# FILED
October 5, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk 

### IN THE SUPREME COURT OF T ENNESSEE

AT KNOXVILLE

FOR PUBLICATION STATE OF TENNESSEE, ) Filed: October 5, 1998 ) Appellee, ) Knox County ) v. ) Hon. Mary Be th Leibo witz, ) Judge CHRISTA GAIL PIKE, ) ) Appellant, ) Supreme Court ) No. 03S01-9712-CR-00147

FOR APPELLANT : FOR APPELLEE: William C. Talman John Knox Walkup Knoxville, Tennessee Attorney General & Repor ter Julie A. Martin Michael E. Moore Knoxville, Tennessee Solicitor General Kathy Morante Deputy Attorney General Nashville, Tennessee Randall E. Nichols District Attorney General Sixth Judicial District Knoxville, Tennessee William H. Crabtree and Sally J. Helm Assistant District A

ttorneys General Knoxville, Tennessee



## O P I N I O N

TRIAL COURT AND COURT OF CRIMINAL APPEALS AFFIRMED. DROWOTA, J.1 "Whenever the death penal ty i s imposed for fi rst degree murder and when the judgment has become final i n the tri al court,the defendant shall hav

e the rig ht of dir

ect appeal f rom the trial court to the Court of Crim inal Appe als. The affirma nce of th e convic tion and the senten ce of de ath shall be aut

omaticall y revi ewed by the Tennessee Supr eme Court. Upon the affi rmance by the Cou rt of C rim inal A ppe als, th e cler k sh all doc ket th e cas e in the Sup rem e Co urt an d the cas e sha ll procee d in acco rdance with the T ennes see R ules of A ppellate P rocedu re.” -2- In this capital case, the defendant, Christa Gail P ike, was convicted of premeditate d first degree murder and conspiracy to commit first degree murder. Followinga sentencing hear ing on th e conviction for first degree murder, the jury fou n d two aggravating circumstances: (1) “[t]he murder was especially heinous, atrociou s or cruel in that it inv olved torture or seri ous physical abuse bey ond tha t necessary to

produce death;” and (2) “[t ]he murder was committed for the purpose of avoidi ng, int erfering with or pr eventing a lawful ar

rest or prosecution of the defendant or an other .” Tenn. Code Ann. § 39-13-204(i)(5) and (6) (1997 Repl.). Finding that th e two aggravati ng circumstances outw eighed mitigating ci rcumstances beyond a reasonable doubt, the jury sentenced the defendant to death by electrocution. With respect to the defen dant’s conviction of conspiracy to commit first degree murder, the trial judge imposed a consecutiv e twenty-five-y

ear sentence.

On direct appeal to

the Court of Criminal Appeals , the defendantchallenged both her convictions and sentences, raising eight claims of error. After fully considering the defendant’s claims, the Court of Criminal Ap peals affirmed the trial court’s judgment. Thereafter, pursuant to Tenn. Code Ann. § 39-13-206(a)(1) ( 1997 Repl.), 1 the case was docketed in this Court.

The defendant raised numerous issues i n this Court, but after carefully examining the entir e record a nd the la w, including the thorough opinion of the Court2 Tennessee Supreme Court Rule 12 provi des in pert inent part as foll ows: “Prio r to the setting of oral argument, the Court shall review the record and briefs and c onsider all errors assigned. The Court may enter an order

designati ng those issues i t wishes addre ssed at oral argumen t.” -3- of Criminal Appeals and the briefs of thedefendant and the State, this Court ent ered an Order on July 6, 1998, l imiting review at oral argument to three issues. See Tenn. S. Ct. R. 12. 2 The case was heard at the September, 1998, term of this Court in Knoxville.

After reviewing

the record, we have determined that none of the alleged errors have merit. Moreover, the evidence supports the jur y’s findings as to the a

ggravating and mitigating circums tances, and the sentence of death is not ar bitr ary or disproportionate

to the sentence imposedin similar cases, cons idering the nature of the crime and the defenda nt. Accordingly, the j udgment of the Court of Criminal Appeals upholding the defendant’s c onvictions and sentences i s affirmed.

FACTUAL BA

CKGROUND The proof presented by the State at the guilt phase of the trial established that on January 11, 1995, the defendant, Chr ista Gail Pike, a stu dent a t the Job Corps Center in Knoxville, tol d her

friend Kim Iloilo, who w as also astudent at the fa cility, that she intended to kill another student, Colleen Slemmer, becaus e she “had just felt mean that day. ” The next day, January 12, 1995, at approximately 8:00 p.m., Iloilo observed Pike, along

with Slemm e r, and t wo other Job Corps students, Shadolla Peterson and Tadaryl Shipp, Pik e’s boyfri end, walking away from the Job Corps-4-

center toward 17th Street. At approximately 10:15 p.m., Iloilo o bserved Pike, Peterson, an d Shipp retur n to the Cente r. Slemmer w as not with them.

Later that night, Pike went to Iloilo’s room and told Il oilo that shehad just killed Slemmer and that she had brought back a piece of

the victim’s skull as a souvenir. Pike showed Iloilo the piece of skull and told her that she had cut the victim’s throat six times, beaten her, and thrown asphalt at the victim’s head. Pik

e told Iloilo that the victim had begg e d “them” to stop cutting and beating her, but Pike did no t stop because the victim continued to talk. Pike t ol d Iloilo that she had thrown a large piece of asphalt at the victim’s head, and when it broke into smaller pi eces, she had thrown those at the victim as wel l. Pike told Iloilo that a meat cleaver

had been used to cut the vi ctim’s ba ck and a bo x cutter ha d been us ed to cut her throa t. Finally, Pike sa id that a pentagram had been carv ed onto the victim’s forehead an d c hest
. Iloilo said that Pike was danci ng in a circle, smil ing, and singing “la, la, la” while s he related these d etails ab out the m urder. W hen Iloil o saw Pike a t breakf ast the n ext morning she asked Pike what she had done with the piece of the victim’s skull. Pike replied that it wasin her pocket and then said, “ And, yes, I’m eating br

eakfast with it.”

During a class later that morning, Pike made a similar statement to Stephanie Wilson, another Job Corps student. Pike pointed to brown spots on her shoes and said, “thatain’t mud on my shoes, that’s blood.” Pike then pulled a napkin from her pocketand showed Wilson a piec e of bo ne which Pike said w as a piece of Slemmer’s skull. Pike also told Wilson that she had slashed Slemmer’s throat six times and had beaten Slemmer in the head w ith a rock. Pike told Wilson that the-5-

victim’s blood and brains had been pouring out and that she had picked up the piece of skull when she left the sce ne.
Though neit her Ilo ilo nor Wilson immediately reported P ike’s statements to police, on the day after the murder, January 13, at approxi mately 8:05 a.m., an emplo yee of the University o f Tennessee Grounds Department, discov ered Slemmer’s semi-nude, slashed, and badly beaten body

near the greenhouses on the agriculturalcampus. He testified that the body was so badly

beaten that he had first mistaken it for

the corpse of an animal. Upon clo ser inspection, he saw the victim’s c loth es and her nude breast and realized it was the body of a human fema le. He immediately notified law enforcement officials.

Officers from the Knoxville Poli ce Department and the U.T. Police Department were summoned to the scene. Officer John Terry J ohnson testified at trial that the body he found was lying on

debris and was nude from the w aist up. Blood anddirt covered the body and remaining clothing. The victim’s head had been bludgeoned. Multiple cuts and slashes appeared on h er torso. Officer Johnson stated that he thoughthe was looking at the victim’s face but he could not be sure because it was extremelymutil ated . Johnson removed all ci vilians from the area and sec ured the scene sur roundin g the body.

As other officers arrived, they began securing the crime are a. As off icers discovered other ar ea s of blood, articles of clothin g, footprints, and broken foliage, the crimescene tripled in siz e, eventually encompassi ng an area 100 feet long by 60 feet wide. The crime scene was w et and muddy, and there was evidence of a scuffle,-6-

with trampled bush es, hand and kn ee prints in the m ud, and drag marks . A large pool of b lood was f ound abo ut 30 fe et from t he victim’ s body.

The victim’s body w

as actually lying

face down on a pile of deb ris. When office rs turned the body over, they discovered that the victim’s throat had

bee n slashed. A bloody rag was around her neck. Detectiv e Donald R. C

ook, of the U.T

. Police Depa rtment , accompanied the body to the morg ue. He observed the body afterit had been cleaned and noticed that a five pointed star in a circle, commonly known as a pentagram, had been carved onto the victi m’s chest.
Randy York, a criminal in

vestigator with the Knoxville Police Department, b egan investigating this case on January 13, the day the victim’s body w

as discovered. York sep arately interviewed the defendant and Shipp at the Knoxville Police Department on January 14th. Investigator Yor k advised defendant Pike of her Miranda rights, but she

chose to waive them and make a statement. Pike explaine d in detail how the killi ng had occurred
. Pike’s statement was t ape-recorded and transcribed in some forty-six pages. Copies of the transcrip tion were given t

o the jury, and the jurors were allowed to l isten to the tape through indi vidual headphones.

In her statement, Pike said that she and Slemmer had been having pr oblems forsome time. Pike claimed to hav e awakened onenight tofind Slemmer standing over her with a box cutte r. Pike told Investi gator York that Slemmer had been “trying to get [her] boyfriend” and had been “running her mouth” ev erywhere. Pike s

aid that Slemmer had deliberately provoked her because Slemmer realized that Pike would-7-

be terminated from theJob Corpsprogram the next time she became involved in a fight or similar inci dent.

Pike claime d that sh e had not planned to kill Slemmer, but she had instead planned only to fight Slemmer and let her know “to leave me the hell alo ne.” However, Pike admitted that she had taken a box

cutter and a miniature meat cl eaver with her when she and the vi ctim left the Job Corps Center. Pike sai d she ha d borrowed the mi niature meat cleaver, but refused to i dentify the person who had loaned it to her.
According to Pike, she asked Slemmer to ac company her to the Blockbuste r MusicStore, and as they wer e walking, Pike tol d Sl emmer that she had a bag of “weed”hidden i n Tys on Park. Though Pike refused to name the other parties involvedin the incident, she said the group began walking toward the U.T. campus. Upon arriving at the s

team plant on U.T.’s agricu ltural campus, P ike and Slemmer exchanged words. Pike thenbegan hitting Slemmer and banging Slemmer’s head on her knee. Pike threw Slemmer to the ground an d kicked he r repeate dly. According to Pike, asshe slammed Slemmer’s head against the concrete, Sl emmer repeatedly asked, “Why are yo u doing this to me?” When Slemmer threatened to report Pike so she would be termi nated from the Job Corps program, Pike again repeatedly ki cked Sle mmer in the face and side. Slemmer l ay on the ground and cried for a time and then tried to run aw ay, but another person w ith Pike caught Slemmer and pushed her to the gr ound.-8- Pike and the other person, who Pike ref erred to a s “he,” he ld Slemm er down until she stopped struggling , then dragged h er to ano ther area where Pike cut Slemmer’s stomach with the box cutter. A s Slemmer “screamed and screamed, ” Pike recoun ted how she began to hear voices tel ling her that she had to do something to prev

ent Slem mer from t

elling on her an d sendin g her to prison fo r attempted murder.

