1 After sente ncing, the t

rial court mer ged each f elony mur der count i nto th e premedit ated murd er co unts for each respective victim, leaving the d efendant with two first-degree m urder co nvictions.

2 The jury found that the defendant had been prev iously co nvicted of first deg ree m urde r, aggra vated assault, and two co unts of a ggrav ated r obb ery.

3 The cour t sentenc ed the defen dan t to twent y-f ive y ears on each

count, with

the t wo senten ces for kidnapping running concurrently, the two sentences f or robbery running concurrently, but the sentences for the kidnappings and the rob berie s runnin g con secutive ly to each other and to the murders, for a t otal eff ecti ve se nten ce of

deat h plu s f

if ty (50) years. 

### IN THE SUPREME COURT OF TENNESS EE AT NASHVILLE June 2004 Se ssion

STATE OF TENNESSEE v. GDONGALAY P. BERRY.

Automa tic Appeal from th e Court o f Crimina l Appeals Criminal Court for Davidson County No. 96-B-866 J. Randall Wyatt, Judge

No. M2001-02023-SC-DDT-DD - Filed August 23, 2004

A jury convicted the de fendant, Gdongalay P. Berr y, o f two cou

nts of premeditated murder, two counts of felony murde r, two count s of especially aggravated kidnapping , and two counts of especia lly aggravated robbe

ry, for the mur

ders, kidnappings and robberies of DeAngelo Lee and Gregory Ewing. 1 Following a capital sent enc ing hearing, the jury found three aggra

vating circumstances in each murder: (1) that the de fendan t was previously convicte d of one or more felonies other than the present charge , the statutory elements of w hich involve the use of

violence to the person; 2 (2) that the murder was committed for the purpose of avoiding , interfering with, or prev enting a lawful arrest or prosecution of the defe ndant or another; and (3) that the murder was knowing ly

committed, solicited, directed, or aided by the defe ndant while the defendant had a substantial role in committing or attemptin

g to commit robbery or kidnapping . Tenn. Code Ann. § 39-13-204(i)(2) , (6), (7) (1996). The jury also found that these aggrava ting circumstances outweighed

the mitigating circumstancesbeyond a re asonable doubt. Accordingly , the jury imposed sentences of death for each of the murder convictions. As to the remaining felony convictions, the trial court sentenced the defendan t as a violent offender, and imposed an effec tive fifty-y

ear sentence, to run con secutive ly to th e d ea th pe na lt y. 3 The def endant a ppealed , challe

nging both his convictions and the sentences of death. After fully consideringthe issues raised by the defenda nt, the Court o f Criminal

Appeals affirme d the conv

ictions an d the sent ences.4 “Pri or to the se tting of or al argu men t, the Co urt shall re vie w the r ecord an d briefs and consider all errors

assi gned. The Court may enter a n ord er de signating those issu es it wishes add ressed at oral a rgum ent.” T enn. S up. C t. R. 12.2 (2003 ).
-2- The ap pe al wa s a ut om at ic al ly docketed in this Court pursuant to Tennessee Code Annotated section 39-13-206 (2003). After considering thebriefs and the record, this Court entered an orde r specifying

five issues for oral argume nt, 4 including whether the indictment was sufficient, whether the failure of the Rules of

Evidenc e to apply

to capita l sentenc ing hea

rings vi olated th e right s to due process and confrontation, whether the evide nce was sufficie nt to suppor

t the ver dict, whether the defendant was deni ed his rig

ht to a spe edy

trial, an d whethe r the dea th sentence was c omparat ively proportionate and valid under the mandatory review of Tennessee Code Annotated sec tion 39-13- 206(c)(1)(A)-(D) (2003). After a careful and exhau stive rev

iew of the record and the le gal aut

hority releva nt to the iss

ues rais ed, we affirm the

defenda nt’s conv ictions an d sentenc es. Automatic Appeal pursuant to Tennessee Code Annotated § 39-13-206(a)(1);

Judgment of the Court of Criminal Appeals Affirmed

W IL LI AM M. B ARKER , J., delivered the opinion of the court, in which F RANK F. D ROWOT A , III, C.J.,
an d E. R IL EY ANDERSON and J ANICE M. H OLDER , JJ., joined. A DOLPHO A. B IRCH , Jr., J., filed a concurring and dissenting opinion.

Thomas F. Bloom

and James A . Simmons, Na shville, T ennesse e, for a ppellant , Gdong alay

P. Be rr y.
Paul G. Summers, Attorney Gene ral and Reporter; Michael E. Moore, Solicitor General; Mark A. Fulks, Assistant Attorney Gene ral; David Hamm and Ka tr in Mi ll er , A ss is ta nt Di st ri ct At to rn eys General, for appellee, State of Tenne ssee.

OPINION
I. Backgro und

A. Guilt P hase

The ninetee

n-year-ol d defend

ant, Gdon

galay Berry , was c onvicte d of the first-degree premeditated

murders, kidnappings, and robberies of ninetee n-year -old DeAngelo Lee a

nd eighteenye ar-old Greg Ewing. The State’s pr oof sh owed that the defendant and a separately tried codefenda nt, Christopher Davis, arranged to purchase weapons for $1200 from L ee and Ewing on the eveningof February

27, 1996. Earlier that evening, the defenda nt and Davis were at Dav is’ s apartment drinking and s moki ng marijuana with Rona ld Bene dict, Anto ine Kirby , and Antonio Cartwrig ht. Cartwright testified at trial that he overheard D avis and the de fendant talking about robbing the two vic

tims and ta

king the ir guns a

nd automob ile. Cart

wright testifie d th at the5 Co-defendant Davis’s case, t ried separately, is current ly before thi s Court as well. W e note tha t t he t rans cri pt in Da vis’s trial reflec ts that Ca rtwright a lso testified in th a t case. C artwrigh t’s testimon y, howe ver, d iffered in th is respe ct: instead of claim ing that d efend ant B erry ma de this sta teme nt, at Da vis’s trial Car twright testi fied t hat i t was Da vis who m ade the statem ent, “If we r ob ’e m, we gotta kill ’em .” W e find this inc onsisten cy insig nif icant, sinc e in eith er case, both Davis and the def endant wer e present

and in appare nt agr eement whenthe s tate ment was made.

6 “Sne ak” w as ap pare ntly the nick nam e for R ona ld B ened ict.
-3- defendant stated, “If we r

ob ’em, we gotta kill ’em . .

. [b]ecause they know us.” 5 Between 7:30 and 8:00 p.m. that evening, after receiving a te lephone c all from L ee, the d efenda nt, Davis, and two other
menidentified as “Kay

” and “Sneak” 6 left the a

partmen t. Both the defendant and Davis were ar med with guns – Davis with a 9 mm handg un, the de fendant

with a .45 caliber

handgu n. Davis a

lso carried a black bag containing handcuffs, r ope, and duct tape. Approximately thirty minutes later, Kay and Snea k returned to the a

partmen t. Thirty to forty-five minutes af

ter that, the defendant and Davis also returned. They were driving L ee’s Cad illa c and we re car ry ing at le ast six assa

ult weapons , some pagers, and clothing, including Le e’s distinctive green and y ellow tennis shoes, and Ewing’s jacket. Davis was wearing a gold cross necklace that belonged to Lee. The def

endant to ld Cartwright

that “Chris [Davis] couldn’tkill Greg [Ewing], so I had to,” and announced that he had shotEwing mu

ltiple time s in the he ad. Afte r placin g the as sault wea

pons under Da vis’s bed, the defendant and Davi s left the

apartme nt in L ee’s Cad

ill ac and another vehicle. They drove to a sparsel y wooded residential area off a dea d-end street, set fire to the interior of the Cadillac, a nd abandoned it. The

men then went to a Nashville mot el where they spent the night.

The next morning, Ewing’s and Le e’s bodies were found lyin g on a hi ll at a

construction site insouth Nashville near Interstate 440. Both victims were only pa rtially clot

hed . A rope on the ground led up the hill to the body of one of the victims. Ewing had been shot three times in the head, twice in the shoulder, once in the neck, and once in the abdomen. Le e had been shot threetimes in the head and once in the hand. Ballistics testing showed that the we apons use d to kill the victims were 9mm

and .45 c aliber handgun s. By coincide nce, at a pproximate ly

9:00 a.m. on the same

morning the victims’ bodies were found, three detectives from the Metropolitan PoliceDepartment went to Da

vis’s apa rtment to investig ate an unrelated crime. W hile ques tioning t wo men pr

esent at the apar tment, Rona

ld Be nedic tand Antonio Cartwright, the detectives noticed the automatic rifle s under the bed in Davis’s bedroom. At about th

is time, the

defenda nt, Davis, Dimitrice Martin (Davis’s girlfriend), and B rad Benedict (Ronald Benedict’s brother), unexpectedly rushed throug h the front door. Davis was talking on a cell phone and had a .45 caliber handgun in his waistband. The defenda nt was carry

ing
a fully loaded automatic r

ifle. Startled to see police present, thedefenda nt, Davis, and Brad Benedict turned and fled out the front door. The detectives pursued them and caught Davis. Benedict and the defendant escape d, alt hough the defe ndant dro pped the r ifle he had been carry

ing. This rifle turned out t o be on e of th e weapo ns st olen f rom Lee an d Ewin g. A subsequent search

of Davis’s apartment y

ielded a 9mm pistol underneath the cushion of the couch where Rona ld Bene dict had b een sittin g. For ensic te sting la

ter rev ealed that the 9mm7 Miranda v. Arizona , 384 U.S. 436 , 444 (1966 ).

