State v. Ivy

IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
November 9, 2005 Session

STATE OF TENNESSEE v. DAVID IVY

Automatic Appeal from the Court of Criminal Appeals
Criminal Court for Shelby County
No. 01-12388 Joseph B. Dailey, Judge

No. W2003-00786-SC-DDT-DD - Filed February 28, 2006

The defendant, David Ivy, was convicted of premeditated first degree murder and was sentenced to
death. In imposing a death sentence, the jury found that two aggravating circumstances, i.e., the
defendant was previously convicted of one or more felonies whose statutory elements involved the
use of violence to the person and the murder was committed for the purpose of avoiding, interfering
with, or preventing a lawful arrest or prosecution of the defendant or another, had been established
beyond a reasonable doubt. Tenn. Code Ann. § 39-13-204(i)(2) and (6) (Supp. 1999). In addition,
the jury determined that the evidence of aggravating circumstances outweighed the evidence of
mitigating circumstances beyond a reasonable doubt. Id. at (c). The Court of Criminal Appeals
affirmed the convictions and the death sentence.

After the appeal was docketed in this Court, we entered an order identifying eight issues for oral
argument.1 Having reviewed the record and applicable authority, we now hold that: 1) the evidence
was sufficient to support the first degree murder conviction; 2) the trial court did not err in
impaneling an anonymous jury; 3) the trial court properly ruled that the victim’s statements were
admissible under the “forfeiture by wrongdoing” hearsay exception; 4) the evidence supported the
jury’s findings that the two aggravating circumstances were proven beyond a reasonable doubt; 5)
the trial court erred during the sentencing phase in instructing the jury that two of the five prior
felony convictions relied on by the prosecution involved violence to a person, but the error was
harmless beyond a reasonable doubt; 6) the trial court erred in allowing the prosecution to introduce
the defendant’s prior indictment for first degree murder in the sentencing phase of the trial where the
defendant had been convicted of second degree murder, but the error did not affect the outcome; 7)
the trial court erred in ruling that defense counsel could not argue residual doubt as a mitigating
circumstance during the sentencing phase, but the error did not affect the outcome; and 8) the
evidence of aggravating circumstances outweighed the evidence of mitigating circumstances beyond
a reasonable doubt, and the death sentence was not arbitrary or disproportionate. We also agree with

1
“Prior to the setting of oral argument, the Court shall review the record and briefs and consider all issues
assigned. The Court may enter an order designating those issues it wishes addressed at oral argument.” Tenn. Sup. Ct.
R. 12.2
the Court of Criminal Appeals’ conclusions with respect to the remaining issues, the relevant
portions of which are included in the appendix. Thus, the Court of Criminal Appeals’ judgment is
affirmed.

Tenn. Code Ann. § 39-13-206(a)(1); Judgment of the Court of Criminal Appeals Affirmed

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

Robert Wilson Jones, Public Defender; Tony N. Brayton, Assistant Public Defender; and Garland
Ergüden, Assistant Public Defender, Memphis, Tennessee, for the Appellant, David Ivy.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Angele M.
Gregory, Assistant Attorney General; William L. Gibbons, District Attorney General; Amy Weirich,
Assistant District Attorney General; and Gerald Harris, Assistant District Attorney General, for the
Appellee, State of Tennessee.

OPINION

On June 8, 2001, the victim, LaKisha Thomas (“Thomas”), was shot to death while sitting
in her car in the parking lot of an apartment complex in Memphis, Tennessee. On June 27, 2001,
Thomas’s estranged boyfriend, David Ivy (“Ivy”), was arrested for premeditated first degree murder.
After a jury trial, Ivy was convicted of premeditated first degree murder and was sentenced to death.
The evidence presented during the guilt and penalty proceedings is summarized below.

Guilt Phase

In June of 2000, the defendant, David Ivy, was released from prison and placed on parole.
Thereafter, he began dating the victim, LaKisha Thomas.

The relationship was marked by Ivy’s violence against Thomas. For example, Jackie Bland
(“Bland”), the victim’s cousin, testified that she once saw Ivy pull Thomas’s hair and that on another
occasion, Thomas told her that Ivy had kicked in her door and broken her furniture. Deborah Kelley
(“Kelley”), another cousin, testified that she also saw Ivy grab Thomas by her hair; when Kelley
intervened, Ivy said, “I told you about playing with me, bitch.” Andrea Hunt (“Hunt”) testified that
Thomas told her that Ivy “had her on 23 and 1,” because he would only allow her to leave her
apartment one hour per day.

In May of 2001, Officer Alvin Clark of the Memphis Police Department responded to a call
at Thomas’s apartment on Millbranch Road. Thomas told Officer Clark that Ivy had forced his way
into her apartment and threatened to kill her. Thomas said that Ivy had been threatening to harm her

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because she wanted to end the relationship. Officer Clark testified that Thomas was “very shaken
up and afraid.”

Similarly, on the morning of June 6, 2001, Officer Steve Cummings responded to a call at
Jackie Bland’s apartment, where he found a bleeding and bruised Thomas. Thomas told Officer
Cummings that her “ex-boyfriend,” Ivy, had attacked her at a nearby convenience store and had
struck her in the head “with a black Uzi type pistol.” Thomas told Officer Cummings that Ivy, who
was also known as “Day Day,” told her “he wasn’t going back to jail” and “he would . . . kill her.”
Officer Cummings testified that Thomas had a two-inch laceration on her head, bruising on her
chest, and a black eye on the right side of her face.

Deborah Kelley and Jackie Bland also saw the victim after she was attacked on June 6, 2001.
According to Kelley, she arrived at Bland’s apartment and found that Thomas was bleeding and
bruised. Bland said, “Look what [Ivy] did . . . .” Kelley testified that Thomas told her she had been
attacked by Ivy and that Ivy wanted to kill her. Bland called the police. After Officer Cummings
responded to the call, Kelley and Bland drove Thomas to the Criminal Justice Center to swear out
a warrant against Ivy. While en route, they saw Ivy following them in his car. Kelley pulled over
and called police, but Ivy was gone when the police arrived. The women then continued to the
Criminal Justice Center where Thomas swore out a warrant for aggravated assault against Ivy.2

After leaving the Criminal Justice Center, Thomas, Kelley, and Bland drove to a liquor store.
Ivy, who again had been following them, appeared in the parking lot and approached the car.
According to Bland, Ivy told Thomas, “Bitch, if you put the police in my business, I’m going to kill
you.” Similarly, when Kelley returned to the car from the liquor store, Thomas told her that Ivy
threatened to kill her “if she put the police in his business.”

Ivy’s conduct in the liquor store parking lot was captured by a surveillance camera and was
witnessed by two employees. One employee, Terrance Hibler, heard Ivy tell Thomas that “it wasn’t
over” and that “[h]e was going to get her.” According to Hibler, Thomas, who was “shaking real
bad,” said, “I know he’s going to kill me.” Similarly, another employee, Frank Sullivan, noticed that
Thomas was “shaking” and “bruised pretty badly.” He too heard Thomas say that Ivy was going to
kill her. The police were called; when they arrived at the liquor store, Thomas was taken to the
Criminal Justice Center, where she obtained an ex parte order of protection against Ivy.3

Two days later, on the morning of June 8, 2001, Thomas and Hunt were outside Bland’s
apartment complex in Thomas’s car. According to Hunt, Ivy ran up to the car while wearing a black
cap and a towel over part of his face. Ivy pulled the towel from his face and said, “Oh, bitch, you
want me dead, huh?” He shot Thomas five times and fled. Bland, who was outside her apartment,

2
Officer Cummings testified that a warrant charging the defendant with aggravated assault was issued the next
day.

3
Although a hearing was scheduled for June 21, 2001, attempts to serve the defendant with the notice of the
ex parte order on June 15, June 19, and June 20 were unsuccessful.