At this point Pike said she was just looking at Slemmer and “j ust watching her bleed.” When Slemmer rolled over, stood up and tried torun away again, Pi ke cut Slemmer’s back, “the big long cut on her back.” Pike said Slemmer repeatedly tried to get up and run. Pike recounted how Slemmer bargained for her life, begging Pike to talk toher and telling Pike that if she would just let her go, she would walk back to her home in Florida without returning to the Job Cor ps fac ility for her belongings. Pike told Slemmer to “shut up” bec ause it “was harder to hurt somebody when they’re talking to you.” P ike said the more Slemmer talk ed, the more she kicked Slemmer in the face.

Slemmer asked Pik e whatshe was going to do to her, at which point Pike thoughtshe heard a noise. Pike left the scene to check out the surrounding area to make sure no one was around. When she returned, P ike began cutting Slemmer across the throat. When Slemm er continued to talk and beg for her lif e , Pike cut Slemmer’s throat several other times. Pike said that Slemmer continued to talk and tried to sit up even though her throathad been cut severaltimes, and that Pike and the other person would push her back on the ground.-9- Slemmer attempted to run away again, and Pi ke threw a rock which hit Slemmer in the bac k of the head. Pike stated that “the other person” also hit Slemmer in the head with a rock. When Slemmer f ell to the ground, Pike continued to hit her. Eventually

Pike said shecould hear Slemmer “breathin g blood in and out,” and she could see Slemmer “jerk ing,” but Pike “kept hi

tting her and hitting h er and hitting her.” Pike eventuall y asked Slemmer, “Coll een, do you know who’s doing this to you?” Slemmer’s only response was groaning noises. At this point, Pike said she and the other person each grabbed one of Slemmer ’s feet and dragged her to an area nea r so me trees , leavi ng her body on a pile of d irt and

debris . They l eft Slemmer’s clothing in the surroun ding bushes. Pike said the episode lasted “for about thirty minutes to an hour.” Pike admitted that she and the other person had forced the victim to remove her blouse and bra during the incident to keep Slemmer from running awa y. Pike also admitted that she had removed arag from her hair and tied it around Slemmer’s mouth at one po int to prevent Slemmer from talking. Pike denied carvinga pentagram in the victim’s ches t, but said that the other pers on had cut the victim on her ches t.

After disposing of Slemmer’s body, Pike and the other person washed their hands and shoes in a mud puddle. They di scarded the box cutter, and Pike returned the miniature meat cleaver to the person at Job Corps from w hom she had borrowed it. Pike never identified that indiv idual. Pike told Inves

tigator York that the bloodstained jeans she had worn during the incident were still in her

room. She said they were covered in mud because she had rubbed the mud from the bottom of her shoes onto the jeans to conceal the blood. Pike also admitted to Investigator York that she had discarded two forms of identification belonging to the victim andthe victim’s black-10-

glovesin a trash can at a Texaco s tation on Cumberland Avenu e. Pi ke gave Investigator

York consent to search h er room and then accompanied him to the Job Corps Center. From there Pike retraced her steps, describing w

hat had occurred on the night of the killing. Investigator York testified that Pike eventually directed him to the exact location whe re the victim’s body was found.

After Pike’s statement was played for t he jury, the State introduced pic tures of Pike and Shipptaken at the Knoxville Pol ice Department on the day the statement was given, Januar

y 14, 1995, two days after the murder. In the pictures, both Pike and Shipp were wearing pentagram necklaces.

Mark A. Waggoner, an officer with the Knoxville Poli ce Department, testified that he had retrieved a pair of black gloves and tw o of Slemmer’s I.D. cards from the Texaco station on Cumber land Avenue. These items were also made exhibits. Another officer, Lanny Janeway, used a chart to illustrat e each of the locations where blood or evidence was found. P hotographs of bloody chunks o f asphalt, blood drippings on leaves, andpools of blood were introdu ced into evidence. The bloody piece of asphalt and the victim’s bloody clothing w ere also introduced into ev idence.
Special Agent Raymond A. DePri est, a forensic scien tis t employed by the Tennessee Bureau of Investigation, t estified that he had received blood samples taken from the shoes and clothi ng of Pike and Shipp. Those items that he determined had human bl ood o n them were sent to the DNA unit. Margaret Bush, a n employe e of the Tennessee Bureau of Investigation assigned to the DNA unit, testified thatshe had been unable to perform a DNA analysis on the blood taken from-11-

the shoes of Pike and Shipp, but she had determined that the blood samples taken from the cloth ing of both Pi ke and Shipp ma tched the DNA profile of th e victim.

Dr. Sandra Elkins, the Knox C ounty Medical Examiner, per

formed the autopsy on the victim, who was later identif ie d by dental records as C olleen Slemmer, a nineteen-year-old Job Corps s tudent . Dr. Elkins descri bed the victim’s body as covered with dirt and twi gs. Slemmer was nude from the waist up clothed only with jeans, socks, and shoes. After rem oving the vic tim’s clo thing and cleaning t he body, Dr. Elkinshad attempted to catalog the sla sh and stab wounds on the victim’s torso byassigning a letter of the alphabet. There were so many wounds that eventually Dr. Elkinsdecided to catalog only the most s erious and major wounds. Dr. Elkins explained that to catalog every wound she would hav

e been required to go through the alphabet again, and stay i n the morgue for “three days .” Eventually, D r. El kins said she “basically thr ew up [he r] ha nds and just said, enumerable [sic] more superficial slash wounds on the back, arms and chest.” In addition, Dr. Elkins said th e victim had purple contusions on her knees, indicating fresh bruising consi sten t with craw

ling, and d efensive w

ounds on her r

ight arm.

Dr. Elkins described the major slash and stab

wounds she had cataloged on the victim ’s back, a rms, abdomen, and chest. She found a six inch gaping wound across the middle of the victim’s neck w hich had penetrated the fat and muscles of the neck. In addition, Dr. El kins had found te n o ther slash wounds on the victim’s throat. Other slash wounds were on the victim’s face, and Dr. Elkins observ

ed what appeared to be a pe ntagram c arved ont o the vi ctim’s chest. Because the area around each wound was red in appearance, Dr. Elkins co ncluded th at the victim’s-12-

heart had been beating when the wounds wer e inflicted and shesaid the victim would not have been rendered unconscious by any of the stab or slash wounds.

Dr. Elkins determined that the v ictim’s death was cause d by blunt force injuries to the head. The victim had suffered multiple and extensive skull fractures. From the autopsy, Dr. Elkins determined that the victim had sustai ned a minimu m of fou r blows to her hea d; two to the left side of the head, one over the right ey e, and one i n th e nose area. The right

frontal area of the victim’s skull had been fractured as had the bridge of her nose. However, the major wound, labeled as injury “W”, involved most of the left sideof the victim’s head. Dr.Elkins said that this i njury, caused by blunt force to the l eftside of the victim’s head w hile the right side of the victim’s head was against a firm surface, also had fractured the rig ht side ofthe skull and imbedded a portion of the skull into the vic tim’s brain. Dr. Elkins foundsmall divots in the victim’s skull containing black parti cles from an asphalt chunk w hich was later determi ned to have been used to administer the blows. Finally, Dr. Elkins testified that blood in the victim’s sinus cavity

indicated she had been alive and probably conscious when the injuries were infli cted.
During her testimony, Dr. El kins ut ilized thevictim’s skull t o describe the injuries. She testified that in order to determine the cause of death, it was necessary to remove the head of the victim and have the skull prepared by Dr. Murray Marks, a forensic anthropologist at the University o

f Tennessee. She explained that she had removed the top of the victim’s skull in order to remove the brain. Embedded ins ide the victim’s brain as a result of the blunt force were portions of the victim’s skull. Dr. Elkinsremoved those embedded pieces and forwarded the m to Dr. Marks. Dr. Marks-13-

reconstructed the skull, fitting those loose portions into th e left side area of theskull. However, those pieces had not complet ely filled one area on the l eft side of the victim’s skull. Dr. Elkins then showed the jury a piece of skull that had been giv en to her shortly before the trial and de mons trated that it fit perfectly into the remaining area of the victim’s sk ull. The piece of skull util ized by Dr. Elki ns had been taken from the pocket of a jacket whic h witnesses identified as belonging to Pike.

Pike’s jacket had been turned over to law enforcement

officials by Job Corps employees. Robert A. Pollock, orientation specialist at Knoxville Job Co rps, testified that he had spoken with Pike on Januar y 13, 1995, concerning a misplaced I.D. card. After Pike left his office, Pollock noticed ablack leather jacket hang ing on the chair where she had sat. The jacket had been hang ing on the chair when Pollock locked the room at approximately 4 :00 p.m. on January 13th, and it was still ther

e when he returned at 7:30 a.m. on January 17th. Because he had heard over the weekend that Pike was a suspect in this murder investigation, Pollock immediately tur ned the jacket over to the Job Corps’ Safety and Security Captain, William Hudson. Hudsoncalled the Knoxville Polic

e Department and turned the jacket over to Officer

Arthur Bohanan when he arrived a short time later.

Officer Bohanan identified the jacket, and it was introduced into evidence. He testified that he had discovered a small piece of bone in the insid e pocket of the jacketand had immediately taken it to Dr. Marks at the University of Tennessee. Dr. Marks testified concerning the pr ocess by which the v

ictim’s skull had been

prepared and again demonstrated that the bone fragment given to him by Officer Bohanan fit perfectly i nto the bone r econstructi on of the skull of the victi m.-14- Followingthe introduction into evidence of the vic tim’ s skull, numerous photogr aphs, an d items o

f the vi ctim’s

clothi ng, the State re

sted its case-i n-chief

.
Dr. Eric Engum, a clinical psychologist, testified for the defense and stated that he had conducted a clinical interview and had admi nistered a battery of tests to the defendant. Dr. Engum describ ed Pike as an “extremely bright young woman.” Dr. Engum explained that Pike “is excellent in problem solving, reasoning , analysis, ah, can pay attention, sustains c oncentration, can sequence, ah, has excell ent receptive and expressive language skills.” Pike had a full scale IQ score of 111 which is in the 77th percentile and which was characterized as “remarkable” by Dr. Engum since she had onlycompleted the ninth grad e. Accordi ng to Dr. E ngum, the tests unequivocally showed that Pike had no symptoms of brai n damage and that she was not insane. However, Dr. Engu m concluded that the defendant suf fers from a very severe borderlineperson al ity disorder and ex hibits signs of cannabis (marijuana) dependence and inhalant abu se . He testified that the defendant is not so dysfunctional that she needs to be instituti onalized, but instead opined that she has a multiplicity of problems in in terpe rsonal relationships, in controlling her behavior, and in achieving vocational and academic goals.
During direct examination, Dr. Engum opined that the defendant had not acted with deliberation or premeditation in killing Slemmer. Instead Dr. Engum sai d she had acted in a manner co nsis tent with his diagnos is of borderline personalit y disorder; she had lost control. H e explained that she had danced ar ound when relating the murder to Iloilo because of the emotional release she experienced from having assured through the kil ling of Slemmer that she could mai ntain her-15-

relationship with Shipp. When questioned about th e piece of sku ll fou nd in the de fendant’s coat, Dr. Engum explai ned that the Defendant actually has no i dentit y and the action of taking and displaying a piece of Slemmer’s skull to her friends was the defendant’s way of getting recognition, “no matter how distorted” the rec ognition.

