         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                       July 2005 Session

                  STATE OF TENNESSEE v. ROBERT HOOD

                  Direct Appeal from the Criminal Court for Shelby County
                         No. 01-05939-40    Joseph B. Dailey, Judge



                 No. W2004-01678-CCA-R3-DD - Filed September 13, 2005


Capital Defendant, Robert Hood, appeals as of right his conviction of first degree murder and
sentence of death resulting from the 2001 murder of Toni Banks. A Shelby County grand jury
charged the defendant by indictment with one count of felony murder, one count of premeditated
murder, two counts of misdemeanor theft of property, and two counts of especially aggravated
kidnapping. On May 6, 2004, a Shelby County jury found the defendant guilty of both counts of
homicide and guilty as to both counts of misdemeanor theft. The jury acquitted the defendant on
both counts of aggravated kidnapping. After a separate sentencing hearing, the jury unanimously
found the presence of one statutory aggravating circumstance, that the defendant had previously been
convicted of a violent felony offense. The jury further determined that this aggravating circumstance
outweighed any mitigating circumstances beyond a reasonable doubt and imposed a sentence of
death. The trial court approved the sentencing verdict. The defendant appeals presenting for our
review the following issues: (1) whether the trial court erred by denying the defendant’s request to
proceed pro se, (2) whether the trial court erred by refusing to permit defense counsel to withdraw,
(3) whether the presence of uniformed detention response team members sitting on either side of the
defendant throughout trial was prejudicial error, (4) whether the evidence is sufficient to support a
verdict of premeditated murder, (5) whether the trial court erred in admitting evidence involving
prior bad acts of the defendant, (6) whether the trial court’s instruction that the defendant’s prior
offenses were offenses whose statutory elements involved the use of violence violated the United
States Constitution, (7) whether the death penalty imposed in this case violated due process because
the indictment failed to allege the aggravators relied upon by the state, and (8) whether Tennessee’s
death penalty scheme is unconstitutional. Finding no error requiring reversal, we affirm the
defendant’s conviction and sentence of death.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which, JERRY L. SMITH and
NORMA MCGEE OGLE , JJ., joined.

Robert Wilson Jones, District Public Defender; Diane Thackery, Assistant Public Defender; Latonya
Burrows, Assistant Public Defender (at trial); Tony N. Brayton, Assistant Public Defender; Garland
Ergüden, Assistant Public Defender; and Phyllis Aluko, Assistant Public Defender (on appeal), for
the appellant, Robert Hood.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Amy Weirich and Gerald Harris, Assistant
District Attorneys General, for the appellee, State of Tennessee.

                                              OPINION

                                        Guilt Phase Evidence

               On December 27, 2000, Phimphone Panyanouvong, his wife, and his daughter were
at their home located at 3128 Ashwood in Memphis. Mr. Panyanouvong’s wife, Thong, and his
daughter, Phymonie, left the home to go to the grocery store. At the time, Mr. Panyanouvong was
reading a book.

                At approximately the same time, Joseph Jackson went to “the shop” to show his car
to the man who had recently painted it. While Jackson was at the shop, he received a call on his
cellular phone from the defendant. The defendant had two children with Jackson’s sister, and the
two men had business dealings together. The defendant asked Jackson to come pick him up and
provided directions to a house near Camelot. The defendant advised Jackson that he would be in the
doorway of the house. In the past, the defendant and Jackson had dealt with one another involving
stolen property, and Jackson assumed that this call pertained to stolen property also. Jackson arrived
at the location, parked his car, and went into the house. Jackson observed a “man laying [sic] on
the floor gagging from blood coming out of his mouth.” The defendant told Jackson that “he had
to shoot him.” Neither man did anything to assist the man lying on the floor.

                 While Jackson stood in shock, the defendant went through the residence gathering
items. The defendant then proceeded to load his “loot” into a car sitting in the garage. Jackson
observed “a bottle of whiskey, a [television] and a duffle bag.” Jackson then observed the defendant
drive off in the victim’s car. Jackson followed in his vehicle. The defendant proceeded to a location
off of Tchulahoma. He parked behind a building and waited for Jackson. The men then “loaded the
stuff out [of] the victim’s car into [Jackson’s] car.” The men then drove both vehicles to a side street
off Winchester and parked the victim’s car in front of a club. The defendant then joined Jackson in
his vehicle, and Jackson drove the defendant to his apartment.

                Thong and Phymonie Panuanouvong returned to their home a couple of hours later
and noticed that the car was missing from the garage. At first, Thong thought her husband had gone
to buy cigarettes. However, upon entering the house, she saw her husband “lay down in the front
door.” Thong called several family members and then called “911.” Phymonie, Mr.
Panyanouvong’s daughter, noticed that her father was bleeding. Upon this discovery, Thong called
the police. Before the police arrived, Thong walked through her house and observed that “[t]he
house – the mess.” Thong’s and her husband’s jewelry and a television were missing. Thong also


                                                  -2-
noticed that a clock, her fur coat, Mr. Panyanouvong’s wallet, and a camcorder were missing.

             At his apartment on Dunnavant Street that he shared with his girlfriend, the defendant
unloaded the items from Jackson’s car. Jackson noticed a duffle bag, a television, and a fur coat.
Jackson never got out of his car, and when the defendant was finished unloading the car, Jackson
left. The defendant paid Jackson not “even quite a hundred dollars” cash and gave him a camcorder.
A few days later, the defendant also gave Jackson a credit card. Jackson purchased gas with the
credit card.

                Jackson was arrested on unrelated charges on January 8, 2001. While in jail, Jackson
had his fiancé, Lisa Matthews, complete a three-way telephone call to the defendant on at least two
occasions. During the telephone call, Jackson informed the defendant that he was not in jail because
of the December 27 incident and that he would not inform the police about the December 27
incident. During these conversations, the defendant made a comment that his girlfriend, Toni Banks,
knew too much and that “she got to go.” The comment was prompted because Jackson heard yelling
and screaming between the defendant and Banks. Jackson asked, “[W]hat’s going on?” In response,
the defendant kept saying “this girl,” and then he made the comment that “she got to go.”

               The defendant lived with Toni Banks and her two children, James and Demarius, in
an apartment on Dunnavant Street. The four had moved into the apartment around October or
November of 2000. James was in the third grade, and Demarius was in the second grade. Percy
Foster, Toni Banks’s brother, lived in the apartment upstairs with his wife and three daughters.
James Banks, another brother, also lived in the same apartment complex with his girlfriend and three
children. It was well known that the defendant kept a gun tucked inside his waistband. Percy Foster
had observed the defendant shooting a gun into the wooded area behind the apartment complex and
had informed his mother that the defendant had a small caliber weapon in the apartment with Toni
and her children.

                On February 6, 2001, Toni Banks washed clothes at James’s apartment after she
returned from her job at Super Value. The defendant helped Toni bring over their dirty laundry to
James’s apartment. James noticed that the defendant had been drinking. That day, Toni had her
rent money, $255 in cash, on her person. She also had additional cash, and she lent her brother Percy
$20 at approximately 6:30 p.m. In addition, she gave her brother James money to buy liquor so
James could make her daiquiris in his blender. Toni washed about ten loads of laundry at James’s
apartment. James later went to Toni’s apartment to tell her that she had left some of her laundry at
his apartment. Toni and the defendant then had words about the laundry because the defendant
refused to go get the laundry. James commented that the defendant was living free on her paycheck
and that he could not even assist her with the laundry. Toni told James not to worry about it and
gave him money to go buy a beer. She added that she was going to get rid of the defendant and that
he was going to have to leave her house.

             The defendant and Donald Armstrong went to the liquor store at about 8:45 p.m. and
bought a half pint of E & J Brandy. Armstrong noticed that, although the defendant did not act


                                                -3-
drunk, he did look as if he had been drinking. During their trip to the liquor store, the defendant
related that he and his girlfriend had been having problems. When they got back to the apartment
complex, the defendant remarked that he was “going to holler at his girlfriend and talk to her . . .
[t]ry to . . . straighten things up with her.” Forty-five minutes later, Armstrong saw the defendant
again, and the defendant asked Armstrong to drive him somewhere. The defendant gave Armstrong
five dollars for driving him to Crump Street. During the drive, the defendant told Armstrong that
he had done something and that he was “fixing to leave town.” Armstrong noticed that the
defendant appeared “a little shook up and nervous.” Armstrong dropped the defendant off on Crump
Street across from the Martel Projects. As he was leaving, Armstrong observed the defendant run
across the street to the projects.

                Both Percy Foster and James Banks had seen the defendant standing in the driveway
drinking with their younger brother, Leslie. James went out and had a “couple of drinks with
Leslie.” The defendant later came to Foster’s apartment, which surprised Foster because the two
men did not get along. The defendant was returning three knives that Toni had borrowed from her
brother. The defendant told Foster that “he didn’t want any confusion down at the house that night.
And he was taking – for me not to bring anything sharp back down to the house. And if anything
go on downstairs – you know, he knew that I could hear through the heater – that if I heard anything
going on for me to please come down there. He would open the door for me. . . . He promised
me that.” Neither Percy Foster nor his wife could make any sense of the defendant’s comments.
Foster saw the defendant again at 8:30 p.m. when a friend alerted him that the defendant and Foster’s
brother, Leslie, were urinating on the garbage cans.

                That evening, Toni prepared dinner for her children. The children observed Toni
fighting with the defendant. During the fight, the defendant and Toni threw items at each other, and
the kitchen table was knocked over. James later went upstairs to his uncle’s apartment and
telephoned his grandmother, telling her that he wanted to go to her house. He then returned to his
own apartment. Eventually, Toni told her children to go their bedroom, and the couple continued
arguing.

              On February 7, 2001, James woke up late for school. He woke his brother, and the two
went to find their mother. The two boys thought she was in her bedroom, but she did not respond
to their calling her. Her bedroom door was locked, so James “got a knife and opened the door.”
Upon opening the door, James saw a form on the bed covered with bedclothes. Frightened by their
finding, the boys attempted to leave the apartment. The defendant was not in the apartment.

             The boys discovered that they were locked inside the apartment and only their mother
and the defendant had keys to unlock the door. James then took a broom and knocked on the ceiling
to signal their cousin, who lived upstairs, to come down. Shortly thereafter, a cousin, Lashelle
Foster, came downstairs. However, she was unable to gain access to the locked apartment. Lashelle
instructed the children to take the covers off of the body in their mother’s bedroom. The boys did
as instructed and discovered their mother beneath the covers. They were unsuccessful in their
attempt to awaken her. The boys noticed that their mother was not breathing and that there was


                                                -4-
blood on her head. Lashelle informed her father, who was upstairs in his apartment, that Toni had
been shot. Percy Foster then called 911. The police and an ambulance arrived. The police, assisted
by Percy Foster and his friends, broke the lock on the front door to gain access to the apartment.