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likewise saw someone wearing a black hat, sunglasses, and a towel over his mouth run up to the car
and “open fire.” Although the shooter’s face was partly covered with a towel, Bland said that he
resembled Ivy. Similarly, Deborah Kelley, who was inside Bland’s apartment, heard a gunshot
followed by screaming. According to Kelley, Bland said, “Call the police. Day Day shot [the
victim].” Kelley then heard the noise of tires in the parking lot.

Gregory Kelley, the brother of Deborah Kelley and Jackie Bland, was working as a
maintenance supervisor at the apartment complex when he heard gunshots and screaming. He ran
to a green car and saw that Thomas had been shot. He pulled Thomas from the car and applied
pressure on her wounds while shouting for someone to call 911. He then saw a “white car speed up
out of the apartments” that resembled Ivy’s car.

Officer Alvin Clark arrived at the scene and saw a white car speeding from the apartment
complex. He found that the victim had no pulse. Spent shell casings, bullet fragments, and live
rounds were found at the scene.

Dr. O. C. Smith, the medical examiner for Shelby County, Tennessee, conducted an autopsy
on the victim. The victim had five gunshot wounds that entered the right side of her body from a
distance of no more than two feet away. Although Dr. Smith could not determine the sequence of
the gunshots, he concluded that two of the gunshots struck the victim’s heart and that the gunshots
affected all of the victim’s major organs except her spleen. Dr. Smith concluded that the multiple
gunshots caused the victim’s death and that the two gunshots to the victim’s heart would have
“ended her life the quickest.”

Ivy was arrested on June 27, 2001, and he was incarcerated in the Shelby County Jail pending
trial. He escaped from jail in May of 2002. Two months later, Ivy was captured in San Diego,
California, after diving through a window and fleeing from police officers for several blocks.

After the prosecution rested its case in chief, Vickie Crawford testified on the defendant’s
behalf. She stated that she had lived with Ivy and that Ivy was the father of her daughter. She
learned that Ivy was dating Thomas in October of 2000, but she had heard of no problems in their
relationship.

The jury convicted Ivy of premeditated first degree murder. The trial then moved into the
sentencing phase to determine the punishment.

Sentencing Phase

The prosecution presented the testimony of the victim’s sister, Elaine Thomas. Ms. Thomas
testified that the victim was survived by four children under the age of ten. The children were
separated from each other after the victim was murdered and their school work suffered. According
to Ms. Thomas, the victim had been the “backbone” of the family, and her death affected the entire
family.

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 The prosecution also presented evidence of Ivy’s indictments and convictions for five prior
felony offenses. In 1993, Ivy was indicted for premeditated first degree murder and felony murder,
and he pleaded guilty to second degree murder. Ivy was also indicted for especially aggravated
robbery and three counts of aggravated assault, and he pled guilty to these offenses as well.

In mitigation, Ruby Ivy, the defendant’s oldest sister, testified that her brother was born in
1972 and was one of nine children. Ms. Ivy testified that she had been responsible for raising her
brother because their mother had health problems. She stated that Ivy was “a good guy” who could
“get along with anybody.” She said that Ivy loved children and was a talented singer. She
acknowledged that she knew about her brother’s prior convictions. She asked the jury not to
sentence her brother to death.

Vickie Crawford testified that she, Ivy, and the victim had been friends. She said that she
maintained contact with Ivy even when Ivy was imprisoned for second degree murder. She intended
to continue her relationship with Ivy since he was her daughter’s father. She asked the jury to spare
Ivy so that their daughter would get to know him.

Other witnesses testified in mitigation. William Fletcher, a former neighbor of the Ivy
family, stated that Ivy was a “pretty nice kid” who always treated him with respect. Gladys Hobson,
another former neighbor, testified that decisions of “life and death” should not be made by man.
Similarly, Kim Mackey, an acquaintance of the victim and David Ivy, testified that “life and death
are [not] in our hands.”

After deliberating, the jury imposed a death sentence. The jury found that the two
aggravating circumstances relied on by the prosecution, i.e., the defendant was previously convicted
of one or more felonies whose statutory elements involved the use of violence to the person and the
murder was committed for avoiding, interfering with, or preventing a lawful arrest or prosecution
of the defendant or another, had been proven beyond a reasonable doubt. Tenn. Code Ann. § 39-13-
204(i)(2) and (6). The jury also found that the two aggravating circumstances outweighed the
evidence of mitigating circumstances beyond a reasonable doubt. Id. at (c).

On appeal, the Court of Criminal Appeals affirmed the defendant’s convictions and death
sentence. The defendant’s appeal was then automatically docketed in this Court.

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 ANALYSIS

Guilt Phase Issues

Sufficiency of Evidence

Ivy argues that the evidence does not support the first degree murder conviction because there
was insufficient evidence of his identity as the perpetrator. The State maintains that the evidence
was sufficient to support the conviction.

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 (1979). We are required to afford the prosecution the
strongest legitimate view of the evidence in the record, as well as all reasonable and legitimate
inferences which may be drawn therefrom. See 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 the
factual issues are resolved by the trier of fact. Id.; see also State v. Cole, 155 S.W.3d 885, 897
(Tenn. 2005); 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) (Supp. 1998). 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.” Id. at (d). 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) (1997).

We agree with the Court of Criminal Appeals’ conclusion that the evidence was sufficient
to support the first degree murder conviction. The evidence showed that Ivy had been physically and
mentally abusive to Thomas throughout their relationship. When Thomas tried to end the
relationship, Ivy’s violence against her escalated. On June 6, 2001, Ivy beat Thomas with a pistol,
followed her as she drove to and from the Criminal Justice Center in Memphis, confronted her in
the parking lot of a liquor store, and threatened to kill her. His actions were filmed by a surveillance
camera and his numerous threats were heard by several witnesses. Two days later, on June 8, 2001,
Ivy shot Thomas five times from close range as she sat helpless in her car. A passenger in the car,
Andrea Hunt, knew Ivy and identified him as the shooter. Another witness, Jackie Bland, who also
knew Ivy, stated that Ivy resembled the shooter. Several witnesses saw a white car resembling Ivy’s
speeding from the scene.

Ivy nonetheless argues that the evidence was insufficient because the testimony of Andrea
Hunt conflicted with that of Jackie Bland; in particular, Ivy asserts that the witnesses disagreed as
to whether the perpetrator had been wearing sunglasses. The jury’s role, however, is to weigh the
credibility of the witnesses and to resolve any factual conflicts in the evidence. Our sole task is to
review the legal sufficiency of the evidence. Having done so under the standards of review

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explained above, we have concluded that the evidence was sufficient to support the conviction for
first degree murder.

Anonymous Jury

Ivy next contends that the trial court violated his right to a fair and public trial by an impartial
jury by impaneling an anonymous jury. Ivy argues that the trial court had no authority for using an
anonymous jury and that the procedure was tantamount to telling the jury that he was guilty of the
charged offense. See U.S. Const. amend. V, VI, and XIV; Tenn. Const. art. I, § 6. The State
maintains that the trial court did not err in impaneling an anonymous jury.

We begin our review of this issue by closely examining the record. Prior to trial, the
prosecution requested that the trial court impanel an anonymous jury. The prosecution asserted that
a witness had been shot at (and her baby injured) following Ivy’s preliminary hearing and that a
relative of Ivy’s had been charged in that incident. The prosecution also asserted that Ivy was a
danger to jurors because he had previously escaped from custody.

In granting the prosecution’s request to impanel an anonymous jury, the trial court weighed
“the risk of prejudice to the defendant” against “the [jury’s] heightened level of concern and fear . . .
for their safety or the safety of their families.” The trial court emphasized the following:

First and foremost the alleged motive for this murder to have
occurred . . . and that is to keep the victim of this murder from
testifying against this defendant and thereby send him back to prison.
And then the alleged act by the relative of this defendant. . . . That
resulted in an indictment that’s now pending in this division of court
that is an act that was allegedly perpetrated against a witness in this
case.

