State v. Pike
Opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED JULY SESSION, 1997 November 26, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9611-CR-00408 )
Appellee, )
)
) KNOX COUNTY
VS. )
) HON. MARY BETH LEIBOWITZ CHRISTA GAIL PIKE, ) JUDGE )
Appe llant. ) (First Degree M urder-Dea th Penalty)
ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF KNOX COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
WILLIAM C. TALMAN JOHN KNOX WALKUP P.O. Box 506 Attorney General and Reporter Knoxville, TN 37901-0506 KATHY MORANTE
JULIE A. MAR TIN Assistant Attorney General P.O. Box 426 425 5th Avenu e North Knoxville, TN 37901-0426 Nashville, TN 37243
RANDALL E. NICHOLS
District Attorney General
WILLIAM CRABTREE
S. JO HELM
Assistant District Attorneys General City-County Building
Knoxville, TN 37902
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES, JUDGE
OPINION
In this capital case, the Defen dant, Ch rista Gail Pike, was convicted of first
degree murder and conspiracy to commit first degree murder. After the sentencing hearing, the jury found two aggravating circumstances: (1) That the murder was extremely heinous, atrocious or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death; and (2) that the murder was committed for the purpose of avoiding, interfering with or preventing a lawful arrest or prosecution of the Defendant or anoth er. Ten n. Cod e Ann. § 39-13-204(i)(5) and (6). The jury found that the State had proven beyond a reaso nable doubt that the aggravating circumstances outweighed any mitigating circumstances and sentenced the Defendant to death by electrocution. The Defendant was also sentenced to a consecutive sentence of twenty-five (25) years for the conspiracy to commit first degree murder conviction.
On appeal, the Defendant raises the following issues for our review:
(1) Whether the evidence was sufficient to support the verdict of first degree murder and conspiracy to com mit first degree murder and the sentence of death;
(2) whether the trial cou rt erred by refu sing to prohib it the news media from covering pretrial proceedings;
(3) whether the trial court erred by refusing to grant the Defendant’s motion for a change of venue;
(4) whether the trial court erred by failing to allow the Defendant to select a jury com posed of a cross-section of the citizens of Tennessee;
(5) wheth er the tr ial cou rt erred by allow ing the skull of the victim into evidence;
(6) whethe r death by electrocution is cruel and unusual punishment under the federal and state constitutions;
(7) whether the trial cou rt erred in allowing the state and the Defendant the same number of peremptory challenges; and
(8) whether the trial court erre d in its sentencing on the conspiracy to commit first degree murder conviction.
After a review of the record, we affirm both the convictions and the senten ce of dea th.
BACKGROUND
On January 13, 1995, N. Duncan Whitaker Sutherland, an employee of the University of Tennessee Grounds Department, discovered the semi-nude, slashed and badly beaten body of a young female near the greenhouses on the agricu ltural cam pus. He imme diately notified officials.
Officers from the Knoxville Police Department and the U.T. Police Department were summ oned to the scene. Officer John Terry Johnson testified at trial that the body he found was lying face down on debris and was nude from the waist up. Blood a nd dirt covered the body and remaining clothing, and it was apparent that the victim’s head had been bludgeoned. Multiple cuts and slashes appeared on the torso. Officer Johnson stated that he thought he was looking at the victim’s face but he could not be sure because it was extremely mutilated.
As other officers arrived, they began securing the crime area. The area of the crime scene tr ipled as officers discovered other spots of blood, articles of clothing, footprin ts, and broke n foliag e. W hen o fficers tu rned th e bod y over, it appeared that the victim’s throat had been slashed. A rag was around the victim’s neck. Detec tive Donald R . Cook, of the U .T. Police De partment,
accompanied the body to the morgue, and he testified at trial that after the body was cleaned, it was apparent that a design resembling a pentagram had been carved in the victim’s c hest.
Dr. Sandra Elkins, the Knox County Medical Examiner, testified at trial that she had performed the autopsy on the victim, who was later identified by dental records as Colleen Slem mer. S he tes tified tha t after re movin g the vic tim’s clothing and cleaning the body, she had started with the torso to document major sharp force or slash and stab wounds. If it was a fairly major woun d, she would measu re it and assign it a letter. Utilizing a cha rt to demons trate her findings, Dr. Elkins described each majo r woun d, later e xplainin g that a t som e poin t it became obvious that if she labeled each wound, she would have to go through the alphabet again, an d unless she “wa nted to sta y there for th ree days,” she “basic ally threw up [her] hands and just said, enume rable [sic] more superficial slash wo unds o n the ba ck, arm s and ch est.”
Dr. Elkins no ted num erous s lash and stab wo unds o n the ba ck, arms, abdomen, and chest. She described a six inch g aping woun d acro ss the midd le of the victim’s n eck wh ich had p enetrate d the fat a nd muscles of the neck and stated that she had found ten additional slash wounds on the victim’s neck and in the throat area. Other slash wounds were on the victim’s face and it appeared that a pentagram had been carved on her chest. Dr. Elkins repeatedly stated that throughout the infliction of eac h of the se inju ries, sh e was med ically ce rtain that the victim had been alive because of the vital reaction appearing around each wound. She stated that the area around each wound was red in appearance, indicating that the heart had still been beating when the wound was inflicted. She
also testified that none of the aforem entioned wo unds wou ld have rendered the victim unconscious.
Dr. Elkins testified that the cause of death was blunt force injuries to the head. She sta ted that the skull show ed a m inimum of four blow s to the head; two to the left side of the head, one over the right eye, and one in the nose area. The right frontal area of the skull had been fractured as had the bridge of the nose. However, the major wound, labeled as injury “W”, involved most of the left side of the head. D r. Elkins determ ined that this injury, cause d by a blunt blow to the left side of the head, had fractured the right side of the skull and imbedde d part of the skull in th e victim’s b rain. She also found sma ll divots in the sk ull containing black particles from an asphalt chunk which was later determ ined to have been used to administer the blows.
During this portion of her testimony, Dr. Elkins was allowed to use the victim’s skull to describe the injuries. She testified that in order to determine the cause of death, it was necessary to remove the head of the victim and have the skull prepared b y Dr. Murray Marks, a forensic anthropologist at the University of Tennessee. She explained that she had cut the top portion of the skull in order to remove the brain and when she had removed the brain, she discovered that loose pieces of skull were driven into it. She testified that at that time it seemed there was a larger hole in the skull than the pieces she had removed from the brain would fill. Dr. Marks had pieced together those loose portion s of the skull and had fitted them into the left side area of the head. Dr. Elkins then showed the jury a piece of skull that had been given to her the Friday before the trial and demonstrated that it fit perfectly into the rest of the skull. The skull, numerous photog raphs, a nd item s of the victim ’s clothing w ere introd uced into evidenc e.
