State of Tennessee v. Gdongalay P. Berry

APPENDIX

(Excerpts from the Court of Criminal Appeals’ Decision)
 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
October 15, 2002 Session

STATE OF TENNESSEE v. GDONGALAY P. BERRY

Direct Appeal from the Criminal Court for Davidson County
No. 96-B-866 J. Randall Wyatt, Jr., Judge

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

[Deleted: Introductory Paragraph]

Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed.

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

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

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

OPINION

[Deleted: Factual Background]

[Deleted: I. Constitutionality of Death Penalty Procedures]

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

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

[Deleted: II. Speedy Trial]

III. Representation

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

A. Hybrid Representation

Both the United States and Tennessee Constitutions guarantee the right of an accused to self-
representation or to representation by counsel. U.S. CONST . amend. VI; TENN. CONST . art. I, § 9;
Faretta v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 2527 (1975); State v. Northington, 667
S.W.2d 57, 60 (Tenn. 1984). The right to self-representation and the right to counsel have been
construed to be alternative ones; that is, one has a right either to be represented by counsel or to
represent himself, to conduct his own defense. State v. Small, 988 S.W.2d 671, 673 (Tenn. 1999)
(quoting State v. Melson, 638 S.W.2d 342, 359 (Tenn. 1982), cert. denied, 459 U.S. 1137, 103 S.
Ct. 770 (1983)). “[W]aiver of one right constitutes a correlative assertion of the other. . . . [A]
criminal defendant cannot logically waive or assert both rights. State v. Burkhart, 541 S.W.2d 365,
368 (Tenn. 1976) (quoting United States v. Conder, 423 F.2d 904, 908 (6th Cir. 1970)). Neither the
United States Constitution nor the Tennessee Constitution grants the accused the right to “hybrid
representation,” i.e., permitting both the defendant and counsel to participate in the defense. Id. at
371. It is entirely a matter of grace for a defendant to represent himself and have counsel, and such
privilege should be granted by the trial court only in exceptional circumstances. Melson, 638 S.W.2d
at 359. “Hybrid representation” should be permitted "sparingly and with caution and only after a
judicial determination that the defendant (1) is not seeking to disrupt orderly trial procedure and (2)
that the defendant has the intelligence, ability and general competence to participate in his own
defense." Burkhart, 541 S.W.2d at 371. The length of a trial or the involvement of the death penalty
does not per se constitute "exceptional circumstances." Melson, 683 S.W.2d at 359.

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

In this case, the trial court denied the Appellant’s request for “hybrid representation,” finding
that:

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

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

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

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

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

B. Self-Representation

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

IV. Motion to Suppress

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

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

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A. Miranda

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

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

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

Based upon the evidence presented at the suppression hearing, the trial court, accrediting the
testimony of the detectives, found that the Appellant did not invoke his Fifth Amendment privilege
against self-incrimination or was in any way prevented from doing so. The evidence does not
preponderate against the trial court's findings. The Appellant argues that none of the officers
specifically denied “the fact that Mr. Berry invoked his ‘Fifth Amendment rights’ soon after the
police burst into the home.” However, both Detectives Roland and Kendall testified that the

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Appellant was read his Miranda rights and, thereafter, voluntarily gave a statement, implying that
the Appellant did not invoke his privilege against self-incrimination. The trial court is in the best
position to determine the credibility of witnesses, and we attribute great weight to the trial court's
determinations. Odom, 928 S.W.2d at 23. Accordingly, the Appellant is not entitled to relief on
this issue.

B. Voluntary and Knowing Waiver

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

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

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

In so finding, the Court points to the testimony of Det. Kendall and Roland,
the defendant’s videotaped statement to the detectives, as well as the waiver form
executed by the defendant. It is evident to the Court that the defendant understood
exactly what he was doing and the repercussions thereof when he agreed to speak
with the police. The defendant does not allege that he was intoxicated at the time or

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 that he was otherwise incapable of making a knowing, voluntary, and intelligent
waiver of his rights. Despite the testimony of the defendant, the Court does not
believe that the defendant was subjected to such physical and mental abuse so as to
overbear his will and render his waiver involuntary. The Court notes that the initial
arrest of the defendant, at the Carter Avenue address, may have been done in an
aggressive manner with weapons drawn. However, under the facts and circumstances
of this particular case and in light of the charges which the detectives were
investigating, an aggressive entrance and arrest, which leaves no uncertainty as to the
defendant’s arrest or the purpose of the arrest, was reasonable under the
circumstances.

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

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

V. Voir dire

The Appellant contends that “the trial court abused its discretion in the jury selection process
by improperly rehabilitating jurors who were properly excludable for cause, and improperly
excluding other jurors who were or could be rehabilitated in regard to their reservations concerning

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

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

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

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

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

4. Prospective Jurors 110, 125, and 127 - The Appellant contends that the trial court
went to great lengths to rehabilitate these jurors. First, Jurors 110 and 125 were not

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challenged for cause and, therefore, this issue is waived. Nonetheless, Jurors 110 and
125 stated that they could follow the law and consider imposing a life sentence,
despite personal reservations. Concerning Juror 127, he was summarily excused
because he stated he could not impose the death penalty under any circumstances.