On cross-examination, Dr. Engum stated that there wasno question that the defendant had killed Slemmer. He re iterated tha t his opinion that once the attack began, Pike had literally los t c ontrol. However, Dr. Engum admitted that Pike had deliberately enticed Slemmer to thepark, carved a pentagr am onto Slemmer’s chest, bashed Slemmer’s head against the concrete, and beaten Slemmer’s head with the asphalt. Dr. Engum agreed that Pike’s a ct of carrying w eapons with her indicates deliberation. Finally, Dr. Eng um conceded that Pike had time to calm down and consider her actions when she left S lemmer during theattack to investigate a noise and determine whether anyon e else was in the area.

William Bernet, medical director of the psychiatric hospital at Vanderbilt University, testified that hehad revie wed the statements of the defendant and KimberlyIloilo and the reports o f Dr Engum, Dr. Elkins, and Dr. Marks. He concluded that although there were satanic elements in this crime, the pattern was that of an adolescent dabbling in Satanism. He thendescribed the phenomenon of collecti ve ag gression, whereby a group of people gather and become emotionally aroused and the end result is that they engage in some kind of vi olent behavior. On cross-examinati on, Dr. Bernet admitted that he had spoken neither with the defendant nor any

of the other witnesses. D r. Bernet admittedthat he d id not ha ve-16-

enough information to offer an expert opinion as to w hether Pike acted with

intent or premeditati on in killi ng the vic tim.

Based on this evidence offered during the guilt phase of the trial, the jury found Pike, guilty of first degree m urder a nd conspiracy to commit fir st degree murder.

In the sentencing phase of the trial, the State reli ed on the evidence presented at the guilt phase and presented no further proof. The defense, in mitigation, call ed Carrie Ross, Pike’s aunt as a w itnes s. Ross testified that the defendant had experienced no maternal bonding because she was premature and was raised byher pater nal grandmother until she died in 1988. Ross said that Pike’s family has a historyof substance abuse and that Pike’s maternal grandmoth er was an alcoholic who was verbally

abusive to Pike. Following the death of Pike’s paternal grandmother, Pike was shuffled between her mother and father. Accordingto Ross, Pike’s mother’s home was very dirty. Pike’s mother set no rules for her, and on the occasionsthat Pike had visited R oss, the defendant had beh aved as a “little girl,” playing Barbie and dr

ess-up with her elev

en-year-old cousin.

On cross-examination, Ross admitted that she had previously described Pike as a pathological liar an d that she had been afraid to allow Pike to associate with her own children. Ross also admi tted that Pike had been out of control since she was twelve years ol d.-17- Glenn Pike, the defendant’s father, testified that he ha d kicked the defendant out of his h ouse twice, the last ti me in 1989. He admitted that he had si gned adoptio n papers for the defendant prior to her eighteenth birthda y. On crossexamination, he admitted that he had forced Pike to leave his home in 1989 because there had been an allegation that the defendan t had sexuallyabused his two-year-old daughter from his seco nd ma rria ge. According to her father, Pike had been disobedient , dishonest,and manipulative when she had liv ed with hi m.

The defendant’s mother, Carissa Hansen, a lic ensed practical nurse, tes tified that Pike had lived with her 95 percent of

the time since her paternal grandmother’s death. Hansen admitted that she had smoked mar ijuanawith the defendant in order to “establish a friendship.” Hansen rel ated that the defendant had attempted suicide bytaking an overdose shortlyafter the death of her paternal grandmother.Hansen also testified that one of her boyfriends had whipped Pi ke with a belt. Hansen had the boyfriend arrested.

On cr os s-examination, Hansen admit ted that Pike’s behavior had been problematic for years. T he defendan t had begun growing marijuana in pots in her home at age nine. After threatening to run away from home and live on the

street, Pike had been allowed to have a live-in boyfriend at age fourteen. Hansen admitted that Pike had wielded a “butc her-knife” against the boy friend, who had been arrested forwhi pping her. Hansen also s aid Pike had lied to her and s tolen from he r o n numerous occasions and h ad quit high school. Hansen conceded that Pi ke had been out of control since she was eight years old. Follow ing Hansen’s testimony , the defense rested its case.-18- In rebuttal, the State pr esented the testimony of Harold James Underwood, Jr., a Univers ity of Tennes see police o

fficer who w

as assigned to secure the crime scene o n Ja nuary 13, 1995. Underw ood testified that the defendant came to the scene with three to five other females between four and five p.m th at day. Pike asked Underwood why th e areahad been marked off and questioned him concerning the identity of the

victim and whether or not the police had any suspects. None of the other females spoke during the fifteen minutes the group was there. Underwood said Pike appeared amused and giggl ed and moved aroun d. Underwood noticed that Pike was wearing an u nusual necklace in the shape of a pentagram. After learning at roll call on January

14, 1995, that the victim of the murder had a pentagram carv ed on her chest, he reported Pike’s st range be havior and unusual necklace to his superior officers.

Based on the proo f submitt ed at the sentencing hearing , the jury found the existence of t he following two ag gravating circumstances beyond a reasonable doub t: (1) “[t]he murder

was especially he inous, atrocious or cruel in that it involved torture or serious physical abus

e beyond that necessary toproduce death;” and (2) “[t ]he murder was committed f or the purpose o f avoiding, inter fering with or preven ting a lawful arrest or prosecution of the defendant or another.” Tenn. Code Ann. § 39-13- 204(i)(5) and (6) (1997 Repl.). In addition, the jury found th at the State had proven that the aggravating circumstances outweig hed any mitigating ci rcumsta nces beyon d a reasona ble doubt. A s a result, the jury sentenced the defendant to death by electrocution. The trial court entered a judgment in accordance w ith the jury’s verdict and the Court of Criminal Appeals affirmed. After reviewing the record and-19-

consideringthe errors assigned by the defendant, we affirm the judgment o f the Court of Criminal Appeals.


### I.

SUFFICIENCY OF THE EVIDENCE: CONVICTIONS The defendant first challenges the suffici ency of the evidence to support the convictions

for first degree murder and consp iracy to commit first degree murder. Specifi cally, with respect to the conv iction for first degree mur der, the defendant arguesthat the State did not offer a nyevidence to establish del iberation or to establish that the defendant had the opportunity to reflect upon her actions at a time when her mind “was free from the i nfluence of excitement or passion. ” The defendant also maintains that the evidence is insufficient to sustain the conviction

for conspiracy to commit first degree murder.

In analyzing the

defendant’s assertions, we are guided by the following wellsettled principle s of law. A gu ilty ve rdict by the jury, approved by the trial court, accreditsthe testimony of the witnesses for the State and resolves a ll conflic ts in favor of the prosecution’s theory

. State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). A verdict of guilt remo ve s the pre sumption of innocence and replaces i t with a presumption of guilt, and the defendant has the burd en of illustrating wh y the evidence is insufficient to support the j ury’s verdict. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). Questions conc erning thecre dibility of witness es, the weight a nd value to be given the evidence, as well as all factual issues raise d by th e evidence are resolvedby the trier of fact. This Court does not reweigh or r eevaluate-20-

the evidence. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this Court substitute its inferences for those drawn by the trier of fact from circumstantial evi dence. Li akas v. State , 199 Tenn. 298, 305, 286 S.W .2d 856, 859 (1956). Therefore, on appeal, the State is entitl ed to the strongest legiti mate view of the trial evidence and all reasonable and legi timate inferences which may be drawn from the evidence. Consequently, in considering the defendant’s claim that the evidence is not sufficient, we must determine, after reviewing the evidence in the light most favorable to th e State , whether any rational trier of fact could have found the defendant guilty of

premeditated first degree murder and conspiracy to commit first degree murder beyond a r easonable doubt. Tenn. R. App. P. 13( e); Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cazes , 875 S.W.2d 253 (Tenn . 1994).
A. First Degr ee Murder At the time this killing occurre d, first- degree murder was defined as an “intentional, premeditated and deliberate killing of another.” Tenn. Code Ann. § 39- 13-202(a)(1) (1991). “Intentional” was defined as the “conscious objective or desire to engage in the conduct or c au se the result.” Tenn. Code Ann. § 39- 11-106(18) (1991 Repl.). “Premed itated a ct”, on the other hand, meant an act “done after the exercise of reflectio n and judgm ent .” Tenn. Code Ann. § 39-13-201(b) (2) (1991 Repl.). Finally, “[d]eliberate act” was defined as “ one performed with cool purpose .” Tenn. Code Ann. § 39-13-201(b)(1) (1991 Repl.).

