davidson asserts, approximately twenty percent of the jurors knew of his prior criminal record, and ten percent of the jur ors were familiar with Jackson’s family . The trial court, how ever, removed nearly half of the venire by

excusing for cause all potential jurors who could not set aside their opinions of the case.

Fi na ll y, the record does not support Davidson’s cont ention that two of the jurors were actually prejudiced

against him. Joy

Anderson stated during voir dire that her y ounger brother was
a friend of Jackson’s son. She clarified, however , that she would not “lea n one way or the other” if selected to serve as a juror and

that her son’s relationship

with Jackson’s family would not influence her in any way . Similarly, My ra Sensing said during voir dire that she had known Jackson several yearsearlier and that her mother had worked with Jackson’s aunt. Sensing also stated that she had read news ac counts ind

icating that D avidson h ad mental health problems and had been a “sex offender.” Upon additional questioning, however, Sensing clarified tha t her knowl e dge of Jackson’s family would not affect her “decision making”if she was selected to serve as a juror and that she would bas e her de cision sole ly o n the evid

ence at trial. 5

An individua

l examined d

uring vo ir dire isnot requi red to have a com plete lack of knowl edge of the facts and issues to be selected as a juror. See Statev. Pike , 978 S.W.2d 904, 9246 In a related iss ue, Davidson argues that the t rial court er

red by denying his motion f or additional peremptory chall enges and that the err or was prejudicial because it allowed Anderson and Sensing to pa rticipate as juro rs. Davids on has not c lai med th at h e was deni ed t he f if teen perempt ory challenges permitted in capital cases by Rule 24(d) of the Tennessee Rules of Crim inal Pr oce dure , and h e has c ited no autho rity for the trial court to grant additi onal peremptory challenges. See Ross v. Okla homa , 487 U.S. 81, 89 ( 1988) (holding that the right to peremptorychall enges i s “deni ed or impaired” only when a defendant does not receive that which the st ate law permits)

. 10 (Tenn. 1998) (appendix). As the United States Supreme Court has said, it is “sufficient if the juror
can lay aside his impression or opinion and re nder a verdict based on the evidence presented i n court.” Irvin v. Dowd , 366 U.S. 71 7, 723 (19 61); see also Mann , 959 S.W.2d at 531 (recognizing that jurors may

be selected to hear a trial if they are able to set aside an opinion and render a verdict based on the evidence in court).

The voir dire examination demonstrated that neither Anderson nor Sensing was prejudiced agai nstthe def

endant or biased in favor of Jackson or her family . Indeed, Davidson did not chall enge either juror for

cause on this basis. 6 Moreove

r, Ander son and Se

nsing bo th clarified that their decisions would not be affected by any influence

or information outside of the courtroom and that they would bas e their

decisions solely on the evidenc e presented at trial. See Mann , 959 S.W.2d at 531. In sum, Davidso n has fai led to show that either Anderson or Sensing was actually prejudiced or biase d again st him.

Ac co rd in gl y, the rec ord showsthat the tr ial cour t held an extensive evidentiary he aring and considered

numerous relevant

factor s in determining whether to grant a c hange of venue. The trial court also conducted a lengthy and detailed voir dire process that was devoted to determining the nature and extent of exposure to media coverage of the def endant and victim as well as its potential effect on the views of the potential jurors. There is no evidence that any juror was actually biased
or p rejudic ed aga

inst David son. We the

refore conclude

that the tr

ial cour t did not abuse its discretion in denying

Davidson’s motion for a change of venue

.

Selection of Venire

The relevant statutory pr

ovisions governing the selection of the jury venire or a

special jury venire are est

ablishe d in Tennessee Code Annotation section 22-2-302 and related sec tions. As relevant to this case , the prov

isions req uire the board of jury commissioners to select qua lif ie d persons “from e ach distr

ict in the county and in propor

tion to the population of such districts, as near
as may be, to serve as jurors in the circuit and criminal courts of such c ounty . . . .” Tenn. Code Ann. § 22-2-302(a)(1) (1994). Although minor or inadve rtent deviations from the statutory jury selection provisions may not

warrant a reversal of a c onviction, we have emphasized that the courts “will not sanction flagrant and unnecessary deviations.” State v. Bondurant , 4 S.W.3d 662, 670 (Tenn. 1999);
see also State v. Ly

nn , 92 4 S.W. 2d 892, 898 (Tenn. 1996) (holding that the selection of a specia l venire was an improper and unnecessa ry deviation from the sta

tutory procedur

es).

The re c ord reflects that Sue Zwingle, the Criminal and Circ uit Court Clerk for Dickson Co un ty, testifie d that the

venire w as rando mly

selecte d by

a compute

r from a l ist of every licensed7 It is not clear fr om D avidson’s brief whether the is sue w as pur sued s olel y on s tat utor y gr ounds or as part of the pre-tri al publicit

y issue. In either case, the i ssue is wi thout merit f or the reasons given i n this opini on.