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

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

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

8. Prospective Juror 143 - The Appellant argues that it was error to accept this juror
because he stated that “he would reject environment as a mitigating factor.” While
he did express some reservations about environment being a mitigating factor, the

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 trial court accepted him because he said he would consider the mitigating factors
offered and did not dismiss environment as a mitigating circumstance completely.

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

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

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

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

After reviewing the answers and responses of the challenged jurors, we conclude that the respective
jurors were either properly rehabilitated or their answers left "no leeway for rehabilitation." Strouth,
620 S.W.2d at 471; see also Alley, 776 S.W.2d at 517-18. In each instance, the prospective juror was
extensively questioned as to whether they could apply the law to the evidence and consider all forms
of punishment in this case. As noted by the trial court, the court “distributed a jury questionnaire,

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allowed the parties to question each juror individually, provided the [Appellant] with a jury
consultant, and made every effort to select a fair and impartial jury.” There is no error.

VI. Gang Evidence

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

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

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

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

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

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

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

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

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

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

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

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

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 afraid to leave the scene, and that the evidence would have exonerated the defendant
if the police had properly collected and tested it.

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

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

VII. Hearsay Statement

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

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

A. Yes, ma’am.

Q. What was that discussion about?

A. About a robbery.

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

MR. GIBSON: Object to hearsay.

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

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

A. Christopher Davis, Gdongalay Berry.

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

A. In my presence.

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

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

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

THE WITNESS: Yes, sir.

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

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

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

So go ahead, please.

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

A. It was about a robbery.

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

A. Yes, ma’am; I did.

Q. And who was that?

A. Greg Ewing and DeAngelo Lee.

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

A. Uh –

Q. What was it to be a robbery of?

A. The guns and a car.

Q. Guns and a car?

A. Yes, ma’am.

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

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

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

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

Q. Did he say why?

A. Because they know us.

Q. Because they know us?

A. Yes, ma’am.

Q. And that’s what Mr. Berry said?

A. Yes, ma’am.

Hearsay is defined as "a statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted." Tenn. R. Evid.
801(c). Hearsay is not admissible except as provided by the rules of evidence or otherwise by law.
Tenn. R. Evid. 802. Pursuant to Rule 803(1.2)(E), Tennessee Rules Evidence, a statement that is
hearsay is allowed against a party when made "by a co-conspirator of a party during the course of
and in furtherance of the conspiracy." A conspiracy is defined as a combination between two or
more persons to do a criminal or unlawful act or a lawful act by criminal or unlawful means. State
v. Lequire, 634 S.W.2d 608, 612 (Tenn. Crim. App. 1981), perm. to appeal denied, (Tenn. 1982)
(citation omitted). Declarations of a co-conspirator that would otherwise be inadmissible may be

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offered as proof, when the following conditions are met: (1) there is evidence of the existence of the
conspiracy and the connection of the declarant and the defendant to it; (2) the declaration was made
during the pendency of the conspiracy; and (3) the declaration was made in furtherance of the
conspiracy. State v. Gaylor, 862 S.W.2d 546, 553 (Tenn. Crim. App. 1992), perm. to appeal denied,
(Tenn. 1993) (citations omitted). A “statement may be in furtherance of the conspiracy in countless
ways. Examples include statements designed to get the scheme started, develop plans, arrange for
things to be done to accomplish the goal, update other conspirators on the progress, deal with arising
problems, and provide information relevant to the project.” State v. Carruthers, 35 S.W.3d 516, 556
(Tenn. 2000) (citation omitted). If a conspiracy is shown to exist, the co-conspirator's statement is
admissible even though no conspiracy has been formally charged. Lequire, 634 S.W.2d at 612 n.1.

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

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

VIII. Closing Argument

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

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

1
The trial court also found that the testim ony wa s adm issible as an “adoptive admission” pursuant to Tennessee
Rule of Evidence 803(1.2)(B). However, we conclude that the testimony clearly falls within the co-conspirator exception
to the hearsay rule and, the refore, find it unnecessary to address whether the testimony is also admissible as an “adoptive
admission.”

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 precious. That doesn’t mean that Mr. Berry’s life is not precious. But he should be
held accountable for this crime.

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

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

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

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

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

IX. Flight Instruction

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

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

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

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

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

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

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

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

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

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

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

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

The record does not support a theory that the defendant fled solely in an effort
to evade arrest for the murder of Adrian Dickerson. Indeed, given the fact that the
double homicide occurred mere hours before the defendant’s encounter with the
officers, the defendant likely assumed the officers were investigating that incident.
In any event, the defendant has not provided the Court with any authority which

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 prohibits a flight instruction when a defendant has multiple motives for fleeing. The
Court finds this issue to be without merit.

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

[Deleted: X. Sufficiency of the Evidence]

XI. Victim Impact Testimony

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

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

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

Q. The police didn’t tell you that?

A. No.

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

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

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

In State v. Nesbit, 978 S.W.2d 872, 889 (Tenn. 1998), our supreme court held that victim
impact evidence and prosecutorial argument is not barred by the federal and state constitutions. See

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

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

[Deleted: XII. Proportionality Review]

___________________________________
DAVID G. HAYES, JUDGE

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