State v. Smith

• Decision Date: 29 March 1993
• Parties: STATE of Tennessee, Appellee, v. Leonard Edward SMITH, Appellant.
• Court: Tennessee Supreme Court

Page 1

857 S.W.2d 1

STATE of Tennessee, Appellee, v. Leonard Edward SMITH, Appellant.

Supreme Court of Tennessee,

at Knoxville.

March 29, 1993.

Order Denying Rehearing

June 28, 1993.

J. Robert Boatright, Kingsport, Larry S. Weddington, Bristol, Michael J. Passino, Nashville, for appellant.

Charles W. Burson, Atty. Gen. & Reporter, C. Anthony Daughtrey, Asst. Atty. Gen., Nashville, Carl K. Kirkpatrick, Dist. Atty. Gen., H. Greeley Wells, Jr., Asst. Atty. Gen., Blountville, for appellee.

OPINION

O'BRIEN, Justice.

This is the second trial for the defendant who has twice been indicted and convicted of murder in the first degree for the killing of Mrs. Novella Webb and each time has been sentenced to death by electrocution. ¹

The evidence shows that on 21 May 1984 defendant, his girlfriend, Angela O'Quinn, and David Wayne Hartsock were sitting in defendant's Ford Pinto automobile drinking and smoking marijuana when Hartsock and the defendant began plotting a robbery. After leaving O'Quinn, the two men drove to a country store in eastern Sullivan County operated by an elderly couple, W.H. and Novella Webb. Approximately 5:45 p.m. defendant and Hartsock entered the store, where Hartsock knocked down Mr. Webb and defendant fatally shot Mrs. Webb in the head when she tried to defend her husband by spraying the defendant with orange paint. There is no evidence of any struggle or physical contact between defendant and the victim.

Robert Glover, a customer, was standing on the front porch of the store and saw the two men enter. He heard the sound of two gunshots and started to enter the store. Defendant, from inside the store, told him he had better not come in if he knew what was good for him. Mr. Glover ran to the road and stopped a passing motorist, Charles Webb. Mr. Glover testified that the two young men ran from the store to their vehicle. He identified the defendant Smith at trial as one of the two who had entered the store.

Charles Webb, no relation to deceased, testified that he observed two unidentified young men run from the store, "hop in a car and take off." Another witness, Tommy Trivette, traveling behind Charles Webb, testified that he observed two young men walking slowly out of the store and that they "appeared to be smiling." He identified defendant Smith at trial as one of the two men he observed leaving the store.

After picking up O'Quinn, the defendant and Hartsock drove up into the nearby mountains, where they abandoned defendant's automobile after setting it afire. They then walked further into the woods where defendant and Hartsock cut off their hair and burned some of their clothes. The next day the three went to the home of Gladys Sheets, who drove them to a discount store and food market in Johnson City, where Sheets and O'Quinn bought camping supplies and food with money supplied by the defendant.

Because it could implicate him in the crime, defendant had Hartsock throw his gun out of the car window as they drove across the bridge over a railroad track on the road between Johnson City and Elizabethton. Sheriff officers later found the gun, a .32 caliber revolver, sprinkled with orange paint. The composition of two bullets in the gun matched that of an unspent bullet in defendant's possession and the slug taken from Novella Webb's body. Two days after the offense occurred authorities arrested the defendant, O'Quinn and Hartsock at an unoccupied farm house in Johnson County. Defendant confessed to shooting Mrs. Webb but claimed that the gun had gone off accidentally while he and Mrs. Webb were struggling.

Defendant has presented 24 issues for review which we will endeavor to address in chronological sequence in accordance with the trial proceedings.

