### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Novem ber 19, 200 2 Session
STATE O F TENNESSEE v. CHRIST OPHER A. DA VIS
Appeal from the Criminal Court for Davidson County No. 96-B-866 J. Randall Wyatt, Judge

No. M2001-01866-CCA-R3-DD - F iled March 25, 2003

The Appellant, Christopher A. Davis, was found guilty by a jury

of two counts of f

irst degree murder, two counts of especially aggravated robb ery, and two counts of especially aggravated kidn appin g. The jury

sentenc ed the Ap

pellant to death foreach of the first degree murder convicti ons. The Appellant presents the following issues in this appeal as of right: (1) The trial court erred by n ot gran

ting the Appellan t’s motion t

o disquali fy

the David son Co un ty D istrict Attorney General’s office from prosecuting the case; (2) the trial court erred by not granting the

Appellant’s motion to prohibit the State from relying upon the Appellant’s prior murder conviction as a n aggravating

circumstance, beca

us e the conviction was for a crime committed while the Appellant
was a juvenile; (3) the trial court erred by not suppressing the s tate ment the A ppellant made to police; (4) the tr

ial cour t erred by d eny ing def ense counsel’s motion to be allowed to withdraw from representing the Appellant; (5) the trial court er red by granting the Sta

te’s mo tio n to require the Appellant to supply the State information conce rning mental health expert testimony to be prese nted during the sentencing phase of the trial; (6) the trial court erred by allowing a phy sician who did not perform the autop sy t

o testify concer ning the autopsy and evide nce obta ined in co nnection

th erewit h; (7) the trial court erred

in allowing victim impact evidence to be introduced; (8) that the evidence presented at trial was insufficient to support a finding of guilt bey ond a reasonable doubt; (9) that the evidence presented was insufficient to support the jury ’s finding that the aggra va ti ng circumstances outweig

hed any mitigating circ

umstance s bey ond a rea sonable d oubt; ( 10 ) that the evidence presented was insufficient to support a finding that the aggravating

factors were established beyond a reaso nable dou

bt; (11) th at Tenne ssee’s d eath pen alty

statutory scheme is unconstitutional in severa l instance s; (12) tha

t the tria l court e rred in a llowing c ertain c

ross-exa mination of

defense witnesse s; and (13) that

the cumulative effect of errors made at trial denied the Appellant a fair trial in violation o f his due p

rocess r ights. B ased on our revie w of the r ecord on appeal, we affi

rm both the Appellant’s convictions and the sentences imposed. Tenn. Code Ann. § 39-13-206 Death Penalty Appeal; Judgment of the Criminal Court Affirmed

D AV ID H. W ELLES , J., delivered the opinion of the court, in wh ich J OE G. R ILEY and A LAN E. G LENN , JJ., joined.-2-

Herschell D. Kog er, Pulas ki, Tenne ssee, fo r the App ellant, Ch

ristophe r A. Davi s. Paul G. Summers, Attorney Gene ral and Reporter; Gill R. Gel dreich, Assistant Attorney Genera l; Victor S. Johnson, District Attorney General; and Tom Thurman a n d Katrin Miller, Assist ant District Attorneys Gene

ral, for the appellee, State of Tennessee

.

OPINION

The Appellan

t, Christopher A. Da

vis, was found guilty

by a jury of two counts of first degree premeditated

murder, two counts of

first degree felony

murder, two counts of especially aggravated
ro bb er y, and two c ounts of e specially aggravat ed kid nappi ng, following the deaths of D’Angelo L ee and Gregory Ewi ng. The felony murde r convictions weremerged into the premeditated first deg ree murder convicti ons. The j ury

found th ree aggra vating circumstances: (1) The defe ndant was previous ly

convicted of one (1) or more felonies, other tha n the p resent ch arge, whose statutory elementsinvolve the use of violence to the person, Tenn. Code Ann. § 39-13-204(i)( 2); (2) The murder was committed for the purpose of avoiding, interfer ing with, or prevent

in g a law ful arre st or prosecution of the defendant or another, Tenn. Code Ann. § 39-13-204(i)(6); and (3) The murde r was kn ow in gl y co mm it te d, so li ci te d, di re ct ed , o r a id ed by the defendant, while the defendant had a substantial role in committing or attempting to commit, or was fleeing after having a substantial rolein committing or attempting to commit, any f irst degree murd er, arson, rape, r obbery , theft, kidn appin g, ai rc ra ft pi ra cy, or unlawful throwing, placing or discharg ing of a destructive device or bomb, Tenn. Code Ann. § 39-13-204(i)(7). Finding that the a ggravating cir

cumstances outweighed the mitigating circumstances bey ond a reasonable doubt, the jury sentenced the Appellan

t to death
on both convictions of

first degree murder. Additionally , Appellant was sentenced to two concurrent twenty-five

year se ntences for the especially aggravated robbe

ry convi ctions and two concurrent twenty -five y

ear sen tences f or the es pecially

aggr avated k idnapping convicti ons.
FACTS

On February

28, 1996, at

approximately seven o’cloc k a.m., the bodies of D’Angelo L ee and Gregory Ewin g were disco vered by Johnson Sullivan, the supervisor of a c onstruction site in the Berry Hill area of Na shville. He state d that at a pproximate

ly s ix o’clock

in the morn

ing, he first noticed that something was awry a t the construction site. Initially , Mr. Sullivan thought someone had dumped trash in a remote area of the construction site, but he subsequently discovered tha t the trash he thought he had earlier seen was in fact two bodies. Mr. Sullivan’s employer contacted the Nashville Metropolitan Police Department. The area was immediately secured, and thepolice began their investigation. Detective Pat Postiglione went

to the cr ime scene to assist Detective Mike Roland, the lead investigator, on the double homicide. Later that

morning, detectives Pat Postiglione, Bill Pridemore, and Al Gray were investigating a tip t hey

received from Crimestoppers that individuals named “Chris” and “Don- Don” living at 2716-B Herman S treet in N ashville may have inf ormation r

elated to the murder of a cab1 There is conflicting testimo ny as to w hether the assa ult rifle was b eing ca rried b y M r. Be rry or M r. Be ned ict.
-3- driver near the Tennessee State University (“TSU”) campus. The detectives arrived at the apartment between10:00 and 11:00 a.m. Upon their arrival, they found Ronald Benedict, the lessee of the apartment and Antonio Cartwright, a fourteen-y ear-old. As the de

tectiveswere qu estioning them, Detective Pridemore noticed a rifle underneath a bed in an adja cent bedroom. The detectives then began to discussthe possibility of a search w ith Ronald Benedict. During this discussion, Dimitrius Martin, G’don ga la y B erry, B rad Benedict and the Appellant, Christopher Davis, ente red the apartment unannounced. Mr. Davis was talking on a cell phone at the time, and one of the other men
was carry ing an a ssault rif

le 1 . Th e detec tives ann ounced w ho they were a nd drew t heir wea pons. Davis, Berry , and Brad Benedict immediately turned andfled fro m the apar tment. Ms. M artin remained.

The assault rifle was dropped outsidethe apartment during the chase. Detective Postiglione secured the weapon as the other detectives pursued the three men on foot. Detective Gray testified that he noticed that Davi s was wea ring hou se-shoe s and beg an to cha se him. Da vis ran ou t of his house-shoes during the chase. Detective Gray saw Davis reach in his waistband several times. At
one point, he saw Davis reach in his waistband, pull out a gun, and discard it in some bushes. After Detective Postiglione secured the assault rifl e, he began to assist Detective Gray in the chase of Davis. Davis entered an

alley during

the chase, and the detectives were a ble to apprehend him at that time. Davis wa s c a

ught approximately one block f rom the apartment. Detective Postiglione testified at trial that Davis told him his feet were hurting from running bare-foot in the g ravel, which is why they were able to apprehend

him. On cross-examination, Detective Postiglione admitted that he had notwritten this fact down in his report, but he remaine d st eadfas t that Davis made the statemen t. Neither Berry

nor Brad Benedict were

apprehended that day

. After his apprehension, Davis was placed under arrest. The de tectives then recovered from the bushes the .45 caliber automatic handgun that Davis had discarded. Davis was taken back to the Herman Street apartment and placed in a marke d patrol car. Detective Pridemore reque sted that Davis consent to a

search of his bedroom, the room where Detective Pridemore had previously seen what he believed to be an assault rifle under the bed. Davis de nied that he lived i n the apa

rtment. Davis was then transported in a marked car to the criminal justice center. The detectives testified that when he was arrested, Davis was we aring a gold cross neckla ce.
The detectives remained behind at the Herman Street apartment. Ronald Benedict consented to a search o f the apartment, including Davis’s bedroom. During the search, police found a nine millimeterhandgun under a seat cushion of the sofa in the living room. The police also found and collected an M-1 carbineassault rifle, three SKS assault rifles, several other handguns, ammunition,
a Crown Royal bag

containing $1,400 cash, two pair of muddy gloves, a flashlight, a pair of muddy tennis shoes, a p air of ha ndcuffs , a pager, a ce ll phone, and a black backpack containing cans of spray paint. Detective Postiglione also noticed a pair of gr een tennis shoes with yellow shoe laces, but those shoes were not collected.2 At tr ial, Ms. Martin admit ted th at when she wa s que stioned by the p olice tha t day, she did not give them the inf ormat ion to wh ich she h ad jus t t est if ied. She s tat ed th at s he was not truthful with the polic e whe n she w as initially quest ioned. However, after she was arrest ed on different charges approximately one year later, she decided to be truthful with the poli ce. -4- AntonioCartwright was transported to the criminal justice cen ter in th e same car as Mr. Davis. Cartwright, however, was not han dcuffe d. Mr. Car twright testifie d that dur

ing thei r transportation, Davis asked him to take a gol d c ross necklace off of his neck and put it in Davis’s pocket. Cartwright testified that he did as Davis asked.

Dimitrius (“Dee ”) Martin, Davis’ s girlfr iend, wa s also tra

nsported to the cr iminal j ustic e center. She joined Davis at the police station, and they sat toge ther for a period of time. Ms . Martin testified that Davis asked her to take a gold cr oss necklace from

his pocket andput it in her purse. She stated that she had seen the necklace for the first time the night before when Davis put it around her neck. Ms. Martin further testified that while they wer

e seated in the hallway

at the police station, Davis told her that G’dongalay Berry and some others had gone to buy guns the night before. When Berry returned to the Herman Street apartment, someone w as tied up in the trunk of the car Berry
was driving and y et another person was tied up inside the car. Ms. Martin

testifie d that Dav

is told her that he left with Berry and the others and they “dr ove out somewhere” and got the people w ho had been tie d up out of t

he car. Davis the

n identifi ed the pe oplewho had been tied up in the car by saying that Gre g Ewing

started p leading

for his lif

e. Davis told her th at Berr y be gan sho otin g the victims. Mr. Davis

told Ms. Ma

rtin that h e shot D’A

ngelo L ee. Davis reque ste d that she call the Herman Street apartment and ask Maquana, Ronald Benedict’s live-in girlfriend, to “get rid” of the green and gold tennis shoes that had been brought into the apartment the night before

. 2

Between 5:00 p.m. and 7:00 p.m. that evening, while Davis, Cartwri g ht, and Ma rtin wer e still detainedat

the police station, Detective Roland learned that Davi s might be

involved in the doub le homicides of D’Angelo L ee and Gregory

Ewing. Based on the inf or mation Detective Roland
rec eived f

rom ot her d etectives , he i nter

view ed An

tonio Cart wrig ht. De tect ive Ro land

next interviewed

Ms. Martin. Thereafter, he questioned Davis in an interview room in the murder squad office. Detective Gray

had previously questioned Davis that afternoon concerning the informa tion received from Crimestoppers related to the murder of a cab dr iver near the TSU campus. Detective Roland testifie d that he c onfirmed with Davi s that Det

ective G ray had rea d him his rights and that he understood the same. He asked if Davis w as still willing to ta lk to him, and Davis re sponded y es. Davis denie d any invo lveme nt in or kno wledge of the Lee and E

wing mur ders. Af ter appr oximately thirty minutes, Davis requested an attorney . At that point, Detective Roland ceased the interrogation. Detective Roland tes tified tha t the inter view end ed at app roximately

9:45 p.m. For the next hour or so, Davis remained

in the murder squad office, while the detectives continued to g ather information
on the double

homicide s. Detective Roland explained that the space is limited, and they did not want to put Davis back out

in the hallway without supervision. Detective Roland testified that during that hour, he saw Davis resting on the floor at t imes and s itting in a

chair a t times. He also advised that he had been fed and given something to drink. Further , Detec tive Roland found a jacket f or Davis to wear because he was cold.-5-

Family members of

the victims identified evidence collected d urin g the investigation as belonging to the vic tims. Specific ally , family members i dentifie d the nec klace Mr . Davis had given to Ms. Martin as belonging to one of the victims. Family member s also identified a jacket that was found in Mr. Dav

is’s bedr oom as bel onging

to one of t

he victims

. Detective Roland testified that basedon the phy sical evidence c ollected from Dav

is’s apa rtment and intervie

ws with witnesses, he beli ev ed he had enough information for a criminal wa rrant for Mr. Davis in the double homicide
case. Thereafter, Detective Roland beg an to type the warr ant for Mr. Davis. He stated that as he was typing, Mr. Davis moved close to him and asked what he was doin g. Detecti ve Roland informed him that he was typing

warrants for criminal

homicide, and one was for him. At that point, Mr. Davis told Detective Roland that he wanted to talk to him.

