                                                                                         08/15/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                March 20, 2018 Session

             STATE OF TENNESSEE v. GDONGALAY P. BERRY

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

                           No. M2017-00867-CCA-R3-CD
                       ___________________________________

A Davidson County Criminal Court Jury convicted the Appellant, Gdongalay P. Berry, of
two counts of first degree premeditated murder, two counts of first degree felony murder,
two counts of especially aggravated kidnapping, and two counts of especially aggravated
robbery. The jury imposed sentences of death for the murder convictions, and the trial
court ordered an effective fifty-year sentence for the remaining convictions, which was to
be served consecutively to the death sentences. Subsequently, the post-conviction court
vacated the Appellant’s death sentences and ordered a new sentencing hearing for the
murder convictions. After the new hearing, the trial court resentenced the Appellant to
consecutive life sentences. On appeal, the Appellant contends that the trial court erred by
ordering consecutive sentencing for the murder convictions because the trial court failed
to give “meaningful” consideration to his rehabilitation during his twenty-one years in
prison. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the
judgments of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and CAMILLE R. MCMULLEN, J., joined.

Patrick T. McNally (on appeal and at hearing) and James Brenner (at hearing), Nashville,
Tennessee, for the appellant, Gdongalay P. Berry.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; Glenn R. Funk, District Attorney General; and Dan Hamm and Katrin Novak
Miller, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                       OPINION

                                I. Factual Background
       In our supreme court’s 2004 direct appeal opinion of the Appellant’s convictions,
that court gave the following factual account of the evidence presented during the guilt
phase of the Appellant’s trial:

             The nineteen-year-old defendant, Gdongalay Berry, was convicted
      of the first-degree premeditated murders, kidnappings, and robberies of
      nineteen-year-old DeAngelo Lee and eighteen-year-old Greg Ewing. The
      State’s proof showed that the defendant and a separately tried co-defendant,
      Christopher Davis, arranged to purchase weapons for $1200 from Lee and
      Ewing on the evening of February 27, 1996. Earlier that evening, the
      defendant and Davis were at Davis’s apartment drinking and smoking
      marijuana with Ronald Benedict, Antoine Kirby, and Antonio Cartwright.
      Cartwright testified at trial that he overheard Davis and the defendant
      talking about robbing the two victims and taking their guns and automobile.
      Cartwright testified that the defendant stated, “If we rob ‘em, we gotta kill
      ‘em . . . [b]ecause they know us.” Between 7:30 and 8:00 p.m. that
      evening, after receiving a telephone call from Lee, the defendant, Davis,
      and two other men identified as “Kay” and “Sneak” left the apartment.
      Both the defendant and Davis were armed with guns—Davis with a 9mm
      handgun, the defendant with a .45 caliber handgun. Davis also carried a
      black bag containing handcuffs, rope, and duct tape. Approximately thirty
      minutes later, Kay and Sneak returned to the apartment. Thirty to forty-five
      minutes after that, the defendant and Davis also returned. They were
      driving Lee’s Cadillac and were carrying at least six assault weapons, some
      pagers, and clothing, including Lee’s distinctive green and yellow tennis
      shoes, and Ewing’s jacket. Davis was wearing a gold cross necklace that
      belonged to Lee. The defendant told Cartwright that “Chris [Davis]
      couldn’t kill Greg [Ewing], so I had to,” and announced that he had shot
      Ewing multiple times in the head. After placing the assault weapons under
      Davis’s bed, the defendant and Davis left the apartment in Lee’s Cadillac
      and another vehicle. They drove to a sparsely wooded residential area off a
      dead-end street, set fire to the interior of the Cadillac, and abandoned it.
      The men then went to a Nashville motel where they spent the night.

