State v. Ivy

STATE of Tennessee

David IVY. Tennessee,

Supreme Court

at Jackson.

Nov. 2005 Session.

Feb. 39-13-204(i)(2) (6) §Ann.

Tenn.Code and addition, (Supp.1999). In deter- mined that of aggravating evidence outweighed circumstances mitigating beyond circumstances a reason- (c). able doubt. Id. at The Court Appeals Criminal affirmed the convictions Jones, Defender; Robert Wilson Public and the death sentence. Tony Brayton, N. Assistant Public Defend- appeal After the was docketed er; Ergüden, and Garland Assistant Public Court, identifying we entered an order Defender, Tennessee, Memphis, for the issues eight argument.1 Having for oral Appellant, Ivy. David applicable reviewed record and author- Summers, Paul Attorney G. General 1) ity, we now hold that: the evidence was Reporter; Moore, E. Michael Solicitor to support degree sufficient the first mur- General; M. Angele Gregory, Assistant 2) conviction; der trial court did General; Attorney Gibbons, William L. 3) impaneling anonymous err in jury; General; Weirich, Attorney District Amy trial court ruled properly that the vic- General; Assistant Attorney District tim’s statements were under admissible Harris, Gerald Attorney Assistant District by wrongdoing” hearsay the “forfeiture ex- General, Appellee, for the State of Tennes- 4) ception; supported the evidence see. jury’s findings the two beyond circumstances a rea- proven were OPINION 5) doubt; sonable the trial court erred ANDERSON, J., E. RILEY delivered instructing during sentencing phase court, opinion which prior felony two of the five BARKER, C.J., WILLIAM M. convictions relied on M. JANICE HOLDER and CORNELIA violence to but the person, involved error CLARK, JJ„ A. joined. ADOLPHO A. doubt; beyond harmless reasonable BIRCH, JR., J., separate filed a 6) in allowing court erred concurring dissenting opinion. prosecution to the defendant’s introduce defendant, Ivy, David was convicted indictment for first premeditated degree sentencing first murder and the the trial phase of where the was sentenced death. a imposing defendant had been convicted of second sentence, murder, degree death found that two but the error did not affect 7) circumstances, outcome; i.e., aggravating the defen- trial court erred previously argue was one or could not ruling dant convicted of defense counsel statutory mitigating more felonies in- circum- whose elements residual doubt as person sentencing during phase, volved the use of violence to the stance but outcome; and the was for the did not and murder committed the error affect with, 8) purpose avoiding, interfering or evidence of circum- arrest or miti- preventing outweighed lawful stances the evidence of another, beyond or had been a reasonable gating defendant circumstances doubt, beyond established doubt. and sentence was not reasonable the death setting argument, designating "Prior those it 1. to the oral enter order issues argument.” Court shall review the record and and addressed at Tenn. briefs wishes oral consider all assigned. may Sup.Ct. R. issues The Court 12.2. told Officer Road. Thomas arbitrary We also Millbranch disproportionate. way into her Ivy had forced his Clark Appeals’ with the agree Court Criminal to kill her. threatened apartment and respect remaining conclusions with Ivy had been threaten- Thomas said issues, portions relevant of which are to end because she wanted ing to harm her Thus, in the the Court appendix. included testified relationship. Officer Clark is affirmed. Appeals’ judgment of Criminal and “very up shaken that Thomas was victim, 8, 2001, the LaKisha On June afraid.” (“Thomas”), Thomas was shot to death June Similarly, morning on parking car in the lot sitting her while Cummings responded Officer Steve apartment complex in Ten- Memphis, of an apartment, call at Jackie Bland’s 27, 2001, June Thomas’s es- nessee. On bleeding and bruised where he found tranged boyfriend, Ivy (“Ivy”), was David Cummings Officer Thomas. Thomas told premeditated degree first arrested Ivy, “ex-boyfriend,” had attacked that her trial, Ivy con- murder. After a was and had nearby her at a convenience store premeditated victed of first a black Uzi struck her in the head “with sentenced death. The told Cum- type Thomas Officer pistol.” presented during guilt penalty known mings Ivy, who was also proceedings is summarized below. going her “he back “Day Day,” told wasn’t jail” “he would ... kill her.” Offi- Guilt Phase had a testified that Thomas Cummings cer defendant, In June of David head, bruising on her two-inch laceration Ivy, placed from prison released chest, eye right and a on the on her black Thereafter, parole. began dating on he side her face. victim, LaKisha Thomas. Kelley Bland also Deborah and Jackie relationship was marked attacked on saw the victim after she was For against example, violence Thomas. According she Kelley, June (“Bland”), cousin, Jackie Bland the victim’s and found apartment at Bland’s arrived Ivy pull testified that she once saw Thom- bleeding and bruised. that Thomas was occasion, as’s hair and that on another ” said, [Ivy] “Look what did.... Bland Ivy Thomas told her that had kicked her told she Kelley testified that Thomas her her furniture. door and broken Deborah Ivy Ivy and that attacked been Kelley (“Kelley”), cousin, another testified police. Bland called the wanted to kill her. Ivy grab that she also Thomas her saw Cummings responded After Officer hair; intervened, said, Kelley “I when call, Thomas to Kelley and Bland drove me, you playing told about bitch.” to swear out the Criminal Justice Center (“Hunt”) Andrea Hunt testified that route, they Ivy. against While en warrant her “had Thomas told her Kelley car. Ivy following them his saw 1,” only he would allow her to and because was police, Ivy called but pulled over and apartment per day. her one hour leave The women gone police when the arrived. to Criminal May of Officer Alvin Clark of then continued Justice respond- Thomas out warrant Memphis Department Police Center where swore Ivy.2 against assault apartment aggravated for to call Thomas’s on ed day. Cummings was the next that a warrant sault issued 2. Officer testified aggravated charging the defendant with as- leaving After the Criminal Justice Cen- apartment, gunshot heard a followed ter, Thomas, Kelley, and Bland to a drove screaming. According Kelley, Bland liquor Ivy, store. who again had been said, police. Day “Call the Day shot [the them, following appeared parking in the Kelley then victim].” heard the noise lot and approached According the car. to tires in parking lot. Bland, Thomas, “Bitch, Ivy told if you put Gregory Kelley, the brother Deborah police business, in my I’m going to kill Bland, Kelley working and Jackie was as a you.” Kelley Similarly, when returned to supervisor apartment maintenance at the store, the car from liquor Thomas told complex when gunshots he heard and Ivy her that kill threatened to her “if she screaming. green He ran to a car and saw put police in his business.” pulled Thomas had been shot. He Ivy’s liquor conduct in the store parking Thomas applied pressure from the car and captured lot was a surveillance camera on her wounds shouting while someone and employees. was witnessed two to call 911. car He then saw a “white Hibler, employee, One Terrance Ivy heard speed up apartments” out that re-

tell Thomas that “it wasn’t over” and sembled car. going get According “[h]e was her.” Hibler, Thomas, who was real “shaking Officer Alvin Clark arrived the scene bad,” said, “I he’s going know kill me.” and saw a speeding white car from the Similarly, employee, another Frank Sulli- apartment complex. He found van, noticed that “shaking” Thomas was no pulse. Spent casings, victim had shell pretty badly.” and “bruised He too heard fragments, bullet and live rounds were say Ivy going Thomas to kill her. was found at the scene. called; police they were when arrived Smith, Dr. O.C. the medical examiner store, at the liquor Thomas was taken Tennessee, County, Shelby conducted Center, the Criminal Justice where she autopsy the victim. The victim had parte protection obtained an ex order gunshot right five wounds that entered the against Ivy.3 body side of her from a of no distance later, days Two morning on the of June away. more two Dr. Although than feet 8, 2001, Thomas and Hunt were outside sequence Smith could determine the apartment complex

Bland’s Thomas’s gunshots, he two of the concluded that Hunt, According car. ran Ivy up to the gunshots struck the victim’s heart and that car wearing while a black and a towel cap gunshots all the victim’s affected part Ivy pulled over of his face. the towel major spleen. organs except her Dr. said, “Oh, bitch, you face his multiple gun- concluded that Smith dead, want me huh?” He shot Thomas death and that shots caused the victim’s Bland, five and fled. who out- times was gunshots to the victim’s the two heart her apartment, side likewise saw someone quickest.” “ended her life the would have hat, black wearing sunglasses, 27, 2001, arrested on June up towel over his mouth run was car County “open Although Shelby he was incarcerated fire.” the shooter’s face towel, jail from in partly pending escaped Bland Jail trial. He covered later, May he Ivy. Similarly, said that resembled months 2002. Two California, Kelley, Deborah Diego, who was inside Bland’s in San after captured hearing Although parte on was scheduled for June the notice of the ex order June 21, 2001, attempts serve the defendant with June and June 20 were unsuccessful. acknowledged about fleeing that she knew from She diving through window and asked prior convictions. She her brother’s police officers for several blocks. brother jury not sentence her in rested its case prosecution After the death. chief, de- testified on the Vickie Crawford that She stated she fendant’s behalf. she, Ivy, testified that Crawford Vickie Ivy Ivy with and that was father lived said friends. She had been and victim Ivy that was daughter. of her She learned Ivy with even she maintained contact she dating Thomas October of but de- for second Ivy imprisoned when was problems no their relation- had heard of to continue intended gree murder. She ship. he her relationship Ivy since was her jury She asked the Ivy daughter’s father. jury premeditated The of convicted get daughter so that their would degree spare Ivy murder. The trial then moved first sentencing phase determine to know him. into