Mr. Davis was taken to an interview room, where the inter view was videotaped. Detective Roland stated that he again advised Davis of his rig hts. Mr. Da v is waived his rights and signed a written waiver f

orm. The v

ideotape d stateme

nt bega n at appr oximately midnight and lasted ap proximatel y one hour . During the video taped int

erview, Appellan

t stated th at he wa

nted to cooperate. He advis ed that he di d not commit the murders, but he had information about what occurred. He first stated that he was not present

at the crime scene, but later reca nted and stated he
was present. He continued to deny , however, that he had play ed any rolein the murders. He gave information regarding the wea pons used, the scene of the crime, the time of the crimes, the ma nner in which th

e victims w ere mur

dered, a nd other p eople pr

esent at the murde

rs.
It was Detective Roland’s testimony that although Davis remained in the murd er squa d office, he never discussed the leads he was r eceivin g reg arding

Davis’s involveme

nt in the murders withhim. He al so testifi ed that he would leave the room and

go into the hallway

to discuss the new information withthe other detectiv es. To his knowledge, none of the other detectives discusse d any of the leads with or

in front of Davis. Detective Gray explained that he did not discuss any of the lea ds in the investigation with Mr. Davis. He admitted, however, that his conversat ions wit h Detective Roland were not in secret. Detective Gray testified that he could not remember if either Ms. Marti n or Mr. Davis were in the murder squad office during any

of his conversations wi t h Detective Roland. Detective Gray c onfirmed that he in no way made it known to Mr. Davis that the necklacehad been identified. Det ecti ve Gray also testified that he did not divulge information related to the investigation to Detective Roland in front of Mr. Davis. Mr. Davis’s attorney asked Detective Roland if

he made any sort of announc ement, intentionally or unintentionally , that he was typing warrants for the

criminal homicide s. Detec tive Roland respond ed that he did not. Detective Roland further testified

that he did not recall Davis ever complaining of being sick until late in the videotapedstatement. He admitted that he knew th at Davis was tired, as he saw him ly ing on the floor resting. Detective Roland fu rt he r a dm it te d t ha t a lt ho ug h D av is re qu es te d a n a tt or ne y, he never made a telephone call in his presence.

At a hearing on the Appellant’s motion to supp ress his statement, Mr. Davis testified that after he was taken to the police station, he was handcuffe d to a chair. H e stated that he remained there for several hours. According to Davis, his girlfriend, Ms. Martin, was in the hallway with him for a short period of time. He testified, however, that someone was watching them

the entire time;-6-

therefore, he could not really ta lk to her. At one point, he was taken into a room where someone
as ked pertinent personal information about him, including his name, social security number and address

. Thereafter, he was returned to the hallway, whe re he was once again handcuffe d to a chair. He stated that his girlfriend was questioned by Detective Gray

for forty- five minutes to an hour

. Detective Gray then que stioned him in the murder squad office. He could not recall Detective G ray reading him his rights. At this point, Detective Gray was asking him

questionsabout othe

r crimes , and nothing was mentione d regard ing the murders of D’Angelo L ee and Gregory

Ewing. He informedDetective Gray

that he had not

eaten, and Detective Gray then purchased a cheeseburg er, french fries, an d drink for him. After eating only a few bites of the food, he recalled becoming nauseated and lying down on the floor for about an h ou r. He st at ed th at he ha d s le pt fo r o nl y a couple of hours the night before his arrest. Mr. Da vis testified that Detective Roland interviewe d him next . He st ated t hat he could not re call D etect ive Ro land gi ving him his Mi randa rights. He further testified that no one prior to this interview had read him his rights. During

the inter view with Detective Roland, he advised that he wanted an attorney . He confirmed that the questioning stopped at this point. According to Mr. Davis , late r in th e eveni ng, Det ectiv e Gray brou gh t in evidence that had been collected from his apartment. He testified that Detective Gray

began “messing with me” about the evidence. When questioned further, he stated that Detective Gray a sked him if he knew what the evidence was, who

it belong ed to, and

where th ey had collected it. He specifically remembered being questioned about the necklac e. He ma

de no res ponse. He

stated tha

t Detect i ve Gr ay also showed him pictures of the b odies. He state d that although he had told Detective Roland that he wantedan attorney, D etective Roland questioned him again. Next, Mr. Davis testified that Detective Gray told him he n

eeded to talk to De tective R oland and tell him ev ery

thing he knew so th at he could help Davis “get out of

this.” He remembered Detective Roland coming back in a nd then ta king him to a diffe rent inte rview ro om. He state d that he d id not rec all his rig

hts being read to h imor signing
a waiver of his rights. He said that he did not recall making the lengthy

videotaped statement. He stated that he was very

tired and sick that evening.

At trial, the State ca lled Willie M ae L

ee, D’A ngelo L ee’s moth er. Ms. Lee

was also Gregory Ewing’s aunt. Ms. Lee testified that she la st

saw her son and Gregory at her house on February

27, 1996, at a pproximate

ly 9:00 p.m. She stated that D’Angelo had asked to borrow her car, a white Cadillac. According to her testimony , D’Angelo was we aring a pair of g reen te nnis shoeswith yellow laces and a

gold necklace. She identified the necklac e collected from Ms. Martin at the police station on February

28, 1996, as her son’s necklace.

Brenda Ewing Sanders, Gregory

Ewing’s mother, also testified on behalf of the State. Ms. Sanders testified that she last saw her son onFebruary 27, 1996, when he came ins ide her home to use the telephone. D’Angelo was with her son, but re mained outside. She iden tified t he jacket recovered from the Herman Street apartment as belonging to her son. She further stated that he was
w earing it the last time she saw him. She testified that Mr. Davis had been to her house earlier looking for Gregory , but she was not sure if it was the same day Gregory was murdered.-7-

The State also

called A ntonio Car

twright , Dee Martin, Chris Loy al and Andre Kirby to testify
re garding th ei r k no wl ed ge of th e e ve nt s o f F eb ru ar y 27 , 1 99 6. At th e t im e o f t he ir te st im on y, Martin, Loy al and Kirby we re all incarce rated. Ms. Martin had charges pending against her for murder, especially a

ggravated kidnapping , especially a ggravated robber

y and eleve

n c ounts of aggravated

robbery. She te stified that she had not been promised any thing in exch ange for her testimony, but she hoped that she would g et some consideration on her charge s by testi fying. Mr. Loy al admitted that he was serving time for h ighjacking. Mr. Kirby had been convicted of facilitation of first degree murder.

Ms. Martin

testified that

she had been at the Herman Street apar tment with Davis during the day of February

27, 1996. Sh e t es ti fi ed th at sh e a nd Da vi s h ad pl an ne d t o g o t o K en tu ck y th at da y, buthad an argument en route and re turned to Nashville instead. Mr. D a vis had been out all night the night before, which in part caused the a rgument. While they we

re at the apartment the day of the 27th , they smoked marijuana

. Ms. Martin testified that she was in and out of the apartment in the late afternoon and e vening of February 27, 1996. She testified that she went shopping at several differe nt places. She testified, however, t ha t while she was at the apartment, Davis received a page. He asked her to ca ll the number back. D’Angelo L

ee answered the telephone. T hereaf ter, she handed th

e teleph one to Davis, and he ha d a conve rsa tion with L

ee abou t buy ing gu ns from him . She belie ves this conversation occurred between 6:00 a nd 8:00 p.m.

AntonioCartwright, who was fourteen y ears old at the

time of the murders, testified that he arrived at the Herman Street apartment between 3:00 and 3:30 p.m.. He testified that Davis andhis girlfriend, Ms. Martin, and Ronald Benedict and his g irlfrie

nd, Maqua

na Meder ies, were all living in the apartment at the time. When he arrived, Mr. Davis, Yakou Murphy (“Kay ”), G’dongalay Berry and someone named “Sneak” were p resent. He stated that they all smoked marijuana that afternoon. They wer

e all in the front room

of the apartment when Davis told them there was going to be a “highja cking d eal and a gun dea l” that night. Mr. Cartwright explained that D’Angelo L ee drove an I mpala tha t was modif

ied with hy

draulic s, a good stereo sy stem and gol d rims. Da vis told themhe wanted D’Angelo L ee’s car. Davis explained to the gr oup that he

was going to call L

ee to arrange a meeting under the pretens e of buy

ing gu ns. It was Cartwright’ s understanding that Lee had assault rifles a nd that Gr egory Ewing w ould be with Le e. Davis told the gro up that L ee would trust him and would mee

t with him. Cartw

right te stified th at Davis s aid when he met wit

h Lee , he would “draw down on him

” and tak e his car . Davis a

lso asked Ca

rtwright to parti cipate

by ty ing up Lee and Ewing. Cartwright said he could not do it. He knew both men and con sidered them frie nds. Davis told the group they would have to kill Lee and Ewing because the two men knew them and knew where they

lived. Cartwright

testified that after the meeting with L ee wa s c on fi rm ed , D av is , B er ry, “Kay,” and “Sneak” left the a

partmen t on foot. According to Car twright , they

each ha d a gun w hen they left. Davis had a nine millimeter handgun and a black backpa ck, and Berry

had a .45 caliber p istol

. Cartwright

stated that the b ackpac

k had duc t tape, r

ope, and handcuf fs init. Kay and Sneak r

eturned-8-

within 30 to 45 minu

tes, and t hey returne d wit

h the gun s with which they had left the apar tment. Davis and Berry

returned 15 or 20 minutes later in a w hite Cadillac. Cartwright stated that when they returned, they

had 4 or 5 assault rifles, pagers, green Nike tennis shoes with yellow lac es, and
a blue and black jacket. He also stated that Davis had a black .45 caliber pistoland a gold necklace witha cross o n it. Cartw right te stified th at th e assaul t rifle s were put under Davis’s bed, and the other items were placed in Davis’s bedroom. Cartwrig htfurther testified

that when Davis returned to the apartment, he said he had killed Lee and Ewing . Cartwr

ight sta ted that D avis had t

old Lee to get in the trunk of

the car, and Lee tried to get in with his .45 caliber pistol, but Davis got the gun from him. Davis said he cocked the gun, fired off a shot, and “drew down on him.” Dav is to ld Cartwright

he shot L

ee nine t imes in the

head. Ca

rtwright furthe

r testified th at Davis told him he had dumped the bodies where they would not be found. Berry said in Cartwright’s presence that they needed to burn the Cadillac.

Chris Loy al testified that he went to the Herman Street apartment the night of Februar y 27, 1996, looking for Yakou “Kay ” Murphy. When he arrive d at the a partmen t, Ms. Mar

tin, Cartw right, and Maquana Mederies were pre sent. Approximately 15 to 20 minutes after he ar rived, Berry

and Davis arrive d. Davis a sked him to help take

so me assau lt rifles from a white Cadillac into the apartme nt. Mr. Loy al testified that he put the as sault rif les in Dav is’s bedr oom. He a

lso saw som

e Kroger sacks and sh eets t hat ha d drop s of bl ood on them. He als o remem bered s eeing a dark green backpack that had a lot of

handgu ns in it. He said Davis was wearing a g old chain with a cross on it when he

arrive d at the a

partmen t. He furth

er testif ied that D avis appe ared to be in charge, as he was giving out the orders.

After the items w ere brought into the apar tment, Mr. Loyal stated

that he le

ft with Da

vis, Be rr y, and Yakou Murphy and went to a gas station. He s tated that they left in a w hite Cadillac, which Berry

was driving, and

that eve ry one but him

was wea ring g loves. As they

were e n route to the gas station, Davis told him they had gone to get some guns and he “unloaded his clip.” He said that the young est of

the two men began to cry or beg for his mother, and they shot him. According to Loy al, Davis and Berry were discussing amongst themselves what had happene d. Loy

al said it appeared that Davis and Berry

were ha ving a c onfronta

tion and B erry

seemed t o be upset about what had happened. Loy

al testified Davis did not

appear to beupset, just “hyper,” “like it was a joke.” He remembered seeing Davis and B erry e ach with aweapon. He further remembered seeing a nine millimeterhandgun and

a .45 caliber pistol, but he could not remember specifically which weapon Davis and Berry

were holding. After they left the gas station, Loy

al testified that they dr

o ve to Bordeaux, where he was dropped off

. Ms. Martin testified that she was at the apartment when Davis returned from the g as station. She testified that when Davis and Berry returned, they

were c arry

ing assa ult rifle s, gree

n and go ld tennis shoes, a c oat, and a black duffle bag. She said that the assault rifle s were taken to Davis’s bedroom and put under the bed. She furt her testified t hat the duffle bag was stocked with spray paint, ropes, handcuffs, and duct tape. She testified that she saw Davis, B erry a nd Loyal at a Cir

cle K gas sta tion on 28th Aven ue at approximately 10:00 p.m. before she went back to the apartment for the last time that evening. After Davis returned to the apartment, she testified that she prepared-9-

dinner for the two of them. She estimated that they a te around 11:00 p.m. Thereafter, Ms. Martin, Da vis, Be rry, and B rad Benedict went to a Scottish I nn on Bell Road. According to Ms. Martin, Davis fell asleep while en route to the hotel. When they arr ived at the hotel, Davis left with Brad Benedi ct. He came back several hours late r. She estimated that Davis slept for 4 to 5 hours tha t night at the hotel. She confirmed that he did not appear to be having any trouble getting around

or going about his regular a

ctivities.