8 Police investigation, however, eliminated Loyal as a suspe ct. Loyal testified as a stat e’s wi tness at t rial concerning events th at occ urred at Davis’s apartment l ater on the night of February 27, 1996. T his included the defen dan t and D avis arr iving at the apar tment in a white C adillac and a sking him to he lp t hem unl oad a cache of guns from the car , then dr iving aro und w ith them in the Cadill ac until t hey dropped him off in Bordeaux. D uring the drive, Davis comment ed th at a lthough he was suppos ed to buy the gun s, he had t aken t hem i nst ead.
-4- caliber bullets recovered

fromthe victims’ bodies were fired from this gun. The .45 ca liber gun used inthe crime

was never f

ound. Among the items police found in Davis’s bedroom were a pa ir of handcuffs with a key, a pa ger, a cell phone, a Crown Roy al bag containing $1400 in cash, a black backpack, a large quantity of ammunition, Lee ’s gre en and y ellow ten nis shoes, Ewing’s jacket, two .45 caliber pistols, two SKS rifles, and one Universal .30 caliber M-1 car bine. At the time of the search, however, officers were una ware that the items were connected to the murders of Ewing and Lee.

Davis and his girlfriend, Dimi trice Marti n, were taken to th e poli ce stat ion fo r ques tion ing. Before his interv

iew, Dav is remove d Lee ’s gold c

ross necklace a

nd told Martin to put it in her

purse. He also instructed Martin to call Ronald Benedict’s girlfrie nd at the apartme

nt and tel l her to dis

pose of Le e’s gr

een and ye llow tenni s shoes.

As a result of the questioning of Davis and Martin, police discover ed the connection between Davis, the defendant, and the murders of L ee and Ewing. The police took L ee’s necklace from Martin. One of the dete cti ves returned to Davis’s apartment to retrieve L ee’s tennis shoes and Ewing’s jacket. While he found Ewing’s jacke t on Davis’s bed, the tennis shoes were gone.

After the defe ndant wa s eventua

lly a rrested on March 6, 1996, he

waived h is Miranda 7 rights and gave a statemen t to police inwhich he admitted t

hat he ha d been wi th Davis w

hen the vi ctims
were robbed and killed. He disavowed any ac tive role in the crimes and claimed that he had not knownDavis intended to kill the victims. Accordingto the defendant, Davis and a third man, Christopher

Loy al, had abducted Ewing and Lee after E

wing attempted to rob Davis. The defendant claimed that the victims were a

lready handcuf fed and r estraine d when he

joined Da

vis and L oya

l in the Cadill ac. The

group then drove

to the con struction

site. Dav

is made the

victims remove t

heir cloth ing, and the defendant claimed he thought it would stop at that. As he wat ched, however, Davis and Loy al repeatedly

shot the two men. 8

The jury returne d a verdict at the conclusion of the guil t phase a nd found the defen

dant gu ilty of two counts of premeditated murder, two counts of felony murder, two counts of es pecially ag gr av at ed ki dn ap pi ng , a nd tw o c ou nt s o f e sp ec ia ll y ag gr av at ed ro bb er y.
B. Penalt

y Phase Duringthe penalty phase of trial, the State presented v ictim impact evidence through the testimony of the mothers of the two victims. Both mothers testified that they we re close to their sons-5-

and that they missed

their companionship. Ewing’ s mother, Brenda Sanders, testifie d that she did notknow until the trial that her son had be en shot se

ven times, or that he had screamed for his life prior to his de ath. She testified that it gave her a certain sense of closure to hear that evidence. There was no objection during the prese ntation of this victim impact evidence.
Next, the State presented certified copies of the defendant’s 1994 conviction for agg ravated assault, his two 1998 convictions for aggravated r obbery, and his 1999conviction for first-degree murder. The State

also relied upon the proof presented during the g uilt phase of

the trial to support im po si ti on of

th e d ea th pe na lt y.
Throu gh the testimony of a mitigation expert and se veral members of

hi s f am il y, the defendant presented extensive information about his background. He wa s born prematurely on September

5, 1976, to Frieda Berry

and Fred B lack. His

parents never ma rried, a nd throug hout his life he ha d o nl y sp or ad ic co nt ac t w it h h is fa th er , w ho se rv ed a t en -ye ar pr is on se nt en ce fo r r ob be ry. When the defendant

was a ye ar old, his mother married Laur ice Thomas, with whom she had two
sons. The def

endant’ s immediat

e family also inclu

ded another, olde

r half-brother, the child

of the defendant’s mother and

a third man. The Thomas’s marriage wa s described as hostile and volatile. Both Thomas and the defendant’s mother had mental health problems. The defendant’s mother was repeat edly institutionalized for mental illness and variously diag nosed with schizophrenia, depression

with psych os is, and bipolar disorder. In 1982, while his wife a nd the children were present in the home, Laurice Thomas committed suicide by shooting himself in the bathroom. As
a result, the defen

dant’s mo ther had a m ental breakdown, and the defendant and his half -brothers eventua lly went to live with their maternal grandmother and step-g randfather. At his grandmother’s home, the defendant was part of a larg e family consisting of his siblings and

aunts and uncles, who grew up with him like brothers and sisters. The defendant’s grandmother and step-gra ndfather were described as hardworking people, who provided a good home for the de fendant. A fter the defendant’s mother remarried, the def endant’s mother and

grandmother engag ed in litigationover the children’s custody. The defendant’s mother’s second husband also committed suicide by jump ing off

a brid ge and d rowni ng.
The defendant had to repeat the four than d e ig ht h g ra de s. He wa s d es cr ib ed as a g oo d b oy, who did his chores and loved children. Heparticipated in school sports and excel led at wrest ling. At fourtee n, the def endant was sent to

an alter native sc hool for f ightin g on the scho ol bus and at school. His family

testified that when he returned to high school the following year, he was singled outand strip

searched. At the

age of eighte en, while

in the tenth grade, the defendant dropped out of school and left his grandmother’s home. Accor ding to the defendant’s family, the defendant’s change in behavi or occur

red bec ause of t

he bad inf luence o f other te enage

rs. For a short time, the defendant lived with

his older half-brother, but he was asked to move out beca use of visits fromhis friends , who sold d

rugs.
The defendant has one child, a son born on May 2, 1996. When he learned that his girlfriend was expecting a child, the defendant tried to commit suicide by overdosing on medication.9 The defendant declin ed to sign a f

ormal acknowledgment of hi s r ig ht to te st if y a nd wa iv erof

su ch ri gh t. He
con firmed in ope n cou rt, howe ver, that this w as his de cision, m ade after his atto rney ad vised him o f this right.

10 The transcr ipt missp ells Dr. Bernet’ s name as “ Burnett. ” We have conf irmed the c orr ect

spe ll in g of

th e na me and choos e to u se i t i n th is opini on despi te t he error i n th e recor d.

-6- The defendant chose not to testify , and confirme d this decision

during a jury-out hea

ring he ld pursuant to State v. Momon , 18 S.W.3d 152, 162 (Tenn. 1999). 9

Dr. William Be

rnet, 10 a fore nsic p syc

hiatrist, intervie

wed the d efenda nt and eva

luated hi s mental status. Dr. Bernet noted tha t the def endant ha d three r isk facto rs in his ba

ckgro und. The f

irst
was a s tr on g h is to ry o f mental i llness on both the maternal and paternal sides of his family . The second wa s a fa mi ly h is to ry of c riminal behavior. The third was the defendant’s disturbed and disorganized

family life, based

on his havi

ng a y oung, un married mother, h

is stepfa thers’ su icides, frequent moves, a large, complicated household, the custody dispute between hi s mo ther and grandmother, and the like. Dr. Bernet indicated that the def endant exhibited som e paran oid tendenc ies, had exper

ienced a uditory hallucinations, and was depressed. Dr. Bernet also opined that the defendant had been intoxicated on the day of these crimes, and that all of the above factors had interfered with his judgment in participating in t he offen ses. Dr. Bernet noted that since the defendant’s incarceration, he had been involved in four violent

incidents; one, an attack on a fellow inmate, hurt the victim so badly that he wa s treated in the intensive care ward.