            Lashelle Foster took the children upstairs to Percy’s apartment while Percy Foster
proceeded to the victim’s bedroom. Percy observed his sister “laying [sic] there with a bullet hole
in her head, blood against the wall, partly covered body.” The house was ransacked, which was
unusual because Toni “kept a very neat house.” No money was found in the apartment.

             Memphis Police Officer Cham Payne responded to the call at the Dunnavant Street
apartment. He arrived after the uniformed officers had secured the scene. At this time, the only
suspect was the defendant. No weapon, keys, or money was found at the scene. The only place
where blood was found was the east wall of the bedroom near the victim’s head. The victim was
dressed only in a purple T-shirt. A pair of children’s scissors was found beneath some clothes on
the mattress. A bullet was later recovered from the victim’s body. Lieutenant Venus Owens, also
at the crime scene, observed that the victim’s body was “crammed against the wall, appeared to have
been pushed like into a corner, and her head was jammed against the wall.”

                Memphis police officers attempted to locate the defendant. They were later advised
by the defendant’s family members that he was no longer in Memphis and that they did not know
where he was. Notwithstanding, during the May 2001 term, the Shelby County grand jury indicted
the defendant on one count of felony murder resulting in the death of Toni Banks, one count of
premeditated first degree murder resulting in the death of the victim, two counts of especially
aggravated kidnapping, one count of theft of property by obtaining the victim’s property, and one
count of theft of property by exercising control over the victim’s property. In June 2001, Memphis
police officers learned that the defendant was in custody in Colorado. In February 2003, Captain
Ronald Goodwin, a member of the District Attorney’s Anti- Gang Team, accompanied by his partner
Ronny Wilkerson, drove to Colorado and took the defendant into custody.

                Heath Barker, a special agent forensic scientist with the Tennessee Bureau of
Investigation, examined the bullet and lead fragments from both the Panyanouvong murder and Toni
Banks’s murder. Special Agent Barker examined the specimens in an attempt to determine whether
both bullets were fired from the same weapon but could not reach a conclusion because the bullets
and fragments were too mutilated for testing. However, Special Agent Barker was able to conclude
that both bullets were fired from a .22 caliber weapon. The sound emanating from the firing of a
.22 caliber weapon is not as loud as that from a larger caliber weapon.

               Doctor Cynthia Gardner, a Deputy Medical Examiner for Shelby County, 1 performed
the autopsies on the bodies of Toni Banks and Mr. Panyanouvong. Regarding the autopsy of Toni
Banks, Dr. Gardner found that the toxicology testing indicated the presence of both caffeine and
alcohol in the victim’s blood. The victim’s blood alcohol level was .23 grams per decimeter. A
physical examination of the victim’s body revealed the presence of a near contact gunshot wound

   1
       At the time of trial, D r. Gardner was em ployed as a deputy coro ner in H amilton Co unty, Ohio.

                                                           -5-
above the right eye on the right forehead. In support of the conclusion that the gunshot was near
contact, Dr. Gardner found gunpowder stippling as well as unburned flakes of gunpowder and soot.
This fine residue is only visible when the gun is fired from six inches or less from the victim’s body,
supporting the conclusion that the weapon was fired within six inches from the head. Doctor
Gardner also found unburned flakes of gunpowder on the inside of the victim’s right arm. The
presence of the flakes on the victim’s arm in relation to the gunshot wound are consistent with a
defensive type maneuver and are also consistent with the “way one’s arm might be laying if they
were . . . asleep.” Doctor Gardner removed a bullet from the victim’s brain.

                Doctor Gardner also observed the blood patterns. From the pattern of the blood
emanating from the wound, Dr. Gardner was able to determine that the pattern was consistent with
the victim lying down at the time the wound was inflicted. Doctor Gardner concluded that the
victim’s death was caused by a gunshot wound to her head. She further concluded that the gun was
fired within six inches from her head.

                Following the proof, the trial court instructed the jury as to the applicable law. The
jury began deliberations at 8:00 p.m. The trial court ended deliberations at 9:30 p.m. and resumed
deliberations the next day at 8:45 a.m. The jury returned their verdict at 10:20 a.m. The jury found
the defendant guilty of first degree felony murder, first degree premeditated murder, and theft of
property. However, the jury acquitted the defendant of both counts of especially aggravated
kidnapping.

                                      Penalty Phase Evidence

               At the penalty phase, the state introduced the testimony of Barbara Banks, the
victim’s mother. Ms. Banks testified that she had seven children. She stated that since her
daughter’s murder she has custody of Toni’s children, 12-year-old James, 10-year-old Demarius, and
16-year-old Lisa. Ms. Banks explained that the children lived with her and her husband, along with
Barbara Banks’s daughter, whose name is also Lisa, and her baby. She testified that neither she nor
her husband works and that they survive on social security alone. She added that she is 64 years old
and her husband is 76 years old. Her daughter Lisa works, and James, Demarius, and Lisa each
receive $124.00 a month in social security death benefits.

                Barbara Banks testified that she takes medication for nerves, high blood pressure, and
her heart. She explained that she began taking the medication soon after her daughter’s murder.
She stated that it is a burden to “start all over raising small kids.”

                Ms. Banks further testified that, at the time of the murder, the victim was thirty-five
years old. Toni was working, going to church, and was generally doing well at the time of her death.
Since her murder, the victim’s children had suffered emotionally. Demarius, the youngest, has
problems sleeping at night. James “acts out things . . . [h]e’s very easy to get upset.” The boys
were attending counseling sessions, but Ms. Banks stopped taking them because she felt they were
getting better. She realized that they were not better and was planning on resuming the counseling


                                                 -6-
sessions. Ms. Banks testified that Toni’s oldest child, Lisa, helps her with the boys.                        Lisa has
become withdrawn and has changed substantially since her mother’s murder.

                The state introduced through the testimony of Kimberly Tanzy, an employee in the
Shelby County Criminal Court Clerk’s Office, prior convictions of the defendant. The clerk’s files
indicated that the defendant had been indicted in case number 94-03958 for attempt to commit first
degree murder but pleaded guilty to the lesser charge of reckless endangerment. Ms. Tanzy read into
evidence the affidavit of complaint for this charge. The affidavit provided that

                  Mr. Hubert Ballentine. . . rented the business establishment . . . at
                  1043 South Third for . . . a Christmas party . . . . Two subjects, [the
                  defendant] and his brother, Billy Joe, entered the business and both
                  men had been drinking. Both became loud and abusive towards the
                  family and friends of Mr. Ballentine. . . . Mr. Ballentine told the
                  two that they were not members of the family or of the business, and
                  that . . . they would have to leave. He then physically escorted the
                  two subjects out. The two subjects left . . . and returned . . . 10
                  minutes later. . . . [The defendant] produced a pistol and his brother
                  . . . began fighting with . . . [the defendant], over who would get to
                  shoot the victim. Defendant Billy Joe Hood . . . wrestled the gun
                  from [the defendant] and then shot the victim, Hubert Ballentine. Mr.
                  Ballentine was shot in the left side. The bullet went under his heart.
                  He is listed in critical but stable condition.

Also introduced were instruments from Elpaso County, Colorado, showing that the defendant was
convicted in case number 01-CR-2120 of one count of first degree kidnapping; five counts of
committing a crime of violence using a deadly weapon; two counts of second degree kidnapping;
one count of aggravated robbery; one count of aggravated criminal extortion; and one count of
menacing. The defendant was also convicted in Colorado case number 01CR-2263 of two counts
of murder in the first degree, four counts of committing a crime of violence with a deadly weapon,
and two counts of aggravated robbery.2 The defense stipulated that all of the convictions from
Colorado and Tennessee belong to the defendant.

                Officer Bernice Murckson, a deputy Shelby County jailer, testified for the defendant
that she was assigned to the fourth floor, “B” pod, and had been for five months. She explained that
“B” pod housed all high risk inmates. Officer Murckson stated that the defendant was housed in “B”
pod. Officer Murckson testified that she had never had any problems with the defendant during her
shift. She added that he interacted well with other inmates and that he followed the policy and
procedures. She concluded that he was respectful of her.



    2
     A motion filed by defense counsel averred that the defendant is currently serving a life sentence plus
consecutive sentenc es totaling more than 5 00 years resulting from his Colorad o conviction s.

                                                         -7-
                 On cross-examination, Officer Murckson acknowledged that the defendant had
violated jail rules on June 22, 2000, and June 23, 2000, while at “R” pod, for failing to comply with
orders of a jailer. She stated that she was not assigned to that pod. She denied knowledge of other
jail infractions committed by the defendant, including an occasion where he displayed his penis to
an officer conducting an armband check, despite three prior verbal warnings to stop exposing
himself. On another occasion, the defendant refused to “lock down” when ordered to do so by a
jailer. As a result, the defendant was placed in administrative segregation. Officer Murckson
explained that administrative segregation is for inmates who are out of control. She explained that
her testimony was limited to the defendant’s behavior only when he was under her supervision. She
did not know that the defendant, while in custody in Colorado, had cut another inmate with a razor
blade, resulting in a twelve-inch wound to the inmate’s abdomen. She also was not aware of an
incident in Colorado when the defendant created a jail disturbance and attempted to strike an officer.

               Officer Donald Kelly, a deputy jailer, testified that he was assigned to fourth floor,
“B” pod. He admitted that he was not aware of any of the infractions that Officer Murckson was
questioned about by the state. Like Officer Murckson, he had only been on “B” pod for five months.
During this time, Officer Kelly had not had any problems with the defendant. Officer Kelly testified
that the defendant was “laid back” and stayed to himself.

                Defendant’s sister, Connie, testified that there were nine children in their family, six
boys and three girls. Connie Hood noted that many of the defendant’s family members were present
in the courtroom, including his mother, his aunt, his sister-in-law, his children’s mother, his son,
another sister, and a brother.

                 Connie Hood stated that she was not close to her brother, Robert. She stated that
prior to this trial, she had not seen her brother for five years. She explained that his absence from
their family was his choice and that the family cared about him regardless of what he had done.
Connie Hood stated that she had never visited her brother after he was taken into custody. She stated
that she thought that “Cindy and my mom been down here.” She did not know if any other family
members had visited the defendant at the jail. She further testified that the defendant’s actions
during his adult life had affected their mother, knowing that she did not raise him that way. She
acknowledged that another brother was in jail at the present time. The remaining siblings all work
and have families.

               Connie Hood testified that the defendant had received a gunshot wound to the head
sometime during the 1990s. She did not know the circumstances of the shooting, but she did visit
her brother while he was in the hospital. Connie Hood testified that the defendant has three children,
ages 12, 17, and 19. She does not have contact with these children. She could not offer any
explanation for the course the defendant chose to take. Rather, she stated that she would always
wonder.