Near the end of her testimony, Ms. Ma rtin read two letters that

she had r eceive d from Da

vis following her incarceration. The letters advised Ms. Ma rtin thatshe should “take the fifth” if asked to testify in his case. The le tters further asked her n ot to testify in cases pending against other members of the Gangster Disciples. Ms. Martin was recalled by the defe nse during Davis ’s case

in chief. She testified that Donald “Don-Don” Moor e was Da vis’s bes t friend. Ms. Martin also admitted that she was a member of the Gangst er Disci ples, but s aid

she did not become a member until after the murders of L ee and Ewi ng. W hen asked if Davis was the leader of the G angster Disciples, she said she did not know.

Harold Andre Kirby

also testified on behalf of the State. Mr. Kirby stated that in February 19 96, he had loaned a nine millimeter handgun to Christopher Davis. I t was his recollection that Davis had been arrested for the murder s of the victims in this case the day a fter he loaned

Davis the gun. He stated that

around midnight or 1:00 a.m. of the day D avis was arrested, Davis appeared at his house. He testified that Davis was in a rush and kept asking him to leave with him. Kirby declined. He saw Davis run off his porch and get into a Cadillac . He saw h

im next at ap

proximatel

y 8:00 or 9:00 a.m. Davis showed him a .45 caliber handgu n at that t ime. Kirby said he ha

d never
seen Davis with that gun before. Mr. Kirby stated that he w as on the w ay to the Herman Street apartm ent

later that morning to retrieve his nine millimeter handgun, but he sa w police office r s chasing after Davis, so he went home.

As previously discussed, Davis wa s apprehended during the late morning or early afternoon ho urs of Febr

uary 28, 1996. A

t approxima

tely midnight , Davis g ave a vid eotaped statemen t t o Detective Roland. Davis first denied any involvement in the murde rs. He stated that Berry and “K ay” (Yakou Murphy) left on foot to meet Lee and Ewing at Hadley Par

k. He stated they r

eturned in the Cadillac with the men tied up in the car. He denied that any one was placed in the trunk. He advised that D’Angelo was tied up in the front, and Greg was tied up in the back. Later, he recanted and sa id th at af

te r B er ry, “Kay” and Sne ak robbe d the vict ims, they handcuf fed D’A ngelo Lee in the
car and pu t Grego ry Ewing i n the trunk. Davis said that Berry returned to the apartment approxima

tely 30 to 45 minutes later in a white Cadillac. He stated that he knew that Berry was going to buy t he g uns . In fact, he stated that he and Berry were each pay

ing for one-half of

the gun s. He stated that he did not go with them because he was too sick. He a dvised Detective Roland that he stayed a

t the apartment with Dallas Blackman and smoked marijuana.

In the videotaped statement, Davis stated that when Berry

returne d, he brought the

guns into the ap ar tm en t, an d “ Ka y” remained in the car. After deny ing that he was present at the murders, he recanted and said that when Berry returned to the apartment in the Cadillac, he got in the ca r with-10-

them. He advised that Berry told them they were g oing “to let them w alk.” They dr ove south of town and Berry

and “Kay ” got

Lee and Ewing

out of the car. Davis said he then walked back to the
car. He said B erry

and “Ka y” laid Ewing face down

on the ground with his hands out. Davis heard Ewing say, “just don’t kill us.” Accor ding to Davis, Berry

shotEwing five times. “Kay” had already shotLee four time s in the back of the head. Davis said that Ewing was shot with the .45 caliber handgun, and Lee was shot with the nine millimeter handgu n. He sai d they

were de ad by

8:30 p.m.
on February

27. He stated the

y r eturned to his apartment. He told Detective Roland that the Cadillac had been burned, but hewas not sure of its location. He further advised Detective Roland that Berry had the .4 5 calibe

r handg un used in t

he murde rs. Danny Morris, a f

in gerprint identification specialist for the Metropolitan Nashville Police Departm ent, testified that after the Cadillac was located, he tested it for f ingerprints. He stated that the Cadillac

had bee n burned ; theref

ore, he c ould

not recover any

prints fromthe interior of the car. H e stated that the only fing erprint he could identify with certainty wa s that of D’A ngelo Lee. H e lifted Mr. Lee’s fing erprint from the trunk of the car. No other fing erprints were identifiable.

Dr. Bruce Le

vy testified on beha

lf of t he State. He testified that he did not perform the autopsy of either of the victims. The medical examiners who had performed the autopsies were no longer employed

by the Medical Examiner’s Office. Further, they both lived out of state. Dr. Levy was allow ed to testi fy

after th e trial c ourt over

ruled the defense objectio ns.
Dr. Levy explained that Gregory

Ewing was shot a total of seven times. Gu nshot w ounds numbered1 thro ugh 3 were injuries to the head and were life threatening injuries. Gunshot wounds 1 and 2 exited Mr. Lee’s head. Gunshot wound number 3 did not exit. The bullet was recovered by Dr. Mi ze ll wh o p er fo rm ed th e a ut op sy. Gunshot wou nd number 3 was described as a medium caliber bullet. Gu

nshot wound number 5 was an in jury to the rig

ht sho ulder and that bullet was recovered during the autopsy . Gunshot wound number 6 was to the right upper portion of the abdomen, and it was a life threatening injury . This bullet was also r ecovere d d ur in g t he au to ps y. Dr. Levy explained

that the b ullets fr

om wound nu

mbers 5 a nd 6 were from a la rger c ali ber g un, meaning that they

came from a different

weapon thanthe bullet recovered from wound number 3.

Dr. Levy explained that the medical examiner’s office has a standard procedure for securing bullets from bodies during an autopsy. He testified that whe n they rec over a bullet, they secure the bullet, place it in a marked container, and lock it in an evidence locke r. Later, they

would turn the evidence over to the police. Dr. Levy then identified the bullets that were recovered from Gregory Ewing’s body during his a utopsy. He

testified that each

package has a label that is prepa red by the medical examiner’s office with a unique medical examiner case number. The label also contains the victim’s name, date of death, police complaint number, the initials of the investigator who seals the envelope, a descrip ti on of the evidence, and the location from which the bullet is rec overed. Connectedto the outs ide of the envelope is an evid

ence receipt ac

knowledg in g th e transfer of the bullets from the prope

rty of the me dical exa

miner’s o ffice to

the prope

rty of the Me

tro Nashv ille Police Department. Dr. Levy stated that the envelope showed the initials G.M., the initials of Dr. George Mi ze ll wh o p er fo rm ed th e a ut op sy on Mr. Ewi n g. He further identified the remaining-11-

information on the envelope. He testified that the bullets were transferred to Serg eant Hunter of the Metro Polic e Depar

tment on July

24, 1996, a

t 16:35 hour s.
Dr. Levy next testif

ied reg arding

the autop sy

performed on D’Angelo L ee. Dr. Levy

testified that Dr. Ann Bucholtz performed the autopsy . Mr. Lee was shot in the head three times and oneor two times in the hands, depending upon how the wounds were interpre ted. He stated

that all three wounds to Mr. Lee’s head we re lethal. Further, no bullets were rec overed from those three wounds,
as each exited the body. Dr . Levy testified that wound number 5 was an abrasion wound, and they
were unable to determine with certainty if it was an independent wound or a woundmade by anothe r bulletexiting the body. One bullet was r ecovered from

the hand injuries. It was turned over to the Metro Police Department. Dr. Levy confirmed on cross-examinationthat he did not see the bullets
as they were recovere d from the

victims and placed

into the re

levant pa ckage s; theref

ore, he c ould notsay wi th certai nty that the bullets placed into evidenc e were in fact the bullets taken from the bodies. Tommy

M. Heflin, supervisor of the firearms identifica tion se ction of th

e TBI forensi c services crime lab, testified on behalf of the State. Agent Heflin testified that he received four fired cartri dge casings from a .45 caliber handg un, 8 fired nine millimeter cartridge casing s, and one fired bulletfrom a .38/.357 caliber gun from Detective Roland who ha d recovered them from

the crime
scene. Agent Heflin als o recei ved four bullets recovere d from Mr. Ewin g’ s b od y du ri ng th e a ut op sy– three fired.45 caliber bullets and one fired nine millimeter bullet. He further re ceived one fired

nine millimeterbullet recovered from Mr. L ee’s body dur

ing the autopsy. Ag ent

Heflin was also given two .45 caliber pistols for testing and one nine millimeter pistol.

After testing and comparing the nine millimeter casing s with the nine millimet er gun, he stated he cou ld no t exc lude t he casi ngs as having been fired from the nine millimeter gun. He could notsa y wi th ab so lu te ce rt ai nt y th at th ey were fired from the nine millimeter handgun he tested. However, th ey w ere either fire d from that gun or one very similar. With regard to the four .45 casing s, he was able to determine that all four were f ired from the same gun, but not from either of the two .45 caliber handguns he was given for testing. Further, with regard to the .45 ca liber fired bullets, he was able to determine that two of the fired bullets had definitely been fired through the barrel of the same gun. The third .45 caliber bullet had been da maged; theref

ore, he w as unable

to say with certainty that the third bullet was fired fr om the same

gun. Ag ent Hefl

in was ab le to dete rmine wit h certainty that the f ired nine millimeter bullets that had been recovered from the bodies of Mr. Lee and

Mr. Ewing during autopsies were f ired from the nine millimeter pistol he was givenby Detective Roland that was entered into evidence in this case. Agent Heflin further testified that the ammunition recovered from the Herman Street apartment was consistent with the projectiles and cartridges recove

red at the crime scene.

Dr. Steven Wolff testified on behalf of the defense. Dr. Wolff testified that he had treated Mr. Davis at Vanderbilt Hospital for anemia. He stated that Mr. Davis wa s admitted to the hospital
on February

18, 1996, and was released two day s later. He s tated th at Mr. Davis was given a transfusion of red blood cells to treat his anemia. He stated that Mr. Davis had a lesion onhis arm-12-

that was consistent with a

spider bite; therefore, they

surmised that the anemia was probably caused by a spider bite. There was no definite finding, howe ver. He furth er testified that it would be speculative to state what type of spider bit Mr. Davis, although they found a lesion near Mr. Davis’s
arm that was described as necrotic, which is characteristic of a br own recluse spider bite. Dr. Wolff testified that while

Mr. Daviswas in the

hospital, he appeared to be normal. He was in no distress and acted appropriately

. At discharge, Mr. Davis’s red blood ce ll count was at 29%, which can be considered

normal. He further stated that the combination of the transfusions Mr. Davis received and his hospitalization should have resolved his medica

l problem. Dr. Wolff

stated tha

t Mr. Davi s had an appointment for a recheck on Fe bruary 29, 1996 , but by tha t time he was in custody. Dr. Wolff further admitted t

hat if Mr. Dav is had a tr aumatic injury

resulting in blood los s after h

is hospitalization, his recovery could have been slowed.

SusieBoykin, Christopher Davis’s grandmother, testified as an alibi witness for the defense. Ms. Boykin explained

that Mr. D avis had l

ived with h

er off a nd on for s everal

ye ars. She stated that Mr. Davis came to her house on February 27, 1996 and ate dinner with her. She stated that he arrived at appro ximately

7:00 p.m. and st ayed unti l 10: 15 p.m . She s aid th at alt hough he was in and outof her hou se, she c ould hear him outside when he left. She further testified that she lived approxima

tely five to six blocks from the Herman Street apartment. According to Ms. Boy kin, Greg Ewing had stopped by

her house

prior to 7 :00 p.m. loo

king for Mr. Davis . She told

Mr. Davis that Ewing was looking for him, so he left and returned shortly thereafter. Mr. Davis told her that he had gone to Ewing’s house, but he was not there. She remembered that at about 10:15 p.m. she a sked Davis to stop running in and out of her h ous e becau se she ne eded to g o to sleep . On cros sexaminatio n, Ms. Boy

kin admitted th at sh e h ad be en in te rv ie we d b y tw o i nv es ti ga to rs pr ev io us ly, and she neve

r told eith er of them that Mr. Davis was at her house that night. She said ne ither investigator had ever asked her if he had been by

her house that night.

Dallas Blackma

n, a frie nd of Mr. D avis, te stified that he sa w Mr. Dav

is at the Court Villa apartme nts on February

27, 1996, between 9:30 and 10:30 p.m.. H e stated he w as with him for approxima

tely forty-five

minutes. He t estif

ied that Mr. Davis asked him to rent a motel room for him that eve ning. Da vis was with A

ntonio Cartwrig

ht at the time. Mr. B lackman admitted o n crossexamination that he told Detective Roland a week before tria l that he could not remember if he actually saw Mr. Davis on February 27 or another date, because it was common for Davis to ask him to rent a room for him.