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED JULY SESSION, 1997 November 26, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9611-CR-00408 )
Appellee, )
)
) KNOX COUNTY
VS. )
) HON. MARY BETH LEIBOWITZ CHRISTA GAIL PIKE, ) JUDGE )
Appe llant. ) (First Degree M urder-Dea th Penalty)
ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF KNOX COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
WILLIAM C. TALMAN JOHN KNOX WALKUP P.O. Box 506 Attorney General and Reporter Knoxville, TN 37901-0506 KATHY MORANTE
JULIE A. MAR TIN Assistant Attorney General P.O. Box 426 425 5th Avenu e North Knoxville, TN 37901-0426 Nashville, TN 37243
RANDALL E. NICHOLS
District Attorney General
WILLIAM CRABTREE
S. JO HELM
Assistant District Attorneys General City-County Building
Knoxville, TN 37902
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES, JUDGE
OPINION
In this capital case, the Defen dant, Ch rista Gail Pike, was convicted of first
degree murder and conspiracy to commit first degree murder. After the sentencing hearing, the jury found two aggravating circumstances: (1) That the murder was extremely heinous, atrocious or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death; and (2) that the murder was committed for the purpose of avoiding, interfering with or preventing a lawful arrest or prosecution of the Defendant or anoth er. Ten n. Cod e Ann. § 39-13-204(i)(5) and (6). The jury found that the State had proven beyond a reaso nable doubt that the aggravating circumstances outweighed any mitigating circumstances and sentenced the Defendant to death by electrocution. The Defendant was also sentenced to a consecutive sentence of twenty-five (25) years for the conspiracy to commit first degree murder conviction.
On appeal, the Defendant raises the following issues for our review:
(1) Whether the evidence was sufficient to support the verdict of first degree murder and conspiracy to com mit first degree murder and the sentence of death;
(2) whether the trial cou rt erred by refu sing to prohib it the news media from covering pretrial proceedings;
(3) whether the trial court erred by refusing to grant the Defendant’s motion for a change of venue;
(4) whether the trial court erred by failing to allow the Defendant to select a jury com posed of a cross-section of the citizens of Tennessee;
(5) wheth er the tr ial cou rt erred by allow ing the skull of the victim into evidence;
(6) whethe r death by electrocution is cruel and unusual punishment under the federal and state constitutions;
(7) whether the trial cou rt erred in allowing the state and the Defendant the same number of peremptory challenges; and
(8) whether the trial court erre d in its sentencing on the conspiracy to commit first degree murder conviction.
After a review of the record, we affirm both the convictions and the senten ce of dea th.
BACKGROUND
On January 13, 1995, N. Duncan Whitaker Sutherland, an employee of the University of Tennessee Grounds Department, discovered the semi-nude, slashed and badly beaten body of a young female near the greenhouses on the agricu ltural cam pus. He imme diately notified officials.
Officers from the Knoxville Police Department and the U.T. Police Department were summ oned to the scene. Officer John Terry Johnson testified at trial that the body he found was lying face down on debris and was nude from the waist up. Blood a nd dirt covered the body and remaining clothing, and it was apparent that the victim’s head had been bludgeoned. Multiple cuts and slashes appeared on the torso. Officer Johnson stated that he thought he was looking at the victim’s face but he could not be sure because it was extremely mutilated.
As other officers arrived, they began securing the crime area. The area of the crime scene tr ipled as officers discovered other spots of blood, articles of clothing, footprin ts, and broke n foliag e. W hen o fficers tu rned th e bod y over, it appeared that the victim’s throat had been slashed. A rag was around the victim’s neck. Detec tive Donald R . Cook, of the U .T. Police De partment,
accompanied the body to the morgue, and he testified at trial that after the body was cleaned, it was apparent that a design resembling a pentagram had been carved in the victim’s c hest.
Dr. Sandra Elkins, the Knox County Medical Examiner, testified at trial that she had performed the autopsy on the victim, who was later identified by dental records as Colleen Slem mer. S he tes tified tha t after re movin g the vic tim’s clothing and cleaning the body, she had started with the torso to document major sharp force or slash and stab wounds. If it was a fairly major woun d, she would measu re it and assign it a letter. Utilizing a cha rt to demons trate her findings, Dr. Elkins described each majo r woun d, later e xplainin g that a t som e poin t it became obvious that if she labeled each wound, she would have to go through the alphabet again, an d unless she “wa nted to sta y there for th ree days,” she “basic ally threw up [her] hands and just said, enume rable [sic] more superficial slash wo unds o n the ba ck, arm s and ch est.”
Dr. Elkins no ted num erous s lash and stab wo unds o n the ba ck, arms, abdomen, and chest. She described a six inch g aping woun d acro ss the midd le of the victim’s n eck wh ich had p enetrate d the fat a nd muscles of the neck and stated that she had found ten additional slash wounds on the victim’s neck and in the throat area. Other slash wounds were on the victim’s face and it appeared that a pentagram had been carved on her chest. Dr. Elkins repeatedly stated that throughout the infliction of eac h of the se inju ries, sh e was med ically ce rtain that the victim had been alive because of the vital reaction appearing around each wound. She stated that the area around each wound was red in appearance, indicating that the heart had still been beating when the wound was inflicted. She
also testified that none of the aforem entioned wo unds wou ld have rendered the victim unconscious.
Dr. Elkins testified that the cause of death was blunt force injuries to the head. She sta ted that the skull show ed a m inimum of four blow s to the head; two to the left side of the head, one over the right eye, and one in the nose area. The right frontal area of the skull had been fractured as had the bridge of the nose. However, the major wound, labeled as injury “W”, involved most of the left side of the head. D r. Elkins determ ined that this injury, cause d by a blunt blow to the left side of the head, had fractured the right side of the skull and imbedde d part of the skull in th e victim’s b rain. She also found sma ll divots in the sk ull containing black particles from an asphalt chunk which was later determ ined to have been used to administer the blows.
During this portion of her testimony, Dr. Elkins was allowed to use the victim’s skull to describe the injuries. She testified that in order to determine the cause of death, it was necessary to remove the head of the victim and have the skull prepared b y Dr. Murray Marks, a forensic anthropologist at the University of Tennessee. She explained that she had cut the top portion of the skull in order to remove the brain and when she had removed the brain, she discovered that loose pieces of skull were driven into it. She testified that at that time it seemed there was a larger hole in the skull than the pieces she had removed from the brain would fill. Dr. Marks had pieced together those loose portion s of the skull and had fitted them into the left side area of the head. Dr. Elkins then showed the jury a piece of skull that had been given to her the Friday before the trial and demonstrated that it fit perfectly into the rest of the skull. The skull, numerous photog raphs, a nd item s of the victim ’s clothing w ere introd uced into evidenc e.
Robert A. Pollock, the orientation specialist at Knoxville Job Corps, testified that he had spoken with the Defendant on January 13, 1995, concerning a misplaced I.D. card. He stated that after the Defendant had left, he noticed a black leather jacket hanging on the chair where she had sat. He testified that he had locked the room at approximately 4:00 p.m. that day and did not return until 7:30 a.m., January 17. He stated that on the 17th, he found the jacket still hanging on the ch air and took it to the Job Corps’ Safety and Security Captain, William Hudson. Hudson testified that he had called the Knoxville Police Depa rtment a nd that O fficer Arthu r Boha nan ha d picked up the jac ket.
