By James Nix - NashvilleCityPaper.com

April 8, 2010

A judge has overturned the death penalty sentence of Christopher Davis, convicted of murdering two men in February 1996, and granted him a new sentencing hearing.

Judge J. Randall Wyatt Jr. found in his review of the petition for relief from conviction or sentence that a previous conviction may have harmed Davis’ chances of a fair sentence in a subsequent case.

Wyatt wrote that while there wasn’t enough proof to overturn Davis’ convictions, the death sentence should be overturned and a new sentencing hearing set.

Davis was found guilty in July 2000 of killing Gregory Ewing and D’Angelo Lee. He was convicted on two counts of premeditated first-degree murder, two counts of felony murder (which were merged into the first two counts), two counts of especially aggravated kidnapping and two counts of especially aggravated robbery.

In the petition, a laundry list of more than 40 claims filed by Davis’ attorney Matt Sweeney included questions raised over deficient representation by Davis’ previous attorneys, questionable character and testimony of witness Antonio Cartwright, problems with due process, ineffective use of expert witnesses, etc.

But the claim Wyatt found merit with asserts that a prior first-degree murder conviction in the case of 12-year-old Adrian Dickerson, which was later removed, may have influenced the jury’s decision on Davis’ death sentence in the double murder case. 

In his order filed Tuesday, Wyatt wrote, “The mere reference to another first degree murder, by its very nature, likely left a lasting impression on the jury at sentencing.”

The Tennessee Court of Criminal Appeals affirmed both Davis’ convictions and sentences in 2003, as did the state Supreme Court in 2004.

Davis was scheduled to be executed March 15, 2005. He had been convicted in the 1995 murder of 12-year-old Adriane Dickerson in a random gang shooting that raised the specter of gang violence in a then-slower-paced Music City. Davis was later exonerated in that case following his convictions in the Ewing and Lee cases.

Sweeney, one of three attorneys from the Nashville office of the Baker Donelson law firm appointed by the court to represent Davis, declined to comment on the case, as it is ongoing.

Supreme Court of Tennessee

State v. Davis

STATE of Tennessee v. Christopher A. DAVIS.

No. M2001-01866-SC-DDT-DD.

August 25, 2004

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

Hershell D. Koger, Pulaski, Tennessee, and David Hornik, Nashville, Tennessee, for the Appellant, Christopher A. Davis.Paul G. Summers, Attorney General and Reporter;  Michael E. Moore, Solicitor General;  Mark A. Fulks, Assistant Attorney General;  Victor S. Johnson, District Attorney General;  and Tom Thurman and Katrin Miller, Assistant District Attorneys General, for the Appellee, State of Tennessee.

OPINION

The defendant, Christopher A. Davis, was convicted of two counts of premeditated first degree murder,¹ two counts of especially aggravated kidnapping, and two counts of especially aggravated robbery.   The jury imposed death sentences for both counts of premeditated first degree murder after finding that evidence of three aggravating circumstances, i.e., (1) the defendant was previously convicted of one or more felonies whose statutory elements involved the use of violence to the person, (2) the murders were committed for the purpose of avoiding, interfering with, or preventing a lawful arrest of the defendant, and (3) the murders were knowingly committed, solicited, directed, or aided by the defendant while the defendant had a substantial role in committing or attempting to commit a robbery or kidnapping, outweighed evidence of mitigating circumstances beyond a reasonable doubt.   In addition, the trial court sentenced the defendant to concurrent 25-year sentences for the especially aggravated kidnapping convictions to run consecutively to concurrent 25-year sentences for the especially aggravated robbery convictions.

After the Court of Criminal Appeals affirmed the convictions and the sentences, the case was automatically docketed in this Court.   We entered an order specifying seven issues for oral argument, and we now hold as follows:  (1) the evidence was sufficient to support the jury's verdicts;  (2) the trial court did not err in refusing to disqualify the District Attorney General;  (3) the trial court did not err in refusing to allow defense counsel to withdraw;  (4) the death sentences were not invalid on the ground that the aggravating circumstances were not set out in the indictment;  (5) the trial court did not err in allowing the prosecution to establish the “prior violent felony” aggravating circumstance by relying on an offense committed as a juvenile;  (6) the evidence was sufficient to support the jury's finding of three aggravating circumstances beyond a reasonable doubt and its determination that the aggravating circumstances outweighed the evidence of mitigating circumstances beyond a reasonable doubt;  and (7) the death sentences were not arbitrary or disproportionate.   We also agree with the Court of Criminal Appeals' conclusions with respect to the remaining issues, the relevant portions of which are included in the appendix to this opinion.   Accordingly, we affirm the judgment of the Court of Criminal Appeals.

BACKGROUND

Guilt Phase

On the early morning of February 28, 1996, the bodies of the victims, Gregory Ewing and D'Angelo Lee, were discovered in a remote part of a construction site in the Berry Hill area of Nashville, Tennessee.   Ewing had been shot seven times, including three gunshot wounds to his head.   Lee had been shot five times, including three gunshot wounds to his head.

As a result of an investigation, the defendant, Christopher A. Davis, was charged with two counts of premeditated first degree murder, two counts of felony murder, two counts of especially aggravated robbery, and two counts of especially aggravated kidnapping.   The evidence at the trial was as follows:

Antonio Cartwright, age 14, testified that on February 27, 1996, he was smoking marijuana in an apartment located on Herman Street in Nashville with the defendant, Christopher Davis, Yakou “Kay” Murphy, Gdongalay Berry, and an individual nicknamed “Sneak.”   Davis told Cartwright that there was going to be a “highjacking ․ and a gun deal” that evening involving D'Angelo Lee and Gregory Ewing.   Davis told the others that he wanted Lee's car and planned to “draw down on him.”   Davis told Cartwright that they would have to kill Lee and Ewing because the two victims knew where they lived.

Cartwright testified that when Davis, Berry, Murphy, and Sneak left the apartment on foot that evening, Davis was carrying a nine millimeter handgun and Berry was armed with a .45 caliber handgun.²  Davis and Berry returned in approximately one hour in a white Cadillac with four or five assault rifles, a pair of green tennis shoes with yellow laces, a black and blue jacket, an additional .45 caliber handgun, and a gold cross necklace.   Davis told Cartwright that he had killed the two victims and that he had shot Lee nine times in the head.   Davis said the bodies had been dumped where they could not be found.   Berry said that they needed to burn the Cadillac.

Christopher Loyal testified that he saw Davis and Berry on the night of February 27, 1996, and that he helped carry assault rifles from a white Cadillac into Davis's room in the Herman Street apartment.   Loyal saw a backpack with guns in it and noticed that Davis was wearing a gold chain with a cross on it.   According to Loyal, Davis said that they had gone to get some guns and that he “unloaded his clip.”   Davis told Loyal that one of the victims had begun crying and begging for his life, and that they shot him.   Loyal said that Berry seemed upset about what had happened but Davis just appeared “hyper.”

Detectives Mike Roland and Pat Postiglione were assigned to investigate the homicides of Gregory Ewing and D'Angelo Lee after the victims were found on the morning of February 28, 1996.   Later that morning, Postiglione, along with two other detectives, went to an apartment at 2716-B Herman Street to investigate a tip they received from “Crimestoppers” regarding an unrelated murder that had occurred near Tennessee State University (“TSU”).   While the detectives were questioning Ronald Benedict, the lessee of the apartment, and fourteen-year-old Antonio Cartwright, they noticed a rifle under a bed in an adjacent room.

As the detectives were discussing a search of the apartment, Christopher Davis walked in unannounced with Dimitrice “Dee” Martin, Berry, and Brad Benedict, Ronald Benedict's brother.   Davis was talking on a cell phone and one of the other men was carrying an assault rifle.   When the detectives announced their presence and drew their weapons, Davis, Berry and Brad Benedict fled from the apartment.   Davis was caught one block from the apartment.   A .45 caliber automatic handgun that Davis had discarded during the chase and the assault rifle that one of the other men had been carrying were also recovered.   Berry and Brad Benedict, however, were not apprehended that day.

Davis was arrested, taken back to the apartment on Herman Street, and placed in a patrol car while the apartment was searched.   Davis denied that he lived in the apartment.   The search of Davis's bedroom uncovered a nine millimeter handgun, an M-1 assault rifle, three SKS assault rifles, several handguns, ammunition, $1,400 in currency inside a Crown Royal bag, two pair of muddy gloves, muddy tennis shoes, handcuffs, a pager, a cell phone, and a backpack containing cans of spray paint.   Detective Postiglione also saw a pair of green tennis shoes with yellow laces that were later identified as belonging to the victim, D'Angelo Lee.

Davis was taken to the Criminal Justice Center in the back of a patrol car with Antonio Cartwright.   Cartwright testified that while riding in the patrol car, Davis told him to remove the gold cross necklace from Davis's neck and to place it in Davis's pocket.

Dimitrice Martin testified that she was Davis's girlfriend.   While she waited with Davis at the Criminal Justice Center, he asked her to take a gold cross necklace from his pocket and put it in her purse.   Davis then told her that Berry and several others had purchased guns the previous night and had returned to the Herman Street apartment with the victims tied up in their car.³  Davis told her that he and Berry then drove somewhere, took the victims from the car, and began shooting the victims.   Davis also told her that Berry had shot both of the victims and that he, Davis, shot D'Angelo Lee. Davis then told Martin to call Ronald Benedict's girlfriend and ask her to “get rid of” a pair of green and gold tennis shoes left in the apartment.   Finally, Martin testified that she received two letters from Davis following his arrest in which he told her to “take the fifth” and not testify against him or in cases involving other members of the Gangster Disciples.⁴

Detective Roland interviewed Davis regarding the homicides of Ewing and Lee. Because another detective had previously questioned Davis about the unrelated murder near the TSU campus, Roland confirmed that Davis had been advised of his rights and was willing to talk.   Davis denied that he was involved in or had any knowledge of the Ewing and Lee homicides.   Detective Roland stopped the interview after 30 minutes because Davis requested an attorney.   According to Roland, however, he was later typing up criminal warrants to charge Davis with the Ewing and Lee homicides when Davis told him he wanted to talk to him.