The defense

also called Yakou Murphy to testify. Mr. Murphy

deniedthat he had murdered Mr. Ewing and Mr. Lee. He further denied that he had eve r told anyone that he ha

d in fact murdered the victims in this cas e. Mr. Mur phy was aske d by

the defe nse if he witnesse d Chris Loy al murder either of the two victims. He responded no. He denied any involvement in the murders of Lee and Ewing. On cross-examination, Mr. Murphy testified that Davis an d Berr

y ha d asked h im to go wi

th themto buy guns. He testif ied that he, Davis , Berr

y, a nd Sneak l eft and w ent to Scobel Street. After arriving at Scobel Street, Mr. Murphy te stified that he and “Sneak” went back to the Herman Street apartme nt. Before they

got back to the apartment, he saw Davis andBerry

in a white Cadillac, along withtwo other males. He did not know who the two other males were. D avis was driving the-13-

Cadillac, and the two other men appeared to be tied up in the car. Mr. Murphy testified that when Davis and Berry

left the apartment, they

had two g

uns. He knew one was a nine millimeter, but he didnot know what the other was. He testified that when D avi s and Berry returned, they

were carry ing clothes, shoes and assault rifles. He said they took everything

to Dav is’s be droom. Mr. Murph y further d enied that h e knew e ither D’Angel o Lee or Gr egory Ewin g.
D o nald Moore testified on behalf of the defense. Mr. Moore testified that Yakou Murphy told him that he murdered Lee a nd Ewing. Mr. Moore stated that Mr. Murphy told him that he tied themup, put them on their knees, and shot them. He further testified that Mr. Murphy said he had
never liked Greg Ewing. Mr. Moore testified tha t Chris Loy al and two other men were with Murphy
w hen he murde

red L ee and E wing, bu t Mr. Loya

l stayed in the c ar while

the victim s were bein g murdered. Mr. Moore

stated tha t Murphy told him he had set up

Davis, B erry

and Moore . On cros sexamination, Mr. Moore admitted that he was Davis’s best friend. He further admitted that he had been convicted of first degree murder, second degree

murder, and especially

aggr avated r obbery in unrelat ed case s. Mr. Moor

e stated that Mr. Mu

rphy had testif ied aga inst him in tw o of his ca ses. Christopher

Davis tes tified in h

is behalf at the tri al, aga

inst the ad

vice of h is attorne ys. Mr. Davis testified that he was eighteen y ears old in February

1996. He state d that h e dropped out of school after c ompleting

the elev enth gr

ade. Da vis denie d that he w as a member of a gang, but admitted that he was a member of the Gangste r Disciples organization. Davis further admitted that he had bee n selling

cocaine since he was thirt een or f ourteen ye ars old. He stated

that is how h e made his livelihood.

He testified that prior to his arrest, he had been very sick. He testif

ied that he was anemic and required hospitalization. He stated that he first went to General Hospital where he received a blood transfusion. He refu sed to con tinue to sta

y a t the hospital, and c

hecked himself out. A few da ys later, someone took him to Vanderbilt Hospital because he was so sick and weak. He testified that he was hospitalize d for two d ay s and the o nly reason h e was disc harge d at that time was bec ause he was requesting to leave. He learned at Vanderbilt Hospital that he had been bitten by a spider. He testified that he continued to be sick and weak following his discharge from Vanderbilt.

Davis testified that on the night of February 26, 1996, he h ad gotte

n into an a

ltercat ion with
a man when he was try

ing to buy marijuana . He stated the man hit him in the head with a shotgun barrel, which caused him to bleed profusely

. Mr. Da vis te stified that he had been at the Herman Street apa rtment most of the day on Februa ry 27, 1996. He testified that at approximately 6:45 to 7:00 p.m., he went to h i s grandmother’s house on Sc obel Stre et. He confirmed that he went to Greg E wing’s house looking for him. He stated that he spoke to Greg’s mother, B renda. He then returned to his gra ndmother’s house, where she was cooking. He e stimated the time to be 7:15 to 7:20 p.m. He then went back to his apar

tment. When

he left th

e apart ment, Anto nio Car twright was there alone smoking marijuana and drinking beer. He aga in returned to his grandmother’s house where he went in and-14-

outduring the night, to sell cocaine nearby . On one of the trips out of his grandmother’s house, he stated he saw Dallas Blackman and aske d him to rent a hotel room for him for the night.

Mr. Davis tes tified tha

t at one po int his gr

andmothe r asked h im to stop going in and out of her house. He went to kiss her goodnight and asked her what time it was. She responded that it was 10:15 p.m. He left his grandmother’s house for the last time and returne d to the ap artment. Davis admitted that he never told the police tha t he had been to his grandmother’s house that night. He stated that he probably

would have told the police whatever they wanted to hear.

After h e return ed to the apartment, Chris Loyal appeared. Yakou Murphy arrived a short time later. Yakou asked them to help him and Berry

get some things out of the car. He testified that the items previously

referenced were

brought into the apartment and placed in his bedroom, which action he protested. Thereafter, he an d Chris Loy al got in the backseat of the car a nd went to the store with Berry

and Murphy. On the r

eturn trip to the apartment, Davis said that Berry asked if he wantedto buy a nec

klace from him. He agreed a nd paid him $200. Atthe apartment, Berry dropped off Davis and Murphy. He and Murphy then located Dallas Blackman in order to g et the hotel room for the night. Davis testified that while he was in the car with Murphy, he asked Murphy

about the events of the night. Murphy allegedly responded that they

had robbed someone, but he would not give any further details.

Later in the evening, Davis testified that he, B rad Benedict, and Berr y were smoking marijuana at the hotel. He testified that when he continued to press B erry

for deta ils, Ber ry told him that he and Murphy ha

d shot D’Angelo Lee

and Greg Ewing. Davis said that B er ry told him t

hat they took them down south. A car went by and they had to g et down in some bushes or weeds. After the car pas sed, Be

rry told him tha

t Murphy immediate

ly o pened fi re. Be rry told him tha

t he th e n startedshooting also. According to Davis, Murphy shot D’Angelo Lee . Berry said he shot

Ewing in the kne e and the

n shot him

a couple more times before Murphy came across and shot

Ewing in the head two or thr

ee times.

On cross-examination, Davis admitted that his statement to the police was “one big lie.” He further denied th at Harol d Kirby had eve r loaned him a nine

millimeter

pistol. The jury returne d a verdi ct of gu

ilty on all cou

nts.
At the sentencing hearing, t he State first presented proof of Appe llant’s pr ior convi ctions:
a conviction of first degree murder a nd a conviction for attempted second degree murder. Next, the moth ers of the victims testified. Both mothers explained their close relationships with t hei r respective sons. Eac

h mother a

lso testifie d th at her so n had fat hered children w

ho were directly affec ted by

the murde

rs.
The defense presented testimony from Appellant’s family member s. Appellant’s mother was colle ge educated and maintained steady employ ment, wherea s Appella

nt’s fath er stay ed home w ith the children to sell drugs. Both of Appellant’s parents were drug a ddicts, a nd Appell ant’s fa

ther sold-15-

drugs from thei

r home in front of the children. Although Appellant’s parents re mained married, they did not have a loving relationship. Because of his pare nts’ drug us e, Appellant spen t a lot of time withhis grandmother, Susie Boy kin. Appel lant’s fa ther was incarcerated on seve ral occasions related to drug charges. B ecaus e of his incarcerations, Appellant’s father testified that he did not have a close relationship with his son.

The witnesses testified tha t through Mrs. Davis’s employ ment and Mr. Davis, Sr.’s drug deali ng, they were

able to provide a very

nice lifestyle for

t heir children . Appellant attended a private school into his high school year s “because he was very bright and a fast learner.” Appellant
was listed in the Who’s Who Among American High School Student s when he was in the

elevent h grade. Appellan

t’s mother

admitted, however , that App ellant wa s expelled from St. V incent’s School for threatening a teache r. He later attended Pearl-Cohn High School, but

did not graduate. The witnesses denied that Appellant was ever physically

or sexually abused. Moreover , despite the problems , the witnesses testified that Appellant was loved by his family. Appellant’s y ounger brother had been

killed in a

shooting incident in San Dieg o, Califor

nia, abou t five mont

hs prior to Appellant’s trial.

Donald Moore testified again during the sentencing phase. Mr. Moore testifie d that he f irst met Appella

nt when Ap

pellant b egan d ating hi s sister. He admitte d that App ellant ha d so l d marijuana and crack cocaine. He f

urther advised that he and Appellant sm ok ed ma ri

ju an a e ve ry d ay. Mr. Moore sta

ted that A ppell a nt praised his father and his livelihood of selling drugs. Acc ording to Moore, Davis, Sr. was a very popular figure in the drug dea ling community. Mr. Moore further testified that he, Appellant and G’dongalay

Berry had smoked marijuana with Appellant’s mother, Felicia Davis, on several occasions. Mr. Moore opined that after Appellant left private schools and began attending Pearl-Cohn Hig h School, his attitude changed.

Marcus Lattimore, Appellant’s second cousin, te stified on

behalf of the defense. He testified that he and Appellant had spent a lot of time together in their y outh. He also testified concerning Appellant’s early dr

ug use and his family ’s drug use. Mr. Lattimore further testified that Appellant had been dealing drugs so he c ould open a recording studio and get into a diff erent line of work. On July 28, 2000, the jury sentenced the Appellant

to death for the first degree murde rs of D’Angel o Lee

and Gre gory

Ewing. T

he court subseque

ntly sentenc ed the Ap

pellant to tw o concurrent

twenty-five y

ear sentences for the espec ially ag gravated kidnapping convictions and two concurrent twenty -five ye ar sentences for the especially aggravated robbe

ry convictions.-16- ANALYSIS OF

ISSUES I. Disqualification of the Davidson County District Attorney General’s Office

Pretrial , Appellan

t filed a m

otion to disq

uali f y the Davidson County

District Attorney General’s Office. Appellant’s argument for disqualification centered around the fact that the trial judge’s former law clerk, Philip Wehby , ha d joined the Davidson County District Attorney General’s office as a prosecutor. At

the hearing on Appellant’s motion, Mr. Wehby admitted that while he was employed as a law clerk for Judge Wy att, he had attended one, possibly two, ex parte p roceed ings concerning th is pr oc ee di ng . H e f ur th er te st if

ie d t ha t f ol lo wi ng hi s e mp lo ym ent in the District Attorney’s office, he had not spoken to anyone regarding Mr. Da vis’s case. Moreover, he testified that no one ha

d asked h imfor information regarding the case. When asked if he was aware that Mr. Davis’s filewas kept in General Thurman’s office and not in open areas where it could be examined, he responded that he did not even know where the file on the D avis case w as kep t. He admitted, however, on cross-examination that he was notaware of any written p olicy

of the Da vidson Coun

ty District Attorney Gene

ral’s office regar

ding screening lawy

ers in conflict of interest matters

. He further stated that there ha d been no explicit order from the District Attorney ’s office that he be segregated

from the Davis case, but he confirmed ag ain that no one had approached him rega rding the Christophe

r Davis c ase. Judg e Wy att ruled that while

his former law clerk was prohibited from any participa

tion in the case, the office of the Davidson County District Attorney General was not disqua lified from the case. As a result, the Davidson County District Attorney Gene

ral’s office continued to prosecute the case. The Appellant filed an applica tion for in terlocu tory appeal with this Court on this issue, and the interlocutory appe al was denied.

Most cases that have analy

zed disqual ifica tion issues have considered first, whether an individual lawyer must be disqualified a nd second, whether disqualification should be required of the office in which th

e lawy er is employed. Judge Wyatt resolved the first issue when he ruled that Philip Wehby should have no participa tion in the case; We

hby was disqu alified. The issue for this Courtto determ

ine iswhet

her Ju dge Wy att should h ave disqualified the entire district attorney general’s office.

In State v. Ta

te , 925 S.W.2d 5 48 (Tenn . Crim. App . 1995), th is Court held that t

he K nox County District Attorney Gene

ral’s office was disqualified from the prosecution of Richard Arthur Tate’s case

because former Judge Randall Nichols acc epted the position of District Attorney Ge neral for Knox Count y after acting as presiding judg e on pretrial matters in Mr. Tate’s case. As judg e, General Nichols presided over several ex parte proceedings where

in confidences regarding

funds for expertservices were disclosed. Id . at 549. Afte

r acce pting the position of

District A

ttorney Genera l, General Nichols had as many as four lengthy

discussions with the assistant attorney g eneral assigned to prosecute Tate. Id . However, General Nichols and the assistant district attorney denied that General Nichols disclosed any fa cts that were not already

known to the prosecution. Id

. This Court ruled that General Nichols must be disqualified from the prosecution. Id . at 554. Next, the Court held that the entire office

of the Knox County District Attorney General must be disqualified and a-17-

new prosecution team appointed. Id . at 558. In so doing, this Court provided guidance for the resolution of the issue at bar.

As noted in Tate , Tennessee has adopted the majority position that

an entire district attorney general’s office n ee d not be dis qualifie d so long as the at

torney at issue does not dis close confidences or otherwise participate in the prosecution. Tate , 925 S .W.2 d at 55 6 (cit ing Mattress
v. State , 564 S.W.2d 678, 68 0 (Te nn. Crim. App. 1977)). The Tate Court made it clear that the burden of proof

rests upon the State to establish that appropriate screening measur es have been taken when it quoted f

rom the un

reporte d case

of State v. Claybrook , No. 3, 1992 WL 17546, at *11 (Tenn. Crim. App. at Jackson, Feb. 5, 1992) as follows: “[T]o avoid disqualification, it should be incumbent upon the state

to prove b y c le a r and convincing evidence that the cha llenged attorney

has been sufficie ntly screened from the remainder of the staff and its work on the pending case.” Tate , 925 S.W. 2d at 5 57-58 (quot ing State v. Claybrook , supra ).