punishment. mitigation. Other witnesses testified Fletcher, neighbor of a former William Sentencing Phase Ivy “pretty was a Ivy family, stated prosecution presented The the testimo- always him with nice kid” who treated sister, ny Elaine Thomas. of the victim’s Gladys Hobson, another former respect. Thomas testified that the victim was Ms. “life neighbor, testified decisions age four children under the survived by man. not be made and death” should separated ten. The children were Similarly, Mackey, acquaintance Kim each other after the victim was murdered Ivy, victim and David testified According and their school work suffered. our hands.” are [not] “life and death Thomas, to Ms. the victim had been deliberating, jury imposed After family, her “backbone” of and death The found that death sentence. family. affected the entire relied aggravating circumstances two presented prosecution The also evidence i.e., was prosecution, the defendant and for indictments convictions felo- or more convicted one previously felony Ivy five offenses. statutory elements involved nies whose premeditated degree first was indicted and mur- person use of violence to murder, felony pleaded he murder and avoiding, interfer- was committed der guilty Ivy was second murder. with, lawful or ing preventing or arrest especially rob- aggravated indicted for also another, of the defendant as- bery aggravated and three counts beyond a reasonable proven had been sault, pled guilty to these offenses he 13—204(i)(2) §Ann. Tenn.Code doubt. 39— as well. (6). that the two also found Ivy, mitigation, Ruby the defendant’s outweighed the aggravating circumstances sister, was testified that her brother oldest be- mitigating circumstances born in 1972 and was one of nine children. (c). doubt. Id. yond reasonable respon- Ivy that she had been Ms. testified Ap- Court of Criminal appeal, their On raising her because sible for brother affirmed convictions peals the defendant’s problems. health She stated mother had ap- The defendant’s “get and death sentence. good guy” “a who could was automatically docketed in then anybody.” peal She said that along with singer. this Court. a talented loved children support degree sufficient to mur-

ANALYSIS first der conviction. The evidence showed Guilt Phase Issues Ivy had been physically mentally throughout abusive Thomas rela- their Sufficiency Evidence of tionship. When tried Thomas to end the Ivy argues that the evidence does relationship, Ivy’s against violence es- her not support degree the first murder con 6, 2001, calated. On June beat viction because there insufficient evi pistol, Thomas followed her as she dence of his identity perpetrator. as the drove and from the Criminal Justice The State maintains that the evidence was in Memphis, Center in the confronted her support sufficient to the conviction. store, parking lot of liquor threat- evaluating sufficiency When kill ened to her. His actions were filmed evidence, we must determine wheth by a surveillance camera and his numer- “any er rational of fact trier could have ous threats were heard several wit- found the essential elements of crime later, 8, 2001, days nesses. Two on June beyond a reasonable doubt.” v. Jackson Ivy shot five times Thomas from close 307, 319, Virginia, 443 U.S. 99 S.Ct. range helpless as she sat A her car. (1979). 61 L.Ed.2d 560 required We are car, Hunt, passenger Andrea knew to afford the strongest le Ivy and identified him as shooter. gitimate record, view the evidence witness, Bland, Another Jackie who also as well all legitimate reasonable and Ivy, knew that Ivy stated resembled the may inferences which be drawn therefrom. shooter. Several witnesses saw a white Bland, See State v. 958 S.W.2d 659 car resembling Ivy’s speeding from (Tenn.1997). Questions concerning the scene. witnesses, credibility weight argues nonetheless that the evidence evidence, given factual is was testimony insufficient because the Id.; sues are the trier fact. resolved Hunt Andrea conflicted with of Jackie Cole, see also 897 Bland; in particular, Ivy asserts that (Tenn.2005); Cazes, State v. disagreed witnesses as to whether (Tenn.1994). wearing perpetrator sunglasses. had been

The offense of murder in- first role, however, jury’s weigh a “premeditated cludes and intentional kill- credibility of and to the witnesses resolve ing § of another.” Ann. Tenn.Code 39- any Our factual conflicts the evidence. 13-202(a)(l) A (Supp.1998). premeditated legal sufficiency sole task is to review the act is “an act done after the exercise of Having so the evidence. done under judgment” reflection and and means that above, explained standards review “the to kill intent must have been formed have the evidence was concluded that suffi- (d). prior to act An itself.” Id. at support cient the conviction for first intentional act refers to “the nature of the degree murder.

conduct or to result the conduct when Jury it is person’s objective [a] conscious or Anonymous engage desire to in the conduct cause Ivy next contends that the trial the result.” Ann. 39-11- TenmCode right fair public violated his to a 106(a)(18) (1997). an an impartial jury by impaneling agree anonymous jury. Ivy argues We with the Court of Criminal that the trial authority using anony- Appeals’ conclusion that the court had no

