State v. Davis

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
June 3, 2004 Session

STATE OF TENNESSEE v. CHRISTOPHER A. DAVIS

Automatic Appeal from the Court of Criminal Appeals
Criminal Court for Davidson County
No. 96-B-866 J. Randall Wyatt, Judge

No. M2001-01866-SC-DDT-DD - Filed August 25, 2004

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

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

1
The defendant was also convicted of two counts of felony murder, but the trial court merged these convictions
with the premeditated first degree murder convictions.
the remaining issues, the relevant portions of which are included in the appendix to this opinion.
Accordingly, we affirm the judgment of the Court of Criminal Appeals.

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 FRANK F. DROWOTA , III, C.J.
and JANICE M. HOLDER and WILLIAM M. BARKER, JJ., joined. ADOLPHO A. BIRCH , JR, J., filed
a dissenting opinion.

Hershell D. Koger, Pulaski, Tennessee, and David Hornik, Nashville, Tennessee, for the Appellant,
Christopher A. Davis.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Mark A.
Fulks, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Tom Thurman
and Katrin Miller, Assistant District Attorneys General, for the Appellee, State of Tennessee.

OPINION

BACKGROUND

Guilt Phase

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

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

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

Cartwright testified that when Davis, Berry, Murphy, and Sneak left the apartment on foot
that evening, Davis was carrying a nine millimeter handgun and Berry was armed with a .45 caliber

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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 Sentencing Phase

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

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

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

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

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

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

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

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

ANALYSIS

Sufficiency of Evidence

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

When evaluating the sufficiency of the evidence, we must determine whether “any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979). We are required to afford the State the strongest
legitimate view of the evidence in the record, as well as all reasonable and legitimate inferences
which may be drawn therefrom. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions
concerning the credibility of the witnesses, the weight to be given the evidence, and any factual
issues raised by the evidence are resolved by the trier of fact. Id.; State v. Cazes, 875 S.W.2d 253,
259 (Tenn. 1994).

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

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

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

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

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

Disqualification of District Attorney General

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

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

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in this prosecution and that he had no knowledge where the case file was kept. The trial court denied
the motion to disqualify.8

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

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

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

In applying this analysis in Clinard, we noted that a “substantial relationship” existed because
the attorney’s involvement in the prior case was so extensive that his employment with his new law
firm could be “regarded as a changing of sides.” 46 S.W.3d at 184. We emphasized that the
attorney’s new law firm was an “adversary against the [parties] in the very litigation in which [the
attorney] once represented them . . . .” Id. at 188. Although we observed that the presumption of
shared confidences was rebutted by “objective and verifiable” evidence of procedures used by the

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

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

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new law firm that had “screened” the conflicted attorney from persons, files, or information
pertaining to the ongoing case, we also concluded that the procedures did not remove the appearance
of impropriety. Id. at 184, 188-89. Accordingly, we held that disqualification of the attorney’s new
law firm was required. Id. at 189.

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

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

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

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

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testified that it was understood he was to have no contact or involvement with this ongoing
prosecution.

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

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

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

Withdrawal of Defense Counsel

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

The record indicates that Davis’s attorneys filed a motion to withdraw prior to trial. At an
evidentiary hearing on the motion, defense counsel asserted that they were unable to disclose the
basis of their motion due to professional obligations, the attorney-client privilege, and other ethical
considerations. The motion to withdraw was transferred to a different trial court, which denied the
motion after an ex parte hearing and placed the order and the transcript of the hearing under seal.11

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

11
Although the trial court granted an interlocutory appeal, the Court of Criminal Appeals denied interlocutory
review because defense counsel refused to consent to the unsealing of the trial court’s order and the transcript of the
(continued...)

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On appeal, the Court of Criminal Appeals held that review of the issue was waived based on defense
counsel’s refusal to have the trial court’s order and transcript unsealed.

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

Sufficiency of Indictment

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

We have held Apprendi does not require aggravating circumstances to be alleged in the
indictment. State v. Holton, 126 S.W.3d 845, 863 (Tenn. 2004); State v. Dellinger, 79 S.W.3d 458,
467 (Tenn. 2002). Moreover, we have clarified that recent United States Supreme Court rulings in
Blakely v. Washington, 524 U.S. ____ (2004), and Ring v. Arizona, 536 U.S. 584, 602 (2002), “do
not change our analysis . . . regarding whether aggravating circumstances must be pled in the
indictment.” State v. Berry, ___ S.W.3d ___ (Tenn. 2004). We explained:

[T]he primary concern for a defendant charged with first-degree
murder is notice that he or she is facing an enhanced sentence of life
without parole or death. Such notice is provided for in both the Code
and in the Tennessee Rules of Criminal Procedure. Tenn. Code Ann.
§ 39-13-208 (1996); Tenn. R. Crim. P. 12.3 (1984). Rule 12.3 of the
Rules of Criminal Procedure mandates written notice, given at least
thirty days prior to trial, of the state’s intention to seek the death
penalty and of the aggravating circumstances the State intends to rely
upon for such enhanced sentence. Section 39-13-208 provides for the

11
(...continued)
hearing. See Tenn. R. App. P. 9(c).