Inrebuttal, the State called Dr. Thomas Schacht, a cl inical and f orensic psycholog

ist. Dr. Schacht had interviewed and tested the defendant. Dr

. Schacht opined that prior tests administered to the defendant by

another psyc

hologist and relied upon by Dr. Bernet were problematic a nd potentia lly invalid. For example, the defendant had exhibited “high inconsisten cy” on a test to determine if he was malingering. Also, the defe ndant had been permitted to take t he Minnesota Multi-Phas ic Personality I nv entory in his prison cell and had not completed a ll the answers; the defendant refused to complete the answersfor Dr. Schacht. Another test, the Structure I nterview of Reported Symptoms, indicated that thedefenda nt was not r

eporting his mental

sym ptoms acc urately and that t here wa s a fif

ty to eigh ty-one per cent ch ance th at he w as fei gning m ental illne ss. Ne verthel e ss, Dr. Scha

cht conc eded tha

t testing indicate d that the

defenda nt had some

paranoi d traits and perhaps even suffered from a paranoid personality

disorder. Dr. Schacht described the specifics of the four prior vio lent episo des in pri son, which include d, in addition tothe above-described assault on th e othe r pris oner, his b reakin g t he sprink ler system in his c ell and f looding h is unit, creating a disturbance, and threatening and spitting on staff members. Dr. Schacht opined that there
was no indication that the defenda nt was a fo llower. He also testified that there was no proven geneti c relation ship to criminal behavior, although a family history of mental illness is a risk factor

. InDr. Schacht’s opinion, there was no conne ction bet ween the defenda nt’s backgroun

d and the f

acts of this case.

At the conclusion of the penalty phase, the jury f

ound the existence of three aggr av atin g circumst ances: (1) that t

he defe ndant wa s previou sly

convicted of one or

more felonies other than the present charge, the statutory elements of which involve the use of violence to the person; (2) that-7-

the murder was committed for the purpo se of avo iding, in terfer ing with, or preve

nting a l awful ar

rest
or prosecu tion of the

defenda nt o r another; and (3) that the murder was knowingly committed, solicited, directed, or aided by the defendant while the defendant had a substantial role in committing
or attempting to commit robbery or kidnapping . Tenn. Code Ann. § 39-13-204(i)(2), (6), (7) (1996)

. The jury also foun d that the se aggravating

circumstances outweighed the mitigating circumstances beyond a re asonable doubt and imposed sentences of death for ea ch of the murder convictions.
II. Analysis

A. Failur e to char ge aggra vating cir cumsta nces in the indictm ent
The defendant asserts that the indictment in this cas e is constituti onally defect ive beca use it fails to charge the agg

ravating circumstances relied on by the S tate to senten ce him to death. He argues that such a c onclusion is warra nted by the Unite d States Supreme Cour t’s holding s in Apprendi v. New Jersey , 530 U.S. 466 (2000), and Ring v. Arizona , 536 U.S. 584 (2002). Al te rn at iv el y, the de fendan t argues that s uch a fi ndin g i s required by the due process and notice requirements of the federal and state c onstitutions and Tennessee statutory law.

We have ad

dressed this sa me issue on several occasions, most recently in State v. Odom , 2004 WL 1124968, ___ S.W.3d ___, ___ (Tenn. 2004). See also State v. Holton , 126 S.W.3d 845, 862-63 (Tenn. 2 004); State v. Carter , 114 S.W.3d 895, 910 n.4 (Tenn. 2003); and State v. Dellinger , 79 S.W.3d 458, 466 (Tenn. 2002). We have consistently re jected the argument that agg ravating ci rc um st an ce s m us t b e p le d i n t he in di ct me nt , a nd co nt in ue to do so to da y.

In Apprendi , the Unite d States Supreme Cour t held tha t “[o]ther than the fa

ct of a prior conviction, any fac

t that increases the penalty for a crime bey

ond the prescribed statutory maximum must be submitted

to a jury, and prove d beyond a re asonable doubt.” 530 U.S. at 490. Of particular interest is the Apprendi Court’s limitation of its discussion to the due process guarantees of the right to trial by jury

and the right to have every element o f the off

ense proved bey

ond a rea sonable d

oubt. The Court expressly noted that no constitutional claim related to the adequacy of the indictment was made, and that the Fourteenth Amendment had not previ ously been construed t

o apply the Fift h Amendment right to “presentment or indictment of a Grand Jury ” to the states. Id. at 477 n.3.

Follo wing Apprendi , this Court decided Dellinger . In Dellinger , the defendant questioned whether Apprendi ’s holding required that aggravating c ircumstances be charged in the indic

tment. We held tha

t Apprendi ’s requirements did not apply to Te nnessee’s capital sentencing proc edures because

1. Th e Ap prendi holding specifically excluded from its requirements the prior convictionaggr

avating circumst ance, a nd this was

the only circumst ance at issue in Dellinger’s case;11 See footno te 14 , infra , as to t he questioned validit

y of thi s particular

statement af

ter Ring , 536 U.S. 584.

12 Inst ead of stating that the Apprendi princip les did not “ap ply,” p erhap s it would have b een m ore a ccura te to state that Apprendi did no t “affect” o ur pro ced ure. The basi c cons ti tut ional prin cipl es of

right t o trial by j ury and right to proof of el ement s of

an of fen se bey ond a re asonable doubt clearly app ly ; they simp ly were n ot affecte d by Apprendi because in Tenness ee, our pr ocedure alr eady provi ded that aggravat ing ci rcumstances must b e sub mitted to and found by a ju ry beyo nd a r easo nab le do ubt. See Tenn. Cod e Ann. § 39-13-204 (1997).
-8- 2. The Apprendi holding a pplied onl

y to enhanc ement fa

ctors u sed to i mpose a sentence above the statutory maximum, and under the Tennessee statutory scheme, the deat h penalty was within

the statut ory range of punishment; 11

3. The Apprendi court was con cerned about a defen dant r eceivi ng a sentence bey ond what was expected based

on the cha

rged o ffense

and the r ange o f punishme

nt, while Tennessee R

ule of Cri minal Procedure 12.3, which requires notice to a defe ndant wh en the death penalty

is sought, satisfied the requirements of notice and due process ;
4. The Ap prendi holding applied to judge sentencing and unde r the Tennessee capital sentencing scheme, juries, not judges, made the factual findings rega

rding the existence of aggravating

circumstances; and

5. The Apprendi holding required application of “bey ond a reasona

ble doubt” stan dard for finding

enhancement factors, and under the Te nnessee capital sentencing scheme, the jury

was alre ady

require d to make i

ts f ind ings of aggrava

ting circumstances “bey

ond a reasonable doubt.”

Based on the distinctions between our capital sentencing scheme a nd the New Jersey se

ntencing scheme at issue in Apprendi , we concluded that the pri nciples of App rendi did not app ly to Tennessee capital c ases, an d did not require that

the State charge in the indictment the agg ravating circumstan ces relied upon to support the imposition of a death sentence. Dellinger , 79 S.W.3d at 466-67. 12
Following our decision in Dellinger , the United States Supreme Court was called on to review Arizona’s capital sentencing scheme in Ring v. Arizona . Under the Arizona scheme, altho ugh gu il t o r i nn oc en ce of ca pi ta l m ur de r w as de te rm in ed by a ju ry, the question of presence or
a bsence of aggravating

factors required by

Arizona law for imposition of the death pen alty wa s determined

by a trial judg e sitting alone. Relying on Apprendi ’s holding that the Sixth Amendment required a jury determination of a

ny f acts tha t would expo se a defendant to a penalty exceeding the maximum, the Court found Arizona’s scheme unconstitutional. Ring , 536 U.S. at 609. The Court expressly held that “Arizona’s enumerated agg ravating factors operate as ‘the functional equivalent13 In discus sing the i mplicat ions of the Apprendi decisio n to death pena lty cases, the Ring majorit y reje cted Arizo na’s argum ent that the death pena lty was “within the rang e of p unishm ent auth orize d by th e jur y verdict. ” The Courtst ated:
This argum ent overloo ks Apprendi ’s ins tructi on that “the relevant i nquiry is one not of f orm, bu t of effect.” In ef

fect , “ the requi red f

indi ng [of

an agg ravat ed ci rcums tanc e] ex pose[d] [Rin g] t o a great er punishment than tha t autho rized by the ju ry’s guilty verd ict.” T he A rizon a first-deg ree m urde r statute “auth orizes a maximum penalty of death only in a formal sense,” f

or it expli citly

cross-refer ences the statut ory provision requiring t he finding of an aggravating ci rcumstance before imposition of t he death pen alty.
Ring , 536 U .S. at 604 (citat ions omitted). In light of this language, our st atement in Dellin ger that “[t]he d eath p enalty is wi thi n the s tatutory r ange of puni shment .

. . for f irst degree murder, ” 79 S.W.3d at 466, is not ent irel y accura te.

14 The defenda nt argues, and we acknowl edge, t hat in rel ati on t o th e Fede ralDeat h Pen alt y Ac t, 18 U.S. C.A. §§ 3591(a)(2), 3592(c) , seve ral l ower feder al court s hav e hel d tha t at lea st one agg ravating cir cumst ance mu st be pled in the indic tment. See United Sta tes v. Robi nson , 367 F.3d 27 8, 284 (5th Cir. 2004) (but holding error harm less); United States v. All en , 357 F. 3d 745, 748 ( 8th Ci r. 2004) (en b anc); United States v. Higgs , 353 F.3d 281, 29 8 (4th Cir. 2003); United Sta tes v. Haynes , 269 F. Supp. 2d 9 70, 979 (W .D. Tenn. 2003 ).
-9- of an element of a greater

offense,’ [and] the Sixth Amendm ent requires th at th ey b e f ou nd by a jury.” Id. (quot ing Apprendi , 530 U.S. at 494 n.19). 13
Again, however, the Supreme Court de clined to extend the

Fifth Ame

ndment rig

ht to presentment

or gra nd jury indictmen

t, and note d that Ring ’s claim did n ot address the constituti onality

of the indic tment. The Court reiterated its statement in Apprendi that the “Fourte enth

Amendmen

t has not . . . been c onstrued to include

the Fift h Amendme

nt right to ‘presentment

or indictment of a Grand Jury.’ ” Ring , 536 U.S. at 597 n.4 (q uoti ng Apprendi , 530 U.S. at 477 n.3).