Davis signed a written waiver of his rights and gave a videotaped statement.   He said that Gdongalay Berry and Yakou “Kay” Murphy met with Ewing and Lee to buy guns and later returned in a Cadillac with the victims tied up in the car.   After Berry brought the guns into the Herman Street apartment, Davis accompanied Berry and Murphy in the Cadillac to another location where they got the victims out of the car.   Davis told Detective Roland that Berry shot Ewing five times with a .45 caliber handgun and that Murphy shot Lee four times in the back of the head with a nine millimeter handgun.   Davis said that they returned to the Herman Street apartment after burning the car.⁵

The victims' family members identified evidence that was recovered from the investigation.   Willie Mae Lee, D'Angelo Lee's mother, testified that the gold cross necklace that was being worn by Davis after the offenses had belonged to her son.   Lee testified that her son had been wearing green tennis shoes with yellow laces when he borrowed her car, a white Cadillac, on the evening of February 27, 1996.   Brenda Ewing Sanders, Gregory Ewing's mother, testified that a jacket found in the Herman Street apartment had belonged to her son.

The medical examiners who performed the autopsies of the victims were no longer employed by the medical examiner's office and lived out of state.   As a result, Dr. Bruce Levy testified about their findings.⁶  Dr. Levy testified that Gregory Ewing had been shot seven times, including three shots to his head.   Bullets recovered from Ewing's shoulder and abdomen appeared to be a different caliber than one recovered from his head.   Dr. Levy testified that D'Angelo Lee had been shot three times in the head and once or twice in the hands.   One bullet was recovered from the hand wounds.

Tommy H. Heflin, the supervisor of firearms identification with the Tennessee Bureau of Investigation, testified that he received the bullets that had been recovered from the victims' bodies, a nine millimeter handgun, two .45 caliber handguns, four fired cartridges from a .45 caliber handgun, and eight fired cartridges from a nine millimeter handgun.   Heflin concluded that the nine millimeter bullets recovered from the victims had been fired from the nine millimeter handgun that he tested.   Although Heflin could not conclude with “absolute certainty” that the nine millimeter cartridges had been fired from the nine millimeter handgun that he tested, he concluded that they had been fired from that handgun or one very similar.   Heflin testified that the four .45 caliber cartridges had been fired from the same handgun but not from the two .45 caliber handguns he had been given to examine.   He likewise concluded that two .45 caliber bullets recovered from the victims had been fired from the same handgun.

Following the prosecution's case in chief, the defense presented the testimony of the defendant Davis's grandmother, Susie Boykin.   Boykin, who lived five or six blocks from the Herman Street apartment, testified that on February 27, 1996, Gregory Ewing stopped by her house looking for Davis.   When Davis later arrived at her house at about 7:00 p.m., she told him that Ewing was looking for him.   Davis left but returned a short time later and said he could not find Ewing.   According to Boykin, Davis ate dinner with her and stayed until 10:15 p.m.   At that point, she asked Davis to stop coming in and out of the house because she needed to get to sleep.

Dallas Blackman testified that he saw Davis and Antonio Cartwright at the Court Villa apartments on February 27, 1996, sometime between 9:30 p.m. to 10:30 p.m. Blackman was with Davis and Cartwright for about 45 minutes.   According to Blackman, Davis asked him to rent a motel room for him that evening, but that was not unusual.

Donald Moore testified that Yakou Murphy told him that he killed Ewing and Lee after tying them up and making them get on their knees. According to Moore, Murphy said he never liked Ewing and that he had “set up” Davis, Berry, and Moore.   Moore conceded that Murphy had testified against him in unrelated cases in which Moore was convicted of first degree murder, second degree murder, and especially aggravated robbery.   Moore also acknowledged that he was Davis's best friend.

Yakou Murphy testified that he did not kill Ewing or Lee and that he was not involved in the murders.   He also denied that he had told anyone he killed the victims.   Murphy testified that Davis and Berry had asked him to go with them to buy guns and that he saw Davis and Berry driving a white Cadillac with two men who appeared to be tied up.   Murphy testified that he knew Davis and Berry had handguns and that later that evening, he saw them carrying clothes, shoes, and assault rifles into the apartment.

The defendant, Christopher Davis, age 18 at the time of the offenses,⁷ testified that he went to the home of his grandmother, Susie Boykin, at about 6:45 to 7:00 p.m. on February 27, 1996, and that he returned around 7:15 to 7:20 p.m. after leaving briefly to look for Ewing.   Davis testified that he left his grandmother's house several times to smoke marijuana with Antonio Cartwright and to sell cocaine.   Davis said that after leaving his grandmother's home around 10:15 p.m., he returned to his apartment on Herman Street where Yakou Murphy asked him to help carry guns and other items into Davis's bedroom.   Davis testified that Murphy told him that he and Berry had robbed someone, and that Berry later said that he and Murphy shot Ewing and Lee. Davis stated that he purchased a necklace from Berry for $200.   Davis testified that his statement to police was a “big lie,” that he had not been feeling well in the days before his arrest, and that he had recently received a blood transfusion at Vanderbilt Hospital for an apparent spider bite.

Dr. Steven Wolff testified that Davis had been admitted at Vanderbilt on February 18, 1996, and had been given a blood transfusion to treat anemia.   Wolff testified that Davis had a lesion on his arm that was consistent with a spider bite and that such a bite could result in anemia.   Wolff testified that Davis did not appear to be in distress and that Davis had a normal red blood cell count when he was discharged.

After hearing the evidence and deliberating, the jury convicted Davis of two counts of premeditated first degree murder, two counts of felony murder, two counts of especially aggravated kidnapping, and two counts of especially aggravated robbery.   After the trial court merged the felony murder convictions with the premeditated first degree murder convictions, a sentencing proceeding was conducted to determine punishment.

Sentencing Phase

In the sentencing phase of the trial, the prosecution relied on three aggravating circumstances in seeking the death penalty:  that the defendant was previously convicted of one or more felonies whose statutory elements involved the use of violence to the person;  that the murders were committed for the purpose of avoiding, interfering with, or preventing a lawful arrest;  and that the murders were knowingly committed, solicited, directed, or aided by the defendant while the defendant had a substantial role in committing or attempting to commit a robbery or kidnapping.  Tenn.Code Ann. § 39-13-204(i)(2), (6), and (7) (2003).

In support of the prior violent felony aggravating circumstance, the prosecution introduced evidence that Davis had prior convictions for first degree murder and attempted second degree murder.   The prior first degree murder conviction occurred in 1999 and the prior attempted second degree murder conviction occurred in 1997.

In addition, the prosecution presented the testimony of Brenda Ewing Sanders, Gregory Ewing's mother, who testified that her son was 18 years old when he was killed.   She testified that Ewing had been a “good boy,” who had a young daughter.   Similarly, Willie Mae Lee, D'Angelo Lee's mother, testified that her son was 19 years of age when he was killed and that she had a close relationship with him.   She testified that her son had a six-year-old son who believed his father would come home after the trial.

The defense presented numerous witnesses in mitigation.   The defendant's mother, Felicia Davis, testified that she had attended college and had maintained regular employment while the defendant's father, Christopher Davis, Sr., stayed home with the children and sold illegal drugs.   As a result, Davis spent a lot of time with his grandmother.   Ms. Davis testified that she and her husband were addicted to drugs and that her husband had been incarcerated several times for drug-related offenses.   She testified that Davis's brother was killed in a drug deal several months before the defendant's trial.

Witnesses described Davis as bright, intelligent, and stubborn.   He attended private schools until the ninth grade and was a “fast learner.”   He was a good student and was once listed in “Who's Who Among American High School Students.”   Davis started having behavior problems, however, was expelled from private school for threatening a teacher, and then transferred to a public school.   He dropped out of school in the eleventh grade.

Donald Moore testified that Davis had been selling marijuana and cocaine and that he and Davis smoked marijuana every day.   According to Moore, Davis's attitude changed after he left private schools, and he enjoyed the fact that his father was a popular drug dealer.   Similarly, Marcus Lattimore, the defendant's cousin, testified that there was drug use in the Davis family and that Davis began selling drugs so that he could get money to obtain a recording studio.

The jury sentenced Davis to death for the premeditated first degree murders of Ewing and Lee after finding that evidence of three aggravating circumstances relied upon by the prosecution outweighed evidence of mitigating circumstances beyond a reasonable doubt.   The trial court later imposed concurrent 25-year sentences for the two especially aggravated kidnapping convictions and concurrent 25-year sentences for the two especially aggravated robbery convictions.

The Court of Criminal Appeals affirmed the convictions, the death sentences imposed by the jury, and the sentences imposed by the trial court.   Thereafter, the case was automatically docketed in this Court.

ANALYSIS

Sufficiency of Evidence

Davis argues that the evidence was insufficient to support the convictions for premeditated first degree murder, especially aggravated kidnapping, and especially aggravated robbery.   Davis argues that the evidence was entirely circumstantial, that the testimony of the witnesses conflicted, and that several persons had access to the murder weapons.   The State maintains that the evidence was sufficient to support the convictions.

When evaluating the sufficiency of the evidence, we must determine whether “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).   We are required to afford the State the strongest legitimate view of the evidence in the record, as well as all reasonable and legitimate inferences which may be drawn therefrom.   State v. Bland, 958 S.W.2d 651, 659 (Tenn.1997).   Questions concerning the credibility of the witnesses, the weight to be given the evidence, and any factual issues raised by the evidence are resolved by the trier of fact.   Id.;  State v. Cazes, 875 S.W.2d 253, 259 (Tenn.1994).

The offense of first degree murder includes a “premeditated and intentional killing of another.”  Tenn.Code Ann. § 39-13-202(a)(1) (2003).   A premeditated act is “an act done after the exercise of reflection and judgment” and means that “the intent to kill must have been formed prior to the act itself.”  Tenn.Code Ann. § 39-13-202(d) (2003).   An intentional act refers to “the nature of the conduct or to a result of the conduct when it is [a] person's conscious objective or desire to engage in the conduct or cause the result.”  Tenn.Code Ann. § 39-11-106(a)(18) (2003).

In State v. Bland, 958 S.W.2d 651 (Tenn.1997), we discussed circumstances that may warrant the trier of fact to find or infer premeditation.   The circumstances include the use of a deadly weapon upon an unarmed victim, the particular cruelty of a killing, any threats or declarations of intent to kill made by the defendant, proof that the defendant procured a weapon, any preparations to conceal the crime undertaken before the crime is committed, and the defendant's calm demeanor immediately after a killing.  Id. at 660;  see also State v. Keough, 18 S.W.3d 175, 181 (Tenn.2000).