             The next morning, Ewing’s and Lee’s bodies were found lying on a
      hill at a construction site in south Nashville near Interstate 440. Both
      victims were only partially clothed. A rope on the ground led up the hill to
      the body of one of the victims. Ewing had been shot three times in the
      head, twice in the shoulder, once in the neck, and once in the abdomen.
      Lee had been shot three times in the head and once in the hand. Ballistics
                                          -2-
testing showed that the weapons used to kill the victims were 9mm and .45
caliber handguns.

       By coincidence, at approximately 9:00 a.m. on the same morning the
victims’ bodies were found, three detectives from the Metropolitan Police
Department went to Davis’s apartment to investigate an unrelated crime.
While questioning two men present at the apartment, Ronald Benedict and
Antonio Cartwright, the detectives noticed the automatic rifles under the
bed in Davis’s bedroom. At about this time, the defendant, Davis,
Dimitrice Martin (Davis’s girlfriend), and Brad Benedict (Ronald
Benedict’s brother), unexpectedly rushed through the front door. Davis
was talking on a cell phone and had a .45 caliber handgun in his waistband.
The defendant was carrying a fully loaded automatic rifle. Startled to see
police present, the defendant, Davis, and Brad Benedict turned and fled out
the front door. The detectives pursued them and caught Davis. Benedict
and the defendant escaped, although the defendant dropped the rifle he had
been carrying. This rifle turned out to be one of the weapons stolen from
Lee and Ewing.

        A subsequent search of Davis’s apartment yielded a 9mm pistol
underneath the cushion of the couch where Ronald Benedict had been
sitting. Forensic testing later revealed that the 9mm caliber bullets
recovered from the victims’ bodies were fired from this gun. The .45
caliber gun used in the crime was never found. Among the items police
found in Davis’s bedroom were a pair of handcuffs with a key, a pager, a
cell phone, a Crown Royal bag containing $1400 in cash, a black backpack,
a large quantity of ammunition, Lee’s green and yellow tennis shoes,
Ewing’s jacket, two .45 caliber pistols, two SKS rifles, and one Universal
.30 caliber M–1 carbine. At the time of the search, however, officers were
unaware that the items were connected to the murders of Ewing and Lee.

       Davis and his girlfriend, Dimitrice Martin, were taken to the police
station for questioning. Before his interview, Davis removed Lee’s gold
cross necklace and told Martin to put it in her purse. He also instructed
Martin to call Ronald Benedict’s girlfriend at the apartment and tell her to
dispose of Lee’s green and yellow tennis shoes.

       As a result of the questioning of Davis and Martin, police discovered
the connection between Davis, the defendant, and the murders of Lee and
Ewing. The police took Lee’s necklace from Martin. One of the detectives
returned to Davis’s apartment to retrieve Lee’s tennis shoes and Ewing’s
                                   -3-
      jacket. While he found Ewing’s jacket on Davis’s bed, the tennis shoes
      were gone.

             After the defendant was eventually arrested on March 6, 1996, he
      waived his Miranda rights and gave a statement to police in which he
      admitted that he had been with Davis when the victims were robbed and
      killed. He disavowed any active role in the crimes and claimed that he had
      not known Davis intended to kill the victims. According to the defendant,
      Davis and a third man, Christopher Loyal, had abducted Ewing and Lee
      after Ewing attempted to rob Davis. The defendant claimed that the victims
      were already handcuffed and restrained when he joined Davis and Loyal in
      the Cadillac. The group then drove to the construction site. Davis made
      the victims remove their clothing, and the defendant claimed he thought it
      would stop at that. As he watched, however, Davis and Loyal repeatedly
      shot the two men.

            The jury returned a verdict at the conclusion of the guilt phase and
      found the defendant guilty of two counts of premeditated murder, two
      counts of felony murder, two counts of especially aggravated kidnapping,
      and two counts of especially aggravated robbery.

State v. Gdongalay P. Berry, 141 S.W.3d 549, 554-56 (Tenn. 2004) (footnotes omitted).