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

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 same in cases where the State is seeking an enhanced sentence of life
without parole.

Id. at ___.

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

Prior Violent Felony Aggravating Circumstance

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

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

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

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

Tenn. Code Ann. § 37-1-134(a)(1) (2001) (emphasis added). Although the statute plainly states that
an offender may not receive the death penalty “for the offense for which the child was transferred,”

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there is no statutory language prohibiting the use of a conviction for that offense to enhance the
punishment for a conviction of a later offense. Indeed, had the legislature intended for such a
restriction or limitation, it could have included the appropriate statutory language.

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

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

Id. (citations omitted).

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

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 Sufficiency of Aggravating Circumstances

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

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

A. Prior Violent Felonies

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

B. Avoiding, Interfering With or Preventing Lawful Arrest

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

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

In this case, the record reveals that Davis told others that a fake “gun deal” was set up in
order to steal guns and a car from the victims, Ewing and Lee. Antonio Cartwright heard Davis say
that the victims would have to be killed “because they knew who they was and they knew where they

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stay.” Moreover, the record reveals that the two victims were tied up in the car while Davis and
Berry unloaded the stolen guns and the victims were later shot multiple times and left in a
construction site. In sum, the evidence was sufficient to support this aggravating circumstance
beyond a reasonable doubt.

C. Felony Murder

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

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

The murder was knowingly committed, solicited, directed, or
aided by the defendant, while the defendant had a substantial role in
committing or attempting to commit, or was fleeing after having a
substantial role in committing or attempting to commit, any first
degree murder, arson, rape, robbery, burglary, theft, kidnapping,
aircraft piracy, or unlawful throwing, placing or discharging of a
destructive device or bomb.

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

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

D. Weighing of Mitigating Evidence

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

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

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the defendant’s involvement. In sum, the evidence supported the jury’s finding that the evidence of
the three aggravating circumstances outweighed mitigating circumstances beyond a reasonable
doubt.

Proportionality

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

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

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

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

Id. at 784 (citations omitted).

Accordingly, our comparative proportionality review of the applicable pool of cases considers
numerous factors regarding the offense: (1) the means of death; (2) the manner of death; (3) the
motivation for the killing; (4) the place of death; (5) the victim’s age, physical condition, and
psychological condition; (6) the absence or presence of premeditation; (7) the absence or presence
of provocation; (8) the absence or presence of justification; and (9) the injury to and effect upon non-
decedent victims. We also consider numerous factors about the defendant: (1) prior criminal record,

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if any; (2) age, race, and gender; (3) mental, emotional, and physical condition; (4) role in the
murder; (5) cooperation with authorities; (6) level of remorse; (7) knowledge of the victim’s
helplessness; and (8) potential for rehabilitation. Bland, 958 S.W.2d at 667; see also State v. Bane,
57 S.W.3d 411, 428-29 (Tenn. 2001).

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

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

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

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

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24 S.W.3d 307, 310 (Tenn. 2000) (defendant shot a deputy sheriff in the back of the head at close
range); State v. Cribbs, 967 S.W.2d 773, 777 (Tenn. 1998) (defendant shot victim in the head during
a robbery).

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

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

We reiterate that our task does not require a finding that this case is exactly like a prior case
in every respect, nor does it require a determination that this case is “more or less” like other similar
death penalty cases. See State v. McKinney, 74 S.W.3d 291, 313 (Tenn. 2002). Instead, we must
identify aberrant death sentences by determining whether a case plainly lacks circumstances similar
to those cases in the relevant pool of cases13 in which a death sentence has been upheld. Id.
Accordingly, for the foregoing reasons, the death sentences imposed on Davis for these offenses are
not arbitrary or disproportionate.

CONCLUSION

After reviewing the record and applicable authority, we hold as follows: (1) the evidence was
sufficient to support the jury’s verdicts; (2) the trial court did not err in refusing to disqualify the
District Attorney General; (3) the trial court did not err in refusing to allow defense counsel to
withdraw; (4) the death sentences were not invalid on the ground that the aggravating circumstances
were not set out in the indictment; (5) the trial court did not err in allowing the prosecution to rely
on an offense committed when the defendant was a juvenile in establishing the prior violent felony

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

-20-
aggravating circumstance; (6) the evidence was sufficient to support the jury’s finding of three
aggravating circumstances and its determination that the aggravating circumstances outweighed the
evidence of mitigating circumstances beyond a reasonable doubt; and (7) the death sentences were
not arbitrary or disproportionate. We also agree with and affirm the Court of Criminal Appeals’
analysis and conclusions with respect to the remaining issues, the relevant portions of which are
included in the appendix to this opinion.

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

_________________________________
E. RILEY ANDERSON, JUSTICE

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