The trial court concluded that “to place [jurors] in danger or their families in danger or potentially
place them in danger would simply not be very responsible on the part of the system.” The Court
of Criminal Appeals affirmed the ruling.

Whether an anonymous jury may be impaneled in a criminal case is an issue of first
impression for this Court. As we begin our review, we find little assistance in Tennessee statutes
and procedural rules. For instance, Tennessee Code Annotated section 40-18-104 (2003) states only
that “[t]he names of the jurors are written on separate scrolls, and placed in a box or other receptacle,
and drawn out by . . . the judge, or some person agreed upon by the district attorney general and the
defendant.” Similarly, Rule 24(g) of the Tennessee Rules of Criminal Procedure provides that
“[u]pon request the parties shall be furnished with a list of members of the jury panel, containing the
following information with respect to each: name, address, occupation, name of spouse, occupation
of spouse.” We can find no statute or rule, however, that either permits or proscribes the use of an
anonymous jury.

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 In turning to other jurisdictions for guidance, it appears that nearly every court that has
addressed the issue has recognized that anonymous juries may be impaneled in an appropriate case
without violating a defendant’s constitutional rights under the United States Constitution.4 See
United States v. Talley, 164 F.3d 989, 1001 (6th Cir. 1999); United States v. Edmond, 52 F.3d 1080,
1090 (D.C. Cir. 1995); United States v. Ross, 33 F.3d 1507, 1519 (11th Cir. 1994); United States
v. Crockett, 979 F.2d 1204, 1215 (7th Cir. 1992); United States v. Scarfo, 850 F.2d 1015, 1021 (3d
Cir. 1988); United States v. Barnes, 604 F.2d 121, 140 (2d Cir. 1979); see also State v. Samonte, 928
P.2d 1, 12-17 (Haw. 1996); People v. Williams, 616 N.W.2d 710, 712-14 (Mich. Ct. App. 2000);
State v. Bowles, 530 N.W.2d 521, 529-31 (Minn. 1995); State v. Tucker, 657 N.W.2d 374, 379-82
(Wis. 2003).

These courts have recognized that impaneling an anonymous jury implicates a number of
competing interests. The Second Circuit has said, for instance, that the decision to impanel an
anonymous jury requires a court to “balance the defendant’s interest in conducting meaningful voir
dire and in maintaining the presumption of innocence, against the jury member’s interest in
remaining free from real or threatened violence and the public interest in having the jury render a fair
and impartial verdict.” United States v. Amuso, 21 F.3d 1251, 1264 (2d Cir. 1994); see also Talley,
164 F.3d at 1001; Edmond, 52 F.3d at 1093; Samonte, 928 P.2d at 13.

In achieving this balance, many courts have adopted a two-prong framework for determining
when an anonymous jury is appropriate. The first prong is whether there is a strong reason to believe
that the jury needs protection. See Talley, 164 F.3d at 1001; United States v. Paccione, 949 F.2d
1183, 1192 (2d Cir. 1991). A trial court may consider a defendant’s alleged participation in
organized crime, a defendant’s alleged participation in a group with the capacity to threaten jurors,
a defendant’s past efforts to interfere with the judicial process, the defendant’s possible punishment
if convicted, and the pervasiveness of trial publicity that may reveal the jurors’ names and expose
them to public scrutiny. See Edmond, 52 F.3d at 1091; Ross, 33 F.3d at 1520. The second prong
of the framework is whether reasonable precautions will minimize prejudice to the defendant and
ensure that fundamental rights are protected. Talley, 164 F.3d at 1001. Such precautions may
include enhanced voir dire, instructions to the jury as to neutral reasons for their anonymity, and
instructions to the jury on the presumption of innocence. See Edmond, 52 F.3d at 1093 (jury was
instructed that anonymity was routine); Talley, 164 F.3d at 1002 (jury was instructed that anonymity
was due to media interest); Crockett, 979 F.2d at 1216 (jury was instructed on the presumption of
innocence).

Based on these principles and the overwhelming weight of authority, we believe that
anonymous juries may be impaneled under Tennessee law. As discussed earlier, no provision

4
Indeed, several states have authorized anonymous juries or have adopted procedures for the routine use of
anonymous juries through legislation. See, e.g., Del. Code Ann. § 4513(a) (1994).

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forbids the use of anonymous juries in Tennessee. Moreover, affording the trial court this discretion
is consistent with the broad discretion afforded trial courts in matters concerning jury selection.
Finally, given the responsibilities and burdens placed upon jurors in our judicial system, we agree
that adopting the two-prong framework used in other jurisdictions allows the trial court to preserve
the safety and sanctity of the jury as required in appropriate cases while at the same time preserving
the individual rights of the accused.

In applying the first prong to this case, we conclude that the trial court did not abuse its
discretion in finding that there were strong reasons to protect the jury. The trial court found that an
apparent motive in committing the charged offense included Ivy’s desire to prevent the victim from
going to police. Although the trial court also found that a relative of Ivy’s had been indicted for
shooting at a witness in this case, we give this finding relatively little weight since there was no
evidence in the record in this regard. We do note, however, that Ivy had escaped on at least one
occasion while in custody for this offense. Moreover, courts have held that the defendant need not
have a past history of jury tampering and that a history of violence and attempting to obstruct justice
may support a determination that impaneling an anonymous jury is appropriate. See Edmond, 52
F.3d at 247; United States v. Aulicino, 44 F.3d 1102, 1116 (2d Cir. 1995); Crockett, 979 F.2d at
1216; Paccione, 949 F.2d at 1993; Scarfo, 850 F.2d at 1017. In short, the evidence supports the trial
court’s finding.

In applying the second prong to this case, we note that the trial court did not give a specific
instruction to the jury on the issue of its anonymity. Although this may be a preferred practice, we
do not believe the absence of an instruction is controlling. Indeed, one may argue that a specific
instruction as to anonymity simply calls the jury’s attention to what it may have believed to be the
accepted procedure. In any event, the record reveals that the trial court conducted a lengthy voir dire
and allowed both parties to question the prospective jurors extensively. Moreover, the trial court
instructed the jury that Ivy was presumed innocent, that the prosecution had the burden of
establishing guilt beyond a reasonable doubt, and that the indictment was not evidence. Since the
jury is presumed to follow jury instructions absent evidence to the contrary, we conclude that these
instructions protected against the possibility of prejudice. See Edmond, 52 F.3d at 248; Crockett,
979 F.2d at 1216; United States v. Vario, 943 F.2d 236, 241 (2d Cir. 1991); Samonte, 928 P.2d at
11.

Accordingly, we hold that Ivy is not entitled to relief based on the trial court’s decision to
impanel an anonymous jury.

Admission of Victim’s Statements

Ivy next argues that the trial court committed reversible error in admitting statements made
by Thomas under Rule 804(b)(6) of the Tennessee Rules of Evidence. He argues that Rule

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804(b)(6), which allows the admission of “[a] statement offered against a party that has engaged in
wrongdoing that was intended to and did procure the unavailability of the declarant as a witness,”
does not apply where the declarant is the victim of the offense being tried. Ivy also argues that the
admission of Thomas’s statements violated his right of confrontation under the United States and
Tennessee Constitutions.

The State argues that the trial court properly ruled that Thomas’s statements were admissible
pursuant to Rule 804(b)(6). The State maintains that the rule does not require the declarant to be an
actual witness and that the defendant’s intent need not have been solely to prevent the declarant from
testifying. The State further argues that the Court of Criminal Appeals erred in finding that the
admission of the statements was error, albeit harmless, because the appellate court substituted its
findings for the factual findings made by the trial court.