8 On appeal, Davidson has presented an attachment to his brief that contains various stat

istics appare ntl y tak en from juror questionnaires. The State argues that t he information was not presented to the tri al court and that, in any
even t, the statistics es tablish tha t the ven ire selec tion wa s pro por tional. The Stat e is corre ct t

hat the inf

ormat ion cannot be co nside red b y this Co urt bec ause it wa s not intro duc ed as evide nce in th e trial co urt.

9 At ora l argum ent, D avids on’s co unsel state d that D avids on’s “id enti ty as the perpetrator” was not being chal leng ed.
11 driver ov er ei gh te en yea rs of

ag e i n D ic ks on Co un ty. Although she did not determinethe population spread among the districts in Dickson County, Z wingle testified that

the method of selecting the venire was in accordance w ith her trai ning, experience, and discussions with judges. Davidson introduced no further evidence.

The trial court denied relief after finding that Davidson ha d introduc ed no evid ence to establish the number of persons selected from eac h district an d no evidenc e to establish that the number of persons selected

from each

district w as dispro

portiona te in any way . The issue

appare ntly was not a ddresse d by

the Court o f Criminal

Appeals

. 7

We conclude that the record supports the trial court’s determin ation tha t Davidson

failed to establish the number of per sons sel ected from each district and that he failed to show that the selection in any

district w as dispro

portio nate . Moreover, Davidson has not demonstrated any grounds for concluding that the selection pr ocedure s w ere a “flagrant a nd unnecessary ” deviation from the statute. See Bondurant , 4 S.W.3d at 670. In sum, Davidson has failed to establish grounds for relief. 8 Sufficiency of the Evidence First Degree P

remeditated Murder

Davidson contends that

the State failed to prove that the victim’s murder was premeditated. 9 In reviewing the sufficiency of the evidence, we must examine all of the evidence to determine whether any rationa l trier of fact could have f

ound the e lement of premeditation be

yond a reas onable doubt. See State v. Sim s , 45 S.W.3d 1, 7 (Tenn. 2 001); State v. H all , 8 S.W.3d 593, 599 (Tenn. 1999). We are r

equired to affor d the pros ecution t

he strong est

legitima te view of the evidence in the record as well a s all reasonable and legitimate infere nces that may

be drawn from the evidence. See Statev. Bland , 958 S.W.2d 651, 659 (Tenn. 1997). Questions regar ding the credibi lity

of witnes ses, the weight to be given the evidence, and any factual issues raised by

the evidence are resolved by the trier of fact. See id.12

At the time of the offense, first degree murder included a “pr

emeditated and intentional killing of another.” Tenn. Code Ann. § 39-13-202(a)(1) (1991 & Supp. 1995). The statute defined premeditation as f

ollows:

As used in subdivision (a)(1) “preme ditation” is an act done after the exercise of reflection and

judgment. “Premeditation” means that the intentto kill mu st have been formed prior to the act itself. I t is not necessary that the purpose to kill pre-exist in the mind of the accused for any definite pe

riod of time. The mental state of the accused at the time the accused

al legedl y decided to k

ill must be c arefully considered

in order to determine whether

the accused was

sufficie ntly free from excitement

and passion as to be capable of premeditation.

Tenn. Code Ann. § 39-13-2 02(d) (1 991 & Supp . 1995). Whether pr emeditat ion is present in a given
case is a question of fact to be determined by the jury from

all of the circumstances surrounding the kill ing. See State v. Suttles , 30 S.W.3d 252, 261 ( Tenn. 2000); State v. Pike , 978 S.W.2d 904, 914 (Tenn. 1998).

Becau se premeditation inv olves the defenda nt’s state of mind, c oncerning which there i s often no direct evidence, Tennessee ca ses have long recognized that premeditation may be pr oved by circumstant ial evi dence. See State v. Brown , 836 S.W.2d 530, 541 (Tenn. 1992). We have previous ly

identifie d severa

l circums tances t

hat may warran t the tr ier of fac t to find or infer premeditation: th e u se of a d ea dl y we apon upon an unarmed victim; the particular cruelty of a kill ing; the defendant’s threats or declarations of intent to kill; the defenda nt’s procurement of a weapon; any prepa

rations to conceal the crime undertaken bef ore the crime is comm

itted; destruction
or secretion of

evidence of

the killing; and a defendant’s calmness immediately after a killing. See Bland , 958 S.W.2d a

t 660; Pike , 978 S.W.2d at 914-15. These factors, however, are not exhaustive. See Bland , 958 S.W.2d a

t 660; Pike , 978 S.W.2d a

t 914-15 ( stating

that these are but s ome of several factors that may be consider ed on the issue of

premeditation). A jury

is not limite d to any

specific evidence when det

ermining whether a defendant inte

ntionally killed the victim “a fter the exercise of reflection and judgment.” See Tenn. Code Ann. § 39-13-202(d) (1991 & Supp. 1995). The factors listed in Bland

and other cases simply ser ve to demonstrate that premeditation may be established by any

evidence from

which a rational trier of fact may infer that the killing was done “after the exercise of reflection and judgment” a s require d by Te nnessee Code Annotated section 39-13-202(d).

