Berry v. State

• Decision Date: 04 November 2011
• Docket Number: No. M2010–01136–CCA–R3–PD.,M2010–01136–CCA–R3–PD.
• Parties: Gdongalay P. BERRY v. STATE of Tennessee.
• Court: Tennessee Court of Criminal Appeals

366 S.W.3d 160

Gdongalay P. BERRY

v.STATE of Tennessee.

No. M2010–01136–CCA–R3–PD.

Court of Criminal Appeals of Tennessee,

at Nashville.

Sept. 14, 2011 Session.

Nov. 4, 2011.

Application for Permission to Appeal

Denied by Supreme Court

Feb. 16, 2012.

James W. Price, Nashville, Tennessee, and James E. Brenner, Detroit, Michigan, for the appellant, Gdongalay P. Berry.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Katrin Miller, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

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

JAMES CURWOOD WITT, JR., J.

The Davidson County Criminal Court denied the petitioner, Gdongalay P. Berry, post-conviction relief from his Davidson County Criminal Court convictions of two counts of first degree murder, two counts of especially aggravated robbery, and two counts of especially aggravated kidnapping but granted relief from his sentence of death in the form of a new capital sentencing hearing. The petitioner appeals the partial denial of his petition for postconviction relief, alleging that the State violated the tenets of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); that neither the State nor the trial court honored his constitutional right to a speedy trial; that the State's pursuit of inconsistent theories violated his constitutional right to due process; that he was deprived of the effective assistance of counsel; and that the cumulative effect of the constitutional deprivations rendered his trial fundamentally unfair. The State appeals the post-conviction court's grant of a new sentencing hearing, asserting that the error attending the petitioner's original sentencing hearing was harmless beyond a reasonable doubt. Discerning no error, we affirm.

The petitioner's convictions relate to the 1996 murders of 18–year–old Gregory Ewing and 19–year–old DeAngelo Lee. The facts, as summarized by our supreme court on direct appeal, are as follows:

The State's proof showed that the [petitioner] 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 [petitioner] 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 [petitioner] talking about robbing the two victims and taking their guns and automobile. Cartwright testified that the [petitioner] stated, “If we rob ‘em, we gotta kill ‘em ... because they know us.” Between 7:30 and 8:00 p.m. that evening, after receiving a telephone call from Lee, the [petitioner], Davis, and two other men identified as “Kay” and “Sneak” left the apartment. Both the [petitioner] and Davis were armed with guns—Davis with a 9mm handgun, the [petitioner] 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 [petitioner] 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 [petitioner] 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 [petitioner] 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 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 [petitioner], 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 [petitioner] was carrying a fully loaded automatic rifle. Startled to see police present, the [petitioner], Davis, and Brad Benedict turned and fled out the front door. The detectives pursued them and caught Davis. Benedict and the [petitioner] escaped, although the [petitioner] 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 [petitioner], 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 jacket. While he found Ewing's jacket on Davis's bed, the tennis shoes were gone.

After the [petitioner] 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 [petitioner], Davis and a third man, Christopher Loyal, had abducted Ewing and Lee after Ewing attempted to rob Davis. The [petitioner] 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 [petitioner] claimed he thought it would stop at that. As he watched, however, Davis and Loyal repeatedly shot the two men.

State v. Berry, 141 S.W.3d 549, 554–56 (Tenn.2004).

During the sentencing phase of trial, a mitigation expert related the petitioner's familial, educational, and social history; competing mental health experts related the petitioner's mental and emotional health; and the State presented certified copies of the petitioner's 1994 conviction of aggravated assault, his 1998 convictions of two counts of aggravated robbery, and his 1999 conviction of first-degree murder. See id. at 556–58. The jury concluded that the State had proven beyond a reasonable doubt the existence of three aggravating factors: that the [petitioner] 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, seeT.C.A. § 39–13–204(i)(2); that the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the [petitioner] or another, see id. § 39–14–204(i)(6); and that the murder was knowingly committed, solicited, directed, or aided by the [petitioner] while the [petitioner] had a substantial role in committingor attempting to commit robbery or kidnapping, see id. § 39–13–204(i)(7); see also Berry, 141 S.W.3d at 558. Following a standard sentencing hearing, seeT.C.A. § 40–35–209, the trial court imposed sentences of 25 years for each conviction of especially aggravated robbery to be served concurrently to one another and sentences of 25 years for each especially aggravated kidnapping to be served concurrently to one another but consecutively to the effective 25–year sentence imposed for the especially aggravated robbery convictions and to the sentence of death imposed for the murders. The total effective sentence was, therefore, death plus 50 years' incarceration. See Berry, 141 S.W.3d at 553 n. 3.

The petitioner appealed his convictions and sentence of death to this court, challenging the constitutionality of the death penalty procedure in Tennessee, the denial of his right to a speedy trial, the failure of ...