State v. Berry

141 S.W.3d 549 | Tenn. | 2004

141 S.W.3d 549 (2004)

STATE of Tennessee
v.
Gdongalay P. BERRY.

Supreme Court of Tennessee, at Nashville.

June 3, 2004 Session. August 23, 2004.

Thomas F. Bloom and James A. Simmons, Nashville, Tennessee, for appellant, Gdongalay P. Berry.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Mark A. Fulks, Assistant Attorney General; David Hamm and Katrin Miller, Assistant District Attorneys General, for appellee, State of Tennessee.

OPINION

WILLIAM M. BARKER, J., delivered the opinion of the court, in which FRANK F. DROWOTA, III, C.J., and E. RILEY ANDERSON and JANICE M. HOLDER, JJ., joined. ADOLPHO A. BIRCH, JR., J., filed a concurring and dissenting opinion.

A jury convicted the defendant, Gdongalay P. Berry, of two counts of premeditated murder, two counts of felony murder, two counts of especially aggravated kidnapping, and two counts of especially aggravated robbery, for the murders, kidnappings and robberies of DeAngelo Lee and Gregory Ewing.^[1] Following a capital sentencing hearing, the jury found three aggravating circumstances in each murder: (1) that the defendant was previously convicted of one or more felonies other than the present charge, the statutory elements of which involve the use of violence to the person;^[2] (2) that the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another; and (3) that the murder was knowingly committed, solicited, directed, or aided by the defendant while the defendant had a substantial role in committing or attempting to commit robbery or kidnapping. Tenn.Code Ann. § 39-13-204(i)(2), (6), (7) (1996). The jury also found that these aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt. Accordingly, the jury imposed sentences of death for each of the murder convictions. As to the remaining felony convictions, the trial court sentenced the defendant as a violent offender, and imposed an effective fifty-year sentence, to run consecutively to the death penalty.^[3] The defendant appealed, challenging both his convictions and the sentences of death. After fully considering the issues raised by the defendant, the Court of Criminal Appeals affirmed the convictions and the sentences.

The appeal was automatically docketed in this Court pursuant to Tennessee Code Annotated section 39-13-206 (2003). After considering the briefs and the record, this Court entered an order specifying five issues for oral argument,^[4] including whether the indictment was sufficient, whether the failure of the Rules of Evidence to apply to capital sentencing hearings violated the rights to due process and confrontation, whether the evidence was sufficient to support the verdict, whether the defendant was denied his right to a speedy trial, and whether the death sentence was comparatively proportionate and valid under the mandatory review of Tennessee Code Annotated section 39-13-206(c)(1)(A)-(D) (2003). After a careful and exhaustive review of the record and the legal authority relevant to the issues raised, we affirm the defendant's convictions and sentences.

I. Background

A. Guilt Phase

The nineteen-year-old defendant, Gdongalay Berry, was convicted of the first-degree premeditated murders, kidnappings, and robberies of nineteen-year-old DeAngelo Lee and eighteen-year-old Greg Ewing. The State's proof showed that the defendant and a separately tried co-defendant, Christopher Davis, arranged to purchase weapons for $1200 from Lee and Ewing on the evening of February 27, 1996. Earlier that evening, the defendant and Davis were at Davis's apartment drinking and smoking marijuana with Ronald Benedict, Antoine Kirby, and Antonio Cartwright. Cartwright testified at trial that he overheard Davis and the defendant talking about robbing the two victims and taking their guns and automobile. Cartwright testified that the defendant stated, "If we rob 'em, we gotta kill 'em . . . [b]ecause they know us."^[5] Between 7:30 and 8:00 p.m. that evening, after receiving a telephone call from Lee, the defendant, Davis, and two other men identified as "Kay" and "Sneak"^[6] left the apartment. Both the defendant and Davis were armed with guns — Davis with a 9mm handgun, the defendant with a .45 caliber handgun. Davis also carried a black bag containing handcuffs, rope, and duct tape. Approximately thirty minutes later, Kay and Sneak returned to the apartment. Thirty to forty-five minutes after that, the defendant and Davis also returned. They were driving Lee's Cadillac and were carrying at least six assault weapons, some pagers, and clothing, including Lee's distinctive green and yellow tennis shoes, and Ewing's jacket. Davis was wearing a gold cross necklace that belonged to Lee. The defendant told Cartwright that "Chris [Davis] couldn't kill Greg [Ewing], so I had to," and announced that he had shot Ewing multiple times in the head. After placing the assault weapons under Davis's bed, the defendant and Davis left the apartment in Lee's Cadillac and another vehicle. They drove to a sparsely wooded residential area off a dead-end street, set fire to the interior of the Cadillac, and abandoned it. The men then went to a Nashville motel where they spent the night.

The next morning, Ewing's and Lee's bodies were found lying on a hill at a construction site in south Nashville near Interstate 440. Both victims were only partially clothed. A rope on the ground led up the hill to the body of one of the victims. Ewing had been shot three times in the head, twice in the shoulder, once in the neck, and once in the abdomen. Lee had been shot three times in the head and once in the hand. Ballistics testing showed that the weapons used to kill the victims were 9mm and .45 caliber handguns.

By coincidence, at approximately 9:00 a.m. on the same morning the victims' bodies were found, three detectives from the Metropolitan Police Department went to Davis's apartment to investigate an unrelated crime. While questioning two men present at the apartment, Ronald Benedict and Antonio Cartwright, the detectives noticed the automatic rifles under the bed in Davis's bedroom. At about this time, the defendant, Davis, Dimitrice Martin (Davis's girlfriend), and Brad Benedict (Ronald Benedict's brother), unexpectedly rushed through the front door. Davis was talking on a cell phone and had a .45 caliber handgun in his waistband. The defendant was carrying a fully loaded automatic rifle. Startled to see police present, the defendant, Davis, and Brad Benedict turned and fled out the front door. The detectives pursued them and caught Davis. Benedict and the defendant escaped, although the defendant dropped the rifle he had been carrying. This rifle turned out to be one of the weapons stolen from Lee and Ewing.

A subsequent search of Davis's apartment yielded a 9mm pistol underneath the cushion of the couch where Ronald Benedict had been sitting. Forensic testing later revealed that the 9mm caliber bullets recovered from the victims' bodies were fired from this gun. The .45 caliber gun used in the crime was never found. Among the items police found in Davis's bedroom were a pair of handcuffs with a key, a pager, a cell phone, a Crown Royal bag containing $1400 in cash, a black backpack, a large quantity of ammunition, Lee's green and yellow tennis shoes, Ewing's jacket, two .45 caliber pistols, two SKS rifles, and one Universal .30 caliber M-1 carbine. At the time of the search, however, officers were unaware that the items were connected to the murders of Ewing and Lee.

Davis and his girlfriend, Dimitrice Martin, were taken to the police station for questioning. Before his interview, Davis removed Lee's gold cross necklace and told Martin to put it in her purse. He also instructed Martin to call Ronald Benedict's girlfriend at the apartment and tell her to dispose of Lee's green and yellow tennis shoes.

As a result of the questioning of Davis and Martin, police discovered the connection between Davis, the defendant, and the murders of Lee and Ewing. The police took Lee's necklace from Martin. One of the detectives returned to Davis's apartment to retrieve Lee's tennis shoes and Ewing's jacket. While he found Ewing's jacket on Davis's bed, the tennis shoes were gone.

After the defendant was eventually arrested on March 6, 1996, he waived his Miranda^[7] rights and gave a statement to police in which he admitted that he had been with Davis when the victims were robbed and killed. He disavowed any active role in the crimes and claimed that he had not known Davis intended to kill the victims. According to the defendant, Davis and a third man, Christopher Loyal, had abducted Ewing and Lee after Ewing attempted to rob Davis. The defendant claimed that the victims were already handcuffed and restrained when he joined Davis and Loyal in the Cadillac. The group then drove to the construction site. Davis made the victims remove their clothing, and the defendant claimed he thought it would stop at that. As he watched, however, Davis and Loyal repeatedly shot the two men.^[8]

The jury returned a verdict at the conclusion of the guilt phase and found the defendant guilty of two counts of premeditated murder, two counts of felony murder, two counts of especially aggravated kidnapping, and two counts of especially aggravated robbery.

B. Penalty Phase

During the penalty phase of trial, the State presented victim impact evidence through the testimony of the mothers of the two victims. Both mothers testified that they were close to their sons and that they missed their companionship. Ewing's mother, Brenda Sanders, testified that she did not know until the trial that her son had been shot seven times, or that he had screamed for his life prior to his death. She testified that it gave her a certain sense of closure to hear that evidence. There was no objection during the presentation of this victim impact evidence.

Next, the State presented certified copies of the defendant's 1994 conviction for aggravated assault, his two 1998 convictions for aggravated robbery, and his 1999 conviction for first-degree murder. The State also relied upon the proof presented during the guilt phase of the trial to support imposition of the death penalty.

Through the testimony of a mitigation expert and several members of his family, the defendant presented extensive information about his background. He was born prematurely on September 5, 1976, to Frieda Berry and Fred Black. His parents never married, and throughout his life he had only sporadic contact with his father, who served a ten-year prison sentence for robbery. When the defendant was a year old, his mother married Laurice Thomas, with whom she had two sons. The defendant's immediate family also included another, older half-brother, the child of the defendant's mother and a third man. The Thomas's marriage was described as hostile and volatile. Both Thomas and the defendant's mother had mental health problems. The defendant's mother was repeatedly institutionalized for mental illness and variously diagnosed with schizophrenia, depression with psychosis, and bipolar disorder. In 1982, while his wife and the children were present in the home, Laurice Thomas committed suicide by shooting himself in the bathroom. As a result, the defendant's mother had a mental breakdown, and the defendant and his half-brothers eventually went to live with their maternal grandmother and step-grandfather. At his grandmother's home, the defendant was part of a large family consisting of his siblings and aunts and uncles, who grew up with him like brothers and sisters. The defendant's grandmother and step-grandfather were described as hardworking people, who provided a good home for the defendant. After the defendant's mother remarried, the defendant's mother and grandmother engaged in litigation over the children's custody. The defendant's mother's second husband also committed suicide by jumping off a bridge and drowning.

The defendant had to repeat the fourth and eighth grades. He was described as a good boy, who did his chores and loved children. He participated in school sports and excelled at wrestling. At fourteen, the defendant was sent to an alternative school for fighting on the school bus and at school. His family testified that when he returned to high school the following year, he was singled out and strip searched. At the age of eighteen, while in the tenth grade, the defendant dropped out of school and left his grandmother's home. According to the defendant's family, the defendant's change in behavior occurred because of the bad influence of other teenagers. For a short time, the defendant lived with his older half-brother, but he was asked to move out because of visits from his friends, who sold drugs.

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

The defendant chose not to testify, and confirmed this decision during a jury-out hearing held pursuant to Momon v. State, 18 S.W.3d 152, 162 (Tenn.1999).^[9]

Dr. William Bernet,^[10] a forensic psychiatrist, interviewed the defendant and evaluated his mental status. Dr. Bernet noted that the defendant had three risk factors in his background. The first was a strong history of mental illness on both the maternal and paternal sides of his family. The second was a family history of criminal behavior. The third was the defendant's disturbed and disorganized family life, based on his having a young, unmarried mother, his stepfathers' suicides, frequent moves, a large, complicated household, the custody dispute between his mother and grandmother, and the like. Dr. Bernet indicated that the defendant exhibited some paranoid tendencies, had experienced auditory hallucinations, and was depressed. Dr. Bernet also opined that the defendant had been intoxicated on the day of these crimes, and that all of the above factors had interfered with his judgment in participating in the offenses. Dr. Bernet noted that since the defendant's incarceration, he had been involved in four violent incidents; one, an attack on a fellow inmate, hurt the victim so badly that he was treated in the intensive care ward.

In rebuttal, the State called Dr. Thomas Schacht, a clinical and forensic psychologist. Dr. Schacht had interviewed and tested the defendant. Dr. Schacht opined that prior tests administered to the defendant by another psychologist and relied upon by Dr. Bernet were problematic and potentially invalid. For example, the defendant had exhibited "high inconsistency" on a test to determine if he was malingering. Also, the defendant had been permitted to take the Minnesota Multi-Phasic Personality Inventory in his prison cell and had not completed all the answers; the defendant refused to complete the answers for Dr. Schacht. Another test, the Structure Interview of Reported Symptoms, indicated that the defendant was not reporting his mental symptoms accurately and that there was a fifty to eighty-one percent chance that he was feigning mental illness. Nevertheless, Dr. Schacht conceded that testing indicated that the defendant had some paranoid traits and perhaps even suffered from a paranoid personality disorder. Dr. Schacht described the specifics of the four prior violent episodes in prison, which included, in addition to the above-described assault on the other prisoner, his breaking the sprinkler system in his cell and flooding his unit, creating a disturbance, and threatening and spitting on staff members. Dr. Schacht opined that there was no indication that the defendant was a follower. He also testified that there was no proven genetic relationship to criminal behavior, although a family history of mental illness is a risk factor. In Dr. Schacht's opinion, there was no connection between the defendant's background and the facts of this case.

At the conclusion of the penalty phase, the jury found the existence of three aggravating circumstances: (1) that the defendant was previously convicted of one or more felonies other than the present charge, the statutory elements of which involve the use of violence to the person; (2) that the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another; and (3) that the murder was knowingly committed, solicited, directed, or aided by the defendant while the defendant had a substantial role in committing or attempting to commit robbery or kidnapping. Tenn.Code Ann. § 39-13-204(i)(2), (6), (7) (1996). The jury also found that these aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt and imposed sentences of death for each of the murder convictions.

II. Analysis

A. Failure to charge aggravating circumstances in the indictment

The defendant asserts that the indictment in this case is constitutionally defective because it fails to charge the aggravating circumstances relied on by the State to sentence him to death. He argues that such a conclusion is warranted by the United States Supreme Court's holdings in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002). Alternatively, the defendant argues that such a finding is required by the due process and notice requirements of the federal and state constitutions and Tennessee statutory law.