We begin our review by examining the record to place the numerous issues and sub-issues
into context. Prior to trial, Ivy filed a motion asking the trial court to rule on the admissibility of
hearsay statements Thomas made to police and other witnesses. The prosecution argued that
Thomas’s statements were admissible under Rule 804(b)(6) of the Tennessee Rules of Evidence
because Ivy’s wrongdoing resulted in Thomas’s unavailability to testify as a witness against him.
In particular, the prosecution reasoned that Ivy killed the victim to prevent her from testifying against
him in a trial for the aggravated assault on June 6, 2001, or in a hearing to revoke his parole based
on the aggravated assault.

After a hearing, the trial court ruled that the following statements would be admitted: 1)
Thomas’s statement that Ivy had pulled her hair; 2) Thomas’s statements about Ivy’s violent acts
when he moved out of her apartment; 3) Thomas’s statements about the aggravated assault that
occurred on June 6, 2001; and 4) Thomas’s statements in the parking lot of the liquor store. The trial
court found that the statements were relevant “to show the motive of the killing and to . . . paint an
accurate picture of the hostility that might have existed in this relationship by the defendant toward
the victim and what his intent would have been during the course of the relationship.” In finding that
Thomas’s statements were admissible under Rule 804(b)(6), the trial court reasoned:

I think that the hearsay exception that was cited is also applicable.
. . . Following the State’s theory, [Ivy] wasn’t taking these actions to
prevent her from being a witness in this murder case obviously. It
would have been to prevent her from being a witness at the parole
violation hearing and/or aggravated assault trial that might have come
about. . . . But . . . if it were appropriate to apply this hearsay
exception to those instances, then the greater harm would be to kill
her and have this murder case resulting. So it would not be logical

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 to say that it would apply to the lesser but not the greater. So it
would apply also.

(Emphasis added).

On appeal, the Court of Criminal Appeals concluded that the trial court erred in admitting
the statements under Rule 804(b)(6). The appellate court found that a preponderance of the evidence
did not establish that Ivy acted with the intent to procure Thomas’s absence as a witness. The court,
however, held that the error was harmless because of the admissibility of some of Thomas’s
statements under another hearsay exception, excited utterances, and the overall strength of the
evidence against Ivy.

As noted above, Rule 804(b)(6), which is often called the “waiver by misconduct” or
“forfeiture by misconduct” rule, allows the admission of “[a] statement offered against a party that
has engaged in wrongdoing that was intended to and did procure the unavailability of the declarant
as a witness.” Since this Court has never addressed or applied Rule 804(b)(6), and since the rule
itself contains no express parameters or limitations, we turn to other jurisdictions for guidance.

In addressing rules nearly identical to Rule 804(b)(6) of the Tennessee Rules of Evidence,
federal courts have universally held that witnesses’ statements are admissible “where the defendant
has wrongfully procured the witnesses’ silence through threats, actual violence or murder.” United
States v. Dhinsa, 243 F.3d 635, 651 (2d Cir. 2001); see United States v. Garcia-Meza, 403 F.3d 364,
370 (6th Cir. 2005); United States v. Cherry, 217 F.3d 811, 814 (10th Cir. 2000); United States v.
Emery, 186 F.3d 921, 926 (8th Cir. 1999); United States v. White, 116 F.3d 903, 911 (D.C. Cir.
1997); United States v. Houlihan, 92 F.3d 1271, 1279 (1st Cir. 1996). As one court has explained:

It is hard to imagine a form of misconduct more extreme than the
murder of a potential witness. Simple equity supports a forfeiture
principle, as does [] common sense. . . . The defendant who has
removed an adverse witness is in a weak position to complain about
losing the chance to cross examine him. And where a defendant has
silenced a witness through the use of threats, violence or murder,
admission of the victim’s prior statements at least partially offsets the
perpetrator’s rewards for his misconduct.

White, 116 F.3d at 911 (emphasis added).

In emphasizing that defendants may not benefit from their own wrongdoings in causing the
unavailability of a witness, a majority of courts have agreed on the following principles. First, Rule
804(b)(6) does not limit a declarant’s statements to past events or prior offenses the declarant would

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have testified about. Dhinsa, 243 F.3d at 652. Indeed, the plain language of Rule 804(b)(6) “refers
to the intent of a party to procure the unavailability of the witness, and does not . . . limit the subject
matter of the witness testimony . . . .” Dhinsa, 243 F.3d at 652. As the Eighth Circuit said in Emery:

[The defendant] contends that these principles should apply only in
a trial on the underlying crimes about which he feared [the victim]
would testify, not in a trial for murdering her. We believe that both
the plain meaning of Fed. R. Evid. 804(b)(6) and the manifest object
of the principles just outlined mandate a different result. The rule
contains no limitation on the subject matter of the statements that it
exempts from the prohibition on hearsay evidence.

Emery, 186 F.3d at 926.

Second, Rule 804(b)(6) is not limited to those cases in which a formal charge or judicial
proceeding was pending against a defendant when the declarant’s statements were made, nor cases
in which a defendant’s sole intent or motivation was to procure the declarant’s absence. See Dhinsa,
243 F.3d at 653-54. Instead, the purpose of Rule 804(b)(6) dictates that it applies where the
defendant “was motivated in part by a desire to silence the witness.” Houlihan, 92 F.3d at 1279; see
also Garcia-Meza, 403 F.3d at 370.

We conclude that these principles are consistent with the purpose and the plain language of
Rule 804(b)(6) of the Tennessee Rules of Evidence. To ensure that the rule is properly applied,
however, we further adopt the requirement that the trial court conduct a hearing outside the presence
of the jury to determine whether a declarant’s statements are admissible. Dhinsa, 243 F.3d at 653-
54. In such a hearing, in order for the statements to be admissible, the trial court must find that a
preponderance of the evidence establishes 1) that the defendant was involved in or responsible for
procuring the unavailability of the declarant; and 2) that a defendant’s actions were intended, at least
in part, to procure the absence of the declarant.

Applying these principles to this case, we hold that the trial court correctly determined that
Thomas’s statements were admissible under Rule 804(b)(6) of the Tennessee Rules of Evidence.
The preponderance of the evidence supported the trial court’s finding that Ivy killed Thomas to
prevent her from contacting police about his aggravated assault on June 6, 2001. Ivy followed
Thomas as she drove to and from the Criminal Justice Center in Memphis, Tennessee, to swear out
a warrant against him that was never served. He killed her only two days later. Given these facts,
we disagree with the Court of Criminals Appeals’ view that Rule 804(b)(6) required that Ivy had to
know about the issuance of an arrest warrant for the aggravated assault; moreover, there was no
requirement that Ivy’s sole intention had to be preventing Thomas from testifying against him in a
proceeding based on the aggravated assault.

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 Contrary to Ivy’s argument, the trial court’s application of Rule 804(b)(6) did not violate his
constitutional right to confrontation under the United States or Tennessee Constitutions. In
Crawford v. Washington, 541 U.S. 36, 68 (2004), the United States Supreme Court held that a
declarant’s statements that are testimonial in nature are not admissible under the Confrontation
Clause unless 1) the declarant is unavailable and 2) the defendant had a prior opportunity to cross-
examine the declarant. The Court emphasized, however, the rule of forfeiture by wrongdoing
“extinguishes confrontation claims on essentially equitable grounds.” Id. at 62. Given that Rule
804(b)(6) of the Tennessee Rules of Evidence is identical in language and purpose to the federal rule,
we see no reason to reach a different result under the confrontation clause of the Tennessee
Constitution.

Sentencing Phase Issues

Sufficiency of Aggravating Circumstances

Ivy argues that the evidence was insufficient to support the two aggravating circumstances
applied by the jury in imposing the death penalty. The State maintains that the evidence was
sufficient.