We conclude that the evidence was sufficient to support Davis's convictions for the first degree murders of Gregory Ewing and D'Angelo Lee.   The evidence showed that Davis was involved in a “gun deal” with the victims and had planned to steal the guns and a car.   Davis said that the victims would have to be killed because they knew where Davis and the others lived, and he obtained a nine millimeter handgun shortly before the offenses.   The evidence also showed that Davis and Gdongalay Berry were seen driving a white Cadillac on the night of the offenses with the victims tied up in the car.   Davis and Berry were in possession of assault rifles, handguns, a backpack, Ewing's coat, Lee's tennis shoes, and Davis was wearing a gold necklace that had belonged to Lee.   Davis told police that he was present when the victims were shot and killed;  Davis told others, however, that he had shot Lee, that he had “unloaded the clip,” that he had “drawn down on [Lee],” and that Ewing had begged for his life before being shot by Berry.   The evidence showed that Davis and Berry burned the victims' vehicle after the offenses and that Davis tried to conceal the gold necklace he had been wearing at the time of his arrest.   Finally, the evidence showed that the victims had been shot with a nine millimeter handgun that was later found in Davis's apartment.

Although the defendant characterizes the evidence as circumstantial, the jury's function was to weigh the credibility of the witnesses and to resolve the conflicts in the testimony.   In sum, the evidence overwhelmingly established the offenses of first degree murder.

In addition, we conclude that the evidence, which demonstrated that Davis kidnapped the victims with the use or display of deadly weapons, was sufficient to support Davis's convictions for two counts of especially aggravated kidnapping.   See Tenn.Code Ann. § 39-13-305(a) (2003).   Similarly, we conclude that the evidence, which demonstrated that Davis intentionally took property belonging to the victims by using a deadly weapon and by causing serious bodily injury, was sufficient to support Davis's convictions for two counts of especially aggravated robbery.   See Tenn.Code Ann. § 39-13-403(a) (2003).

Disqualification of District Attorney General

Davis next argues that the trial court erred in denying his motion to disqualify the District Attorney General, Victor S. Johnson, and his entire office based on the District Attorney General's employment of the trial court's former law clerk.   He further argues on appeal that the motion should have been granted because the District Attorney General's office had no official screening policies in matters involving conflicts of interest.   The State maintains that the trial court did not abuse its discretion in denying the motion.

At a pre-trial hearing, Philip Wehby testified that he had worked as a law clerk for the trial judge, J. Randall Wyatt, and that as the law clerk, he had attended one or two ex parte hearings regarding this case.   Wehby testified that he did not work on the case after being hired by the District Attorney General and that he had never discussed the case with anyone in the office.   Although Wehby testified that he was unaware of any written policies in the District Attorney General's office regarding conflicts of interest, he stated that it was “understood” that he was to have no involvement in this prosecution and that he had no knowledge where the case file was kept.   The trial court denied the motion to disqualify.⁸

At the time of trial,⁹ a prosecutor in a criminal case could be disqualified where there was an actual conflict of interest that prevented the prosecutor from exercising independent judgment free of “compromising interests and loyalties.”  State v. Culbreath, 30 S.W.3d 309, 312 (Tenn.2000) (quoting Tenn. R. Sup.Ct. 8, EC 5-1).   Even if there was no actual conflict of interest, disqualification could also be based on an appearance of impropriety. Id. at 313;  see also Clinard v. Blackwood, 46 S.W.3d 177, 187 (Tenn.2001) ( “ ‘appearance of impropriety is' ․ an independent ground upon which disqualification may be based”).

If disqualification of a prosecutor is required, the trial court must determine whether to also disqualify the entire District Attorney General's office.  Culbreath, 30 S.W.3d at 313.   The trial court's determination requires an inquiry into whether the prosecutor who has the conflict of interest has participated in the ongoing prosecution, including the disclosure of any confidences, and whether the prosecution has established that the prosecutor has been screened from the prosecution.  State v. Coulter, 67 S.W.3d 3, 30 (Tenn.Crim.App.2001);  see also Clinard, 46 S.W.3d at 184.   The decision is left to the trial court's discretion and will not be reversed on appeal unless the trial court abused its discretion.  Culbreath, 30 S.W.3d at 313.

In Clinard, which involved the disqualification of a law firm, this Court held that disqualification was required where an attorney who had represented one party to a lawsuit later accepted employment with the law firm that represented the opposing party in the same lawsuit.  Clinard, 46 S.W.3d at 184.   We adopted the following framework for determining whether an attorney's prior involvement in a case mandates disqualification of the attorney's new law firm in a subsequent representation:  (1) whether a substantial relationship existed between the subject of the former and present representations;  (2) whether the presumption of shared confidences has been rebutted with regard to the former representation;  and (3) whether the presumption of shared confidences has been rebutted with regard to the present representation.  Id.

In applying this analysis in Clinard, we noted that a “substantial relationship” existed because the attorney's involvement in the prior case was so extensive that his employment with his new law firm could be “regarded as a changing of sides.”  46 S.W.3d at 184.   We emphasized that the attorney's new law firm was an “adversary against the [parties] in the very litigation in which [the attorney] once represented them․”  Id. at 188.   Although we observed that the presumption of shared confidences was rebutted by “objective and verifiable” evidence of procedures used by the new law firm that had “screened” the conflicted attorney from persons, files, or information pertaining to the ongoing case, we also concluded that the procedures did not remove the appearance of impropriety.  Id. at 184, 188-89.   Accordingly, we held that disqualification of the attorney's new law firm was required.  Id. at 189.

Although we have never addressed the precise circumstances presented in this case, the Court of Criminal Appeals has resolved similar cases.   In State v. Tate, 925 S.W.2d 548 (Tenn.Crim.App.1995), the Court of Criminal Appeals concluded that disqualification was required after a trial judge became the District Attorney General.   In Tate, the evidence showed that the trial judge presided over several pretrial rulings in the defendant's case, later became the District Attorney General, and then had four conversations about the case with the assistants who were prosecuting the defendant's case.  Id. at 549.   In ruling that the District Attorney General's office was disqualified from prosecuting the defendant, the Court of Criminal Appeals emphasized that the District Attorney, when serving as the trial judge, presided over several ex parte hearings during which the defense disclosed confidential matters and that the District Attorney later had lengthy discussions about the case with other prosecutors.  Id. at 555-56.

In contrast, in State v. Coulter, 67 S.W.3d 3 (Tenn.Crim.App.2001), the Court of Criminal Appeals concluded that disqualification of the District Attorney General's office was not required.   In Coulter, a defendant's counsel accepted employment with the District Attorney General's office before the defendant's case went to trial.   Although counsel had an obvious conflict of interest, the evidence revealed that counsel had no discussions as an assistant district attorney about the defendant's case, had no involvement in the prosecution of the defendant's case, and followed the “screening” procedures the office had implemented to ensure he had no involvement or contact with the case.  Id. at 26-27.   Accordingly, the Court of Criminal Appeals held that the conflict of interest did not require disqualification of the District Attorney General's office because there had been no disclosure of confidences or participation in the prosecution.  Id. at 32.

In our view, application of these decisions and principles establishes that the trial court properly exercised its discretion in refusing to disqualify the District Attorney General's office in the present case.   The evidence revealed that Wehby had worked as a law clerk for the trial court and had attended “one, maybe two” ex parte hearings involving the trial judge and defense counsel.   The trial court specifically found that his “level of involvement while a law clerk was at most minimal.”   Indeed, there was no evidence as to what was discussed at the hearings and no showing that Wehby had a substantial relationship to these proceedings.

In addition, after being employed by the District Attorney General, Wehby did not participate in the prosecution of this case, did not have any discussions about the prosecution of this case, and did not share or reveal any information with those who were prosecuting this case.   As the trial court noted, Wehby had “not discussed the case with anyone within the office” and had “no access to the case file, which [was] apparently kept separate from the office's other files.”   Moreover, although Wehby was not aware of a formal screening procedure in the District Attorney General's office, he testified that it was understood he was to have no contact or involvement with this ongoing prosecution.

The present case is distinguishable from the decisions in Clinard and Tate.   For example, in Clinard, the attorney represented and received confidential information from a party to a lawsuit and later began working for the law firm that represented the opposing party in that same lawsuit.  Clinard, 46 S.W.3d at 184.   We analogized the attorney to a baseball player who has “switched teams in the middle of the game after learning the signals.”  Id. at 188.   Similarly, in Tate, the District Attorney had ruled upon several pretrial, ex parte requests as the trial judge in a case and then later participated in the prosecution of the defendant's case by discussing the case with his assistants.  Tate, 925 S.W.2d at 549;  see also Lux v. Commonwealth, 24 Va.App. 561, 484 S.E.2d 145 (1997).

In contrast, in this case there was no evidence that Philip Wehby had a substantial role as a law clerk for the trial judge in the defendant's case, that he “switched sides” in the defendant's case, that he received confidential information, that he revealed confidential information, or that he participated in the prosecution of Davis.   The undisputed evidence is that Wehby was effectively screened from this case after his employment with the District Attorney General and that he had no involvement or communications regarding this case.¹⁰

Accordingly, we conclude that the trial court did not abuse its discretion in refusing to disqualify the District Attorney General's office in this case.

Withdrawal of Defense Counsel

Davis argues that the trial court erred in denying a motion to withdraw filed by defense counsel.   The State maintains that review of the issue has been waived for failure to preserve the issue in the record on appeal.

The record indicates that Davis's attorneys filed a motion to withdraw prior to trial.   At an evidentiary hearing on the motion, defense counsel asserted that they were unable to disclose the basis of their motion due to professional obligations, the attorney-client privilege, and other ethical considerations.   The motion to withdraw was transferred to a different trial court, which denied the motion after an ex parte hearing and placed the order and the transcript of the hearing under seal.¹¹  On appeal, the Court of Criminal Appeals held that review of the issue was waived based on defense counsel's refusal to have the trial court's order and transcript unsealed.