We have addressed this same issue on several occasions, most recently in State v. Odom, 137 S.W.3d 572, 588-89 (Tenn.2004). See also State v. Holton, 126 S.W.3d 845, 862-63 (Tenn.2004); State v. Carter, 114 S.W.3d 895, 910 n. 4 (Tenn.2003); and State v. Dellinger, 79 S.W.3d 458, 466 (Tenn.2002). We have consistently rejected the argument that aggravating circumstances must be pled in the indictment, and continue to do so today.

In Apprendi, the United States Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490, 120 S. Ct. 2348. Of particular interest is the Apprendi Court's limitation of its discussion to the due process guarantees of the right to trial by jury and the right to have every element of the offense proved beyond a reasonable doubt. The Court expressly noted that no constitutional claim related to the adequacy of the indictment was made, and that the Fourteenth Amendment had not previously been construed to apply the Fifth Amendment right to "presentment or indictment of a Grand Jury" to the states. Id. at 477 n. 3, 120 S. Ct. 2348.

Following Apprendi, this Court decided Dellinger. In Dellinger, the defendant questioned whether Apprendi's holding required that aggravating circumstances be charged in the indictment. We held that Apprendi's requirements did not apply to Tennessee's capital sentencing procedures because

1. The Apprendi holding specifically excluded from its requirements the prior conviction aggravating circumstance, and this was the only circumstance at issue in Dellinger's case;

2. The Apprendi holding applied only to enhancement factors used to impose a sentence above the statutory maximum, and under the Tennessee statutory scheme, the death penalty was within the statutory range of punishment;^[11]

3. The Apprendi court was concerned about a defendant receiving a sentence beyond what was expected based on the charged offense and the range of punishment, while Tennessee Rule of Criminal Procedure 12.3, which requires notice to a defendant when the death penalty is sought, satisfied the requirements of notice and due process;

4. The Apprendi holding applied to judge sentencing and under the Tennessee capital sentencing scheme, juries, not judges, made the factual findings regarding the existence of aggravating circumstances; and

5. The Apprendi holding required application of "beyond a reasonable doubt" standard for finding enhancement factors, and under the Tennessee capital sentencing scheme, the jury was already required to make its findings of aggravating circumstances "beyond a reasonable doubt."

Based on the distinctions between our capital sentencing scheme and the New Jersey sentencing scheme at issue in Apprendi, we concluded that the principles of Apprendi did not apply to Tennessee capital cases, and did not require that the State charge in the indictment the aggravating circumstances relied upon to support the imposition of a death sentence. Dellinger, 79 S.W.3d at 466-67.^[12]

Following our decision in Dellinger, the United States Supreme Court was called on to review Arizona's capital sentencing scheme in Ring v. Arizona. Under the Arizona scheme, although guilt or innocence of capital murder was determined by a jury, the question of presence or absence of aggravating factors required by Arizona law for imposition of the death penalty was determined by a trial judge sitting alone. Relying on Apprendi's holding that the Sixth Amendment required a jury determination of any facts that would expose a defendant to a penalty exceeding the maximum, the Court found Arizona's scheme unconstitutional. Ring, 536 U.S. at 609, 122 S. Ct. 2428. The Court expressly held that "Arizona's enumerated aggravating factors operate as `the functional equivalent of an element of a greater offense,' [and] the Sixth Amendment requires that they be found by a jury." Id. (quoting Apprendi, 530 U.S. at 494 n. 19, 120 S. Ct. 2348).^[13]

Again, however, the Supreme Court declined to extend the Fifth Amendment right to presentment or grand jury indictment, and noted that Ring's claim did not address the constitutionality of the indictment. The Court reiterated its statement in Apprendi that the "Fourteenth Amendment has not . . . been construed to include the Fifth Amendment right to `presentment or indictment of a Grand Jury.'" Ring, 536 U.S. at 597 n. 4, 122 S. Ct. 2428 (quoting Apprendi, 530 U.S. at 477 n. 3, 120 S. Ct. 2348).

The law in this area is still developing. See Blakely v. Washington, 542 U.S. ___, ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) ("the `statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant"). The holdings in Ring and Blakely do not change our analysis in Dellinger regarding whether aggravating circumstances must be pled in the indictment. The focus in Apprendi, Ring, and Blakely was on the Sixth Amendment right to trial by jury. In both Apprendi and Ring, the Court expressly declined to impose the Fifth Amendment right to presentment or grand jury indictment upon the States. Ring, 536 U.S. at 597 n. 4, 122 S. Ct. 2428; Apprendi, 530 U.S. at 477 n. 3, 120 S. Ct. 2348. We are unwilling to do what the U.S. Supreme Court would not.^[14] Furthermore, we note that the majority of states addressing this question have likewise declined to require the inclusion of aggravating circumstances in the indictment. See Banks v. State, 842 So. 2d 788, 793 (Fla.2003); Terrell v. State, 276 Ga. 34, 572 S.E.2d 595, 602 (2002), cert. denied ___ U.S. ___, 124 S. Ct. 88, 157 L. Ed. 2d 64 (2003); People v. Davis, 205 Ill. 2d 349, 275 Ill. Dec. 781, 793 N.E.2d 552, 568-70 (2002), cert. denied 537 U.S. 896, 123 S. Ct. 195, 154 L. Ed. 2d 165 (2002); Soto v. Commonwealth, 139 S.W.3d 827, 842 (Ky.2004); Baker v. State, 367 Md. 648, 790 A.2d 629, 650 (2002), cert. denied 535 U.S. 1050, 122 S. Ct. 1814, 152 L. Ed. 2d 817 (2002); Stevens v. State, 867 So. 2d 219, 227 (Miss.2003); State v. Gilbert, 103 S.W.3d 743, 747 (Mo.2003); Floyd v. State, 118 Nev. 156, 42 P.3d 249, 256 (2002), cert. denied 537 U.S. 1196, 123 S. Ct. 1257, 154 L. Ed. 2d 1033 (2003); State v. Hunt, 357 N.C. 257, 582 S.E.2d 593, 605 (2003), cert. denied 539 U.S. 985, 124 S. Ct. 44, 156 L. Ed. 2d 702 (2003); Primeaux v. State, 88 P.3d 893, 899-900 (Okla.Crim.App.2004); State v. Oatney, 335 Or. 276, 66 P.3d 475, 485-87 (2003), cert. denied ___ U.S. ___, 124 S. Ct. 1148, 157 L. Ed. 2d 1045 (2004). But see State v. Fortin, 178 N.J. 540, 843 A.2d 974, 1027-38 (2004) (requiring inclusion on state constitutional grounds, for prospective application only).

Recognizing the limitations of the Apprendi/Ring holdings, the defendant argues that our own constitutional provision for indictment, Tennessee Constitution article I, section 14^[15] mandates that aggravating circumstances be charged in the indictment. We disagree.

The overriding purpose of an indictment is to inform the accused of "the nature and cause of the accusation." U.S. CONST. amend. VI; TENN. CONST. art. I, § 9. In addition, Tennessee Code Annotated section 40-13-202 requires that an indictment:

state the facts constituting the offense in ordinary and concise language, without prolixity or repetition, in such a manner as to enable a person of common understanding to know what is intended, and with that degree of certainty which will enable the court, on conviction, to pronounce the proper judgment.

An indictment that achieves its "overriding purpose of notice to the accused will be considered sufficient to satisfy both constitutional and statutory requirements." State v. Hammonds, 30 S.W.3d 294, 300 (Tenn.2000). This Court has held that an indictment is sufficient to satisfy notice requirements if it "contains allegations that (1) enable the accused to know the accusation to which answer is required; (2) furnish the trial court an adequate basis for entry of a proper judgment; and (3) protect the accused from a subsequent prosecution for the same offense." Id. at 299 (citing State v. Hill, 954 S.W.2d 725, 727 (Tenn.1997)). We have previously held that an indictment which references the statute defining the offense is sufficient and satisfies the constitutional and statutory requirements of Hill. See State v. Sledge, 15 S.W.3d 93, 95 (Tenn.2000) (holding an indictment alleging that the defendant "did unlawfully kill [the victim] during the perpetration of Aggravated Robbery, in violation of Tenn.Code Ann. 39-13-202" sufficient because it contained a specific reference to the statute which was "sufficient to place the accused on notice of the charged offense"); State v. Carter, 988 S.W.2d 145, 148 (Tenn.1999) (holding that reference to the appropriate statute was sufficient in felony murder indictments alleging that the defendant did "unlawfully kill [the victims] during the perpetration of Aggravated Robbery, in violation of Tenn.Code Ann. 39-13-202"); Ruff v. State, 978 S.W.2d 95, 100 (Tenn. 1998) (holding that "an indictment which cites the pertinent statute and uses its language will be sufficient to support a conviction").

Despite the language in Apprendi and Ring referring to aggravating circumstances as "the functional equivalent of an element of a greater offense," Ring, 536 U.S. at 609, 122 S. Ct. 2428; Apprendi, 530 U.S. at 494 n. 19, 120 S. Ct. 2348, for purposes of pleading, we view aggravating circumstances as more similar to sentencing enhancements. In Tennessee, the elements of the offense of first-degree murder are: (1) a killing of another with (2) premeditation and (3) intent; or (1) a killing of another (2) in the perpetration of certain enumerated offenses; or (1) a killing of another (2) by the unlawful throwing, placing or discharging of a destructive device or bomb. Tenn.Code Ann. § 39-13-202 (1996). Proof of these essential elements, without any proof of an aggravating circumstance, will support a conviction of first-degree murder. It is only when the state seeks to impose an enhanced sentence of life without parole or death that the aggravating circumstances come into play. Tenn.Code Ann. § 39-13-204(i) (1996).

Accordingly, the primary concern for a defendant charged with first-degree murder is notice that he or she is facing an enhanced sentence of life without parole or death. Such notice is provided for in both the Code and in the Tennessee Rules of Criminal Procedure. Tenn.Code Ann. § 39-13-208 (1996), Tenn. R.Crim. P. 12.3 (1984). Rule 12.3 of the Rules of Criminal Procedure mandates written notice, given at least thirty days prior to trial, of the state's intention to seek the death penalty and of the aggravating circumstances the State intends to rely upon for such enhanced sentence. Section 39-13-208 provides for the same in cases where the State is seeking an enhanced sentence of life without parole.

We have previously held, and we continue to find, that the provisions of Rule 12.3 satisfy the constitutional requirements of notice. See State v. Odom, 137 S.W.3d at 591 n. 13; State v. Dellinger, 79 S.W.3d at 467; State v. Bush, 942 S.W.2d 489, 520 (Tenn.1997); State v. Johnson, 762 S.W.2d 110, 117 (Tenn.1988). The defendant argues that the decision whether to seek the death penalty and requirement of notice provided by Rule 12.3 is tainted because the State, which ultimately has the discretion whether to seek the death penalty, is an interested party. Allowing a disinterested grand jury to allege the applicable aggravating circumstances, he urges, would be preferable. However, we have held previously that "`[p]rosecutorial discretion used in selecting candidates for the death penalty does not result in any constitutional deprivation.'" State v. McKinney, 74 S.W.3d 291, 320 (Tenn.2002) (quoting State v. Cazes, 875 S.W.2d 253, 268 (Tenn.1994)); State v. Brimmer, 876 S.W.2d 75, 86-87 (Tenn.1994)). So long as adequate notice and opportunity for hearing is provided for by our statutory scheme, aggravating circumstances need not be included in the indictment.

B. Application of the Rules of Evidence

The defendant argues that the relaxed standard of proof during the sentencing phase of capital proceedings violates the guarantees of reliability and trustworthiness required by the due process and confrontation clauses of the federal constitution. U.S. Const. amend. V, VI. His complaint goes to that part of Tennessee Code Annotated section 39-13-204(c) (1996) that provides:

In the sentencing proceeding, evidence may be presented as to any matter that the court deems relevant to the punishment and may include, but not be limited to, the nature and circumstances of the crime; the defendant's character, background history, and physical condition; any evidence tending to establish or rebut the aggravating circumstances enumerated in subsection (i); and any evidence tending to establish or rebut any mitigating factors. Any such evidence which the court deems to have probative value on the issue of punishment may be received regardless of its admissibility under the rules of evidence; provided, that the defendant is accorded a fair opportunity to rebut any hearsay statements so admitted. However, this subsection shall not be construed to authorize the introduction of any evidence secured in violation of the constitution of the United States or the constitution of Tennessee.

The defendant urges this Court to invalidate this provision and hold that the Tennessee Rules of Evidence are to be applied strictly to the introduction of evidence in support of aggravating circumstances during capital sentencing hearings.^[16]

Under the statute, any evidence relevant to the circumstances of the murder, the aggravating circumstances relied upon by the State, or the mitigating circumstances is admissible if such evidence has probative value in the determination of punishment. See State v. Teague, 897 S.W.2d 248, 250 (Tenn.1995). As we noted in State v. Carter, 114 S.W.3d 895, 903 (Tenn. 2003), however,

the statute does not require . . . that the rules of evidence be completely disregarded. The trial court retains its traditional role in controlling the introduction of evidence, and it may continue to use the rules of evidence to guide its decisions regarding admissibility of evidence in capital sentencing proceedings. See State v. Sims, 45 S.W.3d 1, 14 (Tenn. 2001).

In Sims we stated:

[I]n general, § 39-13-204(c) should be interpreted to allow trial judges wider discretion than would normally be allowed under the Tennessee Rules of Evidence in ruling on the admissibility of evidence at a capital sentencing hearing. The Rules of Evidence should not be applied to preclude introduction of otherwise reliable evidence that is relevant to the issue of punishment, as it relates to mitigating or aggravating circumstances, the nature and circumstances of the particular crime, or the character and background of the individual defendant. As our case history reveals, however, the discretion allowed judges and attorneys during sentencing in first degree murder cases is not unfettered. Our constitutional standards require inquiry into the reliability, relevance, value, and prejudicial effect of sentencing evidence to preserve fundamental fairness and protect the rights of both the defendant and the victim's family. The rules of evidence can in some instances be helpful guides in reaching these determinations of admissibility. Trial judges are not, however, required to adhere strictly to the rules of evidence. These rules are too restrictive and unwieldy in the arena of capital sentencing.