143 anonymous jury may be an procedure mous and that the was Whether of case is issue telling impaneled he in criminal an tantamount to that was Court. guilty charged of this As impression offense. See U.S. first Const, V, VI, XIV; review, amend. Tenn. we find little assistance begin our Const, I, § art. 6. maintains procedural The State in Tennessee statutes in impan- instance, that the trial court did not err An- Tennessee Code rules. For eling anonymous jury. (2003) an states 40-18-104 notated section jurors are names of the only “[t]he begin our review of this issue We scrolls, in a separate placed written on trial, closely examining the record. Prior receptacle, and drawn out or other box prosecution requested that the trial judge, person agreed upon ... or some jury. The impanel anonymous an attorney general and the by the district had prosecution asserted that witness 24(g) Rule Similarly, of defendant.” (and baby injured) her follow- been shot Procedure Tennessee Rules Criminal Ivy’s preliminary hearing and that ing “[u]pon request parties provides that in charged relative of had been furnished with a list of members shall be incident. The also asserted containing following jury panel, danger jurors he because name, to each: respect information with custody. previously escaped address, occupation, occu- spouse, name granting prosecution’s request no spouse.” We can find statute pation of impanel anonymous jury, an the trial court however, rule, or permits that either or prejudice weighed “the risk to the de- jury. anonymous the use of an proscribes against [jury’s] heightened fendant” “the of concern and ... for then- level fear jurisdictions for turning to other safety or safety their families.” nearly every it guidance, appears emphasized following: trial court issue has court that has addressed the First and the alleged foremost motive juries anonymous may be recognized that ... for this murder have occurred in without impaneled appropriate case keep and that is to of this victim rights violating a defendant’s constitutional from testifying against this de- under the United States Constitution.4 thereby him fendant send back 989, Talley, v. F.3d See United States 164 prison. alleged And then act (6th Cir.1999); Ed 1001 United States v. relative of defendant.... That re- this (D.C.Cir.1995); mond, 1080, 52 F.3d 1090 in an pend- sulted indictment that’s now Ross, 1507, 1519 States v. 33 F.3d United ing this of court that is an act division (11th Crockett, Cir.1994); United States v. perpetrated against that was allegedly (7th 1204, Cir.1992); 1215 979 F.2d United case. witness (3d 1015, F.2d 1021 Scarfo, v. 850 States Barnes, Cir.1988); v. United States “to place The trial court concluded that (2d Cir.1979); 121, 140 also State F.2d see danger or [jurors] their families dan- 1, Samonte, 507, 83 Hawai'i P.2d v. place danger them in ger potentially Williams, (1996); People 12-17 v. Mich. very simply responsible not be would (2000); 710, App. 616 N.W.2d 712-14 part system.” The Court of Bowles, ruling. 530 N.W.2d 529-31 Appeals affirmed State v. Criminal 4513(a) See, Indeed, legislation. e.g., Del.Code Ann. several states have authorized anon- adopted procedures (1994). ymous juries or have juries through anonymous use the routine (Minn.1995); Tucker, Edmond, 259 Wis.2d innocence. See F.3d (2003). (jury N.W.2d 379-82 was instructed anonymity routine); Talley, 164 at (jury F.3d 1002 These courts recognized have im that anonymity instructed that was due to paneling anonymous an jury implicates a interest); Crockett, media 979 at F.2d 1216 of competing number interests. The Sec (jury was instructed on the presumption of said, instance, ond Circuit has that the innocence). impanel decision to anonymous an jury requires a court to “balance the defen on principles Based these and the over- in dant’s conducting interest meaningful whelming weight authority, we believe voir dire in maintaining presump the anonymous juries that may impaneled innocence, tion of against jury the mem under Tennessee law. As discussed earli- in remaining ber’s interest free from real er, provision anony- no forbids the use of public threatened violence and the in juries Moreover, mous in Tennessee. af- having in jury terest the fair render a and fording the trial court this discretion is impartial verdict.” United States Amu consistent with the broad discretion afford- (2d so, Cir.1994); 21 F.3d 1264 see ed trial courts in concerning jury matters 1001; Edmond, Talley, also 164 F.3d at 52 Finally, given selection. the responsibili- Samonte, 1093; F.3d at 928 at P.2d ties placed jurors and burdens in our upon judicial system, we that agree the adopting balance, In achieving this many two-prong juris- in framework used other adopted courts have two-prong a frame dictions allows the trial court to preserve work for determining anonymous an when safety sanctity the jury as re- jury is appropriate. The first prong is quired in appropriate cases at while strong whether there is a to reason believe preserving rights same time the individual jury that the protection. needs See Tal of the accused. 1001; ley, 164 F.3d United States v. (2d Paccione, case, 949 F.2d applying 1192 Cir. In the first prong to this 1991). A may trial court consider defen we conclude trial court did not dant’s alleged participation organized in finding abuse its in discretion that there crime, a alleged defendant’s participation strong were protect jury. reasons to group capacity with the to threaten The trial court found that an apparent jurors, a to past defendant’s efforts inter in committing charged motive offense judicial fere process, Ivy’s the defen included victim prevent desire possible punishment convicted, dant’s if going police. Although the trial pervasiveness and the publicity of trial court also found that a relative of had may jurors’ reveal names and been indicted at a shooting witness case, expose public scrutiny. them give finding relatively See Ed this this mond, 1091; Ross, weight F.3d 33 F.3d at little since there no note, prong regard. 1520. The second framework the record this We do however, precautions escaped is whether reasonable will on at least prejudice minimize in custody defendant and one occasion while for this of- Moreover, rights ensure that are pro fundamental fense. courts have held that Talley, past history tected. 164 F.3d at 1001. not Such defendant need have precautions may jury history include enhanced tampering voir and that dire, justice instructions to and attempting neutral violence to obstruct reasons for them anonymity, may support impan- and instruc determination presumption eling anonymous jury appropriate. tions is unavailability Edmond, 1092; procure and did F.3d at United See (2d witness,” apply Aulicino, as a does declarant States v. F.3d Crockett, 1216; the victim of Cir.1995); the declarant F.2d at where argues that Paccione, 1193; being tried. also Scarfo, offense 949 F.2d at vio- of Thomas’s statements short, the admission sup- F.2d at 1017. the evidence right lated of confrontation under his ports finding. the trial court’s and Tennessee Constitu- United States applying prong the second tions. case, did not we note that the trial court trial court argues jury on give specific instruction to the properly ruled that Thomas’s statements Although this anonymity. the issue of its to Rule pursuant were admissible may practice, we do not preferred 804(b)(6). that The State maintains of an instruction is believe the absence to be require rule not declarant does Indeed, controlling. may one that a argue and that the defendant’s an actual witness specific anonymity simply instruction as to to solely prevent intent need not have been may it jury’s calls the attention to what testifying. the declarant from The State accepted proce- to have believed be the Criminal argues further that the Court of event, any In dure. the record reveals finding that the admis- Appeals erred that the trial court lengthy conducted a error, of the statements was albeit sion ques- parties voir dire and allowed both harmless, appellate court sub- because the jurors extensively. tion the prospective findings findings the factual stituted its Moreover, the trial court instructed the court. by made the trial innocent, Ivy that was presumed that prosecution had the burden estab- begin by examining our We review doubt, beyond lishing guilt a reasonable place record to the numerous issues and and that the indictment evidence. trial, Ivy into context. Prior to sub-issues the jury presumed Since to follow asking filed a motion the trial court to rule absent instructions evidence to con- admissibility hearsay statements trary, we conclude that these instructions police wit- Thomas made to and other protected against possibility preju- The prosecution argued nesses. that Edmond, 1093; dice. See 52 F.3d at un- Thomas’s were admissible statements Crockett, 1216; F.2d United States 804(b)(6) of the Tennessee Rules der Rule (2d Vario, Cir.1991); 943 F.2d Ivy’s wrongdoing re- of Evidence because Somonte, 928 P.2d at unavailability testify sulted in Thomas’s particular, him. In against as a witness Accordingly, Ivy we hold that is not Ivy reasoned that killed entitled relief based on the trial court’s prevent testifying the victim to her from impanel anonymous jury. decision to aggravated him in a for the against 6, 2001, hearing or in Admission Victim’s Statements assault on June aggravated parole his on the revoke based argues next that the trial court assault. admitting committed error in reversible hearing, court ruled made Thomas under Rule After a the trial statements 804(b)(6) following Rules of Evi statements would be Tennessee 1) 804(b)(6), argues Thomas’s statement dence. He that Rule admitted: 2) hair; pulled Thomas’s state- which allows admission state her “[a] against when he party ment offered that has en ments about violent acts 3) wrongdoing apartment; of her Thomas’s gaged that was intended moved out statements about the aggravated above, assault 804(b)(6), As noted Rule which is 4) 6, 2001; that occurred on June often called the “waiver misconduct” or Thomas’s rule, statements in “forfeiture parking lot of misconduct” allows the liquor store. admission against “[a] The trial court statement found offered party has engaged that the in wrongdoing statements were “to relevant show that was intended motive to and procure did killing paint and to ... unavailability of the declarant a wit- an accurate picture of hostility ness.” Since this Court has never ad- have might existed in relationship by or applied 804(b)(6), dressed Rule the defendant toward the victim and what since the rule itself express contains no his intent would during have been parameters limitations, we turn to other course of the relationship.” finding jurisdictions guidance. that Thomas’s statements were admissible 804(b)(6), under Rule the trial court rea- addressing nearly rules identical soned: 804(b)(6) Rule of the Tennessee Rules of Evidence, federal universally courts have I think hearsay exception that the held that witnesses’ admis statements are applicable.... was cited is also Follow- sible the wrongfully “where defendant has ing the theory, State’s [Ivy] wasn’t tak- procured the through witnesses’ silence ing these actions to prevent her from threats, actual violence or murder.” Unit being a in witness this murder case obvi- Dhinsa, (2d 635, ed States 243 F.3d 651 ously. It prevent would have to been Cir.2001); see United States v. Garcia- her from being a parole witness at the Meza, (6th 364, Cir.2005); F.3d 403 370 violation hearing aggravated as- and/or 811, United v. Cherry, States 814 F.3d sault trial might that have come (10th Cir.2000); United Emery, States v. about.... But ... appropri- it were if (8th Cir.1999); 186 F.3d United apply ate to hearsay exception this to White, States v. 116 F.3d instances, those greater then the harm (D.C.Cir.1997); United States v. Houli be

would to kill her and have this mur- han, (1st Cir.1996). 92 F.3d As case resulting. der not So it would be explained: one has logical say to apply that it to would imagine It is to hard a form of miscon- lesser but not greater. So it would duct more extreme than the of a apply also. potential Simple equity sup- witness. added). (Emphasis ports principle, a forfeiture [] as does common sense.... The defendant who appeal, the Ap- On Court of Criminal has in removed adverse witness is a peals concluded that the trial court erred to position complain losing weak about admitting in under statements Rule to the chance cross examine him. And 804(b)(6). The appellate court found that where a has a wit- silenced defendant preponderance of the evidence did not threats, through ness the use violence Ivy establish acted with the intent to murder, or admission the victim’s procure Thomas’s absence as witness. prior partially statements least off- court, however, The held that the error perpetrator’s sets the his rewards for admissibility was harmless because of misconduct. of some Thomas’s under an- statements White, added). F.3d at 911 (emphasis hearsay exception, other excited utter- ances, and strength emphasizing the overall of the evi- that defendants against Ivy. dence may wrongdo- not from benefit their own to whether determine of a wit- unavailability presence ings causing are admissible. on statements ness, agreed of courts have a declarant’s majority First, Dhinsa, In such a Rule at 653-54. following principles. 243 F.3d 804(b)(6) not limit a declarant’s state- hearing, does in order for statements past offenses the admissible, ments to events find that a the trial court must declarant have testified about. would of the evidence establishes preponderance Dhinsa, Indeed, 243 F.3d at 652. 1) in or involved defendant was 804(b)(6) plain language of Rule “refers unavailability procuring responsible party procure 2) the una- the intent of a declarant; defendant’s of the witness, ... vailability of and does not intended, part, at least actions were of the witness subject limit the matter absence of the declarant. procure Dhinsa, F.3d at 652. testimony-” case, principles Applying these Emery: Eighth As the Circuit said correctly de- hold the trial court contends that these [The defendant] Thomas’s statements were termined that in a on principles apply only trial should 804(b)(6) Rule under admissible he underlying crimes about which pre- of Evidence. Tennessee Rules testify, victim] feared [the would supported of the evidence ponderance murdering her. We believe Thomas finding trial court’s killed plain meaning of Fed. that both the contacting police prevent her 804(b)(6) ob- R.Evid. manifest aggravated June about his assault ject just man- principles outlined Thomas she drove followed The rule con- date different result. Center to and from Criminal Justice subject no limitation matter tains on Tennessee, to out a war- Memphis, swear exempts that it statements against him that was never served. rant hearsay prohibition on evidence. only days two later. Given He killed her Emery, 186 F.3d at 926. facts, disagree the Court of these we with 804(b)(6) Second, not Rule is limit Appeals’ view that Rule Criminals charge ed a to those cases which formal 804(b)(6) had required to know judicial proceeding pending against or was of an arrest warrant for about the issuance a defendant when the declarant’s state assault; moreover, aggravated there made, ments were nor cases which a Ivy’s inten- requirement no sole or defendant’s sole intent motivation Thomas from preventing tion to be had procure to the declarant’s absence. See proceeding him in a against testifying Instead, Dhinsa, 243 F.3d at 653-54. aggravated on the assault. based 804(b)(6) it of Rule dictates that purpose applies where the defendant “was motivat Ivy’s argument, Contrary the wit part by ed in desire silence 804(b)(6) Rule of application trial court’s Houlihan, 1279; F.3d at see ness.” right constitutional not his did violate Garcia-Meza, F.3d at 370. also under United States confrontation Tennessee Constitutions. principles that these We conclude Crawford 68, 124 S.Ct. U.S. purpose Washington, are with the consistent (2004), 804(b)(6) the United L.Ed.2d plain language of Rule that a declar- held Supreme To ensure States Court Tennessee Rules Evidence. however, testimonial that are properly applied, is ant’s statements that the rule under the Con requirement that the nature are admissible adopt we further 1) the Clause unless declarant hearing outside frontation court conduct 2) unavailable and the defendant person[.]” involve the use of violence to the prior opportunity to cross-examine the plain language requires prosecu- de- The however, emphasized, clarant. The Court (1) tion prove that the defendant had the rule forfeiture wrongdoing (2) prior conviction, (3) “ex- offense, for a felony tinguishes confrontation on claims essen- statutory whose elements involved the use tially equitable grounds.” Id. Reid, person. violence to a 164 S.W.3d 804(b)(6) S.Ct. 1354. Given that Rule 314-15; Davis, State v.