In this Court, the position of defense counsel remains the same, i.e., that ethical and professional considerations prevent the unsealing of the trial court's order and the transcript of the ex parte hearing.   Moreover, the brief asserts that the issue has been raised for the purpose of preserving it for further review.   Under these circumstances, we conclude that the defendant is entitled to no relief on this issue.¹²

Sufficiency of Indictment

Davis contends that his death sentence is invalid because the indictment failed to charge the aggravating circumstance which distinguishes this capital first degree murder from a non-capital first degree murder.   Davis, citing Apprendi v. New Jersey, argues that the Fifth and Sixth Amendments require that aggravating circumstances be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.  Apprendi v. New Jersey, 530 U.S. 466, 476, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).   Although this issue was not raised in the trial court or in the Court of Criminal Appeals, Davis asserts it amounts to plain error.

We have held Apprendi does not require aggravating circumstances to be alleged in the indictment.  State v. Holton, 126 S.W.3d 845, 863 (Tenn.2004);  State v. Dellinger, 79 S.W.3d 458, 467 (Tenn.2002).   Moreover, we have clarified that recent United States Supreme Court rulings in Blakely v. Washington, 524 U.S. ----, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Ring v. Arizona, 536 U.S. 584, 602, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), “do not change our analysis ․ regarding whether aggravating circumstances must be pled in the indictment.”  State v. Berry, 141 S.W.3d 549, 2004 WL 1873706 (Tenn.2004).   We explained:

[T]he 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.

Id. at 562, 2004 WL 1873706, at *8.

In short, we have rejected Davis's argument, and we have held that the capital sentencing scheme in Tennessee does not require that aggravating circumstances be included in an indictment.   The issue is without merit.

Prior Violent Felony Aggravating Circumstance

Davis argues that the trial court erred in allowing the prosecution to rely on his prior conviction for first degree murder in establishing the “prior violent felony” aggravating circumstance pursuant to Tennessee Code Annotated section 39-13-204(i)(2) (2003) because he was a juvenile when the prior offense was committed.   Davis argues that because a juvenile is not eligible for the death penalty, the prior offense should not be used to impose the death penalty for a later offense.   The State maintains that the prior conviction for first degree murder was properly applied.

We begin our review with the language of Tennessee Code Annotated section 39-13-204(i)(2) (2003), which states:  “The defendant was previously convicted of one (1) or more felonies, other than the present charge, whose statutory elements involve the use of violence to the person[.]”  The plain language requires the prosecution to prove that the defendant had (1) a prior conviction, (2) for a felony offense, (3) whose statutory elements involved the use of violence to a person.   The statutory language has no other required elements or restrictions.   Moreover, there is simply no indication that a prior conviction that meets these statutory elements must also have been committed by a defendant on or after the age of 18.

We next examine the statutory provisions that allow a juvenile offender to be transferred to criminal court for trial as an adult where:

The child was sixteen (16) years or more of age at the time of the alleged conduct, or the child was less than sixteen (16) years of age if such child was charged with the offense of first degree murder, second degree murder, rape, aggravated rape, aggravated robbery, especially aggravated robbery, kidnapping, aggravated kidnapping or especially aggravated kidnapping or an attempt to commit any such offenses.   The district attorney general may not seek, nor may any child transferred under the provisions of this section receive, a sentence of death for the offense for which the child was transferred [.]

Tenn.Code Ann. § 37-1-134(a)(1) (2001) (emphasis added).   Although the statute plainly states that an offender may not receive the death penalty “for the offense for which the child was transferred,” there is no statutory language prohibiting the use of a conviction for that offense to enhance the punishment for a conviction of a later offense.   Indeed, had the legislature intended for such a restriction or limitation, it could have included the appropriate statutory language.

We also believe that the plain meaning of the above statutes is consistent with the overall capital sentencing structure in Tennessee.   A capital sentencing scheme must allow for an individualized sentencing determination based on “the character of the individual and the circumstances of the crime.”  State v. Middlebrooks, 840 S.W.2d 317, 343 (Tenn.1991).   A defendant is entitled to present relevant evidence in mitigation of sentence, see Skipper v. South Carolina, 476 U.S. 1, 4, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), and the prosecution is entitled to present relevant evidence in aggravation, “as long as it is relevant to the sentencing decision and promotes the reliability of that determination,” Middlebrooks, 840 S.W.2d at 343.   In addition, we have explained:

As a constitutionally necessary first step under the Eighth Amendment, the Supreme Court has required the states to narrow the sentencers' consideration of the death penalty to a smaller, more culpable class of homicide defendants․  A proper narrowing device ․ provides a principled way to distinguish the case in which the death penalty was imposed from the many cases in which it was not ․, and must differentiate a death penalty case in an objective, even-handed, and substantially rational way from the many murder cases in which the death penalty may not be imposed․  As a result, a proper narrowing device insures that, even though some defendants who fall within the restricted class of death-eligible defendants manage to avoid the death penalty, those who receive it will be among the worst murderers-those whose crimes are particularly serious, or for which the death penalty is peculiarly appropriate.

Id. (citations omitted).

In our view, the “prior violent felony” aggravating circumstance in this case achieved the required “narrowing” purpose.   Indeed, Davis's conviction for a prior first degree murder, for which he was tried as an adult, provided a principled, rational way in which to differentiate this case from other cases and was properly weighed by the jury in analyzing the evidence of aggravating and mitigating circumstances and in determining the appropriate punishment.   In short, there was no constitutional or statutory restriction against the use of Davis's prior conviction for first degree murder in this case.

Sufficiency of Aggravating Circumstances

We next undertake our mandatory review of whether the evidence supported the jury's finding that the aggravating circumstances were established beyond a reasonable doubt and that the aggravating circumstances outweighed evidence of mitigating circumstances beyond a reasonable doubt.  Tenn.Code Ann. § 39-13-206(c)(1)(B)-(C) (2003).

The record reveals that the jury found that three aggravating circumstances had been proven beyond a reasonable doubt:  the defendant was previously convicted of one or more felonies whose statutory elements involved the use of violence to the person;  the murders were committed for the purpose of avoiding, interfering with, or preventing a lawful arrest of the defendant;  and the murders were knowingly committed, solicited, directed, or aided by the defendant while the defendant had a substantial role in committing or attempting to commit a robbery or kidnapping, and that these aggravating circumstances outweighed evidence of mitigating circumstances beyond a reasonable doubt.  Tenn.Code Ann. §§ 39-13-204(i)(2), (6), (7) & 39-13-206(c)(1)(B)-(C) (2003).

A. Prior Violent Felonies

Davis argues that the evidence was insufficient to support the “prior violent felony” aggravating circumstance because the prosecution relied on an offense-first degree murder-that was committed as a juvenile.   As discussed above, this issue is without merit.   Moreover, Davis makes no allegations with regard to the sufficiency of his prior conviction for attempted second degree murder, which was also relied upon by the prosecution.

B. Avoiding, Interfering With or Preventing Lawful Arrest

Davis also argues that the evidence was insufficient to establish that the murders were committed for the purpose of avoiding, interfering with, or preventing a lawful arrest.  Tenn.Code Ann. § 39-13-204(i)(6) (2003).

Tennessee Code Annotated section 39-13-204(i)(6) (2003) may apply where a “murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another.”   This aggravating circumstance focuses on the defendant's motives for committing a murder and is not limited to the killings of eyewitnesses or those witnesses who know or can identify the defendant.  Terry v. State, 46 S.W.3d 147, 162 (Tenn.2001);  see also State v. Hall, 976 S.W.2d 121, 133 (Tenn.1998).   Moreover, the defendant's desire to avoid arrest or prosecution need not be the sole motive for killing the victim and instead may be just one of the purposes motivating the defendant to kill.  Terry, 46 S.W.3d at 162.

In this case, the record reveals that Davis told others that a fake “gun deal” was set up in order to steal guns and a car from the victims, Ewing and Lee. Antonio Cartwright heard Davis say that the victims would have to be killed “because they knew who they was and they knew where they stay.”   Moreover, the record reveals that the two victims were tied up in the car while Davis and Berry unloaded the stolen guns and the victims were later shot multiple times and left in a construction site.   In sum, the evidence was sufficient to support this aggravating circumstance beyond a reasonable doubt.

C. Felony Murder

Davis next argues that the evidence was insufficient to support the “felony murder” aggravating circumstance because it may not be applied to convictions for felony murder.  Tenn.Code Ann. § 39-13-204(i)(7) (2003).

Tennessee Code Annotated section 39-13-204(i)(7) (2003) may be applied where:

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, or was fleeing after having a substantial role in committing or attempting to commit, any first degree murder, arson, rape, robbery, burglary, theft, kidnapping, aircraft piracy, or unlawful throwing, placing or discharging of a destructive device or bomb.

Although this aggravating circumstance may not be applied where it duplicates the felony that serves as the predicate for a felony murder conviction, see Middlebrooks, 840 S.W.2d at 341, it may be applied to convictions for premeditated first degree murder, see State v. Davidson, 121 S.W.3d 600, 609 n. 4 (Tenn.2003).

Here, the record reveals that Davis was convicted of the premeditated first degree murders of Ewing and Lee and that Davis's convictions for felony murder were merged into these convictions.   Moreover, the premeditated first degree murders were committed in the perpetration of the robbery and kidnapping of the victims.   The evidence, therefore, was sufficient to support this aggravating circumstance beyond a reasonable doubt.

D. Weighing of Mitigating Evidence

Finally, Davis contends that the evidence of these aggravating circumstances did not outweigh evidence of mitigating circumstances beyond a reasonable doubt.

The overwhelming evidence of the three aggravating circumstances outlined above was countered with primarily background mitigation evidence.   Davis was 18 years of age at the time of the murders.   Several witnesses testified that his parents were drug addicts and that his father had been incarcerated for drug-related offenses.   The evidence also reflected that Davis had performed well in private schools before he started selling drugs and thereafter became a disciplinary problem.   The defense presented little or no evidence regarding the circumstances of the offenses or mitigating the defendant's involvement.   In sum, the evidence supported the jury's finding that the evidence of the three aggravating circumstances outweighed mitigating circumstances beyond a reasonable doubt.