At the hearing on this issue before Judge Wy att, Philip Wehby testified tha t he ha d not discussed the prosecution of Christopher Davis with any one in the district attorney g eneral’s office. Further, he explained

that no one from

the distri ct attorney

gener al’s off ice had d iscussed the case withhim or asked him questions regarding the same. He a dmitted, however, that he knew of no formal screening procedure in place for conflict matters in that office. Fur ther, Mr. Wehby admitted that no specific order

had been given to him to refrain from par ticipation in the prosecution of Mr. Davis’s case.

In addition to Tate , Appellant relies on Lux v. Co mmonweal th , 484 S.E.2d 145 (Va. Ct. App. 1997) to support his argument that the district attorney general’s office in this case should ha ve been disqualified. Lux followed the majority rule in de termining that per se disqualification of the entire districtattorney’s of

fice is not required, but disqualified the district attorney ’s office non etheles s. In Lux , an attor

ney who had f

ormerly particip ated in the defen se of the defendant joined thedistrict attorney general’s office during

the defendant’s appeal. Id . at 147. The court noted that a ltho ugh the argu ment was m a de by the Commonw ealth’s a ttorney during a rgumen t on the moti on to disqualify that the d istrict a ttorney ’s offic e had est

ablished a “chine se wall” to prohibitthe attorney from participating in any

proceeding against the de fendant, no evidence was offered p roving the existence or the nature of the screening proc edures utilized. Id . The court then ruled that because the Commonwealth had failed to meet its burden of proving that effective screening procedures ha d been implemented to prevent disclosure of the defendant ’s confi dences, the entire staff of the district attorney general’s office wa s disqualified. Id . at 152. The court reas oned that in light of due processconsiderations, a criminal defendant’s motion to disqualify the distri ct attorney g eneral’s office should be granted “when the circumstanc es indicate that the defendant’s former counsel in a rela ted matter has not been effectively screened from contact” with the attorney s who are prosecuting the defendant. Id

. The facts in t

he case at bar a re disting uishable from Lux . In this case , th e State presented evidence through the testimony of Philip Wehby that he had not discussed, nor had he been questioned, regarding Appellant’ s case. Moreover, when he was questioned

as to whether he was-18-

awareof the fa

ct that Ap pellant’ s file wa s kept in Ge neral Th urman’s office

so that it c ould

notbe accessed, he responded that he was not even aware of where the

file was kept. Thus, in this case, as opposed to Lux , the State did presen t evidenc e to rebu t any presumpt

ion of sha

red conf idences

. Although, admittedly, Mr. Wehby was not aware of a

formal, written screening policy , there was screening of Mr. Wehby from the pr osecution of Appellant’s case, as he had neve r discussed any aspect of the case with any one in the office . Furth er, Mr. Wehby wa s not Appellant’s former counsel. Rather, he was the law clerk to the judge who, at that point, had presided over Appellant’s pretrial matters. A s the Tate Court explained, “[a] trial judge does not have the same duties as defense counsel. There is a l esse r degree of shared c onfidences.” Tate , 925 S.W.2d at 557. Certainl y, t he trial j udge’ s law cle

rk would a

lso have a lesser d egree of share d confide

nces.
The facts of Tate

are also distinguishable from the case at bar. I

n Tate , the court found that General Nichols ha

d failed to scree n himself from the prosecution of the defendant’s case. Tate , 925 S.W.2d at 557. General Nichols openly talked with the assistant

district attorney

assigned to the ca se and maintained a supervisory role ov er the case. Id . Philip Wehby neither discussed Appellant’s case with any one in the office nor did he have any supervisory role.

This Courtrelied on Tate

in finding that the entire district attorney general’s office wa s not disqualified where th

e Appella nt’s form er lawy er, then emp loyed as a public defender, later went to work in the district attorney g eneral’s office in State v. Steve Mason , No. 01C01-9603-CC-00103, 1997 WL 311900 (Tenn. Crim. App. at Nashville, June 6, 1997), appeal denied , Feb. 23, 1998. The proof presented by

the State at the hearing on t he motion t o disqualify in Mason is similar to the proof established herein, except in Mason the challenged attorney testified that upon beginning employment

in the district attorney

general’s office, he w as instructed by the District Attorne y not to have an

y c ontact wi

th the pro secutor s o n any ca se in which the Public Defender was involved. Id

. at *5. The Mason Court found there was no proof that the challeng ed attorney sha red any information with the prosecutor for thecase or that he participated in any capa

city in the prosecution. Id

. at *6. Rely

in g on Mattress , the Court held that absent proof of disclosure of confidences or participation in the prosecution, disqualification of the entire district attorney general’s office wa s unnecessary

to preserve the appearance of a fair trial or to protect the Appellant’s rig hts. Id . at *6 (citi ng Mattress , 564 S.W.2d at 680).

Alth ough factually diff

erent from this c ase, our

supreme court ad opted a th ree ste p analy sis to determine whether an attorney ’s prior representation mandates vicarious disqualification of the law firm to which he or she moves his or her practice: 1) whether a substantial relationship exists between thesubject matter of the former and pres ent repr

esentat ions.
2) whether

the pres umption of

shared c onfidenc es which arise from its determination that the representations are subs tantially related has been rebutte d with

respect to the former representation.3 This Court n otes t hat ef fect ive March 1, 2003, t he C ode of P rofessio nal Co nduc t curren tly set forth in Supr eme Court Rule 8, whic h is pat terned af ter t he American Bar Ass ociati on’s Model Co de o f Pro fessiona l Con duc t, will no longer govern the ethi cal conduct of Tennessee att orneys. Inst ead, th e stan dards of et hical conduct f

or Tennessee attorne ys will

be governed by the Tennessee Rule s of Prof essi onal Conduct, which i s patt erned aft er the American Bar Asso ciation ’s Mo del Rules of Professional Conduct. As the Sup reme Co urt note d in Cli nard v . Bla ckwood , 46 S. W.3d 177, 187 n.7 (T enn. 2001), the result s in imputed disquali ficati on cases may yield dif ferent results under the new rules.

-19- 3) whether the presumption of shared confide nces hasbeen re

butted wit

h respec t to the present representation.

Clinard v. Blackwood , 46 S.W.3d 177, 184 (Tenn. 2001). In Clinard , an attorney who represented
a client in a boundary dispute ma tter later withdrew fro m representation of his client and subseque ntly moved his practice to the law firm that represented

the adversary

in the same matter. Id

. at 180. The law firm set up screening proc edures to prevent the newly hired a tt orney

or his secretary from sharing information concerning the case with other attorney s or staff of the firm. Id

. at 181. Under the threestep analysis, the supreme court explained that under the first prong of the analy sis, “[a] relationship is substantial when ‘the subsequent repr esentat ion is adverse to the matters at issue in the previous relationship’ or when ‘t he lawye r was so involved in the matter that the subject representation can be justly regarded as a cha

nging of sides in the matter in question.’” Id

. at 184 (citat ion omitted). In thi s case, M r. Wehby did not for

merly repres ent the Ap

pellant. However, in analog

izing the three ste p analy sis to this case, we find that Mr. Wehby ’s attendance at one, possibly two ex parte proceedings did not cause him to beso involved in the App ellant’scase at Judge Wyatt’s office to be regarde d as “switching sides” when he became employ ed at the district attorney general’s office. Thus, eve n under the analy sis of Clinard , the district attorney g eneral’s office is not disqualified pursuant to the shared confidences/scr eening analy sis.
However, our

analysis does not end her

e. The supreme court also addressed disqualifica tion under the appe arance

of improp

riety standar d set for th in DR 9-1 01 in Clinard. 3 The supr emecourt quoted Ethical Co nsidera tion 9-6 of

the Tennessee Co de of Pr ofessional Responsibility: “Every lawyer ow es a solemn duty . . . to avoid not only professional impropriety but also the appearance of impropriety.” Id

. at 186. The court then held that “an appeara nce of improprie

ty e xists ‘in thos e situations in which a

n ordinar y kn owledg eable

citizen ac quainted

with the f acts would conclude that the . . . representation poses substantial risk of disservice to either the public interest or the interest of one of the clients.’” Id . at 187 (citing N.J. Rule s of Prof. Cond. 1.7( c)(2); Davis v. L iberty Mut. Ins. Co. , 38 S.W.3d 560, 565 (Tenn. 2001)). The court fu rther a nalogize d the cas e to baseball and found that the disqualified attorney “not only switched teams, he has sw itched te ams in the m iddle of the game after learning

the signals.” Clinard , 46 S.W.3d at 188. The court then found that the client had communicated conf identia l information to the attorney who then a llied with the opposition. Id . The cou

rt finall y held that although screening procedures had been implemented, the appearance of impropriety remained, and the entire law firm to which the disqualified lawye r had moved was also disqualified. Id . at 189.-20-

The facts of

the case at bar are distinguishable f rom the facts of Clinard . Here, Mr. Wehby didnot previously repre sent the A ppellant . Ins tead, he attende d one, pos sibly

two ex part

e procee dings as a law clerk. Under the fac ts of this case, as we have previously held, we find that Mr. Wehby was effect

ively screene d from this case at the district attorney general’s office. Unlike Clinard , the fact that Mr. Wehby w as “benched” by his new employer

does “ameliorate thepublic perception of an unfair game .” See id. at 188.

This Court rev

iews a de cision of

the trial court on d

isqualifi cation of

th e district attorney general’s office under an abuse of discretion standa rd. Tat e , 925 S.W .2d at 550. In this case, we cannot find that the trial court abused its discretion in failing to disqualify the Davi dson County District Attorney Gene

ral’s Office. Disqualification cases must be deter m i ned on a c ase by

case basis. Clinard , 46 S.W.3d a t 184; Tate , 925 S.W.2d at 557 (citing Formal Ethics Op. 89-F-118). The f acts of this case are such that disqualification of the entire office of the Davidson Count y District Attorney Gene

ral was not warranted.

II. The Juve

nile Status

of Appellant a

t the Time of Appellant’s Pr ior Fe lony Convic

tion Appella nt fil ed a motion to prohibit the State from relying upon Appellant’s prior murder convic tion for the mu

rder of Adrian D ickerso n, beca

use Appellant wassevente en y ears old at t h e time of the offense in that case. See State of Tennessee v. G’Dongalay Parlo Berry

and Christopher Davis , No. M19 99- 008 24- CC A-R 3-C D, 2 001 WL 1251240 (Tenn. Cr im. App. a

t Nashvill e, Oct. 19, 2001). Appellant argued that a juvenile transfe rred to criminal court is not eligible for

the deat h pe na lt y; therefore, the State should be precluded from relying upon an offense that

occurr ed while Appellant was a juvenile to support an aggra vating circumstance in a subsequent capital c ase. The trial court de

nied Appe

llant’s mo tion. I

n its orde r, the court sta

t ed that Ap

pellant h ad faile d to present any authority

to support his position, and the court had been unable to locate any such
au th or it y.
Tennessee Code Annotated section37-1-134(a) prohibits a juvenile transferred to criminal court and tried as an adult from being eligible f or the sent ence of death. It does not, however, preclude a conviction of the transferred juvenile from being use d as an aggrava ting circumst

ance in
a subsequent capital case. See Tenn. Cod e Ann. § 37 -1-134( a). L ikewise, Tenness ee C ode Annotatedsection 39-13-204(i)(2), the statutory aggravator allowing

a previous felony

conviction of a defenda nt to be admitted into evidence during the sentencing pha se, does not limit previous violentfelonies to convictions of adults only. See Tenn. Code Ann. § 39-13-204(i)(2) (Supp. 2001). Appellant ha s c it ed no au th or it y i n this stat e or within any jurisdiction to support his position. Appellant simply relies on the bald asser tion that if a juvenile transferred to criminal cou rt is not eligible for the d eath pen alty , then it fo llows that a conviction resulting from the transfer should not be allowed as evidence of an ag gravating factor in a c apital sentencing hearing.

This Court may not judicially amend a statute. See Mooney v. Sneed , 30 S.W.3d 304, 306 (Tenn. 2000). Accordingly , this Court cannot undert ake to rewrite the statutes as requested by Appellan t. This issu e is withou

t merit.-21-

III. Appellant’s Statement to Police Appellant filed a motion to suppre ss his statem ents made to police . Appella

nt was fir st questioned at the cr

iminal justi ce cent

er afte r being detaine d outside h

is residence. A t the time Appellant was apprehended, the police were unaware of his alleg ed involvement in the murders at issue. Mr. Davis was taken in a police car in handcuf fs from his residence on Herman Street in Nashville to the cr

iminal ju stic e center. Appellant arrived at the cr iminal justice center at approxima

tely noon on February

28, 1996. Appellant was first questioned b y D etecti ve Al Gray regarding his k nowle dge of the murder of a cab driver nea r the TSU campus in Nashville. Detective Gray advised A

ppellant of his Miranda

rights prior to questioning him.