       Regarding the evidence at the penalty phase of the Appellant’s trial, our supreme
court stated as follows:

      [T]he State presented victim impact evidence through the testimony of the
      mothers of the two victims. Both mothers testified that they were close to
      their sons and that they missed their companionship. Ewing’s mother,
      Brenda Sanders, testified that she did not know until the trial that her son
      had been shot seven times, or that he had screamed for his life prior to his
      death. She testified that it gave her a certain sense of closure to hear that
      evidence. There was no objection during the presentation of this victim
      impact evidence.

             Next, the State presented certified copies of the defendant’s 1994
      conviction for aggravated assault, his two 1998 convictions for aggravated
      robbery, and his 1999 conviction for first-degree murder. The State also
      relied upon the proof presented during the guilt phase of the trial to support
      imposition of the death penalty.

                                          -4-
        Through the testimony of a mitigation expert and several members
of his family, the defendant presented extensive information about his
background. He was born prematurely on September 5, 1976, to Frieda
Berry and Fred Black. His parents never married, and throughout his life
he had only sporadic contact with his father, who served a ten-year prison
sentence for robbery. When the defendant was a year old, his mother
married Laurice Thomas, with whom she had two sons. The defendant’s
immediate family also included another, older half-brother, the child of the
defendant’s mother and a third man. The Thomas’s marriage was described
as hostile and volatile. Both Thomas and the defendant’s mother had
mental health problems.        The defendant’s mother was repeatedly
institutionalized for mental illness and variously diagnosed with
schizophrenia, depression with psychosis, and bipolar disorder. In 1982,
while his wife and the children were present in the home, Laurice Thomas
committed suicide by shooting himself in the bathroom. As a result, the
defendant’s mother had a mental breakdown, and the defendant and his
half-brothers eventually went to live with their maternal grandmother and
step-grandfather. At his grandmother’s home, the defendant was part of a
large family consisting of his siblings and aunts and uncles, who grew up
with him like brothers and sisters. The defendant’s grandmother and step-
grandfather were described as hardworking people, who provided a good
home for the defendant. After the defendant’s mother remarried, the
defendant’s mother and grandmother engaged in litigation over the
children’s custody. The defendant’s mother’s second husband also
committed suicide by jumping off a bridge and drowning.

        The defendant had to repeat the fourth and eighth grades. He was
described as a good boy, who did his chores and loved children. He
participated in school sports and excelled at wrestling. At fourteen, the
defendant was sent to an alternative school for fighting on the school bus
and at school. His family testified that when he returned to high school the
following year, he was singled out and strip searched. At the age of
eighteen, while in the tenth grade, the defendant dropped out of school and
left his grandmother’s home. According to the defendant’s family, the
defendant’s change in behavior occurred because of the bad influence of
other teenagers. For a short time, the defendant lived with his older half-
brother, but he was asked to move out because of visits from his friends,
who sold drugs.




                                   -5-
       The defendant has one child, a son born on May 2, 1996. When he
learned that his girlfriend was expecting a child, the defendant tried to
commit suicide by overdosing on medication.

       The defendant chose not to testify, and confirmed this decision
during a jury-out hearing held pursuant to Momon v. State, 18 S.W.3d 152,
162 (Tenn. 1999).

       Dr. William Bernet, a forensic psychiatrist, interviewed the
defendant and evaluated his mental status. Dr. Bernet noted that the
defendant had three risk factors in his background. The first was a strong
history of mental illness on both the maternal and paternal sides of his
family. The second was a family history of criminal behavior. The third
was the defendant’s disturbed and disorganized family life, based on his
having a young, unmarried mother, his stepfathers’ suicides, frequent
moves, a large, complicated household, the custody dispute between his
mother and grandmother, and the like. Dr. Bernet indicated that the
defendant exhibited some paranoid tendencies, had experienced auditory
hallucinations, and was depressed. Dr. Bernet also opined that the
defendant had been intoxicated on the day of these crimes, and that all of
the above factors had interfered with his judgment in participating in the
offenses. Dr. Bernet noted that since the defendant’s incarceration, he had
been involved in four violent incidents; one, an attack on a fellow inmate,
hurt the victim so badly that he was treated in the intensive care ward.