Officer Bohanan identified the coat, and it was introduced into evidence.
He testified that he had discovered a small piece of bone in the inside pocket of the coat and ha d imme diately taken it to Dr. Mark s at the University of Tennessee. Dr. Marks testified concerning the process by which the skull had been prepared and again demonstrated that the bone fragment given to him by Officer Bohanan fit perfectly into the bone reconstruction of the skull of the victim.
Kim Iloilo, a Job Corps resident/student and friend of the D efenda nt, testified that the Defendant told her on January 11, 1995, the day before the murder, that she w as going to kill Colleen Slemmer because “she just felt mean that day.” The following day, the Defendant met Iloilo in the parking lot at appro ximate ly 4:00 p.m. and told her that she needed to find Shadolla Peterson. Later that evening, at approximately 8:00 p.m., Iloilo saw the Defendant leave the Job Corps Center with the victim, Tadaryl Shipp, and Shadolla Peterson. She saw Shipp return to the C enter a t appro ximate ly 10:15 p.m. The Defendant and Peterso n returne d five minu tes later.
Iloilo testified that the Defendant then came to her room to tell her that she had just killed Collee n Slem mer. T he De fenda nt sho wed Ilo ilo a piece of Slemmer’s skull she had kept as a souvenir. The Defendant told Iloilo that she had cut Slem mer’s throat, had beaten he r, and had thrown pieces of asphalt at her head. T he De fendan t stated tha t as she w as cutting Slemm er’s throat, Slemmer was asking her to stop, but that sh e continu ed to cut her throat because “she kept talking.” Iloilo stated that as the Defendant described hitting Slemmer in the head with a piece of asphalt and carving a pentagram in her chest, she danced around in a circle, smiling and singing. Iloilo testified that at breakfast the next morning, Iloilo asked the Defendant about the piece of skull and the Defendant told her it wa s in her po cket, stating “And, yes , I’m eating breakfast with it.” Iloilo identified th e black ja cket that h ad previo usly bee n introdu ced into evidence as one similar to a jacket the victim often wore.
On cross-examination, Iloilo admitted that she did nothing when the Defendant told her of her intention to kill Slemmer because she had just “blown [it] off as soon as it was said.” She testified that she had never seen the Defendant fight with anyone else.
Steph anie Leigh Wilson, another resident/student at the Job Co rps Center, testified that on January 13, 1995, she had been in class with the Defendant when the De fenda nt told her to look at the Defendant’s shoes, stating, “Tha t ain’t mud on my sho es. That’s bloo d.” Wilson stated that the Defendant then showed her a piece of human skull and told her that she had slashed Slemmer’s throat and had beaten her in the head with a rock. On cross-examination, Wilson admitted that in a prior statement to police officers, she had stated that the Defen dant told h er that the k illing “had be en a sp ur of the m omen t thing.”
Randy York, a criminal investigator with the Knoxville Police Depa rtment, testified that he had been assigned this case on January 13, 1995. He testified that on the following day, he interviewed the Defendant and Tadaryl Shipp at the Police Department and that he had informed them of their rights and had taken a statement from the Defendant. He stated that the De fenda nt expla ined in detail how the killing had occurred and told him that the blood-stained jeans she had worn during the incident w ere still in her ro om. Sh e also told Officer York that she had discarded two pieces of I.D. of the victim and the victim’s black gloves in a trash can at a Texaco station on Cumb erland Aven ue. The D efendant ga ve consent to search her room and then went with York back to the Job Corps Center. From there the Defendant retraced her steps, describing what had occurred on the night o f the killing . She e ventu ally took Officer York to the exact location where the body was found. The Defendant later gave a tape-recorded statem ent, which w as transc ribed in so me forty-six (46) pages. Copies of the transcription were given to the jury, and the jurors were allowed to listen to the tape thro ugh ind ividual hea dphon es.
In her statement made to Officer York, the Defendant stated that she and Slemmer had been having problems for some time. She recounted an incident whereby she had awakened one night to find Slemmer standing over her with a box cutter. She stated that Slemmer had been “trying to get [her] boyfriend” and had been “running her mouth” everywhere. She stated that on the night of the killing, she had planned only to fight Slemmer and let her know “to leave me the hell alone.”
According to the D efend ant, sh e ask ed Sle mmer to a ccom pany he r to Blockbuster Music Store, and as they were walking, the Defendant told Slemmer
that she had a bag o f “weed” h idden in T yson Pa rk. The group (the Defendant refused to name other parties who were involved in the incident) smoked marijuana and bega n walking towa rd the U.T. ca mpus. U pon arriving at the steam plant on U.T.’s agricultural campus, the Defendant and Slemmer exchanged words. The Defendant then began hitting Slemmer and banging her head on the Defendant’s knee. She threw Slemmer on the ground and kicked her repeated ly. According to the Defendant, as she slammed Slemmer’s head into concre te, Slem mer ke pt asking , “Wh y are you doing this to me?” The Defendant continued to kick Slemm er in the face and in her side as Slemmer cried.
The Defendant and another person held the victim down and dragged her to another area where the Defendant cut her with a box cutter. The Defendant stated that as Slemmer screamed, she began to hear voices telling her that Slemmer would tell on her and that she would go to prison for attempted m urder. Slemmer attempted to get up and the Defendant cut her on the back. The Defendant stated tha t Slemm er kept trying to get up and run, telling the Defendant that if she w ould just let her go she w ould w alk ba ck to h er hom e in Florida. The Defendant told her to “shut up” because it “was harder to hurt somebody when they’re talking to you.” The Defe ndant stated th at the more Slemm er talked, the mo re the Defen dant kicked h er.
Slemmer asked the Defendant what she was going to do to her, and the Defendant thought she heard something. The Defendant left the scene to check out the surrounding area to make sure no one was around. When she returned, the Defendant began cutting Slemmer across the throat. When Slemmer
continued to talk, the Defendant cut her throat more. The Defendant stated that the episode lasted “for about thirty m inutes to an ho ur.”
Slemmer attempted to run again, and the De fenda nt threw a rock which hit Slemmer in the b ack o f the he ad. Sh e state d that “th e othe r perso n” also hit Slemmer in the head with a rock. The D efend ant co ntinue d to hit her and then asked her, “Colleen, do you know who’s doing this to you?,” but according to the Defen dant, Slemmer only made groaning noises. The Defendant and the other person washed their hands and shoes in a mud puddle. They discarded the box cutter and the miniature meat cleaver that had been used in the incident. The Defendant described dragging Slemmer to some nearby trees and leaving her clothe s in the bushes. After the Defendant’s statement was played for the jury, pictures of the D efendant an d Tadaryl Shipp, each of them wearing a necklace in the sha pe of a pe ntagram , were intro duced into eviden ce.