The law in this area is still developing. See Blakely v. Washington , 2004 WL 1402697, 542 U.S. ___, ___ (2004) (“the ‘statutory maximum’ for Apprendi purposes is the maximum sentence
a judge may

impose solely on the basis of the facts re flected

inthe jury verdict or admitted by the defendant”). The holdings in Ring and Blakely do not change our analy

sis in Dellinger

regarding whether aggravating c ircumstances must be pled in the indictment. The focus in Apprendi , Ring , and Blakely

was on the Sixth Amendment right to trial by jury . In b oth Apprendi and Ring , the Courtexpressly declined to impose the Fifth Ame ndment right to pre se ntment or grand jury indictmentupon the Sta

tes. Ring , 536 U.S. a

t 597 n.4; Apprendi , 530 U.S. at 477 n.3. We are unwilling to do what

the U.S. Sup

reme Cour

t would not. 14 Furthermore, we note that the major

ity of states addressing this question have like wise dec li ned to require the inclusion of aggr avating circumstances in the indictment. See Banks v. State , 842 So. 2d 788, 793 (Fla. 2003); Terrell v. State , 572 S.E.2d 595, 602 ( G a. 2002), cert. denied ___ U.S. __

_, 124 S.Ct. 8 8 (2003); People v. Davis , 793 N.E.2d 552, 568 -70 (Ill. 2002), cert. denied 537 U.S. 89 6 (2002); Soto v. Commonwea

lth , 2004 WL 867447,
___ S.W.3d ___, _

__ (Ky . 2004); Baker

v. State , 790 A.2d 629, 650 (Md. 2002), cert. denied 535 U.S. 105 0 (2002); Steve ns v. State , 867 So. 2d 2 19, 227 (M iss. 2003); State v. Gilbert , 103 S.W.3d 7 43, 747 (M o. 2003); Floyd v . S tate , 42 P.3d 249, 256 (Nev.15 “That no person shall be put to answer any cri minal charge but by p resen tment, ind ictmen t or imp each men t.”
-10- 2002), cert. denied

537 U.S. 11 96 (2003) ; State v. Hunt , 58 2 S.E.2d 593, 605 (N.C. 2003), cert. de nied ___ U.S. ___, 124 S.C t. 44 (2003 ); Primeaux v. State , 88 P.3d 893 , 899-900 (Okla. Cr

im. App. 2004); State v. Oatney , 66 P.3d 475, 485-87 (Or. 2003), cert. denied ___ U.S. __

_, 124 S.Ct. 1148 (2004). Bu t see State v. Fortin , 843 A.2d 974, 1027-38 (N.J. 2004) (requiring inclusion on state constitutional grounds, for prospective application only ). Recognizingthe limitations of the Apprendi / Ring holdings, the def endant argues that our
ownconstitutional provision for indictment, Tennessee Constitutionart icl e I, section 14 15 mandates that aggravating c ircumstances be charged in the indictment. We disag ree.
The overrid

ing purp ose of an

indictmen

t is to infor

m the acc used of “ th e nature a

nd cause of the acc usation.” U.S. Const. ame

nd. VI ; Tenn. Cons t. art. I, § 9. I n addition, Tennessee Code Annotate d section

40-13-20 2 requir

es that a n indictme

nt:

statethe facts constituting the offense in ordinary and concise language , w i thout prolix ity or re petition, in such a manner as to enable a person of common understandingto know what is intended, and with that degr ee of ce rtainty which wil l enable the court, on conviction, to pronounce the proper judg ment.

Anindictment that ac h ieves its “overriding purpose of notice to the acc used will be considered sufficient to satisfy both constitutional and statutory requirements.” State v. Hammonds , 30 S.W.3d 294, 300 (Te nn. 200 0). This Court has held that an indictment is sufficient to satisfy notice require ments if it “contains allegations that (1) ena ble the a ccused t o know the accusation to which
answer is required; (2) furnish the trial court an adequate basis for e ntry of a proper judgment; and (3) protect the accused from a subsequent prosecution for the same offense.” Id. at 299 (citi ng State
v. Hill , 954 S.W.2d 725, 727 (Tenn. 1997)). We have previously held that an indictment which references the statute defining the offense is sufficient and satisfies the constitutional and statutory require ments of Hill

. See Stat e v. Sl edge , 15 S.W.3d 93, 95 (Te nn . 2000) (holding an indictment alleging that the defendant “did unlawfully kill [the victim] duringthe perpetration of Aggravated Ro bb er y, in violation of Tenn . Code Ann . 39-13-2 02” suff icient be cause it

containe d a speci fic reference to the statute which was “sufficient to place the acc used on notice of the charged offe nse”); State v. Carter , 988 S.W.2d 145, 148 (Tenn. 1999) (holding that refer ence to t he appro priate st atute
was su ff ic ie nt in fe lo ny m urd er indictments alleging that the defenda nt did “unlawfully kill [the victims] du ri ng th e p er pe tr at io n o f A ggr av at ed Ro bb er y, in violation of Tenn. Code Ann. 39-13-202”); Ruff v. Sta

te , 978 S.W.2d 95, 100 (Tenn. 1998) (holding that “an indictment which cites the pertinent statute and uses its language will be sufficient to support a conviction”). Despite the language in Appr end i and Ring referring to agg ravating circumstances as “the functional equivalent of

an element of a greater

offense,” Ring , 536 U.S. at 609; Apprendi , 530 U.S. at 494 n.19, for purposes of pleading, we view a ggravating cir

cumstances as more similar to sentencingenhancements. In Te nnessee, the elements

of the of fense of first-de gree m

urder a re: (1)-11-

a killing of another

with (2) premedi

tation and (3) inte

nt; or (1) a killing of another (2) in the perpetration

of cert ain enumera ted offe nses; or (1) a ki llin g of ano ther ( 2) by the u nlawf ul th rowin g, placingor discharging of a destruc tive device or

bomb. Tenn. Code Ann. § 39-13-202 (1996). Proof of these essential elements, without any proof of an aggravating ci rcumstan ce , will support a convicti on of fir st-deg

ree mur der. I t is only when the state see ks to impose an enhanced sentence of life witho

ut parole or death that the a ggra vating c ircumsta

nces come into pl ay. Tenn. Code Ann. § 39-13-204(i) (1996).

Ac co rd in gl y, the primary c oncern for a defendant cha rged with first-degree

murder is notice that he or she is facing an enhanc ed sentence of lifewithout parole or death. Such notice is provided for in both the Code and in the Tennessee Rules of Criminal Procedure. Tenn. Code Ann. § 39-13- 208 (1996), Tenn. R. Crim. P. 12.3 (1984). Rule 12.3 of the Rules of Criminal Procedure mandates writtennotice, given at least thirty days prior to trial, of

the state ’s intenti on to seek the death pe nalty and of the aggravating

circumstances the State intends to rely upon for such enhanced sentence. Section39-13-208 provides for the same in cases where the State is seeking an enhanced sentenc e of life without parole.

We have previously he ld, and we continue to find, that the p rovis ions of Rule 12.3 satisfy the constituti onal req

uiremen ts of notice. See State v. Odom , 2004 WL 1124968 n.13, ___ S.W.3d at ___ n.13; State v. Dellinger , 79 S.W.3d at 467; State v. B ush , 942 S.W.2d 489, 520 (Tenn. 1997); State v. Johns on , 762 S.W.2d 110, 117 (Tenn. 1988). The defendant argues that the de cision whether to seek the death p enalty

and requ irement o f notice

provided by R ule 12.3 is tainted b ecause the State, whichultimately has the discretion whethe r to se ek th e d ea th pe na lt y, i s a n i nt er es te d p ar ty. Allowing a disinterested grand jur y to allege the appli cable a

ggra vating c ircumsta

nces, he urges, would b e preferable. However, we have held previously that “‘[p]rosecutorial discretion used i n selectingcandidates for

the death penalty

does not result in any constitutional deprivation.’” State
v

. McKi nney , 74 S .W.3 d 291, 320 (T enn. 2 002) ( quot ing State v. Cazes , 875 S.W.2d 253, 268 (Tenn. 1994)); State v. Brimmer , 876 S.W.2d 7 5, 86-87 ( Tenn. 199 4)). So long as adequate notice and opportunity for hear

ing is provided for by

our statutory

scheme, aggrava

ting circumstances need not be inc luded in the indictme nt. B. Application of the Rules of Evidence