The elements of premeditation and deliber ation are question s forthe jury which may be established by pr oof of the circu mstances surrounding the ki lling.-21-

State v. Bland , 958 S.W.2d 651, 660 (Tenn. 1997); State v. B rown , 836 S.W.2d 530, 539 (Tenn. 1992). There are several factors which tend to support the existence o f these elements which include: the use ofa deadly w eapon upon an un armed victim; the particular cruelty of the killing; declarations by the defendant of an inten t to kill; eviden ce of procurement of a weapon; preparations before the killing for concealmen t of the crime, and calmness immediately after the killing. Bland , 958 S.W.2d at 660; Brown , 836 S.W.2d at 541-42; State v. West , 844 S.W.2d 144, 14 8 (Tenn. 1992).
Consideringthe proof in this record in the light most favorable to the State, as we are requiredto do, we agree with the Court of Criminal Appeals that the evidence is sufficientto support the jury’s finding of premeditation and deliberation. Pike told a friend one day before the kill ing that she was going to kill the victim. The defendant procur ed weapons to accomplish the crime, arming herself with a box cutter and a minature meat cleaver, which she borrowed from another indiv idual. Pike then lured the victim to an isolated area to commit the crime by telling the victim that

she would share drugs with her. O nce they arrived at t he isolat ed location, the defendant attacked the unarmed v ictim w ith not one, but two deadly weapons. The attack continued for thirty minutes to an hour

. During this extended time, the defendant had ample opportuniti es in which to reflect upon her actions and choose a course of conduct. By her o wn admission, the defendant actual ly ceased the assault lo ng enough to scout out the area and ensure that no one else was around. Certainly, this break in the chain of events provided the defendant time to reflect upon her actions. In fact, in her statement the defendant recounted how she carefull y and repeatedly reflected upon her actions and chose to ki ll the victim to assure that the victim would
n ot testify against her for “attempted murder.” W ithout question, this k illing wa s-22-

particularlycruel; in fact, particula r cruelty is a phra se which merely beg ins to describe the nature and circumstances o f th is killing. The defendant attempted to conceal the offense by dragging the victim’s body to a secluded area and removi ng and disposing of the victim’s identification cards. The defen dant also washed the tops of hershoes at the Texaco serv ice station and rubbed the mud from the bott om o f her shoes onto her

blue jeans to conceal the blood . Pike calmly dispose d of the box cutter and returned the miniature meat cleaver tothe person from whom it had been borrow ed. Later that same evening, Pike displayed her “s ouvenir,” a piece of

th e victim’s skull, and she gleefully recounted the events of the assault and killi n g to Iloilo, the same friend to whom, only one day earlier, Pike had proclaimed her intent to kill Colleen Slemmer because “she just felt mean that day.”
Clearlythe evidence in this record is sufficient to support the elements of premeditation and deliberation and to support the jury’s v

erdict finding the

defendant guilty of first degree premeditated murder.

B. Conspiracy t

o Commit First Degr

ee Murder The defendant next contends that the ev idence is insufficient to suppor t her conviction for conspirac y to commit first degree murder because theState failed to prove th e elem ents of the offense. Specif ically, the defendant contends that there was no proof, other than her “uncorroboratedstatement” that a box cutter had been used on the victim, andthere was no proof that Shadolla Peterson and Tadaryl Shipp attacked the victim.-23- At the time this killing

occurred and at the present ti me, “[t]he offense o f conspiracyis committed if two (2) or more people, each having the culpable mental state requiredfor the offense which is the object of the conspiracy and each acti ng forthe purpose of

promoting or facilitatin g commission of an offense, agree that one (1 ) or more of them will engage in conduct which constitutes such offense.” Tenn
. Code Ann. § 39-12-103(a) (1991 Repl.). The offense of conspiracy is aimed at group criminality

and is based upon the principle that grou p criminal activity poses a greater public threat than criminal o ffens es committed by a single individual. Tenn. Code Ann. § 39-12-103 (1991 Repl.) (Sentencing Commissio n Comm ents). While the essence of the offense of conspiracy is an agreement to acc omplish a criminal or unlawful act, Owens v. State , 84 Tenn. 1, 3 (1885); State v. Hodgkinson , 778 S.W.2d 54, 58 (Tenn. Crim. App. 1989), the agr eement need not be formal or express ed, and it may be proven by ci rcumstantial evidence. State v. Shropshire , 874 S.W.2d 634, 641 (Tenn. Crim. App. 1993); Hodgkinson , 778 S.W.2d at 58. “The unlawful confederation may be establishedby circumstantial evidence and the conduct of the partie s in the execution of the criminal enterprise. Conspiracy implies conce rt o f design and not participation in every detail of execution.” Randolph v. State , 570 S.W.2d 869, 871 (Tenn. Crim. App. 1978).
Viewing the evidence in this record in the light most favorabl e to the S tate, we have no difficulty concluding that the evidence is sufficient to support the defenda nt’s conviction for conspiracy to commit first degre e mu rder. Iloilo testified th at she observed the defendant, the victim, Peter son and Shipp leaving the Job Corpsfacility together on the night of t he murder. Later that eveni ng, Iloilo observed the defendant, Peterson, and Shipp return w ithout the victim. After her return, Iloilo said-24-

that the defendant told her that she had killed the v ictim, using a meat cleav er to cut the victim’s back and a box cutter to cut her throat. Iloilo testified that Pike said the victim had begged “them” to stop cutting her thro at and b eating her. Iloilo’s testimony

was consistent wi

th and corroborative of

the confession in which Pike said that she and another person whom Pi ke referred to as “he,” acc ompanied the victim to the isolated loca tion whe re the killing occur red. Pike said that the other person participated in restraining the v ictim, cutting the vi ctim, hitting the vi ctim in the head with rocks and asphalt, and dragging the victim’s body to a more isol ated location. DNAtesting revealed that the blood stains found on bothPike and Shipp’s clothing matched the victim’s blood. Fina lly, both Pike and Shipp w ere wearing pentagr

am necklacestwo days after the murder, and a pent agram had been carved onto the victim’s chest. Accordingly, the defen dant’s contention that the evidence is insufficientto support the conviction for conspiracy to commit first degree murder is without merit.


### II. MEDIA COVERA

GE The defendant next asserts th at the trial court erred by refusing to grant her motion to deny t elevi sion coverage of the pretr ial proceedings in thi s case. She ass erts that media coverage in this case made jury selection difficult, “arguably affect ed the witness testimony and was generally

disruptive of the proceedi ng s. ” While recognizing that this Court has promulgat ed a rul e which permits media3 Tennessee Supreme Court Rule 30.
4 "To ensure that

Rule 30 conti nues to operate in a manner that is in the best int

erest of t he public and co mpatible wi th the admini strati on of justi ce,” on August 31 , 1998, t his Court ent ered an order again so liciting comments from intere sted members of the publi c. The comments must be filed with the

Appellat

e Court Clerk’ s Office in Nashv ill e by December 29, 1998.

-25- coverage, 3 Pike nonetheless contends that “ the record of

jury selection demonstr ates intense media coverage made i t impossible to get a fair t rial.”

This Court in December of 1995, adopted Supreme Court Rule 30 as a oneyear pilot project to govern media coverage of judicial proceedings in Tennessee. The exper imental rule was ef fective from January 1, 1996, until December 31, 1996. During this experimental period, this Court solicited and considered comments both from members of the general publi c and from p articipan ts in judicial proc eedings which had been covered by th e media pursuant to the terms of Rul e 30. After consideringthe comments and adopting appropriate amend ments, on December 30, 1996, this Court entered an or der making Rule 30 permanent. 4

Secti on (A)(1 ) of Rule 30 authorizes “[m]edia coverage of public judicial proceedings in the appellate and trial courts of this State . . . .” However, the media coverage is “subject, at all ti mes, to the authority of the presiding judge to (i) control the conduct of the proceedings before the court; (ii) maintain decorum and prevent distractions; (iii) guarantee the safety of any party, witness, or juror; and (iv) ensure the fair and impartial administra tion of just ice in the pending cause.” Further, Section (D)(2) of

Rule 3 0 specifically grant s to the presiding judge at a judicial proceeding the discretion to “refuse, li mit, terminate or temporarily suspend” media-26-

coverage of all or part of a case if necessa ry to accommodate any of these i mportant interests.
Although the defendant in this case contends that the media c overage “arguab lyaffect ed the witness testimony and was generally

disruptive of the proceedings,”

she does not cite to

any specific portion of the record, nor offer specif ic reasons as to the ways in which the testimony was aff ected or the pro ceedings disrupted. Also, the defendant does not expl ain how media coverage of the crime would have been less intense had cameras been excluded from the courtroom dur ing the proceedings. Althoug h jury selection was lengthy, in part, due to the media coverage of the crime, there is no assertion, nor proof, that any particul ar juror was biased because of the media coverage. In addition, there is no in dication f rom reading the transcript that the media coverage itself was disruptive or tha

t an y disrupti ve event occurred during the proceedings. C learly, a presiding judge’s decision to deny a motion to preclude or limit media coverage is no t error in the absence of proof that media coverage w ill compromise one of

the important interests set forth in Sections (A)(1) an d ( D)(2) of Rule 30. The defendant in this case presented no such proo f. Th eref ore, the trial judge di d not abuse her discretion under Rule 30 by denyin g the defendant’s motion.
Moreover, the defendant has failed to demonstrate that the media covera ge of the pretrial and trial proceedings in this case impinged upon her right to a fair trial. In State v. Harries , 657 S.W.2d 414 (Tenn. 1983), the d efenda nt alleged that the prese nce of cameras had deprived him of his right to a fair trial . In rejectingthi s cla im , we first stated that Har ries had agreed to the media c overage and could not-27-

object on appea l. However, we also stated that had a proper objection been interposed Harries claim would have failed because he had not demonst rated either that th e presence of cameras impaired the jurors’ ability to decide the case on th e evidence alone, or that the trial w as adversely affected by the impact of the media coverage on one or more of the participants. See also Chandler v. Florida , 449 U.S. 560, 581-82, 101 S.Ct. 802, 813, 66 L.E d.2d 740 (1981).
Likewise, the defendantin this case has failed to show either that media coverage of the pretrial and trial proceedings impaired the jurors’ ability to decide the case on the evidence alone or adv ersely impac

ted one or m ore of the trial participant s. To the contrary, the record is devoid of such proof. Accordingly, this issue is without meri

t.


### III. SUFFICIENCY OF THE EVIDENCE: DEATH SENTENCE

A. Ag gravating Circumstances In this case, the jury i mposed the death penalty upon finding both that (1) “[t]he murder was especially

heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death,”

and that (2) “[t]he murder was com mi tted for the purpose of avoiding , interfering with or preventing a law

ful arrest or prosecution of the defenda nt or an other.” Tenn. Code Ann. § 39-13- 204(i)(5) and (6) (1997 Repl.). On appeal, the defendant challen ges the sufficiency of the evidence to

support these aggravating circumstances. The Court of Criminal Appeals rejected this clai m and found the evidence sufficient.-28- We first address the defendant ’s claim t hat the evidence is insuffici ent to support the (i)(5) aggravating circumstance . I n State v. Williams , 690 S.W.2d 517 (Tenn. 1985), we defined “torture” as the infliction of severe physical or mental pain upon the victim while he or she remains ali ve and con scious. Id . at 529. With respect to “serious physical abuse beyond that necessary to produce death,” w e explained in State v. Odom , 928 S.W.2d 18 (Tenn. 1996), that “serious” al ludes to a matter of degree, and that the physical abuse must be “beyond that” or more than what is “necessary to produce death.” Id . at 26.