Mark A. Waggoner, an officer with the Knoxville P olice De partme nt, testified that he had been d ispatche d to a Texaco Station on Cumberland Avenue where he retrieved a pair of black gloves and two of Slemmer’s I.D. cards. These items were also made exhibits. Another officer, Lanny Janeway, used a chart to illustrate each of the locations where blood or evidence was found. Photographs of bloody chunks of asph alt, bloo d dripp ings o n leave s, and pools of blood were introduced into evidence. The bloody piece of asphalt and the victim’s bloody clothing were also introduced into evidence.
Special Agent Raymond A. DePrie st, a forensic scientist employed by the Tennessee Bureau of Investigation, testified that he had received blood samples taken from the shoes and clothing of the Defendant and Shipp. Those items that
he determined had human blood on them were sent to the DNA unit. Margaret Bush, an employee of the Tennessee Bureau of Investigation assigned to the DNA unit, testified that the shoes of the Defendant and Shipp contained an insufficient amount of DNA for analysis but that the blood on the clothing of both had matched the DN A pro file of the victim. S he sta ted tha t there w as a 1 in 200,147 chance in the Caucas ian comm unity that there would be such a match and a 1 in 600,018 c hance in the A frican-Ame rican comm unity. The state rested its case.
Dr. Eric Engum, a psychologist retained by the Defe ndant, testified for the defense that he had conducted a clinical interview and had administered a battery of tests to the Defendant. He concluded that the Defendant suffers from a very severe borderline p erson ality diso rder an d exhib its signs of can nabis dependence and inhala nt abuse. He testified that the Defendant is not so dysfunctional that she needs to be institutionalized but that she has a m ultiplicity of problems in interpe rsona l relation ships , in con trolling h er beh avior, a nd in achieving vocatio nal and ac adem ic goals. H e stated th at the batte ry of tests administered to the Defendant indicated that she is an extremely intelligent young woman.
Dr. Engum stated that it was his opinion that the Defendant did not act with deliberation or premeditation in killing Slem mer, b ut had acted in a manner consistent with his diagnosis of borderline personality disorde r; she lo st con trol. He explained that she had danced around when relating the event to another person because of the emotional release she experienced from having assured through the killing of Slemmer that she could maintain her relationship with Shipp. When question ed abo ut the piece of skull found in the Defenda nt’s coat, Dr.
Engum explain ed tha t the D efend ant ac tually ha s no id entity and the action of taking and s howin g a pie ce of S lemm er’s sk ull to friends was her way of getting recognition, “no matter how distorted” that recognition was.
On cross-examination, Dr. Engum stated that there was no question that the Defenda nt had killed Slem mer. He reiterated that it was his opinion that once the attack began, the Defendant literally lost control. However, Dr. Engum admitted that it had been a deliberate act to entice Slem mer to the pa rk to beat her. He admitted that carving a pentagram on Slemmer’s chest and bashing her head had been a deliberate act. He recognized that the Defe ndant h ad time to calm down w hen sh e left Slem mer to see if anyone was around. He also conceded that the weapons the Defendant carried with her and used in the attack might ind icate that s he had intended to kill the victim.
William Bernet, medical director of the psychiatric hosp ital at Va nderb ilt University, testified that he had reviewed the statement of the Defendant and Kimb erly Iloilo and the reports of Dr Engum, Dr. Elkins and Dr. Marks. He concluded that although there were satanic elements in th is crime, the pattern was that of an adolescent dabbling in Satanism. He then described a pattern known as the phen ome non o f collect ive agg ressio n, whe reby a group of peo ple gather and become emotionally aroused and the end result is that they engage in some kind of violent behavior. On cross-examination, Dr. Bernet admitted that he had spoke n neither with the D efenda nt nor an y of the witne sses.
Based on this evide nce in the guilt phas e, the jury fou nd the D efenda nt, Christa Gail Pike, guilty of first degree murder and conspiracy to commit first degree m urder.
In the sentencing phase of the trial, the State relied on the evidence presented at the g uilt pha se an d pres ented no furth er proo f. In mitig ation, C arrie Ross, the Defendant’s aunt, testified that the Defendant had experienced no maternal bonding because she was premature and was raised by her paternal grandmother until she died in 1988. Ross stated that the Defendant was shuffled between her m other a nd fath er and that the Defe ndan t’s mother set no rules for her. She testified that on the occasions that the Defendant had visited her house, she behaved as a “little girl,” playing Barbie and dress-up with h er eleven-year- old cousin. On cross-examination, however, Ms. Ross admitted that she had previo usly described the Defendant as a pathological liar and had been a fraid to have the Defendant around her own children. She admitted saying that the Defendant had been out of control since she was twelve-years old.
Glenn Pike, the Defendant’s father, testified that he had kicked the Defendant out of his house in 1989 and that he had signed adoption papers for her prior to her eighteen th birthday. On cr oss-e xamin ation, h e adm itted tha t in 1989, there had been an allegation that the Defen dant had a bused his two -year- old daughter by a second wife. He stated that he was unable to make the Defendant do her schoolwork and that she had always lied and been manipulative.
The Defendant’s mother, Carissa Hansen, a licensed practical nurse, testified that the D efenda nt had lived with her 95 % of the time since her grand moth er’s death. S he adm itted smo king m arijuana w ith the Defe ndan t in order to “esta blish a friends hip.” She related that the Defendant had taken an overdose shortly after the death of her paternal grandmother. Hansen also
testified that one of her boyfriends had whipped the Defendant with a belt and that she had the boyfriend arrested.
On cross-examination, Ms. Hansen admitted that the Defendant had been a problem for ten years. She admitted that the Defenda nt had pulled a “butcher- knife” on the previously mentioned boyfriend. She testified that the Defendant had lied to her and stolen from her on numerous occasions and had quit high scho ol. She stated that she had no control over the Defendant since she was eight years old. Following Ms. Hansen’s testimony, the defense rested.
As rebuttal proof, Harold James Underwood, Jr., a University of Tennessee police officer, testified that on January 13, 1995, he was assigned to secure the murder scene in this case. He testified that the Defendant came to the scene at appro ximate ly 4:00 p.m. and asked him why the area had been marked off. She then questioned him concerning the identity of the victim and whether or not the police had any suspects. Underwood testified that the Defendant seemed amused as she was giggling and moving around.
Based on the proof, the jury found the existence of the following two aggravating circumstances beyond a reason able do ubt: (1) That the murder was extrem ely heinous, atrociou s or cruel in that it involved torture or serious physical abuse beyond tha t necessary to produce death; and (2) that the murder was committed for the purpose of avoid ing, interfering with or preventing a lawful arrest or prosecution of the Defendant or another. Tenn. Code Ann. § 39-13- 204(i)(5) and (6). In addition, the jury found that the State had proven beyond a reaso nable doubt that the aggravating circumstances outweighed any mitigating circumstances and as a result, sentenced the Defendant to death.