45 S.W.3d at 14.

We conclude that the evidentiary standards set forth in Tennessee Code Annotated section 39-13-204(c) enable the trial courts to exclude any evidence that is repugnant to the constitutional guarantees of due process, or that would violate a defendant's right to confrontation or cross-examination. Accordingly, those standards do not violate the due process or confrontation clauses of the Fifth and Sixth Amendment.

C. Sufficiency of the Evidence

The defendant challenges the sufficiency of the convicting evidence, arguing that under the facts presented, he is guilty of, at the most, facilitation of the victims' kidnappings, robberies, and murders. He attacks the credibility of the State's "star witness," Antonio Cartwright as "objectively and patently unbelievable." We disagree.

Tennessee Rule of Appellate Procedure 13(e) (1980) ordains that "[f]indings of guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt." Upon conviction, the burden of demonstrating why the evidence is insufficient to support the verdict falls upon the convicted criminal defendant, because a verdict of guilt destroys the presumption of innocence and imposes a presumption of guilt. See State v. Evans, 108 S.W.3d 231, 237 (Tenn.2003); State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.1982). The standard for appellate review when a criminal defendant challenges the sufficiency of the evidence is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); see also Tenn. R.App. P. 13(e); State v. Reid, 91 S.W.3d 247, 276 (Tenn.2002); State v. Hall, 8 S.W.3d 593, 599 (Tenn.1999).

"On appeal, the State is entitled to the strongest legitimate view of the evidence and to all reasonable and legitimate inferences that may be drawn therefrom." State v. Smith, 24 S.W.3d 274, 279 (Tenn.2000); see also Carruthers, 35 S.W.3d at 558; Hall, 8 S.W.3d at 599. A guilty verdict by the trier of fact accredits the testimony of the State's witnesses and resolves all conflicts in the evidence in favor of the prosecution's theory. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions about the credibility of witnesses, the weight and value of the evidence, as well as all factual issues raised by the evidence are resolved by the trier of fact, and this Court will not re-weigh or re-evaluate the evidence. See Evans, 108 S.W.3d at 236; Bland, 958 S.W.2d at 659. Nor will this Court substitute its own inferences drawn from circumstantial evidence for those drawn by the trier of fact. See Evans, 108 S.W.3d at 236-37; Carruthers, 35 S.W.3d at 557.

The defendant argues that if he is guilty of anything, it is of facilitation of these crimes. For purposes of the following discussion, we refer to the criminal responsibility statute and the facilitation statute. The criminal responsibility statute provides in pertinent part that

[a] person is criminally responsible for an offense committed by the conduct of another if

(1) Acting with the culpability required for the offense, the person causes or aids an innocent or irresponsible person to engage in conduct prohibited by the definition of the offense;

(2) Acting with intent to promote or assist the commission of the offense, or to benefit in the proceeds or results of the offense, the person solicits, directs, aids, or attempts to aid another person to commit the offense; or

(3) Having a duty imposed by law or voluntarily undertaken to prevent commission of the offense and acting with intent to benefit in the proceeds or results of the offense, or to promote or assist its commission, the person fails to make a reasonable effort to prevent commission of the offense.

Tenn.Code Ann. § 39-11-402 (1997). A person found criminally responsible for an offense committed by another is guilty to the same degree as the principal offender. State v. Richmond, 90 S.W.3d 648, 655 (Tenn.2002); State v. Phillips, 76 S.W.3d 1, 9 (Tenn.Crim.App.2001).

To compare, the facilitation statute provides that

[a] person is criminally responsible for the facilitation of a felony if, knowing that another intends to commit a specific felony, but without the intent required for criminal responsibility under § 39-11-403(2), the person knowingly furnishes substantial assistance in the commission of the felony.

Tenn.Code Ann. § 39-11-403(a) (1997). A person found guilty of facilitation of an offense is subject to punishment for an offense one class next below that of the felony facilitated. A defendant's presence, knowledge of, and participation in the crimes charged, clearly raises a question of fact for the jury as to defendant's participation as a principal or a facilitator. See Richmond, 90 S.W.3d at 654-55; Flippen v. State, 211 Tenn. 507, 365 S.W.2d 895, 898-99 (1963). With these definitions in mind, we proceed to analyze the sufficiency of the evidence of the defendant's participation in each of the convicted offenses.

1. First-degree Premeditated Murder

At the time of these killings, premeditated first degree murder was defined as "a premeditated and intentional killing of another." Tenn.Code Ann. § 39-13-202(a)(1) (1995). "Premeditation" was defined as

an act done after the exercise of reflection and judgment. "Premeditation" means that the intent to kill must have been formed prior to the act itself. It is not necessary that the purpose to kill pre-exist in the mind of the accused for any definite period of time. The mental state of the accused at the time the accused allegedly decided to kill must be carefully considered in order to determine whether the accused was sufficiently free from excitement and passion as to be capable of premeditation.

Tenn.Code Ann. § 39-13-202(d) (1995). A conviction for first-degree murder required proof that the killing of another was intended. Intentional conduct refers to a person acting intentionally with respect to a result of the conduct, when it is the person's conscious objective or desire to cause the death of the victim. TENN.CODE ANN. § 39-11-106(a)(18) (1995).

The existence of premeditation is a question of fact for the jury. State v. Suttles, 30 S.W.3d 252, 261 (Tenn.2000). Because premeditation involves the defendant's state of mind, concerning which there is often no direct evidence, Tennessee cases have long recognized that premeditation may be inferred from the circumstances surrounding the killing. Holton, 126 S.W.3d at 859; State v. Davidson, 121 S.W.3d 600, 614-15 (Tenn. 2003); Bland, 958 S.W.2d at 660. We have previously identified a number of circumstances from which the jury may infer premeditation: (1) the use of a deadly weapon upon an unarmed victim; (2) the particular cruelty of the killing; (3) the defendant's threats or declarations of intent to kill; (4) the defendant's procurement of a weapon; (5) any preparations to conceal the crime undertaken before the crime is committed; (6) destruction or concealing of evidence of the killing; and (7) a defendant's calmness immediately after the killing. See Davidson, 121 S.W.3d at 615; State v. Pike, 978 S.W.2d 904, 914-15 (Tenn. 1998); Bland, 958 S.W.2d at 660. This list, however, is not exhaustive and serves only to demonstrate that premeditation may be established by any evidence from which the jury may infer that the killing was done "after the exercise of reflection and judgment." Tenn. Code Ann. § 39-13-202(d) (1995); see Pike, 978 S.W.2d at 914-15; Bland, 958 S.W.2d at 660. One learned treatise states that premeditation may be inferred from events that occur before and at the time of the killing:

Three categories of evidence are important for [the] purpose [of inferring premeditation]: (1) facts about how and what the defendant did prior to the actual killing which show he was engaged in activity directed toward the killing, that is, planning activity; (2) facts about the defendant's prior relationship and conduct with the victim from which motive may be inferred; and (3) facts about the nature of the killing from which it may be inferred that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a preconceived design.

2 Wayne R. LaFave, Substantive Criminal Law § 14.7(a) (2d ed.2003).

After reviewing the evidence in the record in the light most favorable to the prosecution, we conclude that the jury's verdict of guilt of premeditated murder is supported by the evidence beyond a reasonable doubt. The jury was in the best position to judge the credibility of the witnesses and to decide whether the defendant acted with the culpability necessary to hold him criminally responsible for the kidnapping, robbery and murder of the victims.

The proof established that the defendant and Davis planned to meet the victims for the purpose of purchasing assault weapons. At some point, they decided to rob the victims instead of paying for the guns. The defendant was overheard participating in this discussion and stating, "If we rob 'em, we gotta kill 'em ... [b]ecause they know us." The defendant and Davis carried handcuffs, rope and duct tape to their meeting with the victims. The victims were found in a remote location in a state of partial undress. Rope left at the scene indicated that the victims had been bound. Both victims were shot multiple times with two different weapons. When the defendant and Davis returned to Davis's apartment, they had numerous assault weapons and Lee's car. The defendant claimed to a friend that he had killed Ewing because Davis had been unable to do so. The defendant and Davis burned and abandoned Lee's car in a remote location, then spent the night in a motel away from their usual abode. When confronted by police the next day, both Davis and the defendant fled. Following the defendant's arrest, he admitted to being at the scene. In light of this evidence, we conclude that a reasonable juror could have found the defendant guilty of the first degree premeditated murders of Ewing and Lee based upon either his own conduct or under a theory of criminal responsibility for the conduct of his co-defendant, or both. We agree with both courts below that the evidence does not support a finding that the defendant was guilty merely of facilitation.

Insofar as the credibility of Antonio Cartwright is concerned, that was strictly a question for the jury. The jury chose to accredit Cartwright's testimony over the statement of the defendant, as was its prerogative.

2. First-degree Felony Murder and Especially Aggravated Robbery

At the time this offense was committed, felony murder was defined as "a killing of another committed in the perpetration of or attempt to perpetrate any first degree murder, arson, rape, robbery, burglary, theft, kidnapping, aggravated child abuse, or aircraft piracy." Tenn. Code Ann. § 39-13-202(a)(2) (1995). No culpable mental state was required for conviction of felony murder "except the intent to commit the enumerated offenses. . . ." Tenn.Code Ann. § 39-13-202(b) (1995). Robbery was defined as "the intentional or knowing theft of property from the person of another by violence or putting the person in fear." Tenn.Code Ann. § 39-13-401(a) (1995). In order for a person to be convicted of "especially aggravated robbery," the state was required to prove that the robbery was accomplished with a deadly weapon and the victim must have suffered serious bodily injury. Tenn.Code Ann. § 39-13-403(a) (1995).

The evidence in this case showed that the defendant and his cohort openly discussed robbing and murdering the victims in the hours before acting on their intentions. The defendants were seen later in possession of the victims' car, jewelry, clothing, and weapons. Both victims were shot to death with firearms. Based on this evidence, the convictions for especially aggravated robbery and felony murder are amply supported by the evidence beyond a reasonable doubt.

3. Especially Aggravated Kidnapping

At the time of these offenses, kidnapping was defined as false imprisonment, i.e., the knowing removal or confinement of another unlawfully so as to interfere substantially with another person's liberty, under circumstances exposing the other person to a substantial risk of bodily injury. Tenn.Code Ann. §§ 39-13-302(a), -303(a)(1) (1991). A kidnapping was "especially aggravated" under section 39-13-305 if accomplished with a deadly weapon or if the victim suffered serious bodily injury. Tenn.Code Ann. § 39-13-305(a)(1), (4) (1991).

The evidence showed that the defendant and Davis left Davis's apartment carrying a bag that contained handcuffs, rope and duct tape. There is evidence, including the defendant's own statement, that the victims were bound and transported to the construction site where their bodies were eventually found. Rope found at the murder scene was further evidence that the victims had been bound. While the evidence is unclear as to which defendant was actually responsible for binding the victims, what is clear is that the defendant played an active role in planning, preparing, and executing the kidnapping, robbery and murder of the victims. The evidence is certainly sufficient to support a finding of guilt beyond a reasonable doubt of especially aggravated kidnapping under at least a theory of criminal responsibility.

D. Speedy Trial

The defendant alleges that the two-year delay between his indictment in May 1996 and the State's filing of notice of intent to seek the death penalty in November 1998, and the four-year delay between his indictment and his trial in May 2000, violated his right to a speedy trial under the Sixth Amendment to the United States Constitution. Specifically, he asserts that the delay caused him to endure a long pre-trial incarceration, that he suffered anxiety and concern over the pending charges, that he was hampered in his preparation of a death defense, and that the delay enabled the State's "star witness," Antonio Cartwright, to "craft" his testimony to "make it most favorable to [himself] and most damaging to Defendant."

The record reflects the defendant did not file a motion in the trial court requesting a speedy trial, did not move to dismiss the indictment for failure to provide a speedy trial, and did not assert the denial of a speedy trial as a reason for relief in his motion for new trial. Despite his procedural failures, the defendant asserts that the delay constituted "plain error" that should be remedied by this Court. He does not specify the remedy he seeks for such error. Presumably, he seeks reversal of the convictions and dismissal of the indictments. See State v. Bishop, 493 S.W.2d 81, 83 (Tenn.1973).

Both the United States and Tennessee Constitutions guarantee the criminal defendant the right to a speedy trial. U.S. Const. amend VI; Tenn. Const. art. I, § 9; State v. Utley, 956 S.W.2d 489, 492 (Tenn.1997). The right to a speedy trial is also statutory in Tennessee. See Tenn.Code Ann. § 40-14-101 (2003). In addition, the Tennessee Rules of Criminal Procedure provide for the dismissal of an indictment, presentment, information or criminal complaint "[i]f there is unnecessary delay in presenting the charge to a grand jury against a defendant who has been held to answer to the trial court, or if there is unnecessary delay in bringing a defendant to trial...." Tenn. R.Crim. P. 48(b). These guarantees were designed "to protect the accused against oppressive pre-trial incarceration, the anxiety and concern due to unresolved criminal charges, and the risk that evidence will be lost or memories diminished." Utley, 956 S.W.2d at 492 (citing Doggett v. United States, 505 U.S. 647, 654, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992)). "The right to a speedy trial attaches at the time of arrest or indictment, whichever comes first, and continues until the date of the trial." State v. Vickers, 985 S.W.2d 1, 5 (Tenn. Crim.App.1997).