Proportionality

Where a defendant has been sentenced to death, we must apply a comparative proportionality analysis pursuant to Tenn.Code Ann. § 39-13-206(c)(1)(D) (2003).   The analysis is intended to identify aberrant, arbitrary, or capricious sentencing by determining whether the death sentence is “disproportionate to the punishment imposed on others convicted of the same crime.”  Bland, 958 S.W.2d at 662 (quoting Pulley v. Harris, 465 U.S. 37, 42-43, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984)).

In conducting this analysis, this Court employs the precedent-seeking method of comparative proportionality review, in which we compare a case with cases involving similar defendants and similar crimes.   Bland, 958 S.W.2d at 665-67.   While no defendants or crimes are precisely alike, a death sentence is disproportionate if a case is “plainly lacking in circumstances consistent with those in cases where the death penalty has been imposed.”  Id. at 668.

We have repeatedly held that the pool of cases considered by this Court in its proportionality review includes those first degree murder cases in which the State seeks the death penalty, a capital sentencing hearing is held, and the sentencing jury determines whether the sentence should be life imprisonment, life imprisonment without the possibility of parole, or death.  State v. Godsey, 60 S.W.3d 759, 783 (Tenn.2001).   We have explained that the pool does not include first degree murder cases in which a plea bargain is reached with respect to the punishment or in which the State does not seek the death penalty:

[C]onsideration of cases in which the State, for whatever reasons, did not seek the death penalty would necessarily require us to scrutinize what is ultimately a discretionary prosecutorial decision․  We previously have declined to review the exercise of prosecutorial discretion ․, and it would be particularly inappropriate to do so in conducting comparative proportionality review, where our function is limited to identifying aberrant death sentences, not identifying potential capital cases.

Id. at 784 (citations omitted).

Accordingly, our comparative proportionality review of the applicable pool of cases considers numerous factors regarding the offense:  (1) the means of death;  (2) the manner of death;  (3) the motivation for the killing;  (4) the place of death;  (5) the victim's age, physical condition, and psychological condition;  (6) the absence or presence of premeditation;  (7) the absence or presence of provocation;  (8) the absence or presence of justification;  and (9) the injury to and effect upon non-decedent victims.   We also consider numerous factors about the defendant:  (1) prior criminal record, if any;  (2) age, race, and gender;  (3) mental, emotional, and physical condition;  (4) role in the murder;  (5) cooperation with authorities;  (6) level of remorse;  (7) knowledge of the victim's helplessness;  and (8) potential for rehabilitation.  Bland, 958 S.W.2d at 667;  see also State v. Bane, 57 S.W.3d 411, 428-29 (Tenn.2001).

The particular circumstances of this case demonstrate that the defendant, Christopher Davis, arranged a meeting with the victims, Gregory Ewing and D'Angelo Lee, under the guise of buying guns.   Prior to the meeting, Davis borrowed a nine millimeter handgun;  then, along with Gdongalay Berry, Davis robbed the victims, tied them up, and transported them in the victims' car to Davis's apartment.   After assault rifles, handguns, and other items were taken into Davis's apartment, the victims were taken to a remote construction site in the Berry Hill area of Nashville and were shot numerous times in the head with a nine millimeter handgun and a .45 caliber handgun.   Davis told Antonio Cartwright that he had shot Lee nine times in the head and that the victims' bodies had been dumped where they would not be found.   Davis also told Christopher Loyal that he had gone to get some guns from the victims, that one of the victims was crying and begging for his life, and that he “unloaded the clip.”   Bullets found in the victims matched a nine millimeter handgun recovered in Davis's apartment.   Davis was seen wearing a gold necklace that had belonged to one of the victims, and he tried to get rid of the necklace following his arrest.

Davis was 18 years old at the time of the offenses.   He had prior convictions for two violent felonies, including one for first degree murder.   He played a major role in planning and executing the robbery, kidnapping, and killing of Ewing and Lee. Davis offered no cooperation with law enforcement;  instead, he fled from officers before his arrest, tried to conceal evidence that had belonged to the victims, and gave inconsistent statements to investigating officers.   Davis showed no remorse for the offenses or for the death of the victims, and he told others that one of the victims had been shot after begging for his life.

Davis offered mitigating evidence regarding his family background and the fact that his mother and father were drug addicts.   Davis's father had been imprisoned for drug-related offenses, and Davis himself used and sold drugs.   There was no evidence that Davis had physical, mental, or emotional difficulties that impaired his judgment or had any relevance to the offenses.   Although Davis had been a promising student at one time, there was no evidence of Davis's potential for rehabilitation.

This Court has frequently upheld the death penalty in first degree murder cases involving shooting offenses committed in the course of a robbery or other felony.   For example, in State v. Reid, the defendant received the death penalty for shooting two robbery victims.  91 S.W.3d 247, 260 (Tenn.2002).   Similarly, in State v. Stout, the defendant received the death penalty for kidnapping the victim and shooting her in the head.  46 S.W.3d 689, 693-94 (Tenn.2001).   In State v. Sims, the defendant received a death sentence for shooting the victim in the course of burglarizing the victim's home.  45 S.W.3d 1, 5-6 (Tenn.2001).   Likewise, in State v. Hall, the defendant received a death sentence after he and others killed two victims by shooting and stabbing them and then stealing the victims' car.  976 S.W.2d 121, 128-29 (Tenn.1998);  see also State v. Henderson, 24 S.W.3d 307, 310 (Tenn.2000) (defendant shot a deputy sheriff in the back of the head at close range);  State v. Cribbs, 967 S.W.2d 773, 777 (Tenn.1998) (defendant shot victim in the head during a robbery).

In addition, this Court has often upheld death sentences in cases that involved the three aggravating circumstances applied in this case, i.e., the defendant's previous convictions for one or more felonies whose statutory elements involved the use of violence to the person;  the murders were committed for the purpose of avoiding, interfering with, or preventing a lawful arrest of the defendant;  and the murders were knowingly committed, solicited, directed, or aided by the defendant while the defendant had a substantial role in committing or attempting to commit a robbery or kidnapping.  Reid, 91 S.W.3d at 287;  Sims, 45 S.W.3d at 19-20;  Hall, 976 S.W.2d at 138;  State v. Bates, 804 S.W.2d 868, 882-83 (Tenn.1991).   Moreover, the “prior violent felony” aggravating circumstance applicable in these and numerous other death penalty cases is “more qualitatively persuasive and objectively reliable than other[ ]” aggravating circumstances.  State v. Howell, 868 S.W.2d 238, 262 (Tenn.1993).

Finally, this Court has upheld the death sentence in several cases involving young defendants or substantially similar mitigating evidence.   For example, several cases have involved defendants who were the same or similar age as Davis.  State v. Pike, 978 S.W.2d 904, 922 (Tenn.1998);  Bland, 958 S.W.2d at 674 n. 26;  State v. Bush, 942 S.W.2d 489, 494 (Tenn.1997).   Likewise, numerous cases have involved defendants who relied on mitigating evidence of their family backgrounds, poor childhood environments, drug usage, and other related issues.  Stout, 46 S.W.3d at 708;  Henderson, 24 S.W.3d at 318;  Pike, 978 S.W.2d at 922;  Bland, 958 S.W.2d at 670.

We reiterate that our task does not require a finding that this case is exactly like a prior case in every respect, nor does it require a determination that this case is “more or less” like other similar death penalty cases.   See State v. McKinney, 74 S.W.3d 291, 313 (Tenn.2002).   Instead, we must identify aberrant death sentences by determining whether a case plainly lacks circumstances similar to those cases in the relevant pool of cases ¹³ in which a death sentence has been upheld.  Id.  Accordingly, for the foregoing reasons, the death sentences imposed on Davis for these offenses are not arbitrary or disproportionate.

CONCLUSION

After reviewing the record and applicable authority, we hold as follows:  (1) the evidence was sufficient to support the jury's verdicts;  (2) the trial court did not err in refusing to disqualify the District Attorney General;  (3) the trial court did not err in refusing to allow defense counsel to withdraw;  (4) the death sentences were not invalid on the ground that the aggravating circumstances were not set out in the indictment;  (5) the trial court did not err in allowing the prosecution to rely on an offense committed when the defendant was a juvenile in establishing the prior violent felony aggravating circumstance;  (6) the evidence was sufficient to support the jury's finding of three aggravating circumstances and its determination that the aggravating circumstances outweighed the evidence of mitigating circumstances beyond a reasonable doubt;  and (7) the death sentences were not arbitrary or disproportionate.   We also agree with and affirm the Court of Criminal Appeals' analysis and conclusions with respect to the remaining issues, the relevant portions of which are included in the appendix to this opinion.

The defendant's sentence of death is affirmed and shall be carried out on the 15th day of March, 2005, unless otherwise ordered by this Court or other proper authority.   It appearing that the defendant is indigent, costs of the appeal are taxed to the State.

APPENDIX

(Excerpts from the Court of Criminal Appeals' Decision)

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE

November 19, 2002 Session

STATE OF TENNESSEE v. CHRISTOPHER A. DAVIS

Appeal from the Criminal Court for Davidson County

No. 96-B-866 J. Randall Wyatt, JudgeNo. M2001-01866-CCA-R3-DD-Filed March 25, 2003

The Appellant, Christopher A. Davis, was found guilty by a jury of two counts of first degree murder, two counts of especially aggravated robbery, and two counts of especially aggravated kidnapping.   The jury sentenced the Appellant to death for each of the first degree murder convictions.   The Appellant presents the following issues in this appeal as of right:  (1) The trial court erred by not granting the Appellant's motion to disqualify the Davidson County District Attorney General's office from prosecuting the case;  (2) the trial court erred by not granting the Appellant's motion to prohibit the State from relying upon the Appellant's prior murder conviction as an aggravating circumstance, because the conviction was for a crime committed while the Appellant was a juvenile;  (3) the trial court erred by not suppressing the statement the Appellant made to police;  (4) the trial court erred by denying defense counsel's motion to be allowed to withdraw from representing the Appellant;  (5) the trial court erred by granting the State's motion to require the Appellant to supply the State information concerning mental health expert testimony to be presented during the sentencing phase of the trial;  (6) the trial court erred by allowing a physician who did not perform the autopsy to testify concerning the autopsy and evidence obtained in connection therewith;  (7) the trial court erred in allowing victim impact evidence to be introduced;  (8) that the evidence presented at trial was insufficient to support a finding of guilt beyond a reasonable doubt;  (9) that the evidence presented was insufficient to support the jury's finding that the aggravating circumstances outweighed any mitigating circumstances beyond a reasonable doubt;  (10) that the evidence presented was insufficient to support a finding that the aggravating factors were established beyond a reasonable doubt;  (11) that Tennessee's death penalty statutory scheme is unconstitutional in several instances;  (12) that the trial court erred in allowing certain cross-examination of defense witnesses;  and (13) that the cumulative effect of errors made at trial denied the Appellant a fair trial in violation of his due process rights.   Based on our review of the record on appeal, we affirm both the Appellant's convictions and the sentences imposed.