TRIAL ERRORS
A. Sufficiency of the Proof
The Defendant argues that the State did not prove every element of the offenses of first degree murder and conspiracy to commit first degree murder beyond a reaso nable d oubt. Sp ecifically, in reg ard to the first degree murder conviction, the Defendant argues that the State did not introduce any evidence relating to deliberation or of the Defendant having the opportunity to reflect upon her actions after “the mind was free from the influence of excitement or passio n.” She argues that there was no proof outside of the uncorroborated statement of the Defenda nt that Shado lla Peterson or T adaryl Shipp participated in the murder so as to warrant the conviction of conspiracy to commit first degree murder. The Defendant also maintains that the proof was insufficient to justify the jury’s sentence of death and that the jury failed to properly consider and weigh the mitigating factors against the aggravating factors.
When an accused challenges the sufficiency of the convicting evidence, we must review the evidence in the light most favorable to the prosecution in determining whether "any rational trier of fact could have found the essential eleme nts of the crime beyon d a rea sona ble doubt." Jack son v. V irginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We do not reweigh or re- evaluate the evidence and are required to afford the state the strong est legitim ate view of the proof contained in the record a s well as a ll reasona ble and legitimate inferences which may be draw n therefro m. State v. Cabbage, 571 S.W.2d 832, 835 (Ten n. 1978).
Questions concerning the credibility of witnesses, the weigh t and valu e to be given to the evidence, as well as factual issues raised b y the evidence a re resolved by the tr ier of fac t, not this court. Cabbage, 571 S.W .2d at 835 . A guilty verdict rende red by the jury a nd ap prove d by the trial judge accredits the testimony of the witnesses for the state, and a presumption of guilt replaces the presumption of innoce nce. State v. Grace, 493 S.W.2d 474, 476 (Ten n. 1973).
An appellant challenging the sufficiency of the proof has the burden of illustrating to this court why the evidence is insufficient to support the verdict returned by the trier of fact in his o r her cas e. This court will not disturb a verdict of guilt for lack of sufficient evidenc e unless the fac ts contained in the record and any inferences which may be drawn from the facts are insufficient, as a matter of law, for a rational trier of fact to find the appe llant gu ilty beyo nd a re ason able doubt. State v. Tug gle, 639 S.W .2d 913, 914 (Tenn. 198 2).
Tennessee Code Annotated sections 39-13-201(a) and -201(b) provide that a deliberate act is "one performed with a cool purpose" and a premeditated act is "one done after the exercise of reflection and judgment." The existence of premeditation and deliberation is a question of fact that may be inferred from the manner and circu mstan ces of the homic ide. State v. Tune, 872 S.W.2d 922, 925 (Tenn. Crim. App. 1993). In Tune, this Court held that "[w]hile willful killing w ith a dead ly weap on is n ot suffic ient by itself to support an inference of premeditation, there were other circumstances before the jurors from which they could infer the exis tence o f both pre medita tion and d elibera tion in th is Defen dant's m ind." Id.
In the light most favorable to the State, the evidence reflects that the Defendant told a friend the day before the killing that s he was going to kill the victim. Also, during the killing, the Defendant made repeated attacks on the victim over a period of time in which she could have reflected upon her actions, espe cially when she left the victim to see if anyone else was around. By the Defe ndan t’s own s tatem ent, the reaso n for killin g the vic tim was to assure that the victim c ould n ot testify against her for “attempted murder.” And finally, the Defe ndan t’s own expert admitted that the act of carrying a box cutter and meat cleaver was a d eliberate a ct. We are satisfied that the evidence in this case was sufficient to establish the eleme nts of prem editation a nd delibe ration so a s to warrant the jury’s verdict in the first degree murder conviction.
In regard to the co nspiracy to com mit first degree m urder conviction, the Defendant maintains that there was no proof beyond her “uncorroborated statem ent” that a box cutter had been used on the victim or that others had attacked the victim with cutting instruments. In her statement to the police, the Defendant related that others were with her when the killing took place. She also stated that a person re ferred to as “he” ha d participated in the tortu re of the victim and that this person had brought a miniature meat cleaver with him that evening.
The essence of conspiracy has always been an agreement to commit a crime. State v. Hodgkinson, 778 S.W .2d 54, 58 (Tenn . Crim. A pp. 198 9). A cons piracy requires a knowing involvement. However, no formal or expressed agreement is necessary a nd the agree ment m ay be proved by circumstantial evidence. State v. Shropshire, 874 S.W .2d 634, 641 (Tenn. Crim . App. 1993 ). “The unlawful confederation may be established by circumstantial evidence and the conduct of the parties in the execution of the criminal enterprise. Conspiracy
implies concert of design and not participa tion in every detail of exe cution.” Randolph v. State, 570 S.W.2d 869, 871 (Tenn. Crim. App. 1978). A confession may sustain a conviction where there is other evidence sufficient to show the commission of a crime by someo ne. Franklin v. State, 513 S.W.2d 146, 151 (Tenn . Crim. A pp. 197 4).
In this case there was a confession by the Defendant that she and another person referred to as “he” accompanied the victim to Tyson Park. Both the Defendant and a nothe r perso n partic ipated in dragging the victim to a more isolated location and mutilating the victim with a box cutter and a meat cleaver. A witnes s testifie d that th e Def enda nt state d she was g oing to kill the vict im the day before the murder. A witness testified that the Defendant, Tadaryl Shipp and Shad olla Peterso n left with the v ictim and returned together later that evening without the victim. DNA testing of the Defendant’s and Shipp’s clothing revealed blood stains matching that of the victim’s. Both the Defendant and Shipp wore pentagram necklaces and a “Satanic Bible” was recovered from a search of Shipp ’s room. The Defendant admitted that she and the other person carved the pentagram in the victin’s ch est. The Defendant c ontends that the proof was insufficient to demonstrate that she possessed the requisite reflection to su pport the conviction for conspiracy to co mmit first-degree murder. Yet, the re is amp le circumstantial evidence that the Defendant and Shipp deliberately planned and executed the killing.
Finally, the Defendant contends that the proof was insufficient to justify the jury’s sentence of death and that the jury failed to properly consider and weigh the mitiga ting fac tors ag ainst th e agg ravatin g factors. However, the re cord
revea ls that the ap plication of b oth of the aggravating factors was supported by evidence.
The jury found that the aggravating circumstance that the murder was espe cially “heinous, atrocio us or c ruel” w as ap plicab le in this case. The medical examiner testified that there were so many wounds on the victim’s body they could not be cataloged . The victim’s throa t had been slashed repe atedly, defensive wounds were on he r right arm, and a t least four heavy blows had been administered to her head. A pentagram had been carved in her che st. The medical examiner repeatedly testified that all of the wounds prior to the final blow to the he ad ha d bee n ma de wh ile the vic tim wa s alive and conscious. W e conclud e that the re cord am ply supp orts app lication of this a ggravato r.