In this case, themedica l examiner testified that the wounds on the victim’s body were too nu merous to catalog. The victim’s throat had been repeatedly slashed, defensive wounds wer e found on her right

arm, bru ises consistent with crawlingwere found on her knees, and she h ad susta ined at le ast four heavy blows to her head. Her skull w as fractured in se veral places. A pentag ram had been carved onto her chest. According to the medi cal proof, and the d efenda nt’s own statements to the police and to other witnesses, the victim was ali ve and conscious when these injuries were inflicted upon her. In fact, acco rding tothe defendant’s statements, some of the wound s were inflicted because the victim would not stop begging for her

life. The defendant also admitted, and the crime scene revealed, that the victim repeatedly t ried to run away and escape the attack. In fact, the v ictim was so terrified that she

offered to walk to her home in Floridawithout returning t o the Job Corps facility for her

belongings in exc

hange for her life. The merciles s assault upon the victim continued for a per iod of thirty minutes to

an hour. Considering this record, we agree with the Court of Criminal Appeals that the evidence is overwhelmingly sufficientto suppo rt the jury’ s findin g that “[t] he murde r wa s especi ally heinous,-29-

atrocious, or cruel in that it involved torture or serious p hysical abuse beyond that necessary to produce death.” Tenn. Code Ann. § 39-13-20 4(i)(5) (1997 Repl.).
We also reject the defen dant’s contention that the evidence is insufficient to s upport the jury’s finding of the (i)(6) aggrav ating circumstance. This Court ha s previouslyheld that to establish the appl icability of this aggravating

circumstance, the State must prove that avoidanc e of prosecution or arres t was one of the purposes motivatingthe killing. Stat e v. Bush , 942 S.W.2d 489, 504 (Tenn. 1997); State v. Smith , 868 S.W.2d 561, 581 (Tenn. 199 3); Sta te v. Carter , 714 S.W.2d 241, 250 (Tenn. 1986) (avoidance of arrest need not be sole motive for murder). In this case, Pike repeatedly told police that as she was assaulting the victim, she heard a voice telling her that she had to do something to keep the victim from reporting the a ssault and causing her to go to prison for attempted murder. When the victim begged for her life, Pike responded that she was not going to be

“rotting in jail because of [the victim’s] stupid ass.“ Based upon our consideration of the record, we agree with the Court of Criminal Appeals that the ev idence was

sufficient to support the jury’s finding that “[t]he murder was committ ed for the purpos e of avoiding, interfering with or preventinga lawful arrest or pr osecution of the defendant or another.” Tenn. Code Ann. § 39-13-204(i)(6) (1997 Repl.).

B. Aggrav

ating vs. Mitiga

ting Circumstances Finally, the defendant contend s tha t the jury failed to proper ly consider and weigh the m itig ating circumstances against the aggravati ng circumstances. The weight given aggravating

and mitigating circumstances is entirely within the province of the jury. The jury d e te rmines whether or not mitigation exists and w hether the-30-

aggravating

circumstances outweigh mitigating circumstances beyond a reasonable doubt. State v. Bland , 958 S.W.2d 651, 661 (Tenn. 1997); State v. Barber , 753 S.W.2d 659, 669 (Tenn. 1988). As previously discussed, the State reli ed upon two aggravating ci rcumstances. In mitigati on, the defendant offered proof toshow that she was young whe n the of fense was committ ed, that she had n o prior his tory o f criminal activity, that she was under the influence of ext rem e ment al or emotional disturbance whe n the murder occurred, that her capacity to appreciate the wrongfulness of her conduct or to conform her conduct to the r equirements of

the law was substanti ally impairedas a result of mental disease or defect, that she had a difficult childhood, and that she h ad a personal and family history of substance abuse. Through cross-examination, the Stateelicited testimony from the defendant’s witnesses

thatshe had been difficult, manipulativ e, and dishonest from an early age, that she previously had threatened an individual wit h a bu tcher knife, and that she had been accused of sexually molesting her half-sister. The State also offered rebuttal pro of to show that Pike had vi sited the crime scene wi th a group of othe r females on the day the victim ’s b ody was discover ed and giggled as she as ked questionsabout the murder. Consideri ng the proof in this record , we are of the opinion that the evidence is sufficie nt to support the jury’s finding that theaggravating circumstances outweig hed mitigating circu mstances beyond a reasonable doubt
.



### IV. PROPORTIONALITY REVIEW-31- We must next consider whether the defendant’s sent ence of death is disproportio nate to the penalty imposed in si milar cases, considerin g the nature of the crime and the defendant. Tenn. CodeAnn. § 39-13-206(c)(1) (D) (1997 Repl.). If this case is “plainly lacking in circumstances consis tent with those in simi lar cases in which the death penalty has prev io usly been imposed,” the sentence of death is disproportionate. State v. Bland , 958 S.W.2d 651, 665 (Tenn. 199 7). H owever, a sentence of death is not disproportionate merely because the circumstances of the offense are similar to those of another offense for which a defendant has receiv ed a life sentence. I d . at 665. Ou r role, in conducting proportionality rev iew is not to assure that a sentence “l e ss than death was never imposed in a case with s imilar characteristics.” Id . Instead, our duty “is to assure that no aberrant death sentence is affirmed.” Id
.
In choosing and comparing similar cases, we consid er many va riables, s ome of which include: (1) the means of death; (2) the manner of death; (3) the motivation for the killing; (4) the place of death; (5) the similarity of the victim’s circumstances, including age, physical and mental conditions, and thevictims’ treatment dur ing the killing; (6) the absence or presence of premeditation; (7) the abse nce or presence of provocation; (8) the absence or presen ce of justification; and (9) the injury to and effects on nondecedent victims. Id

. at 667. When choosing and comparing simil ar cases we consider the following characteristics of the defendant: (1) prior record or prior criminal activity; (2) age, race, and gender; (3) mental, emotional, and physical condition; (4) involvement or role in themurder; (5) cooperation with authorities; (6) presence or absence of remorse; (7) the defendant’s kno wledge of the helplessness of the victim; and (8) the defendant’s capacity for reh abilitatio n. Id . Compara tive-32-

proportionality

review is not a r

igid, objective tes

t. Id
. at 668. We do not employ mathematical or scientific techniques. In evaluating the comparative proportional ity of the sentence in light of the factor s delineated above, w e rely also upon the experienced judgment and i ntuition of the members of this Court. Id

.
As explained below, cons idering the nature of the crime and the defendant in light of these factors, we conclude that imposition of the de ath penalty for the torturousand cruel premeditated kill ing of this young w oman is not disproportionate to the penalty impo sed in si milar cases. The proof in this case reflects that the eighteen-year-old defendant and the nineteen-year-old victim were acquaintances. Both were female students at the Job Corps facility in Knoxville. Bec

ause the victim allegedlyhad been making unfav orable comm ents about Pike and her boyfriend, Pike armed herself and lured the vic tim to an isolated area where s he assaulted the victim. The victim died as a result of blunt force trauma to her head. In fa ct, her skull was virtually shattered. However, over t he course of a thirty-minute to one-hour period before her death, Pike stabbed and slas hed the victim with the box cutter and the meat cleaver. Pike kicked the vic tim, beat her with pieces of asphalt, and carved a pentagram ontoher chest. The medical testimony and the defendant’s statements establish that the victim was al ive and conscious during this torturous ordeal. In fact, according to Pike’s own statement, the victim begged and bargained for her life. The victim tried to run away, but she was restrained by Pike and her co-conspira to rs. Pike showed no mercy; inst ead, she exhibited a total disregard for human life and human suffering when she committed this unprovoked and unjustified premeditated murder.-33- While Pike had no prior criminal record, her own relatives testified that Pike previouslyhad been violent , manipulative, and dishonest . Although Pike was young at the time this offense was committed, onl y eighteen years ol d, she is certainly not the youngest person on death row. See State v. Mann , 959 S.W.2d 503, n. 5 (Tenn. 1997). While Pike is only thesecond woman to receive a death sentence in Tennessee, there is absolutely no indication that the jury’s impos ition of the death sentence was motivated by or based upon Pike ’s gender. Though the defense presented proof that Pike suffers from borderli ne personality di sorder , the defense expert testified that Pike is not insane, but, in fact, is highly intelligent. He admitted on cross-examination that many of Pi ke’s act ions relating to the killing were premeditated. Although others were present w hen the killing occurr

ed and involved to some degree, the proof reveals that Pike was the leader. In fact, in her statement to police, Pike described i n chilling detail her leading role in this murder. While Pike cooperated with the authorities b y giving a statement and leading them to ev idence, she displayed a stunning lack of remorse for committing this horrific crime. In fact, Pike laughed and danced around as she boa sted to her frie nds about the killing. Pike took a piece of the victim’ s skull with her as a “souv enir” and di splayed this trophy to her friends when she recounted how the killingoccurred. She returned to the crime scene the day after the murder with a number of other females and giggled a s she asked t he police officer questions about the killing. Pike’s total lack of remorse is also evident from a let ter she wrote to her boyfr

iend, Tadaryl Shipp shortly afterthe jury had sentenced Pik e to death on the first degree conv iction. The letter was introduced at the sentencing hearing on Pike’s conviction for co nspir acy to commit first degree murder, and it is a part of the record in this appeal. In the letter, Pike complained to Shipp-34- Ya see wh at I get fortrying to be nice to the hoe? I went ahead and bashed her brainsout so she’d die quickl y instead of letting her bleed to death and suffer more, and theyfuckin FRYme!!! Ain’t that some shit? There is also no evidence that Pike hasa capacity for rehabilitation. The testimony of Pike’s own relativ

es reveals that Pike has refused to abide by

the applicable rules of socie ty since a very young age. Consider ing the nature of the crime a nd th e defendant, we conclude that the torturous and cruel murder of this nineteen-year-old woman places Pike into the clas s of defendants for whom the death penalty is an appropriatepunishment. Ba sed upon our review, we conclude that the follow ing cases in which the death penalty has been imposed have many similarities with this case.

In State v. Owens , 746 S.W.2d 441 (Tenn. 1988), the jury conv icted the defendant Gaile K. Owens for procuring another to kill her

husband. The victim was struckon the head twe nty-one times with a tire iron. The blows h ad driven the victim’s face into the floor of the den of his home. His skull was crushed and bone fragments were driven into his brain, as in this case. Also, as in this case, the victim was alive and conscious during the beati ng, as was evidenced by extensive injurie s to his hands and strands of hair between his fingers w hich indicated that he had been attempting to cover his head wi th his hands during the beati ng. Much like this case, Owensoffered proof in mitigation to s how that she previousl y had been treated by a psychiatrist on one occasion several years earlier for severe behavioral problems. She also offered testimony to show that she had been a“good prisoner who caused no proble ms, volunteered to work, and attended Bible study classes.” Id. at 44 8
. Also, as in this case, there was no evidence that Owens had a prior criminal record.-35-

As in this case, the jury sentenced Owen s to death upon finding two agg ravating circumstances: (1) that Ow ens commi t ted the murder for remuneration, or the promise of remuneration, or employed anoth er to commit the murde r for remuneration, or the promise of remuneration and (2) that the murder was especially heinous, atrocious, or cruel i n that it involved tor ture or depravity o

f mind. Tenn. Code Ann. § 39-2-203(i)(4) and (5) (1982 Repl.).