Tenn.Code Ann. § 39-13-206 Death Penalty Appeal;  Judgment of the Criminal Court Affirmed

David H. Welles, J., delivered the opinion of the court, in which Joe G. Riley and Alan E. Glenn, JJ., joined.

Herschell D. Koger, Pulaski, Tennessee, for the Appellant, Christopher A. Davis.

Paul G. Summers, Attorney General and Reporter;  Gill R. Geldreich, Assistant Attorney General;  Victor S. Johnson, District Attorney General;  and Tom Thurman and Katrin Miller, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

[Deleted:  Summary of Facts and Testimony]

ANALYSIS OF ISSUES

I.

[Deleted:  Disqualification District Attorney General's Office]

II.

[Deleted:  The Juvenile Status of Appellant at the Time of Appellant's Prior Felony Conviction]

III.

Appellant's Statement to Police

Appellant filed a motion to suppress his statements made to police.   Appellant was first questioned at the criminal justice center after being detained outside his residence.   At the time Appellant was apprehended, the police were unaware of his alleged involvement in the murders at issue.   Mr. Davis was taken in a police car in handcuffs from his residence on Herman Street in Nashville to the criminal justice center.   Appellant arrived at the criminal justice center at approximately noon on February 28, 1996.   Appellant was first questioned by Detective Al Gray regarding his knowledge of the murder of a cab driver near the TSU campus in Nashville.   Detective Gray advised Appellant of his Miranda rights prior to questioning him.

Detective Mike Roland testified that he first learned of Appellant's potential involvement in the murders of Lee and Ewing between 5:00 and 7:00 p.m.   Detective Roland testified that he called Davis in to question him regarding the murders of Ewing and Lee and confirmed that Detective Gray had read Davis his rights and that he understood the same.   He asked if Davis was still willing to talk to him, and Davis responded yes.   Appellant denied any involvement.   The interview with Detective Roland began at approximately 9:00 p.m. Detective Roland testified that at about 9:45 p.m., Mr. Davis requested an attorney.   No further questions were asked at that point.

Thereafter, Detective Roland obtained additional information linking Appellant to the murders of Lee and Ewing.   Approximately one hour later, while Detective Roland was typing an arrest warrant, Appellant approached him and asked what he was doing.   Detective Roland advised Appellant that he was typing a criminal homicide warrant for him, and Appellant stated that he wanted to talk.

After Appellant advised Detective Roland that he wanted to talk to him, Appellant was taken to an interview room, where he was read his Miranda rights.   Appellant then signed a written waiver.   The interview, including the reading of Appellant's rights, was videotaped.   During the videotaped interview, Appellant stated that he wanted to cooperate.   He advised that he did not commit the murders, but he had information about what occurred.   He first stated that he was not present at the crime scene, but later recanted and stated he was present.   He continued to deny, however, that he had played any role in the murders.   He gave information regarding the weapons used, the scene of the crime, the time of the crimes, the manner in which the victims were murdered, and other people present at the murders.

The evidence shows that during the time Appellant was detained at the criminal justice center, he was provided with food and drink by the detectives.   Detectives also admitted that Appellant complained of his stomach being upset.   Detectives further admitted that Appellant advised that he was cold, and they provided him with a jacket.   While at the criminal justice center, Appellant appeared tired at times and lay down to rest.   Appellant asserts that as the detectives were gathering evidence linking him to the crime, detectives made statements within his hearing range regarding the evidence.   Further, Appellant asserts that he was also specifically questioned regarding some of the evidence after he had requested an attorney.   The detectives involved in the investigation denied his assertion.

Appellant's attorneys argue that Appellant's statements to police should be suppressed because all questioning should have ceased when Appellant first requested an attorney.   Appellant further argues that he was in a weakened physical condition because he was still experiencing the aftereffects from a spider bite that he received a couple of weeks prior to his arrest.¹  Appellant asserts that his weakened physical condition from the spider bite, coupled with a lack of sleep and eating, rendered his statements involuntary.   Appellant further argues that there was undue delay in taking him before the magistrate on the weapons charge, the charge for which he was transported to the criminal justice center.   Appellant also asserts that a rapidly intensifying homicide investigation was being conducted near his vicinity, and that the subtle remarks made by detectives amounted to a tacit form of questioning.   Essentially, Appellant's attorneys argue that the detectives's actions amounted to an interrogation.   As a result of the foregoing, Appellant advances the argument that his statement to the police was involuntary.   The trial court, however, found that considering the totality of the circumstances, Appellant's statement was voluntary.

Our supreme court succinctly enunciated the proper standard of review in motion to suppress cases as follows:

Because issues of whether a defendant was placed into custody, interrogated, or voluntarily gave a confession are primarily issues of fact, we review these factual determinations by the trial court according to the standard set forth in State v. Odom, 928 S.W.2d 18 (Tenn.1996).   Under this standard, “a trial court's findings of fact in a suppression hearing will be upheld unless the evidence preponderates otherwise.”   Questions about witness credibility and “resolution of conflicts in the evidence are matters entrusted to the trial judge,” and the “testimony presented at trial may be considered by an appellate court in deciding the propriety of the trial court's ruling on a motion to suppress.”   Our review of a trial court's application of law to the facts, however, is conducted under a de novo standard of review.

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

We will first address whether Appellant's statement should be suppressed pursuant to Tennessee Rule of Criminal Procedure 5(a) as advanced by Appellant.  Tennessee Rule of Criminal Procedure 5(a) provides:

Any person arrested except upon a capias pursuant to an indictment or presentment shall be taken without unnecessary delay before the nearest appropriate magistrate of the county from which the warrant for arrest was issued, or the county in which the alleged offense occurred if the arrest was made without a warrant unless a citation is issued pursuant to Rule 3.5.   If a person arrested without a warrant is brought before a magistrate, an affidavit of complaint shall be filed forthwith.   When an arrested person appears initially before a magistrate, the magistrate shall proceed in accordance with this rule.

It is without dispute that Appellant was arrested and taken into custody between 11:00 a.m. and 12:00 p.m.   It is further without dispute that Appellant gave a statement to the police at approximately 12:00 a.m. and was then taken before a magistrate.   Appellant asserts that this twelve to thirteen hour delay in taking Appellant before a magistrate constituted unnecessary delay pursuant to Tennessee Rule of Criminal Procedure 5(a).

In State v. Huddleston, 924 S.W.2d 666, 670 (Tenn.1996), our supreme court held that if an individual is not brought before a magistrate within 72 hours, there has been “unnecessary delay.”   We cannot find that because Appellant was not taken before a magistrate for twelve to thirteen hours there was an unnecessary delay.   Moreover, a confession obtained during a period of unnecessary delay is not automatically suppressed.  Id.;  see also State v. Carter, 16 S.W.3d 762, 769 (Tenn.2000).   Instead, a statement is to be excluded “only if an examination of the totality of the circumstances reveals that the statement is not voluntarily given.”  Huddleston, 924 S.W.2d at 670.   To determine if a statement was voluntarily given, we must consider:

the age of the accused;  his lack of education or his intelligence level;  the extent of his previous experience with the police;  the repeated and prolonged nature of the questioning;  the length of the detention of the accused before he gave the statement in question;  the lack of any advice to the accused of his constitutional rights;  whether there was an unnecessary delay in bringing him before a magistrate before he gave the confession;  whether the accused was injured [or] intoxicated or drugged, or in ill health when he gave the statement;  whether the accused was deprived of food, sleep or medical attention;  whether the accused was physically abused;  and whether the suspect was threatened with abuse.

Id. at 671 (quoting People v. Cipriano, 431 Mich. 315, 429 N.W.2d 781, 790 (1988)).²

The trial court specifically cited the above referenced factors in its order.   Based on the evidence presented at the hearing, the trial court found:  the detectives were accommodating to Appellant's needs;  the Appellant was advised of his constitutional rights on two occasions;  Appellant waived his constitutional rights in an effort to exculpate himself from involvement in the murders;  Appellant's demeanor indicated he was lucid and in full control of his mental and physical faculties;  no evidence regarding Appellant's intelligence or educational level that would raise questions regarding the voluntariness of the statement;  no indication that Appellant's injury from the spider bite affected his decision making;  and Appellant's statement lasted approximately one hour and was not conducted in an abusive or coercive manner.   As a result, the trial court ruled that under the totality of the circumstances, Appellant's statement was voluntary.

With regard to this issue, we conclude that there was no violation of Tennessee Rule of Criminal Procedure 5(a).   Moreover, we find that even if there was a violation, Appellant's statement should not be excluded because it was voluntary under the totality of the circumstances.

Next we must consider whether there was a violation of the Fourth Amendment that requires the suppression of Appellant's statement.   The Fourth Amendment requires a prompt judicial determination of probable cause as a prerequisite to the extended detention of an individual after a warrantless arrest.  Gerstein v. Pugh, 420 U.S. 103, 114, 125, 95 S.Ct. 854, 863, 869, 43 L.Ed.2d 54, 65, 72 (1975).   The United States Supreme Court has determined that absent a bona fide emergency or extraordinary circumstance, a judicial determination of probable cause is “prompt” if it occurs within 48 hours.  County of Riverside v. McLaughlin, 500 U.S. 44, 56-57, 111 S.Ct. 1661, 1670, 114 L.Ed.2d 49, 63 (1991).   The Supreme Court has explained that the probable cause determination does not pass constitutional muster simply because it occurs within 48 hours.  Id. If a hearing is delayed unreasonably for the purpose of gathering evidence to justify an arrest, a delay is simply for delay's sake or a delay is motivated by ill will against the arrested individual, then it may not pass constitutional muster.  Id. We find that here, Appellant was taken before a magistrate within 48 hours, and the determination of probable cause was not delayed unreasonably.   Therefore, there was no violation of the Fourth Amendment and, therefore, no reason to suppress Appellant's statement pursuant thereto.