The jury also found that the aggravating circumstance that the murder was comm itted for the purpose of “avoiding, interfering with or preventing a lawful arrest” was applicable. The Defe ndan t, herse lf, told offic ers tha t as the victim continued to beg for her life, she told the victim that she was not going to be “rotting in jail because of [her] stupid ass.” Sh e also stated that a voice kept telling her that she would go to prison for attempted murder if she let the victim go. We conclude tha t there was ample evidence to support the application of this aggravator.
The m itigating circumstan ces offered to the jury were that the Defendant had no significant history of prior criminal activity, that the murder was committed while the Defendant was under the influence of extreme mental or emotional disturbance, that the Defendant was young, that the capacity of the Defendant to appreciate the wrongfulness of her conduct or to conform her conduct to the
requirem ents of the la w was subs tantially impaired as a result of mental disease or intoxication, and any other mitigating factor that was raised by the evidence. The Defendant argued that her difficult childhood should also be considered as mitigation.
Again, in reviewing the evidence in the light most favorable to the State, a rational juror could have concluded that the applicable aggravating circumstances outweighed the mitigating factors. Therefore, we conclude that the sentence of death was supported by the evidence.
B. Media Coverage
The Defendant argues that the trial court erred by refusing to grant her motion to deny television coverage of the pretrial proceedings. The Defendant asserts that me dia cove rage in the case m ade jury s election d ifficult, but the Defendant presents no proof that a juror was biased because of the coverage. The Defendant also ass erts that the cameras in the courtroom “arguably affected witness testimony and was gene rally disruptive of the proceedings,” but again, the Defendant cites no specific instances to justify this conclusion.
Supreme Court Rule 3 0 provides for in-court media coverage at trial proceedings.1 Cove rage is subje ct, at all tim es, to th e auth ority of the judge to “(i) control the conduct of the proceedings before the court; (ii) maintain decorum and prevent distraction; (iii) guarantee the safety of any party, witness, or juro r; and (iv) ensure the fair and impartial administration of justice.” Rule 30(A)(1),
1 Tenn essee Suprem e Cou rt Rule 30 becam e effec tive Janu ary 1, 1996 , and wa s a one year pilot project which was to expire on December 31, 1996. However, on December 30, 1996, the rule, as am ended , was m ade pe rma nent.
(D)(2). Further, Rule 30 (D)(2) allows the trial court, upon a proper s howing , to limit in-court media coverage in order to accommodate any of these important interests.
This Court ha s held tha t Rule 30 presum ptively entitles the media to in-
court came ra covera ge. State v. Freddie Morrow, C.C.A. No. 01C01-9601-CC- 00022, Robertson County (Tenn. Crim. App., Nashville, Apr. 12, 1996). Given this presum ption, any finding that such coverage should be denied, limited, suspended, or terminated must be supported by substantial evidence that at least one of the four interests in Rule 30(A)(1) and (D)(2) is of concern in the case before the court. The burden of proof in produc ing this evid ence is o n the pa rty seeking limits on media coverage.
In the present case, the record before the court reflects only the general statement of counsel that pretrial media coverage would make jury selection difficult and wo uld dep rive the De fendan t of a fair trial bec ause it “arguab ly affected witness testimony and was generally disruptive of the proceedings.” There is no evidence to substantiate the De fendant’s claim s. Although jury selection was lengthy, there is no assertion that any particular juror was biased because of the media coverage. The Defendant provides no proof that testimony was affected or that the proceedings were disrupted. We cannot, therefore, conclude that the trial court abused its discretion in failing to exclude pretrial media coverag e.
C. Change of Venue
The Defendant argues that the trial court erred by failing to grant her motion for a change of venue. She mainta ins that a majority of prospe ctive jurors
admitted that they had heard detailed information about the case. The Defendant cites the United States Supreme Cour t decis ion in Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 16 39, 6 L.Ed.2 d 751 (1961 ), in support of the proposition that a change of venue sho uld be granted if extensive pretrial publicity was such that the court shou ld presum e the jury is tainted even if prospective jurors stated that they would be able to set aside what they had seen or heard.
Howeve r, in Dowd, jury sele ction lasted more than four weeks. Also the Supreme Court specifically stated that due to “swift, widespread and diverse methods of com mun ication ,” it is not required that jurors be totally ignorant of the facts and issues involved. 366 U.S. at 722, 81 S.Ct. at 1642. The court also stated that “[i]t is s ufficien t if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” 366 U.S. at 723, 81 S.Ct. at 1643. In Dowd, the panel consisted of 430 persons. The court itse lf excused 268 of tho se pers ons du e to their fixed op inions of g uilt, and 103 w ere excused beca use o f their conscientious objection to the death penalty. 366 U.S. at 727, 81 S.Ct. at 1645. The voir dire record indicated that 370 of the prospective jurors ente rtained so me op inion as to guilt, ranging from me re suspicion to absolu te certainty. Of the twelve jurors selected, eight thought the Defen dant wa s guilty. Id.
In the present case, although many potential jurors had indicated that they had heard something about the case in the media, every juror who said he or she was familiar with the case said that he or she could disregard the reports and render an impartial decision. All potential jurors who said they could not disregard the reports were excused for cause. The Defendant has cited no specific response from any seated juror that was troublesome.
D. Excusal of Juro rs
The Defendant asserts that the trial court impanelled a jury that was pro-
death penalty and improperly excused for cause those prospective jurors that indicated that they were oppos ed to the d eath pe nalty. The D efenda nt sugg ests that the trial cour t erred in de nying he r propos al that a “do n’t ask, do n’t tell,” procedure be used where by juro rs wou ld not b e requ ired to te ll the court about their personal fee lings about the d eath pena lty.
In Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985 ), the United State Suprem e Court reaffirm ed as the pro per standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment the test of “wheth er the ju ror’s vie ws wo uld ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instru ctions an d his oath .’” In State v. Alley, 776 S.W.2d 506, 518 (T enn. 19 89), cert. denied, 493 U.S. 1037, 110 S.Ct. 758 (1990), the Tennessee Supr eme Cour t held that “the trial court’s finding of the bias of a juror because of his views of capital punishment shall be accorded a presumption of correctness and the burden shall rest upon the Defendant to establish by convinc ing eviden ce that tha t determ ination wa s errone ous.”
The Defendant notes that in the present case the trial court examined prospective jurors extensively regarding their thoughts about the de ath pen alty and allowed counsel to exam ine those who indicated that they had a problem with the death pe nalty in an effort to rehabilitate them. The Defendant cites no prospective juror who was excluded that should not have been. Applying the
standard as set forth in Alley, the Defendant has failed to establish by convincing evidenc e that the c ourt’s actio ns were erroneo us. This issue is with out me rit.