In State v. Hall , 958 S.W.2d 679 (Tenn . 1997),the twe nty-fo ur-year-o ld defendant murdered his twenty-tw o-year-old girl

friend by dousing her with gasoline a nd igniting he r body as she sat trapped inside her car. As in this case, Hall exhibited a total disregard for hum an life and complete indifference to human suffering. Though Hall claimed, as di d t he defendant in this case, that he initially intended only to frighten the victim, Hall admitted that he never offered assi stance to the victim after he realiz ed thather

body was completely engulfed by flames. As in this case, Hall’s vic

tim suffered excruciating pain and suffering. She was al ive, conscious, coherent, and aler t as her tongue swell ed to the extent that it protruded from her mouth and her eyelids became inv erted. She experienced not o nly the initial pain of the burn injuries, but also the pain from the incisi ons that were part of the medical treatment for the burns. As in this case, there was no ev idence to indicate that Hall h ad a prior criminal rec ord, though he admitted to abusing alcohol and drugs. Also like this case, a defense expert testified that Hall d ispl ayed sympt oms of borderline personality disorder, but said Hall was not insane at the time the murder was committed. The jury sentenced Hall to death upon fin ding, as in this case , two aggravating

circumstances: (1) the mur der wasespecially heinous, atr ocious or cruel in that it involved tor

ture or serious physi cal abuse beyondthatnecessary to produce5 The jury als o fou nd th at the mu rder was com mitte d wh ile the defe nda nt wa s eng age d in committing a fel ony and that the defendant

committed mass murder. Tenn. Code Ann. § 39-2- 203(i)(7) and (12) (1982). -36- death; and (2) the murder was c ommitted while the defendant w as engaged in commiting or was attempting to c ommit arson. Tenn. Code Ann. § 39-13-204(i)(5) and (7) (1991 Repl.).

In State v. Smith , 868 S.W.2d 561 (Tenn. 1993), the forty-year-old defendant was found guilty of the triple premeditated murders of his estran ged wife, a ge thirtyfive and her

two sons by a previous marriage, age sixteen and thirteen. With respect to the killingof his two s tep-son s, the jur y found f our aggrava ting circu mstance s, two of which were also found in this case : (1) the murder was especially heinous, atrociousor cruel in that it involv ed torture or depravity

of mind; and (2) the murder was committed for the purpose of avoiding, interfering with or pr eventing a lawful arrest or prosecution of the defendant or another. Tenn. Code Ann. § 39-13-203(i)(5) and (6) (1982). 5 As did the victim in this case, thetwo young men murdered by Smith suffered extremely torturous deaths. The sixteen-year -old victim was shot three times: in the right shoulder, the upper chest, and on theinside eyebrow. Thoug h the last two gunshot wounds ha d been fatal, the evidence show ed that prior to his death, the victim had been stabbed sev eral times in hi s chest, back, and abdomen with a knife and an awl. His throat had been slashed, and he had defensive wounds on his hands. The evidence indicated, as in this case, that the v ictim had been alive and consciouswhen the stab and slash wounds were inflicted. The thirteen-year-old victim had not been shot. Inste ad his neck had been slashed, and he had been stabbed in the chest and abdomen, much like the victim in this ca se. Two of the woundsto his abdomen had cut major veins, and his small bowel protruded fro m his6 Altho ugh the tria l judg e erro neo usly ch arge d the jury in th e lang uag e of th e 198 9 sta tute, in Bush we held that

the error was harmless beyond a reasonable doubt,concluding that the proof establi shed that t he murder was heinous, at rocious, or cruel i n that i t invol

ved tortur

e or depravi ty of -37- body through these wounds. This victim also had numerous defensive wounds on his hands. The medical evidence indic ated that all of these injuries were inflicted upon him while he was ali

ve and that he bled to death over a period of several minutes. In mitigation, Smith, as did the defendant in this case, presented expert psyc hological proof that he had personality disor ders. The jury sentenced the defendant to death for each of his three convictions for first degree murder.

In State v. Bush , 942 S.W.2d 489 (Tenn. 1997), the eighteen-year-ol d defendant was convicted of the first deg ree murd er of a se venty-nine -year-old widow. Bush used the victim’s friendshi p with his grandmother to gain access to her home. Once inside, Bu sh, like the defendant in this case, brutally murdered the victim witho ut any provocation by sav agely beating her w

ith a stick and by stabbi ng her forty-three tim es. Like the defendant in this cas e, Bush later boasted to acquaintances

about the killing, rec

ounti ng how he had practiced kar ate on the victim. Bush, like the defendant in this case, present ed proof in mitigation relating to his youth, troubled chil dhood, mental disease or defect, and lackof a prior criminal record. The juryimposed the death penalty upon finding the same two aggrav ating circumstances

which were found by the ju ry in thi s case: (1) the murder w as especiallyheinous, atrocious or cr uel in tha t it in volved torture or s erious physical abuse beyond that necessary to produce death; and (2) the murder w as committed forthe purpo se of avoi ding, interfering w ith or preventing a l awful arrest or prosecution of the defendant or another. Tenn. Cod e Ann. 39-1 3-204(i)(5) & (i)( 6) (1991 Repl). 6mind. Tenn. Co de Ann. § 39-13-203(i)(5) (1977 & 1 982) (Repealed). -38- In State v. Mann , 959 S.W.2d 503 (Tenn. 1997) , the twe nty-two-year-old defendant wasconvicted of premeditated first degree murder for the brutal killing of the victim, a sixty

-two year old w

idow, who live

d near him an d who had b efriended Mann and his family. Mann chose to burglarize her home because he knew she w as hearing-impaired. When the victim walked out of her bedroom and surprised Mann in the act of burglarizi ng her home, he brutally assaulted and murdered her, infli cting at least forty wounds upon the v ictim, including fifteen blow s to the head, eleven stab woundsto the chest, and fourteen puncture w ounds to her abdomen, a ll of which resulted in pain for the victim. In addition, the defendant digitally raped and manually strangled the victim. As in this case, Mann’s victim w as alive and conscious and calling out her attacker’s name throughout the entire ordeal. The jury imposed the death penalty upon finding, as in this case, two aggravating circumstance s: (1) the murder was especially he inous, atrocious or cruel in thatit involved tortur e or serious physical abuse beyond that necessary to produce death; and (2) the mur der was committed while the defendant was engaged in committing a felony , burglary. Tenn. Code Ann. § 39-13-204 (i)(5) and (7) (1991 Repl.).

In State v. Barber, 753 S.W.2d 659 (Tenn. 1988), the twenty-ni ne-y ear-old defendant was convi cted of first degree murder for killing a seventy-five-year-old woman who lived alone. Bar ber and his brother had broken into the victi m’s home to rob her. When the victi m recogniz ed Barber’s

brother, Ba rber attack

ed the victim, repeatedly striking her head w ith a crescen t wrench. S he was alive and conscious during the attack as was evi denced by the defensive w ounds on her

arms and hands.7 The jury al so reli ed upon the fel ony-murder aggravating cir cumstance as a basis for impositio n of the deat h penalty . In Barbe r v. State , 889 S.W .2d 1 85, 1 89-9 0 (T enn . 199 4), this Court held t he jury’s consideration of that ag gravati ng circumstance harmless err or beyond a reason able dou bt. -39- As mi tigation, Barber, lik e Pike, relied upon his y outh. The jury imposed the death penalty upon fin ding that the murder was especially heinous, atrocious, or cruel in that it involve d t orture or depravity of mind. Tenn. Code Ann. § 39-2-203(i )(5) (1982). 7

I n State v. McNish , 727 S.W.2d 490 (Te nn. 1987), the twenty-nine-year-old defendant was convicted of the first degree mur

der of a seventy-year-

old widow. As did the defenda nt in this c ase, McNish repeatedly struck the victim i n the head fracturing her skull in several places. As i n this case, the proof showed that the victim was alive and conscious during the a ttack. The jury imposed the death penalty upon finding one aggravating circumstance: the murder w as especially heinous, atrocious, or cruel in that it involv

ed torture or depravity

of mind. Tenn. Code Ann. § 39-2-203 (i) (5) (1982).

In State v. Melson , 638 S.W.2d 342 (Te nn. 1982), the defendant, a fa rm foreman, was convicted of first degree murder for killing the farm owner’s wife. As in this case, the victim’s head was repeatedly beat en with such force that portions of her skull were embedded into her brain. Trauma to her arms and hands demonstrated that, like this case, the victim w as conscious and attempting t o defend herse l f during some portion of the orde al. As in this case, Me lson had no prior
r ecord of significant criminal ac tivity. The jury

imposed the death p enalty upo n finding the same two aggravating circumstances pres ent in this case: (1) the murder8 State v. Caughron , 855 S.W .2d 526 ( Tenn . 1993); State v. Ha rris , 839 S.W.2d 54 (Tenn. 1992); State v. Black , 815 S.W .2d 166 ( Tenn . 1991); State v. Payne , 791 S.W .2d 10 (Tenn. 1990); State v. Jones , 789 S.W .2d 545 ( Tenn . 1990); State v. Miller , 771 S.W .2d 401 ( Tenn . 1989); State v. Poe , 755 S.W .2d 41 (T enn. 198 8); State v. Johnson , 743 S.W .2d 154 ( Tenn . 1987); State v. House , 743 S.W.2d 141 (Tenn. 1987). We have also reviewed cases i n which the def endant received a senten ce of life im prisonm ent or life im prisonm ent withou t the poss ibility of parole. However, in non e of those cases di d the victims suffer tor ture and cruelty at the hands of t he defend ant com parable to that inflicted u pon the v ictim in this c ase by this d efenda nt. -40- was es pe cially heinous, atroc ious, or cruel in that it involved torture or depravity of mind; and (2) that the murder was committed for the purpose o f avoiding, interfering with or preventing a lawful arrest or prosecution of the defendant or another

. Tenn. Code Ann. § 39-2-203(i)(5) and (6) (1977).
Though no two cases are preci sely the same, the above c ases have many similarities

with the crime for w

hich P ike has been convicted and sentenced. In all eightof these cases the victims were savagely beaten wi th a blunt instrument or repeatedly stabbed or both. Moreover, in all of these cases, as in the present case, the victims were cons

cious and experienced the pai n and h orror of th e attacks. Likewise, all eight of the defendants were acquainted with the victims as was Pike in this case. Like Pike, many of thes e eight defendants relied upon thei r youth, troubled childhood, and mental difficulties as mitigation. Three of the eight defendants were under the age of twenty-five, and Bush, like Pike, was eighteen years old when the murder for whi ch he was convicted occur red. In all eight cases , the jury found the (i)(5) aggravating circumstance. In three of the eight cases, the juryfound both the (i)(5) and the (i)(6) aggr avating circumstances . After reviewing the many cases discussed above and many other cases not herein discussed, 8 we are of theopinion that the penalty imposed by the jury in this case is not excessive nor disproportionate to the penalty imposed for simi lar crimes.-41- 

### V. CONCLUSION In accordance with the mandate of Tenn. Code Ann. § 39-13-206(c)(1) (1997 Repl.), and the principles adopted in prior decisions of this Court, we have

considered the entire record in this cause and find that the sentence of death was not imposed in an arbitrary fash ion , that the evidence supports the jury’s finding of the statutory aggravating

circumstances, and the jury’s finding that the aggravating

circumstances outweighed mitigating circumstances beyond a reasonable doubt. Tenn. Code Ann. § 39-13-20 6(c)(1)(A) - (C) (1997 Repl.). We have considered the defend ant’s assignmentsof error and de termin ed that none require rev ersal. With respect to issues not specif icall y addressed herein, w e affirm the decision of the Court of Criminal Appeals, author ed by Judge David H. W elles, and joine d in by Judge Thomas T. Woodall and Senior Judge John K. Byers . Relevant portions of that opinion are published hereafter as an appendix. The defendant’s sente nce of death byelectrocution is affirmed. The sentence shall be carr ied out as provided by

law on the 5th day of February, 1999, unless otherwise ordered by this Court or other proper authorities.