               Their mother suffered from high blood pressure and is diabetic. Connie Hood stated



                                                  -8-
that her brother’s receiving the death penalty would “really hurt [their mother] bad.” She added that
this would impact the entire family.

               On cross-examination, Ms. Hood stated that she did not think that her brother’s gun-
shot wound to his head had any effect on him. She admitted that he was getting in trouble before
the incident and continued to get into trouble after the incident.

               Another sister, Cindy Hood, testified that the defendant was her younger brother.
Cindy and her children had visited her brother in the jail and accepted collect calls from him. Cindy
described her brother as “pretty decent as a human.” She acknowledged that he had made “some
mistakes,” as “sure [as] we all have.” She further admitted that he had “done some pretty bad
things.”

                Cindy explained that her brother’s behavior had greatly affected their mother. She
stated that she had tried to convince her brother that there are other ways to do things but that he
“made his own decisions.” In stating that she did not believe that her brother should be sentenced
to death, she admitted that he had “made some mistakes.” She rationalized that “[w]e all have [made
mistakes.] So should we all be sentenced to death?” She added that the imposition of a death
sentence would be “devastating for me and my family as well as my kids.” On cross-examination,
Cindy Hood acknowledged that there is a difference between the mistakes made by the defendant
and the mistakes made by herself. Cindy admitted that she had heard that her brother used the alias
of Billy McGhee while he was in Colorado. She further acknowledged that she had heard about her
brother’s involvement in a conspiracy to commit aggravated robbery and his conviction for
aggravated motor vehicle theft in Colorado. She stated that she had no knowledge of her brother’s
Colorado convictions for first degree criminal trespass, theft, and reckless endangerment. She also
denied knowledge of any other alias names used by her brother. Notwithstanding this information,
Ms. Hood maintained that he was a decent person. She was then questioned regarding her brother’s
Shelby County, Tennessee convictions, including his 2000 conviction of vandalism over $500, his
2000 conviction of attempted burglary of a building, his 2000 conviction of criminal trespass, his
1994 conviction of theft of property over $1000, his 1994 conviction of reckless endangerment with
a deadly weapon, his 1994 conviction of theft over $500, his 1994 conviction of contempt of court,
his 1989 conviction of receiving/concealing stolen property, his 1987 conviction of escape, and his
1986 conviction of attempt to commit grand larceny. She stated that she could not recall these
convictions and still maintained that the defendant was a decent person.

              On re-direct examination Ms. Hood maintained that she would always love her
brother “no matter what.” She stated that he was her brother and nothing would change that fact.

               At the close of the proof, the trial court instructed the jury on the following statutory
aggravating circumstances:

               One, that the defendant was previously convicted of one or more
               felonies other than the present charge, the statutory elements of which


                                                  -9-
               involve the use of violence to the person. The state is relying upon
               the crimes of murder in the first degree, reckless endangerment, first
               degree kidnapping, second degree kidnapping, aggravated robbery,
               crime of violence [sic] deadly weapon, and menacing which are
               felonies involving the use of violence to the person. Proof of
               additional convictions may be considered by you only as they relate
               to the credibility of witnesses. Two, the murder was committed for
               the purpose of avoiding, interfering with or preventing a lawful arrest
               or prosecution of the defendant or another.

The court then instructed the jury as to the following mitigating circumstances:

               Mitigating circumstances, Tennessee law provides that in arriving at
               the punishment, the jury shall consider, as previously indicated, any
               mitigating circumstances raised by the evidence which . . . may
               include, but are not limited to the following: One, that the capacity of
               the defendant to appreciate the wrongfulness of his conduct or to
               conform his conduct to the requirements of the law was substantially
               impaired as a result of intoxication which was insufficient to establish
               a defense to the crime, but which substantially [a]ffected his
               judgment. Two, that the defendant gets along well in a structured
               environment such as in jail. Three, that the defendant has family
               members who love him and want him to live. Four, that the
               defendant received a gunshot wound to the head. Five, any other
               mitigating factor which is raised by the evidence produced by either
               the prosecution or the defense at either the guilt or sentencing
               hearing. That is, you shall consider any aspect of the defendant’s
               character or record or any aspect of the circumstances of the offense
               favorable to the defendant which is supported by the evidence.

               Following submission of the instructions, the jury retired to consider the verdict at
4:00 p.m. At 5:35 p.m., the jury returned its verdict, finding that the state had proven the aggravating
circumstance (i)(2), the defendant was previously convicted of one or more violent felonies other
than the present charge, beyond a reasonable doubt. The jury further found that the aggravating
circumstances outweighed any mitigating circumstances beyond a reasonable doubt. In accordance
with their verdicts, the jury sentenced the defendant to death for the first degree murder of Toni
Banks.

                            I. Failure of Trial Court to Merge Verdicts

                Although not raised by the defendant, the record reflects that, consistent with the jury
verdicts, the trial court entered one judgment for murder committed during the perpetration of a
felony and one count of premeditated first degree murder. In State v. Howard, 30 S.W.3d 271 (Tenn.


                                                 -10-
2000), our supreme court held that premeditated murder and felony murder are not separate offenses,
but different theories of guilt for the crime of first degree murder. Id. at 274 n.4. Therefore, separate
convictions for both felony murder and premeditated murder based upon the same occurrence must
be merged. In this case, when the trial court found the evidence sufficient to support both verdicts,
the trial court should have merged the guilty verdicts into one judgment for first degree murder. See
State v. Cribbs, 967 S.W.2d 773, 788 (Tenn. 1998). Defendant’s conviction for felony murder must
be merged with his conviction for premeditated murder, and this case is remanded for entry of
judgments consistent with this opinion.

                 Similarly, the trial court also entered judgments for each of the alternative counts of
theft of property under $500. The defendant was sentenced to 11 months, 29 days for each theft-of-
property conviction. The judgment forms reflect that the sentence had been served in the matter as
a result of pretrial jail credits. The forms also indicate that the two theft sentences were ordered to
be served concurrently with one another. It appears that two judgments were entered for the same
offense. Dual convictions and sentences for theft of property based upon the same evidence violate
principles of double jeopardy. See State v. Denton, 938 S.W.2d 373, 382 (Tenn. 1996). The proper
remedy is to merge the convictions. Although it has no effect upon the effective sentence and no
challenge is made on appeal to the theft convictions, we remand for entry of an order merging the
theft convictions.

                          II. Refusal to Permit Defendant to Proceed Pro Se

                 During a motion hearing regarding defense counsel’s request to withdraw from further
representation of defendant, defense counsel stated to the court, “I also don’t know if [the defendant]
would rather represent himself. I don’t know that. But if the court would like to ask him about that.”
 The trial court addressed the issue although no motion to proceed pro se had formally been made
either orally or in writing and there was no indication from the defendant that he wished to proceed
pro se other than his statement that he had a constitutional right to be “heard by himself.”3

                 The trial court noted that the case had been pending for approximately 14 months and
that trial was scheduled to begin a week and a half later. The trial court characterized trial counsel
as an outstanding and experienced attorney, with access to law books, investigators, and a support
staff. The court further stated that to permit the defendant to proceed pro se at this stage would
require a resetting of the case for six to eight months. The trial court rejected any scheme employed
to delay the trial, noting that if such requests were allowed, trials would be continued indefinitely.
The trial court stated that the defendant was going to have a lawyer, and that, in fact, he was
represented by two attorneys. The court further remarked that if the defendant “acted up” or “spoke
out” he was going to be removed from the courtroom. Later, defense co-counsel informed the court

         3
            This comment was mad e in the context of defense counsel’s motion to withdraw. During argument of the
motion to withdraw, defendant interrupted the trial court mid-sentence, stating “I want her off my case, Your Honor.”
In response, the trial court warned the defendant that he would be removed from the courtroom if he continued to act
up or speak up. Defendant then remarked that he had a “Tennessee constitutional . . . one declaration where I’ve got
the right to be heard by myself.”

                                                        -11-
that the defendant “is prepared to go to trial, representing himself, on the scheduled date of April the
26.” To this announcement, the trial court responded that no valid reason existed to permit the
defendant to represent himself. The trial court rejected the defendant’s pronouncement that he would
be ready to represent himself in a capital murder trial in one week. The court added that “any
reasonable person looking at this situation would have to conclude that he would not be ready and
is not capable of representing himself on this short notice in a capital case.” The court rejected the
propriety of the defendant’s giving the court a one week notice that he intended to represent himself
in a capital murder trial.

            The defendant complains on appeal that the refusal to permit him to proceed pro se in
this matter amounted to constitutional error requiring reversal. The defendant concedes that this
issue was not preserved in the motion for new trial. Nonetheless, he asserts that this court should
review the issue on its merits because it is an error affecting the substantial rights of the accused.
See Tenn. R. Crim. P. 52(b).

                 In exercising our discretion whether to entertain plain error review under Tennessee
Rule of Criminal Procedure 52(b), the Tennessee Supreme Court has directed that we examine five
factors, all of which must be present in a case for review under Rule 52(b) to be appropriate. These
five factors are as follows: (1) the record must clearly establish what occurred in the trial court; (2)
a clear and unequivocal rule of law must have been breached; (3) a substantial right of the defendant
must have been adversely affected; (4) the accused did not waive the issue for tactical reasons; and
(5) consideration of the error is necessary to do substantial justice. State v. Smith, 24 S.W.3d 274,
282-83 (Tenn. 2000) (adopting State v. Adkisson, 899 S.W.2d 626, 641 (Tenn. Crim. App. 1994)).
The defendant asserts that all five factors are present requiring plain error review by this court.
Specifically, he asserts that the trial court failed to query the defendant to determine whether he
understood the perils of self-representation and whether his waiver of counsel was knowing and
intelligent. He also claims that the record clearly establishes what occurred in the trial court, that
the trial court’s failure to apply this rule affected a substantial right of the defendant, that no tactical
reason exists for not including the issue in the motion for new trial, and that consideration of the
issue is necessary to do substantial justice. We agree and proceed with our review.

                  A criminal defendant has a right to be represented by counsel or to represent himself
and proceed pro se without the assistance of counsel. See U.S. Const., amend. IV; Tenn. Const. art.
I, § 9; Faretta v. California, 422 U.S. 806, 819, 95 S. Ct. 2525, 2533 (1975); State v. Northington,
667 S.W.2d 57, 60 (Tenn. 1984). The right to represent oneself exists “despite the fact that its
exercise will almost surely result in detriment to both the defendant and the administration of
justice.” See State v. Fritz, 585 P.2d 173 (Wash. Ct. App. 1978). The right is not absolute, however.
To activate the right of self-representation, the defendant must: (1) timely assert the right to proceed
pro se; (2) clearly and unequivocally exercise the right; and (3) knowingly and intelligently waive
his or her right to assistance of counsel. State v. Herrod, 754 S.W.2d 627, 629-30 (Tenn. Crim. App.
1988). Additionally, Rule 44(a) of the Tennessee Rules of Criminal Procedure provides that indigent
defendants should execute a written waiver before being allowed to proceed pro se.