Our analysis requires that we view the evidence in a light most favorable to the State and
determine whether a rational trier of fact could have found the existence of the aggravating
circumstance beyond a reasonable doubt. State v. Reid, 164 S.W.3d. 286, 314 (Tenn. 2005). We
will address the two aggravating circumstances applied in this case in turn. Tenn. Code Ann. §§ 39-
13-204(i)(2) and (6) (Supp. 1999); see also Tenn. Code Ann. § 39-13-206(c)(1)(B) (Supp. 1999)
(requiring review of aggravating circumstances found by the jury).

First we consider the aggravating circumstance in Tennessee Code Annotated section 39-13-
204(i)(2), 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. Reid, 164
S.W.3d at 314-15; State v. Davis, 141 S.W.3d 600, 618-19 (Tenn. 2004).

In this case, the prosecution established this aggravating circumstance by relying on Ivy’s
prior convictions for second degree murder, especially aggravated robbery, and aggravated assault.
The trial court correctly found that second degree murder and especially aggravated robbery were
felonies whose statutory elements involved the use of violence to a person. Indeed, second degree
murder requires a knowing killing of another, Tenn. Code Ann. § 39-13-210 (Supp. 1990), and
especially aggravated robbery requires a robbery accomplished with a deadly weapon where the
victim suffered serious bodily injury. Tenn. Code Ann. § 39-13-403(a) (1989). In addition, the trial

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court determined that Ivy’s three prior convictions for aggravated assault involved the use of
violence to a person. Tenn. Code Ann. § 39-13-102(a) (Supp. 1993); see State v. Sims, 45 S.W.3d
1, 10-12 (Tenn. 2001) (where the statutory elements reveal that a prior offense may be committed
with or without violence to a person, the trial court must determine if the offense involved violence
to a person).

We conclude that the evidence introduced before the jury was sufficient to support the jury’s
application of this aggravating circumstance beyond a reasonable doubt.5

We next consider Tennessee Code Annotated section 39-13-204(i)(6), which applies where
a “murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest
or prosecution of the defendant or another.” Section 204(i)(6) focuses on a defendant’s motives in
committing a murder and is not limited to the killings of eyewitnesses or those witnesses who know
or can identify the defendant. See Reid,164 S.W.3d at 315; Terry v. State, 46 S.W.3d 147, 162
(Tenn. 2001). Indeed, 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. Reid, 164 S.W.3d at 315; see also Davis, 141 S.W.3d at 618-19.

Here, the evidence showed that Ivy was on parole when he attacked Thomas near a
convenience store on June 6, 2001. He later followed Thomas as she drove to the Criminal Justice
Center to swear out a warrant, and he threatened to kill her if she “got the police in his business.”
Only two days later, Ivy shot Thomas five times at close range. In sum, the evidence was sufficient
to support the jury’s determination that the murder was committed for the purpose of avoiding,
interfering with, or preventing a lawful arrest or prosecution beyond a reasonable doubt.6

Jury Instructions on Prior Violent Felonies

Ivy next argues that the trial court erred in instructing the jury that he had prior convictions
for felonies whose statutory elements involved violence to a person. He asserts that the trial court
violated the Sixth and Fourteenth Amendments to the United States Constitution by making factual
findings about the prior felony convictions for the purpose of imposing the death sentence. Ivy cites

5
Although later in this opinion we conclude that two of the five prior convictions were not admissible, this
conclusion does not alter our holding that the remaining evidence before the jury was sufficient to establish the
aggravating circumstance.

6
W e agree with the Court of Criminal Appeals’ observation that the (i)(6) aggravating circumstance is
analogous to the “forfeiture by wrongdoing” hearsay exception in Rule 804(b)(6) of the Tennessee of Evidence. As
discussed earlier in this opinion, however, we disagree with the Court of Criminal Appeals’ implied holding that Rule
804(b)(6) requires that a formal charge or accusation was pending or requires a finding as to a defendant’s
sole motivation.

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Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), in which the United States Supreme Court held
that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond
the proscribed statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt,” and Ring v. Arizona, 536 U.S. 584, 609 (2002), in which the United States Supreme Court
held that aggravating factors in a death penalty case must be found by a jury beyond a reasonable
doubt because they are “‘the functional equivalent of an element of a greater offense.’” (quoting
Apprendi, 530 U.S. at 494 n. 19). In reply, the State argues that the trial court followed the correct
procedure and that the jury found the aggravating circumstances beyond a reasonable doubt.

We begin our review of this issue by carefully summarizing the key portions of the record.
Prior to the penalty phase, the prosecution told the trial court that it intended to establish the “prior
violent felony” aggravating circumstance by relying on Ivy’s five prior convictions. See Tenn. Code
Ann. § 39-13-204(i)(2). The trial court found that the statutory elements of Ivy’s prior convictions
for second degree murder and especially aggravated robbery plainly involved violence to a person.
See Tenn. Code Ann. §§ 39-13-210 and 39-13-403(a). The trial court recognized, however, that
Ivy’s prior convictions for aggravated assault were more problematic because aggravated assault may
be committed with or without actual violence to the person. See Tenn. Code Ann. § 39-13-102(a).
As a result, the trial court examined the indictment for aggravated assault in case number 91-02560
and found that the offense had involved violence to the person because Ivy pled guilty to a charge
alleging “serious bodily injury.” See Tenn. Code Ann. § 39-13-102(a)(1)(B). In addition, although
the trial court found that the indictments for aggravated assault in case numbers 90-09886 and 90-
09887 did not allege “serious bodily injury,”7 the trial court also examined the affidavits of
complaint:

[T]he affidavit reads as follows. This is a sworn affidavit of Patsy
Pollard on May 11, 1990. ‘On May 3rd, 1990, at approximately 5:00
p.m., David Ivy shot into the home of Patsy Pollard at 636 Thomas
Number C with a shotgun. No one was injured but Ms. Pollard and
several children were in the living room at the time. Davy Ivy also
shot through the back door of the home of Sharon Branch at 636
Thomas Number B. Ms. Branch and her two week old baby were in
the kitchen at the time. David Ivy had been harassing Ms. Pollard’s
16 year old daughter and was still mad at her and apparently thought
she was in the house at the time.’ So clearly at least according to this
affidavit it involved more than just pointing a gun.

7
Instead, the indictments alleged that Ivy committed aggravated assault “by use of a deadly weapon [causing]
the victim to fear bodily injury.” Tenn. Code Ann. § 39-13-102.

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After deliberating, the jury found that the aggravating circumstance had been proven beyond a
reasonable doubt.

Having summarized the trial court’s findings, we now turn to the applicable procedures under
our case law. In State v. Sims, 45 S.W.3d 1, 11 (Tenn. 2001), we held that whether the statutory
elements of a defendant’s prior conviction involved the use of violence to the person is a question
of law for the trial court. Moreover, where an offense may be committed either with or without
violence to the person, such as aggravated assault, the trial court must conduct a hearing outside the
jury’s presence and examine the underlying facts of the prior offense. Id. at 12. If the trial court
determines that the statutory elements of a prior offense involved the use of violence to the person,
the State may introduce evidence of the defendant’s conviction for that offense and the jury is
instructed that the prior conviction was for an offense involving the use of a violence to the person.
Id.

We have upheld the procedures under Sims on several occasions. See State v. Cole, 155
S.W.3d 885, 901-02 (Tenn. 2005); State v. Powers, 101 S.W.3d 383, 400 (Tenn. 2003). In addition,
we have rejected the argument that Sims is invalid under Apprendi or Ring because the Sixth
Amendment requires facts used to enhance a punishment to be found by a jury beyond a reasonable
doubt. As we explained in Cole:

The (i)(2) aggravating circumstance requires only that the statutory
elements of the prior felony involve the use of violence to the person.
The Sims procedure authorizes trial judges merely to examine the
facts, record, and evidence underlying the prior conviction to
ascertain which ‘statutory elements’ served as the basis of the prior
felony conviction. This is a legal determination that neither requires
nor allows trial judges to make factual findings as to whether the
prior conviction involved violence.