The defend ant argu es th at the relaxed standard of proof during the sente ncing phase of capital procee dings violates the guarantees of reliability and trustworthiness required by the due process and confrontation

clauses of the federal constitution. U.S. Const. amend. V, VI . His compl aint goe s to that par t of Tenne ssee Code

Annotate d section

39-13-20 4(c) (1 996) that provides :

Inthe sente

ncing proceed

in g, evidence may be pre sented as to any ma tter that the court deems relevant to the punishment and may include, but not be limited to, the nature and circumstances of the cr im e; th e d ef en da nt 's ch ar ac te r, ba ck gr ou nd hi st or y, and physical condition; any

evidence tending to establish or rebut the agg ravating circumstances enumerated in subsection (i); and any evidenc e tending to establish or16 The d efend ant relies h eavily o n the ca se of Un ited Sta tes v. Fe ll , 217 F. Supp. 2d 469, 487 ( D.Vt. 20 02) ,

which held that capit al sentenci ng hearings conducted purs uant to the fede ral deat h penal ty sent enci ng st atut e, 18 U.S. C.A. § 3731 , must be conducted in accordance with the Federal Rules of Evidence. We note that t his h olding wa s
recen tly reversed by the Second Circ uit in Un ited Sta tes v. Fe ll , 360 F.3d 13 5, 141 (2d C ir. 2004) (holding that the statute admitting evidence r elat ed to mit igat ing or ag gravat ing f actors “regar dless of it s admiss ibil ity ” under t he federa l evidence rules, do not offe nd D ue P roce ss or C onfro ntation c lauses) ; see also United Sta tes v. Matthews , 246 F. Supp. 2d 137 , 142 (N.D .N.Y. 2002 )(same).
-12- rebut any mitigating

factors. Any

such ev idence which the court deems to have probative value on t

he issue o f punishme

nt may be rece ived regardless

of its admissibil ity

under the rules of evidence; provided, that the defendant is accorded a fair opportuni

ty to rebut an y he arsay statemen

ts s o admitted . Howeve r, this subsectionshall not be construed to authorize the introduction of any evidence
secu red in violation of the constitution of the United States or the constitution of Tennessee.

The defendant urges this Court to invalida

te this provision and hold that the Tennessee Rules of Evidence are to be applied stri ctly to th e introduction of evidence in support of agg ravating circumst ances du ring ca pital sent encing hearing s. 16

Under the statut e, any evidenc e relev ant to the circumstances of the murder, the aggravating circumstances relied u

pon by the State , or the mit

igating circumstances is admissible if such evidence has probative value in the determination of punishment. See State v. Teague , 897 S.W.2d 248, 250 (Tenn. 1995). As we noted in State v. Carter , 114 S.W.3d 895, 903 (Tenn. 2003), however,

the statute does not require . . . that the rules of evidence be completely disregarded. The trial court retains its traditional role in controlling the introduction of evidence, and it may continue to use th e rules of evidence to guide its decisions reg arding admissibil ity

of e vidence in capital sentencing proceeding s. See State v. Sim s , 45 S.W.3d 1, 14 (Tenn. 2001).

In Sims we stated:
[I]n general, § 39-13-204(c) should be inter preted to allow trial judges wider discretionthan woul d normally be allowed under the Tennessee Rulesof Evidence inruling on the admi ssibility of evidence at a capital sentencing hearing . The Rules of Evidenc e should

not be applied to preclude introduction of otherwise r eliable evidence that is re levant to the issue of punishment, as it r elates to mitigating or aggravating

circumstances, the nature and circumstanc es of the particular crime, or the character and backg

roun d of the individual defendant. As our case history reveal s, however, the discretion allowed j udges a nd attorney s during

sentenc ing in firs tdegre e murder

cases is not unfet

tered. O ur consti tutional st

andards r equir e inquiry into the re liability

, releva nce, va lue, and p

rejudic ia l effect of sentencing evidence to preserve fundamental fairness and pr otec t the rights of both the defendant-13-

an d the victim's family. The rules of evidence can in some instances be helpfu l guides in reaching the se deter mi nations of admissi

bility . Trial ju

dges a re not, howe ver, requir ed to adhere strictly to the rules of evidence. These rules are too restr icti ve and unwie ldy in th e arena o f capit al sen tenci ng.
45 S.W.3d at 14.

We conclu

de that th e eviden

tiary standar ds set for th in Tennessee Code Annotated section 39-13-204(c) enable t

he trial c ourts to exclude a ny e vidence that is re pugnan t to the constitutional guarantees of due process, or that would violate a defendant’s r ight to conf

ron tation or c

rossexamination. Accordingly , those standards do not violate the due process or confrontation clauses of the Fi fth and Sixth

Amendmen

t. C. Sufficiency of the Evidence

The defendant challenges the suffic iency of the convicting evidence, arg uing that under the facts presented, heis guilty of, at the most, facilitation of the victims’ kidnappings, robberies, and murders

. He attacks the credibility of the State’s “star witness,” Antonio Cartwright as “object ively and patently unbelieva

ble.” We disagree. Tennessee Rule of Appellate Procedure 13( e) ( 19 80) orda ins that “[f

]indings o f guilt in criminal actions whether by the trial court or jury sha ll be set aside

if the evidence i s insuffic ient to support the findings by

the trier of fact of guilt bey ond a reasonable doubt.” Upon conviction, the burden of demonstrating why

the evidence is insufficient to support the v erdict falls upon the convicted criminal defenda nt, because a verdict

of guilt destroys the

presumption of innocence and imposes a presumption of guilt. See State v. Evans , 108 S.W.3d 231, 237 (Tenn. 2003); State v. Carruthers , 35 S.W.3d 516 , 557-58 ( Tenn. 200 0); State v. Tu ggle , 639 S.W.2d 913, 914 (Te nn. 1982). The standard for appellate review w hen a criminal defendant challeng es the sufficiency of the evidenc e is “whe

ther, af ter view ing the e vidence inthe light

most favorable to the prosecution, any rational trier of fact could have found the e ssential elements of the crime be yon d a reas onable doubt.” Jackson v. V

irginia , 443 U.S. 3 07, 319 (1 979); see also Tenn. R. A pp. P. 1 3(e); State v. Reid , 91 S.W.3d 24 7, 276 (Te nn. 2002) ; State v. H all , 8 S.W.3d 593, 599 (Tenn. 1999).

“On appeal, the State is entitled to the strongest legitimate view of the evidence and to all
reasona ble and legitimate inferences that may be drawn therefrom.” State v. Smith , 24 S.W.3d 274, 279 (Tenn. 2 000); see also Carruthers , 35 S.W.3d at 55 8; Hall , 8 S.W.3d at 599. A guilty verdict by the trier of fact accre dits the te stimony

of the Sta

te’s witnesses an

d resolve s all conf

licts in the evidence in favor of

the prosecution’s theory

. See State v. Bland , 958 S.W.2d 651, 659 (Tenn. 1997). Questions about

the credibility of witnesses, the weight and value of the evidence, a s well as all factua l issues ra

ised by the evide

nce are resolve d by

the trier of fact , and this Co

urt will not re-wei gh or r e-evaluate the evidence. See Evans , 108 S.W.3d a t 236; Bland , 958 S.W.2d at 65 9

. Nor will this Court substitute its own inferences drawn from circumstantial evidence for those dr awn by the trier of f

act. See Evans , 108 S.W.3d a t 236-37; Carruthers , 35 S.W.3d at 557.-14-

The defendant argues that if he is g uilty of any

thing, it is of facilitation

of these crimes. For purposes of the f

ollowin g discussion, we refer to the criminal responsibility statute and the facilitation statute. The criminal responsibility statute provide s in pertinent part that
[a] pe r son is criminally responsible for a n offense committed by the conduct of another if (1) Acting with the culpability r equired for

the offense, the person causes or aids an innocent or irres ponsible p erson to e

ngag e in conduct prohibited by

the definition of the offense; (2) Acting with intent to promot e or assist t he commiss ion of the

offense , or to benefit in the pro ceeds or

resultsof the offense, the person solicits, directs, aids, or attempts to aid another person to commit the offense; or (3) Having a duty

imposed by law or voluntarily

undertaken to prevent

commission of the offe nse and a cting with intent to benef it in the proceeds or results of the offense, or to promote or assist its commission, the person f ails to mak

e a rea sonable effort to prevent commission of the offense.