In determining whether a defendant's right to a speedy trial has been compromised, four factors must be weighed: the length of the delay, the reason for the delay, the defendant's assertion of his right to a speedy trial, and any prejudice to the defendant caused by the delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972); State v. Simmons, 54 S.W.3d 755, 759 (Tenn. 2001); Utley, 956 S.W.2d at 492; Bishop, 493 at 83-84. The most important question, although not determinative in every case, is whether the delay caused any prejudice to the defendant. Simmons, 54 S.W.3d at 760; State v. Carico, 968 S.W.2d 280, 285 (Tenn.1998). "[P]rejudice [is] the single most important factor in the balancing test," and the most important issue concerning prejudice to the defendant is the impairment of the ability to prepare a defense. State v. Baker, 614 S.W.2d 352, 356 (Tenn.1981). However, it is not necessary for a court to consider these factors unless there has been "some delay which is presumptively prejudicial." Barker, 407 U.S. at 530, 92 S. Ct. 2182; see also Doggett, 505 U.S. at 651-52 n. 1, 112 S. Ct. 2686. "[S]uch a delay must approach one year to trigger" an analysis of the remaining factors, Utley, 956 S.W.2d at 494; see also Vickers, 985 S.W.2d at 5, although "the line of demarcation depends on the nature of the case," Utley, 956 S.W.2d at 494.

The Court of Criminal Appeals noted that the failure to raise this issue in the trial court, either through motion for speedy trial, motion to dismiss, or in the Motion for New Trial could result in waiver of the issue. Tenn. R.App. P. 3(e). The court addressed the issue nevertheless because of the heightened review accorded death penalty cases. After applying the four-part balancing test of Barker v. Wingo, however, the court concluded that while the length of the delay in this case was presumptively prejudicial, meaningful review was impossible because without an evidentiary hearing in the trial court, neither the reason for the delay nor prejudice could be accurately ascertained. We agree.

The four-year delay in bringing this case to trial triggers the four-part Barker v. Wingo analysis. However, the length of the delay alone will not support a finding of a speedy trial violation. See State v. Wood, 924 S.W.2d 342, 349 (Tenn. 1996) (thirteen (13) year delay did not result in denial of the right to a speedy trial). The court must consider the other three factors—reason for the delay, the defendant's assertion of the right, and actual prejudice suffered—to make a determination whether the right to a speedy trial was unconstitutionally breached. Id. at 346.

The defendant argues that the length of the delay shifts the burden to the State to prove a valid reason for the delay, and the State's failure to affirmatively explain its failure to proceed to a speedy resolution of the case proves fatal. In this case, the defendant's own failure to raise the issue is the cause for the absence of any evidentiary proceedings in the trial court. We find that this failure precludes a finding that the reason for delay should be held against the State. To hold otherwise would be to ignore the final two factors mandated for consideration by Barker v. Wingo: the defendant's assertion of the right and prejudice. The defendant's failure to assert his right to a speedy trial is evidence of his waiver of such right. Furthermore, his allegations of prejudice are unsupported by the record. The bare allegation that the delay affected his ability to prepare a defense is unsupported by any specific examples. Furthermore, the contention that the delay allowed Antonio Cartwright to fabricate his testimony is also made without any reference to proof in the record. And finally, any allegation as to the anxiety and stress suffered from his incarceration during this delay is minimized by evidence that he was also incarcerated awaiting trial for two other crimes unrelated to the crimes involved here. Certainly, if there was any additional stress and anxiety, at least some of it would be attributable to his incarceration for the unrelated offenses. To summarize our position, we hold that while the length of the delay is presumptively prejudicial, the defendant's failure to assert his right to a speedy trial and the lack of prejudice support a finding of no error.

E. Mandatory Review Factors

Tennessee Code Annotated section 39-13-206(c)(1) requires that courts reviewing a sentence of death for first degree murder determine whether:

(A) the sentence of death was imposed in any arbitrary fashion; (B) the evidence supports the jury's finding of statutory aggravating circumstance or circumstances; (C) the evidence supports the jury's finding that the aggravating circumstance or circumstances outweigh any mitigating circumstances; and (D) the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the nature of the crime and the defendant.

First, we find that the sentencing hearing in this case proceeded according to the established statutory and regulatory procedures outlined in the Code and in the Rules of Criminal Procedure. Tenn. Code Ann. § 39-13-204; Tenn. R.Crim. P. 12.3, 32. Moreover, a thorough review of the record reveals that the evidence is sufficient to support the jury's finding of the aggravating circumstances beyond a reasonable doubt. The evidence indisputably supports aggravating circumstance (i)(2), that the defendant was previously convicted of one or more felonies that involved the use of violence to the person. Tenn.Code Ann. § 39-13-204(i)(2) (1996). The defendant does not dispute that at the time of this trial, he had valid convictions of first-degree murder, two aggravated robberies, and aggravated assault. Circumstance (i)(6), that the murder was committed for the purpose of avoiding prosecution, is supported by the defendant's own statements prior to the murders that if they robbed the victims, they would have to kill them because the victims knew who they were. Tenn.Code Ann. § 39-13-204(i)(6) (1996). Finally, circumstance (i)(7), that the murder was committed during the commission of a felony, is supported by the evidence that the victims were kidnapped and robbed before they were killed. Tenn.Code Ann. § 39-13-204(i)(7) (1996).

We further conclude that the evidence was sufficient to support the jury's finding that the aggravating circumstances outweigh the mitigating circumstances beyond a reasonable doubt. In determining whether the evidence supports the jury's finding, the proper standard is whether, after reviewing the evidence in the light most favorable to the State, a rational trier of fact could have found that the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt. See State v. Carter, 114 S.W.3d 895, 908 (Tenn.2003); State v. Henderson, 24 S.W.3d 307, 313 (Tenn.2000); State v. Bland, 958 S.W.2d 651, 661 (Tenn.1997). The evidence is sufficient to support the jury's decision that the three aggravating circumstances outweighed the various mitigating circumstances presented by the defendant beyond a reasonable doubt. Given his multiple prior convictions for violent crimes against the person, as well as the advance, cold-blooded planning to eliminate the victims as witnesses after the robbery, a rational juror could have found that the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt.

Finally, we are obligated by Tennessee Code Annotated section 39-13-206(c)(1)(D) to conduct a review of this case to determine whether the sentence of death is disproportionate to the penalty imposed in similar cases. This "comparative proportionality review" is designed to identify aberrant, arbitrary or capricious sentencing by determining whether the death penalty in a given case is "disproportionate to the punishment imposed on others convicted of the same crime." Bland, 958 S.W.2d at 662. It involves a comparison of this case to cases involving similar defendants and similar crimes. Id. at 668. Only those cases in which a capital sentencing hearing was conducted are used for comparison. State v. Godsey, 60 S.W.3d 759, 783 (Tenn.2001). Comparative proportionality review begins "with the presumption that the sentence of death is proportional with the crime of first degree murder." Carter, 114 S.W.3d at 908.

In making this comparison, we consider numerous factors regarding the particular defendant, including: "(1) prior criminal record; (2) age, race and gender; (3) mental, emotional and physical condition; (4) [the level of involvement or] role in the murder; (5) cooperation with authorities; (6) [the] level of remorse; (7) knowledge of the victim's helplessness; and (8) potential for rehabilitation." State v. Stout, 46 S.W.3d 689, 706 (Tenn.2001), cert. denied 534 U.S. 998, 122 S. Ct. 471, 151 L. Ed. 2d 386 (citing Bland, 958 S.W.2d at 667). Other factors relevant for consideration are: (1) the aggravating and mitigating circumstances, (2) the means, manner and place of death, (3) the motivation for the killing, (4) the victim's age, physical condition and psychological condition, (5) the absence or presence of provocation, (6) the absence or presence of premeditation, (7) the absence or presence of justification, and (8) the injury to and effect on non-decedent victims. Id. There is no mathematical formula or scientific means for making the comparison, and no two cases are exactly alike. Terry v. State, 46 S.W.3d 147, 164 (Tenn.2001). Our function is not to identify perfectly identical cases, but "to identify and to invalidate the aberrant death sentence." Id. (quoting Bland, 958 S.W.2d at 665).

In this case, the following facts are pertinent: the defendant and Davis set up a meeting with the victims planning to kidnap, rob and murder them. The defendant expressed an intent to kill the victims in order to avoid being identified. Armed with guns and equipped with handcuffs, rope and duct tape, the defendant and his cohort kidnapped and restrained the victims. They then transported the victims to a remote site where they forced the victims to disrobe and then repeatedly shot the victims. The defendant fled the scene in Lee's car, taking the victims' rifles, clothing, jewelry and shoes. When confronted by police the following day in an unrelated matter, the defendant fled and managed to evade capture for almost a week. When apprehended, the defendant did not cooperate, but gave a self-serving statement in which he blamed the co-defendant for the murders.

The defendant, an African-American male, was nineteen years old at the time he committed these offenses. He was a high school dropout with no visible means of support. Although single, he had fathered a son who was born after his arrest. He had four prior convictions for violent felonies at the time of his conviction for these offenses. The victims, ages eighteen and nineteen at the time of their deaths, were neighborhood acquaintances of the defendant. The killings were perpetrated during robberies and kidnappings of the victims, and the defendant committed the murders to keep the victims from identifying him as the perpetrator of a robbery he planned to commit. The defendant never expressed remorse for his crimes.

In mitigation, proof was presented of the defendant's somewhat disorganized family life. Neither of his parents raised him due to mental health and substance abuse problems. The defendant's father was incarcerated for a robbery conviction for ten years of the defendant's childhood. The defendant was raised in his grandmother's home with several siblings, aunts, and uncles.

Based upon an exhaustive review of the record and Supreme Court Rule 12 reports from trial judges in trials for first degree murder, we conclude that the death sentence is not disproportionate to the penalty imposed in similar cases. For purposes of comparison, we considered the following cases as similar to this case. State v. Powers, 101 S.W.3d 383 (Tenn.2003) (defendant kidnapped the victim and drove her to an abandoned house where, after robbing her of her money and jewelry, he shot her in the head; death sentence based upon the (i)(2), (6) & (7) aggravating circumstances); State v. Stout, 46 S.W.3d 689 (Tenn.2001) (defendant kidnapped the victim and took her to an isolated area where he and co-defendants robbed her and shot her in the head; death sentence based upon (i)(2), (6) & (7) aggravating circumstances); State v. Chalmers, 28 S.W.3d 913 (Tenn.2000) (defendant shot the victim in the head and back during a robbery; death sentence based on the (i)(2) aggravating circumstance); State v. Howell, 868 S.W.2d 238 (Tenn.1993) (defendant shot a convenience store clerk in the head and took money from the store; death sentence based upon the (i)(2) & (7) aggravating circumstances); State v. Bates, 804 S.W.2d 868 (Tenn.1991) (defendant escaped from jail, kidnapped the victim, took her to a wooded area where he bound and gagged her before shooting her in the head and stealing her car and traveler's checks; death sentence based upon the (i)(2), (6) & (7) aggravating circumstances); State v. King, 718 S.W.2d 241 (Tenn.1986) (defendant kidnapped the victim and drove her to a remote location where he shot her in the head, taking her car and money; death sentence based on the (i)(2), (6) & (7) aggravating circumstances); State v. Zagorski, 701 S.W.2d 808 (Tenn.1985) (defendant robbed and killed two drug dealers during a fake drug deal he had arranged in an isolated area; death sentence based on the (i)(5) & (7) aggravating circumstances); State v. Matson, 666 S.W.2d 41 (Tenn.1984) (defendant shot and killed convenience store clerk during robbery; death sentence based on the (i)(2) aggravating circumstance); State v. Harries, 657 S.W.2d 414 (Tenn.1983) (defendant shot and killed convenience store clerk during robbery; death sentence based on the (i)(2) aggravating circumstance); State v. Coleman, 619 S.W.2d 112 (Tenn.1981) (defendant shot and killed the victim who was going to the grocery store; death sentence based on the (i)(2) & (7) aggravating circumstances). We also note that the jury in co-defendant Christopher Davis's case imposed the death penalty for his role in these murders. State v. Christopher Davis, 2004 WL 1888299, 141 S.W.3d 600 (Tenn.2004) (death sentence based on the (i)(2), (6) & (7) aggravating circumstances)(unpublished opinion).

The defendants in each of the above-cited cases murdered victims during the course of a robbery. In each case, the defendant's criminal history reflected at least one prior felony involving violence against the person. While no two capital cases are identical, we have compared the circumstances of the present case and the present defendant with the circumstances of the cases set out above, and those individual defendants, and conclude that this case is not plainly lacking in circumstances consistent with other similar cases in which the death penalty has been imposed. Thus, the defendant's sentences of death are not disproportionate considering the circumstances of the crime and the defendant.

III. Conclusion

After considering the entire record in this case and all the defendant's assignments of error, we conclude that none has merit. Furthermore, we find that the sentences of death were not imposed in any arbitrary fashion, that the sentences of death are not excessive or disproportionate, and that the evidence supports the jury's finding that the aggravating circumstances outweigh the mitigating circumstances beyond a reasonable doubt. With respect to issues not specifically addressed within this opinion, we affirm the decision of the Court of Criminal Appeals, authored by Judge David Hayes and joined by Judges Jerry L. Smith and John Everett Williams. Relevant portions of that opinion are published hereafter as an appendix. The defendant's convictions and sentences are affirmed. The sentences of death shall be carried out as provided by law on the first day of February, 2005, unless otherwise ordered by this Court or other proper authority.

It appearing that the defendant is indigent, costs of this appeal are taxed to the State of Tennessee.

ADOLPHO A. BIRCH, JR., J., filed a concurring and dissenting opinion.

APPENDIX

(Excerpts from the Court of Criminal Appeals' Decision)

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

October 15, 2002 Session

STATE OF TENNESSEE v. GDONGALAY P. BERRY

Direct Appeal from the Criminal Court for Davidson County

No. 96-B-866 J. Randall Wyatt, Jr., Judge

No. M2001-02023-CCA-R3-DD— Filed April 10, 2003

[Deleted: Introductory Paragraph]

DAVID G. HAYES, J., delivered the opinion of the court, in which JERRY L. SMITH and JOHN EVERETT WILLIAMS, JJ., joined.

Thomas F. Bloom and James A. Simmons, Nashville, Tennessee, for the Appellant, Gdongalay P. Berry.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Dana M. Ausbrooks, Assistant Attorney General; Katrin Miller and David Hamm, Assistant District Attorneys General, for the Appellee, State of Tennessee.