155 S.W.3d at 904 (emphasis added). In addition, we emphasized that

[o]nce the trial court determines as a matter of law that the statutory
elements of the prior convictions involve the use of violence, the jury
must then determine as matters of fact whether the prosecution has
proven the (i)(2) aggravating circumstance beyond a reasonable doubt
and whether aggravating circumstances outweigh mitigating
circumstances beyond a reasonable doubt. The jury alone must
decide these factual questions, and these are the factual questions that
determine whether the maximum sentence of death will be imposed.

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Id.

The foregoing does not, however, end our analysis. In Shepard v. United States, ___ U.S.
___, 125 S. Ct. 1254 (2005), the U.S. Supreme Court recently clarified the effect of the Sixth and
Fourteenth Amendments on a trial court’s authority to examine the facts underlying a defendant’s
prior conviction being used to enhance a sentence. In that case, the district court refused to enhance
a defendant’s sentence under the Armed Career Criminal Act by relying on police reports offered
by the prosecution to show that the prior conviction was for a “violent felony.” In upholding the
district court’s decision, the Court concluded that a trial court may find “the fact of a prior
conviction” but is limited to “examining the statutory definition, charging document, written plea
agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which
the defendant assented.” Id. at 1257. Moreover, the Court emphasized that a trial court may not,
under the Sixth and Fourteenth Amendments, make a disputed finding fact that is “too far removed
from the conclusive significance of a prior judicial record.” Id. at 1262.

In our view, Shepard clarifies but does not invalidate the procedures this Court adopted in
Sims. See State v. Rice, ___ S.W.3d ___ (Tenn. 2006). Like Sims, Shepard holds that a trial court
may find the “fact” of a prior conviction for enhancing a sentence. Also like Sims, Shepard holds
that a trial court may make findings with regard to the nature of a prior conviction. Unlike Sims,
however, Shepard clarifies that the Sixth and Fourteenth Amendments allow the trial court to
consider only “the statutory definition, charging document, written plea agreement, transcript of plea
colloquy, and any explicit factual finding by the trial judge to which the defendant assented.”
Shepard, 125 S. Ct. at 1257. Thus, we conclude that the trial court’s determinations under the
procedure in Sims must likewise follow these limitations. See Rice, ___ S.W.3d at ___.

Applying these principles to this case demonstrates that the trial court properly instructed the
jury that three of Ivy’s five prior convictions were felonies involving the use of violence to the
person. As the trial court noted, the statutory elements of second degree murder and especially
aggravated robbery plainly involved violence to the person. In addition, the trial court properly
examined the indictment in determining that Ivy’s prior aggravated assault conviction in case number
91-02560 involved violence to the person; indeed Ivy pleaded guilty to aggravated assault committed
by causing “serious bodily injury” to the victim.

The trial court erred, however, in instructing the jury that Ivy’s two prior convictions for
aggravated assault in case number 90-09886 and case number 90-09887 involved violence to the
person. The prosecution conceded that the indictments in these cases alleged only that Ivy had used
a deadly weapon and had caused the victims to fear “bodily injury.” The trial court, however,
examined the detailed allegations of fact contained in the affidavit of complaint. An affidavit of
complaint “is a written statement alleging that a person has committed an offense and alleging the
essential facts constituting the offense.” Tenn. R. Crim. P. 3(a). Although “made upon oath before

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a magistrate or a neutral and detached court clerk who is capable of [a] probable cause
determination,” id., an affidavit of complaint, like a police report, is not a judicial record of the kind
approved in Shepard. Moreover, even though Ivy pled guilty to the two offenses, there is no plea
transcript or other evidence indicating that he assented to the facts alleged in the affidavit of
complaint. As a result, the trial court should not have considered the affidavit of complaint under
Shepard. In addition, even if Ivy had assented to the facts in the affidavit of complaint, a factual
question would have arisen as to whether there had been violence or an attempt to commit violence.

As we conclude that the trial court erred, a recent Sixth Circuit case is instructive. In United
States v. Kappell, 418 F.3d 550 (6th Cir. 2005), the court held that Shepard did not preclude the
district court from considering a criminal complaint in finding that a defendant’s prior conviction
under a state statute would also have been an offense under federal statute. The court emphasized,
however, that the district court “had before it the state criminal complaint, a transcript of the state
plea proceedings, and [the defendant’s] acceptance in those proceedings of the factual statements
in the complaint.” Id. at 560 (emphasis added). In contrast, the trial court in the present case
considered only the affidavit of complaint without the defendant’s assent or agreement as required
under Shepard.

Addressing the effect of the trial court’s erroneous instructions as to the two prior convictions
used by the prosecution in support of the (i)(2) aggravating circumstance, we believe that the
appropriate analysis is analogous to that in cases where an aggravating circumstance has been held
invalid but other valid aggravating circumstances remain. State v. Howell, 868 S.W.2d 238, 262
(Tenn. 1993).8 In such cases, the invalid aggravating circumstance is harmless if a reviewing court
concludes “beyond a reasonable doubt that the sentence would have been the same had the jury given
no weight to the invalid felony murder aggravating factor.” Id. We cautioned, however, that:

In order to guarantee the precision that individualized sentencing
considerations demand and provide a principled explanation for our
conclusion in each case, it is important, when conducting harmless
error review, to completely examine the record for the presence of
factors which potentially influence the sentence ultimately imposed.
These include, but are not limited to, the number and strength of
remaining valid aggravating circumstances, the prosecutor's argument
at sentencing, the evidence admitted to establish the invalid
aggravator, and the nature, quality and strength of mitigating
evidence.

8
Moreover, the Court had concluded prior to Howell that the introduction of an invalid prior conviction to
support the (i)(2) aggravating circumstance was subject to harmless error analysis. See State v. Campbell, 664 S.W .2d
281, 283 (Tenn. 1984); State v. Harries, 657 S.W .2d 414, 421 (Tenn. 1983).

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Id. at 260-61.

Here, the record shows that the trial court’s error was harmless beyond a reasonable doubt.
The jury was properly instructed that Ivy had been convicted of second degree murder, especially
aggravated robbery, and aggravated assault. These prior convictions, particularly second degree
murder and especially aggravated robbery, were objectively reliable and qualitatively persuasive.
See id. at 262 (noting that prior convictions under (i)(2) are often more objectively reliable and
persuasive than other evidence). The jury was also properly instructed on the (i)(6) aggravating
circumstance, i.e., the killing was committed to avoid lawful arrest or prosecution. Moreover,
although the prosecutor’s closing argument contained a few brief references to Ivy’s “five” prior
felony convictions in support of the (i)(2) aggravating circumstance, the transcript demonstrates that
the prosecutor’s arguments would have been no less effective with references to only “three” prior
convictions. In addition, the transcript shows that the prosecution placed equal if not more emphasis
on the evidence in support of the (i)(6) aggravating circumstance:

This defendant took a gun, hid out in the bushes where she was
staying and waited for her to come out. Why? Because she had come
to the law. She had come to 201 Poplar and sworn out a warrant for
his arrest on the morning when he beat her over and over and over
again with a gun.

***

We don’t need David Ivy playing God. We don’t need David Ivy
deciding who gets to go to the police and when they get to. We don’t
need David Ivy beating up his girlfriend, leaving her unconscious and
then when she does the one thing that we have left in an orderly
society to hold onto, filling her body with bullets. That’s why I
submit the legislators wrote that in the law. And the state . . . has
proven to you that that’s why [the victim] died.

***

Why he killed. To try to break the system again [the victim] was
struggling so hard to get to help her. That he murdered her to prevent
the system from working. And also all the other times he did it.

In contrast, the record shows that the evidence of mitigating circumstance consisted primarily of
witnesses asking the jury to impose a life sentence. Thus, we conclude beyond a reasonable doubt

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that the jury’s verdict would have been the same even without the trial court’s error in instructing
the jury as to the two aggravated assault convictions.