the Tennessee Rules of (Tenn.2004). Evidence is identi- 618-19 language cal in purpose to the federal case, In this established rule, we see no reason to reach a different aggravating relying circumstance result under the confrontation clause of Ivy’s prior convictions for second de- the Tennessee Constitution. murder, gree especially aggravated rob- bery, aggravated assault. The trial Sentencing Phase Issues correctly court degree found that second

Sufficiency Aggravating especially aggravated murder and robbery Circumstances were statutory felonies whose in- elements volved person. the use of violence argues that the evidence was insuf- Indeed, requires second support ficient the two aggravating another, knowing killing of Tenn.Code circumstances applied in im- § Ann. (Supp.1990), espe- 39-13-210 posing penalty. the death The State cially aggravated robbery requires a rob- maintains that the evidence was suffi- bery accomplished a deadly weapon cient. where the victim bodily suffered serious Our analysis requires 39-13-403(a) injury. § Tenn.Code Ann. view the a light evidence in most favorable (1989). addition, the trial deter- to the State and determine whether a ra mined that three convictions for tional trier of fact could have found the aggravated assault involved the use of vio- existence circumstance person. lence to a Ann. Tenn.Code 39- beyond Reid, a reasonable doubt. State v. 13-102(a) Sims, (Supp.1993); see v. State (Tenn.2005). 286, 164 S.W.3d 314 We will 1, (Tenn.2001) (where 45 10-12 S.W.3d the the aggravating address two circumstances statutory prior elements reveal that of- a in applied in this case turn. Tenn.Code may be fense committed with or without 13—204(i)(2) (6) §§ Ann. (Supp. 39— person, a violence to the trial court must 1999); § see also Tenn.Code Ann. 39-13- if determine the offense violence involved 206(c)(1)(B) (Supp.1999) (requiring review person). to a of aggravating circumstances found the the We conclude that evidence intro- jury). jury duced before the was sufficient to First we consider the aggravating support jury’s the application ag- of this circumstance Tennessee Code Annotat gravating beyond circumstance reason- 39-13-204(i)(2), ed section which states: able doubt.5 previously “The defendant was convicted (1) felonies, or than one more other the We next consider Tennessee statutory 13—204(i)(6), present charge, whose elements Code Annotated section 39— Although opinion holding remaining later in conclude that the before prior jury aggra- that two of the five convictions were the not was sufficient to establish the admissible, vating this conclusion does alter our circumstance.

149 prior felony the findings about ing com- factual a “murder was applies which where purpose imposing inter- for avoiding, purpose for the convictions mitted v. with, Ivy arrest cites preventing Apprendi or lawful fering death sentence. 466, anoth- prosecution 490, of the defendant or or S.Ct. Jersey, New 530 U.S. 204(i)(6) on a defen- focuses (2000), er.” Section 2348, 147 which L.Ed.2d committing a murder and motives in dant’s Supreme Court held United States eyewit- killings limited to the is not “[ojther conviction, prior fact than the of a or who know can nesses or those witnesses penalty for a any that increases the fact Reid, 164 See identify defendant. proscribed statutory beyond the crime State, 315; Terry 46 S.W.3d 5.W.3d jury, submitted maximum must be (Tenn.2001). Indeed, 147, defen- doubt,” and beyond a reasonable proved prosecution or desire to avoid arrest dant’s 609, Arizona, Ring v. U.S. killing need not be the sole motive (2002), 153 L.Ed.2d S.Ct. may just and instead one victim Supreme Court United States which the motivating to kill. purposes the defendant factors in a death aggravating held that Reid, Davis, 315; see also case must be found penalty at 618-19. they because beyond a reasonable doubt “ Here, the evidence showed that of an ele equivalent are ‘the functional ” parole on he Thomas near a when attacked greater (quoting Ap offense.’ ment of on 2001. He convenience store June n. at 494 120 S.Ct. prendi, 530 U.S. later Thomas as she drove to the followed 2348). argues that the reply, out a Criminal Justice Center swear procedure correct trial court followed the warrant, and to kill her if he threatened and that the found police Only “got she his business.” beyond a reasonable doubt. circumstances later, Ivy Thomas five days two shot times of this issue begin We our review sum, range. at close evidence was summarizing key carefully portions jury’s to support sufficient determina- penalty phase, Prior record. committed tion the murder that it told the with, interfering purpose avoiding, “prior violent to establish the intended preventing or prosecu- a lawful arrest by rely- aggravating circumstance felony” beyond tion reasonable doubt.6 convictions. See ing Ivy’s prior five Jury Instructions on Prior 13—204(i)(2). Ann. Tenn.Code 39— Violent Felonies statutory ele- trial court found for second ments of convictions argues next the trial court aggravated especially instructing jury he erred in had per- involved violence to robbery plainly whose statu prior convictions felonies §§ Tenn.Code Ann. 39-13-210 son. See tory per to a elements involved violence 39-13-403(a). recog- trial The violat He asserts that the trial court son. however, nized, Ivy’s prior convic- Amendments ed the Sixth and Fourteenth assault were more aggravated mak tions for to the United States Constitution Appeals’ disagree the Court of Criminal agree Ap- 6. We with the Court Criminal (i)(6) 804(b)(6) requires peals’ aggravating holding observation that the implied Rule analogous to the "forfeiture pend- circumstance is charge or accusation that a formal exception hearsay wrongdoing” Rule requires finding ing as a defendant's or 804(b)(6) of the Tennessee of Evidence. As motivation. sole however, opinion, we in this discussed earlier problematic aggravated because assault involved the person use violence to the may be committed or with without actual question is a of law for the trial court. person. violence to the See Tenn.Code Moreover, may where an offense be com- 39-13-102(a). §Ann. result, As a the tri- mitted either with or without violence to al court examined the ag- indictment for assault, person, such as aggravated gravated assault in ease number 91-02560 trial court hearing must conduct a outside and found that the offense had involved jury’s presence un- and examine the person violence to the Ivy because pled derlying prior facts of the offense. Id. at guilty charge to a alleging “serious bodily 12. If the trial court determines that the injury.” See Tenn.Code Ann. 39-13- statutory in- prior eléments offense 102(a)(1)(B). addition, In although the volved the use person, of violence trial court found that the indictments for may the State introduce evidence of the aggravated assault in case numbers 90- defendant’s conviction for that offense and allege and 90-09887 did not “seri- prior instructed that the convic- bodily injury,”7 ous the trial court also tion was for an involving offense the use of examined the affidavits of complaint: a violence to person. Id. [T]he affidavit reads as follows. This is upheld We have procedures under a sworn of Patsy affidavit Pollard on Sims on several occasions. See State v. 3rd, May May 1990. ‘On at Cole, (Tenn.2005); 155 S.W.3d 901-02 approximately p.m., Ivy 5:00 David shot Powers, into Patsy the home of at Pollard (Tenn.2003). addition, rejected have we shotgun. Thomas Number with a C No the argument that Sims is under invalid injured one was but Ms. Pollard and Apprendi Ring because the Sixth several children living were room requires Amendment used to facts enhance at the time. Davy also shot through punishment by jury beyond found the back door of the home Sharon a reasonable doubt. As explained we Branch at Thomas B. Number Ms. Cole: Branch and her baby two week old were (i)(2) aggravating re- the kitchen at the time. circumstance David quires only harassing statutory that the been Ms. Pollard’s elements