Detective Mike Roland testified that he first learned of Appellant’s potential involvement i n the murders of Lee a

nd Ewing between 5:00 and 7:00 p.m. Detective Roland t estified that h e calledDav is in to que st io n hi m re gar di ng t he m urd ers of E win g an d Le e and confi rmed that Detective Gray

had read Davis his rights and that he understood the same

. He aske d if Davis was still willing t

o talk to him , and Dav

is respon ded yes. Appellant den ied any involveme

nt. The interview with Detective Roland began at approximately 9:00 p.m. Detective Roland testified that at about 9:45 p.m., Mr. D avis req uested a n attorne y. No furthe

r questio ns were

asked at that point.
Thereafter, Detecti ve Roland obtained additiona

l in f ormation linking Appellant to the murders of Lee and Ewing . Approximately one hour later, while Detective Roland was ty ping an arrest warran t, Appellant approached him and asked what he was doing. Detective Roland advised Appellant that he wa s ty

ping a c rimi nal homici de warrant for him, and Appellant stated that he wanted to talk.

After Appellant advisedDetective Roland that he wanted to talk to him, Appellant was taken to an inter view roo m, where he was re ad his Miranda rights. Appellant then signed a written waiver. The interview, including the reading of Appellant’s ri ghts, was videotaped. During the videotaped interview, Appellant stated that he wanted to cooperate. He advised that he did not commit the murders , but he had information about what occurred. He fir st stated that he was not present at the crime scene, but later recanted a nd stated he was present. He continued to deny, howe ver, that he had played any

role in the murders. He gave information reg arding the weapons used, the scene of the crime, the time of

the crime s, the manne

r in which the victim s were mu

rdered , and othe

r people present at the murders.

The ev i dence shows that during the time Appellant was detained a t the criminal justice center, he was pr

ovided with food and drink by the dete ct ives. Detectives also admitted that Appellant complained of his s tomach be ing upse t. Detect ives further admitted that Appellant advised that he was cold, and they provided him with a jacket. While at the criminal justice center, Appellant appeared tired at times and lay down to rest. Appellant asserts that as the detectives were gatheringevidence linking him to the crime, detectives made s t ateme nts wi thin his h earing r ange regarding the evide nce. Fu rther, A ppellant asserts that he was also specifically que stioned regarding4 Appellant had b een ho spitalize d for tw o da ys at Va nde rbilt H osp ital for ane mia as a result o f a spid er bite

app roxim ately ten d ays prio r to his arr est.
-22- some of the evidence after he had requ ested an

attorne y. T he detectives invo lved in

the investigation denied his assertion. Appellant’s atto rn eys arg ue that Appellant’s statements to police should be suppressed because all questi oning sh ould

have ceased when Appellant first reque sted an attorney . Appellant further argues that he was in a weake ned ph y sical condition because he was still experiencing the aftere ffects from a sp id er bite thathe rece ived a co uple of w eeks pri or to his a rrest. 4 Appellant asserts that his weakened phy sical condition from the spider bite, coupled with a lack of sleep and eatin g, rendered his statements involuntary . Appellant further argues that there wa s undue de

lay in taking him befor

e the mag istrate on the weaponscharg e, the ch arge f or which he was tr ansported to the criminal

justice c enter. A

ppellant also asserts that a rapidly intensify ing homicide investigation
was being conducted near his vicinity , and that the subtle remarks made by detectives amounted

to a tacit form

of questioning. Essentially, Appe llant’s attorneys ar

gue that the detectives’s actions amounted to an interr ogation. As a result of the foreg oing, Appellant advances the arg ument that his stat ement to the p olice was involuntary. The trial court, however, found that considering the to ta li ty o f t he ci rc um st an ce s, Ap pe ll an t’ s s ta te me nt wa s v ol un ta ry.
Our supreme court succinctly

enunciated the proper standard of re view in motion to suppre ss cases a s follows:

Becau se issues of whether a defendant was placed into custody, interrog ated, or volunta rily gave a confession are primarily issues of fact, we review these factual determinations by t

he trial c ourt acc ording t

o the standard set forth in State v. Odom , 928 S.W.2d 18 (Tenn. 1996). Under t his s tanda rd, “a t rial c ourt’ s find ings of fact in
a suppress ion hear

ing will b e upheld u

nless the evidence preponderates otherwise.” Questionsabout witness cre dibility and “re solution of

conflic ts in the evidence are matters entruste d to t he trial judge,” and the “testimony presented at trial may

be considered by

an appellate court in deciding the propriety of the trial court’s ruling
on a motion to s uppress. ” Our re view of a trial cou rt’s app lication o f law to the facts , however, is conducted under a de novo standard of review.

Statev. Walton , 41 S.W.3d 75, 81 (Tenn. 2001) (citations and footnote omitted), cert. denied , 534 U.S. 948, 122 S. Ct. 341, 151 L. Ed. 2d 258 (2001).

We will first ad dre ss whethe r Appella nt’s state ment shoul d be suppr

essed pur suant to Tennessee Rule of Criminal Procedure 5(a) as advanced by Appellant. Tennessee Rule of Criminal Procedu re 5(a) provides : Any person arrested except

upon a ca

pias purs uant to an indictment or presentment shallbe taken without unnecessary delay bef ore t he near

est appr opriate magistr ate5 Th is Court had previously ado pted the vo luntariness tes t by adopting t he Cipriano test in State v. Readus , 764 S.W .2d 770, 774 (Tenn. Crim. App. 198 8).
-23- of the county from whic

h the warrant

for arre st was issued, or the county in which the alleged

offense occurr ed if the arrest was made without a warrant unless a citation is issued pur suant to Rul e 3.5. If a person ar rested without a warrant is brought befo re a magi strate, an affidavit of complaint shall be filed forthwith. When an arrested person appears initially

before a magis trate, th

e magis trate sha

ll procee d in accordance with this rule.

It is without dispute that Appellantwas arrested and take n into cust

ody betwee n 11:00 a. m. and 12:00 p.m. It is further without dispute that Appellant gave a statemen t to the police at approxima

tely 12:00 a.m. and was then taken before a magistrate. Appellant asserts that this twelve to thirteen hour dela y in taking Appellant before a magistrate c onstituted unnecessary delay pursua

nt to Tennessee Rule of Criminal Procedure 5(a).

In State v. Huddleston , 924 S.W.2d 666, 670 (Tenn. 1996), our supreme court held that if an individua l is not brou ght bef

ore a ma gistra te within 72 hours, there has been “unnecessary delay.” We cannot f

ind that because

Appellant was not takenbefore a magistrate for twe lve to thirteen hours there was an unnecessary delay. More over, a co nfessio n obtained during a period of unnecessar y delay is not automatically suppressed. Id. ; see also State v. Carter , 16 S.W.3d 762, 769 (Tenn. 2000). Instead, a statement is to be excluded “only if an examination of the total ity of the circumstances reveals that the statement is not voluntarily g iven.” Huddleston , 924 S.W.2d at 670. To determine if a statement was voluntarily given, we must consider:

the age of the accused; his lack of e ducation or his inte

lligenc e level; t

he extent o f his prev ious experience with the police; the repeated and prolong ed nature of th e quest ioni ng; the length of the detention of the accused before he g ave the statement in question; the lack of any advice to the accuse d of his co nstitutiona l rights; whether there was an unnecessary delay in bringing him before a magistrate before he g ave the confession; whether theaccused was injured [or] intoxicated or drugg ed, or in i ll health when he gave the statement; whether the ac cused was deprived of food, sleep
or medical attention; whether the accused was phy sically abused; and w hether th e suspect was threatened with abuse.

Id. at 671 (quot ing People v. Cipriano , 429 N.W.2d 781, 790 (Mich. 1988)). 5

The trial cou

rt specif ically cited the above referenced fa ctors in its order. Based on the evidence present

ed at the hearing , the tria

l court fo und: the de

te c tives wer

e accom modating to Appellant’s needs; the Appellant was advised of his constitutional rights on two o c casions; Appellant waived his constitutional rights in an effort to exculpate himself from involvement in the murders ; Appellant’s demeanor indicated he was lucid and

in full control of his mental and physical facult ies; no eviden

ce reg arding

Appellan

t’s intelli gence

or educa tional lev el that would raise-24-

questions regarding the voluntariness of the statement; no indication that Appellant’s injury from the spider bite aff ected hi s decision making; and Appellant’s statement lasted approximately one hour and was not conducted in an abusive or coercive manner

. As a result, the trial court ruled that under the totality of the circumstanc es, Appellant’s statement was voluntary

. With regard to this issue, we conclude that there was no violation of

Tennessee Rule of Criminal Procedure 5(a). Moreover, we find that even if there was a violation, Appellant’s statement should not be excluded because it was voluntary under the totality of the c ircumstances.

Next we must consider whether there wa s a violati on of the F ourth Amendment that requires the suppression of Appellant’s statement. The Fourth Amendment require s a prompt judicial determination of proba

ble caus e as a

prerequisite to the extended detention of an individual after a
warran tless arrest. Gerst ein v. Pugh , 420 U.S. 103, 114, 125, 95 S. Ct. 854, 863, 869, 43 L. Ed. 2d 54, 65, 72 (19 75). The

United Sta

tes Suprem e Court has determined that absent a bona fide emergency

or extraordinary c ircumstance, a judicial determination of proba ble caus e is “pro mpt” if it occurs within 48 ho

urs. County

of Rivers ide v. McL

aughlin , 500 U.S. 44, 56-57, 111 S. Ct. 1661, 1670, 1 14 L. Ed. 2d 49, 63 (1991). The Supreme Court has e xplained that the probable ca us e determination does not pass constitutional muster simply because it occ urs within 48 hours. Id . If
a hearing is delayed unre asonably for the purpose of gathering evide nce to justify an arre st, a delay is simply for delay ’s sake or a delay is motivated

by i ll will ag ainst the a

rrested individua

l, then it may not pass constitutional muster. Id . We find that here, Appellant was taken before a magistr ate within 48 hours, and the determination of probable cause was not

delayed unr

easonably. The

refore, there was no violation of the Fourth Amendment and, therefore, no reason t o suppress Appellant’s statement pursuant thereto. Appellant also argues that his statement was not volunta rily given because after he

asserted his right to

counsel, the police began a tacit form of interrogation by

bringing incriminating evidence in front of him and conversing amongst themselves within his hearing range. Custodial in te rr og at io ns mu st be pr ec ed ed by Miranda warning s. Berke

mer v. Mc Carty , 468 U.S. 420, 434, 104 S. Ct. 313 8, 82 L . Ed. 2d 317 (1984); Miranda v. Arizona , 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. E d. 2d 694 ( 1966). Once the r ight tocounsel has been invoked, the interrogation must stop, unless the person re-initiates the conversation and expre sses a

desire to talk to the police. State v. O’Guinn , 786 S.W.2d 243, 246 (Tenn. Crim. App. 1989). “Interrog ation” encompasses an y “practicethat the p olice should know is reasona bly likely to evoke an incriminating response from
a suspect.” Rhode I sland v. I nnis , 446 U.S. 291, 301, 100 S. Ct. 1682, 1690, 64 L. Ed. 2d 297, 308 (1980).

At the suppression hearing, Appellant testified that as the detectives were gathering e vidence linking him to the crime, th ey made sta tements within his hearing range reg arding the evidence and specific ally

questioned him regarding some of the evidenc e after he had requested an attorney. The detectives involved in the inve sti gation d enied these allegations. According to the record, approxima

tely one hour passed between the time Appel la nt ass erte d his r ight to co unse l and

next requested to speak with Detective Roland. This Court has previously noted that “[t]he disclosure-25-

of incriminating evidence to a suspect . . . does not nece ssarily constitute inter rogation wi thin the meaning of Innis

. ” State v. Maraschiello , 88 S.W.3d 586, 603 (Tenn. Crim. App. 2000) (citing Shedelbower

v. Estelle , 885 F.2d 570, 573 (9th Cir. 1989) ; United States v. Vazquez , 857 F.2d 857, 861 (1st Cir. 1 988)). A

fter re viewing the rec ord, we a

gree with the tri al court

that ther e is n o evidence that the Appellant was coerced by any of the de

tectives into making the statement at issue. We find that the actions of the police do not constitute an interrogation under Innis

. With respec t to the re -initiatio n of conv ersation by A ppellant , the tria

l court sp ecifica

lly found that Appellant approached Detective Roland and initiat ed further conversation. The court noted that it accredited the testimony of Detective Roland onthis issue. The court next found that Dete ctive Ro land twice advised Appellant of his constitutional rights, and Appellant executed a written waiver of his rights before resuming the interview. The court found no e vid ence that Appellant was coe rced by any of the de tectivesinto initiating the subsequent communication or that Appellant was otherwise engaged in any discussions about the case prior to the Appellant’s request to resume the interview. Thus, th

e court r esolved t he confl icting te stimony

in favor of the de tectives , rather than Appellant . Weagree. Absent coerc ive activity by the police, we must conclude that the Appellant voluntarily initiated a dialogue with Detective Roland and made the statem ent at issue. See Marasc

hiello , 88 S.W.3d at 604. Moreover, Detective Roland twice advised A

ppellant of his Miranda rights once questioning re sum ed. Thereafter, Appellant made a knowing and intelligent waiver o f his Miranda

rights.
Further, we are not persuaded by Appellant’s ar

gument that his weakened phy sical condition from the spider bite, coupled wi th a l ac k o f s le ep an d e at in g, re nd er ed hi s s ta te me nt s i nv ol un ta ry. The trial court

found otherwise. As previously set forth, under the totality of the circumstances, the evidence does not pr

eponder ate ag ainst th e trial cou rt’s finding that Appellant’s statement was voluntarily made.