                                                   -12-
                We first observe that the record before us contains no explicit written waiver of the
right to counsel or a motion to proceed pro se filed by either the defendant or his counsel. See Tenn.
R. Crim. P. 44(a). The technical record, however, contains several pro se motions submitted by the
defendant. Consequently, we conclude that had the defendant been adamant in his desire for self-
representation, he clearly was capable of filing an appropriate waiver.

                 Next, the general rule is that a motion to proceed pro se must be made prior to trial
in order to be considered timely. Northington, 667 S.W.2d at 62. The right may not be exercised
for the purpose of delaying the trial or obstructing justice, and even an unequivocal request may be
waived by subsequent words or conduct. State v. Luvene, 903 P.2d 960, 966 (Wash. 1995) (en
banc); see, e.g., United States v. Mackovich, 209 F.3d 1227, 1237 (10th Cir. 2000) (requests made
six to ten days before trial “were merely a tactic for delay”); United States v. George, 56 F.3d 1078,
1084 (9th Cir. 1995) (request made on eve of trial untimely); United States v. Frazier-El, 204 F.3d
553, 560 (4th Cir. 2000) (the “right does not exist, however, to be used as a tactic for delay”). The
defendant’s oral “request” in this case was made a week and a half before the start of the trial. The
case had been pending for 14 months, and the defendant had been represented by the same counsel
throughout the proceedings. The defendant had not provided any indication of his desire for self-
representation or his dissatisfaction with appointed counsel prior to the hearing on April 19, 2004.
The trial began on May 3, 2004. The reference to self-representation, which consisted of a statement
that he would be ready to proceed pro se on the scheduled trial date, was made through co-counsel
after the trial court denied lead counsel’s motion to withdraw. We agree with the trial court and
conclude that defendant made this remark about representing himself as an attempt to delay the trial.

                 Our next inquiry is whether the defendant’s request to proceed pro se was clear and
unequivocal. The only evidence of a request by the defendant to proceed pro se included lead
counsel’s statement that “I also don’t know if Mr. Hood would rather represent himself” and co-
counsel’s announcement that “he is prepared to go to trial, representing himself, on the scheduled
date of April the 26th.” The defendant’s statement in which he interrupted the court and asserted that
he had a right to be heard related to his exclamation in court that he wanted lead counsel removed
from his case. This statement did not relate to his desire to proceed pro se. Moreover, the defendant
never made any indication, through counsel or otherwise, that he wished to have co-counsel
removed. Accordingly, we cannot conclude that the defendant’s statements made through counsel
constituted an unequivocal assertion of the right. See, e.g., Reese v. Nix, 942 F.2d 1276, 1281 (8th
Cir. 1991) (“I don’t want no counsel then” was not a clear and unequivocal pro se demand requiring
Faretta inquiry); Frazier-El, 204 F.3d at 558 (assertion of the right of self-representation “must be
. . . clear and unequivocal”).

                The constitutional right of self-representation is waived if not timely and
unequivocally asserted. Jackson v. Ylst, 921 F.2d 882, 888 (9th Cir. 1990). We conclude that the
defendant neither timely nor unequivocally asserted his right to self-representation. Moreover, we
recognize that courts should indulge every reasonable presumption against finding that a defendant
has waived the right to counsel. State v. Vermillion, 51 P.3d 188, 193 (Wash. Ct. App. 2002). One
purpose is “to protect trial courts from manipulative vacillations by defendants.” State v. DeWeese,
816 P.2d 1, 4 (Wash. 1991). There is no indication in the record that the defendant intended to

                                                -13-
waive his right to have representation through co-counsel. Rather, he wanted lead counsel removed
as counsel of record. Consideration of the defendant’s delay in asserting his desire to proceed pro
se, his dissatisfaction with the trial court’s ruling regarding lead counsel, an absence of reasons for
his dissatisfaction with lead counsel’s performance, and his implication that he did not want co-
counsel removed from his case convinces this court that the purpose of his request was a delay tactic
or other tactic to disrupt the court proceedings. Absent an unequivocal and timely request, the trial
court was under no duty to advise the defendant of the perils of self-representation or to determine
whether the waiver of counsel was knowingly and voluntarily entered.

                Finally, we conclude that the defendant abandoned any intention to represent himself
when he did not pursue the issue of self-representation after the court rejected any notion that the
defendant should proceed pro se. See McKaskle v. Wiggins, 465 U.S. 168, 182, 104 S. Ct. 944 , 953
(1984) (defendant can waive his right to self-representation by allowing counsel to participate in
trial); accord Wilson v. Walker, 204 F.3d 33, 38 (2d Cir. 2000) (failure to reassert a desire to proceed
pro se constituted a waiver). For the foregoing reasons, we reject the propositions that the request
was unequivocal and timely. Accordingly, although the better practice would have been for the court
to warn the defendant of the risks of self-representation, the court was under no duty to do so because
the request was neither timely nor unequivocal.

                      III. Refusal to Permit Defense Counsel to Withdraw

                Lead counsel, an assistant public defender, both orally and by written motion,
requested permission to withdraw as counsel of record for the defendant. Counsel related that the
public defender’s office was appointed to represent the defendant in two separate capital murder
cases on February 19, 2003. Shortly thereafter, counsel was assigned to both cases. She maintained
that throughout her representation of the defendant, “he has been openly hostile to counsel, making
communications difficult, at best.” The situation escalated on April 16, 2004, when counsel was
discussing motions with defendant in the “lock up” area of the court. She stated that the defendant
“became threatening toward counsel, in the presence of Officers Burress and Brown, stating he
would do whatever it takes to have her removed from his cases, even if it meant he would pick up
another charge.” Officer Burress advised counsel to leave the room. Officer Burress related the
incident to the court. The defendant later told co-counsel and two investigators that he intended to
hit lead counsel. Because of this incident, law enforcement personnel were present when lead
counsel and the defendant conferred, rendering confidential communication difficult. She stated that
she had never been threatened by a client in her 14 years as an attorney. Counsel concluded that she
was unable to function effectively under this situation.

              The trial court denied the oral motion and entered a written order entered on April
21, 2004. In denying the motion, the trial court made the following findings:

               [T]here has been concern regarding Mr. Hood’s conduct and actions
               the entire time this case has been pending in this court – certain
               precautions have been taken on previous hearings. Additional


                                                 -14-
               precautions were taken today. No attorney should . . . have his or her
               safety jeopardized because of a client’s actions.

               But I will say that Mr. Hood, obviously being in custody, will, for
               today’s purposes and any future court dates, be restrained – handcuffs
               and leg restraints – and members of the DRT team will assist in
               ensuring that he is not able to cause harm to anyone. His conduct
               may well pose a threat to everyone in the system with whom he
               comes in contact, and while I certainly understand Ms. Thackery’s
               concern, and I respect her statement, and I know that she wouldn’t
               make a request like that for any dilatory reason or frivolously, I am
               going to ask that she stay on this case given the fact that we are a
               couple of weeks away from trial – a week and a half away from trial,
               the age of the case, the fact that he has two murder cases pending.
               We need to get the first one tried before we move onto the second
               one.

                       Ms. Thackery is an experienced trial attorney; will do an
               outstanding job in representing Mr. Hood’s interests; and anytime
               he’s brought – I will certainly not ask Ms. Thackery nor expect her to
               go to the jail to visit Mr. Hood. She’s welcome to visit him here in
               lockup anytime she needs to try to speak with him here in lockup . .
               . a completely secure area where we can ensure that Mr. Hood is
               sufficiently restrained to . . . make certain that there will be no
               problem for Ms. Thackery.

               The defendant now complains that the trial court erred in denying counsel’s motion
to withdraw. The defendant has failed to cite to any legal authority supporting his argument.
Accordingly, this issue is waived. See Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R. 10(b).
Notwithstanding, because of the seriousness of the penalty imposed in this capital case, we elect to
review the issue on its merits.

               The decision whether to allow counsel to withdraw in a pending criminal matter is
vested in the sound discretion of the trial court, and the decision will not be reversed on appeal
unless an abuse of discretion is shown. State v. Russell, 10 S.W.3d 270, 274 (Tenn. Crim. App.),
perm. app. denied (Tenn. 1999). The trial court refused counsel’s motion, noting that this matter had
been pending for over one year, that counsel was well-qualified, and that the court was not going to
permit intentional delays by the defendant.

               A review of the record supports the conclusions and ruling of the trial court. The trial
court accredited counsel’s assertions that the defendant made threats against her person. Although
we do not consider these threats insignificant and share a strong concern for counsel’s safety, there



                                                 -15-
is no indication of the nature of the threats or the reason why the defendant was dissatisfied with
counsel.

                Although an indigent criminal defendant is entitled to representation by counsel, this
right does not include the right to counsel of choice or to a special rapport, confidence, or even
meaningful relationship with appointed counsel. See State v. Carruthers, 35 S.W.3d 516, 546 (Tenn.
2000), cert. denied, 533 U.S. 953, 121 S. Ct. 2600 (2001). The trial court found that counsel was
more than qualified to represent the defendant. The record fails to indicate that counsel was unable
to effectively defend the defendant against the charge of capital murder. She had been counsel of
record for 14 months, during which time the defendant had no complaints with her performance.
Indeed, the motion was made a week and a half prior to the start of trial. Had the motion been
allowed, further delay would have been necessary for the defendant to prepare his case pro se or
retain other counsel. See Russell, 10 S.W.3d at 270. Finally, the trial court enacted security
measures to protect both counsel and persons in the courtroom. There is no indication that counsel
had any further adverse incident with the defendant. In fact, in requesting the removal of restraints
during the trial, counsel related that she had visited the defendant at the jail without incident.

               Based upon the record before this court, we conclude that the defendant has failed to
demonstrate that the trial court abused its discretion in denying counsel’s motion to withdraw.
Accordingly, this issue is without merit.

               IV. Presence of Uniformed Detention Response Team Members

                  On the first morning of trial, defense counsel, relying upon a motion previously filed,
requested that the defendant not be required to wear handcuffs and shackles while in the presence
of the jury. In support of this request, counsel related that she and co-counsel had visited the
defendant at the jail and had encountered no problems. The trial court denied the request, noting that
the defendant was wearing civilian clothing. The court informed counsel that the defendant would
be permitted to have his shirt untucked to conceal the fact that he was handcuffed. The court also
noted that the fact that his feet were shackled would not be noticeable. Additionally, the court
recounted the defendant’s history in this matter, specifically noting the defendant’s threats to
counsel. In this regard, the trial court considered the defendant’s Colorado convictions and sentences
and the fact that he was facing the death penalty in Tennessee. The court concluded that there was
little to deter the defendant from assaulting his attorney(s) should the trial not go the way he wanted.

