State v. Ivy, No. W2003-00786-CCA-R3-DD (TN 12/30/2004), W2003-00786-CCA-R3-DD.

CourtSupreme Court of Tennessee
Writing for the CourtDavid G. Hayes
Docket NumberNo. W2003-00786-CCA-R3-DD.,W2003-00786-CCA-R3-DD.
Decision Date30 December 2004

Page 1

Unpublished Opinion

No. W2003-00786-CCA-R3-DD.
Court of Criminal Appeals of Tennessee, at Jackson.
July 2004 Session.
Filed December 30, 2004.

Direct Appeal from the Criminal Court for Shelby County; No. 01-12388; Joseph B. Dailey, Judge.

Judgment of the Criminal Court Affirmed.

W. Mark Ward, Tony N. Brayton, Garland Erguden, Memphis, Tennessee, for the Appellant, David Ivy.

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

David G. Hayes, J., delivered the opinion of the court, in which John Everett Williams, J., and, Alan E. Glenn, J., joined.



The Appellant, David Ivy, appeals as of right his sentence of death resulting from the June 2001 murder of Lakisha Thomas. On January 10, 2003, a Shelby County jury found Ivy guilty of premeditated first-degree murder. Following a separate sentencing hearing, the jury unanimously found the presence of two statutory aggravating circumstances, i.e., Ivy had previously been convicted of a violent felony offense and the murder was committed to avoid prosecution. The jury further determined that these aggravating circumstances outweighed any mitigating circumstances and imposed a sentence of death. The trial court approved the sentencing verdict. Ivy appeals, as of right, presenting for our review the following issues: (1) whether the evidence was sufficient to establish his identity as the perpetrator, (2) whether the trial court improperly permitted hearsay statements of the victim to be admitted into evidence, (3) whether the trial court erred by impaneling an anonymous jury, (4) whether the trial court erred in refusing to permit the defense, during closing argument, to discuss the rationale behind the hearsay exclusion, (5) whether the trial court erred by preventing defense counsel from arguing "residual doubt" as a non-statutory mitigating circumstance, (6) whether the trial court erred by permitting the State to introduce evidence that Ivy had previously been charged with first degree murder, (7) whether the trial court's instruction that Ivy's prior offenses were offenses whose statutory elements involved the use of violence violated his right to trial by jury, (8) whether the death penalty imposed in this case violated due process because the indictment failed to allege the aggravators relied upon by the State, (9) whether the trial court erred in refusing to answer the jury's questions as to the consequences if they were unable to reach an unanimous verdict as to punishment, and (10) whether Tennessee's death penalty statutory scheme is unconstitutional. Finding no error requiring reversal, we affirm Ivy's conviction and sentence of death.

Guilt Phase Evidence

In June 2001, Memphis Police Officer Steve Cummings was assigned as a patrol officer in the south precinct. On the morning of June 6th, Officer Cummings responded to an assault call at an apartment complex located at the 3700 block of Millbranch. Upon arriving at the apartment complex, the complainant, Lakisha Thomas, reported that she had been assaulted. Ms. Thomas informed the officer that "her ex-boyfriend, [David Ivy], had assaulted her in the area of Park and Airways with a black Uzi type pistol with a long magazine." She told Officer Cummings that David Ivy was also known as "Day Day." Indeed, Ms. Thomas had "Day Day" tattooed on the right side of her neck. Ms. Thomas advised Officer Cummings that Appellant Ivy had "said that he wasn't going back to jail" and "that he would come back and kill her." Officer Cummings described Ms. Thomas as being "visibly upset. Upset at what had happened earlier in the day and upset with what might occur in the future."

Upon a visual examination of the victim, Officer Cummings observed that Ms. Thomas "had about a two-inch laceration to the top of her head. She had some bruising just above her left chest above her left breast. And she had a right black eye on the right side of her face." Officer Cummings photographed the victim's injuries. Although paramedics were called to the scene, Ms. Thomas refused treatment and stated that "she would seek medical attention via her own means."1 A warrant charging Appellant David Ivy with aggravated assault was issued on June 7, 2001. Although the Sheriff's Department attempted to serve the warrant on June 7, the warrant was not served until June 27, 2001.2

Later that day, Ms. Thomas went to the Citizens Dispute office, completed some paper work about the incident, and was eventually interviewed. Ms. Thomas was then taken to the judicial commissioner to obtain an order of protection. She was also referred to the domestic violence unit of the police department for a warrant for aggravated assault. The ex parte order of protection was granted. A hearing was scheduled on the matter for June 21, 2001. The ex parte order was never served on the respondent, David Ivy. The order noted that attempts were made on June 15, 19, and 20. The order further noted: "After diligent search and inquiry the Appellant is not found in my county."