As a result of the foregoing, we conclude that the trial judge did not err in deny

ing the motion to suppress the Appellant’s statement. Accordingly , this issue is without merit. IV. Counsel’s Request to Withdraw from Representation

Prior to the trial of this case, Appellant’s attorney s, Niles Nimmo and Hershell Koger, filed
a motion to withdraw. However, the attorney s stated that due to ethical and profess ional oblig ations, they could not d isclo se the reason s wit hdrawa l was r equir ed. J udge Wya tt transfe rred the matter to Judge Wal ter Kurtz for a n ex parte hearing. Judge Kurtz held a hearing , and the transcript was pl aced under seal. Thereafter, Judge Kur tz issued a memorandum order deny ing the motion t o withdraw, also under seal. Appellant filed an application for interlocutory appeal in this court, which was denied because Appellant refused to unseal the application, as required by Tennessee

Rule of Appellat e Procedure 9(d). Niles Nimmo was subsequently allowed to withdra w because Appellant filed a post- c onviction

petition a lleging ineffe ctive as sistance

of counse

l by Mr. Nimmo in

a prior proceeding. Mr. Koger , however, continued representation of Appellant a tthe trial and continues to repre sent Appe

llant on a ppeal.6 Appellant has f iled a pro se reply brie f r eques ti ng t hat the tra nscr ipt and memor andum or der be u nsea led f or the limited purpo se of review of t his is sue alone. However, the seale d do cum ents are not a p art of the reco rd o n app eal. Mo reover, the Ap pellan t is r epresent ed by counsel in t he above-s tyl ed case, a nd it has long been the r ule t hat an Appell ant may not

be repr esen ted by couns el i n th is Courtand si mult aneous ly proceed pro se
. State v. Burkhart , 541 S.W.2d 365 , 371 (Te nn. 19 76) ; State v . Cole , 629 S.W.2d 915, 917-18 (T enn. Crim. App. 1981). Acco rdingly, it i s the respo nsibility of co unsel to file all plead ings in this ap pea l.

7 The Ap pellant’s application for permiss ion to appeal to the supreme court was consolidated wit h the appli cati on of Pa ul Denni s Rei d on t he s ame iss ue. The o pinion of the co urt was filed and pu blished as State v . Reid , 981 S.W .2d 166 (T enn. 1998).
-26- On appeal, Appellant’s attorney maintains that he is prohibited by ethical and professional considerations from unse aling the trans cript or m emorand um order . The State

asserts b ecause Appellant refuses to unseal the transcript and memorandum order , Appellant has not properly r

aised this issue for appeal. Moreover, the sealed transcript and memorandum order have not been included as a par t of the record on a

ppeal.

T e nnessee Rule of Ap

pellate P rocedur e 13(c) preclud

es this Cour

t from con sidering

facts outside the record. This Court has no basis to review Judge Kurtz’s ruling on the withdrawal issue, especially in lig

ht of the fact that

the seal ed trans cript an d order a re not before thiscourt. Further, Appellant’s attorneys have never asked

that the transcript and order be unsealed. 6 “Issues which are notsupported by arg

ument, citation to authorities, or appropriate referenc es to the record will be treated as wa iv ed in th is co ur t. ” T en n. Ct . C ri m. Ap p. R. 10 (b ). Ac co rd in gl y, this issue has been waived b y A

ppellant

. V. Notice of Intent

to Present Exper

t Testim ony of Menta

l Condition a

t Penal ty Phase Appel lant contends that the trial court erred in gra nting the State’s motion requiring Appellant to supply informat ion to the St

ate reg arding

mental he alth

issues that would be presented at the sente ncing phase of t

rial. Pretrial , the State

filed a M otion to Compel Discovery of Expert Te st im on y, pursuant

to Rules 12. 2 and 16 of

the Tennessee Rules of Cr iminal Proc edure. I

n its
mo tion, the State

request ed the co urt requ ire the d efense to file a w

ritten not ice of itsin tent t o introduce expert testimony relating to mental disea se or defect, or any other mental condition at the guilt or penalty phase

of the t rial. The court granted the State’s motion, and Appellant soug ht an extraordinary

appeal on the issue, which was granted. U ltimately, the issue was decide d by the supreme court in State v. Re id , 981 S.W.2d 166 (Tenn. 1998). 7

The supreme

court held that

a defendant is required to file a pre-tr ial notice of

his intent t

o present expert testimony rega

rding mental health condition as mitigation evidence at the sente ncing phase of a capital trial. On appeal, Appel lant asserts that the Supreme Court’s decision in Reid contravenes Rules 12.2 and 16 of the Tennessee Rules of Criminal Proce dure.

This Courtis without th

e author ity t o overrule the Supreme Court’s decision in Reid

. See Thomps on v. State , 958 S.W.2d 156, 173 (Tenn. Crim. App. 1997). The Supreme Court has8 Sergean t Hun ter had prev iously testified that he re trieved bullets tha t were re cov ered from M r. Ewin g’s

autopsy from th e Davidson County Medical Examiner’ s off ice.
-27- inherent power to make and enforce reasona ble rules of procedure. Reid , 981 S.W.2d at 170. The Reid decision set forth the contr olling la w on this is sue. M oreover, as Appellant was one of the parties who litig ated this issue in Reid , he is bound by the law of the case. See State v. Jefferson , 31 S.W.3d 558, 560-62 (Tenn. 2000). This issue is without merit. VI. Testimony of Dr. Levy Appellant filed a pretrial motion requesting that the court determine the proper scope of Dr. BruceLevy ’s testimony at trial. Specifically, Appe llant requested that Dr. Levy be prohibited from testifyingregar

din g the autopsies of the victims, as Dr. L evy did not perfor

m the autopsies. The autopsies were performed by assistant medica l examiners who were no longer employ ed in the Davidson County

Medical Examiner’s Office. D’Angelo Lee’s autopsy wa s performed by Dr. Ann Bucholtz, and Gre gory

Ewing’ s autopsy

was per formed b y D r. Geor

ge Mizell. The court ruled that if the State laid the p roper f oundation at trial, the autop sy r

eports wo uldbe admissible as substantive evidence under Tennessee Rule of Evidence 803(6) a s a business record, under Tennessee Rule of Evidence 803(8) a s a publi c record, and under Tennessee Code Annotated section 38-7- 110. Further, the court ruled that if the State laid the proper foundation for Dr. L evy’s testimony

as an expert, Dr. Levy would be p ermitted

to express his opinions in his field and to communicate to the jury that he relied upon the autopsy r

eports in forming his opinion.

Prior to Dr. Levy ’s testimony, Appellant objected, stating that because Dr. Le

vy did not personally re

trieve any bullets fr

om the bodies of the victims or see the sameperfor med, the St

ate could not establish

the prope

r chain o f custody

of the bullets. Appe

llant arg ued that t here wa s, therefore, a break in the cha in of custody of the bullets, and the c ourt should not p ermit

testimony regar ding the bullets. T

he State c ountere d that the absence of one pe rson’s te stimony

in the chain of custody does not in

validate the chain. Further

more, the State ar gued th at the court had pr

eviously ruled that Dr. Levy

would be permitted to testify base d on the busine ss recor ds and pub lic records exceptions to the hearsay r ule. The court allowed the bullets into evidence and stated again that it would allow Dr . Lev

y to testify. The cour

tcautioned the State, however, that it must establish the ch ai n o f c us to dy.

Dr. Levy testified that he did not perform the autopsies on the victims, but the office followed
a definite procedure for recove ring bullets from a body. He testifie d that whe

n they recove r a bulle t, they secure it, place it in a marked container, and lock i t in an evidence locker. Later, they tur n the evidence over to the police. He testified that the bullets recovered from Greg ory Ewing were marked withthe appropriate case identification number and had the in

itials G.M. on the env elope. H e could nottestify as to the h andwriting of the initials, but he noted that Dr. George Mizell performed Mr. Ewing’s autopsy. He further noted that the bullets recovered from Greg ory Ewing were turned over to Sergeant Hunter of

the Metro

Police De

partmen t. 8 Similarly, Dr. L

evy testified that the

bullets recovered from D’Angelo L

ee were placed in a container with the appropri a te case number and9 Offi cer Merril l had previous ly t esti fied t hat he r etri eved the bullets that were recov ered d uring the autopsy of D’Angelo Lee from th e medical examiner’ s off ice.
-28- turned over to the Metro Police De partmen t. 9 Dr. Levy

admitted that he did not watch the autopsies
as they were pe rformed ; theref

ore, he c ould not te stify

based on his persona

l k nowledge that the bullets that had been placed into evidence were in fact bullets recovered f rom the victims. He stated that his testimony was based upon procedures followed in the medical examiner’s office. Following Dr. Le

vy’s testimony , Appellant renewed his prev ious objection. The court ruled that basedon the tes timony from the p olice of

ficers r egard ing ret rieval o f the bulle

ts from the medical examiner’s office and the testimony of Dr. Levy

that the proper procedure for secur ing and identifying the bullets ha

d been followed, the proper chain of custody had been established by the State. The cour

t further ruled the re was n o suspicio n surrounding the authenti city

of the bullets.

The autopsy reports a

re admissible hearsay

under Rules 803(6) and 803(8) of the Tennessee Rules of Evidence. See also State v. Mario Hawkins , No. 01C01-9701-CR-00014, 1998 WL 352095, at *6-7 (Tenn. Crim. App. at Nashville, July 2, 1998). F urther the a utopsy reports are admissible

as a public document pursuant to Ten nessee Code Annotated section 38-7-110. The court did not err in allowing Dr. Le vy to testify

in this regard.

It is a fundame ntal rule of law tha

t the State must estab lish an unb

roken ch ain of cu stody

in order to present physical

proof int o evidence. State v. Sc ott , 33 S.W.3d 74 6, 760 (Te nn. 2000) ; State
v. Holbrooks , 983 S.W.2d 697, 701 (Ten n. Crim. Ap

p. 1998). Howeve

r, ever y w itness that handled the evidenc e inthe chain is not re quired to testify in order to establish a la ck of tampering with the evidence. Rather, the State is requi red to reason ably establish the ident ity o f the evi dence a

nd its in te gr it y. Scott , 33 S.W.3d a t 760; Holbrooks , 983 S.W. 2d at 701. This Court reviews the trial court’s dec ision on whether the State has established the proper chain of c ustody of phy sical evidence under an abuse of discre tion standard.

Based upon the evidence in the record and the trial court’s ruling on the same, we conclude that the trial court did not abuse

its disc retion in determining that the State had met its burden of establish ing the p roper chain of custody . This issue is without me

rit. VII. Victim Impact Evidence Appellant next argues on ap

peal tha t the cour t erred in allowin g victim impact tes timony to be admitted at the sentencing hearing throug h the testimony of the

victim’s mo th er s. Sp ec if ic al ly, Appellant argues that victim impact evidence is irrel evant at a capital sentencing hea ring and thereforeunconstit

utional. Appellant further contends that he was denied his right to confront the victims’ children, as the mothers of the victims testified concerning the victims’ childre n.
Victim impact evidence has been declared constitutional by the United States Supreme Court and the Tennessee Supreme Court. Payne v. Tenne ssee , 501 U.S. 808, 827, 111 S. Ct . 25 97, 115 L.-29-

Ed. 2d 720 (1991); State v. Nesbit , 978 S.W.2d 872, 889 (Tenn. 1998), cert. denied , 526 U.S. 1052, 119 S. Ct. 1359, 143 L. Ed. 2d 520(1999). Moreover, Appellant’s arg ument that he was denied the right to confront the victims’ young children is similarly without merit. First, Appellant made no objection to the testimony of the victims’ mothers that their g rand chil dren were confused and disturbed by t

heir fa thers’ r especti ve death s. Appella nt had the opportuni

ty to rebut any evidenc e in this regard, but he

chose no t to do so. H

is decisio n not to cha

llenge the testim

ony of the victims’ mothers on this issue does not constitute adenial of confrontation. See Nesbit , 978 S.W.2d at 889- 90 (citing Tenn. Code Ann. § 3 9-13-204( c) (1997) and explaining that the prosecution is allowed to introduc e any

evidenc e that is r

elevant to the issue

of punishm

ent, as lo ng as th e defendant is allowed a fair opportunity to rebut a ny hearsa y statements so admitted). Acc ordingly, this issue is without me

rit. VIII. Sufficiency of the Evidence Ap pellant argues that the evidence is insufficient to support the finding s of guilt beyond a
reasona ble doubt. Appellant relies primaril y on the fac t that the e

vidence was circ umstantia l. This issue is without meri

t. In determining

whether there is s ufficie

nt evidence to supp ort the jur y’ s verdic t, this Court must determine whether

a rational trier of fact could have found the essential elementsof the cr ime beyond a reasonable doubt. T enn. R . App. P. 13 (e); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985), cert. denied , 475 U.S. 1031, 106 S. Ct. 1240, 89 L. Ed. 2d 348 (1986)

. Moreover, this Court cannot re-evaluate the evidence or substitute its infere nces for those drawn by

the trier of fact. State
v. Buggs , 995 S.W.2d 102, 105 (Tenn. 1999). Rather, this Court must view the evidence in the light most favora ble to the Stateand afford the State all the reasonable and le gitimate inferences that can be drawn from the evidence. Id

. Based on the record before this Court and viewing the e vidence in the light

most favo

rable to the State, this Courtfinds t hat the evidence is sufficient to support the jury ’s verdict of guilt of Appellant for two c ounts of f

irst deg ree mur der, two counts of especially

aggravated kidnapping , and two count s of espe cially

aggr avated r obbery , bey ond a rea sonable d oubt. This i ssue has n o merit. IX. and X. Sufficiency of Aggravating Evidence

A ppe llantasserts that the proof is insufficient to support the jury ’s finding that the aggravating

circumstances outweighed any mitigating circumstances bey ond a reasonable doubt and that the eviden c e at trial and sentencing was insufficient to support the jury ’s finding that the aggravating f

actors were established bey ond a reasonable doubt.