OPINION

[Deleted: Factual Background]

[Deleted: I. Constitutionality of Death Penalty Procedures]

[Deleted: A. Failure of Indictment to Allege Capital Offense]

[Deleted: B. Guarantees of Confrontation and Cross-Examination]

[Deleted: II. Speedy Trial]

III. Representation

First, the Appellant argues that "[t]he trial judge erred in denying the Defendant's motion for dual representation, in improperly influencing him to forego hybrid representation, and in allowing him to represent himself at the suppression hearing without deciding the dual representation motion."

A. Hybrid Representation

Both the United States and Tennessee Constitutions guarantee the right of an accused to self-representation or to representation by counsel. U.S. CONST. amend. VI; TENN. CONST. art. I, § 9; Faretta v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 2527, 45 L. Ed. 2d 562 (1975); State v. Northington, 667 S.W.2d 57, 60 (Tenn. 1984). The right to self-representation and the right to counsel have been construed to be alternative ones; that is, one has a right either to be represented by counsel or to represent himself, to conduct his own defense. State v. Small, 988 S.W.2d 671, 673 (Tenn.1999) (quoting State v. Melson, 638 S.W.2d 342, 359 (Tenn. 1982), cert. denied, 459 U.S. 1137, 103 S. Ct. 770, 74 L. Ed. 2d 983 (1983)). "[W]aiver of one right constitutes a correlative assertion of the other.... [A] criminal defendant cannot logically waive or assert both rights." State v. Burkhart, 541 S.W.2d 365, 368 (Tenn.1976) (quoting United States v. Conder, 423 F.2d 904, 908 (6th Cir.1970)). Neither the United States Constitution nor the Tennessee Constitution grants the accused the right to "hybrid representation," i.e., permitting both the defendant and counsel to participate in the defense. Id. at 371. It is entirely a matter of grace for a defendant to represent himself and have counsel, and such privilege should be granted by the trial court only in exceptional circumstances. Melson, 638 S.W.2d at 359. "Hybrid representation" should be permitted "sparingly and with caution and only after a judicial determination that the defendant (1) is not seeking to disrupt orderly trial procedure and (2) that the defendant has the intelligence, ability and general competence to participate in his own defense." Burkhart, 541 S.W.2d at 371. The length of a trial or the involvement of the death penalty does not per se constitute "exceptional circumstances." Melson, 638 S.W.2d at 359.

One of the most fundamental responsibilities of a trial court in a criminal case is to assure that a fair trial is conducted. State v. Franklin, 714 S.W.2d 252, 258 (Tenn.1986) (citation omitted). Generally, the trial court, which has presided over the proceedings, is in the best position to make determinations regarding how to achieve this primary purpose, and absent some abuse of the trial court's discretion in marshalling the trial, an appellate court should not redetermine in retrospect and on a cold record how the case could have been better tried. Id. (citation omitted). The trial court, whose responsibility it is to ensure the orderly and fair progression of the proceedings, is in an excellent position to determine the legal assistance necessary to ensure a defendant's right to a fair trial. Small, 988 S.W.2d at 674. This determination will depend, in part, upon the nature and gravity of the charge, the factual and legal complexity of the proceedings, and the intelligence and legal acumen of the defendant. Id. (citing People v. Gibson, 136 Ill. 2d 362, 144 Ill. Dec. 759, 556 N.E.2d 226, 233 (1990)). The decision whether to permit "hybrid representation" rests entirely within the trial court's discretion and will not be overturned in the absence of a clear abuse of that discretion. Id.

In this case, the trial court denied the Appellant's request for "hybrid representation," finding that:

With regard to the first [Burkhart] prong, the Court concludes that the defendant is not seeking to disrupt the proceedings. Therefore, this prong weighs in the defendant's favor. The second [Burkhart] prong, however, weighs against the defendant's request. The defendant is capable of understanding the proceedings and consulting with his attorneys when necessary. By his own admission, however, he is unfamiliar with the Rules of Evidence, the Rules of Criminal Procedure, etc. Further, having observed the defendant during the suppression hearing, the Court concludes that he is not qualified to competently participate in his own defense.

Assuming arguendo that the defendant possesses the skills which are necessary to competently participate in his own defense, the Court would still decline his request to do so in this case. The Supreme Court has repeatedly discouraged trial courts from permitting hybrid representation, stating that it should be used "sparingly," "with caution," and "only in exceptional circumstances." See Small, 988 S.W.2d at 673. The Court finds that no such exceptional circumstances are present in this case.

... [T]he defendant feels that his attorneys periodically failed to elicit facts which he deems pertinent. An attorney may have many reasons for declining to ask a particular question or elicit certain facts.... Allowing the defendant to usurp the professional judgment of his attorneys is extremely dangerous, particularly in a murder trial in which the defendant's life is at stake.

In addition to considering the conflict which will undoubtedly arise between the strategies of the defendant and his attorneys, the Court also notes that the defendant's participation in his defense would likely result in the defendant presenting unsworn testimony which is not subject to cross-examination. Although the Court does not believe that the defendant would intentionally present such testimony, it is inevitable that he will do so....

The trial court, applying Burkhart, found that the Appellant was not seeking to disrupt orderly trial procedure but could not competently participate in his own defense. We agree. It is apparent from the record that the Appellant lacked the skills to participate in his own defense. He admitted he was unfamiliar with criminal procedures and gave unsworn testimony at the suppression hearing. "Unsworn statements will not be permitted under any circumstances." Burkhart 541 S.W.2d at 371. Furthermore, as noted by the trial court, such an arrangement would have given rise to a conflict between the strategies of the Appellant and his attorneys. Accordingly, we conclude that the trial court did not abuse its discretion by denying the Appellant's motion because the Appellant failed to allege facts constituting any "exceptional circumstances," which justify his participation.

B. Self-Representation

Next, the Appellant contends that allowing the Appellant to represent himself at the suppression hearing was error because the trial court did not first determine that the Appellant knowingly and intelligently waived his right to counsel. Specifically, the Appellant argues that a proper waiver was not given because he believed he was operating under a hybrid representation arrangement. The right to represent one's self should be granted only after a determination by the trial court that the defendant is both knowingly and intelligently waiving the valuable right to assistance of counsel. Tenn. R.Crim. P. 44(a); Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461 (1938); State v. Burkhart, 541 S.W.2d 365, 368 (Tenn.1976). First, we note that this issue is waived because neither the Appellant nor his attorneys objected to this arrangement. Tenn. R.App. P. 36(a) (nothing in this rule shall be construed as requiring relief be granted to a party responsible for an error or who failed to take whatever action was reasonably available to prevent or nullify the harmful effect of an error). Regardless of any waiver, the Appellant's argument is incorrect. On April 25, 2000, the Appellant filed a motion for hybrid representation and a motion to suppress his statement. On April 28, 2000, the trial court conducted a hearing on both motions. The trial court took the Appellant's request for hybrid representation under advisement and proceeded with the suppression hearing. Because the trial court had not ruled upon the Appellant's request for hybrid representation, the court permitted the Appellant and his attorneys to question the witnesses at the suppression hearing. Despite the trial court allowing a hybrid representation arrangement for the suppression hearing, only the Appellant conducted cross-examination. However, while the Appellant questioned witnesses, his attorneys were constantly passing him notes and talking with him. Furthermore, the Appellant's attorneys conducted direct examination of the Appellant. We conclude that the Appellant was not deprived of his right to counsel at any time during the suppression hearing. Accordingly, no waiver was necessary and this issue is without merit.

IV. Motion to Suppress

The Appellant argues that the trial court erred by denying his motion to suppress his statement given to the police after his arrest because "the circumstances surrounding the giving of this statement [were] tainted with coercion and constitutional violations." Specifically, he contends that: (1) he invoked his Fifth Amendment right to counsel soon after his arrest and, therefore, all questioning should have ceased, and (2) his subsequent statement given at the police station was not voluntarily and knowledgeably given.

In reviewing a denial of a motion to suppress, this court looks to the facts adduced at the suppression hearing which are most favorable to the prevailing party. State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000) (citing State v. Odom, 928 S.W.2d 18, 23 (Tenn.1996)). In considering the evidence presented at the hearing, this court extends great deference to the fact-finding of the suppression hearing judge with respect to weighing credibility, determining facts, and resolving conflicts in the evidence. Id.; see also State v. Walton, 41 S.W.3d 75, 81 (Tenn.2001). Indeed, these findings will be upheld unless the evidence preponderates otherwise. Daniel, 12 S.W.3d at 423.

A. Miranda

The Appellant contends that, after his arrest at the Carter Avenue address, he invoked his "Fifth Amendment rights;" thus, all questioning should have ceased. Because questioning did not cease, he contends that the statement thereafter procured by Detectives Roland and Kendall should have been suppressed. Both the United States and Tennessee Constitutions protect a defendant from being compelled to give evidence against himself. U.S. CONST. amend. V; TENN. CONST. art. I, § 9. When a suspect makes an unequivocal request for an attorney, all interrogation must cease, unless the suspect himself initiates further conversation with the police. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1884-85, 68 L. Ed. 2d 378 (1981); State v. Stephenson, 878 S.W.2d 530, 545 (Tenn.1994). Repeating the Miranda warning and obtaining a waiver is not compliance. Edwards, 451 U.S. at 484, 101 S.Ct. at 1884-85. However, the right to counsel must be claimed. An invocation of the right to counsel "`requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.'" Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 2355, 129 L. Ed. 2d 362 (1994) (quoting McNeil v. Wisconsin, 501 U.S. 171, 178, 111 S. Ct. 2204, 2209, 115 L. Ed. 2d 158 (1991)). Whether the Appellant did or did not make an equivocal or unequivocal request for an attorney is a question of fact. State v. Farmer, 927 S.W.2d 582, 594 (Tenn.Crim.App.), perm. to appeal denied, (Tenn.1996).

In the present case, the trial court found the Appellant's Fifth Amendment claim to be without merit based upon the following rationale:

Initially, the Court is of the opinion, based upon the testimony introduced at the hearing, as well as the defendant's videotaped statement, that the defendant was sufficiently advised of his rights as mandated by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The Court is of the opinion that the defendant was orally advised of his rights at the time of his arrest, at the Carter Avenue address, by Det. Kendall. Further, the Court is of the opinion that the defendant was again advised of rights immediately before making the videotaped statement and signed the written rights waiver. The Court does not believe that the defendant invoked his Fifth Amendment privilege against self incrimination, or that the defendant was in any way prevented from invoking any of his constitutionally protected rights. In so finding, the Court accredits the testimony of both Det. Roland and Det. Kendall. The detective's position is supported by the defendant's written waiver of his rights just prior to the interview.

Based upon the evidence presented at the suppression hearing, the trial court, accrediting the testimony of the detectives, found that the Appellant did not invoke his Fifth Amendment privilege against self-incrimination or was in any way prevented from doing so. The evidence does not preponderate against the trial court's findings. The Appellant argues that none of the officers specifically denied "the fact that Mr. Berry invoked his `Fifth Amendment rights' soon after the police burst into the home." However, both Detectives Roland and Kendall testified that the Appellant was read his Miranda rights and, thereafter, voluntarily gave a statement, implying that the Appellant did not invoke his privilege against self-incrimination. The trial court is in the best position to determine the credibility of witnesses, and we attribute great weight to the trial court's determinations. Odom, 928 S.W.2d at 23. Accordingly, the Appellant is not entitled to relief on this issue.

B. Voluntary and Knowing Waiver

The Appellant argues that his statement "was not a product of a free, rational and deliberate choice" because "the police officers assaulted him at the time of arrest and demanded that he answer their questions." He contends that the assault is supported "by the fact that he had bruises under his eyes at the time he arrived at the police station." Furthermore, he submits that "at the station Detective Roland told defendant that he could send him away by just signing a piece of paper and that, if he did not talk, Defendant would never see his unborn son."

Inherent in the admissibility of the written statement is that the statement was voluntarily given by a defendant knowledgeable of his constitutional rights and accompanied by a valid and knowing waiver of those rights. Miranda v. Arizona, 384 U.S. 436, 467, 86 S. Ct. 1602, 1624, 16 L. Ed. 2d 694, (1966); State v. Middlebrooks, 840 S.W.2d 317, 326 (Tenn.1992), cert. dismissed, 510 U.S. 124, 114 S. Ct. 651, 126 L. Ed. 2d 555 (1993). In determining the admissibility of a confession, the particular circumstances of each case must be examined as a whole. State v. Smith, 933 S.W.2d 450, 455 (Tenn.1996). A defendant's subjective perception alone is not sufficient to justify a conclusion of involuntariness in the constitutional sense. Id. (citations omitted). The primary consideration in determining the admissibility of the evidence is whether the confession is an act of free will. State v. Chandler, 547 S.W.2d 918, 920 (Tenn.1977). A confession is not voluntary when "the behavior of the state's law enforcement officials was such as to overbear" the will of an accused and "bring about confessions not freely self-determined." State v. Kelly, 603 S.W.2d 726, 728 (Tenn.1980) (quoting Rogers v. Richmond, 365 U.S. 534, 544, 81 S. Ct. 735, 741, 5 L. Ed. 2d 760 (1961)). With regard to the claim that a confession is involuntary, findings of fact made by the trial court after an evidentiary hearing on a motion to suppress are afforded the weight of a jury verdict, and an appellate court will not set aside the trial court's judgment unless the evidence contained in the record preponderates against the findings of the trial court. Odom, 928 S.W.2d at 22.