Tenn. Code An n. § 39-11 -402 (199 7). A person found criminal ly r

esponsibl e for an

offense committed

by another is guilty to the sa me degree as the principal off ender. State v. Richmond , 90 S.W.3d 648, 6 55 (Tenn . 2002); State v. Phillips , 76 S.W.3d 1, 9 (Tenn. Crim. App. 2001). To compare, the facilitation statute provides that
[a] person is criminally responsible f or the facilitation of a

felon y if, knowing tha

t another intends to commit a specific felony , but without the intent r equired for criminal responsibility under § 39-11-403(2) , the pers on knowingly fur nishes
su bs ta nt ia l a ss is ta nc e i n t he co mm is si on of th e f el on y.
Tenn. Code Ann. § 39-11-403(a) (1997). A person found g uilty of facilitation of an off

ense is subject to punishment for an offense one class next below that of the felony facilitated. A defendant’s presence, knowledge of, a nd participation in the crimes charged, cle arly ra i ses a questi on of fact for the jury

as to defendant's participation as a principa l or a facilitator. See Richmond , 90 S.W.3d at 654-55 ; Flippen v . State , 365 S.W.2d 895, 898-99 (Tenn. 1963). With these definitions inmind, we proceed to analy ze the sufficiency

of the e vidence

of the de fendant ’s partic ipation in each of the convi cted off

enses. 1. First-degree Pr emeditated Murder-15-

At the time of these killings, premeditated first degre e murder was defi ned as “a premeditated and intentional killing of anot her.” Tenn. Code Ann. § 39-13-202(a)(1) ( 1995). “Premeditation” was defined as

anact done after the exercise of reflection and judgment. “Premeditation” means that the intent to kill must have beenformed prior to the act itself. It is not necessary that the purpose to kill pre-exist in the mind of the accused for any defin ite period of time. The mental sta

te of the ac cused at

the time the accus ed alleg edly decided to kill must be carefully

considered in order to determine whether the a ccused was sufficiently fre e from excitement and passion as to be capable of premeditation.

Tenn. Code Ann. § 39-13-202(d) (1995). A conviction for first-deg ree murder required proof that the killing o f anothe

r was inte nded. I ntentiona l conduct refers to a person

acting intentiona

lly with respect to a result of the conduct, when it is the person’s conscious objective or desire to cause the death of the victim. Tenn. Code Ann. § 39-11-106(a)(18) (1995).

The existence of

premeditation

is a question of fact for the jury

. State v. Suttles , 30 S.W.3d 252, 261 (Tenn. 2000). Because preme ditation involves the defendant’s state of mind, concerning whichthere is o ften no di rect evidence, Tenness ee case s h ave lo ng recognized that premeditation may be inferred from the circumstances sur rounding the killing. Holton , 126 S.W.3d at 85 9; State
v. Davidson , 121 S.W.3d 600, 6 14-15 (T enn. 2003 ); Bland , 958 S.W.2d at 66 0. We have previous ly identified a number of circumstances from which the jury may infer pr

emeditation: (1) the use of a deadly weapon u

pon an una

rmed vic tim; (2) the particular cruelty of the killing; (3) the defendant’s threats or declara

tion s of intent to kill; (4) the defendant’s procurement of a wea pon; (5) any preparations to conce al the cr ime under

taken be fore the

crime is c ommitted; ( 6) dest ruction o r concealing

of evidence of the killing; and (7) a defend ant’s calmn ess im media tely after the ki llin g. See Davidson , 121 S.W.3d a t 615; State v. Pike , 978 S.W.2d 904, 914- 15 (Tenn . 1998); Bland , 958 S.W.2d at 660. This list, how e ver, is not exhaustive and serves only to de monstrate that premeditation

may be established by

any evidenc e from which the jury ma y infer that the killing was done “after

the exercise of reflection and judgmen t.” Tenn . Code Ann . § 39-13- 202(d) ( 1995); see Pike , 978 S.W.2d a

t 914-15; Bland , 958 S.W.2d a t 660 . One learned treatise states that premedi tation may

be infer red from events that occur before and at the

time of the

killing:

Three cat egories of evidence ar e important for [the] purpose [of inferring prem edita

tion]: (1) facts abou

t how an d what the defendant did prior to the actual kil ling which show he was e ngag ed in act

ivity directe d toward

the killing , that is , planning activity ; (2) fac

ts about the defen

dant’s pr ior rela tionship a nd conduct with the victim from which motive may be inferred; and (3) facts about the nature of the killing from whic

h it may be infer

red that the manner of killing was so particular and
e xacting that the defendant must have intentionally killed accor ding to a preconceived design.
2 Wayne R. LaFave, Substantive Criminal Law § 14.7(a) (2d ed. 2003).-16-

After reviewing the evidence

inthe record in the light most favorable to the prosecution, we conclude that the jury’s verdict of guilt of premeditated murder is supported by the evidenc e beyond
a reasona ble doubt. The jury

was in the

best positi on to judg e the cr edibility of the witnesses and to decide wh ether th e defen dant act ed with the

culpabil ity necessa

ry to hold him c

riminally responsi ble for the kidnapp ing, rob bery and murde

r of the victims.

The proof established

th at the def

endant and Davis planned to meet the victims for the purpose o f purcha sing ass ault wea pons. At some point, they decided to rob the victims instead of paying for the guns. The defendant was ove rheard participat ing in th is di scu ss io n an d st ati ng, “If
we rob ’em, we gott

a kill ’em

. . . [b]ecaus e they know us.” T he defendant and Davis carried handcuf fs, rope and duct tape to their me eting withthe victim s. The victims were found in a

remote locationin a stat e of partial undress. Rope left at the scene indicated that the victims had bee n bound. Both victims were shot multipl e times with two different weapons. When the defendant and Davis returned to Davis’s apartment, t he y had numerous assault weapons and L ee’s car. The defendant claimed to a friend that he had killed Ewing because Davis had been unable to do so. The defenda nt and Da vis burne d and aba

ndoned Lee’s ca

r in a remote location, then spen t the nig ht in a motel away

from their usual abode. When confronted by police the next day

, both Davis and the defendant fled. Fo llowing t

he defe ndant’s a rrest, he admitted to being at the scene. I

n light of this evidence, we conclude that a reasonable juror c ould have f ound the def

endant g uilty of the fir st degreepremeditated murders of Ewing and Lee based upon either his own conduct or under a theory of criminal responsibility for the c onduct of his co-defendant, or both. We agre e with both courts belowth at th e e vi de nc e d oe s n ot su pp or t a fi nd in g t ha t t he de fe nd an t w as gu il ty m erely of facilitation.

Insofar as the credibility of Antonio Cartwr ight is concerned, that was strictly a question for the jury. The jury

chose to accredit Cartwright’s testimony over the statement of the defendant, as was its prerogative.

2. First-degree Fe

lony Murder and Especially Aggravated Robbery

At the time th

is offense was committed, felony murde r was defined as “a killing of another committed

in the perpetration of or attempt to perpetrate any first degree murder, arson, r ape, ro bb er y, burglary , theft, kidnapping, aggra vated child abuse, or aircraft piracy.” Tenn. Code Ann. § 39-13-202(a)(2) (1995). No culpable menta l state was required for conviction of felony murder “except the intent to commit the enumerated offenses . . . .” Tenn. Code Ann. § 39-13-202( b) (1995). Robbery was de fined as “the intentional or kno wing theft of property from the person of another by v iolence or putting the pers on in

fear.” Tenn. Code Ann. § 39-13-401(a) (1995). In order for a person to be convicted of “especially aggravated robbe

ry,” the state

was required to prove that the robbery was accomplished with a deadly we apon and

the victim must have suffered serious bodily injury . Tenn. Code Ann. § 39-13-403(a) (1995).

The evidenc e in this case showed that the defendant and his cohort openly discussed robbing and murderingthe victim s in the hou rs befor e acting on their intentions. The defendants were seen-17-

later i n po ssession o f the victims’ car, jewelr y, c lothing, and wea

pons. Bot

h victims w ere shot

to death with firearms. Based on

this evidence, the convictions for especially aggravated

robbery a nd felony murder a re amply supporte d by

the evide nce bey ond a reasonable d

oubt.
3. Especially Aggra

vated Ki dnapping

At the time of these off

enses, kidn apping was defined as false imprisonment, i.e., the knowing removal or confi nement of another unlawfu lly s o as to inte

rfere substantia

lly with another person’s liberty, under c ircumstances exposing the other person to a substantial risk of bo di ly i nj ur y. Tenn. Code Ann. §§ 39-13-30 2(a), - 303(a)( 1) (1991) . A kidnap ping wa s “espec ially

aggravated” under section 39-13-305 if acc ompl ished with a deadly we apon or if the victim suffered serious bodily injury . Tenn. Code Ann. § 39-13-305(a)(1), (4) (1991)

. The evidence showed that the defendant and Da vis left Davis’s apartment carry ing a bag that contained handcuf fs, rope and duct t

ape. The

re is evid

ence, in clu ding the de fendant’s own statemen t, that the victim s wer e bound and transported to the construction site where their bodies were eventually

found. Rope found at the murder scene was furthe r evidence that the victims had been bound. While the evidence is unclear as to which defendant was actually responsible for binding the victims, what is clear is that the defendant play ed an acti ve rol e in pl annin g, prep aring, and executing the kidnapping, robbery and murder of the victims. The evidence is certainl y sufficient to support a finding of guilt bey ond a reasonable doubt of especially aggravated kidnappin

g under at least a t he or y of

cr im in al re sp on si bi li ty. D. Speedy Trial The defendant allegesthat the two-yea r delay be tween his indictment in May 1996 and the State’s filing o f notice

of intent t o seek the death pe nalty in November 1998, and the four-y ear delay between his indictment and hi s trial in May 2000, violated his rig ht to a speedy trial unde

r the Sixth Amendment

to the United States Constitution. Specifically, heasserts that the delay caused him to endure a long pre-trial incarcer ation, that he suffered anxiety

and concern over thepending charg es, that he was hampered in his prep aration of a death defense, and that the delay enabled the State’s “star witness,” Antonio Ca

rtwrig ht, to “cr aft” his t estimony to “make it most favorable to [himself] and most damaging to Defendant.”