Appellant also argues that his statement was not voluntarily given because after he asserted his right to counsel, the police began a tacit form of interrogation by bringing incriminating evidence in front of him and conversing amongst themselves within his hearing range.   Custodial interrogations must be preceded by Miranda warnings.  Berkemer v. McCarty, 468 U.S. 420, 434, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984);  Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).   Once the right to counsel has been invoked, the interrogation must stop, unless the person re-initiates the conversation and expresses a desire to talk to the police.  State v. O'Guinn, 786 S.W.2d 243, 246 (Tenn.Crim.App.1989).   “Interrogation” encompasses any “practice that the police should know is reasonably likely to evoke an incriminating response from a suspect.”  Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1690, 64 L.Ed.2d 297, 308 (1980).

At the suppression hearing, Appellant testified that as the detectives were gathering evidence linking him to the crime, they made statements within his hearing range regarding the evidence and specifically questioned him regarding some of the evidence after he had requested an attorney.   The detectives involved in the investigation denied these allegations.   According to the record, approximately one hour passed between the time Appellant asserted his right to counsel and next requested to speak with Detective Roland.   This Court has previously noted that “[t]he disclosure of incriminating evidence to a suspect ․ does not necessarily constitute interrogation within the meaning of Innis.”  State v. Maraschiello, 88 S.W.3d 586, 603 (Tenn.Crim.App.2000) (citing Shedelbower v. Estelle, 885 F.2d 570, 573 (9th Cir.1989);  United States v. Vazquez, 857 F.2d 857, 861 (1st Cir.1988)).   After reviewing the record, we agree with the trial court that there is no evidence that the Appellant was coerced by any of the detectives into making the statement at issue.   We find that the actions of the police do not constitute an interrogation under Innis.

With respect to the re-initiation of conversation by Appellant, the trial court specifically found that Appellant approached Detective Roland and initiated further conversation.   The court noted that it accredited the testimony of Detective Roland on this issue.   The court next found that Detective Roland twice advised Appellant of his constitutional rights, and Appellant executed a written waiver of his rights before resuming the interview.   The court found no evidence that Appellant was coerced by any of the detectives into initiating the subsequent communication or that Appellant was otherwise engaged in any discussions about the case prior to the Appellant's request to resume the interview.   Thus, the court resolved the conflicting testimony in favor of the detectives, rather than Appellant.   We agree.   Absent coercive activity by the police, we must conclude that the Appellant voluntarily initiated a dialogue with Detective Roland and made the statement at issue.   See Maraschiello, 88 S.W.3d at 604.   Moreover, Detective Roland twice advised Appellant of his Miranda rights once questioning resumed.   Thereafter, Appellant made a knowing and intelligent waiver of his Miranda rights.

Further, we are not persuaded by Appellant's argument that his weakened physical condition from the spider bite, coupled with a lack of sleep and eating, rendered his statements involuntary.   The trial court found otherwise.   As previously set forth, under the totality of the circumstances, the evidence does not preponderate against the trial court's finding that Appellant's statement was voluntarily made.

As a result of the foregoing, we conclude that the trial judge did not err in denying the motion to suppress the Appellant's statement.   Accordingly, this issue is without merit.

IV.

[Deleted:  Counsel's Request to Withdraw from Representation]

V.

Notice of Intent to Present Expert Testimony of Mental Condition at Penalty Phase

Appellant contends that the trial court erred in granting the State's motion requiring Appellant to supply information to the State regarding mental health issues that would be presented at the sentencing phase of trial.   Pretrial, the State filed a Motion to Compel Discovery of Expert Testimony, pursuant to Rules 12.2 and 16 of the Tennessee Rules of Criminal Procedure.   In its motion, the State requested the court require the defense to file a written notice of its intent to introduce expert testimony relating to mental disease or defect, or any other mental condition at the guilt or penalty phase of the trial.   The court granted the State's motion, and Appellant sought an extraordinary appeal on the issue, which was granted.   Ultimately, the issue was decided by the supreme court in State v. Reid, 981 S.W.2d 166 (Tenn.1998).³

The supreme court held that a defendant is required to file a pre-trial notice of his intent to present expert testimony regarding mental health condition as mitigation evidence at the sentencing phase of a capital trial.   On appeal, Appellant asserts that the Supreme Court's decision in Reid contravenes Rules 12.2 and 16 of the Tennessee Rules of Criminal Procedure.

This Court is without the authority to overrule the Supreme Court's decision in Reid. See Thompson v. State, 958 S.W.2d 156, 173 (Tenn.Crim.App.1997).   The Supreme Court has inherent power to make and enforce reasonable rules of procedure.  Reid, 981 S.W.2d at 170.   The Reid decision set forth the controlling law on this issue.   Moreover, as Appellant was one of the parties who litigated this issue in Reid, he is bound by the law of the case.   See State v. Jefferson, 31 S.W.3d 558, 560-62 (Tenn.2000).   This issue is without merit.

VI.

Testimony of Dr. Levy

Appellant filed a pretrial motion requesting that the court determine the proper scope of Dr. Bruce Levy's testimony at trial.   Specifically, Appellant requested that Dr. Levy be prohibited from testifying regarding the autopsies of the victims, as Dr. Levy did not perform the autopsies.   The autopsies were performed by assistant medical examiners who were no longer employed in the Davidson County Medical Examiner's Office.   D'Angelo Lee's autopsy was performed by Dr. Ann Bucholtz, and Gregory Ewing's autopsy was performed by Dr. George Mizell.   The court ruled that if the State laid the proper foundation at trial, the autopsy reports would be admissible as substantive evidence under Tennessee Rule of Evidence 803(6) as a business record, under Tennessee Rule of Evidence 803(8) as a public record, and under Tennessee Code Annotated section 38-7-110.   Further, the court ruled that if the State laid the proper foundation for Dr. Levy's testimony as an expert, Dr. Levy would be permitted to express his opinions in his field and to communicate to the jury that he relied upon the autopsy reports in forming his opinion.

Prior to Dr. Levy's testimony, Appellant objected, stating that because Dr. Levy did not personally retrieve any bullets from the bodies of the victims or see the same performed, the State could not establish the proper chain of custody of the bullets.   Appellant argued that there was, therefore, a break in the chain of custody of the bullets, and the court should not permit testimony regarding the bullets.   The State countered that the absence of one person's testimony in the chain of custody does not invalidate the chain.   Furthermore, the State argued that the court had previously ruled that Dr. Levy would be permitted to testify based on the business records and public records exceptions to the hearsay rule.   The court allowed the bullets into evidence and stated again that it would allow Dr. Levy to testify.   The court cautioned the State, however, that it must establish the chain of custody.

Dr. Levy testified that he did not perform the autopsies on the victims, but the office followed a definite procedure for recovering bullets from a body.   He testified that when they recover a bullet, they secure it, place it in a marked container, and lock it in an evidence locker.   Later, they turn the evidence over to the police.   He testified that the bullets recovered from Gregory Ewing were marked with the appropriate case identification number and had the initials G.M. on the envelope.   He could not testify as to the handwriting of the initials, but he noted that Dr. George Mizell performed Mr. Ewing's autopsy.   He further noted that the bullets recovered from Gregory Ewing were turned over to Sergeant Hunter of the Metro Police Department.⁴  Similarly, Dr. Levy testified that the bullets recovered from D'Angelo Lee were placed in a container with the appropriate case number and turned over to the Metro Police Department.⁵  Dr. Levy admitted that he did not watch the autopsies as they were performed;  therefore, he could not testify based on his personal knowledge that the bullets that had been placed into evidence were in fact bullets recovered from the victims.   He stated that his testimony was based upon procedures followed in the medical examiner's office.

Following Dr. Levy's testimony, Appellant renewed his previous objection.   The court ruled that based on the testimony from the police officers regarding retrieval of the bullets from the medical examiner's office and the testimony of Dr. Levy that the proper procedure for securing and identifying the bullets had been followed, the proper chain of custody had been established by the State.   The court further ruled there was no suspicion surrounding the authenticity of the bullets.

 The autopsy reports are admissible hearsay under Rules 803(6) and 803(8) of the Tennessee Rules of Evidence.   See also State v. Mario Hawkins, No. 01C01-9701-CR-00014, 1998 WL 352095, at *6-7 (Tenn.Crim.App. at Nashville, July 2, 1998).   Further the autopsy reports are admissible as a public document pursuant to Tennessee Code Annotated section 38-7-110.   The court did not err in allowing Dr. Levy to testify in this regard.

It is a fundamental rule of law that the State must establish an unbroken chain of custody in order to present physical proof into evidence.  State v. Scott, 33 S.W.3d 746, 760 (Tenn.2000);  State v. Holbrooks, 983 S.W.2d 697, 701 (Tenn.Crim.App.1998).   However, every witness that handled the evidence in the chain is not required to testify in order to establish a lack of tampering with the evidence.   Rather, the State is required to reasonably establish the identity of the evidence and its integrity.   Scott, 33 S.W.3d at 760;  Holbrooks, 983 S.W.2d at 701.   This Court reviews the trial court's decision on whether the State has established the proper chain of custody of physical evidence under an abuse of discretion standard.

Based upon the evidence in the record and the trial court's ruling on the same, we conclude that the trial court did not abuse its discretion in determining that the State had met its burden of establishing the proper chain of custody.   This issue is without merit.

VII.

Victim Impact Evidence

Appellant next argues on appeal that the court erred in allowing victim impact testimony to be admitted at the sentencing hearing through the testimony of the victim's mothers.   Specifically, Appellant argues that victim impact evidence is irrelevant at a capital sentencing hearing and therefore unconstitutional.   Appellant further contends that he was denied his right to confront the victims' children, as the mothers of the victims testified concerning the victims' children.