Two days later, on June 8th, Officer Cummings again encountered Ms. Thomas. However, this time, Ms. Thomas was "outside her apartment building in the parking lot." "She was pronounced dead."

Deborah Kelley, Ms. Thomas' cousin, testified that Ms. Thomas lived in the Magnolia Place Apartments on Millbranch. She explained that her sister, Jackie Bland, lived in the Millbranch Park apartments. Ms. Kelley knew David Ivy as Ms. Thomas' boyfriend. The couple dated for almost a year. At some point, Ms. Thomas attempted to end her relationship with David Ivy. Although Ms. Thomas had moved out of the house they shared, Ms. Kelley remarked that the couple "would always end up talking back together." Ms. Kelley stated that Lakisha Thomas eventually moved into the Magnolia Place Apartments off Millbranch.

Ms. Kelley related an incident that occurred at her home about a month before Ms. Thomas' murder, during which Appellant Ivy had grabbed Ms. Thomas by her hair. Ms. Kelley told Ivy, "Uh-huh, don't do that. Let her go. You've got to get out of here with that." Appellant Ivy retorted, "I told you about playing with me, bitch." He then left.

A few days prior to Ms. Thomas' murder, Ms. Kelley arrived at her sister's apartment where she found Ms. Thomas, sitting at the kitchen table wearing sunglasses. Ms. Thomas had blood on her shirt. Jackie Bland stated, "Look what Day Day did to Kisha." Ms. Thomas then removed her sunglasses, revealing a black eye. She remarked that her shoulder was hurting and that "she thinks she had a hole in her head." Ms. Thomas explained that David Ivy had "caught her at Mapco . . . and jumped on her, hit her in the head with a pistol." Ms. Kelley testified that Ms. Thomas was nervous and scared, scared that Appellant Ivy was "trying to kill her." Jackie Bland then contacted the police. Ms. Kelley later drove Ms. Thomas to Eastwood Hospital on Getwell. Several hours later, Ms. Kelley accompanied Ms. Thomas to 201 Poplar to "swear out a warrant [for Ivy's] arrest." On the way to the police station, Ms. Thomas indicated to Ms. Kelley that Appellant Ivy was following them. Ms. Kelley pulled the vehicle into an Exxon parking lot and called the police. However, by the time the police arrived, Appellant Ivy was gone. The three then continued to the Shelby County Criminal Justice Center located at 201 Poplar.

After leaving 201 Poplar, the three women drove to Joe's Liquor Store on Poplar Avenue . While inside the liquor store, Ms. Kelley observed Appellant Ivy. She requested that someone "[c]all the police." In response, two men in the store went to the front door. Ms. Kelley stated that the Appellant then walked back around the liquor store building. When Ms. Kelley returned to the vehicle, Ms. Thomas stated, "Girl, he said he going to kill me. He's been following me all day." Ms. Thomas added that "He told me if I put the police in his business he was going to fuck me up." Terrance Hibler, an employee at the liquor store, overheard Appellant Ivy ask Ms. Thomas if she hated him, that "it wasn't over," and that "[h]e was going to get her." The women then waited for the police to arrive to escort them back to 201 Poplar. After the incident, Terrance Hibler observed that Ms. Thomas "was shaking real bad and crying and saying, `I know he's going to kill me. I know he's going to get me.'"

Frank Sullivan, an employee of Joe's Wines and Liquor, confirmed the events occurring at the liquor store. He specifically recalled speaking with Ms. Thomas. He stated that "[s]he was very afraid." He noticed that she was "bruised pretty badly." She informed him that she had just filed a charge for assault against "Day Day." Mr. Sullivan testified that Ms. Thomas had the name Day Day tattooed on her neck. She stated that "he had beaten her up." Mr. Sullivan "remember[ed] distinctly [Ms. Thomas] saying, `I'm afraid he's going to kill me.'" The surveillance cameras of the liquor store videotaped the Appellant outside the liquor store on June 6, 2001.

On the morning of June 8th, 2001, Ms. Kelley, accompanied by Jackie Bland, Ms. Thomas, Andrea and Jackie's baby, were preparing to leave Jackie Bland's house. The plan was to drive Ms. Thomas and Ms. Bland to the beauty shop; then Ms. Kelley would take the vehicle "to be tuned up because [they] had planned on leaving and going out of town." That morning, the police contacted Ms. Thomas, indicating that they could not locate Appellant Ivy at the address she had provided. While Ms. Kelley finished getting ready in the house, Ms. Thomas and Andrea had already gotten into the car. Ms. Bland, holding her eight-month-old child, was waiting outside...

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