Admission of First Degree Murder Indictment

Ivy argues that the prosecution improperly introduced his prior indictment for first degree
murder when establishing his prior conviction for second degree murder as an aggravating
circumstance during the sentencing proceeding. Ivy argues that the indictment for first degree
murder was irrelevant and unfairly prejudicial because the jury may have believed he pleaded guilty
to second degree murder to avoid being convicted of the greater offense. The State argues that the
introduction of the indictment was not erroneous.

The admission of evidence in the sentencing phase is governed by Tennessee Code Annotated
section 39-13-204(c), which provides in part:

In all cases where the state relies upon the aggravating factor that 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, either party shall be permitted to introduce
evidence concerning the facts and circumstances of the prior
conviction. Such evidence shall not be construed to pose a danger of
creating unfair prejudice, confusing the issues, or misleading the jury
and shall not be subject to exclusion on the ground that the probative
value of such evidence is outweighed by prejudice to either party.
Such evidence shall be used by the jury in determining the weight to
be accorded the aggravating factor.

(Emphasis added).

In our view, the trial court erred in allowing the prosecution to introduce Ivy’s prior
indictment for first degree murder when Ivy’s prior conviction was for second degree murder. First,
there is no authority allowing an offense charged in a prior indictment to be considered as an
aggravating circumstance. Indeed, our prior case law has long established that the prosecution may
not rely on prior accusations, arrests, or indictments. See State v. Buck, 670 S.W.2d 600, 606 (Tenn.
1984). Second, there is no authority allowing admission of a defendant’s prior indictment simply
because the prosecution is relying on a prior conviction stemming from that indictment to establish
the “prior violent felony” aggravating circumstance under Tennessee Code Annotated section 39-13-
204(i)(2). As discussed in the preceding issue, the threshold question of whether a prior conviction
satisfies the requirements of section 204(i)(2) is a question of law for the trial court and not a
question of fact for the jury to decide.

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 In addition, the prior indictment for first degree murder was not “evidence” of the “facts and
circumstances” of Ivy’s prior conviction for second degree murder as required for admission under
Tennessee Code Annotated section 39-13-204(c). An indictment is not evidence of an offense but
rather a charging instrument that informs the accused of “the nature and cause of the accusation.”
U.S. Const. amend. VI; Tenn. Const. art. I, § 9; Tenn. Code Ann. § 40-13-202 (an indictment “must
state the facts constituting the offense in ordinary and concise language”). The purpose of an
indictment is to enable a defendant to know the accusation, to furnish the trial court an adequate
basis for entry of a proper judgment, and to protect a defendant from a subsequent prosecution for
the same offense. See State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997). In sum, because a prior
indictment is not evidence of a charged offense, it cannot properly be considered “evidence of the
facts and circumstances of [a] prior conviction.” See Tenn. Code Ann. § 39-13-204(c).

We further conclude, however, that the error was harmless because it did not affect the
outcome. Although Ivy’s prior first degree murder indictment was read to the jury and introduced
as an exhibit, the evidence clearly established that Ivy’s prior conviction was for second degree
murder in that case and not for first degree murder. The trial court instructed the jury that the
prosecution was relying on Ivy’s prior conviction for second degree murder as a felony involving
violence to the person as an aggravating circumstance. Moreover, the trial court instructed the jury
that the prosecution was relying on Ivy’s prior convictions for especially aggravated robbery and
aggravated assault as felonies involving violence to a person to support the aggravating
circumstance. The jury was not instructed that Ivy’s prior indictment for first degree murder could
be used as an aggravating circumstance. The transcript also reveals that the prosecution’s relatively
brief closing arguments contained no reference to Ivy’s first degree murder indictment and instead
were confined to Ivy’s prior convictions. Given these circumstances, and the weight of Ivy’s prior
violent felony convictions in support of this aggravating circumstance, the introduction into evidence
of the first degree murder indictment did not affect the outcome. See State v. Cribbs, 967 S.W.2d
773, 781 (Tenn. 1998) (error in admitting defendant’s prior conviction for second degree burglary
did not affect the outcome where it was not used as an aggravating circumstance and where the
defendant had three convictions that properly established the “prior violent felony” aggravating
circumstance).

Residual Doubt Argument

Ivy next contends that the trial court erred in refusing to allow defense counsel to argue that
any “residual doubt” as to Ivy’s guilt could be considered as a mitigating circumstance. The State
replies that the trial court did not err.

The record reveals that defense counsel told the jury that “if you have any residual doubt
about his guilt for the first phase, you found him guilty beyond a reasonable doubt, but if you had
any residual doubt you can use that as well.” The trial court, out of the jury’s presence, told defense

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counsel that the argument as to residual doubt was inappropriate and that residual doubt would not
be charged to the jury as a mitigating circumstance. The trial court explained:

[P]roof regarding residual doubt may be appropriate in instances
where the State has concealed exculpatory evidence that the defense
somehow finds . . . or the defense on [its] own uncovers. . . . [T]he
argument of residual doubt is not intended to allow the defense to
argue at sentencing to sort of reargue the case that was presented at
the guilt phase to sort of go over all of the . . . inconsistencies that
exist in the guilt phase . . . .

The trial court concluded that the defense was precluded from arguing “residual doubt with nothing
more specific.” On appeal, the Court of Criminal Appeals concluded that the trial court’s ruling was
erroneous but that the error did not affect the outcome of the proceeding.

We begin our review of this issue by noting that “residual doubt evidence” may consist of
proof admitted during the sentencing phase that indicates the defendant did not commit the offense,
notwithstanding the jury’s verdict following the guilt phase. State v. McKinney, 74 S.W.3d 291, 307
(Tenn. 2002) (citing State v. Hartman, 42 S.W.3d 44, 55-56 (Tenn. 2001)). We have held that a
defendant is allowed “to present evidence at a re-sentencing hearing to establish residual doubt as
a non-statutory mitigating circumstance.” Hartman, 42 S.W.3d at 55. This holding was based partly
upon statutory provisions:

In the sentencing proceeding, evidence may be presented as to any
matter that the court deems relevant to the punishment and may
include, but not be limited to, the nature and circumstance of the
crime; the defendant's character, background history, and physical
condition; any evidence tending to establish or rebut the aggravating
circumstances enumerated . . .; and any evidence tending to establish
or rebut any mitigating factors.

Tenn. Code Ann. § 39-13-204(c).

Our holding was not limited to a defendant’s introduction of residual doubt evidence during
the sentencing or re-sentencing phase of a capital trial. McKinney, 74 S.W.3d at 307. Instead, we
clarified that a defendant may also rely upon residual doubt argument based on evidence that was
heard by the jury in the guilt phase of the trial. Id. As we explained in McKinney:

An argument during sentencing that refers to evidence from the guilt
phase is not improper simply because it has the effect of alluding to

-22-
 residual doubt. As we have long held, the manner and conduct of
closing argument by the parties is left to the discretion of the trial
court. Accordingly, where a defendant seeks to argue residual doubt
based on the evidence introduced or in response to an argument made
by the prosecution, the trial court should exercise its discretion by
resolving any doubt in favor of the defendant's argument.

Id. at 308 (citations omitted).

In this case, the trial court erred in refusing to allow defense counsel to argue that the jury
could consider residual doubt based on the evidence presented during the guilt/innocence phase of
the trial. Contrary to the trial court’s reasoning, there is no requirement that residual doubt argument
be based on new residual doubt evidence. Id.