E. Use of the Skull as Evidence
The Defendant next complains that pursuant to Rule 403 of the Tennessee Rules of Evide nce, th e sku ll of the vic tim sh ould have be en exclu ded be cause its probative value wa s substa ntially outweighed by its prejudicial effect. The Defendant asserts that the skull was also cumulative evidence because prior to its admission, numerous photographs of the skull were admitted to show the damage to the victim’s head.
The State argues that the introduction of the skull was an important portion of the medical testimony. The medical examiner testified that she had sent the skull to a fore nsic an thropo logist to be rec onstru cted b ecau se sh e cou ld not te ll exactly what had happened without the reconstruction. The skull was used by the medical examiner to show the amou nt of force th at was a pplied to it, as we ll as the w eapon that was u sed. Pie ces of as phalt we re emb edded in the sku ll.
In this case, the skull had been thoroughly cleansed and w as no mo re prejudicial or gruesome than a model diagram would have been. Dr. Elkins, the medical examiner, testified that the recon structe d sku ll would illustrate to the jury what had occurred to the victim and demonstrate the amount of force that was applied as well as the type of weap on use d to inflict the head injuries . Ther e is no question that the nature and type of injuries sustained by the deceased and the manne r in which death o ccurred we re relevant cons iderations by the jury. Moreover, the sk ull was used to illustrate that the piece of skull found in the
Defe ndan t’s jacket fit perfectly into the reconstructed skull. The skull was, therefore, highly relevant in establishing the circumstances surrounding the offense . See State v. Cazes, 875 S.W.2d 253, 263 (T enn. 19 94); cert. denied, 115 S.Ct. 74 3, 130 L .Ed2d 6 44 (199 5); State v. Morris , 641 S.W.2d 883, 888 (Tenn . 1982). T his issue is without m erit.
F. Cruel and Unusual Punishment
The Defendant conten ds that the punishm ent imp osed u pon he r, death by electrocution, is cruel and unusual punishment under the state and federal cons titutions. However, this issue has been previously decided by the Tennessee Supre me C ourt and determ ined to be without m erit. See State v. Cazes, 875 S.W .2d 253 (Tenn . 1994); State v. How ell, 868 S.W.2d 238 (Tenn. 1993); State v. Black, 815 S.W .2d 166 (Te nn. 1991).
G. Peremptory Challenges
The Defendant contends that at the time of the offens e, the ru les in effect gave the Defendant fifteen (15) perem ptory challe nges com pared to the S tate’s eight. See Rule 24(d), Tenn. R. Crim. P. (19 95). H owev er, at the time o f trial, the rules had b een c hang ed to g ive an equal num ber of pe rempto ry challeng es to both the Defendan t and the S tate. See Rule 24 (d), Ten n. R. Crim . P. (1996 ). The Defendant argues that application of the new rule violated the ex pos t facto provision of the Tennessee Constitution which requires that rules not be applied to events which oc curred p rior to their en actme nt.
The term "ex post facto" as used in Article I, § 10, cl. 1, of the U.S.
Constitution, provides that "[n]o state shall ... pass any ... ex post facto law." The
Tennessee Constitution's ex post facto prohibition found in Article I, § 11, provides:
That laws m ade for the punishment of acts committed previous to the existence of such laws, and by them only declared criminal a re contra ry to the principles of a free G overnm ent; wherefore no Ex post fa cto law shall be ma de.
Two critical elements must be present for a law to fall within the prohibition.
First, it "mus t be retr ospe ctive, tha t is, it must app ly to events occurring before its enactment"; and second, "it must disadvantage th e offend er affected by it." Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987) (quoting We aver v. Graham , 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981)); State v. Ricci, 914 S.W .2d 475 , 480 (T enn. 19 96). Furthermore, Tenn essee Code Annota ted sectio n 39-11 -112 pro vides that:
whenever any penal sta tute or penal legislative act of the state is repealed or amend ed by a sub sequent leg islative act, any offense, as defined by the statute or act being repealed or am ende d, com mitted while such statute or act was in full force an effect s hall be pro secute d unde r the act or s tatute in effect at the time of the commission of the offense.
Yet, the United States Sup reme C ourt has held that laws which change a rule of eviden ce, but wh ich do no t increase the punishment nor change the eleme nts of the offense or the ultim ate fac ts nec essa ry to esta blish g uilt, but o nly remove existing restrictions on the competency of certa in classes of evidence or of person s as witne sses do not cons titute ex pos t facto laws . State v. Bragan, 920 S.W.2d 227, 241 (Tenn. Crim. App. 19 95) (citation s omitted ). In Dobbe rt v. Florida, 432 U .S. 282, 2 93, 97 S .Ct. 2290, 53 L.Ed.2d 344 (1977), the Supreme Court held that the prohibition of ex pos t facto laws does not extend to eve ry change of law that "may work to the disadvantage of a defe ndan t." Instea d, it is intended to secure "substantive personal rights" from retroactive deprivation and
does not "limit the legislative control of remedies and modes of procedure which do not affect matters of substan ce." Id. Thus, laws which change rules of procedure but which do not affect a ny subs tantial right of a defendant are not ex post facto laws.
Here, it is apparent that the trial court applied a procedural rule that had been amended after the commission of the crimes in question. The Defendant also claim s that th e right to a fair and impartial jury was impaired by the increase in perem ptory cha llenges fo r the State . Howe ver, the Defendant has not proffered any evidence that the jury, as it was composed by the State’s using the additional peremp tory challenges, pre vented her from receiving a fair trial. Absent proof that the Defendant was disadvantaged or that a substantive right was impaired by the amended procedural rule, we cannot conclude that an ex post facto violation oc curred. T his issue is without m erit.
H. Sentencing on the Conspiracy Conviction
The Defendant argues that the trial court erred in sentencing the Defendant to a consecutive sentence of twenty-five (25) years for the conviction of conspiracy to commit first-degree murder. The Defendant complains that the trial court inappropriately used the aggravating circumstance that the crime was espe cially cruel to se ntence her to the maximum sentence. She further complains that the trial co urt erred in determ ining that she was a dangerous offender and ordering her to serve the sentence consecutively to the dea th sentence.
When an accused challenges the length, range, or the manner of service of a sen tence , this court has a duty to conduct a de novo review of the sentence with a presumption that the determinations m ade by th e trial court a re correc t. Tenn. Code A nn. § 40-35-4 01(d). This pre sumption is “c onditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circum stances.” State v. Ashby, 823 S.W.2d 166, 169 (T enn. 1991 ).
In conducting a de novo review of a sentence, this court must consider: (a)
the evidence, if any, received at the trial and the sentencing hearing; (b) the presentence report; (c) the principles of sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement that the Defendant made on his own behalf; and (g) the potential or lack of potential for rehab ilitation or treatm ent. Tenn . Code Ann. § § 40-35-102, 1-103, and -21 0; see State v. S mith, 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).
If our review reflects that the trial court followed the statutory sentencing procedure, imposed a lawful sentence after having given due consideration and proper weight to the factors and principles set out under the sentencing law, and that the trial court’s findings are adequately supported by the record, then we may not modify the sentence even if we would have preferred a different result. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).