year daughter prior felony old and was still involve the use of mad at her apparently thought violence to The Sims person. proce- she was in clearly judges merely house the time.’ dure trial So authorizes record, least according facts, it in- examine the and evidence affidavit pointing volved more than just gun. underlying prior conviction to as- ‘statutory certain which elements’ After deliberating, found that the served as the felony basis proven circumstance had been conviction. This is a determina- legal beyond a reasonable doubt. tion that neither requires nor allows Having summarized the trial judges make findings factual findings, court’s turn appli now to whether the prior conviction involved procedures cable our under case law. violence. Sims, 1, (Tenn.2001), v. 45 11 S.W.3d added). statutory (emphasis we held that whether the 155 In ele S.W.3d 904 addition, prior ments of a defendant’s emphasized conviction we that Instead, alleged Ivy deadly weapon [causing] 7. the indictments that victim fear the aggravated “by bodily injury.” committed assault use of a Tenn.Code Ann. 39-13-102. view, Shepard clarifies but trial as a our the court determines [o]nce procedures this the does not invalidate statutory matter of law that the ele- Rice, adopted in Sims. See State Court prior ments of the convictions involve (Tenn.2006). Sims, Like S.W.3d violence, jury then the use of the must find may that a trial court Shepard holds as matters fact determine whether enhanc prior conviction for the “fact” a (i)(2) proven ag- the prosecution has Sims, ing Shepard like a sentence. Also beyond a rea- gravating circumstance may findings court make holds that trial sonable doubt and whether regard prior to the nature convic outweigh mitigating cir- circumstances Sims, however, Shepard clar tion. Unlike beyond a doubt. cumstances reasonable Fourteenth ifies that the Sixth and jury The alone must decide these factual allow the trial court to con Amendments questions, and these are the factual definition, charg only statutory sider “the questions that determine whether document, plea agreement, ing written will im- maximum sentence death colloquy, any explicit transcript plea and posed. finding by judge trial factual which Id. Shepard, 544 the defendant assented.” Thus, 1254. con U.S. at S.Ct. 125. not, however, The foregoing does end that the trial court’s determinations clude analysis. States, In Shepard our v. United procedure must likewise under Sims 544 U.S. S.Ct. L.Ed.2d Rice, 184 follow limitations. these See (2005), the Supreme U.S. re- Court 668. cently clarified the effect of the Sixth and Applying principles these to this Fourteenth Amendments on trial court’s trial court case demonstrates authority to examine the facts underlying that three properly instructed prior being defendant’s conviction used Ivy’s prior five convictions were felonies case, to enhance a sentence. In that involving person. use of violence to district court refused enhance a defen- noted, ele statutory As the trial court dant’s sentence under the Armed Career espe ments of second Criminal relying police reports Act robbery cially aggravated plainly involved prosecution offered to show that the addition, person. violence prior felony.” conviction for a “violent trial the indict properly court examined decision, In upholding the district court’s Ivy’s prior ag determining ment may the Court concluded that a trial court gravated in case number assault conviction prior find “the fact of a but conviction” person; to the 91-02560 involved violence “examining statutory limited to defini- aggravated pleaded guilty indeed tion, document, charging plea written “serious bod by causing assault committed agreement, transcript plea colloquy, ily injury” victim. any explicit finding by factual the trial judge to erred, however, which the defendant assented.” trial The court Moreover, Id. at S.Ct. instructing prior two may emphasized Court aggravated assault in case convictions not, under the Sixth and Fourteenth number 90- number 90-09886 case Amendments, disputed finding make a fact the person. violence to 09887 involved that is far conclu- the indict “too removed conceded that significance judicial alleged only sive of a record.” ments cases these 25,125 had deadly weapon caused Id. at S.Ct. 1254. used 152

the victims to “bodily fear injury.” only The of complaint affidavit without the court, however, trial examined the detailed defendant’s agreement assent or as re- allegations of fact contained in the affidavit quired Shepard. under of An complaint. of complaint affidavit “is Addressing the of the effect trial alleging person written statement that a court’s erroneous instructions has committed an alleging offense and prior prosecu two convictions used constituting essential facts the offense.” (i)(2) in support tion aggravating Tenn. R.Crim. P. Although upon 3. “made circumstance, believe the appropri oath a magistrate before or a neutral and analysis analogous ate is that in cases detached court capable clerk who is of [a] where an aggravating circumstance has probable determination,” id, cause an affi- held been but aggrava invalid other valid davit complaint, like a police report, is ting circumstances remain. State How judicial not a record kind approved ell, (Tenn.1993).8 868 S.W.2d In in Moreover, Shepard. though Ivy even cases, such aggravating the invalid circum pled offenses, guilty to the two is no there stance is harmless if reviewing court plea transcript or indicating other evidence “beyond concludes a reasonable doubt that that he assented in alleged to the facts the sentence would have been the same complaint. result, affidavit of As a jury given weight had the no to the invalid trial court should not have considered the felony aggravating factor.” Id. complaint affidavit of Shepard. under In cautioned, however, We that: addition, even if Ivy had assented In guarantee order to precision facts in complaint, the affidavit of a factual sentencing individualized considerations question would have arisen as to whether demand and provide principled expla- there had been attempt violence an case, nation for our conclusion in each it commit violence. important, conducting when harmless As we conclude that the court trial review, error to completely examine the erred, a recent Sixth Circuit is in case presence record of factors which structive. Kappell, United States v. potentially influence the ulti- sentence (6th Cir.2005), F.3d the court held include, mately imposed. These but are that Shepard did not preclude the district to, strength limited number and considering court from com criminal remaining valid circum- plaint finding prior defendant’s stances, argument prosecutor’s conviction under a state statute would also sentencing, the evidence admitted to es- have an been offense under federal statute. aggravator, tablish the invalid and the however, emphasized, The court that the nature, quality strength mitigat- district court “had it crim before the state ing evidence. inal transcript complaint, of the state Id. at 260-61. plea proceedings, ac and [the defendant’s] Here, ceptance those proceedings the record shows that the trial factu al complaint.” beyond statements Id. at court’s error was harmless a rea- added). contrast, (emphasis properly sonable doubt. in- present case considered structed that had been convicted Moreover, prior analysis. Campbell, See Court had concluded error State v. (Tenn.1984); Howell that the invalid introduction v. Har- (i)(2) support aggrava- ries, conviction (Tenn.1983). ting subject circumstance was to harmless To to the try he killed. break murder, aggra- Why degree especially second struggling was system again victim] [the and assault. robbery, aggravated vated That he help to her. convictions, get sec- so hard to prior particularly These prevent system to the murdered her degree especially aggra- murder and ond And also all the other objectively working. reliable robbery, were vated persuasive. id. he did it. qualitatively and See times under prior that convictions (noting the contrast, shows that the record (i)(2) objectively more reliable are often con- mitigating circumstance evidence evidence). than The persuasive and other asking of witnesses primarily sisted on the properly was also instructed Thus, we impose a life jury to sentence. circumstance, (i)(6) i.e., the aggravating beyond reasonable doubt conclude avoid ar- killing was committed to lawful would have been jury’s verdict Moreover, prosecution. although rest or in the trial court’s error same even without con- closing argument prosecutor’s aggra- the two instructing to references to “five” tained few brief assault convictions. vated support in of the felony convictions prior Degree Admission First (i)(2) circumstance, tran- aggravating Murder Indictment prosecutor’s that the script demonstrates no have been less effec- arguments would Ivy argues that only prior tive with references to “three” prior introduced his indictment improperly addition, transcript convictions. establishing murder when degree for first if prosecution placed equal that the shows for mur prior conviction second his sup- on in emphasis not more the evidence during aggravating der as an circumstance (i)(6) port of the circumstance: proceeding. argues sentencing degree mur hid in the for first gun, This took a out that the indictment defendant unfairly prejudicial and staying she and wait- bushes where der was irrelevant he jury may have Why? to come out. Because believed ed her because degree murder to guilty to the had come to second pleaded she come law. She greater out a of the of Poplar being sworn warrant avoid convicted argues morning his he introduc arrest when fense. again was not erroneous. beat her over over and over tion of indictment gun. awith the sen- The admission governed Tennessee

tencing phase 39-13-204(c), Ivy playing don’t need David God. Annotated section We Code part: Ivy deciding provides don’t need David who We which police they gets go to the when upon state relies In all where the cases to. don’t David beat- get We need aggravating factor that the defen- ing up girlfriend, leaving uncon- his her (1) convicted one previously dant one scious and then when she does the felonies, the present than or more other orderly thing left have in- statutory charge, elements whose onto, body society filling hold her person, volve the use violence why legisla- That’s I bullets. submit intro- party permitted shall be either law. tors And wrote concerning the facts duce evidence you that’s proven ... has state conviction. circumstances why died. [the victim] shall not be construed Such evidence creating preju-