Defendant first says the denial of a motion for change of venue violated his rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sec. 8, 9 and 17 of the Tennessee Constitution. Defendant's trial was originally set in Sullivan County where the offense occurred for which he was indicted. The trial court, apparently due to pretrial publicity, moved the trial from Sullivan County to Hamblen County, with defendant's consent. The co-defendant, Hartsock, had two trials in that jurisdiction, one for the homicide of John Pierce, and the other involving the murder and robbery of Novella Webb. Smith was also previously tried in both cases. His conviction in the Webb case was set aside by this court for trial error. It is argued that denial of a motion for a change of venue from Hamblen County after three trials on the same set of facts violated defendant's rights under the State and Federal Constitutions. The proof does not support this contention. Ten of the 50 prospective jurors had heard of the case, but with a few exceptions their knowledge was only cursory. There is absolutely no proof of any undue excitement against the defendant because of the prior trials. Defendant says that of the first 12 jurors seated in the jury box four (4) of them indicated they had read or heard something about the case. Of those four (4), he only mentions two (2) by name, neither of whom sat on the jury which heard the case. Defendant does not say that he exhausted his peremptory challenges, however it is argued that the publicity in this case requires application of the "presumed prejudice" standard followed by the United States Supreme Court in Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); and Shepherd v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). Those cases involved extremely inflammatory publicity and media conduct creating a corruptive carnival atmosphere that deprived the proceedings of the "solemnity and sobriety" required for due process. They do not stand for the proposition that juror exposure to information about the crime and the defendant's prior convictions, which was primarily the type of publicity in the present case, is presumably prejudicial. See State v. Bates, 804 S.W.2d 868 (Tenn.1991); cert. denied --- U.S. ----, 112 S.Ct. 131, 116 L.Ed.2d 98 (1991). In State v. Melson, 638 S.W.2d 342, 360-361 (Tenn.1982), this Court reiterated the rule which applies in cases of this nature, that is, the decision of whether or not to change the venue is for the sound discretion of the trial court and may not be reversed on appeal absent a clear abuse of such discretion. There was no such abuse in this case.

Defendant charges the trial court with error in allowing testimony that described the victim as lying in a pool of blood an inch deep, arguing that this testimony was irrelevant, inflammatory and highly prejudicial. We note, first of all, that this is not a correct summation of the evidence. Sheriff Keith Carr testified on direct examination that when he arrived on the scene both Mr. and Mrs. Webb had been taken to the hospital. He described the scene as "a small country store in disarray, a lot of blood, things moved around. At the end of the counter ... there was a pooling of coagulated blood and just general disarray." Upon further inquiry he explained his intent to sift through the blood to search for a bullet that may have exited the body. Prior to sifting through the blood he measured its depth with a yardstick and found it to be about an inch deep. An objection to this testimony was overruled on the basis that the witness could describe the scene as he found it. Subsequent witnesses described the scene as they observed it immediately after the shooting. Robert Glover testified that "Mrs. Webb was laying on the inside right there next to the heater like in a pool of blood everywhere where he had shot her and killed her." Charles Webb, who was almost immediately on the scene said, "I looked and she was laying in the floor, you know, in behind the counter so I had to walk up to the end of the counter to see her and she was laying there just face down you might as well say, in a pool of blood." A third witness immediately on the scene, Tommy Trivette, said as he went in the store, "Mr. Webb said, 'I've been robbed,' and I just said, are you alright? And he looked at me for a couple of seconds and said, 'they shot my wife.' So I looked over the counter and seen his wife laying there. I went around to see if I could help her out any and she was laying in a puddle of blood, kind of face down, so I rolled her over to get her to where she could breathe." The only objection made to any of this testimony was that which was made to the statement by Sheriff Carr. The statement of the other witnesses was voluntary and unsolicited by the State attorney. In State v. Banks, 564 S.W.2d 947 (Tenn.1978), this Court adopted Federal Rule of Evidence 403 applying to the admission of relevant evidence. The rule provides:

"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

In the explanatory note to Rule 403, "unfair prejudice" is defined by the advisory committee as: "An undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." See Banks at 951.

None of the testimony complained of reached this level of prejudice. Its probative value was essential to the State's case and was not in any manner gruesome or inflammatory. The issue is overruled.

Defendant says the trial court erred in allowing admission of certain evidence introduced to prove intent to commit robbery in violation of various of his constitutional rights. This complaint is divided into a number of sub-issues the first of which involves a statement given by him to the police. He says the trial court should have suppressed this statement because it was coerced. He...