In thi s case, t

he jury found the

existence of three aggr avating factor s: (2) The defendant was previously convicted of one (1) or more felonies, other tha n the present charge, whose statutory elements involve the use of violence to the person;-30-

(6) The murder was committed for the purpose o f avoidin g, interfering with, or preventing a lawful arrest or pr osecution of the defendant or another; and (7) The murder was knowingly committed, solicited, d irected, or aided by the defenda nt, while the defenda

nt had a su

bstantial rolein committing or att

empting to commit, or was fleeing after having a substantial role in committing or attempting to commit , any first deg

ree murder, arson, rape, robbe ry, theft, kidnapping , aircraft pi ra cy, or unlawful throwing, placing or dischar ging of a destructive device or bomb. Tenn. Code Ann. §§ 39-13-204(i)(2), -204(i)(6), and - 204(i)(7) (Supp. 2001).

The evidence is uncontroverted that Appellant had a prior

conviction for first degree murder

. This Court has already

determined, supra , that

despite th

e fact th at Appell ant was a juvenile at the time he committed the prior offense, the conviction can be conside red by the jury

as an aggrava

ting circumstance in a su bsequ ent cap ital case. T hus, A ppell ant’s argu m ent with r egard to this aggravating f

actor is without merit. Aggravating f

actor (i)(6) is supported by Antonio Cartwrig ht’s testimony. Mr. Cartwrig ht testified that Appe

llant told a

group o f people

that he would have to kill Lee and Ewing because the two men knew them a

nd knew w

here the y liv ed. This is sue is with out merit. Aggravating

factor (i)(7) i s supporte d by

the testim

ony of Antonio

Cartwrig ht, Dimitri us Martin, and Chris Loy al. Each of these witnesses testified that the murders of L ee and Ewing were committed during the robbery and kidnapping of the victims. As a result, the evidence is sufficient to support the jury’s finding with respect to this aggravating circumstance.

The evidence is further sufficient to support the jury ’s determination that the aggrava tin g factors outweighed the mitigating factor s beyond a reasonable doubt. Appellant presented severa l witnesses on his behalf during the sentencing hea ring. Appellant

argue s that his pr

oof reg arding

his cultural and fami ly u

pbringing and c ircumsta

nces outw eighs th

e agg ravatin g fact

ors. Howe

ver, this Court finds that based on the evidence in the record, this issue is without merit.

XI. Constitutionality of Tennessee’s Death Penalty Statute Appellant contends that Tennessee’s Death Penalty statute is unconstitutional in nineteen respec ts. He admits , howeve r, that un der cur

rent ca se law, the s tatute me ets const itutional s tandard s. Appellant fails to c ite to any ca se law or other authority to support his contention that Tennessee’s death penalty statute is unconstitutional. I n fact, he m akes no argume nt whatsoe

ver. Und er Rule 10(b) of the Rules of C ourt of Criminal Appeals, Appellant has waived this issue. Moreover, as Appellant admits, the

death pe nalty statute ha s repea

tedly been held constituti onal. See e. g. , State
v. Keen , 31 S.W.3d 196, 233 (Tenn. 2000), cert. denied , 532 U.S. 907, 121 S. Ct. 1233, 149 L. Ed. 2d 142 (2001 ); State v. Nesbit , 978 S.W.2d 872, 902 (Tenn. 1998), cert. denied , 526 U.S. 1052, 119-31-

S. Ct. 1359, 143 L. Ed. 2d 520 ( 1999); State v. Vann , 976 S.W.2d 93, 117 (Tenn. 1998), cert. denied , 526 U.S. 1071, 119 S. Ct. 1467, 143 L. Ed. 2d 551 (1999). Appellant contends also that the aggr avating factor s applied

in this case

are unc onstitution al. He concedes, however, that the re levant factors are facially constitutional under current law. Further, Appellant contends that agg ravating factor (i)(2) is not applica ble to Appellant because Appellant’s prior felony

conviction was imposed after he was arrested on the charg es in this
case. Our supreme court reaffirmed in Stat e v. Ho dge s , 944 S.W.2d 346, 357 (Tenn. 1997), cert. denied , 522 U.S. 999, 118 S. Ct. 567, 139 L. Ed. 2d 407 (1997), that if a prior conviction is received before the sente

ncing hearing , then fa

ctor (i) (2) is ap

plicable . Therefore, th

is issue is without merit.
Next, Appellant conten ds t hat factors (i)(6) and (i)(7) over lap and therefore do not sufficie ntly narro w the class of death-eligible defenda nts in murder cases. Basically , Appellant argues that the factors have a similar purpose, to prevent killings that are exceedingly reprehensible, and therefore fail to narr

ow the class of death-eligible defendants in murder cases. However, the United States Supr eme Court has rule d that the

proper q uestion is w

hether t he fact ors “ge nuinely
narrow the class of persons eligible for the death penalty .” Arave v. Creech , 507 U.S. 463, 474, 113 S. Ct. 1 534, 1 542, 1 23 L. Ed. 2d 188 , 200 ( 1993) (quot ing Zant v. Stephens , 462 U.S. 862, 877, 103 S. Ct. 2733, 77 L . Ed. 2d 235 (1983)). Only if the aggravating circumstance applies to every defendant who has committed the particular crime does the aggra

vating factor

fail to na rrow the class of death-e ligible def

endants. Arave , 507 U.S. at 474. In this case, the proof at tria l showed that Appellant planned t o kidnap a

nd rob the victims and that he planned to kill them because they

knew him and could identify him. Both factors (i)(6) and (i)(7) are applica ble in this instance. The fact that two aggr

avating factor s are ap

plicable to the same

situation d

oes not re

nder th e m unconstit utional.

XII. Refe rences to Other Witnesse s’ Testimony by the Prosecution During Cross-Examination Appellant argues that it was error for the court to allow the State’s attorney to cr oss-examine defense witnesses by ref

erring to the testimony of other witnesses and to contrast their testimonies in an argumentative f

ashion. A ppellant concedes that he did not raise this issue in his motion for new trial, but he asserts that this Court should review this issue under the plain error doctrine.

To review an issue under the plain error doctr ine, five fa ctors must be present: the record must clearly e stablish what occurred in thetrial court; a clear and unequivocal rule of la w must have been breached; a substantial right of the defendant

must have been adversely

affected; the accused didnot waive the issue for tactical reasons; and considera tion of the error i s ne cessary to do substantial justice. State v. Adkisson , 899 S.W.2d 626, 641 (Ten n. Crim. Ap

p. 1994); see also

Tenn. R. Crim. P. 52(b). This Court does not find that a clear and unequivocal rule of law wa s breached. Furt her, the example s advanc ed by Appellan

t in his brie

f demonst

rate tha t the pros ecuti on wa s-32-

attempting to test the

veraci ty o f the witness es’ testimony . These matters are within the sound discreti on of the t

rial cou rt, and w e find no e

rror. Ac cording ly, this issue i s without me rit.
XIII. Cumulative Effect of Errors

Fi na ll y, Appellant alleges that the cumulative effect of the errors in the tria

l court effectiv ely deniedhim

a fair trial. Again, Appellant failed to raise this issue in his motion for new trial. I ssues notpresented to the trial court in a motion f

or new tr ial are w aived on a

ppeal. T enn. R. Ap

p. P. 13. Notwi thst andin g, this Court h as found no merit in A ppellant ’s issues o n appea l; therefore, there can be no cumulative effect. This issue is without merit.

XVII. Proportionality Review

Fi na ll y, the sente

nces of d eath ar e not dispropor

tio nate to the penalty imposed in similar
cases. In revi ewing a defendant’s sentenc e of death for first degree murder, “the reviewing court shall d etermine whether . . . the sentence of de ath is excessive or disproportionate to the pena lt y imposed in similar cases, considering both the nature of the cr ime and the defendant.” Tenn. Code Ann. § 39-13-206. Our supr eme cour t has expla

ined comp arative

proporti onality

review a s follows: In conducting a comparative proportionality review, webegin

with the presumption that the sentence of death

is proportional with the crime of first degree murde r. State
v. Hall , 958 S.W.2d 679 (Tenn. 1997)

. A se ntence of death may be found dispropor tionate if the ca se being

revie wed is “plainly lacking in circumstances consistent with those

in similar c ases in

which the

death pe nalty has prev iously been imposed.” Id . (citin g State v. Ramsey , 864 S.W.2d 320, 328 (Mo. 1993))

. A sentence of deat

h is not disproportionate merely because the circumstances of the offense are similar

to those of

another offense for which a def endant has received a life sentence. State v. Bland , 958 S.W.2d 651 (Tenn. 1997 ) (cit ing State v. Carter , 714 S.W.2d 241, 251 (Tenn. 1986))

. Our inquiry, there fore, does no t require a fi nding tha t a sentence “less than death was never imposed in a case with similar characteristics.” Bland , 958 S.W.2d at 665

. Our duty “is to assure tha tno aberrant death sentence is affirmed.” Id . (cit ing Statev. Webb , 238 Conn. 389, 680 A.2d 147, 203 (Conn. 1996)).

Our proporti onality

review i s neither

a rigid nor an objective test. Hall , 958 S.W.2d at 699

. There isno “mathe

matical f ormula or scientif ic grid,” and we

are not bound to consider

only cases in which the

same ag grava

ting cir cumsta nces were found applica ble by a jury

. Id .; St ate v. Brimmer , 876 S.W.2d 75, 84 (Tenn. 1994)

. This Courtconsiders many va riables when choosing and comparing ca ses
. Bland , 958 S.W.2d at 667. Among these variables are: (1) the means of death; (2) the manner of death (e.g., violent, torturous, etc.); (3) the motivation for the killing; (4) the place of death; (5) the s imilarity

of the victims’ circumstances including age , physical and-33-

mental conditions, and the victims’ treatment during the killing; (6) the absence or presenceof premeditation; (7) the absence or prese nce of provocation; (8) th e absence or presence of justification; and (9) the injury to and effects on non-decedent vict ims. Id.; Hall , 958 S.W.2d at 699

. Factors considered when comparing characteristics of defe

ndants inc lude: (1) the defe ndants’ p rior criminal record or prior criminal activity; (2) the

defenda nts’ ag e, race , and ge

nder; (3 ) the def

endants’ mental, emotional or

physical condition ; (4) the d

efenda nts’ involv ement or

role in the murder; (5) the defendants’ coopera tion with authorities; (6) the d efendan ts’ remorse; (7) the defendants’ knowledge of helplessness of victim (s); and (8) the defendants’ capacity

for rehabilitation. Id.

State v. H all , 976 S.W.2d 121, 135 (Tenn. 1998).

We have compared the circumstances of the present case with the circumstances of similar first degre e murder

cases and conclude that the penalty imposed in the pre sent case is not disproport ionatet o the penalty imposed in similar case s. See e.g. , State v. Re id , 91 S.W.3d 247 (Tenn. 2002) (imposing the death pen alty where the defendant shot two victims during a robbery upon finding aggrava

ting circumstances (i)(2), (i)(6) and (i)(7), despite substantial evidence of the defendant’s troubled

childhood

); State v. Sim s , 45 S.W.3d 1 (Ten n. 2001) (imposing the deat h penalty upon finding aggrava

ting circumstances (i)(2), (i)(6) a nd (i)(7) where

the twenty-four

-year ol d Africa n-Ame rican d efenda nt sh ot th e vict im in the he ad and other parts of the body duri ng a burglary ); State v. H all , 976 S.W.2d 1 21 (Tenn . 1998) (imposin g the de ath penalty upon finding aggravating

circumstances (i)(2), (i)(6) and (i)(7) where defendants murdered their vi ctims b y shooting and stabbing them and stole the victims’ automobile); and State v. Bates , 804 S.W.2d 868 (Tenn. 1991) (im

posing th e death penalty upon finding

aggravating circumstances (i)(2), (i)(6) and (i)(7) where the defenda nt to ok the victim to a wooded area and shot her in the head). A fter reviewing these cases and others not speci fically cited, we are of the opinion that th

e penalt y imposed by t

he jury in this cas e is not disp

roportio nate to the penalt

y imposed by the

jury for similar crimes.
CONCLUSION

In accordance with Tenn. Code Ann. § 39-13-206( c), we have considered the entire record and conclude that the sentence of death has not been imposed arbitra rily , that the

evidenc e support s the jury’s finding

of the statutory circ

umstances, that

the evidence supports the jury ’s finding that the aggravating circum sta nces outw eigh the mitigati ng circ

umstance s bey ond a rea sonable d oubt, and that the sentence is not disproportionate. We have also reviewed all issues raised by the appella nt. We find no error. As a result, the judgments of the trial court and the sentence of death imposed by the jury

are AFFI RMED.

___________________________________

DAVID H. WEL

LES, JUDGE