After a suppression hearing, the trial court found that, "based on the facts and circumstances of this particular case, that the defendant executed a knowing, voluntary and intelligent waiver of his constitutional rights prior to answering any questions by Detectives Roland and Kendall about his alleged involvement in the murders and related offenses." The trial court reasoned as follows:

In so finding, the Court points to the testimony of Det. Kendall and Roland, the defendant's videotaped statement to the detectives, as well as the waiver form executed by the defendant. It is evident to the Court that the defendant understood exactly what he was doing and the repercussions thereof when he agreed to speak with the police. The defendant does not allege that he was intoxicated at the time or that he was otherwise incapable of making a knowing, voluntary, and intelligent waiver of his rights. Despite the testimony of the defendant, the Court does not believe that the defendant was subjected to such physical and mental abuse so as to overbear his will and render his waiver involuntary. The Court notes that the initial arrest of the defendant, at the Carter Avenue address, may have been done in an aggressive manner with weapons drawn. However, under the facts and circumstances of this particular case and in light of the charges which the detectives were investigating, an aggressive entrance and arrest, which leaves no uncertainty as to the defendant's arrest or the purpose of the arrest, was reasonable under the circumstances.

Finally, as to the actual voluntariness of the defendant's statement, the ... Court finds that the defendant's statement was the product of the defendant's free, rational, and deliberate choice.... The defendant was advised of his rights, waived those rights, executed a written waiver, and subsequently answered questions regarding the incident under no duress from the detectives. In this regard, the Court again accredits the testimony of both Detective Kendall and Roland regarding the circumstances of the interview. The Court finds no indication from the evidence submitted that he was compelled to provide any information to the police. Further, the defendant did not at any time refuse to answer questions or request the interview to cease. In sum, the Court is satisfied that the defendant's statement was voluntarily given and that the tactics employed by the detectives prior to and during the interview were appropriate under the law.

In resolving the conflicting evidence, the trial court explicitly accredited the testimony of Detectives Roland and Kendall and discredited the Appellant's testimony. After making thorough factual findings regarding the credibility issues, the trial court denied the Appellant's motion to suppress. We are bound by the trial court's findings unless the evidence of record preponderates against them. In this case, the evidence supports the findings, and the findings themselves support the court's ruling. The Appellant signed a written waiver of rights form and gave a videotaped statement, during which he did not appear under duress. Furthermore, the bruises under the Appellant's eyes at the time he arrived at the police station do not support the conclusion that the Appellant was subject to mental and physical abuse by the detectives, as these bruises could have been inflicted at any time prior to the Appellant's arrest. This evidence was available to the trial court, and the court chose to discredit the Appellant's testimony that the bruises resulted from physical abuse by the detectives. As such, we must conclude that the trial court properly ruled that the Appellant's statement was admissible.

V. Voir dire

The Appellant contends that "the trial court abused its discretion in the jury selection process by improperly rehabilitating jurors who were properly excludable for cause, and improperly excluding other jurors who were or could be rehabilitated in regard to their reservations concerning the death penalty." Tennessee Rule of Criminal Procedure 24(b) gives the trial judge the right to excuse a juror for cause without examination of counsel. State v. Hutchison, 898 S.W.2d 161, 167 (Tenn. 1994), cert. denied, 516 U.S. 846, 116 S. Ct. 137, 133 L. Ed. 2d 84 (1995) (citing State v. Alley, 776 S.W.2d 506 (Tenn.1989), cert. denied, 493 U.S. 1036, 110 S. Ct. 758, 107 L. Ed. 2d 775 (1990)); State v. Strouth, 620 S.W.2d 467, 471 (Tenn.1981), cert. denied, 455 U.S. 983, 102 S. Ct. 1491, 71 L. Ed. 2d 692 (1982)). In determining when a prospective juror may be excused for cause because of his or her views on the death penalty, the standard is "whether the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Wainwright v. Witt, 469 U.S. 412, 424, 105 S. Ct. 844, 852, 83 L. Ed. 2d 841 (1985) (footnote omitted). The Supreme Court further observed that "this standard likewise does not require that a juror's biases be proved with `unmistakable clarity.'" Id. However, the trial judge must have the "definite impression" that a prospective juror could not follow the law. Hutchison, 898 S.W.2d at 167 (citing Wainwright v. Witt, 469 U.S. at 425-26, 105 S.Ct. at 853). Finally, the trial court's finding of bias of a juror because of his or her views concerning the death penalty are accorded a presumption of correctness, and the Appellant must establish by convincing evidence that the trial court's determination was erroneous before an appellate court will overturn that decision. Alley, 776 S.W.2d at 518.

The Appellant challenges the following questions and responses of the prospective jurors:

1. Prospective Juror 102—The Appellant argues that the trial court erred by "[b]rowbeating a juror who said that she could not consider a life sentence for murder into saying that, in certain circumstances, she could consider a life with parole sentence." The record contains no evidence of "browbeating." Rather, the record reveals that the trial court asked reasonable questions to clarify inconsistent responses regarding sentencing options.

2. Prospective Juror 103—The Appellant argues that the trial court erred by disregarding sworn answers on the jury questionnaire "which would lead to exclusion by explaining that the rehabilitation questions were `just trying to get down to what they really think.'" On the questionnaire, Juror 103 disclosed that she could not consider a life sentence as a sentencing option. However, the trial court accepted the juror's informed clarification of that answer after she stated that she could follow the law and consider a life sentence as an option.

3. Prospective Jurors 106, 113, and 116—The Appellant argues that the trial court erred in "[s]ummarily excusing jurors who answered negatively in regard to their ability to impose the death penalty without any discussion or attempt to `get down to what they really think' which is what the judge did in regard to pro-death penalty jurors." After questioning, each of these jurors unequivocally stated that he/she could not impose the death penalty.

4. Prospective Jurors 110, 125, and 127—The Appellant contends that the trial court went to great lengths to rehabilitate these jurors. First, Jurors 110 and 125 were not challenged for cause and, therefore, this issue is waived. Nonetheless, Jurors 110 and 125 stated that they could follow the law and consider imposing a life sentence, despite personal reservations. Concerning Juror 127, he was summarily excused because he stated he could not impose the death penalty under any circumstances.

5. Prospective Juror 118—The Appellant contends that the trial court improperly rehabilitated Juror 118, "who stated at least twice that it would have to be `extraordinary' to depart from the death penalty and that she started with the death penalty not a life sentence." This juror did not say she would start with the death penalty and only depart from a death sentence upon a showing of extraordinary mitigating circumstances. Juror 118 did state that she would impose the death penalty unless the mitigating circumstances were "extraordinary." Thereafter, upon questioning by the court, she stated that she could follow the law, i.e., aggravating circumstances have to outweigh mitigating circumstances before imposition of the death penalty.

6. Prospective Juror 123—The Appellant submits that the trial court "incorrectly advised him that the State would simply have to present `more aggravating circumstances than there are mitigating circumstances.'" The Appellant also contends that it was error to accept Juror 123 because, on the questionnaire, this juror answered that the death penalty was appropriate in all murder cases. In response to this answer, the trial court stated, "it concerned me, because I didn't think that answer was what we were looking for, for people to be on the Jury. But I think that, maybe, he didn't get that question exactly clear. And he did qualify that[.] . . ." First, the trial court did not improperly advise the juror on the procedure for imposing the death penalty; rather, the trial court advised that a death sentence could only be imposed after a determination that the aggravating factors outweighed the mitigating factors. Second, the trial court sought clarification of the juror's answer on the questionnaire. The trial court was satisfied that this juror adequately explained his answer.

7. Prospective Jurors 129, 132, and 142—The Appellant contends that the trial court improperly rehabilitated "jurors who rejected life with parole punishment and voiced opinions that minimum penalty for murder must be life without parole by asking leading questions[.]. . ." First, this issue is waived because these jurors were not challenged for cause. Regardless of waiver, each of these jurors stated that they would follow the law and consider all three sentencing options, including a life sentence.

8. Prospective Juror 143 — The Appellant argues that it was error to accept this juror because he stated that "he would reject environment as a mitigating factor." While he did express some reservations about environment being a mitigating factor, the trial court accepted him because he said he would consider the mitigating factors offered and did not dismiss environment as a mitigating circumstance completely.

9. Prospective Juror 156 — The Appellant contends that it was error to ask Juror 156 "`I mean you wouldn't consider it all?' when defense gets answer that juror said he would `never' consider environment and thus promoting the juror to the `right' answer." Because there was no challenge for cause, this issue is waived. Regardless, when questioned by the Appellant, Juror 156 stated he could not consider environment as a mitigating circumstance. Then, the trial court explained the sentencing procedure to the juror, and the juror stated he could follow the law and consider environment in mitigation.

10. Prospective Juror 188 — The Appellant assigns as error "[t]elling defense counsel `hold on a minute' as counsel solicited juror opinion that there was `no way' juror could impose life sentence or life without parole for cold-blooded murder, and then lecturing juror enough so that juror yielded and gave the acceptable response." This issue is waived because the Appellant did not challenge this juror for cause. In any event, the trial court did not lecture but, rather, intervened to clarify a point of confusion. Thereafter, the juror stated he understood and could follow the law.

11. Prospective Juror 190 — The Appellant claims that the trial court erred in rehabilitating this juror by "[i]ntervening with the purpose of curing a juror's admission that `there's no way in the world' he could consider environment as a mitigating factor with the platitude `I'm not trying to talk you into ... [.]'" Again, this issue is waived because the juror was not challenged for cause. After stating that he would not consider environment as a mitigating factor, the trial court asked Juror 190 to clarify his response. The juror then stated that he would consider it and give it the weight it deserves.

12. Prospective Juror 193 — The Appellant submits that the trial court erred by "[t]alking a juror into saying that she would follow the law when the juror indicated that the only mitigating factor she could consider would be mental problems and abuse. After finally getting the right response, the judge says `that's all I need to know.'" The trial court intervened and explained death penalty sentencing procedure after Juror 193 gave some inconsistent answers regarding mitigating factors. The juror then stated she could follow the law.

After reviewing the answers and responses of the challenged jurors, we conclude that the respective jurors were either properly rehabilitated or their answers left "no leeway for rehabilitation." Strouth, 620 S.W.2d at 471; see also Alley, 776 S.W.2d at 517-18. In each instance, the prospective juror was extensively questioned as to whether they could apply the law to the evidence and consider all forms of punishment in this case. As noted by the trial court, the court "distributed a jury questionnaire, allowed the parties to question each juror individually, provided the [Appellant] with a jury consultant, and made every effort to select a fair and impartial jury." There is no error.

VI. Gang Evidence

The Appellant argues that admission of evidence regarding his "association and membership in the Gangster Disciples" violated Tennessee Rule of Evidence 404(b) and constituted reversible error. Admissible proof must satisfy the threshold determination of relevancy mandated by Tennessee Rule of Evidence 401, which defines relevant evidence as that "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tenn. R. Evid. 401. Rule 403 adds that relevant "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Tenn. R. Evid. 403. Finally, Rule 404 deals with "character evidence." Subsection (b) of this rule provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity with the character trait." Tenn. R. Evid. 404(b). However, the same subsection further sets out that such evidence may be allowed "for other purposes" if the following conditions are met prior to admission of this type of proof:

(1) The court upon request must hold a hearing outside the jury's presence;

(2) The court must determine that a material issue exists other than conduct conforming with a character trait and must upon request state on the record the material issue, the ruling, and the reasons for admitting the evidence; and

(3) The court must exclude the evidence if its probative value is outweighed by the danger of unfair prejudice.

Id. Providing further clarification concerning the second requirement, "other purposes" have been defined to include: (1) motive; (2) intent; (3) guilty knowledge; (4) identity of the defendant; (5) absence of mistake or accident; (6) a common scheme or plan; (7) completion of the story; (8) opportunity; and (9) preparation. State v. Robert Wayne Herron, No. M2002-00951-CCA-R3-CD, 2003 WL 151201 (Tenn.Crim.App. at Nashville, Jan. 22, 2003) (citing Collard v. State, 526 S.W.2d 112, 114 (Tenn.1975); NEIL P. COHEN ET AL., TENNESSEE LAW OF EVIDENCE § 404.6 (3d ed.1995)); see also Advisory Commission Comments, Tenn. R. Evid. 404; State v. Parton, 694 S.W.2d 299, 302 (Tenn.1985); Bunch v. State, 605 S.W.2d 227, 229 (Tenn.1980); State v. Jones, 15 S.W.3d 880, 894 (Tenn.Crim.App.1999), perm. to appeal denied, (Tenn.2000). Should a review of the record indicate that the trial court substantially complied with the requirements of Rule 404(b), the trial court's admission of the challenged evidence will remain undisturbed absent an abuse of discretion. State v. DuBose, 953 S.W.2d 649, 652 (Tenn.1997) (citation omitted).

In the order denying the Appellant's motion for new trial, the trial court made the following findings concerning the admission of gang-related testimony:

Typically, the Court would evaluate such an allegation by weighing the probative value of the testimony against the possible prejudice to the defendant. However, such an evaluation is not necessary in this case. Instead, the Court concludes that defense counsel made a tactical decision to allow this testimony, which supported their theory of the case. Counsel may not now seek relief merely because that strategy was unsuccessful....

[T]he Court anticipated that one of the parties might wish to delve into gang-related issues during the course of this trial.

The Court first noticed a reference to the gang during the hearing on the defendant's motion to suppress his statement to the police. Although the defendant's statement contained multiple gang-related references, defense counsel did not object to the statement on that basis. Instead, they chose to attack the admissibility of the statement on other grounds. When the Court rejected those arguments, defense counsel did not request that the statement be redacted....

The first witness to mention the gang in the jury's presence was Antonio Cartwright. Prior to this testimony, the Court requested a bench conference. During its discussions with counsel for the State and the defendant, the Court suggested that it might be inappropriate to make any references to the gang. In response, the State noted that the defendant made numerous gang references in his statement to the police and that defense counsel had not sought redaction of those references. The State also stated that it merely intended to question Cartwright regarding essentially the same information the defendant provided during his statement.

During this discussion, defense counsel made no effort to echo the Court's concerns, object to the proposed testimony, or request that the defendant's statement be redacted. Because defense counsel raised no objection to the proposed testimony, which did not appear to be inconsistent with his theory of the case, the Court granted the State's request to present a limited amount of testimony concerning the gang....