Alth ough the question is close in this case, we believe that the evidence is sufficient for a rational trier of fact to have found the element of premeditation bey ond a reasonable doubt. Several facts support a finding of preme ditation w hen view ed cumula

tively in the light most favorable to the State. See State v. LaChance , 524 S.W.2d 933, 937 (Tenn. 1975) (looking at theentire pattern of the defendant’s conduct in determining whethe r evidence of premeditation is sufficient).13

While there is no direct

evidence that Davidson intended to kill Jackson when they left the bar together on thenight of September 26, 1995, circumstantial evidence supports the jury ’s verdi ct. It is undisputed that Davidson sat quietly near Jackson for approximately three hours be fore offering her a ride ho me. I

t was rea sonable

for the jury to infe

r that during this time Davidson became aware that Jackson had no me ans of transportation and that Davidson remained in the bar af ter all other patrons ha d left, waiting to offer Jackson a ride in order to kidnap and mur der her. Evidence that hair clips, a c ell phone , panties , a pillow, a sweats hirt, and a sock, a ll belongin g to Jackson, were strewn across a field near her home supports a f inding that there was a strugg le between Davidson and Jackson. T

he sear ch of Da vidson’s t ruck revealed t

wo sets of

handcuf fs and a chain w ith a padlock aroundthe passenger seat. Blood consistent with Jackson’s was also found on the pa ssenger seat. Furthermore, Davidson told the police that Jackson may have been ch ained to a

tree. F rom all of this evidence, the jury

could have reason ab ly inferre d that Davidson left the bar with a preconceived

plan, handcuffe d and cha ined Jacks on to the passe

nger se at inhis truck , drove her to a secluded location, again restra ined her, and then killed her. While the precise cause of Jackson’s death was undetermined, the search of Davidson and his truck yielded

a veritable arsenal of weapons including knives, shotguns, a .25 caliber pistol, and
numerous rounds of live and spen t ammunition. Shotgun shells found in the truck and at the campsite were de termined to have been fire d from one of the shotguns i n David son ’s t ruc k. In
co ntrast, ther e was no evidence that sugg ested Jackson was armed or in possession of a weapon when she was killed. See Bland , 958 S.W.2d at 660 (mentioning use of a weapon upon an unarmed victim as a circumstance relevant to premeditation).

The jury could also have inferred prem editation from Davidson’s treatment of Jackson’s body in this case. The mutilation of the body, particularly the slicing of

Jackson’storso fro m the neck to the abdomen, indicates that the killing was motivated by a de sire for some sort of gratification and
was no t a ras h or im puls ive ki llin g. See Tooley v. State , 448 S.W.2d 683, 687 (Tenn. Crim. App. 1969) (concluding that horrible mutilation of victim was circu mst ance from which premeditation
co uldbe inferred). Davidson’s calculated be havior during his interrogation by law en forcement , descr ibed by a witness as a “ cat-and-mouse game,” likewise is re levant to the question o f premeditation in this case. Davidson first claimed, for instance, that he had simply given Jackson
a ride to the Kroger parking lot. Later, unaware

that Jackson’s body had been found, Davidson coolly sp ec ul at ed th at so me on e m ay ha ve chained her to a tree a nd sever ed her he ad and ha

nds to avoid identific ation of th

e corpse . When off

icers sa id th ey had found Jackson’s body and asked Davidson what he had done with the head, he replied, “ I haven’t told y ou I killed her y

et.”

Ac co rd in gl y, while no single piece of evidence wa s sufficient in and of itself to es tablish premeditation in this case, we believe that the f acts and circumst ances a s a whole were sufficient for
a rational trier o f fact to hav e found the elements of premeditated first deg ree murder beyond a reasonable doubt. Davidson is not entitled to relief on this ground.10 Ad ditiona lly, Da vidso n argu es that ad mission of H arvey’s testi mony viola ted hi s ri ghts to due process under

Article I, secti ons 8 and 16 o f the Tennessee Constitut ion and under the Eighth and Fourteenth Amendment s to the United States Constitut ion.
14

Aggravat

ed Kidnapping

The offense of kidnapping is committed when a person “knowingly re moves or confines another unlawfully s o as to inte

rfere substantia

lly with the other’s liberty.” See Tenn. Code Ann. §§ 39-13-302, -303 (1991). T he offe nse is aggravated when the victim suffers bodily injury

. See Tenn. Code Ann. § 39-13-304 (1991). When viewed in a light most favorable to the State, it isclear from the evidence discussed above tha t a rational trier of fact could find the elements of a ggravated kidnapping

beyond a
reasona ble do ub t. Th e j ur y could h ave reasonably inferred from the proof presented a t trial that Davidson handcuffed and chained Jackson to t

he passe nger se at in his truck in order to prevent her escape before killing her. Furthermore , Davidson’s suggestion that Jackson may have been chained to a tree also supports a finding that she was kidnapped. This issue is without merit. Testimony of Darla Harvey

The next issue raised is whether the trial court abused its discret ion in admitting