The record

reflects the def

endant di d not file a

motion in

the trial court requesting a speedy trial, did not move to dismiss the indictment for failure to provide a speedy trial, and did not assert the denial of

a speedy trial as a reason f or relie f in his moti on for ne w trial. D espitehis procedural failure s, the defendant asserts that thedelay constituted “plain e rror” that shoul d be reme died by this Court. He does not specify the r emedy he se eks for such error. Presumably, he seeks reversal of the convictions and dismissal of the indictments. See State v. Bishop , 493 S.W.2d 81, 83 (Tenn. 1973).

Both the Unite d States a

nd Tenne ssee Cons t itut ions guarantee the criminal defenda nt the right to aspeedy

trial. U. S. Const. amend VI ; Tenn. Con st. art. I , § 9; State v. Utley , 956 S.W.2d 489,-18-

492 (Tenn. 1997). The right to a speedy trial is also statutory in Tennessee

. See Tenn. Code Ann. § 40-14-101 (2003). In addition, the Tenne ssee Rules of Cr iminal Procedure provide for the dismissal of an indictment, presentment, information or criminal complaint “[i]f there is unnecessary delay in presenting the charge to a grand jury

against a defendant who has bee nheld to answer

to the trial court, or if there is unnecessary delay in bring ing a de fendant

to trial . . . .” Tenn . R. Crim. P. 48(b). These guarantees wer e designed “to protect the acc used a gainst oppressive pre-trial incarceration, the anxiety and conce rn due to unresolved criminal charges, a nd the risk that evidence will be lost or memories diminished.” Utley , 956 S .W.2 d at 49 2 (cit ing Doggett v. United States , 505 U.S. 647, 654 (1992)). “The right to a speedy trial attaches at the time of arres t or indictment, whichever

comes first, and continues until the date of the trial.” State v. Vickers , 985 S.W.2d 1, 5 (Tenn. Crim. App. 1997).

Indetermin

in g w hether a defendant’s right to a spe edy trial has be en compromised, four factors must be weighed: the length of the delay , the reason for the delay, the de fendant’s assertion of his right to a speedy

trial, and any pr

ejudice to the defendant caused by the delay. Barker v. Wingo , 407 U.S. 51 4, 530 (19 72); State v. Simmons , 54 S.W.3d 755, 759 (Ten n. 2001); Utley , 956 S.W.2d at 492; Bishop , 493 at 83-84. The most import ant quest ion, altho ugh not d etermina tive in every case, is whether the delay caused any

prejudice to the defendant. Simmons , 54 S.W.3d at 760; State v. Carico , 968 S.W.2d 2 80, 285 (T enn. 1998 ). “[P]reju dice [is] the

single most

important factor inthe bala

ncing te st,” and t

he most importa

nt issue c oncerning prejudice to the defenda nt is the impairment

of the ability to prepar

e a defense. State v. Baker , 614 S.W.2d 352, 356 (Tenn. 1981). However, it is not necessary for a court to consider

these factors unless there has been “some delay whichis presumptively

prejudicial.” Barker , 407 U.S. a t 530; see also Dogg ett , 505 U.S. at 651-52 n.1. “[S]uch a de lay

must appr

oach one ye ar to trigger” an ana

lysis of the remaining factors, Utley , 956 S.W.2d at 49 4; see also Vickers , 985 S.W.2d at 5, although “the line of demarcation depends on the nature of the case,” Utley , 956 S.W.2d at 494.

The Court of Cr

iminal App eals note d that the failure to raise t h is issue in the trial cou

rt, either through motion

for spee dy t

rial, moti on to dismiss , or in the M otion for New Tria l could re sult inwaiver of the issue. Te nn. R. App. P. 3(e). T

he court address ed the iss

ue neve rtheless because of the heightened review acc orded death penalty c ases. After apply ing the four-part

balanci ng test of Barker v . Win go , however, the court concluded that while the leng th of the delay in this case was presumpt ively prejudici al, mean

ingful r eview wa s impossible

because with out an evidentiary hearin g inthe trial

court, neither the reason for the delay nor prejudice could be accurately ascertained. We agree.
The four-ye ar delay in b ringin g t his case

to trial tr

igge rs the fo ur-par t Barker v . Win go analy sis. Howeve

r, the le ngth of t he delay alone wil l not support a fi nding of a speedy trial violation. See State v. Wood , 924 S.W.2d 342, 349 (Tenn. 1996) (thirteen (13) y ear delay did not result in denial of the right to a speedy trial). The court must consider the other three factors – reason for the delay, the de fendant’s assertion of the right, and actual p rejudice suffered – to make a determination whether the right to a speedy trial was unconstitutionally breac hed. Id. at 346.-19-

The defendant arguesthat the len gth of the delay shifts the burden to the State to prove a valid reason fo r t he de la y, and the State’s failure to affirmatively explain its failure to proceed to a speedy resolution of the case proves fatal. In this case, the defe ndant’s own failure to raise the issue is the cause for the absence of a ny evidentiary

proceedings in the trial court. We find that this failure pr ecludes a finding

that the r eason for delay

should be held aga

inst the Sta

te. To hold

otherwis e would be to ig no re th e f

in al tw o f

ac to rs ma nd at ed fo r c on si de ra ti on by Barker v . Win go : the defendant’s assertion of the right and prejudice. The defenda nt’s failure to assert his right to a speedy trial is e vid ence of his wai ver of such right. Furthermore, his a llegations of prejudice are unsupported

by the rec ord. The bare allegation that the delay affected his ability

to prepa re a def ense is unsupported by any

specific examples. Furthermore, the contention that the delay allowed Antonio Cartwright to fabricate his testimony is also made without any ref e rence to proof in the record. And fina

lly, any allega tion as to the anxiety

and stre ss suffe

red from his incarceration during this delay is minimized by evidence that he was also incarcerated awaiting trial for two other crimes unrelated to the cr imes involv ed here . Certain ly, if there was any

additional stress and anxiety, at least some of it wou ld be attr ibuta ble to his incarc erat

ion for the

unre late d off

ense s. To s

ummar ize
our position, we hold thatwhile the length of the delay is presumptively prejudicial, the de fendant’s failure to assert his right to a speedy trial and the lack of prejudice support a finding of no error. E. Mandatory Review Factors

Tennessee Code Annotated section 39-13-206(c)(1) requi res that courts revi ewing a sentence of death for firs t degre e murder

determine whethe

r: (A) the sentence of death was imposed in any arbitrary fashion; (B) the evidence supportsthe jury' s finding of statutory aggr avating circumst ance or circumst ances; (C) the evide nce supports the jury' s finding that the aggrava ting circumstance or circumstances outweigh any mitigating circumstances; and (D) the se ntence of death is excessive

or dispro portiona te to the p enalty

imposed in similar cases, considering both the na

ture of the crime a

nd the def

endant.
First, we find that the sentencing hearing in this case proceeded according to the established statutory and regulatory

procedures outlined in the Code and in t he Rules of Criminal Procedure. Tenn. Code Ann. § 39-13-204; Tenn. R. Crim. P. 12.3, 32. Moreover, a thorough review of the record reveal s that the e

vidence is suffic ient to sup

port t he jury’s finding

of the aggravating circumstances beyond a re a son able doubt. The evidence indisputably supports aggravating circumstance (i)(2), that the defenda nt w as previously convicte d of one or more felonies that involve d the use of violence to the person. Tenn. Code Ann. § 39-13-204(i)(2) (19 96). Th e defendant does no t d ispute that at the time of this trial, he had valid convictions of first-degree murder, two agg

ravate d robber

ies, and a ggra vated as sault. Circumstance (i)(6), that the murder was committed

for the p urpose of avoiding prosecu tion, is supported by the def endant’s own state

ments prior to the murders that if they r obbed the victims, they would have to kill them because the victim s knewwho they wer

e. Tenn. Code Ann. § 39 -1 3- 20 4( i) (6 ) ( 19 96 ). Fi na ll y, circumstance (i)(7), that the murder was committ

ed during the commis sion of a f

elony , is supported by the evide nce that the-20-

victims were kidnapped and robbed before they were

killed. Tenn. Code Ann. § 39-13-204(i)(7) (1996).

We further

con clude that the evidence was sufficient to support the jury ’s finding that the aggravating

circumstances outweigh the mitigating c ircumstances bey ond a r easonab le d oub t. In determiningwhether the evidence supports the jury ’s finding, the proper standard is whether, after
re viewing the ev idence in the light most favorable to the State, a rational trier of fact could have found that the aggravating

circumstances outweighed the mitigating circum stanc es beyond a
reasona ble doubt. See State v. Carter , 114 S.W.3d 8 95, 908 (T enn. 2003 ); State v. Henderson , 24 S.W.3d 307, 313 (Tenn. 2000); State v. Bland , 958 S.W.2d 6 51, 661 (T enn. 1997 ). The e vidence is sufficient to support

the jury ’s decis ion that th e three a ggravating cir cumstances outweighed the various mitigating circumstances presented by the defenda nt bey ond a rea sonable d

oubt. Give

n his multiple prior convictions for violent crimes against the person, as we ll as the advance, coldblooded planning to eliminate the victims as witnesses after the robbery , a rational juror could have found tha t the aggravating c ircumstances outweighed the mitigating c ircumstances bey ond a
reasona ble doubt.