Defense counsel failed to object to the testimony regarding gangs. Indeed, counsel elicited much of it themselves and used it to support their theory of the case. Through this testimony as well as the defendant's statement to the police, counsel sought to establish that Davis perpetrated the offense, that the defendant was present at the scene of the crime but did not participate in the offenses, that due at least in part to the presence of Davis and possibly other gang members the defendant was afraid to leave the scene, and that the evidence would have exonerated the defendant if the police had properly collected and tested it.

Given these circumstances, the Court finds that counsel made a tactical decision to allow this testimony. As such, the defendant is not entitled to relief.

We agree with the trial court that the Appellant has waived consideration of this issue. At no point did trial counsel object to these comments. The trial court, upon its on accord, requested a bench conference to discuss the admissibility of gang-related testimony. During this discussion, trial counsel made no attempts to object to this type of evidence. Furthermore, as noted by the trial court, trial counsel elicited much of the testimony themselves in order to support a defense theory of facilitation, i.e., co-defendant Davis was the leader of the gang and, therefore, the Appellant was afraid to leave the scene. Because no objection was entered, the trial court did not conduct a Rule 404(b) hearing and, without any such findings, we are unable to preform any meaningful appellate review of the issue. Additionally, the trial court gave a limiting instruction regarding the purposes for which the jury could consider the gang-related testimony. An appellate court must presume that the jury followed the instruction given by the trial court. State v. Gilliland, 22 S.W.3d 266, 273 (Tenn.2000) (citation omitted). Based on the foregoing, we find that the Appellant has waived this issue. Tenn. R.App. P. 36(a) (nothing in this shall be construed as requiring relief be granted to a party responsible for an error or who failed to take whatever action was reasonably available to prevent or nullify the harmful effect of an error).

VII. Hearsay Statement

In his next assignment of error, the Appellant contends that the trial court erred in allowing Antonio Cartwright to testify about a conversation between the Appellant and co-defendant Davis, "where the [two men] were alleged to have planned a robbery of the victims." Specifically, he argues that this evidence constituted inadmissible hearsay. The testimony at issue is as follows:

Q. Did you hear any discussion between Mr. Berry and Mr. Davis and yourself?

A. Yes, ma'am.

Q. What was that discussion about?

A. About a robbery.

Q. And what was said to you about the robbery?

MR. GIBSON: Object to hearsay.

THE COURT: Well, we need to identify who this is that he's talking about?

Q. (By General Miller) Who was having this discussion, first of all?

A. Christopher Davis, Gdongalay Berry.

Q. And were they having a discussion in your presence or were they actually talking to you about it.

A. In my presence.

Q. Okay. And were they asking you questions or did you participate in a conversation at some point?

A. I didn't really participate in the conversation at that time; no ma'am.

THE COURT: You were present when this conversation was going on between Mr. Berry and Mr. Davis; is that what you're saying?

THE WITNESS: Yes, sir.

THE COURT: All right. I'm going to overrule the objection. He was present and the defendant was present. It was a conversation in this presence. He can testify about it.

MR. GIBSON: Your Honor, shouldn't he only be able to testify to what my client said, not Christopher Davis?

THE COURT: I think he can testify about the whole conversation between people that were allegedly co-conspirators in a — in an alleged robbery that was being planned.

So go ahead, please.

Q. (By General Miller) What was the conversation about, Mr. Cartwright?

A. It was about a robbery.

Q. Okay. And did you know who the robbery was supposed to happen to?

A. Yes, ma'am; I did.

Q. And who was that?

A. Greg Ewing and DeAngelo Lee.

Q. Okay. And what was said about the robbery?

A. Uh —

Q. What was it to be a robbery of?

A. The guns and a car.

Q. Guns and a car?

A. Yes, ma'am.

Q. Okay. And how was this robbery supposed to take place?

A. They were supposed to go get some guns, and when Chris give the signal and cocked the gun, G-Berry is supposed to have come out.

Q. All right. And did Mr. G — Mr. Gdongalay Berry make any specific remarks about the robbery?

A. Yes. If we rob 'em, we gotta kill 'em.

Q. Did he say why?

A. Because they know us.

Q. Because they know us?

A. Yes, ma'am.

Q. And that's what Mr. Berry said?

A. Yes, ma'am.

Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Tenn. R. Evid. 801(c). Hearsay is not admissible except as provided by the rules of evidence or otherwise by law. Tenn. R. Evid. 802. Pursuant to Rule 803(1.2)(E), Tennessee Rules Evidence, a statement that is hearsay is allowed against a party when made "by a co-conspirator of a party during the course of and in furtherance of the conspiracy." A conspiracy is defined as a combination between two or more persons to do a criminal or unlawful act or a lawful act by criminal or unlawful means. State v. Lequire, 634 S.W.2d 608, 612 (Tenn.Crim. App.1981), perm. to appeal denied, (Tenn. 1982) (citation omitted). Declarations of a co-conspirator that would otherwise be inadmissible may be offered as proof, when the following conditions are met: (1) there is evidence of the existence of the conspiracy and the connection of the declarant and the defendant to it; (2) the declaration was made during the pendency of the conspiracy; and (3) the declaration was made in furtherance of the conspiracy. State v. Gaylor, 862 S.W.2d 546, 553 (Tenn.Crim. App.1992), perm. to appeal denied, (Tenn. 1993) (citations omitted). A "statement may be in furtherance of the conspiracy in countless ways. Examples include statements designed to get the scheme started, develop plans, arrange for things to be done to accomplish the goal, update other conspirators on the progress, deal with arising problems, and provide information relevant to the project." State v. Carruthers, 35 S.W.3d 516, 556 (Tenn.2000) (citation omitted). If a conspiracy is shown to exist, the co-conspirator's statement is admissible even though no conspiracy has been formally charged. Lequire, 634 S.W.2d at 612 n. 1.

For admissibility purposes, the standard of proof required to show the existence of the prerequisite conspiracy is proof by a preponderance of the evidence. State v. Stamper, 863 S.W.2d 404, 406 (Tenn.1993). The State only has to show an implied understanding between the parties, not formal words or a written agreement, in order to prove a conspiracy. Gaylor, 862 S.W.2d at 553. "The unlawful confederation may be established by circumstantial evidence and the conduct of the parties in the execution of the criminal enterprises." Id. (citation omitted).

The trial court in the present case determined that a conspiracy existed between the Appellant and co-defendant Davis and that the statements were in furtherance of that conspiracy.^[1] The trial court based its finding upon the fact that the Appellant "and Davis discussed the robbery and murders they intended to commit, and executed their plan shortly thereafter." We believe that this constitutes adequate proof for the trial court to find by a preponderance of the evidence that a conspiracy existed between the Appellant and Davis. Thus, the evidence was admissible under Rule 803(1.2)(E).

VIII. Closing Argument

The Appellant contends that "the State made an inappropriate religious argument during its closing argument." During closing argument, the prosecutor made the following comment:

Well, we talked a little bit in voir dire about crimes. You know, yeah, it would be nice if this crime had occurred in the parking lot of the Baptist Church down — downtown, about 10 o'clock, when it was full of good, solid citizens who could come into court and wouldn't have to explain the sentence that they were currently serving or a sentence that was pending against them. We don't have that in this case, because none of the parties involved are people that attended church on Sunday during this part of their life, but that doesn't mean that their lives are not precious. That doesn't mean that Mr. Berry's life is not precious. But he should be held accountable for this crime.

Closing arguments are an important tool for both parties during the trial process; consequently, attorneys are usually given wide latitude in the scope of their arguments. State v. Bigbee, 885 S.W.2d 797, 809 (Tenn.1994) (citation omitted). Trial courts are accorded wide discretion in their control of those arguments. State v. Zirkle, 910 S.W.2d 874, 888 (Tenn.Crim. App.), perm. to appeal denied, (Tenn.1995) (citation omitted). Moreover, a trial court's finding will not be reversed absent an abuse of that discretion. State v. Payton, 782 S.W.2d 490, 496 (Tenn.Crim.App.), perm. to appeal denied, (Tenn.1989) (citation omitted). Such scope and discretion, however, is not completely unfettered. It is settled law in this state that references to biblical passages or religious law during a criminal trial are inappropriate. State v. Middlebrooks, 995 S.W.2d 550, 559 (Tenn. 1999) (citation omitted); State v. Stephenson, 878 S.W.2d 530, 541 (Tenn.1994); Kirkendoll v. State, 198 Tenn. 497, 281 S.W.2d 243, 254 (1955). Such references, however, do not constitute reversible error unless the Appellant can clearly establish that they "`affected the verdict to the prejudice of the defendant.'" Middlebrooks, 995 S.W.2d at 559 (quoting Harrington v. State, 215 Tenn. 338, 385 S.W.2d 758, 759 (1965)). In making this determination, we must consider: 1) the conduct complained of, viewed in light of the facts and circumstances of the case; 2) the curative measures undertaken by the court and the prosecution; 3) the intent of the prosecutor in making the improper arguments; 4) the cumulative effect of the improper conduct and any other errors in the record; and 5) the relative strength and weakness of the case. Id. at 560 (citing Bigbee, 885 S.W.2d at 809).

We note that the Appellant did not contemporaneously object to the prosecutor's statements during closing argument. Therefore, the issue has been waived. Tenn. R.App. P. 36(a). It has been firmly established that objections must be made to an improper jury argument in order to preserve the issue for appellate review; otherwise, any improper remarks by the State would afford no ground for a new trial. State v. Compton, 642 S.W.2d 745, 747 (Tenn.Crim.App.), perm. to appeal denied, (Tenn.1982).

Regardless of any waiver, we find that this issue has no merit. In its order denying the Appellant's motion for new trial, the trial court found no error during closing argument based upon the following rationale:

The Court recognizes that it is improper for attorneys to make religious references during their closing arguments.... However, the Court disagrees that the State did so in this case. Several of the State's witnesses had prior convictions and/or were facing criminal charges at the time they testified. Moreover, the victims were selling guns at the time of their deaths, and there was evidence that one of them had taken drugs at some point prior to being killed. During its closing argument, the State simply acknowledged that its victims and witnesses may have been less-than-perfect, but argued that these facts did not render the defendant any less culpable. The Court finds this argument was proper.

We agree with the trial court that the prosecutor's comments were not inappropriate references to biblical passages or religious law. As noted by the trial court, the comment was made in order to recognize the type of people involved in the case and to emphasize that the Appellant should still be held accountable for his illegal actions, not to interject a biblical passage or religious law into closing argument. Furthermore, the Appellant has failed to show any prejudice resulting from the comments. The case against the Appellant was relatively strong, as he admitted he was present at the construction site when the victims were murdered.

IX. Flight Instruction

The Appellant next contends that the trial court's use of a Tennessee Pattern Jury Instruction on flight was unwarranted by the evidence. Before review of the issue as presented, we note that, when the State requested this instruction, the Appellant did not object and, therefore, this is waived. Tenn. R.App. 36(a). Nonetheless, given our heightened standard of review generally applicable to convictions resulting in a sentence of death, we proceed to examine the issue on the merits.

Following the presentation of the evidence, the trial court gave the jury the following instruction regarding flight:

The flight of a person accused of a crime is a circumstance which, when considered with all the facts of the case, may justify an inference of guilt. Flight is the voluntary withdrawal of oneself for the purpose of evading arrest or prosecution for the crime charged. Whether the evidence presented proves beyond a reasonable doubt that the defendant fled is a question for your determination.

The law makes no precise distinction as to the manner or method of flight; it may be open, or it may be a hurried or concealed departure, or it may be a concealment within the jurisdiction. However, it takes both a leaving the scene of the difficulty and a subsequent hiding out, evasion, or concealment in the community, or a leaving of the community for parts unknown, to constitute flight.

If the flight is proved, the fact of flight alone does not allow you to find that the defendant is guilty of the crime alleged. However, since flight by a defendant may be caused by a consciousness of guilt, you may consider the fact of flight, if flight is so proven, together with all of the other evidence when you decide the guilt or innocence of the defendant. On the other hand, an entirely innocent person may take flight and such flight may be explained by proof offered, or by the facts and circumstances of the case.

Whether there was flight by the defendant, the reasons for it, and the weight to be given to it, are questions for you to determine.

7 TENNESSEE PRACTICE, TENNESSEE PATTERN JURY INSTRUCTIONS—CRIMINAL 42.18 (Comm. of the Tenn. Judicial Conference 5th ed.2000). This pattern jury instruction is a correct statement of the applicable law and has been previously cited with approval by our court. See, e.g., State v. Kendricks, 947 S.W.2d 875, 885-86 (Tenn. Crim.App.1996), perm. to appeal denied, (Tenn.1997); State v. Terry Dean Sneed, No. 03C01-9702-CR-00076, 1998 WL 783330 (Tenn.Crim.App. at Knoxville, Nov. 5, 1998), perm. to appeal denied, (Tenn. 1999). In order for a trial court to charge the jury on flight as an inference of guilt, there must be sufficient evidence to support such instruction. Sufficient evidence supporting such instruction requires "`both a leaving the scene of the difficulty and a subsequent hiding out, evasion, or concealment in the community.'" State v. Burns, 979 S.W.2d 276, 289-90 (Tenn. 1998) (quoting Payton, 782 S.W.2d at 498).

Here, the Appellant both ran from the apartment, while being chased by police officers, and alluded the police for approximately one week before being apprehended. This evidence clearly supported the trial court's instruction on flight. The Appellant contends, however, that the trial court erred in giving the flight instruction because the instruction

may only be given when the defendant attempts to withdraw himself for the purpose of evading arrest for the specific crime that has been charged. Because it is impossible to determine from these facts whether the Defendant fled to evade arrest for the charged crimes or for some other reasons, the court erred in giving the flight instruction.

We do not find the Appellant's argument persuasive. The trial court found that giving a flight instruction was not error based upon the following rationale:

Following the murders, the defendant fled the scene of the crime, slept in a hotel as opposed to his home or the Herman Street residence, ran from the police officers the next morning, and remained at large for approximately one week. Given these circumstances, the Court finds that an instruction on flight was appropriate.