               During a recess in the voir dire process, counsel raised concern about the presence
of the Detention Response Team (DRT) officers. Specifically, counsel noted that the officers’
uniforms clearly identified them with the words “Detention Response Team” printed on front and
back. The trial court noted that the two officers had been seated throughout the proceeding and were
not parading before the jury. The court found that the design on the uniform shirt or jacket did not
prejudice the defendant. Later during the voir dire process, the trial court did request that the same
two officers be present all day every day for the rest of the trial, to understand the rulings, to be
aware of what was going on, and to minimize the officers’ visibility and presence. The trial judge


                                                  -16-
explained that he did not want a change of officers during the middle of the proceedings. The trial
court did grant counsel’s request to have the DRT members move one seat down to permit counsel
to sit next to the defendant as necessary during the trial.4

                Counsel again objected to the handcuffs and shackles after the defendant expressed
to her that it was inherently prejudicial. At this juncture, counsel again challenged the presence of
two uniformed Detention Response Team members who were seated on either side of the defendant.
 Counsel noted that Officer Green was six foot one and weighed 215 pounds and that Officer
Wormley was six feet and one inch tall and weighed 198 pounds. Counsel argued that the presence
of the officers indicated to the jury that the defendant is “dangerous, scary, and that they will be
inherently prejudiced by that.” The trial court reiterated its previous rulings, noting that “[t]he two
DRT officers that are here during the trial . . . conduct themselves in an extremely professional
manner. Show no expression yea or nay with regards to things that are said during the course of the
trial. And so, they do not . . . prejudice the defendant’s rights in this case in any way.”

                 The defendant complains that the presence of uniformed members of the Detention
Response Team denied him a fair trial. He notes that two witnesses emphasized the officers’
presence. Specifically, the defendant refers to Donald Armstrong, who had initially pointed to a
DRT officer in response to making an in-court identification of the defendant and the penalty phase
testimony of Officer Murckson, who in response to questioning as to the function of the DRT,
replied, “That’s Detention Response Team. There (sic) are the ones who patrol and help control
inmates [who are] high risk or violent.” Officer Murckson also identified the defendant as “the
inmate . . . sitting between the [sic] both D.R.T. members.”

                We initially observe that the defendant has failed to cite to any legal authority
supporting his argument. Accordingly, this issue is waived. See Tenn. R. App. P. 27(a)(7); Tenn.
Ct. Crim. App. R. 10(b). Notwithstanding waiver, we elect to review his complaint that the officers’
presence in the courtroom during the trial prejudiced his right to a fair trial. The defendant, we note,
does not challenge the propriety of the handcuffs and shackles on appeal.

                In Holbrook v. Flynn, 475 U.S. 560, 106 S. Ct. 1340 (1986), the United States
Supreme Court defined the standard by which security presence in the courtroom may be measured
in relation to a defendant’s constitutional right to a fair trial. In reviewing a petition from a
defendant convicted in a Rhode Island state court, the Supreme Court concluded that “the
conspicuous, or at least noticeable, deployment of security personnel in a courtroom during trial” is
not an inherently prejudicial practice and does not violate the fundamental principles of the criminal
justice system. Id. at 568, 106 S. Ct. at 1345. When a courtroom security arrangement is challenged
as inherently prejudicial, the question is whether there is “an unacceptable risk . . . of impermissible
factors coming into play.” Id. at 570, 106 S. Ct. at 1346-47.


         4
           The defendant asserts in his brief that, in Shelby County, the defendants are seated in a row of chairs two
to three feet behind counsel. The backs of these chairs rest against the “bar” which separates the audience seating
area.

                                                         -17-
              Holbrook involved a challenge to four uniformed officers seated behind six
defendants. In finding the defendants were not entitled to relief, the Supreme Court stated:

               We do not minimize the threat that a roomful of uniformed and armed
               policemen might pose to a defendant’s chances of receiving a fair
               trial. But we simply cannot find an unacceptable risk of prejudice in
               the spectacle of four such officers quietly sitting in the first row of a
               courtroom’s spectator section. Even had the jurors been aware that
               the deployment of troopers was not common practice in Rhode Island,
               we cannot believe that the use of the four troopers tended to brand
               respondent in their eyes with an unmistakable mark of guilt. Four
               troopers are unlikely to have been taken as a sign of anything other
               than a normal official concern for the safety and order of the
               proceedings.

Id. at 571, 106 S. Ct. at 1347 (citations and internal punctuation omitted).

              As the Supreme Court has recognized, “[J]urors are quite aware that the defendant
 appearing before them did not arrive there by choice or happenstance.” Id. at 567, 106 S. Ct. at
1347. Generally, the trial court, which has presided over the proceedings, is in

                the best position to make determinations regarding how to achieve
               [the] primary purpose [of ensuring a fair trial], and absent some abuse
               of the trial court’s discretion in marshalling the trial, an appellate
               court should not redetermine in retrospect and on a cold record how
               the case should have been better tried.

 State v. Franklin, 714 S.W.2d 252, 258 (Tenn. 1986). It has also been recognized that the use of
security personnel can be justified as a necessary measure to prevent escape, to protect those present
in the courtroom, and to maintain order during the trial. Illinois v. Allen, 397 U.S. 337, 90 S. Ct.
1057 (1970); Woodards v. Cardwell, 430 F.2d 978 (6th Cir. 1970); State ex rel. Hall v. Meadows,
215 Tenn. 668, 389 S.W.2d 256 (1965).

               Recently the United States Supreme Court revisited the propriety of shackling a
defendant in a courtroom. See Deck v. Missouri, __ U.S. __, 125 S. Ct. 2007 (2005). The nation’s
highest court held that

               courts cannot routinely place defendants in shackles or other physical restraints
               visible to the jury. . . . The constitutional requirement, however, is not absolute. It
               permits a judge, in the exercise of his or her discretion, to take account of special
               circumstances, including security concerns, that may call for shackling.

                Id. at __ , 125 S. Ct. at 2014-15. In this regard, the Supreme Court recognized the
need to restrain dangerous defendants to prevent courtroom attacks or the need to give trial courts

                                                 -18-
latitude in making individualized security determinations. Id. at __, 125 S. Ct. at 2014. The Court
also acknowledged the potential for tragedy that can result if judges are not able to protect
themselves and their courtrooms. Id. at __, 125 S. Ct. at 2014-15. The Court advised, however,
that such determinations must be case specific; “that is to say, it should reflect particular concerns,
say special security needs or escape risks, related to the defendant on trial.” Id. at __, 125 S. Ct. at
2015. Thus, the Court concluded that, “given their prejudicial effect, due process does not permit
the use of visible restraints if the trial court has not taken account of the circumstances of the
particular case.” Id. at __, 125 S. Ct. at 2014.

                 Although this standard has not yet been applied to security personnel in the
courtroom, we conclude that the holding in Deck v. Missouri is a reasonable rule that should be
applied to any restraint imposed on a criminal defendant in the courtroom. In the present case, the
trial court acknowledged (1) defense counsel’s recitation of threats made to her by the defendant, (2)
the 500-year prison sentence awaiting the defendant in Colorado, (3) the need to protect everyone
in the courtroom, (4) the possible imposition of the death penalty in two cases in Tennessee, and (5)
past incidents of violence by criminal defendants in this particular courtroom. The trial court then
determined that it was necessary to impose restraints including handcuffs, shackles, and the
assistance of members of the DRT team. The record supports the trial court’s finding that the
defendant posed a substantial security risk for the courtroom and that the circumstances warranted
the use of restraints. See United States v. Amaro, 816 F.2d 284, 285 (7th Cir.), cert. denied, 481 U.S.
1031, 107 S. Ct. 1961 (1987). Moreover, the defendant did not establish that the deployment of the
DRT officers in the courtroom prejudiced his trial. See State v. Taylor, 771 S.W.2d 387, 396 (Tenn.
1989) (holding that defendant under guard in courtroom was not prejudiced). Accordingly, we
cannot conclude that, under the circumstances of this case, the trial court abused its discretion in
imposing additional security measures in the courtroom.

                                    V. Sufficiency of the Evidence

             The defendant alleges that the evidence is insufficient to support his conviction of the
premeditated murder of Toni Banks. In support of this argument, the defendant refers to evidence
introduced at trial relating that both he and Toni Banks were consuming alcohol the day and evening
preceding the murder. He also cites to the fact that the two were quarreling throughout the
afternoon and evening. The defendant contends that there is no evidence that he threatened Toni
Banks or declared an intent to harm her. He alleges that there is no proof of plans to conceal the
murder prior to its commission. The defendant asserts that the only proof to support a finding of
premeditation is the fact that Toni Banks was not armed. This proof, he contends, is insufficient
to support a conviction for first degree premeditated murder.

            When a challenge is made on appeal to the sufficiency of the convicting evidence, this
court is guided by certain well-established principles. First, a jury conviction removes the
presumption of innocence with which a defendant is cloaked and replaces it with one of guilt, so
that on appeal, a convicted defendant has the burden of demonstrating that the evidence is
insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). In determining the sufficiency
of the evidence, this court does not reweigh or reevaluate the evidence. State v. Cabbage, 571

                                                 -19-
S.W.2d 832, 835 (Tenn. 1978). Likewise, it is not the duty of this court to revisit questions of
witness credibility on appeal, that function being within the province of the trier of fact. See
generally State v. Adkins, 786 S.W.2d 642, 646 (Tenn. 1990); State v. Burlison, 868 S.W.2d 713,
718-19 (Tenn. Crim. App. 1993). Instead, the defendant must establish that the evidence presented
at trial was so deficient that no reasonable trier of fact could have found the essential elements of
the offense beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994), cert. denied,
513 U.S. 1086, 115 S. Ct. 743 (1995). Moreover, the state is entitled to the strongest legitimate
view of the evidence and all reasonable inferences which may be drawn therefrom. State v. Harris,
839 S.W.2d 54, 75 (Tenn. 1992), cert. denied, 507 U.S. 954, 113 S. Ct. 1368 (1993). In State v.
Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.), perm. app. denied (Tenn. 1990), this court
held these rules applicable to findings of guilt predicated upon direct evidence, circumstantial
evidence, or a combination of both direct and circumstantial evidence.

            The defendant was convicted of premeditated first degree murder. First degree murder
is “the premeditated and intentional killing of another.” Tenn. Code Ann. § 39-13-202(a)(1) (2003).
Tennessee Code Annotated section 39-13-202(d) defines premeditation as:

               an act done after the exercise of reflection and judgment.
               “Premeditation” means that the intent to kill must have been formed
               prior to the act itself. It is not necessary that the purpose to kill
               preexist in the mind of the accused for any definite period of time.
               The mental state of the accused at the time the accused allegedly
               decided to kill must be carefully considered in order to determine
               whether the accused was sufficiently free from excitement and
               passion as to be capable of premeditation.