Darla Harvey ’s testimonyregarding her opinions about Da vidson when he came into the Lakeview Tave rn two weeks after Jackson’s disappearance

. We note that Davidson concedes that Harvey ’s testimony regarding his activi ties while in the bar was admis sible. How ever, he complain s that it is cumulative to the testimony given by

other witnesses about his habit of sitting and watching people. Davidson argu es that Harvey ’s opinions were improper lay opinions in violation of Tennessee Rule o f Evidence 701. He a

lso contends that they we

re irrelevant and unfairly

prejudicial under Tennessee Rules of Evidence 401 and 403. 10 The State asserts t hat any error w as harmle ss.
Darla Harvey testified that on the afternoon of October 12, 1995, Davidson sat silent ly in the Lakeview Tavern and stared at

her for over an hour while sipping a beer. She stated that she thought that Davidson ’s stari ng wasn’t “right,” made her “kind of w ary,” a nd led her to conclude that “something ain’t right” and “this ain’t w orking out too good.” Harvey further testified that, as Davidson conti nued s tarin g, she go t a “gut feeli ng” that s he sho uld go outside and look at his truck. After exami ning Da

vidson’s t

ruck, she said to he

rself, “ Good, I

got me a nut.” The

defense ’ s objection to this remark was sustaine d. Harve y te st ified tha t, after re-entering the ba r, she was “bothered” when Davidson continued to stare at her and then went to the restroom and looked out the back door. She testified that, as Davidson remained in the bar, he made her “nervous,” that she “felt real une asy

about the

whole situ ation,” a

nd that his sta

ring “was making [her] very uncomf ortable.” Harvey

testified that it was “funny” and that “something wasn’t right” whe n Davidson left the b ar at one point to g et a cigarette since he had jus t opened a pack of cigare

ttes. Harvey said that, when she saw Davidson get something out of his truck, she placed her gun close at hand and releasedthe safety. She c ontinued to believe that “something wasn’t right” whe n15

Davidson returne d becau se he did not speak to her when she addressed him and be cause he

kept his hand in his pocket. Harvey stated that she had been ready to shoot Davidson if he had come an y closer. S he co mmented that she “just had a bad feeling, this guy wasn’t making me feel right.” Fi na ll y, Harvey

testifie d that s he felt so af raid at th is point, tha

t she urg ed some customers t o ask Davidson to leave and that D avidson th

en left.

Under Tennessee Rule of Evidence 401 evidence is relevant if it has “any

tendency to make the existence of any

fact that is of consequence to the determination of the action more probable or less prob able tha

n it would be without the evidence.” However, Tennessee Rule of Evidence 403 excludes any

releva nt evidence “if

its probative value is substantially outweighed by the dang er of unfair p rejudic e.” Ten

nessee R ule of Evi dence 7 01(a) pr ovides:

If a witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perc eption of the witness and (2) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue.

Ini ti al ly, we disag

ree tha t all part s of Harv ey ’s testimo ny c halleng ed by

Davidson

in th i s Courtamount to lay opinion. While Harvey’s testimony that “something ain’t

right” and that “this ain’t working out too good” were opinions, her stateme nts that she was “kind of wary ,” had a “gut feeli ng” or a “bad feeling,”and was frightened, uneasy , and uncomfortable were not opinions but descriptions of her st

ate of mind during

the time th at Davids on was i n the tavern. This testimony
was relevant to explain Harvey ’s examination of Davidson’s truck. Furthermore, those portions of Ha rv ey’ s testimony that are opinions were observations rationally ba sed on her perception of t h e facts. See, e .g. , Brown , 836 S.W.2d a t 550 (sta ting tha t opinion te stimo ny is admissib le when it describes the witness’s observations in the only wa y in which they

can be clea

rly describ ed). This testimonywas helpful to the jury in under standing why Harvey acted as she did while Davidson was in the tavern. Harvey ’s statements were therefo re releva nt. SeeCohen, Sheppeard & Paine, Tennessee Law of Evidence § 7.01[4][c] (4th ed. 2002) (stating that implic it

in the requirement that lay opinion be

helpful isthe concept of relevance). Moreover, Harvey ’s assessment of Davidson’s behavior was unlike

ly to result in any unfair

prejudice. Therefore, we c onclude that the probative value of this testimony outweighed any dang er of unfair prejudice. We thus hold that the trial court di d n ot ab us e i ts di sc re ti on in ad mi tt in g t he se po rt io ns of Ha rv ey’ s t es ti mo ny.
Further mo re, even if the c hallenged statements were inadmissible, in light of the entire record
o n appeal, we would conclude that any error in the admission of Harvey ’s statements would hav e been harmless. See Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a). Several ot her witnes ses testifie d conce

rning similar beh avior by Davidson . This issue

is without me

rit.11 Alt hough the Stat e is corre ct t hat Davids on’s fai lur e to obj ect waiv es r evie w of the i ssue, we elect

to revi ew the me rits of the issue

. See State v. McKinney , 74 S .W .3d 2 91, 3 03 n .5 (T enn. 2 002 ).
16 Jury Verdict Form – Aggr avating Circumstances

Davidson next conte

nds that the death s entence was inva lidbecause

the jury’s ver

dict form didnot establish that the jury found the ag gravating circumstance s relied upon by the State. The Stateargues that

Davidson

waived r eview of the issue by f ailing to object c ontempor

aneously 11 and that, in any

event, th e v erdict form was sufficiently clear to show that the jury found all of the aggr avating circumst ances be yond a reas onable do

ubt.