        In rebuttal, the State called Dr. Thomas Schacht, a clinical and
forensic psychologist. Dr. Schacht had interviewed and tested the
defendant. Dr. Schacht opined that prior tests administered to the
defendant by another psychologist and relied upon by Dr. Bernet were
problematic and potentially invalid. For example, the defendant had
exhibited “high inconsistency” on a test to determine if he was malingering.
Also, the defendant had been permitted to take the Minnesota Multi–Phasic
Personality Inventory in his prison cell and had not completed all the
answers; the defendant refused to complete the answers for Dr. Schacht.
Another test, the Structure Interview of Reported Symptoms, indicated that
the defendant was not reporting his mental symptoms accurately and that
there was a fifty to eighty-one percent chance that he was feigning mental
illness. Nevertheless, Dr. Schacht conceded that testing indicated that the
defendant had some paranoid traits and perhaps even suffered from a
paranoid personality disorder. Dr. Schacht described the specifics of the
four prior violent episodes in prison, which included, in addition to the
                                   -6-
      above-described assault on the other prisoner, his breaking the sprinkler
      system in his cell and flooding his unit, creating a disturbance, and
      threatening and spitting on staff members. Dr. Schacht opined that there
      was no indication that the defendant was a follower. He also testified that
      there was no proven genetic relationship to criminal behavior, although a
      family history of mental illness is a risk factor. In Dr. Schacht's opinion,
      there was no connection between the defendant’s background and the facts
      of this case.

Id. at 556-58 (footnotes omitted).

        The trial court merged the two, first degree felony murder convictions into the
two, first degree premeditated murder convictions. The jury found the existence of three
aggravating circumstances, including aggravator (i)(2), 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; found that the aggravating circumstances
outweighed the mitigating circumstances beyond a reasonable doubt; and sentenced the
Appellant to death. Id. at 558. The trial court ordered concurrent, twenty-five-year
sentences for the convictions of especially aggravated kidnapping and concurrent,
twenty-five-year sentences for the convictions of especially aggravated robbery, Class A
felonies, but ordered that the two effective twenty-five-year sentences be served
consecutively to each other and the death sentences for a total effective sentence of death
plus fifty years.

       On automatic appeal of his convictions to our supreme court, that court affirmed
the convictions and sentences. Id. at 554. At some point thereafter, the Appellant’s
previous murder conviction, which had been used to support the (i)(2) aggravator in this
case, was vacated. On post-conviction review in this case, the post-conviction court
concluded that despite the jury’s finding the existence of two other aggravating
circumstances, the jury’s reliance on the vacated murder conviction was not harmless
error. Berry v. State, 366 S.W.3d 160, 184 (Tenn. Crim. App. 2011), perm. app. denied,
(Tenn. 2012). Accordingly, the post-conviction court reversed the Appellant’s death
sentences and ordered a new sentencing hearing for the first degree murder convictions.
Id. This court affirmed the ruling of the post-conviction court. Id. at 185.

      The State withdrew its notice of intent to seek the death penalty but filed a motion
for consecutive sentencing. At the March 30, 2017 resentencing hearing, the parties
acknowledged that the only issue was whether the Appellant would serve his two life
sentences for the murder convictions concurrently with or consecutively to each other.
The State argued that the Appellant should serve the sentences consecutively because the
Appellant was a professional criminal who had knowingly devoted his life to criminal
                                           -7-
acts as a major source of livelihood, was an offender whose record of criminal activity
was extensive, and was a dangerous offender whose behavior indicated little or no regard
for human life and no hesitation about committing a crime in which the risk to human life
was high. In support of its argument, the State reintroduced into evidence certified copies
of the 1994 judgment of conviction for aggravated assault, a Class C felony, and the two
1998 judgments of conviction for aggravated robbery, a Class B felony.