_____________________________________ FRANK F. DROWOTA, III, JUSTICE
Concur: Anderson, C.J., Birch, Holder, Barker, JJ.

# Appendix (Excerpts from the Court of Criminal Appeals’ Decision)-43- IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE JULY SESSION, 1997 STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9611- CR-00408 ) Appellee, ) ) ) KNOX COUNTY VS. ) ) HON. MARY BETH LEIBOWITZ CHRISTA GAI L PIKE, ) JUDGE ) Appe llant. ) (First Degree M urder-Dea th Penalty)

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

Building Knoxvill e, TN 37902
OPINION FILED: November 26, 1997-44-

AFFIRMED DAVID H. WELLES , JUD GE-45- 

# OPINION
Change of Venue The Defendant argues t hat the trial court erred by failing to grant her motion fora change of venue. She maintains t hat a majori ty of prospective jurors admitted that they had he ard detailed in formatio n abou t the case
. The Defendant cites the United Stat es Supreme Court decisi on in Irvi n v. Dowd , 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), i n support of the proposit ion that a change of venue should be gr anted if extensive pretrial publicity was su ch that the cou rt shou ld presume the jur y is tai nted even if

prospecti ve juror

s stat ed that th ey would be able to set aside what they had seen or heard.

Howeve r, in Dowd , jury selection laste d more than four weeks. Also the Supr eme Cour t spec ific ally stated that due to “swi ft, widespread and diver se methods of communication, ” it i s not requi red that juro rs be to tally ignorant of the facts and issues in volved. 366 U.S. at 722, 81 S.Ct. at 1642. The court also stated that “[ i]t i s suffi cientif the juror can lay asidehis impressi on or opini on and rendera verdict

based on the evidence prese nted in cour t.” 366 U. S. at 723, 81 S.Ct. at 1643. I n Dowd , the pa nel c onsisted of 430 p erson s. The court its elf excused 268 of those persons due to t heir fi xed opinions of guilt, and 1 03 were excused becau se of their c onscien tious obje ction to the death penalty. 366 U.S. at 727, 81 S.Ct. at 1645 . T he voir dire record indi cated that 370 of the prospective jurors e nte rtained som e opinion as to g uilt, ranging from m ere suspicion to absolute certa inty. Of the twelve jurors sel ected, ei ght thought the Defen dant wa s guilty. Id

.-46- In the present case, alt hough many potentia l juror s had indicated that they had heard something about the case in themedia, every juror who sai d he or she
was familiar wit h the case said that he or she could di sr egard the reports and renderan im partial decision . All potential j urors who said they could not disregard the repo rts were e xcused for cause

. The Defendant has cited no specifi c response fr

om any seated juro r that was t roublesome.

Excusal of Juro rs The Defendant asserts that the trial court impanelled a j ury thatwas prodeath penalty and i mproperly exc used for cause t hose prospecti ve juror s that indicat ed that they w ere opp osed to the dea th pena lty. The D efenda nt sugg ests that the tri al court er red in denyi ng her propo sal that a “don ’t ask, don ’t tell,” procedure be used whereby ju rors would not be required to tell the court about their personal fee lings about the d eath pena lty.

In Wainwright v. Witt , 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985 ), the United State Suprem e Court reaffirm ed as the pro per standard fordetermining when a prospecti ve juror may be excluded fo r cause because of his or her v iews on capital puni shment the test of “whether

the ju ror’ s viewswould ‘prevent or s ubst

ant ial ly imp ai r the pe rform ance of his du ties as a juror in accorda nce wi th his i nstructi ons and his oath. ’” In State v. Alley , 776 S.W.2d 506, 518 (T enn. 19 89), cert . denied, 493 U.S. 1037 , 110 S.C t. 758 (1990) , the Tennessee Supreme Court held t hat “the tr ial court’s fi nding of t he bias of a juror-47-

because of his v iews of capi tal punishment shallbe accorded a presumption of correctness and the burden shal l rest upon the Defendant to e st ablish by convinc ing eviden ce that tha t determ ination wa s errone ous.”

Th e Defenda nt notes that in the pre sent case the trial court exa mine d prospective jurors ex

tensivel y regardi ng their t houghts abou t the dea th pena lty and allowed counselto examine thos e who indicated that they had a pr oblem with the de ath pe nalty in an effort to rehabil itate t hem. The Defendant cites no prospective juror who was excluded that should not have been . App lying t he standard as set for

th in Alley , the Defendant has fail ed to establ ish byconvinci ng evidenc e that the c ourt’s actio ns were erroneo us. This issue is with out me rit.

Use of the Skull as Evi dence The Defendant next

complains that

pursuant to Rule 403 of the Tennessee Rules of Evidence, the skull of the victim should have been excluded because its proba tive va lue was substant ially outweighed by i ts prejudi cial ef fect. The Defendant asserts t hat the skull was also cum ulative evide nce be cause prior to its admission, numerous photographs of the skull were adm i tted to sh ow the damage to the vic

tim’s head.

The State argues t hat the in troducti on of the skul l was an important portion of the medical testimony. The medical examiner test ified t hat she had sent the skull to a fore nsic an thropo logist to be rec onstru cted b ecau se sh e cou ld not te ll exactly what had h appened without the reconstruction. The skull was used by-48-

the medical examiner to show the amount of force that was applied to it, as w ell as the w eapon that was u sed. Pie ces of as phalt we re emb edded in the sku ll.

In this case, the skul l had been thoroughly cleansed and was no mor e prejudici al or gruesome than a model di agram would have been. Dr. Elkins , the medical exam iner, tes tified tha t the rec onstru cted s kull would illustrate to the jury what had occu rred to the victim and demon stra t e the amount of force that was applied as wel l as the t ype of weap on use d to inflict the head injuries . Ther e is
no question t hat the natur e and type of inj uries sustained by thedeceased and the manne r in which death o ccurred we re relevant cons iderations by the jury. Moreover, the sk ull was used to illu strate t hat the piece of skull found in the Defe ndan t’s jacket fit perf ect ly into t he reconstructed skull. The skull was, therefor e, hi gh ly rel evant in est ablishi ng the circ umstances surroundi ng the offense

. See State v. Cazes , 875 S.W .2d 253 , 263 (T enn. 19 94); cert
. denied , 115 S.Ct. 74 3, 130 L .Ed2d 6 44 (199 5); State v . Mo rris , 641 S.W.2d 883, 888 (Tenn . 1982). T his issue is without m erit.

Cruel and Unusual Punishment The Defendant contends that the puni shment imposed upon her, dea th by electrocut ion, is cruel and unusual punis hment under the state and federal const ituti on s. However, thi s issue has been previously decided by t he Tennessee Supre me C ourt and dete r mined to be witho ut merit. See State v. Cazes , 875 S.W .2d 253 (Tenn . 1994); State v. How ell , 868 S.W.2d 238 (Tenn. 1993); State v. Black , 815 S.W .2d 166 (Te nn. 1991).-49- Peremptory Challenges The Defendant contends that at t he time of t he offens e, the ru les in effect gave the Defendant fi fteen (15) peremptory chal lenges compared to t he State’s eight. See Rule 24(d), Tenn. R. Cr im. P. ( 1995 ). Howe ver , at theti me of tri al, the rules had been changed to gi ve an equal number of perempt ory challen ges to both the Defendan t and the State. See Rule 24 (d), Ten n. R. Crim . P. (1996 ). The Defendant arguesthat appl icatio n of the new rul e violated the ex pos t facto provisi on of the Tennessee Constitution which requires t hat rules not be applied to events which oc curred p rior to their en actme nt.

The term "ex post

facto" as

us ed in Ar

tic le I , § 10, cl. 1, of the U. S. Constitut ion, provides that "[n]o state shall . .. pass any ... ex post fac to law." The Tennessee Cons titution's ex pos t facto p rohibitio n f ound in Arti cle I, § 11, provides: That laws m ade for th e punish ment o f acts comm itt ed previous to the existence of such laws, and by them only decl ared criminal a re contra ry to the principl es of a free Government; wherefore no Ex post facto la w sha ll be ma de.
Two criti cal elements must be present for a law to fall wit hin the prohi bition. First, i t "must be retrospecti ve, that is, it must apply to even ts occurring befo re its en actment"; and second, "it mu st disadvantag e the offender a ffected by i t. " Miller v. Flor ida , 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987) (quoting We aver v. Graham , 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17-50-

(1981)); State v. Ricci , 914 S.W.2d 47 5, 480 (Tenn. 1996) . Further more, Tenn essee Code Annota ted sectio n 39-11 -112 pro vides that:

wheneverany penal st atute or penallegislati ve act of the st ate is repe aled or amended by a subsequent le gislat ive act, any offense, as defined by the statute or act bei ng repeale d or am ended , comm itted while su ch statute or act was in full force an eff ect shall be prosecuted under the act or

statute in effec t at the t ime of the commissi on of the of fense. Yet, the United States Supreme Court hasheld t hat laws which change a rule of evidence, but which do not inc rease th e punishment nor change t he eleme nts of the off

ense or the ultimate fa cts nece ssary to estab lish gu ilt, but on ly
remove existi ng restri ctions on the competency of certain c lasses of ev idence or of person s as witne sses do not cons titute ex pos t facto laws

. State v. Bragan , 920 S.W.2d 227, 241 (Tenn. Cri m. App. 1995) (ci tationsomitted). In Dobbe rt v. Florida , 432 U.S. 282, 293, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), t he Supr eme Court held that the pro hibitio n of ex post facto law s does no t extend to every change of law that

"may work to t he disadvantage of a defe ndan t." Instea d, it is intended to secure "sub stantive personal rights" from retr oactive deprivati on and does not "limit

the legislat ive control of remedies and modes of procedure which do not af fe ct matter s of subs tance." Id. Thus, laws whic h change rules of procedure but which do not affect an y substanti al right of a defendant are not ex post facto laws.
Here, it is a pparen t th at the tr ial court applied a pr

ocedural rul e that had been amended after t he commission ofthe crimes in quest ion. The Defendant also claims that

the right

to a fair and impa rtial jurywas impaired by the increase-51-

in peremptory chal lenges for the State. However, the D efend ant has not proffered any evidence t hat the ju ry, asit was composed by the State’s using t he additionalperemptory chal lenges, prev ent ed her from re ceiving a fair trial. Absent proof that

the Defen dant was disadvantage d or that a s ubstantiv e right
was imp aired by t he amended procedural r ule, we cannot conclude that

an ex post facto violation oc curred. T his issue is without m erit.