The St at e r el ie d u po n t hr ee ag gr av at in g c ir cu ms ta nc es in se ek in g t he de at h p en al ty: (1) that the de fendant had a prior conviction for a felony whose statutory eleme

nts involved the use of violence to the person; (2) that the defendant knowingly committed the murder in the commission of a kidn appin g; and (3) that the defendant knowingly mutilated the body of the victim after death. See Tenn. Code Ann. § 39-13-204(i)(2), (7), (13) (1991 & Supp. 1995). The trial court instructed the jury on the precise stat

utory langua ge of th ese ag grava

ting cir cumstanc es.
In i mpos ing the d

eath pen alty , the jury ’s verdi ct form st ated: “We , the jury , unanimou sly find the following listed statutory a ggravating cir

cumstance[] or circumstances”:
(1) Previously convicted of one (1) or more felonies, etc. (2) The murder was knowingly committed, etc. (3) The Defend ant knowingly mutilated

the body of the victim after death.

The verdict form concluded that “[w]e, thejury, unanimously find that the State has provenbeyond
a r ea so na bl e d ou bt th at th e a ggr av at in g c ir cu ms ta nc es so li st ed ab ov e o ut we ig h a ny m itigatin g circumstances.”

This Court has n

ever he ld that the jury’s ver

dict form must be an exact or verbatim statement of the statutory

aggravating circumstances relied upon by the State. See State v. Bland , 958 S.W.2d 65 1, 661 n .6 (Tenn. 1997) (holding that “[t]he failure of the verdict to repe at the language of the statute defining the aggr

avating circumstance does not invalidate the jury’s finding s”). The jury ’s verdict must be suf

ficientl y c lear, ho wever, to indica te that the jury has found

the elements of

the aggravated

circumstance or circumstances relied upon by the prosecution. See State v. McKinney , 74 S.W.3d 291, 303 (Tenn. 2002). The verdict is sufficient where “the ag gravating circumstance s found are clearly

those allowed by the statute a nd permit effective appellate review of the sentence.” Id. at 304 (quot ing State v. Teel , 793 S.W.2d 236, 250 (Tenn. 1990)).12 See Tenn. Cod e Ann. § 39-13-204 (i)(5) (1991 & Sup p. 1995).
17 We agree with the Court

of Criminal A

ppeals’ conclusi on that the jury ’s verdi ct in this c ase established that the jury found the ag gravating circumstance s relied upon by the State in see king the death sentence. The State relied upon three ag gravating circumstance s and the trial court’s instructions to the jury tracked the precise statutory language of eac

h of the three aggra

vating circumst ances. Although the jury’ s verdict form did not specifically restate the p recise

st atutory language, it plainly indicates that the jury found all three aggravating circumstances. Indeed, as the Courto f Crim inal Appeals observed, the verdict form’s use of “ etc.” demonstrates that the jury found the exact aggravating circumstances uponwhich it had been instructed and then used a short,
common term f or inc orpor ating the entir e statutory lang

uage by reference. I

ndeed, any

other conclusion would be unreasonable. See id. at 303-04.

This Court’s decision in State v. H arris , 989 S.W.2d 307 (Tenn. 1999), upon whichDavidson relies, is distinguishable. In Harris , we held that a sentencing verdict was error where the jury found that the murder was “especially heinous and atro cious” and did not recite the complete statutory langua ge of “especially

heinous, atrocious, or

cruel i n that it involved torture or serious physica l abuse bey ond that necessar

y to produce death.” 989 S.W.2d at 313-14. 12 Moreove r, the sta tements of th e j ur y fo re pe rs on re ve al ed th at th e j ur y intended to omit the rem ainin g criti cal la nguage of the aggravating

circumstance, i.e. , “tortur e or ser ious phy sical ab use bey

ond that necessar

y to produce death.” Id. at 314. We held that verdict was incomplete and erroneous under the circumstances of th at case. See id. In contrast, there is no indication in this case that the jur y intended to omit any elementsof the aggravating circumstances or that

it altere d the ag grava

ting cir cumstanc es to suit it s findings. Accordingly , Davidson is not entitled to relief on this ground.

In a r elate d argu ment, Davidson asserts that the death sentence was invalid beca use the verd ict form did not state that the jury found the a ggravating cir

cumstances bey ond a reasonab l e doubt.