       Defense counsel advised the trial court that the Appellant had been incarcerated
for about twenty-one years and was almost forty-one years old. Counsel stated that he
had been communicating with the Appellant for almost ten years and that “I have found
him to be a better person now than he was 21 years ago.” Counsel said that the Appellant
had “made efforts to reform his character” in prison and had received two certificates for
completion of anger management. Moreover, just three months prior to the resentencing
hearing, the Appellant “was picked to be the spokesperson for Unit 2 which is the Death
Penalty Unit” and spoke to a group of assistant district attorneys who visited Unit 2.
Counsel said the Appellant was a gifted artist and poet and was taking leather-working
classes. The Appellant also had a twenty-one-year-old son who was born shortly after
the Appellant was incarcerated. Counsel argued that the Appellant was an “improved
person” and that consecutive sentencing “would effectively mean that he could never get
out.”

       Regarding the State’s claim that the Appellant was a professional criminal,
defense counsel argued that the Appellant was only eighteen and nineteen years old when
he committed the prior offenses and the offenses in this case. Addressing the State’s
claim that the Appellant had an extensive criminal history, defense counsel stated, “[H]e
had the assault charge which he was convicted for and then he had the two aggravated
robberies and then he had this case and that is it nothing else.” As to the State’s claim
that the Appellant was a dangerous offender, counsel argued that a defendant’s
dangerousness should be determined at the time of sentencing, not at the time of the
offenses, and that “we take umbrage with his being assessed a dangerous offender,
because, again, that was 21 years ago, nothing since then and he has showed efforts to
reform himself and he has, in fact, been reforming himself.”

        The Appellant addressed the trial court, stating that he pled guilty to the prior
aggravated assault because he was promised that he could pursue his education at Job
Corp, not because he was guilty. He said that he had wanted to maintain his innocence to
that charge but that his grandmother asked him to plead guilty and “try and make the best
of life.” Later, he was charged in this case. The State’s “misconduct” resulted in his
receiving the death penalty in this case, and his being resentenced was “a second bite at
the apple . . . as far as punishment goes.” Regarding rehabilitation, the Appellant stated
as follows:
                                           -8-
       I have gotten two certificates in conflict management and also in mediation.
       I have also got my GED. I have learned many different trades, well, not
       trades, but talents as far as knitting, not in leatherwork, it is knitting and
       crocheting, um, and that’s I just want to go home actually, so I was, no
       matter what the Courts decide here today I just wanted to make sure that the
       Courts know that I still will strive to better myself to make myself a better
       person.

        At the conclusion of the hearing, the trial court stated that the victims were
“executed, left to die.” The court acknowledged that the Appellant had “done some
things” since his incarceration and that the court understood defense counsel’s argument
against consecutive sentencing. Nevertheless, the court found that the Appellant was a
professional criminal, that he was an offender who record of criminal activity was
extensive, and that he was a dangerous offender. Regarding the Appellant’s being a
dangerous offender, the trial court stated, “That particularly I think fits the circumstances
of this case.”

       In a written order, the trial court reiterated that the Appellant was a dangerous
offender. The court specifically addressed the Wilkerson factors and found that
consecutive sentencing reasonably related to the severity of the offenses and that an
extended sentence was necessary to protect the public from future conduct by the
Appellant. See State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995). The trial court
also reiterated the Appellant had an extensive criminal history, stating that the
Appellant’s convictions of two counts of first degree murder, two counts of especially
aggravated robbery, and two counts of especially aggravated kidnappping “when
combined with the three prior convictions, certainly justify a finding that the defendant
has an extensive record of criminal activity.” The court agreed with defense counsel that
the Appellant had “bettered” himself in prison but found that the Appellant’s extensive
criminal history outweighed any progress he had made while incarcerated. Finally, the
court again found that the Appellant was a professional criminal on the basis of the
Appellant’s two prior convictions of aggravated robbery, his two convictions of
especially aggravated robbery in this case, and “defense counsel [acknowledging at the
resentencing hearing that] Mr. Berry’s employment history before these offenses was
limited.” Therefore, the trial court ordered that the Appellant serve the life sentences
consecutively to each other for a total effective sentence of two life sentences plus fifty
years.