               The element of premeditation is a question of fact to be resolved by the jury and may
be established by proof of the circumstances surrounding the killing. State v. Suttles, 30 S.W.3d
252, 260 (Tenn.), cert. denied, 531 U.S. 967, 121 S. Ct. 401 (2000). Because the trier of fact cannot
speculate as to what was in the killer’s mind, the existence of facts of premeditation must be
determined from the killer’s conduct in light of the surrounding circumstances. Although there is
no strict standard governing what constitutes proof of premeditation, circumstances from which a
jury may infer premeditation include planning activity by a defendant prior to the killing, the
defendant’s prior relationship with the victim, and the manner of the killing. State v. Hall, 958
S.W.2d 679, 704 (Tenn. 1997); see also State v. Jones, 15 S.W.3d 880, 889 (Tenn. Crim. App.
1999); State v. Schafer, 973 S.W.2d 269, 273 (Tenn. Crim. App. 1997); State v. Bordis, 905 S.W.2d
214, 222 (Tenn. Crim. App. 1995); State v. Gentry, 881 S.W.2d 1, 4-5 (Tenn. Crim. App. 1993).
Thus, for example, our supreme court has held that premeditation may be inferred from a
defendant’s use of a deadly weapon upon an unarmed victim, the cruelty of the killing, declarations
by a defendant of an intent to kill, the defendant’s procurement of a weapon, a defendant’s
preparations prior to a killing for concealment of the crime, and calmness immediately after the
killing. State v. Pike, 978 S.W.2d 904, 914 (Tenn. 1998); State v. Bland, 958 S.W.2d 651, 660
(Tenn. 1997), cert. denied, 523 U.S. 1083, 118 S. Ct. 1536 (1998).

                                               -20-
                Applying these factors, there are numerous circumstances in this case from which the
jury could conclude that the murder was premeditated: (1) The victim was unarmed; (2) the victim
and the defendant had been involved in a romantic relationship and were quarreling; (3) the proof
strongly indicated that the victim was asleep in her bed as she was dressed only in a tee-shirt and was
lying prone on a mattress; (4) the gun was fired within six inches from the victim’s forehead,
assuring her death; and (5) the defendant stated his intentions to get rid of Toni Banks. Viewing the
evidence and inferences therefrom in a light most favorable to the state, this court finds sufficient
evidence to support the jury’s finding of premeditation.

                      VI. Admission of Prior Bad Acts of the Defendant

               Prior to trial and pursuant to a motion filed by the state, a hearing was held to
determine the admissibility of proof of another murder and theft of property allegedly committed by
the defendant. The state’s purpose in seeking admission of this evidence was to present proof as to
the defendant’s motive for killing Toni Banks. The state posited that Toni Banks knew too much
about these prior crimes and that her murder was necessary to prevent the defendant’s arrest. This
position was based upon Joseph Jackson’s testimony that the defendant had told him during a
telephone conversation that Toni Banks knew to much and that she had to go.

               During this hearing, the trial court heard proof from Joseph Jackson, the accomplice
to the alleged murder and theft. The trial court also heard statements by the prosecution that
corroborating proof by Panyanouvong’s widow and members of the Banks family would be
presented linking the property taken from the Panyanouvong home to the defendant. Defense
counsel objected to the admission of any and all of this proof. In this regard, defense counsel cited
to Jackson’s lack of credibility, the highly prejudicial nature of the evidence, and its irrelevance to
the Banks murder. Defense counsel also commented that Jackson’s accusation was self-serving in
nature.

                In making its decision, the trial court noted that the murder of Phimphone
Panyanouvong would not have been solved but for the information provided by Jackson. The trial
court further acknowledged that decisions regarding credibility of witnesses are left to the jury. With
these acknowledgments, the trial court found that there was sufficient credibility to Jackson’s
testimony to satisfy the clear and convincing provision of Tennessee Rule of Evidence 404(b). The
court further found that:

               the probative value certainly outweighs any prejudicial effect. The
               testimony regarding the phone conversation is extremely probative,
               and short of witnessing the murder himself, I can’t imagine proof that
               would be much more probative than overhearing or being told
               statements such as Mr. Jackson says he was told over the phone by
               this defendant. And so I think clearly the probative value outweighs
               the prejudicial effect.



                                                 -21-
               I think that proof of this sort would be highly relevant to establish
               motive, to establish intent, lack of mistake, identity. And there are
               several factors that are very relevant, and I think if the jury elects to
               believe the testimony of Mr. Jackson after they hear that testimony
               along with all the other proof in the case – several factors that would
               be put before the jury through Mr. Jackson’s testimony – those four
               that I mentioned being the four that come to mind.

              The trial court rejected defense counsel’s request to limit the evidence to the burglary
and theft, concluding that the murder lent credibility to Joe Jackson’s statement.

                During the defendant’s trial, the state presented the testimony of numerous witnesses
who referenced the December 27, 2000 murder of Phimphone Panyanouvong and the theft of his
property. Thong Panyanouvong described the events of December 27, 2000, including finding her
murdered husband’s body near the front door of their home. Jackson related his “fencing”
relationship with the defendant and the events of December 27, 2000, which included the defendant
admitting that he had shot a man and that the defendant had taken the man’s car and numerous
personal belongings from his house. Bruce Griffey, Jackson’s attorney, testified that Jackson had
contacted him from jail, explaining that he had information about some unsolved crimes. Lisa
Matthews, Jackson’s girlfriend, related that she placed three-way telephone calls for Jackson to the
defendant while Jackson was in jail. During these conversations, Matthews overheard Jackson
telling the defendant that he was not in jail for what they had done. She also overheard the defendant
telling Jackson that “she had to go, and basically that she knew too much.” Various members of
Toni Banks’s family, James Banks, Percy Foster, James Banks, Jr., and Carol Webb, testified that
they were in possession of various items that matched the description of those items taken from the
Panyanouvong home. Various law enforcement officers were called to testify regarding the
identification of property taken during the Panyanouvong murder.

               After the testimony of the eighth witness called by the state, the trial court issued a
cautionary instruction to the jury regarding the other crimes evidence:

               Ladies and gentlemen, the testimony you have heard today regarding
               the defendant’s alleged commission of crimes other than that for
               which he is on trial, i.e. relating to the death of Mr. Panyanouvong,
               may not be considered to prove the defendant’s disposition to commit
               the type of crime for which he is on trial. This evidence may only be
               considered by you for the limited purpose of determining whether it
               proves the defendant’s identity, that is, such evidence may[]be
               considered by you if it tends to establish the defendant’s identity in
               the case on trial. Motive, that is, to show – that is, such evidence
               may[]be considered by you if it tends to show a motive of the
               defendant for the commission of the offense presently charged, or the
               defendant’s intent. That is, such evidence may[]be considered by you
               if it tends to establish that the defendant actually intended to commit

                                                 -22-
               the crime with which he is presently charged. Such evidence of other
               crimes may not be considered for any purpose other than those
               specifically stated herein.

The trial court repeated the instruction at the end of the guilt phase.

               On appeal, the defendant contends that the trial court erred in admitting any and all
evidence involving his alleged murder of Phimphone Panyanouvong and the theft of his property.
The defendant complains that the trial court’s ruling created “devastatingly unfair prejudice,” and
in support thereof, he references the order of the state’s witnesses. Moreover, he asserts that any
proof regarding the Panyanouvong crimes was irrelevant to the issue whether he had murdered Toni
Banks. The defendant further complains that prejudicial impact of the other crimes evidence was
compounded by the state’s use of the other crimes evidence in its closing argument and that had the
other crimes evidence been excluded, “a reasonable jury could have returned a verdict of either
voluntary manslaughter or second degree murder.”

                 Evidence of a defendant’s prior crimes, wrongs, or acts is not generally admissible
to prove that he committed the crime in question. Tenn. R. Evid. 404. The rationale underlying the
general rule is that admission of such evidence carries with it the inherent risk of the jury convicting
the defendant of a crime based upon his bad character or propensity to commit a crime, rather than
the conviction resting upon the strength of the evidence. State v. Thacker, 164 S.W.3d 208, 239
(Tenn. 2005). The risk is greater when the defendant’s prior bad acts are similar to the crime for
which the defendant is on trial. Id. at 239; see also State v. McCary, 922 S.W.2d 511, 514 (Tenn.
1996).

                Notwithstanding the general rule, evidence of a defendant’s prior crimes, wrongs or
acts may be admissible where it is probative of material issues other than conduct conforming with
a character trait. Tenn. R. Evid. 404(b). Thus, evidence of a defendant’s character may become
admissible when it logically tends to prove material issues which fall into one of three categories:
(1) the use of “motive and common scheme or plan” to establish identity, (2) to establish the
defendant’s intent in committing the offense on trial, and (3) to “rebut a claim of mistake or accident
if asserted as a defense.” Thacker, 164 S.W.3d at 239 (citing McCary, 922 S.W.2d at 514). To
admit such evidence, the rule specifies three prerequisites:

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

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

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

                                                 -23-
Tenn. R. Evid. 404(b). A fourth prerequisite to admission is that the court must find by clear and
convincing evidence that the defendant committed the other crime. Id., Advisory Commission
Cmts.; State v. DuBose, 953 S.W.2d 649, 654 (Tenn. 1997); State v. Parton, 694 S.W.2d 299, 303
(Tenn. 1985).

              In reviewing a trial court’s decision to admit or exclude evidence, an appellate court
may disturb the lower court’s ruling only if there has been an abuse of discretion. Thacker, 164
S.W.3d at 240. Its determination is entitled to deference when it has substantially complied with the
procedural requisites of Rule 404(b). See DuBose, 953 S.W.2d at 652.

                 In the present case, the trial court conducted a jury-out hearing on the other crimes
evidence; the court determined that a material issue existed other than conforming conduct; the court
stated its reasons on the record; the trial court determined that the evidence was more probative than
prejudicial; and the trial court found that the defendant committed the other crimes by clear and
convincing evidence. Accordingly, because the trial court substantially complied with the
requirements of Rule 404(b), this court will review the trial court’s determination for an abuse of
discretion. Under this standard of review, this court will only reverse the trial court’s ruling if the
lower court “applied an incorrect legal standard, or reached a decision which is against logic or
reasoning that caused an injustice to the party complaining.” State v. Robinson, 146 S.W.3d 469,
490 (Tenn. 2004).