The releva

nt st atutory pr ovision requires that the jury una nimously determine that at least one aggravating

circumstance has been proven by the State beyond a r easonable doubt and that such aggravating circumst

a nce or circumstances have bee n proven by the State to outweig h any mitigating circumstances beyond a re asonable doubt. SeeTenn. Code Ann. § 39-13-204(g)(1)(A), (B) (1991 & Supp. 1995). The statu

te furthe r provide s that if the sentence impose d is a death sentence, the jury shall“[r]educe to writing the statut ory ag gravating circumstance or statutory ag gravating circumstances so found” and “[s]ignify that the state has proven bey ond a reasonable doubt that the statutory aggr avating circumstance or circ umstances outweigh any mitigating circumstances.” Tenn. Code Ann. § 39-13-204(g)(2)(A)(i) , (ii) (1991 & Supp. 1995). Finally, the statute re quires that the jury ’s verdi ct form su

bstantial ly a ppear a s follows:
We, the jury, unanimously find the following l isted statutory aggr avating circumst ance or circumst ances:13 For reasons that are n ot clea r from the statute, th e statuto ry pro visions g ove rning life and life w ithout p arole

senten ces includ e the “b eyon d a re ason able d oub t” langu age in th e jury ve rdict fo rm. See Tenn. Cod e Ann. § 39-1 3-20 4(f)(1 ), (2) ( 1991 & Supp. 1995) . I t wou ld appear that the statutory v erdic t form fo r impo sing the d eath pen alty shou ld be ame nde d for u niform ity.
18

[Here list the statutory agg ravating circumstance or

circumst ances so found.]
We, the jury, unanimous ly f ind that the state has proven bey ond a
reasona ble doubt that the statutory ag gravating circumstance or circumst ances ou tweigh any mitigati ng circ

umstance s. Therefore, we, the ju

ry , unanimou sly

find that t

he punishm

ent shall be death. Tenn. Code Ann. § 39-13-204(g) (Supp. 1995). 13

As stated above, the jury ’s verdict form stated, “We, the jury, unanimously find the following listed statutor y a ggravating cir cumstance[] or circumstances,” which it then listed. The verdict concluded, “We, the jury, unanimously find that the State has proven bey ond a reasonable doubt that the aggravating circumstances so listed a bove outweigh any

mitigating circumstances.” Accor di ngly , the verdict mirrored and satisfied the relevant statutory language reg arding therequired jury verdict form in a death penalty

case. See Tenn. Code Ann. § 39-13-204(g) (1991 & Supp. 1995).

In addition, the trial court’s instructions to the jury emphasized the pre cise statutory requirements with respect to the State’s burden of proof. F or instance:

Tennessee law provides that no sentence of deat h . . . shall be imposed by a jury

but upon a unanimousfinding that the st

ate has proven beyond a re asonable doubt the existence of one (1) or more of the statutory ag gravating circumstance s
. . . .

. . . Memb ers of the Jury, the court has re ad to you the aggravating circumstances which the law requires you to find bey ond a rea sonable doubt that the evidence was established

.

. . . If you unanimous ly d

etermine that at le ast

one statutory ag gravating circumstance or several aggr avating circumstances have been proven by the state, beyond

a re asonable doubt , and said circumstance or19 circum stan ces have been proven by the state to outweigh any mitig ating circumstance or circumstances , beyond a reasona ble doubt , the sentence shall be death. The jury shall reduce to writing the statut o ry aggravating circumstance or statutory aggravating circumstances so found, and signify that the state has proven bey ond
a reasonable d ou bt that the statutory ag gravating circumstance or circumst ances ou tweigh any mitigati ng circ

umstance s. (Empha sis ad ded). Accordingly , there is no doubt that the jury wa s instructed on the correct standards of proof and that its verdict complied with the controlling statutory provisions. See State v. Shaw , 37 S.W.3d 900, 904 (Tenn. 2001) (providing that the jury is presumed to follow the trial court’s instructions).

The trial court’s detailed instructions to the jury and the use of the statutorily- required verdict form distingu ish this case from our decisions in State v. Carter , 988 S.W.2d 145 (Tenn. 1999), and State v. Stephenson , 878 S.W.2d 530 (Te nn. 199 4). In Stephenson , the jury ’s verdi ct was fa cially void because the court gave c onflicting instructions as to the applicable burd en of pro of and the sentencing verdict form omitted the applicable burden of proof. See Stephenson , 878 S.W.2d at 557- 58. In Carter , the ver dict forms also omitted the applicable burden of proof, and thus they were faciall y void, despite the jury having been given proper instructions. See Carter , 988 S.W.2d at 152. In contrast, it is clear that the trial c ourt in this case properly instructed the jury and tha t the jury’s verdict was base d on the ap

plicable law. Accordingly , Davidson is not entitled to relief based on this issue. Mandatory Review Factors

In reviewing the mandatory review factors on appeal, we fir st note that there is no indication that the jury’s imposition o f the d eath sentence was arbitrary

. See Tenn. Code Ann. § 39-13-206(c)(1)(A) (1997). More over, the ev idenc e overw helmi ngly supp orts t he jur y’s findi ngs withrespect to the three agg ravating circumstances. See Tenn. Code A nn. § 39-13 -206(c)(1)(B) (1997). Specifically, Da

vidson had prior convictions for felonies whose elements involved the use of violence to the person, he committed the killing

in the cou

rse of a kidnapping, and h

e knowingly mutilated the victim after the k illing. See Tenn. Code Ann. § 39-13-204(i)(2), (7), (13) (1991 & Supp. 1995). Finally, the e vidence supports the jury ’s de terminat ion that the aggravating circumstances outweigh the mitigating circumstances bey ond a reasonable doubt. See Tenn. Code Ann. § 39-13-206(c)(1)(C) (1997).