                                       II. Analysis



                                            -9-
        The Appellant contends that the trial court erred by ordering that he serve his life
sentences consecutively because at the time of resentencing, he “had matured, reformed
his hostile manner, shown his ability to effectively respond to supervision, and his ability
to be a role model while incarcerated.” The Appellant argues that the trial court did not
“meaningfully” consider his rehabilitation and urges this court “to adopt the position
[that] the sentence to be imposed should be assessed at the time of sentencing rather than
when the defendant committed the offenses.” The State argues that the trial court
properly ordered consecutive sentencing. We agree with the State.

        This court reviews the length, range, and manner of service of a sentence imposed
by the trial court under an abuse of discretion standard with a presumption of
reasonableness. State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012); see also State v.
Pollard, 432 S.W.3d 851, 859 (Tenn. 2013) (applying the standard to consecutive
sentencing). In conducting its review, this court considers the following factors: (1) the
evidence, if any, received at the trial and the sentencing hearing; (2) the presentence
report;1 (3) the principles of sentencing and arguments as to sentencing alternatives; (4)
the nature and characteristics of the criminal conduct involved; (5) evidence and
information offered by the parties on enhancement and mitigating factors; (6) any
statistical information provided by the administrative office of the courts as to sentencing
practices for similar offenses in Tennessee; (7) any statement by the Appellant in his own
behalf; and (8) the potential for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-
35-102, -103, -210; see also Bise, 380 S.W.3d at 697-98. The burden is on the Appellant
to demonstrate the impropriety of his sentence. See Tenn. Code Ann. § 40-35-401,
Sentencing Comm’n Cmts.

       Initially, we note that the trial judge at resentencing also presided over the
Appellant’s trial, original sentencing hearing, and post-conviction evidentiary hearing.
At resentencing, the trial court found that consecutive sentencing for the murder
convictions was appropriate because the Appellant (1), “is a professional criminal who
has knowingly devoted the defendant’s life to criminal acts as a major source of
livelihood”; (2), “is an offender whose record of criminal activity is extensive”; and (3),
“is a dangerous offender whose behavior indicates little or no regard for human life and
no hesitation about committing a crime in which the risk to human life is high.” Tenn.
Code Ann. § 40-35-115(b)(1), (2), (4). We agree with the trial court. By the time the
Appellant had turned twenty years old, he had committed two first degree murders, two
especially aggravated kidnappings, two especially aggravated robberies, two aggravated
robberies, and one aggravated assault. Based on that atrocious record, it is likely that the
       1
          The State did not introduce a presentence report into evidence at the resentencing hearing.
However, a presentence report was prepared for the Appellant’s original sentencing hearing. See Tenn.
Code Ann. § 40-35-205(a). We have supplemented the record with a copy of the report. See Tenn. R.
App. P. 24(e).
                                               - 10 -
only reason he did not commit additional violent crimes against the public was because
he was incarcerated. The Appellant did not introduce any exhibits regarding his
rehabilitation into evidence and no witnesses testified on his behalf at the resentencing
hearing. Nevertheless, the record reflects that the trial court considered the fact that the
Appellant had “bettered” himself while in prison. However, the record also reflects that
the trial court strongly believed that the facts of this case and the Appellant’s criminal
history outweighed any rehabilitation. Thus, we conclude that the trial court did not
abuse its discretion by ordering consecutive sentencing.

                                     III. Conclusion

     Based upon the oral arguments, the record, and the parties’ briefs, we affirm the
judgments of the trial court.


                                                    _________________________________
                                                    NORMA MCGEE OGLE, JUDGE




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