At the sentencing hearing, the State called as its only witness Officer Deb bie Wade, a Cor rection s Office r with the Knox Coun ty She riff’s Depa rtment. She testified that on the day the Defendant was sentenced to die, she gave
Officer Wade a letter and requested that it be passed to her co-De fendan t, Tadaryl Shipp. Officer Wade gave the letter to her lieutenant and was told not to pass it to Mr. Shipp. The letter was introduced into evidence and read as follows:
Tad aryl, hey, love, I just wanted you to know how much I love you. I have ten months to live. Imagine that. I would spend every moment with you if I could, baby. I want to tell you to tell them you lied in your statement and go along with mine. Do you have a copy of mine? If not, I’ll give you one. O kay? I love you big bunches, baby, and no matter what they do to me they can ’t change what’s in m y heart. Ple ase write me. I miss you so much . You see what I got for trying to be nice to that whore. I went ahead and bashed her brains out so she w ould d ie quic kly instead of letting her bleed to death and suffer m ore and they fu ckin fry me. Ain’t that some shit. Please write and tell me what you’re feeling. Baker said he would give you some paper and shit while you are out there. Also tell your lawyer if he wa nts m e to I’ll test ify, testify fo r you, I w ill.
Love y ou for th e rest o f my life. L ittle devil.
The trial court classified the Defen dant as a Ran ge I, standard offender on the convic tion for c onsp iracy to c omm it first degree mu rder. The trial court also considered several enha ncem ent an d mitig ating fa ctors in setting the sentence above the minimum presumptive sentence of fifteen (15) years. First, the trial court applied enhancement factor number (2), that “[t]he Defendant was a leader in the commission of an offense involving two (2) or m ore criminal acto rs.” Tenn. Code Ann. § 40-3 5-114(2). Th e trial judge then stated that factor num ber (5), that “[t]he Defendant treated or allowed a victim to be treated with exceptional cruelty during the commission of the offens e,” wou ld not b e relied upon heavily because it had already been used in sentencing the Defendant to death on the other count. Tenn. C ode An n. § 40-3 5-114(5 ). Factor n umbe r (7), that “[t]he offense involved a victim an d was c omm itted to gratify the Defendant’s desire for pleasure and excitement,” factor number (9), that “[t]he Defendant possessed or
employed a firearm, explosive device or other deadly weapon during the commission of the offense,” and factor numb er (10), that “[t]he Defendant had no hesitation about committing a crime when the risk to human life was high,” were also found to be applicable. Tenn. Code Ann. §§ 40-35-114 (7),(9), and (10). The trial court found that no mitigating factors were applicable.
W e find error with only one of the trial court’s applications of enhancement factors. The trial judge held that the Defendant had no hesitation about committing a crime when the risk to human life was high. Tenn. Code Ann. § 40-35-114 (10). We believe that the court improperly applied this enhancement factor. Enhancement factor (10) refers to the defendant having "no hesitation about committing a crime when the risk to human life is hig h." This Court has previo usly recognized that factors which are inherent in a particular offense, even if not designated as an element, sh ould n ot be g iven su bstan tive weig ht in increasing a senten ce. See, e.g., State v. S cott, 735 S.W .2d 825, 830 (Tenn. Crim. App. 1987). We conclude that the risk to human life is inherent in the grading of the offense of conspiracy to commit first-degree murder. According to Ten ness ee Co de An notate d sec tion 39 -12-1 07, “co nspira cy is an offense one (1) classification lower than the most serious offense that is the object of the consp iracy.” First-degree murder is classified as a capital offense, therefore conspiracy to commit first-degree murder is a Class A felony, a class reserved for only the m ost seriou s offense s.
Moreover, the ind ictme nt con tains a llegatio ns in support of the element of conspiracy that an overt act be taken, that the Defen dant an d two oth ers left the Job Corps center, took the victim to an isolated location and attacked her with a box cutter. Not only is the risk to human life inherent in the offense, in the case
sub judice, high risk acts were included in the indictment as c harged in su pport of an element of the crim e. See Tenn. C ode Ann . § 39-12-103 (a), (d). Enhancement factors may be applied “if not themselves essential elements of the offense as charged in the indictment.” Tenn. Code Ann. § 40-35-114. For both of these reasons, we conclude that enhancement factor should not have been applied.
The evidence produc ed at trial, inclu ding the D efenda nt’s own s tateme nt, and the letter introduced at the sentencing hearing would certainly support the factor that she was a leader in the commission of the offense. The statement of the Defendant, the testimony concerning her recounting of the incident to others, the fact that she carried a piece of the victim’s sk ull as a souven ir, and her return to the scene were evidence of her desire for excitement and pleasure. Again, by her own statement, the Defendant admitted carrying a deadly weapon.
Although we dis agree with the trial cou rt’s finding that the Defendant’s age and lack of a significa nt histo ry of prio r criminal activities were n ot app licable mitigating factors, we cann ot conclude th at the trial court erred in sentencing the Defendant to the maximum sentence of twenty-five (25) years. Cle arly, when the applicable enhancing factors are weighed against the mitigating factors, the record supports the trial court’s sentence.
The trial court found that consecutive sentences were warranted because the Defendant is a dangerous offender whose behavior indicates little or no regard for human life and had no hesitation about committing a crime in which the risk to hum an life was high. See State v. W ilkerson, 905 S.W.2d 933, 937-39 (Tenn. 1995). Again, given the circumstances surrounding this offense,
espe cially the heinous nature of the crime and the fact that the Defendant showed no remorse, we conclude that the Defendant met th e criteria for consecu tive sentencing and the trial court did not abuse her discretion in ordering such. T he sen tencing is sues ra ised by the Defen dant are without m erit.
CONCLUSION
Upon careful review of the record, we conclude that the Defendant has offered no grounds that warrant relief from her convictions of premeditated first degree murder and conspiracy to commit first degree murder. Moreover, we conclude that the Defendant has failed to establish any ground warranting relief from the sentence of death and the consecutive sentence of twenty-five (25) years.
Therefore, after a thorough review of the issues and the record before us as mandated by Tennessee Code Annotated section 39-13-206(b) and (c), and for the reasons stated herein, w e affirm the appellan t’s senten ce of dea th. W e conclude that the sentence was not im pose d in an arbitrary fashion, the evidence suppo rts the jury’s finding of the aggravating circumstances, and the evidence suppo rts the jury’s finding that the aggravating circumstances outweigh any mitigating circumstances. Moreover, a comparative proportionality review, considering both the c ircums tances of the crim e and th e nature of the app ellant, convinces us that the sentence of death is neither excessive nor dispro portiona te to the penalty imposed in similar cases.
Accordingly, the judgment of the trial court is affirmed.
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DAVID H. WELLES, JUDGE
CONCUR:
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THOMAS T. WOODALL, JUDGE
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JOHN K. BYERS, SENIOR JUDGE
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