In a case w

here a d efenda nt has been sentenced

to death, we must apply a c omparative proporti onality

analy sis pursua

nt to Tenne sse e Cod e Annotated section 39-13-206(c)(1). The purpose of the an aly sis is to ide

ntify aberra nt, arbitr ary , or capricious sentencing by determining whether the death sentence is “disproportionate to the punishment imposed on others convicted of the same crime.” Bland , 958 S .W.2 d at 66 2 (quo ting Pulley v. Harr is , 465 U.S. 37, 42-43 (1984)).20

Our compara tive prop ortionali

ty an al ysi s e mp lo ys the “precedent seeking”method, in which
we compare the case under revie w with other cases involving similar defendants and similarcrimes. See Bland , 958 S.W.2d at 667. Although no two defendant s or crime s are pr ecisely alike, a death sentence is disprop ortionate only if a cas e is “pla

inly lacking in circumst

ances c onsistent with those in cases where the death penalty has been imposed.” Id. at 668.

The releva

nt pool of c ases in ou

r compar ativ e pr oportiona

lity review includes t

hose fir st degree murder cases in which the State seeks the death penalty, a capital sentencing hearing is held, and the sente

ncing jury determines whe ther the sentence should be life imprisonment, life imprisonmentwithout the possibility of parole, or death. See State v. Godsey , 60 S.W.3d 759, 783 (Tenn. 2001). The pool does not inc lude firs tdegree murder case s in which a plea bargain is reac hed wi th re sp ec t t o t he pu ni sh me nt or in wh ic h t he St at e d oe s n ot se ek th e d ea th pe na lt y:

[C]onsideration of cases in which the State, for whatever reasons , did notseek the

death pe nalty would nec essarily

require us to scr

utini ze what is ult imate ly a disc reti onar y p rose cutorial

deci sion. We previo u sly

have declined to review the exercise of prosecutorial discre tio n, and it would be par ticularl y in appropr

iate to do

so in conducting comparative proportionality review, where our function is limited to identifying aber rant death sentence s, n ot identifying potentialcapital cases . . . . Su ch a cou rse coul d potentia

lly disco urage the State both from exercising its discretion to not seek the death penalty and

from engaging in plea

bargaining with a defenda nt charged with first degree murder. I ndeed, such

a course could result in the State seeking the ultima te penal ty in every f irst degree murder
case.
Id. at 784 (citations omitted).

Ac co rd in gl y, our compa

rative proportionality re

view of the applica

ble pool of cases consider s numerous factors regarding the offense: (1) the means of death; (2) the ma nner o f death; (3) t he motiv atio n for the killing; (4) the place of death; (5) the victim’s age, phy sical condition, and psychologic al condition; (6) the absence or presence of pr emeditation; (7) the absence or presence of provocation; (8) the absence or presence of justification; and ( 9) the injury to and effect upon nondeced ent victim s. See Bland , 958 S.W.2d at 667. We also consider numerous factors about the defenda nt: (1) prior criminal record, if any ; (2) age, race, and gender; (3) mental, emotional, and physical condition ; (4) role

in the murder; (5) cooperation with authorities; (6) level of remorse; (7) knowledge of the victim’s helplessness; and (8) potential for r ehabilitation. See id.

The evidenc e in this ca se shows th at Davids on me t Jackson on September 26, 1995, after offering to give her a ride home from Br onco’s Bar in Dickson, Tennessee. Davidson kidnapped and then killed the unarmed, unsuspecting victim. Jackson’s body was later found in a remote location withlacer ations and b lunt trauma to her neck. Her head and lef t hand had been severed from her21

bo dy, and her torso had been sliced from navel to sternum. Ther e was ev idence t hat a stru ggle occurred between Jackson and Dav idson. Jack son’s cloth ing and belon gings we re foun d alon g a roadnear her house and blood matching Jackson’s DNA was foundin Davidson’s truck. There was no evi dence o f prov ocati on or j usti ficat ion fo r the k illi ng.
At the time of his trial, Davidson w as a 52-yea r-old white male who had three felony convictions for prior violent sexual offenses. Davidson did not coopera te with au thoritiesor expres s remorse for the crime. To the contrary , he evaded responsibility by giving law enforcement off icers conflicting statements. Davidson was later found in possession of numer ous weapons and restraining devices . Ite

ms belonging to Da

vidson ma

t ched several items that were found near the vi ct im ’s bo dy.