pose danger of unfair dice, issues, confusing the or misleading constituting the facts the offense ordi- jury subject nary and shall not be language”). purpose concise The ground exclusion on the proba- of an indictment a is enable defendant tive value accusation, such evidence is out- to know the to furnish the trial weighed by prejudice to party. either court an adequate entry basis for of a Such be jury evidence shall used proper judgment, protect and to a defen- in determining weight to be accord- subsequent dant from prosecution a ed the factor. aggravating Hill, the same offense. See State v. (Tenn.1997). sum, be- added). (Emphasis prior cause a is not indictment evidence of view, In our the trial court erred in offense, a it charged cannot properly allowing prosecution Ivy’s introduce considered “evidence of the facts and cir- prior degree indictment for first murder prior cumstances of conviction.” [a] See Ivy’s when prior conviction was for second 39-13-204(c). § Tenn.Code Ann. First, degree murder. there is no authori- ty allowing charged an prior offense conclude, however, We further indictment to be considered as an aggrava- that the error was harmless because it did Indeed, ting circumstance. our prior case Although not affect outcome. Ivy’s long law has prosecu- established prior degree first murder indictment was may rely prior accusations, tion not on jury read introduced as an arrests, Buck, or indictments. See State v. exhibit, clearly the evidence established (Tenn.1984). Second, 670 S.W.2d Ivy’s prior conviction was for second there authority allowing is no admission of degree in that murder case and not for prior defendant’s indictment simply be- degree first murder. trial court in prosecution relying cause the is on prior jury prosecution structed the that the was conviction stemming that indictment relying Ivy’s on prior conviction for second “prior felony” establish the violent ag- degree felony involving murder as vio gravating circumstance under Tennessee lence to the as an person aggravating cir 39-13-204(i)(2). Code Annotated section Moreover, cumstance. the trial court in issue, As preceding discussed jury structed the that the question threshold of whether a prior con- relying Ivy’s prior espe convictions for requirements viction satisfies the of sec- cially aggravated robbery aggravated 204(i)(2) tion question law for the involving assault as felonies violence to a question court and not of fact for person aggravating circum support to decide. stance. The not instructed that addition, prior Ivy’s prior degree indictment for first mur indictment degree for first murder was not as an aggravating “evidence” der could be used cir transcript of the of Ivy’s “facts and circumstances” cumstance. The also reveals prior degree relatively second prosecution’s conviction for brief clos admission required ing as arguments under Tennessee no reference to contained 39-13-204(c). Ivy’s Code degree Annotated section An first murder indictment and Ivy’s prior indictment is not of an instead convic evidence offense were confined circumstances, but rather a instrument in tions. charging Given these forms the weight felony accused of “the nature and cause violent convic Const, VI; aggravating U.S. tions in cir support accusation.” amend. Const, 9; cumstance, §I, Tenn. into art. Tenn.Code Ann. the introduction (an murder indictment 40-13-202 indictment “must state the first did not affect that the error did but the outcome. See State erroneous not affect (Tenn.1998) proceeding. Cribbs, the outcome of 773, 781 (error prior con- admitting defendant’s of this issue our review begin We degree burglary did viction for second evidence” “residual doubt by noting that it was not used affect the outcome where during admitted may proof consist of circumstance and where sentencing phase that indicates defen had that the defendant three convictions offense, notwith did not commit the dant violent fel- “prior established the properly the jury’s following verdict standing the circumstance). ony” aggravating McKinney, v. guilt phase. State (Tenn.2002) (citing State v.

S.W.3d (Tenn. Argument Hartman, Residual Doubt 55-56 2001)). a is We have held that defendant that trial Ivy next contends the “to at a re-sen present allowed evidence refusing to allow defense court erred residual doubt tencing hearing to establish any that “residual doubt” argue counsel to non-statutory mitigating circum as a as guilt as could be considered Hartman, 42 at 55. This stance.” S.W.3d The re mitigating circumstance. statutory holding partly upon was based not plies that the trial court did err. provisions: The reveals that counsel record defense sentencing proceeding, In the evidence you any “if jury told the that have residual may presented any as to matter that be guilt phase, his the doubt about first punish- the court deems relevant you guilty beyond found him reasonable include, not limit- may but be ment doubt, you any but if residual doubt to, nature and circumstance of ed court, you can that as The trial use well.” character, crime; the defendant’s jury’s presence, out told defense history, background physical condi- argument counsel that the as to residual tion; any tending to evidence establish inappropriate doubt and that residual was circumstances or rebut the charged jury doubt not be would ...; any tend- enumerated evidence The mitigating circumstance. trial any or ing mitigating rebut establish explained: factors. may regarding residual doubt 39-13-204(c).

[P]roof § TenmCode Ann. appropriate instances where the State to a holding was not limited defen- Our exculpatory has concealed doubt evi- dant’s introduction residual finds the defense somehow ... or sentencing or re-sentenc- during dence [its] defense on own uncovers.... McKinney, 74 ing phase capital of a trial. argument of residual doubt is not [T]he Instead, we clarified that S.W.3d allow argue intended to the defense to upon may rely also residual defendant reargue to sort case sentencing argument based evidence that doubt guilt phase at the presented was phase guilt heard in the was ... over all inconsisten- go sort explained trial. As we McKin- Id. guilt phase.... cies exist ney: sentencing re- argument during trial that the defense An The court concluded phase is guilt from the arguing “residual fers to evidence precluded simply it has the nothing specific.” improper On because doubt with more As alluding con- residual doubt. appeal, Appeals the Court of effect Criminal held, manner and con- long have ruling cluded that the trial court’s argument by duct of closing parties Proportionality is left to the discretion of the trial court. Whenever death sentence Accordingly, where defendant seeks to has imposed, apply been we must a com argue residual doubt based on the evi- parative proportionality analysis. See dence or in response introduced to an 39-13-206(c)(l)(D). Tenn.Code Ann. argument prosecution, made aberrant, analysis arbitrary, identifies trial court should exercise its discretion capricious sentencing by determining any doubt in resolving favor of the “ whether a death ‘dispropor sentence argument. defendant’s punishment imposed tionate to the on oth (citations omitted). Id. at 308 ” ers convicted of the same crime.’ State case, In this court erred in Bland, (Tenn.1997) refusing to allow defense counsel to argue Harris, (quoting Pulley v. U.S. 42- could consider residual doubt 43, (1984)). 871, 104 S.Ct. 79 L.Ed.2d 29 presented based on the during evidence In a using precedent-seeking guilt/innoeence phase the of the trial. comparative proportionality method of re Contrary to the trial court’s reasoning, view, compare we a case with other cases requirement there is no residual involving similar and defendants similar argument doubt be based on new residual Bland, crimes. See 958 S.W.2d 665-67. doubt evidence. Id. alike, or While no defendants crimes are error, however, The trial court’s death disproportionate sentence is if a case require does not a new sentencing pro “plainly is in lacking circumstances consis ceeding First, for several reasons. since tent with those in where cases the death re-sentencing was not a hearing, the penalty imposed.” has been Id. at 668. sentencing jury already heard the evi guilt dence presented phase in the and had The cases pool of considered any against reconciled conflicts theo this Court in comparative proportionali its Indeed, ry given of innocence. the ty degree review includes those first mur of Ivy’s guilt overwhelming, der in cases which the State seeks the any argument toas residual doubt would death penalty, capital sentencing hearing mitigation. have been of dubious value in held, sentencing jury and the deter Second, although the trial court refused to mines whether should the sentence be life doubt, jury instruct the on residual the imprisonment, imprisonment life without instructions to the as whole in See, possibility the of or death. parole, formed the that it could any “consider e.g., State v. 60 Godsey, S.W.3d mitigating raised circumstances the evi (Tenn.2001). pool does not include guilt dence at sentencing either the or plea first cases which a both,” hearing, or and that it could consid bargain respect with is reached “any aspect er of the circumstances of the punishment or in the State which does not offense favorable to defendant which is penalty. seek the death Id. at 784. supported by Finally, the evidence.” proportionali comparative Our two circumstances found ty cases applicable review of the considers jury beyond a reasonable doubt were (1) the offense: regarding factors by the strongly supported evidence. (2) death; death; means manner of sum, the has not shown defendant that the (3) (4) killing; motivation for jury’s error affected the verdict to his (5) death; place age, physi the victim’s prejudice, and therefore the court’s condition, condition; cal psychological error was harmless. See id. and sum, Ivy is (6) proof no amena- there was presence premedita- absence (7) tion; provo- ble rehabilitation. presence absence or (8) cation; jus- presence the absence or view, imposed the death sentence our (9) tification; to and injury effect dispropor- not excessive or in this case was Bland, 958 upon non-decedent victims. compared to defendants tionate when We also consider factors S.W.2d 667. Ann. 39-13- other Tenn.Code cases. (1) criminal prior about the defendant: (D) (2003). (C), 206(c)(1)(A), (2) record, race, gender; any; age, if First, death sen- upheld has this Court (8) emotional, mental, condi- physical cases where tences in numerous similar (4) (5) tion; murder; coopera- role one or more shot victim defendant (6) authorities; remorse; tion with level of Leach, 42, times. v. 148 S.W.3d State (7) helplessness; knowledge of victim’s Bush, (Tenn.2004); v. 942 S.W.2d State (8) Id.; potential for rehabilitation. Hines, (Tenn.1997); v. State Reid, 164 see also S.W.3d at (Tenn.1995); (Tenn.1989). West, case, reviewing begin by In this history had a nature the offense. Second, numerous upheld this Court has victim, physically abusing LaKisha involving defen- death sentences cases 6, 2001, Ivy Thomas. June attacked On with convictions felonies dant her head Thomas and struck in the the use statutory whose elements involved pistol. as she Ivy followed Thomas drove i.e., person, one of the of violence to the Center, to and from the Criminal Justice applied by the aggravating circumstances if put and he threatened kill her “she Reid, at in See 164 this case. S.W.3d days police in his business.” Two la- Leach, 315; this 148 at As S.W.3d ter, Ivy as she approached Thomas sat said, this circum- aggravating Court has car, unarmed helpless and in her and he persuasive qualitatively stance “more is range. shot her times at close five objectively ag- than other[ ]” reliable premeditated. actions were intentional and Howell, 868 gravating circumstances. justifica- provocation He acted without or at 261. S.W.2d

tion. Likewise, pen- have the death upheld we regard- involving

We next consider the evidence in alty cases other similar ing background. applied by aggravating defendant and his circumstances i.e., prior jury, the murder was committed defendant convictions for murder, or prevent avoid or defendant’s arrest especially aggra- second 315; Reid, at prosecution. See 164 S.W.3d robbery, aggravated vated as- three Davis, Bush, 620; 141 at 942 S.W.3d parole on saults. He had been released 504-05; Thompson, 768 at State v. S.W.2d only year one when he shot Thomas to (1989). 239, 252 S.W.2d no death. There was evidence mental, emotional, any or suffered from Third, penalty cases numerous death mitigated physical impairments relationship have involved domestic Likewise, was no evidence offense. there by the defendant’s abusive conduct marked authorities; Ivy cooperated with the Keough, v. against victim. State See instead, Shelby Coun- escaped Hall, he from the (Tenn.2000); State v. 18 175 S.W.3d ty Smith, of 2002 May (Tenn.1999); Jail in and was arrested 8 593 S.W.3d (Tenn.1993); Diego, in San California. two months later State v. 868 561 S.W.2d (Tenn.1987); Johnson, re- There was no evidence that was 743 S.W.2d 154 (Tenn. 256 killing Cooper, Thomas or for commit- 718 morseful for State v. S.W.2d 1986). ting prior against her. acts violence