                Evidence of the Panyanouvong murder and burglary was introduced by the state to
show motive and premeditation. The trial court properly instructed the jury that the evidence could
be considered for the limited purpose of determining whether it tends to show motive. Evidence
proving motive necessarily serves the purpose of completing the story of the crime. See State v.
Leach, 148 S.W.3d 42, 58 (Tenn. 2004). Motive is a relevant circumstantial fact that refers to why
a defendant did what he did. The motive and intent of the defendant in the commission of a murder
are almost always critical issues. State v. Gentry, 881 S.W.2d 1, 7 (Tenn. Crim. App. 1993).
Evidence of motive is often pertinent as the basis to infer that the act was committed, to prove
requisite mental state, or to prove the identity of the actor. See 22 C. Wright & K. Graham, Jr.,
Federal Practice and Procedure Evidence § 479 (1978). Indeed, the defendant’s possession of a
motive strengthens the inference that the death of the victim was caused by an intentional act rather
than by accident. Finally, in making a risk versus benefit analysis in this case, we cannot conclude
that the trial court abused its discretion in determining that the probative value of the evidence
outweighed its prejudicial impact. Accordingly, the admission of the evidence was not error.


                             VII. Instruction as to (i)(2) Aggravator


               Prior to the commencement of the penalty phase, the state asserted that it would use
the defendant’s prior convictions of murder in the first degree, reckless endangerment, first degree
kidnapping, second degree kidnapping, aggravated robbery, crime of violence with a deadly weapon,
and menacing to establish the existence of the (i)(2) aggravating circumstance. The trial court then

                                                 -24-
conducted a hearing outside the presence of the jury to determine whether the defendant’s prior
convictions involved the use of violence to the person. See State v. Sims, 45 S.W.3d 1, 11-12 (Tenn.
2001). Finding that the offenses involved the use of violence, the trial court allowed the state to
introduce evidence of the prior convictions. See State v. Powers, 101 S.W.3d 383, 400-01 (Tenn.
2003). At the conclusion of the penalty phase, the trial court instructed the jury as follows:


               One, that the defendant was previously convicted of one or more
               felonies other than the present charge, the statutory elements of which
               involve the use of violence to the person. The state is relying upon
               the crimes of murder in the first degree, reckless endangerment, first
               degree kidnapping, second degree kidnapping, aggravated robbery,
               crime of violence deadly weapon, and menacing which are felonies
               involving the use of violence to the person. Proof of additional
               convictions may[]be considered by you only as they relate to the
               credibility of witnesses. Two, the murder was committed for the
               purpose of avoiding, interfering with or preventing a lawful arrest or
               prosecution of the defendant or another.


               The defendant now contends that the question whether prior offenses involved the
use of violence was a question for the jury to resolve beyond a reasonable doubt. Essentially, the
defendant complains that the procedure set forth in Sims in which the trial court considers the
underlying facts of the prior offenses to determine whether the elements of the offenses involved the
use of violence to the person violates the dictates of Apprendi v. New Jersey, 530 U.S. 466, 120 S.
Ct. 2348 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002).


                Our supreme court recently rejected this same argument in State v. Cole, 155 S.W.3d
885, 900 (Tenn. 2005). In doing so, our high court acknowledged that “Apprendi and its progeny
preclude judges from finding ‘additional facts,’ that increase a defendant’s sentence beyond the
‘statutory maximum,’ which is defined as the maximum sentence a judge may impose ‘solely on the
basis of the facts reflected in the jury verdict or admitted by the defendant.’” Cole, 155 S.W.3d at
903 (quoting Blakely v. Washington, 542 U.S. 296, __, 124 S. Ct. 2531, 2537 (2004)). The court
differentiated the principles of Apprendi from the Sims procedure and concluded that “[t]he Sims
procedure involves a legal determination, and as such this procedure does not transgress the dictates
of Apprendi and its progeny.” Id. at 904.


               The supreme court explained,

               The (i)(2) aggravating circumstance requires only that the statutory
               elements of the prior felony involve the use of violence to the person.
               The Sims procedure authorizes trial judges merely to examine the


                                                -25-
               facts, record, and evidence underlying the prior conviction to
               ascertain which “statutory elements” served as the basis of the prior
               felony conviction. This is a legal determination that neither requires
               nor allows trial judges to make factual findings as to whether the prior
               conviction involved violence. This legal determination is analogous
               to the preliminary questions trial judges often are called upon to
               decide when determining the admissibility of evidence.


Id. The supreme court further noted that “by making this legal determination, the trial court neither
inflicts punishment nor usurps or infringes upon the jury’s role as fact-finder.” Id. The court
observed that


               [o]nce the trial court determines as a matter of law that the statutory
               elements of the prior convictions involve the use of violence, the jury
               must then determine as matters of fact whether the prosecution has
               proven the (i)(2) aggravating circumstance beyond a reasonable doubt
               and whether aggravating circumstances outweigh mitigating
               circumstances beyond a reasonable doubt.


Id. Accordingly, the trial court’s procedure in the present case passes constitutional muster.


                      VIII. Indictment Failed to Charge Capital Offense


                The defendant asserts that “[a]ny fact that increases the maximum penalty for a crime
must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt in order
to satisfy the Fifth Amendment’s Due Process Clause and the Sixth Amendment’s notice and jury
trial guarantees.” In this regard, the defendant contends that the indictment against him failed to
“include the facts that would qualify the [defendant] for the death penalty.” The defendant’s
argument is based upon the premise that first degree murder is not a capital offense unless
accompanied by aggravating factors. Essentially, the defendant complains that the indictment
returned by the grand jury charges non-capital, first degree murder because the grand jury did not
find any capital aggravating circumstances. Thus, the defendant alleges that to satisfy the
requirements of Apprendi v. New Jersey, the indictment must include language of the statutory
aggravating circumstance(s) to elevate the offense to capital murder.


               The defendant’s argument has been rejected on numerous occasions by our supreme
court. See State v. Reid, 164 S.W.3d 286, 311-12 (Tenn. 2005); State v. Robinson, 146 S.W.3d 469,
499 (Tenn. 2004); State v. Berry, 141 S.W.3d 549, 558 (Tenn. 2004); Holton, 126 S.W.3d at 845;
see also State v. Stephen Lynn Hugueley, No. W2004-00057-CCA-R3-CD, slip op. at 15 (Tenn.


                                                -26-
Crim. App., Jackson, Mar. 17, 2005), perm. app. granted (Tenn. Aug. 22, 2005). In Holton, our high
court explained that “Apprendi applies only to enhancement factors used to impose a sentence above
the statutory maximum” and that “the death penalty is within the statutory range of punishment
prescribed for first degree murder by the Tennessee General Assembly.” Holton, 126 S.W.3d at 863
(citing State v. Dellinger, 79 S.W.3d 458, 466-67 (Tenn. 2002)); see also State v. Odom, 137
S.W.3d 572 (Tenn. 2004). The court further emphasized that “Tennessee’s capital sentencing
procedures require that a jury, not a judge, make the findings regarding the presence of aggravating
circumstances and that the findings must be made beyond a reasonable doubt.” Odom, 137 S.W.3d
at 590-91 (citing Holton, 126 S.W.3d at 864); see also Tenn. Code Ann. § 39-13-204(f)(1) (2003).
Tennessee’s capital sentencing scheme does not require that aggravating circumstances be included
in an indictment. See State v. Reid, 164 S.W.3d at 312. The defendant is not entitled to relief on
this issue.

                  IX. Constitutionality of Tennessee Death Penalty Scheme


                The defendant raises numerous challenges to the constitutionality of Tennessee’s
death penalty provisions. Included within his challenge that the Tennessee death penalty statutes
violate the Fifth, Sixth, Eighth and Fourteenth Amendments of the United States Constitution, and
Article I, Sections 8, 9, 16, and 17, and Article II, Section 2 of the Tennessee Constitution are the
following:


               1. The defendant first asserts that Tennessee’s death penalty statutes
               fail to meaningfully narrow the class of death eligible defendants,
               thereby rendering Tennessee death penalty statutory scheme
               unconstitutional.      Specifically, he argues that the statutory
               aggravating circumstances set forth in Tennessee Code Annotated
               section 39-2-203(i)(2), (5), (6), and (7) have been so broadly
               interpreted, whether viewed singly or collectively, that they fail to
               provide such a “meaningful basis” for narrowing the population of
               those convicted of first degree murder to those eligible for the
               sentence of death. We note that factors, (i)(5), (i)(6) and (i)(7), do not
               pertain to this case as none of these factors were relied upon by the
               state nor found by the jury. Thus, any individual claim with respect
               to these factors is without merit. See, e.g., State v. Hall, 958 S.W.2d
               679, 715 (Tenn. 1997), cert. denied, 524 U.S. 941, 118 S. Ct. 2358
               (1998); State v. Brimmer, 876 S.W.2d 75, 87 (Tenn.), cert. denied,
               513 U.S. 1020, 115 S. Ct. 585 (1994). Moreover, the defendant’s
               argument has been rejected by our supreme court on numerous
               occasions. See State v. Vann, 976 S.W.2d 93, 117-18 (Tenn. 1998)
               (Appendix); State v. Keen, 926 S.W.2d 727, 742 (Tenn. 1994), cert.
               denied, 532 U.S. 907, 121 S. Ct. 1233 (2001).


                                                 -27-
2. The defendant next argues that imposition of the death penalty in
this state is unconstitutional because the death sentence is imposed
capriciously and arbitrarily in that:


(a) Unlimited discretion is vested in the prosecutor as to whether or
not to seek the death penalty. This argument has been rejected. See
State v. Hines, 919 S.W.2d 573, 582 (Tenn. 1995), cert. denied, 519
U.S. 847, 117 S. Ct. 133 (1996).


(b) The death penalty is imposed in a discriminatory manner based
upon race, geography, and gender. This argument has been rejected.
See Hines, 919 S.W.2d at 582; Brimmer, 876 S.W.2d at 87; Cazes,
875 S.W.2d at 268; State v. Smith, 857 S.W.2d 1, 23 (Tenn.), cert.
denied, 510 U.S. 996, 114 S. Ct. 561 (1993).


(c) Requiring the jury to agree unanimously to a life verdict violates
Mills v. Maryland, 486 U.S. 367, 108 S. Ct. 1860 (1988), and McKoy
v. North Carolina, 494 U.S. 433, 110 S. Ct. 1227 (1990). This
argument has been rejected. See Brimmer, 876 S.W.2d at 87; State
v. Thompson, 768 S.W.2d 239, 250 (Tenn. 1989); State v. King, 718
S.W.2d 241, 249 (Tenn. 1986), superseded by statute as recognized
by State v. Hutchinson, 898 S.W.2d 161 (Tenn. 1994).


(d) There is a reasonable likelihood that jurors believe they must
unanimously agree as to the existence of mitigating circumstances
because of the failure to instruct the jury on the meaning and function
of mitigating circumstances. This argument has been rejected. See
Thompson, 768 S.W.2d at 251-52.


3. Finally, the defendant asserts that the appellate review process in
death penalty cases is constitutionally inadequate. Our supreme court
has rejected this argument, as well. See Cazes, 875 S.W.2d at
270-71; Harris, 839 S.W.2d at 77. Moreover, the supreme court has
held that, “while important as an additional safeguard against
arbitrary or capricious sentencing, comparative proportionality review
is not constitutionally required.” See State v. Bland, 958 S.W.2d 651,
663 (Tenn. 1997), cert. denied, 523 U.S. 1083, 118 S. Ct. 1536
(1998).