Sentencing on t he Conspiracy Convicti on The Defe ndant

argu es th at t he tr ial cour t er red i n sentenci ng th e De fendan t to a consecutive sentence of twenty-five (25) year s f or the c onvicti on of conspiracy to com mit first-deg ree mu rder. The Defendant complains that the t rial court inappropri ately used t he aggravati ng circum sta nce that t he crime was espe cially cruel to sentence her to the maximum sentenc e. She f urther complains that the t rial cour t erred i n d e termining t hat she was a dangerous offender and ordering her to serve t he sentence conse cutively to the dea th sentence.

When an accused challenges t he length, range, or t he manner of service of a sen tence , this court has a duty to conduct a de novo review of the sentence with a presumption t hat the determinations made by t he trialcou rt are c orrect. Tenn. Code Ann. § 4 0-35-40 1(d). Th is presum ption is “co nditi oned u pon the affirmative showing in t he record that the tri al court considered thesentencing principl es and all relevant facts and circum stances.” State v. Ashby , 823 S.W.2d 166, 169 (T enn. 1991 ).-52- In conducting a denovo review of a sentence, t his court must consider: (a) the eviden ce, if any , received at the trial and t he sentencing hear ing; (b) the presentence report; ( c) the principles of senten cing and argum ents as to sentencing alternat ives; ( d) the natur e and characteristi cs of the criminal conduct involved; (e) any statutory mitigati ng or enhancement factors; (f) any statement t hat the De fenda nt ma de on his ow n beh alf; and (g) the p otentia l o r lack o f potentialfor rehab ilitation or treatm ent. Tenn. Code Ann. § § 40-35-102, 1-103, and -21 0; see State v. S mith , 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).

If our revi ew reflect

s that thetrialcourt fol lowed the st atutory sentencing procedure, imposed a lawful sentence aft er having gi ven due consider ation and properweightto the f

actors and prin ciple s set out under th e sentenci ng law, and that the tri al court’s findings are adequately su pported by t he record, t hen we may not modify the sente nce eve n if we wo uld have preferred a different re sult. State v. Flet cher , 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).

At the sentenci ng hearing, t he State call ed as its onl y witness Of ficer Deb bie Wa de, a Co rrections O fficer with the KnoxCoun ty Sheriff’s D epartm ent. S he testif ied that on the da y the Defend ant was sen tenced to die, sh e gave Officer Wade a letter and requested that it be pa ssed to h er co-D efenda nt, Tadaryl Shipp. Offi cer Wade gave the letter to her l ieutenant an d w as told not to pass it to M r. Shipp. The letter was introduced into evi dence and read as follows: Tad aryl, hey, love, I just wanted you to know how

much I l ove you. I have ten months to l ive. I magine that. I wo uld spe nd ev ery mo ment w ith you i f I coul d,-53- baby. I want to tell y ou to tell them you lie d in your statementand go along wit h mine. D o you have a copy of mine? If not, I’ll give you one . Okay? I love you big bunche s, baby, and no matter what they do to me they can ’t change what’s in m y heart. Ple ase write me. I miss you so much. You see what I get fortryi ng to be nice to t hat ho e. I w ent ahead and bashed her brains out so she wou ld di e quickly instead of

letti ng her bleed to deat h and suffer more and theyfuc kin FRY me. A in’t that so me shi t. Ple ase wri te a nd t ellme what you’re feeling . Bake r said h e wou ld give yo u some pape r and s hit while you are o ut there. Also te ll yourlawyer if he wa nts m e to I’ll testif y, test ify for you, I will. Love you for the res t of my life . Little de vil.
The trialcourt cl assifi ed the Defen dant as a Ran ge I, standard off ender on the convicti on for

conspiracy to co mmit first degree murder. T he trial court also considered several enhancement and mitigati ng factors in setti ng the sentence above the minim um pre sump tive senten ce of fifte en (15) years. First, the tri al court applied enhancement f actor number

(2), t hat “[t]he Defendant was a l eader in the commission of an of fense involving two ( 2) ormore criminal actors.” Tenn. Code Ann. § 40-35-114( 2). The tri al judge t hen stated t hat factor nu mber (5 ), that “[t] he Defendant tre ated or all owed a victi m to be treated with except ional cruelty during the commission of the offens e,” wou ld not b e relied upon heavily because it had already been u sed in sentenci ng the Defendant to death on the othercount. Tenn. Code Ann. § 40-35-114(5). Fact or numb er ( 7), that “[t] he offense involved a victim an d was c omm itted to gratify the Defendant’ s desire for pleasure and excitement, ” factor number (9), t hat “[t] he Defendant possessed or employed a firear m, explosiv e device or

o ther deadly

weapon during th e commission of the offense,” and factor numb er (10), that “[ t]he Defendant

had no hesitati on about committi ng a crime when the risk to human life was high,” were-54-

also found to b e applica ble. Tenn. Code A nn. §§ 40-35 -114 (7),(9), and (10 ). The trial court found that no mit igating factors wer e applicabl e.

We find err

or with onl y one of the trial court’s appli cations of enhancement factors. The trial judge held t hat the Defend ant had no hesitati on about committing a cri me when t he ri sk to human l ifewas hi gh. Te nn. Co de A nn. § 40-35-114 (10). We believe that the court im prope rly app lied this enhancement factor. Enhancement factor (10) refers to the defend ant having " no hesitat ion about comm itti ng a crime w hen the ris k to human life is high. " This Court has previo usly recognized t hat factor s which are i nherent in a particul ar offense, even if not designated as an elem ent, sh ould n ot be g iven su bstan tive weig ht in increa sin g a s entenc e. See, e.g. , State v. S cott , 735 S.W.2d 825, 830 (Tenn. Cri m. App. 1987). We conclude t hat the r isk to human li fe is i nherent in t he grading of the off

ense of conspir

acy to commit f irst- de gre e murder. Accordi ng to Tennessee Code Annotated section 39- 12-107, “conspirac y is an off

ense one (1) classific ation lo wer than t he most serious of fense that is the obj ect of the consp iracy.” First- deg r ee murd er is classified as a ca pital offense, therefore conspiracy to commit fi rst-degree mu rder is a Cl ass A felony, a class reser ved for only the m ost seriou s offense s.
Moreover, the indict ment containsallegat ions in suppor t of the el ement of conspiracy that an over t act be t aken, that t he Defendant and two others lef

t the Job Corp s cen ter, took the victim to an isolat ed locati on and attacked her with a box cutter. Not only i s the risk t o human life i nherent in the offense, i n the case sub judice , high ris k acts were i ncluded in the indictmen t as charged in support-55-

of an elem ent of the c rime. See Tenn. Cod e Ann. § 39 -12-103(a), (d). Enhancement factors may be applied “if not

themselves essent ial el ements of the offense as cha rged in the indictmen t.” Tenn . Code Ann. § 4 0-35-11 4. For bo th of these reaso ns, we conc lude that enha nceme nt factor s hould not have been applied.

The eviden ce pro duce d at trial, includi ng the Defe ndant’s o wn state ment, and the lette r intr

oduced at the sentencing heari ng would certai nly support the factor that she was a l eader in the commission ofthe offens e. The statement of the Defendant, t he testi mony concerning her recounting of the incident

to others, the fact that

she carried a piece of t he victi m’s skull as a souvenir, and her return to the scene w ere evidence of her desire f or excitement and pleasure. Again, by her own statement, the Defendant admit ted carry ing a deadly weapon.
Although we disagree wi th the tr ial court’s finding that the Defendant’s age and lack of a signif icant history of prior cr imi nal ac tivities we re not a pplica ble mitigati ng factors, we cannot conclude that the t rial cour t erred i n sentencing t he Defendant to the maxim um se ntence of twenty-five (25) years

. Clearly, when the applic able enhan cing facto rs are we ighed a gainst the miti gating factors, the record supports the tri al court’ s sentence.

The trialcourt found that consecut ive sentence s were warranted because the Def endan t is a danger ous offender whos e behavior i ndicates l ittl e or no regard for hum an life and had no hesitat ion about committ ing a cri me in which the riskto human life was hi gh. S ee State v. Wilkerson , 905 S.W.2d 933, 937-39-56-

(Tenn. 1995). Again, given the c ircumstances sur roundi ng this off ense, esp ecially the heinous nat ure of the crime and the fact that the Defendant showed no remorse , we co nclude that the Defendant met t he criter ia for
consecu tive sentencing and t he trialcourt did not abuse her discreti on in orderi ng such. T he sen tencing is sues ra ised by the Defen dant are without m erit.


### CONCLUSION Upon car eful review of the record, we conclude that the Defendant has offered no gr

ounds that warr

ant reli ef from her conv iction s of premeditated first degree murder and co nspirac y to commit

fir st degre e murder. Moreover , we conclude that the Defendant has fai led to establish any ground warranti ng relief from th e s entence of deat h and the consecutive sentence of twenty-f ive (25) years.
Therefore, after a thorough rev iew of the i ssues and the recor d before us
as mandated by Tennessee Code A nnotated se ction 39-13-20 6(b) and (c), and forthe reas ons stated herei n, we affirm th e app ellant’s senten ce of dea th. W e conclude thatthe sentence was not imposed in an arbi trary f ashion, the evidence
s upports the jury’s fi nding of t he aggravati ng circumstances, and the evide nc e suppo rts the jury ’s fi nding that the aggr avating circumstances out weigh any mitigati ng circu mstances. Moreover , a comparat ive pr oporti onalit

y revi ew, consideri ng both the c ircums tances of the crim e and th e nature of the app ellant, convinces us that the sentence of death is n either exc essive no r disprop ortionate to the penalty i mposed in similar cases.-57- Accordingly , the judg ment of the t rial cour t is af firmed.