Fi na ll y, we are obligated by Tennessee Code Annotated section 3 9-13-20 6(c)(1 )(D) to conduct a review of this case to determine whether the sentence of death is disproportionate to the penalty imposed in

similar cases. This “comparative proportionality review” is designed to identify aberra nt, arbitrary

or capricious sentencing by determin ing whe ther the death pe nalty in a give n case is “disproportionate to the punishment imposed on others convicted of the same crime.” Bland , 958 S.W. 2d at 662. It involves a comparison of this case to c ases involving similar defendant s an d similar crimes. Id. at 668. On

ly th ose case s in

which a capital sentencing hearing wa s conducted
are used for comparison. State v. Godsey , 60 S.W.3d 759, 783 (Tenn. 2001). C omparativ e proporti onality

review begins “with thepresumption that the sente nce of de ath is pro

portiona l with the crime of first degree murde r.” Carter , 114 S.W.3d at 908.

Inmaking t

his compa rison, we consider numerous fa ctors re gardin g the pa rticular defenda nt, inclu ding: “(1) prior

criminal record; (2) age, r ace and gender; (3) me

ntal, emotional and physical condition; (4) [the level of involveme

nt or] role inthe murder; (5) cooperation with authorities; (6) [the] level of remorse; (7) knowledge of the victim’s hel plessnes s ; and (8) potential for rehabilitation.” State v. Stout , 46 S.W.3d 689, 706 (Tenn. 2001), cert. denied 534 U.S. 998 (citing Bland , 958 S.W.2d a

t 667). Other factors rele vant for consider ation ar e: (1) the aggr avating and mitigating circumstances, (2) the means, m anner and place of death, (3) the motivation for the kill ing, (4) the victim’s age, physical condition and psychological condition, (5) the ab se nce or presence of provocation, (6) the absence or pre sence of premeditation, (7) the absence or presence of justification, and (8) the injury to and e ffect on non-decedent victims. Id. Th ere is no mathematical formula

or scientific means for making the comparison, a nd no two case s are exa

ctly alike. Terry

v. State , 46 S.W.3d 147, 164 (Tenn. 2001) . Our fun ction is no t to identif y pe rfectly identical cases, b

ut “to ide ntify and to inva

lidate the aberra nt death sentence.” Id. (quoting Bland , 958 S.W.2d at 665).-21-

Inthis case, the followingfacts are pertinent: the defendant and D avis set up a meeting with the victims planning to kidnap, rob and murder them. The defendant expressed an intent to kill the victims in order to avoid being identified. Armed with guns and equipped

with handcuffs, rope and duct tape, the defendant and his cohort kidnapped and re strained the victims. They then transported th e victims to a remote site where they forced the victims to disrobe and then repeatedly shot the victims. The defendant fled the scene in Lee’s car, taking the victim s’ rifles, clothing, jewelry and shoes. When confronted by police the following day

in an unrelated matter, the defendant fled a nd managed to evade capture for almosta week. When apprehended, the defe ndant did not cooperate, but gav e a self

-servin g state ment in whi ch he bla

med the c o-defe

ndant for the murde

rs.
The defendant, an

African-American male, was nineteen years old at the time he committed these offenses. He was a high sc hool dropoutwith

no visible means of support. Although single, he had fathered a son who was born afte r his arres t. He had four prior convictions for violent felonies at the time of his convictionfor these offenses. The victims, ages eighteen and ninete en at the time of their deaths, were n e ighborhood acquaintances of the def endant. The killings were perpetrated

during robberies and kidnap pings of the victims, and the defendant committed the murders to keep the victims from identifying him as the perpetrator of a robbery he planned t o commit. Th e defen

dant neve r express ed remorse for hi s crimes.

Inmitigation, p roof wa s p resented of the defendant’s somewhat disorg anized family life. Neith er of his parents raised him due to mental health and substance abuse pr oblems. The defendant’s father was incarcerate d for a robbery co nviction for

ten years of the defendant’s childhood. The defendant was raised in his gra ndmother’s home with s everal siblings , aunts, and uncles.

Based upon an exhaustive review of the record and Supreme Court Rule 12reports from trial judges in trials for first degree murder, we conclude that the death sentence is not dispr

oportiona te to the penalty imposed in similar cases. F or purposes of comparison, we considered the following
cases as similar to this case. State v. Powers , 101 S.W.3d 383 (Tenn. 2003) (defendant kidnapped the victim and drove her to an abandoned housewh er e, af

te r r ob bi ng he r o f h er mo ne y an d j ew el ry, he shot her

in the head; death sentence based upon the (i)(2) , (6) & (7) agg ravating circumstances); State v. Stout , 46 S. W. 3d 6 89 (Tenn. 2001) (defendant kidnapped the victim and took her to a n isolated area where he and co- defendants robbed her and shot her in the hea

d; death sentence based upon(i)(2), (6) & ( 7) agg ravatin g circ umstance s); State v. Chalmers , 28 S.W.3d 913 (Tenn. 2000) (defendant

shot the victim in the head and back during a robbery ; death sentence based on the (i)(2) aggravating

circumst ance); State v. H owell , 868 S.W.2d 2 38 (Tenn . 1993) (d efenda nt s h ot a convenience store clerk in the head and took money from the store; death sentence based upon the (i)(2) & (7) a

ggra vating c ircumsta

nces); State v. Bates , 804 S. W.2d 868 (Tenn. 1991) (defendant escaped from jail, kidnapped the victim, took her to a wooded area where he bound a nd gagged he

r before shooting her in the head and stealing her car and traveler’s chec

ks; death sentence based upon the (i)(2 ), (6) & (7) aggra vatin g circumstance s); State v. King , 718 S.W.2d 241 (Tenn. 1986) (defendant

kidnappe d the vict

imand drove her to a remote location where he shot her in the head, taking her car and money ; death sentence based on the(i)(2), (6) & (7) agg ravating circumstances);-22-

State v. Zagorski , 701 S.W.2d 808 (Tenn. 1985) (defendant robbed and killed two drug de alers during a fake drug deal he ha d arranged in an isolated are a; death sentence based on the (i)(5) & (7) aggravating

circumst ances) ; State v. Matson , 666 S.W.2d 41 ( T enn. 1984) (defendant shot and killed convenience st or e clerk during robbery ; death sentence based on the (i)(2) ag gravating circumstance); State v. Harries , 657 S.W.2d 414 (Tenn. 1983) (defendant shot and killed convenience store clerk d uring r obber y; death s enten ce base d on t he (i) (2) agg ra vating circumstance); State v. Coleman , 619 S.W.2d 112 (Tenn. 1981) (defendant shot and killed the victim who was going

to th e grocery

store; death sentence based on the (i)(2) & (7) aggravating circumstances). We also note that the jury in co-de fendant Christopher Davis’s case imposed the death penalt

y for his role in these mur ders. State v. Ch

ristophe r Davis , 2004 WL 1523277, ___ S.W.3d ___ (Te nn. 2004) (death sentence based on the (i)(2) , (6) & (7) agg ravating circumstances)(unpublished opinion).

The defendants in each of the above-c ited ca ses mur dered victims during the course of a
ro bb er y. In each ca se, the defendant’s criminal history refle cted at least one prior felony involving violence against the person. While no two capital cases are identical, we have c ompared the circumstances of the present case and the present defe ndant with the circumstances of the casesset outabove, a

nd those in

dividual d

efenda nts, and c onclude t

hat this ca se is not pla

inly lacking in circumstances consistent with othe r similar ca ses in which the death penalty has been imposed. Thus, the defendant’s sentences of death ar e not dispr

oportiona te considering the circumstances of the crime and the de fendant

. III. Conclusion

After considering the entire record in this case and all the defendant’s assignments of err or, we conclude that

none has merit. Furthermore, we find that the sentences of death were not imposed inany arbitra

ry fashion, that the sentences of death are not excessive or disproportionate, and that the evidence supports the jury ’s finding that the aggravating c ircumstances outweigh the mitigating circumstances bey

ond a rea sonable d

oubt. With re spect toissues not speci fically address ed within this opinion, we affirmthe deci sion of the Court of Cr

iminal App eals, au

thored by Judge Da

vid Hayes and joine d by

Judges Jer

ry L. Smith and John Eve

rett Willia

ms. Releva

nt porti ons of that opinion are published hereafter as an a ppendix. The defendant’s conv ictions and sentences are affirmed. Th e s en te nc es of de at h s ha ll be ca rr ie d o ut as pr ov id ed by l aw on th e f ir st da y of Fe br ua ry, 2005, unless otherwise ordered by this Court or other proper authority

.
It appearing that the defendant is indige nt, costs of t his appea

l a re taxed to the State of Tennessee.

_________________________________ WIL LI AM M. BARK

ER, JUSTI CE