The trial court’s error, however, does not require a new sentencing proceeding for several
reasons. First, since this was not a re-sentencing hearing, the sentencing jury had already heard the
evidence presented in the guilt phase and had reconciled any conflicts against Ivy’s theory of
innocence. Indeed, given that the evidence of Ivy’s guilt was overwhelming, any argument as to
residual doubt would have been of dubious value in mitigation. Second, although the trial court
refused to instruct the jury on residual doubt, the instructions to the jury as a whole informed the jury
that it could “consider any mitigating circumstances raised by the evidence at either the guilt or
sentencing hearing, or both,” and that it could consider “any aspect of the circumstances of the
offense favorable to the defendant which is supported by the evidence.” Finally, the two aggravating
circumstances found by the jury beyond a reasonable doubt were strongly supported by the evidence.
In sum, the defendant has not shown that the error affected the jury’s verdict to his prejudice, and
therefore the trial court’s error was harmless. See id.

Proportionality

Whenever a death sentence has been imposed, we must apply a comparative proportionality
analysis. See Tenn. Code Ann. § 39-13-206(c)(1)(D). The analysis identifies aberrant, arbitrary, or
capricious sentencing by determining whether a death sentence is “‘disproportionate to the
punishment imposed on others convicted of the same crime.’” State v. Bland, 958 S.W.2d 651, 662
(Tenn. 1997) (quoting Pulley v. Harris, 465 U.S. 37, 42-43 (1984)).

In using a precedent-seeking method of comparative proportionality review, we compare a
case with other cases involving similar defendants and similar crimes. See Bland, 958 S.W.2d at
665-67. While no defendants or crimes are 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.

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 The pool of cases considered by this Court in its comparative 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. See, e.g., State v.
Godsey, 60 S.W.3d 759, 783 (Tenn. 2001). 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. Id. at 784.

Our comparative proportionality review of the applicable cases considers the 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.
Bland, 958 S.W.2d at 667. We also consider 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. Id.; see also Reid, 164 S.W.3d at 316.

In this case, we begin by reviewing the nature of the offense. Ivy had a history of physically
abusing the victim, LaKisha Thomas. On June 6, 2001, Ivy attacked Thomas and struck her in the
head with a pistol. Ivy followed Thomas as she drove to and from the Criminal Justice Center, and
he threatened to kill her if “she put the police in his business.” Two days later, Ivy approached
Thomas as she sat helpless and unarmed in her car, and he shot her five times at close range. Ivy’s
actions were intentional and premeditated. He acted without provocation or justification.

We next consider the evidence regarding the defendant and his background. The defendant
had prior convictions for second degree murder, especially aggravated robbery, and three aggravated
assaults. He had been released on parole for only one year when he shot Thomas to death. There
was no evidence that Ivy suffered from any mental, emotional, or physical impairments that
mitigated the offense. Likewise, there was no evidence that Ivy cooperated with the authorities;
instead, he escaped from the Shelby County Jail in May of 2002 and was arrested two months later
in San Diego, California. There was no evidence that Ivy was remorseful for killing Thomas or for
committing prior acts of violence against her. In sum, there was no proof that Ivy is amenable to
rehabilitation.

In our view, the death sentence imposed in this case was not excessive or disproportionate
when compared to defendants in other cases. Tenn. Code Ann. § 39-13-206(c)(1)(A), (C), (D)
(2003).

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 First, this Court has upheld death sentences in numerous similar cases where the defendant
shot a victim one or more times. State v. Leach, 148 S.W.3d 42, 60 (Tenn. 2004); State v. Bush, 942
S.W.2d 489, 507 (Tenn. 1997); State v. Hines, 919 S.W.2d 573, 584 (Tenn. 1995); State v. West,
767 S.W.2d 387, 397 (Tenn. 1989).

Second, this Court has upheld numerous death sentences in cases involving a defendant with
prior convictions for felonies whose statutory elements involved the use of violence to the person,
i.e., one of the aggravating circumstances applied by the jury in this case. See Reid, 164 S.W.3d at
315; Leach, 148 S.W.3d at 60. As this Court has said, this aggravating circumstance is “more
qualitatively persuasive and objectively reliable than other[]” aggravating circumstances. Howell,
868 S.W.2d at 261.

Likewise, we have upheld the death penalty in similar cases involving the other aggravating
circumstances applied by the jury, i.e., the murder was committed to avoid or prevent the defendant’s
arrest or prosecution. See Reid, 164 S.W.3d at 315; Davis, 141 S.W.3d at 620; Bush, 942 S.W.2d
at 504-05; State v. Thompson, 768 S.W.2d 239, 252 (1989).

Third, numerous death penalty cases have involved a domestic relationship marked by the
defendant’s abusive conduct against the victim. See State v. Keough, 18 S.W.3d 175 (Tenn. 2000);
State v. Hall, 8 S.W.3d 593 (Tenn. 1999); State v. Smith, 868 S.W.2d 561 (Tenn. 1993); State v.
Johnson, 743 S.W.2d 154 (Tenn. 1987); State v. Cooper, 718 S.W.2d 256 (Tenn. 1986).

Finally, we have upheld sentences in numerous cases involving defendants who presented
similar evidence of mitigating circumstances. For example, several cases have involved defendants
who presented evidence of their family backgrounds or childhood environments. See Davis, 141
S.W.3d at 621; Hines, 919 S.W.2d at 573. Moreover, we have upheld the death penalty in numerous
cases where the mitigating evidence was much stronger than that in this case. Reid, 164 S.W.3d at
318 (mental illness); Hines, 919 S.W.2d at 573 (defendant with paranoid personality disorder,
dysthymia, and chronic depression); Smith, 868 S.W.2d at 561 (defendant with chronic depression,
paranoid personality disorder, chronic depressive neurosis, and paranoid delusional disorder);
Howell, 868 S.W.2d at 262 (defendant with brain damage).

We need not find that this case is exactly like a prior case in every respect, nor must we
determine that this case is “more or less” like other death penalty cases. Instead, we must identify
aberrant death sentences by analyzing whether a capital case plainly lacks circumstances similar to
those cases in the pool of cases in which a death sentence has been upheld. Accordingly, the
defendant’s arguments are without merit.

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 Weighing of Aggravating and Mitigating Circumstances

As explained above, the evidence supported two aggravating circumstances applied by the
jury: that the defendant had previous convictions for felonies whose elements involved violence to
the person and that the murders were committed by the defendant to avoid arrest or prosecution. The
mitigating circumstances included testimony about the defendant’s family background.

After reviewing the record and considering the evidence discussed above with regard to
proportionality, we conclude that the evidence supported the jury’s finding that the aggravating
circumstances outweighed mitigating circumstances beyond a reasonable doubt. Tenn. Code Ann.
§ 39-13-206(c)(1)(C).

CONCLUSION

Having reviewed the record and applicable authority, we now hold that: 1) the evidence was
sufficient to support the first degree murder conviction; 2) the trial court did not err in impaneling
an anonymous jury; 3) the trial court properly ruled that the victim’s statements were admissible
under the “forfeiture by wrongdoing” hearsay exception; 4) the evidence supported the jury’s
findings that the two aggravating circumstances were proven beyond a reasonable doubt; 5) the trial
court erred in instructing the jury that two of the five prior felony convictions relied on by the
prosecution involved violence to a person during the sentencing phase but the error was harmless
beyond a reasonable doubt; 6) the trial court erred in allowing the prosecution to introduce the
defendant’s prior indictment for first degree murder in the sentencing phase of the trial where the
defendant had been convicted of second degree murder, but the error did not affect the outcome; 7)
the trial court erred in ruling that defense counsel could not argue residual doubt as a mitigating
circumstance during the sentencing phase, but the error did not affect the outcome; and 8) the
evidence of aggravating circumstances outweighed the evidence of mitigating circumstances beyond
a reasonable doubt, and the death sentence was 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. Thus, the Court of Criminal Appeals’ judgment is
affirmed. The defendant’s sentence of death is affirmed and shall be carried out on the 28th day of
June, 2006, unless otherwise ordered by this Court or other proper authority. It appearing that Ivy
is indigent, the costs of the appeal are taxed to the State of Tennessee.

______________________________
E. RILEY ANDERSON, JUSTICE

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