Finally, upheld we have gard proportionality, sentences we conclude that involving numerous cases who supported jury’s finding defendants the evidence presented mitigating similar evidence of out- aggravating circumstances circumstances. For several example, weighed mitigating beyond circumstances cases have involved who pre- defendants a reasonable Ann. doubt. TenmCode family sented evidence of their 39-13-206(c)(l)(C). back- grounds or childhood See environments. CONCLUSION

Davis, Hines, 621; Moreover, upheld S.W.2d at 673. we have Having applica- reviewed the record and penalty the death numerous cases where 1) authority, ble hold that: now the mitigating stronger evidence was much support first sufficient Reid, than that in case. 164 S.W.3d at 2) conviction; degree murder the trial (mental illness); Hines, impaneling anony- court did not err in (defendant with paranoid personality 3) jury; properly mous the trial court disorder, dysthymia, depres- and chronic ruled that the victim’s statements were sion); Smith, (defendant S.W.2d at by wrong- admissible under the “forfeiture depression, paranoid person- chronic 4) doing” hearsay exception; the evidence ality disorder, neurosis, depressive chronic supported jury’s findings that the two Howell, paranoid disorder); delusional proven circumstances were (defendant 868 S.W.2d at 262 with brain 5) doubt; beyond a reasonable the trial damage). in instructing court erred that two We need not find that this is exact- case prior felony of the five convictions relied ly every like a respect, case nor involved violence must we determine this case “more person during sentencing phase but penalty less” like other death cases. beyond error harmless reason- Instead, identify we must aberrant death 6) doubt; able the trial court erred by analyzing capital sentences a whether allowing the to the introduce plainly case lacks circumstances similar defendant’s for first de- indictment pool those in which cases the of cases in gree murder in the sentencing phase the of death has been upheld. sentence Accord- trial where the had been con- defendant ingly, arguments the with- defendant’s are murder, of victed second but the out merit. 7) outcome; error did not the affect the ruling court in trial erred defense Weighing Mitigating Aggravating and of argue could not residual as counsel doubt Circumstances mitigating during circumstance the sen- above, explained sup- As the evidence tencing phase, but error did not affect the ported ap- two circumstances 8) outcome; aggra- and evidence of the the plied by jury: the the defendant vating outweighed the evi- circumstances previous convictions felonies whose ele- of mitigating beyond dence circumstances person ments involved violence to the and doubt, a reasonable the death sentence and the murders were committed the We arbitrary disproportionate. defendant to avoid arrest or prosecution. Ap- agree also with the of Criminal Court The mitigating circumstances included tes- peals’ respect conclusions to the re- timony family about back- the defendant’s issues, of maining portions relevant the ground. Thus, appendix. are in which included the Appeals’ judgment After the of reviewing record and consider- the Court Criminal ing of the evidence discussed with re- affirmed. The sentence above is defendant’s of Lakisha Thomas. out 2001 murder is and shall be carried the June death affirmed June, oth- day the unless 10, 2003, County jury 28th January Shelby On other erwise ordered this Court or Ivy guilty premeditated first-de- found authority. It is appearing proper separate sen- Following murder. gree appeal of the are taxed indigent, the costs unanimously the hearing, tencing the State of Tennessee. statutory aggra- presence the two found circumstances, ie., Ivy had previ- vating JR., J., BIRCH, A. filed ADOLPHO felony of a violent ously been convicted concurring dissenting and separate committed offense and the opinion. The jury further deter- prosecution. avoid J., BIRCH, JR., A. ADOLPHO aggravating circum- mined that these part dissenting part. concurring any circum- outweighed mitigating stances majori- I in the conclusion of concur imposed a sentence death. stances af- ty convictions should be sentencing approved The trial court death, how- firmed. As to sentence right, present- as of appeals, verdict. ever, I I respectfully dissent. continue (1) following our issues: ing for review my comparative adhere to view that the es- was sufficient to whether currently protocol review proportionality (2) identity perpetrator, his as the tablish majority inadequate embraced improperly permit- court trial whether arbitrary from the shield defendants hearsay victim to be of the imposition of death ted statements disproportionate Reid, (3) evidence, State v. penalty. See whether into admitted (Tenn.2005) (Birch, J., con- 323-325 anony- by impaneling trial court erred curring dissenting), and cases cited (4) trial court jury, whether mous Accordingly, respectfully I dis- therein. defense, permit refusing erred portion majority sent from that argument, to discuss the during closing affirming opinion imposition (5) exclusion, behind hearsay rationale penalty death this case. by prevent- court trial erred whether arguing defense counsel from “residual ing APPENDIX non-statutory mitigating cir- doubt”

(Excerpts the Court Criminal cumstance, (6) whether Decision) Appeals’ to introduce by permitting erred IN THE COURT OF CRIMINAL previously been evidence that APPEALS OF TENNESSEE (7) murder, first charged with instruction that the trial court’s whether AT JACKSON were offenses whose Ivy’s offenses July 2004 Session the use of vio- statutory involved elements OF TENNESSEE STATE (8) by jury, right his to trial lence violated v. DAVID IVY in this penalty imposed the death whether Appeal Direct from the Criminal Court the in- process due because case violated Shelby County for allege aggravators to dictment failed Joseph Judge Dailey, B. No. 01-12388 (9) State, whether the upon by the relied — refusing No. to answer W2003-00786-CCA-R3-DD court erred trial 30, Filed December consequences if questions as to the jury’s to an unanimous they were unable reach Ivy, appeals as of Appellant, David (10) whether punishment, as to and resulting from verdict right his sentence of death back....” The trial court then sustained objection the State’s and instructed de- Tennessee’s death penalty statutory counsel “to from any fense refrain sort of scheme Finding is unconstitutional. no er- history of hearsay exception.” Appel- reversal, ror requiring we affirm con- lant now contends that the trial court viction and sentence death. in limiting closing argument erred his preventing him discussing the limita- R.App. Appeal Right; Tenn. P. 3 as of of hearsay tions evidence. Judgment of the Criminal Court Closing argument is a valuable privilege Affirmed parties for gener both and the courts Hayes, J., David G. opinion delivered the ally allow wide to argu latitude counsel in Williams, court, in which John EveRett ing jury their cases to only and will Glenn, J., and, J., joined. Alan E. upon reversed abuse discretion. Ward, Tony Brayton, W. Mark N. Garland State, (Tenn.2001), v. Terry S.W.3d Erguden, Tennessee, Memphis, the Ap- denied, 1023, 122 rt. 534 U.S. S.Ct. ce pellant, Ivy. David (2001); 151 L.Ed.2d Big State v. Summers, Paul G. Attorney General bee, (Tenn.1994) (cita Reporter; M. Angele Gregory, Assistant omitted). tions General; Attorney Gibbons, William L. It is settled law this state that “the Attorney General, District Amy Wei- are the proper courts source from which rich, General, Assistant District Attorney State, get law.” Dale v. [the is] Hams, and Gerald Assistant District At- (1837). 551, 555 It 18 Tenn. is the court’s General, torney Appellee, State of duty charge the law relative to the case Tennessee. jury’s duty and the consider the evi- under the given dence law as the court. OPINION State, See Cordell 207 Tenn.