The defendant contends that the instruction was inappropriate because he may have been fleeing as a result of his involvement in the murder of Adrian Dickerson as opposed to the double homicide at issue in this case. Although the officers from whom the defendant fled were unaware of his involvement in the double homicide, the defendant was not privy to that information. The defendant fled immediately upon encountering the officers, and it is reasonable to assume that he did so in an attempt to evade arrest for any and all crimes he had previously committed.

The record does not support a theory that the defendant fled solely in an effort to evade arrest for the murder of Adrian Dickerson. Indeed, given the fact that the double homicide occurred mere hours before the defendant's encounter with the officers, the defendant likely assumed the officers were investigating that incident. In any event, the defendant has not provided the Court with any authority which prohibits a flight instruction when a defendant has multiple motives for fleeing. The Court finds this issue to be without merit.

Based upon the facts of the case, we conclude, as did the trial court, that the jury could infer that the Appellant fled due to his involvement in any and all crimes he had previously committed. A flight instruction is not prohibited when there are multiple motives for flight because to determine otherwise would prevent a flight instruction when a defendant evades arrest for numerous crimes. A defendant's specific intent for fleeing a scene is a jury question. Accordingly, the trial court properly instructed the jury on flight.

[Deleted: X. Sufficiency of the Evidence]

XI. Victim Impact Testimony

The Appellant's challenge to the introduction of victim impact evidence is limited to the testimony of Brenda Ewing Sanders, mother of the victim Ewing. The victim impact testimony complained of is as follows:

Q. Until you were sitting in the courtroom the other day and heard the testimony of Dr. Levy, did you have any idea of how many times your son had been shot?

A. No, I had no idea that my son was shot seven times.

Q. The police didn't tell you that?

A. No.

Q. And until you heard Mr. Berry's statement played for you, did you realize that your son was screaming for his life before he was killed?

A. I didn't, but that was something that I've always wanted to find closure of, of what he was saying when this was happening to him, if he was even asking, just tell my mother something.

The trial court concluded that "Sanders' testimony did not exceed the scope of appropriate victim impact testimony." The Appellant contends that this testimony does not address any "unique characteristics" about the victim; rather, it offers "characterizations and opinions about the crime." We note that this issue is waived because neither the Appellant nor his attorneys objected to Sanders' testimony during the jury-out hearing or her testimony. Tenn. R.App. P. 36(a). Nonetheless, we proceed to address the merits of the Appellant's argument.

In State v. Nesbit, 978 S.W.2d 872, 889 (Tenn.1998), our supreme court held that victim impact evidence and prosecutorial argument is not barred by the federal and state constitutions. See also Payne v. Tennessee, 501 U.S. 808, 827, 111 S. Ct. 2597, 2609, 115 L. Ed. 2d 720 (1991) (holding that the Eighth Amendment erects no per se bar against the admission of victim impact evidence and prosecutorial argument); State v. Shepherd, 902 S.W.2d 895, 907 (Tenn.1995) (holding that victim impact evidence and prosecutorial argument are not precluded by the Tennessee Constitution). Notwithstanding the holding that victim impact evidence is admissible under Tennessee's death penalty sentencing scheme, the introduction of such evidence is not unrestricted. Nesbit, 978 S.W.2d at 891. Victim impact evidence may not be introduced if (1) it is so unduly prejudicial that it renders the trial fundamentally unfair, or (2) its probative value is substantially outweighed by its prejudicial impact. Id. (citations omitted); see also State v. Morris, 24 S.W.3d 788, 813 (Tenn.2000) (Appendix), cert. denied, 531 U.S. 1082, 121 S. Ct. 786, 148 L. Ed. 2d 682 (2001).

"Victim impact evidence should be limited to information designed to show those unique characteristics which provide a brief glimpse into the life of the individual who has been killed, the contemporaneous and prospective circumstances surrounding the individual's death, and how those circumstances financially, emotionally, psychologically or physically impacted upon members of the victim's immediate family." Nesbit, 978 S.W.2d at 891 (footnote and citations omitted). Admission of a victim's family members' characterizations and opinions about the crime, the Appellant, and the appropriate sentence is improper. Id. at 888 n. 8. The victim impact evidence complained of by the Appellant is clearly of the nature envisioned by Nesbit. See generally State v. Smith, 993 S.W.2d 6, 17 (Tenn.1999). The fact that the death of a loved one is devastating requires no proof. Morris, 24 S.W.3d at 813 (Appendix). Accordingly, we cannot conclude that the admission of the victim impact testimony was unduly prejudicial. This issue is without merit.

[Deleted: XII. Proportionality Review]

ADOLPHO A. BIRCH, JR., J., concurring and dissenting.

I concur in the conclusion of the majority that Berry's convictions should be affirmed. As to the sentences of death, however, I continue to adhere to my views expressed in a long line of dissents beginning with State v. Chalmers, 28 S.W.3d 913, 920-25 (Tenn.2000)(Birch, J., concurring and dissenting), and most recently elaborated on in State v. Davidson, 121 S.W.3d 600, 629-36 (Tenn. Oct.20, 2003)(Birch, J., dissenting), that the comparative proportionality review protocol currently embraced by the majority is inadequate to shield defendants from the arbitrary and disproportionate imposition of the death penalty. See Tenn.Code Ann. § 39-13-206(c)(1)(D)(1995 Supp.). I have repeatedly expressed my displeasure with the current protocol since the time of its adoption in State v. Bland, 958 S.W.2d 651 (Tenn.1997). See State v. Holton, 126 S.W.3d 845, 872 (Tenn.2004) (Birch, J., concurring and dissenting); State v. Davidson, 121 S.W.3d 600, 629-36 (Tenn.2003) (Birch, J., dissenting); State v. Carter, 114 S.W.3d 895, 910-11 (Tenn. 2003) (Birch, J., dissenting); State v. Reid, 91 S.W.3d 247, 288-89 (Tenn.2002) (Birch, J., concurring and dissenting); State v. Austin, 87 S.W.3d 447, 467-68 (Tenn.2002) (Birch, J., dissenting); State v. Stevens, 78 S.W.3d 817, 852 (Tenn.2002) (Birch, J., concurring and dissenting); State v. McKinney, 74 S.W.3d 291, 320-22 (Tenn.2002) (Birch, J., concurring and dissenting); State v. Bane, 57 S.W.3d 411, 431-32 (Tenn.2001) (Birch, J., concurring and dissenting); State v. Stout, 46 S.W.3d 689, 720 (Tenn.2001) (Birch, J., concurring and dissenting); Terry v. State, 46 S.W.3d 147, 167 (Tenn.2001) (Birch, J., dissenting); State v. Sims, 45 S.W.3d 1, 23-24 (Tenn.2001) (Birch, J., concurring and dissenting); State v. Keen, 31 S.W.3d 196, 233-34 (Tenn.2000) (Birch, J., dissenting). As previously discussed, I believe that the three basic problems with the current proportionality analysis are that: (1) the proportionality test is overbroad,^[1] (2) the pool of cases used for comparison is inadequate,^[2] and (3) review is too subjective.^[3] I have previously discussed, in depth, my perception that these flaws undermine the reliability of the current proportionality protocol. See State v. Godsey, 60 S.W.3d at 793-800 (Birch, J., concurring and dissenting). I continue to adhere to my view that the current comparative proportionality protocol is woefully inadequate to protect defendants from the arbitrary or disproportionate imposition of the death penalty.^[4] Accordingly, I respectfully dissent from that portion of the majority opinion affirming the imposition of the death penalty in this case.

NOTES

[1] After sentencing, the trial court merged each felony murder count into the premeditated murder counts for each respective victim, leaving the defendant with two first-degree murder convictions.

[2] The jury found that the defendant had been previously convicted of first degree murder, aggravated assault, and two counts of aggravated robbery.

[3] The court sentenced the defendant to twenty-five years on each count, with the two sentences for kidnapping running concurrently, the two sentences for robbery running concurrently, but the sentences for the kidnappings and the robberies running consecutively to each other and to the murders, for a total effective sentence of death plus fifty (50) years.

[4] "Prior to the setting of oral argument, the Court shall review the record and briefs and consider all errors assigned. The Court may enter an order designating those issues it wishes addressed at oral argument." Tenn. Sup.Ct. R. 12.2 (2003).

[5] Co-defendant Davis's case, tried separately, is currently before this Court as well. We note that the transcript in Davis's trial reflects that Cartwright also testified in that case. Cartwright's testimony, however, differed in this respect: instead of claiming that defendant Berry made this statement, at Davis's trial Cartwright testified that it was Davis who made the statement, "If we rob 'em, we gotta kill 'em." We find this inconsistency insignificant, since in either case, both Davis and the defendant were present and in apparent agreement when the statement was made.

[6] "Sneak" was apparently the nickname for Ronald Benedict.

[7] Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

[8] Police investigation, however, eliminated Loyal as a suspect. Loyal testified as a state's witness at trial concerning events that occurred at Davis's apartment later on the night of February 27, 1996. This included the defendant and Davis arriving at the apartment in a white Cadillac and asking him to help them unload a cache of guns from the car, then driving around with them in the Cadillac until they dropped him off in Bordeaux. During the drive, Davis commented that although he was supposed to buy the guns, he had taken them instead.

[9] The defendant declined to sign a formal acknowledgment of his right to testify and waiver of such right. He confirmed in open court, however, that this was his decision, made after his attorney advised him of this right.

[10] The transcript misspells Dr. Bernet's name as "Burnett." We have confirmed the correct spelling of the name and choose to use it in this opinion despite the error in the record.

[11] See footnote 14, infra, as to the questioned validity of this particular statement after Ring, 536 U.S. 584, 122 S. Ct. 2428.

[12] Instead of stating that the Apprendi principles did not "apply," perhaps it would have been more accurate to state that Apprendi did not "affect" our procedure. The basic constitutional principles of right to trial by jury and right to proof of elements of an offense beyond a reasonable doubt clearly apply; they simply were not affected by Apprendi because in Tennessee, our procedure already provided that aggravating circumstances must be submitted to and found by a jury beyond a reasonable doubt. See Tenn.Code Ann. § 39-13-204 (1997).

[13] In discussing the implications of the Apprendi decision to death penalty cases, the Ring majority rejected Arizona's argument that the death penalty was "within the range of punishment authorized by the jury verdict." The Court stated:

This argument overlooks Apprendi's instruction that "the relevant inquiry is one not of form, but of effect." In effect, "the required finding [of an aggravated circumstance] expose[d] [Ring] to a greater punishment than that authorized by the jury's guilty verdict." The Arizona first-degree murder statute "authorizes a maximum penalty of death only in a formal sense," for it explicitly cross-references the statutory provision requiring the finding of an aggravating circumstance before imposition of the death penalty.

Ring, 536 U.S. at 604, 122 S. Ct. 2428 (citations omitted). In light of this language, our statement in Dellinger that "[t]he death penalty is within the statutory range of punishment. . . for first degree murder," 79 S.W.3d at 466, is not entirely accurate.

[14] The defendant argues, and we acknowledge, that in relation to the Federal Death Penalty Act, 18 U.S.C.A. §§ 3591(a)(2), 3592(c), several lower federal courts have held that at least one aggravating circumstance must be pled in the indictment. See United States v. Robinson, 367 F.3d 278, 284 (5th Cir.2004) (but holding error harmless); United States v. Allen, 357 F.3d 745, 748 (8th Cir.2004) (en banc); United States v. Higgs, 353 F.3d 281, 298 (4th Cir.2003); United States v. Haynes, 269 F. Supp. 2d 970, 979 (W.D.Tenn.2003).

[15] "That no person shall be put to answer any criminal charge but by presentment, indictment or impeachment."

[16] The defendant relies heavily on the case of United States v. Fell, 217 F. Supp. 2d 469, 487 (D.Vt.2002), which held that capital sentencing hearings conducted pursuant to the federal death penalty sentencing statute, 18 U.S.C.A. § 3731, must be conducted in accordance with the Federal Rules of Evidence. We note that this holding was recently reversed by the Second Circuit in United States v. Fell, 360 F.3d 135, 141 (2d Cir.2004) (holding that the statute admitting evidence related to mitigating or aggravating factors "regardless of its admissibility" under the federal evidence rules, do not offend Due Process or Confrontation clauses); see also United States v. Matthews, 246 F. Supp. 2d 137, 142 (N.D.N.Y.2002)(same).

[1] The trial court also found that the testimony was admissible as an "adoptive admission" pursuant to Tennessee Rule of Evidence 803(1.2)(B). However, we conclude that the testimony clearly falls within the co-conspirator exception to the hearsay rule and, therefore, find it unnecessary to address whether the testimony is also admissible as an "adoptive admission."

[1] I have urged adopting a protocol in which each case would be compared to factually similar cases in which either a life sentence or capital punishment was imposed to determine whether the case is more consistent with "life" cases or "death" cases. See State v. McKinney, 74 S.W.3d at 321 (Birch, J., concurring and dissenting). The current protocol allows a finding proportionality if the case is similar to existing death penalty cases. In other words, a case is disproportionate only if the case under review "is plainly lacking in circumstances consistent with those in similar cases in which the death penalty has been imposed." Bland, 958 S.W.2d at 665 (emphasis added).

[2] In my view, excluding from comparison that group of cases in which the State did not seek the death penalty, or in which no capital sentencing hearing was held, frustrates any meaningful comparison for proportionality purposes. See Bland, 958 S.W.2d at 679 (Birch, J., dissenting).

[3] As I stated in my concurring/dissenting opinion in State v. Godsey, "[t]he scope of the analysis employed by the majority appears to be rather amorphous and undefined — expanding, contracting, and shifting as the analysis moves from case to case." 60 S.W.3d 759, 797 (Tenn. 2001)(Birch, J., concurring and dissenting).

[4] I also note that in a recent study on the costs and the consequences of the death penalty conducted by the State Comptroller, one of the conclusions was that prosecutors across the state are inconsistent in their pursuit of the death penalty, a fact that also contributes to arbitrariness in the imposition of the death penalty. See John G. Morgan, Comptroller of the Treasury, Tennessee's Death Penalty: Costs and Consequences 13 (July 2004), available at www.comptroller.state.tn.us/orea/reports.