We hold that th

e death s entence

in this cas e is not excessive or disproportionate when compared to the pen alty

imposed in

similar c ases. For instance, this Co urt has upheld the d

eath penalty in numerous cases involving killings in the course of a kidnapping. See State v. Carruthers , 35 S.W.3d 516 ( Tenn. 200 0); State v. Hines , 919 S.W.2d 5 73 (Tenn . 1995); State v. Bates , 804 S.W.2d 868 (Ten

n. 1991); State v. Alley , 776 S.W.2d 50 6 (Tenn. 1989 ); State v. Thompson , 768 S.W.2d 239 (Ten

n. 1989); Statev. House , 743 S.W.2d 1 41 (Tenn . 1987); State v. King , 718 S.W.2d 241 (Tenn. 1986). The death penalty has also been upheld in similar cases in which a defendant has killed the victim and has either dismembered the victim’s body or disposed of the body in a secluded location. See Terry

v. State , 46 S.W.3d 147 (Tenn. 2 001); S tate v. Teel , 793 S.W.2d 236 (Tenn. 1990); State v. Thompson , 768 S.W.2d 239 (Tenn. 1989).

Si mi la rl y, th is Court has frequently upheld death sentences in cases where one of the aggravating

circumstances was a prior conviction for a felony whose statutory eleme

nts involved the
use of violence to the person. See State v. McKinney , 74 S.W.3d 291 (Tenn. 2002); State v. Stout , 46 S.W.3d 689 ( Tenn. 200 1); State v. Sim s , 45 S. W.3d 1 (Te nn. 2001) ; State v. Chalmers , 28 S.W.3d 913 (Tenn. 200 0); State v. Cribbs , 967 S.W.2d 7 73 (Tenn . 1998); State v. Taylor , 771 S.W.2d 387 (Ten

n. 1989); State v. Harries , 657 S.W.2d 414 (Tenn. 1983). Indeed, a prior violent felony is an aggravating

circumst ance tha t is “more qualitati vely

persuas ive and ob

jectivel y r eliable than others.” Statev. Howell , 868 S.W.2d 2 38, 261 (T enn. 1993 ); see also McKinney , 74 S.W.3d at 313. Many such ca ses have involved defendants whose prior felony convictions were for

sexual offense s. See State v. Vann , 976 S.W.2d 9 3 (Tenn. 1998); Statev. Nichol s , 877 S.W.2d 722 (Tenn. 1 994); S tate v. Cazes , 875 S.W.2d 2 53 (Tenn . 1994). F inally , we have

upheld numerous de ath sentences in which th

e defendant was convicte d of prem e ditat ed murder and the killing was committed in the course of a kidnapping. See State v. Powers , 101 S.W.3d 3 83 (Tenn . 2003); State
v. Carruthers , 35 S.W.3d 516 (Tenn. 2000); Statev. Bates , 804 S.W.2d 8 68 (Tenn . 1991); State v. Alley , 776 S.W.2d 5 06 (Tenn . 1989); State v. Thompson , 768 S.W.2d 239 (Tenn. 1989).

Alth ough we reco gniz e and have considered that there are first degree murder ca ses in the applica ble pool in which the defendant received a sentenc e less than death after a capital sentencing hearin g, our anal

ysi s does not r

equire a determin ation of w

hether a given c aseis subjectively “more
or less” like other “death” cases or other “life ” cases. McKinney , 74 S.W.3d at 313. Instead, our22

review requires that we identify aberrant deat

h sentenc es by d

etermining whet

her a ca se “plainly lacks” circumstances found in similar cases in which the death penalty ha s been imposed. Godsey , 60 S.W.3d at 783. As we hav e explaine d, the fa cts of this offense, the nature of this defendant, and the aggr avating and mitig ating c ircumsta nces in th is case reveal that this case does not plainly lack circumstances consistent with those in the numerous similar cases in which a death sentence has been upheld. Accordin gly , the dea th sentence is not e

xcessi ve or dis proporti onate asapplied t o Davidson.
CONCLUSION

In accordance with Tennessee Code A nnotated section 39-13-206(c)(1 ) and t he principles adopted in prior decisions, we have considered the e ntire record and conclude that the sentence of death has not been imposed arbitrarily , that the evidence supports the jury’s finding of the statutory aggravating

circumstances, that the ev id ence supports the jury ’s finding that the aggra vating circumstances outweigh the mitigat ing circ umstances beyond a reasonable doubt, and that the sentence is not excessive or disproportionate.

We have reviewed all of

the issues raised by Da

vidson and conclude that they do not warrant relief. With resp ect to iss ues that were raised in this Court but not addressed in this opinion, we affirm the Court of Criminal Appeals. Relevant portions of that opinion are incorporated here in and
are attached as an appendix. Davidson’s sentence of dea th is affirmed and shall be carried out on the 3rd day of Ma

rch, 2004, unless otherwise ordered by this Court or proper authority. It appearing that the defendant, Jerry

Ray Davidson, is indigent, c osts of the ap peal are taxed to the State of Tennessee.

______________________________ JANICE M. HOL DER, JUSTI

CE