Victim impact evidence has been declared constitutional by the United States Supreme Court and the Tennessee Supreme Court.  Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991);  State v. Nesbit, 978 S.W.2d 872, 889 (Tenn.1998), cert. denied, 526 U.S. 1052, 119 S.Ct. 1359, 143 L.Ed.2d 520 (1999).   Moreover, Appellant's argument that he was denied the right to confront the victims' young children is similarly without merit.   First, Appellant made no objection to the testimony of the victims' mothers that their grandchildren were confused and disturbed by their fathers' respective deaths.   Appellant had the opportunity to rebut any evidence in this regard, but he chose not to do so.   His decision not to challenge the testimony of the victims' mothers on this issue does not constitute a denial of confrontation.   See Nesbit, 978 S.W.2d at 889-90 (citing Tenn.Code Ann. § 39-13-204(c) (1997) and explaining that the prosecution is allowed to introduce any evidence that is relevant to the issue of punishment, as long as the defendant is allowed a fair opportunity to rebut any hearsay statements so admitted).   Accordingly, this issue is without merit.

VIII.

[Deleted:  Sufficiency of the Evidence]

IX. and X.

[Deleted:  Sufficiency of Aggravating Evidence]

XI.

Constitutionality of Tennessee's Death Penalty Statute

Appellant contends that Tennessee's Death Penalty statute is unconstitutional in nineteen respects.   He admits, however, that under current case law, the statute meets constitutional standards.   Appellant fails to cite to any case law or other authority to support his contention that Tennessee's death penalty statute is unconstitutional.   In fact, he makes no argument whatsoever.   Under Rule 10(b) of the Rules of Court of Criminal Appeals, Appellant has waived this issue.   Moreover, as Appellant admits, the death penalty statute has repeatedly been held constitutional.   See e.g., State v. Keen, 31 S.W.3d 196, 233 (Tenn.2000), cert. denied, 532 U.S. 907, 121 S.Ct. 1233, 149 L.Ed.2d 142 (2001);  State v. Nesbit, 978 S.W.2d 872, 902 (Tenn.1998), cert. denied, 526 U.S. 1052, 119 S.Ct. 1359, 143 L.Ed.2d 520 (1999);  State v. Vann, 976 S.W.2d 93, 117 (Tenn.1998), cert. denied, 526 U.S. 1071, 119 S.Ct. 1467, 143 L.Ed.2d 551 (1999).

Appellant contends also that the aggravating factors applied in this case are unconstitutional.   He concedes, however, that the relevant factors are facially constitutional under current law.

Further, Appellant contends that aggravating factor (i)(2) is not applicable to Appellant because Appellant's prior felony conviction was imposed after he was arrested on the charges in this case.   Our supreme court reaffirmed in State v. Hodges, 944 S.W.2d 346, 357 (Tenn.1997), cert. denied, 522 U.S. 999, 118 S.Ct. 567, 139 L.Ed.2d 407 (1997), that if a prior conviction is received before the sentencing hearing, then factor (i)(2) is applicable.   Therefore, this issue is without merit.

Next, Appellant contends that factors (i)(6) and (i)(7) overlap and therefore do not sufficiently narrow the class of death-eligible defendants in murder cases.   Basically, Appellant argues that the factors have a similar purpose, to prevent killings that are exceedingly reprehensible, and therefore fail to narrow the class of death-eligible defendants in murder cases.   However, the United States Supreme Court has ruled that the proper question is whether the factors “genuinely narrow the class of persons eligible for the death penalty.”  Arave v. Creech, 507 U.S. 463, 474, 113 S.Ct. 1534, 1542, 123 L.Ed.2d 188, 200 (1993) (quoting Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983)).   Only if the aggravating circumstance applies to every defendant who has committed the particular crime does the aggravating factor fail to narrow the class of death-eligible defendants.   Arave, 507 U.S. at 474.   In this case, the proof at trial showed that Appellant planned to kidnap and rob the victims and that he planned to kill them because they knew him and could identify him.   Both factors (i)(6) and (i)(7) are applicable in this instance.   The fact that two aggravating factors are applicable to the same situation does not render them unconstitutional.

XII.

References to Other Witnesses' Testimony by the Prosecution During Cross-Examination

Appellant argues that it was error for the court to allow the State's attorney to cross-examine defense witnesses by referring to the testimony of other witnesses and to contrast their testimonies in an argumentative fashion.   Appellant concedes that he did not raise this issue in his motion for new trial, but he asserts that this Court should review this issue under the plain error doctrine.

To review an issue under the plain error doctrine, five factors must be present:  the record must clearly establish what occurred in the trial court;  a clear and unequivocal rule of law must have been breached;  a substantial right of the defendant must have been adversely affected;  the accused did not waive the issue for tactical reasons;  and consideration of the error is necessary to do substantial justice.  State v. Adkisson, 899 S.W.2d 626, 641 (Tenn.Crim.App.1994);  see also Tenn. R.Crim. P. 52(b).  This Court does not find that a clear and unequivocal rule of law was breached.   Further, the examples advanced by Appellant in his brief demonstrate that the prosecution was attempting to test the veracity of the witnesses' testimony.   These matters are within the sound discretion of the trial court, and we find no error.   Accordingly, this issue is without merit.

XIII.

Cumulative Effect of Errors

Finally, Appellant alleges that the cumulative effect of the errors in the trial court effectively denied him a fair trial.   Again, Appellant failed to raise this issue in his motion for new trial.   Issues not presented to the trial court in a motion for new trial are waived on appeal.  Tenn. R.App. P. 13.   Notwithstanding, this Court has found no merit in Appellant's issues on appeal;  therefore, there can be no cumulative effect.   This issue is without merit.

[XIV].

[Deleted:  Proportionality Review]

CONCLUSION

In accordance with Tenn.Code Ann. § 39-13-206(c), we have considered the entire record and conclude that the sentence of death has not been imposed arbitrarily, that the evidence supports the jury's finding of the statutory circumstances, that the evidence supports the jury's finding that the aggravating circumstances outweigh the mitigating circumstances beyond a reasonable doubt, and that the sentence is not disproportionate.   We have also reviewed all issues raised by the appellant.   We find no error.   As a result, the judgments of the trial court and the sentence of death imposed by the jury are AFFIRMED.

I concur in the conclusion of the majority that Davis'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.

FOOTNOTES

1.   The defendant was also convicted of two counts of felony murder, but the trial court merged these convictions with the premeditated first degree murder convictions.

2.   Harold Kirby testified that he had loaned Davis a nine millimeter handgun on the day before Davis was arrested for the murders of Ewing and Lee.

3.   Martin testified that she had heard Davis and Lee discussing the purchase of guns on the evening of February 27, 1996.   Later that evening, she saw Davis and Berry return to the apartment on Herman Street with assault rifles, green and gold tennis shoes, a coat, and a duffle bag.

4.   Martin testified that she had pending charges against her for murder, especially aggravated kidnapping, especially aggravated robbery, and eleven counts of aggravated robbery.   She said that she had not been promised anything for her testimony, but she hoped her testimony would warrant consideration in her pending cases.

5.   Davis later sought suppression of his statements on the basis that he was feeling ill, that he did not recall being read his Miranda rights, and that officers had “coerced” Davis by showing him the evidence that was being collected and by telling him that others had been making statements about the offenses.   The trial court denied the motion to suppress, and the Court of Criminal Appeals correctly affirmed the trial court's ruling.

6.   The trial court overruled objections to Dr. Levy's testimony made by defense counsel, and the Court of Criminal Appeals affirmed the trial court's ruling.

7.   Davis admitted that he was involved with the “Gangster Disciples” and that he had been selling cocaine since he was 13 or 14 years of age.

8.   Although the trial court granted interlocutory review of its decision, the Court of Criminal Appeals declined to grant the interlocutory appeal.  Tenn. R.App. P. 9.

9.   At the time of this trial, attorneys in Tennessee were governed by the Code of Professional Responsibility.   Effective March 1, 2003, the Code of Professional Responsibility was replaced by the current Tennessee Rules of Professional Conduct.  Tenn. R. Sup.Ct. 8, Rules of Professional Conduct.   Since the new rules were given prospective application, our decision in this case deals only with the law as it existed at the time of trial.

10.   Although not dispositive in this case, we reiterate the importance for District Attorneys, Public Defenders, law firms, and all other legal agencies to implement effective, written screening procedures to avoid the problems related to conflicts of interests.   As we observed in Clinard, such screening mechanisms should consider:  the structural organization of the law firm or office, the likelihood of contact between an attorney with a conflict of interest and the personnel involved in the ongoing representation, and the existence of rules that prevent the attorney with the conflict of interest from accessing files or information pertaining to a particular case or from sharing legal fees pertaining to that case.  46 S.W.3d at 184.

11.   Although the trial court granted an interlocutory appeal, the Court of Criminal Appeals denied interlocutory review because defense counsel refused to consent to the unsealing of the trial court's order and the transcript of the hearing.   See Tenn. R.App. P. 9(c).

12.   Davis has filed a pro se supplemental brief alleging that there is a conflict of interest in that his counsel are intentionally waiving this issue and arguing that the order and transcript must be unsealed.   We have recognized, however, that a defendant in a criminal case may not proceed pro se while simultaneously being represented by counsel.   See Wallace v. State, 121 S.W.3d 652, 655 n. 2 (Tenn.2003).   Accordingly, Davis's contentions cannot be reviewed in this appeal and must await the appropriate proceedings.

13.   Accordingly, Davis's reliance on two unpublished decisions that did not involve capital sentencing hearings is misplaced.

1.   Appellant had been hospitalized for two days at Vanderbilt Hospital for anemia as a result of a spider bite approximately ten days prior to his arrest.

2.   This Court had previously adopted the voluntariness test by adopting the Cipriano test in State v. Readus, 764 S.W.2d 770, 774 (Tenn.Crim.App.1988).

3.   The Appellant's application for permission to appeal to the supreme court was consolidated with the application of Paul Dennis Reid on the same issue.   The opinion of the court was filed and published as State v. Reid, 981 S.W.2d 166 (Tenn.1998).

4.   Sergeant Hunter had previously testified that he retrieved bullets that were recovered from Mr. Ewing's autopsy from the Davidson County Medical Examiner's office.

5.   Officer Merrill had previously testified that he retrieved the bullets that were recovered during the autopsy of D'Angelo Lee from the medical examiner's office.

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.

E. RILEY ANDERSON, J.

ADOLPHO A. BIRCH, JR, J., dissents.

Christopher Anthony Davis