[Deleted: Background] Factual (1960); 615, 618 see also Tenn. Sufficiency Const, I.[Deleted: I, art. sect. 19. It is the function of the Evidence] court, counsel, the trial and not or advise as to instruct matters of II.[Deleted: Forfeiture of case, present law. the trial court Wrongdoing Hearsay ruled, presence out of the of the jury, that Exception] by the victim several statements made fell Anonymous Jury] III.[Deleted: valid exceptions hearsay within rule IV.Exclusion of “Rationale Hear- sufficiently were reliable warrant say Closing From Ar- Exclusion” argue admission. For defense counsel to gument at Guilt Phase hearsay “inherently statements are “easily unreliable” manufactured”

During closing argument guilt essentially rulings would undermine the phase, defense counsel to ex- attempted Moreover, it the trial court. is plain conceivable jury “suspect” to the nature of regarding that the nature of hearsay testimony. objected statements The State to hearsay testimony argument. potential to this line of The trial court Accordingly, jury. that confuse the the trial proper advised counsel it was not did not discretion in argument “get legal pro- to into a court abuse its explanation things hibiting from discussing those sorts of and then have the defense counsel go State come and and respond principles regarding back the basic and theories

161 a impose used to sen factors enhancement statutory maximum” and above the tence hearsay testimony. general exclusion of is the statu penalty within that “the death No of discretion is found. abuse for prescribed tory range punishment

V.[Deleted: Doubt” VI.[Deleted: Prior at From Degree Murder] Penalty Phase] Charge Exclusion Closing Admission of First Argument “Residual first 2004). “Tennessee’s General S.W.3d S.W.3d v. degree murder at 863 The court Odom, Assembly....” 466-67 (citing capital further ^[137] (Tenn.2002)); State by the Tennessee sentencing emphasized v. Holton, Dellinger, see also (Tenn. proce 126 jury, judge, that a not require dures VII.[Deleted: Instruction as (i)(2) presence findings regarding make the Aggravator] to that increases the maximum reasonable doubt in order to submitted to crime Appellant VIII.Indictment must be Charge Capital Offense jury, charged asserts that in an proven beyond Failed to penalty “[a]ny indictment, satisfy for fact relief on findings must be able 590-91 see also TenmCode (2003)). aggravating doubt.” (citing this Appellant issue. Odom, 139 Holton, circumstances and made §Ann. beyond ^[137] not entitled to 39— 13—204(f)(1) S.W.3d at reason at 864; 5th Amendment’s Process Due Clause IX.Question Verdict as Unanimous jury the 6th notice and Amendment’s guarantees.” deliberations, v. (citing Jones United hours of After three States, 227, 248, 119 526 U.S. S.Ct. jury questions several submitted (1999)). regard, In L.Ed.2d this as follows: questions trial court. The were Appellant contends that indictment Re-identifying mitigating 1. circum- against him faded to “include the facts that if will we can’t happen stances. What would qualify [Appellant] the death agreement? come penalty.” Appellant’s argument is based mitigating? 2. What is upon premise first-degree testimony, weigh Are miti- we to capital accompanied is not a unless offense given gating aggravating, that was by aggravating Essentially, Ap factors. now in the guilty to determine a verdict re pellant complains that indictment sentencing phase? grand jury turned non- charges capital first-degree murder because the facts from weigh 4. And are we any capital aggra grand jury did find opinion to form our the entire trial Thus, it vating appears circumstances. the sentence? alleges Appellant Court question response ‘What will satisfy requirements of Apprendi agreement?” if come happen we can’t to an Jersey, New 120 S.Ct. U.S. portions of the the trial court reread language the indictment must include charge, including statutory circumstances that no sentence provides Tennessee law capital to elevate the offense to murder. imprisonment of death or sentence of recently rejected has been argument This upon but imposed Holton, shall supreme our court finding that the State has Holton, unanimous high S.W.3d at 845. our doubt the applies only beyond to a reasonable explained “Apprendi proved 162 (2003); Vann,

L.Ed.2d 790 State v. 976 93, (Tenn.1998); S.W.2d 118 State v. statutory existence of one or more aggra- Smith, 908, (Tenn.1994). 893 S.W.2d 926 vating circumstances. Thus, we find no error. and, The jury deliberations, resumed their

three hours later reached its verdict im- Constitutionality X. of Tennessee posing a death. Appellant sentence of The Penalty Death Scheme now submits that the trial court erred in Appellant The raises numerous chal- failing give jury to accurate sentencing lenges constitutionality to the of Tennes- consequence information as to the of their penalty provisions, see’s death including: failure to argues reach a verdict. He 1. death penalty Tennessee’s statutes the trial properly court’s failure to respond fail to meaningfully narrow the class of jury’s question “gives rise to a eligible defendants, death specifically, probability reasonable of a coerced ver- the statutory aggravating circumstances dict.” Contemporaneously, he asks this set forth in Tennessee Code Annotated 13—204(h), Court to find section Ten- 39— 39-2-203(i)(2), (i)(5), (i)(6), section Annotated, nessee Code unconstitutional in (i)(7) broadly have interpreted been so the context of present case. singly whether viewed or collectively, The trial court adhered to legislative fail to provide “meaningful such basis” direction in its instruction to jury. See - narrowing population of those 39-13-204(0(1), (2); Tenn.Code Ann. convicted of 204(g)(1). first to The trial court further respect- ed legislature’s eligible admonition those the sentence contained of death. 39-13-204(h), factors, (i)(5) section (7), Tennessee Code We note that do Annotated, judge shall “The not instruct pertain to case as it was neither fusing punishment.” ted to conclude jury, effect of the comment at ignore nor shall the that the trial court erred In this legislative directive. jury’s any attorneys failure to time to the regard, we cannot agree jury, permit- by on a re- on nied, merit. S.W.2d relied jury. respect 524 upon by 679, See, U.S. Thus, any to these factors is without 715 e.g., 941, the State nor found (Tenn.1997), 118 S.Ct. State v. individual claim ^[2348] Hall, cert. de 2358 958 by Appellant attacks also the failure to (1998); [141 L.Ed.2d State v. Brim 718] fully inform jury as to the conse mer, 75, (Tenn.), 876 87 S.W.2d cert. quences if fails reach a unani denied, 1020, 585, 513 115 S.Ct. U.S. 130 mous verdict as unconstitutional. Relying (1994). Moreover, L.Ed.2d 499 Ap upon Sixth, Eight, and Fourteenth pellant’s rejected has been argument Amendments, argues that Appellant Vann, our See supreme court. 976 jurors permitting ignorant remain (Appendix); S.W.2d at 117-118 State v. consequence true of their failure to reach a Keen, 727, (Tenn.1994), misleading unanimous verdict is and coer denied, cert. U.S. S.Ct. cive and it arbitrarily causes (2001). 1233, 149 L.Ed.2d arrive at a unanimous verdict order to imposed The death is ca- sentence avoid imagined consequences adverse arbitrarily in that priciously and punishment. of a failure agree This (a) Unlimited discretion vested argument previously rejected has been prosecutor as whether or not to Stevens, supreme our court. See State v. (Tenn.2002), penalty. argu- seek the death This cert. de nied, rejected. 537 U.S. 123 S.Ct. ment See has been

163 denied, 1083, (Tenn.1997), 523 U.S. cert. (1998). 1536, L.Ed.2d 686 140 118 S.Ct. Hines, 919 573, (Tenn.1995), 582 S.W.2d denied, 133, 847,

cert. U.S. 117 S.Ct. 519 Sufficiency of the [XI. Deleted: (1996). 136 L.Ed.2d 82 (i)(6) Aggravating Factor] (b) in a penalty imposed is The death discriminatory upon manner based Review Pursuant [XII. Deleted: race, This gender. geography, § 39-13- Tenn.Code Ann. See rejected. been argument has 206(c) ] Brimmer, Hines, 582; at 919 S.W.2d 87; Cazes, 876 S.W.2d at 875 S.W.2d XIII. Conclusion Smith, v. 268; State S.W.2d at 857 denied, cert. (Tenn.), fully 510 U.S. the record Having 23 reviewed (1993). 561, 126 Ap- 114 S.Ct. L.Ed.2d affirm the authority, we applicable (c) degree murder. unani- conviction of first Requiring agree pellant’s Mills in man- mously Additionally, to a life verdict violates accordance North Maryland McKoy v. v. 13—206(c)(1), Tennessee date of section 39— Carolina. argument This has been Annotated, principles and the Code Brimmer, See rejected. S.W.2d of the Tennes- adopted decisions 87; Thompson, v. State 768 S.W.2d Court, have Supreme considered see King, (Tenn.1989); State v. cause and find the the entire record su- (Tenn.1986), 718 S.W.2d any imposed death sentence by, perseded by recognized statute as fashion, sup- arbitrary that the evidence Hutchison, v. State 898 S.W.2d discussed, jury’s previously ports, (Tenn.1994). aggravating cir- statutory finding (d) likelihood There is reasonable cumstances, jury’s finding jurors they unani- believe must out- aggravating circumstances mously as to agree the existence beyond mitigating circumstances weighed mitigating circumstances because Ann. doubt. Tenn.Code a reasonable to instruct on the failure 39-13-206(e)(l)(A)(C). comparative A meaning mitigating and function of review, considering both proportionality has argument circumstances. This and the defen- nature of the crime “the Thompson, See rejected. been dant,” the sentence convinces us 251-52. S.W.2d at dispropor- nor is neither excessive death Appellant chal Finally, raises imposed in similar penalty tionate lenges appellate process review Appel- affirm the Accordingly, we cases. capital It is well-established cases. of death. lant’s sentence process review in death appellate ade constitutionally penalty cases Cazes, 270-71; quate. See 875 S.W.2d Hayes, Judge David G.

Harris, Moreover, at 77. that, has “while supreme held safeguard

important as an additional capricious

against arbitrary or sentenc review

ing, comparative proportionality See constitutionally required.”

is not Bland, 651, 663

Case Details

Case Name: State v. Ivy

Court Name: Tennessee Supreme Court

Date Published: Feb 28, 2006

Citation: 188 S.W.3d 132

Docket Number: W2003-00786-SC-DDT-DD

Court Abbreviation: Tenn.