Issues raised in an appeal by death row inmate Gdongalay P. Berry have no merit, the Tennessee Supreme Court said Monday in a decision affirming the two death sentences he received for his role in killing two acquaintances to prevent them from identifying him.
"After a careful and exhaustive review of the record and the legal authority relevant to the issues raised, we affirm the defendant's convictions and sentences," Justice William M. Barker wrote for the majority, including Chief Justice Frank F. Drowota, III, and Justices E. Riley Anderson and Janice M. Holder.
Justice Adolpho A. Birch, Jr., wrote a separate concurring/dissenting opinion in which he agreed with the majority's decision affirming Berry's convictions, but not the sentences of death. He said the method used by the court to compare Berry's case to other death penalty cases is "woefully inadequate to protect defendants from the arbitrary or disproportionate imposition of the death penalty."
"I have repeatedly expressed my displeasure with the current protocol since the time of its adoption . . .," Birch wrote.
State law requires the Supreme Court to review death penalty cases to determine whether the sentence is disproportionate to the penalty imposed in similar cases.
Berry and a co-defendant, Christopher Davis, were tried separately and convicted of kidnapping, robbing and murdering DeAngelo Lee, 19, and Greg Ewing, 18. The victims were attempting to sell guns to Berry and Davis in 1996 when they were bound, driven to an isolated construction site in Nashville and shot multiple times. Their guns and a white Cadillac, which was later burned, were stolen, along with shoes, clothing and a gold cross.
A witness testified at trial that he overheard Berry say, "If we rob 'em, we gotta kill 'em . . . because they know us." In sentencing Berry to death, Davidson County jurors found three statutorily defined aggravating circumstances, including that the murders were committed "for the purpose of avoiding, interfering with or preventing a lawful arrest or prosecution . . . " The other aggravating circumstances found by the jury were that Berry had previously been convicted of violent felonies and that the murders were committed while Berry had a substantial role in committing or attempting to commit robbery or kidnapping.
"Given his multiple prior convictions for violent crimes against the person, as well as the advance, cold-blooded planning to eliminate the victims as witnesses after the robbery, a rational juror could have found that the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt," Barker wrote.
Issues raised by Berry included a claim that the four-year delay between his indictment in 1996 and his trial in 2000 violated his constitutional right to a speedy trial. He claimed the delay caused him to suffer anxiety and concern over the pending charges and hindered the preparation of his defense.
"The record reflects the defendant did not file a motion in the trial court requesting a speedy trial, did not move to dismiss the indictment for failure to provide a speedy trial and did not assert the denial of a speedy trial as a reason for relief in his motion for a new trial," Barker wrote. ". . . "The defendant's failure to assert his right to a speedy trial is evidence of his waiver of such right."
Barker said any allegation that his incarceration caused him to be stressed is minimized by evidence that he also was incarcerated awaiting trial for two other unrelated crimes.
"After considering the entire record in this case and all the defendant's assignments of error, we conclude that none has merit," Barker wrote.
The court set a Feb. 1, 2005, execution date. Berry has state and federal appeals remaining.