                                 -28-
                    X. Review Pursuant to Tenn. Code Ann. § 39-13-206(c)

                This court is required by Tennessee Code Annotated section 39-13-206(c)(1)(D) and
under the mandates of Bland, 958 S.W.2d at 661-74, to consider whether the defendant’s sentence
of death is disproportionate to the penalty imposed in similar cases. See State v. Godsey, 60 S.W.3d
759, 781-82 (Tenn. 2001). The comparative proportionality review is designed to identify aberrant,
arbitrary, or capricious sentencing by determining whether the death penalty in a given case is
“disproportionate to the punishment imposed on others convicted of the same crime.” State v. Stout,
46 S.W.3d 689, 706 (Tenn. 2001) (citing Bland, 958 S.W.2d at 662 (quoting Pulley v. Harris, 465
U.S. 37, 42-43, 104 S. Ct. 871, 875 (1984)). If a case is “plainly lacking in circumstances consistent
with those in cases where the death penalty has been imposed,” then the sentence is disproportionate.
 Stout, 46 S.W.3d at 706 (citations omitted).

                In conducting our proportionality review, this court must compare the present case
with cases involving similar defendants and similar crimes. See id., 46 S.W.3d at 706 (citation
omitted); see also Terry, 46 S.W.3d at 163 (citations omitted). We select only from those cases in
which a capital sentencing hearing was actually conducted to determine whether the sentence should
be life imprisonment, life imprisonment without the possibility of parole, or death. See State v.
Carruthers, 35 S.W.3d 516, 570 (Tenn. 2000), cert. denied, 533 U.S. 953, 121 S. Ct. 2600 (2001)
(citations omitted); see also Godsey, 60 S.W.3d at 783.


                 We begin with the presumption that the sentence of death is proportionate with the
crime of first degree murder. See Terry, 46 S.W.3d at 163 (citing State v. Hall, 958 S.W.2d 679, 799
(Tenn. 1997)). This presumption applies only if the sentencing procedures focus discretion on the
“‘particularized nature of the crime and the particularized characteristics of the individual
defendant.’” Terry, 46 S.W.3d at 163 (citing McCleskey v. Kemp, 481 U.S. 279, 308, 107 S. Ct.
1756, 1775 (1987) (quoting Gregg v. Georgia, 428 U.S. 153, 206, 96 S. Ct. 2909, 2940-41 (1976)).

                 Applying this approach, in comparing this case to other cases in which the defendants
were convicted of the same or similar crimes, this court looks at the facts and circumstances of the
crime, the characteristics of the defendant, and the aggravating and mitigating factors involved. See
Terry, 46 S.W.3d at 164. Regarding the circumstances of the crime itself, numerous factors are
considered including: (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 provocation, (7) the absence or presence of premeditation, (8) the
absence or presence of justification, and (9) the injury to and effect on non-decedent victims. Stout,
46 S.W.3d at 706 (citing Bland, 958 S.W.2d at 667); see also Terry, 46 S.W.3d at 164.
Contemplated within the review are numerous factors regarding the defendant, including: (1) prior
criminal record, (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



                                                 -29-
helplessness, and (8) potential for rehabilitation. Stout, 46 S.W.3d at 706; Terry, 46 S.W.3d at 164.

                In completing our review, we remain cognizant of the fact that “no two cases involve
identical circumstances.” See generally Terry, 46 S.W.3d at 164. Thus, our function is not to limit
our comparison to those cases where a death sentence “is perfectly symmetrical,” but rather, our
objective is only to “identify and to invalidate the aberrant death sentence.” Terry, 46 S.W.3d at 164
(citing Bland, 958 S.W.2d at 665).


                The circumstances surrounding the murder in light of the relevant and comparative
factors reveal that the defendant and Toni Banks had been involved in a romantic relationship and
shared an apartment together in a Shelby County apartment complex. Toni Banks apparently was the
breadwinner in the household, and the defendant was unemployed. During the day preceding her
murder, Toni Banks went to work, returned home, and began doing laundry at the nearby apartment
of her brother. During this time, the defendant was observed drinking in the common area of the
apartment complex. Toni Banks also drank alcohol that evening. Sometime that evening, Toni
Banks’s children overheard their mother and the defendant arguing. The children also heard objects
being thrown. At some point, the defendant left the apartment and asked another resident to take him
to the liquor store. During this trip, the defendant remarked that he and Toni Banks were having
problems. When they returned to the apartment complex, the defendant commented that he was
going to “straighten things up” with Toni Banks. Thirty to 45 minutes later, the defendant emerged
from the apartment and obtained a ride to Crump Street. The defendant remarked that he had done
something and was going to leave town.


                The following morning, the body of Toni Banks was discovered in her bedroom with
a single gunshot to her head. The autopsy revealed that the gun was fired less than six inches from
the victim’s head. The victim was only partially dressed. The medical examiner explained that the
presence of unburned flakes of gunpowder on the inside of the victim’s right arm indicated that the
victim’s arm was above her head at the time the gun was fired, supporting the theory that the victim
was asleep at the time of the shooting or that the victim was trying to defend herself. The apartment
had been locked from the outside and only Toni Banks and the defendant had the keys. The
defendant made his way to the State of Colorado, where he proceeded to commit additional crimes.
It was only at the time of his arrest in Colorado that Shelby County authorities learned of his
location.


               The defendant was previously convicted of reckless endangerment in Shelby County.
This conviction arose from the shooting of a Memphis store owner. The defendant also has
numerous felony convictions in Colorado. In September 2002, the defendant entered guilty pleas
to two counts of first degree murder, two counts of committing a violent crime with a deadly
weapon, and three counts of aggravated robbery. In November 2002, the defendant entered guilty
pleas to one count of first degree kidnapping, two counts of second degree kidnapping, one count


                                                -30-
of aggravated robbery, and one count of menacing with a deadly weapon. Thus, the evidence
supporting the application of the (i)(2) aggravating circumstance is overwhelming.


              The defendant was 33 years old at the time of the offense. The family of the
defendant described him as a decent person, despite his extensive history of criminal convictions.
The defendant has three children (ages 12, 17, and 19). The defendant’s sister testified that their
mother would be greatly affected should the defendant receive the death penalty.


              While no two capital cases and no two capital defendants are alike, we have reviewed
the circumstances of the present case with similar first degree murder cases and conclude that the
penalty imposed in the present case is not disproportionate to the penalty imposed in similar cases.

                The sentence of death has been upheld in numerous cases in which the victim was
the defendant’s wife or girlfriend. See, e.g., State v. Faulkner, 154 S.W.3d 48 (Tenn. 2005)
(defendant struck wife in head with iron skillet; (i)(2) aggravating circumstance); State v. Suttles,
30 S.W.3d 252 (Tenn. 2000) (defendant stabbed girlfriend in Taco Bell parking lot; (i)(2) and (i)(5)
aggravating circumstances); State v. Keough, 18 S.W.3d 175 (Tenn. 2000) (defendant stabbed wife
after argument in bar and left her to bleed to death in car; (i)(2) aggravator); State v. Hall, 8 S.W.3d
593 (Tenn. 1999) (after arguing with wife, defendant beat, strangled, and drowned her; (i)(5)
aggravator); State v. Hall, 958 S.W.2d 679 (Tenn. 1997) (angry that girlfriend was going to leave
him, defendant set fire to her car while she was inside; (i)(5) and (i)(7) (felony murder) aggravators);
State v. Smith, 868 S.W.2d 561 (Tenn. 1993) (defendant stabbed, shot, and disemboweled wife;
(i)(5) and (i)(12) (mass murder) aggravators); State v. Johnson, 743 S.W.2d 154 (Tenn. 1987)
(defendant suffocated wife with plastic bag; (i)(2) and (i)(5) aggravators); State v. Miller, 674
S.W.2d 279 (Tenn. 1984), on remand, 771 S.W.2d 401 (Tenn. 1989) (defendant beat girlfriend to
death with fists and fire poker and then stabbed her numerous times; death penalty upheld under
(i)(5) aggravating circumstance).


                The defendant has prior convictions for first degree murder, aggravated robbery,
reckless endangerment, kidnapping, crimes committed with a deadly weapon, and other violent
crimes. The death sentence has been upheld based on the sole aggravating circumstance of a prior
violent felony conviction. See, e.g., McKinney, 74 S.W.3d at 291 (prior conviction for aggravated
robbery as adult and aggravated assault as juvenile); State v. Chalmers, 28 S.W.3d 913 (Tenn. 2000)
(prior convictions for attempted especially aggravated robbery and attempted first degree murder);
State v. Keough, 18 S.W.3d 175, 183 (Tenn. 2000) (prior convictions for assault to commit voluntary
manslaughter and manslaughter); State v. Smith, 993 S.W.2d 6 (Tenn. 1999) (prior convictions for
robbery and first degree murder); State v. Boyd, 959 S.W.2d 557 (Tenn. 1998); Adkins, 725 S.W.2d
at 660 (prior conviction for aggravated assault). The prior violent felony factor is an aggravating
circumstance that the courts of this state have described as “more qualitatively persuasive and
objectively reliable than others.” McKinney, 74 S.W.3d at 313; State v. Howell, 868 S.W.2d 238,
261 (Tenn. 1993).

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                 Our review of these cases reveals that the sentence of death imposed upon the
defendant is proportionate to the penalty imposed in similar cases. In so concluding, we have
considered the entire record and reach the decision that the sentence of death was not imposed
arbitrarily, that the evidence supports the finding of the (i)(2) aggravating circumstance, that the
evidence supports the jury’s finding that the aggravating circumstance outweighs any mitigating
circumstances beyond a reasonable doubt, and that the sentence is not excessive or disproportionate.


                                          X. Conclusion


                 Having fully reviewed the record and the applicable authorities, we affirm the
defendant’s conviction of first degree murder. Additionally, in accordance with the mandate of
Tennessee Code Annotated section 39-13-206(c)(1) and the principles adopted in prior decisions of
the Tennessee Supreme Court, we have considered the entire record in this cause and find that the
sentence of death was not imposed in any arbitrary fashion and that the evidence supports, as
previously discussed, the jury’s finding of the statutory aggravating circumstances and the jury’s
finding that the aggravating circumstances outweighed mitigating circumstances beyond a reasonable
doubt. Tenn. Code Ann. § 39-13-206(c)(1)(A)-(C) (2003). A comparative proportionality review,
considering both “the nature of the crime and the defendant,” convinces us that the sentence of death
is neither excessive nor disproportionate to the penalty imposed in similar cases. Accordingly, we
affirm the sentence of death imposed by the trial court.



                                                       ___________________________________
                                                       JAMES CURWOOD WITT, JR., JUDGE




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