State v. Baker

• Decision Date: 22 March 1996
• Parties: STATE of Tennessee, Appellee, v. Joe T. BAKER, Appellant.
• Court: Tennessee Court of Criminal Appeals

Page 232

931 S.W.2d 232

STATE of Tennessee, Appellee, v. Joe T. BAKER, Appellant.

Court of Criminal Appeals of Tennessee at Nashville.

March 22, 1996.

Permission to Appeal Denied by

Supreme Court Sept. 16, 1996.

Wade Bobo, Clarksville, James A. Simmons, Nashville, for Appellant.

Charles W. Burson, Attorney General and Reporter, Nashville, Michael E. Moore, Solicitor General, Michael W. Catalano, Associate Solicitor General, Nashville, Steve Garrett, Assistant District Attorney, Clarksville, for Appellee.

OPINION

WADE, Judge.

The defendant, Joe T. Baker, appeals of right from his conviction for felony murder. The state had unsuccessfully sought the death penalty. The trial court imposed a life sentence.

The defendant presents the following issues for our review:

(1) whether the trial court erred by refusing to suppress statements obtained from the defendant after the appointment of counsel;

(2) whether the trial court erred by refusing to disqualify the district attorney general's office from the prosecution; and

(3) whether any violation of the Code of Professional Responsibility would warrant a new trial.

We affirm the conviction.

On January 8, 1989, the defendant, Roosevelt Bigbee (defendant's brother-in-law), and Joel Hoosier robbed Beach's Market and shot and killed the victim, Vada Langston, the clerk on duty. Initially, the defendant denied any involvement and told Clarksville police that Hoosier was responsible for the crime. The defendant claimed that Hoosier had given him the murder weapon which he then turned over to the authorities. The defendant agreed to "wear a wire" and brought police officers a tape recording which purportedly contained Hoosier's confession. The recording was actually a fake that the defendant had made with the help of Bigbee. Afterwards, police charged Hoosier with the robbery and murder.

Just before Hoosier's preliminary hearing, Bigbee admitted to Detective J. Runyon and Steve Garrett, an assistant district attorney, that he had been involved in the crime. He claimed that he had helped Hoosier plan the robbery but decided not to participate when Hoosier declared that he would kill the clerk. The assistant district attorney suspected that the defendant and Bigbee "weren't telling all that they knew" and asked officers to further investigate. Later, Detective Runyon interviewed Bigbee, but not the defendant. Meanwhile, the assistant district attorney continued to monitor the progress of the police investigation.

A few days later, the defendant, claiming that he had some important information, called Detective Charles Denton and asked that he come to his apartment. In the ensuing meeting, the defendant told Detective Denton and Detective Runyon that Bigbee "might" have been fully involved in the robbery and murder. The defendant claimed that he felt threatened by Bigbee and his brother, who had called him a snitch. Later that evening, the defendant and Bigbee returned to the police station for additional questioning. The defendant admitted that the tape he had given the police was a fake. He claimed that Bigbee, rather than Hoosier, had given him the murder weapon. The police arrested Bigbee and confronted him with the defendant's accusation. Bigbee responded that the defendant "wasn't the man [police] thought and that [Bigbee] wasn't going down alone." When Detective Denton and Detective Runyon informed the district attorney general of the remark, the defendant was placed under arrest.

Assistant District Attorney Garrett did not directly participate in the interrogation but did overhear some of the answers given by Bigbee and the defendant. Also, he submitted several written questions to the investigating officers for the defendant to answer. Later the officers provided him with the defendant's replies.

A day after his arrest, the defendant contacted Detective Runyon, telling him he had more information and asking that he visit. Detective Runyon and Detective Denton then took the defendant out of jail and returned him to the police station. At that point, the defendant claimed that he had originally planned to participate in the robbery but, upon learning that Hoosier and Bigbee planned to kill the clerk, told them he wanted no part of it and got out of the car. The defendant also informed the police that he had knowledge of several other crimes, hoping that his additional "cooperation" might warrant some leniency.

Shortly thereafter, the defendant was appointed defense counsel, who advised him to make no further statements. Nevertheless, the defendant made three or four collect calls to the district attorney's office, offering to provide additional information in exchange for "a deal." On each occasion, the assistant district attorney advised the defendant to contact his counsel.

The defendant also made a series of telephone calls to Detective Denton and Detective Runyon seeking further discussions. The officers then conferred with Assistant District Attorney Garrett about the propriety of taking any further statements absent the presence of defense counsel. After researching the issue, the assistant district attorney advised that by initiating the contact, the defendant had probably made a valid waiver of the right to counsel, unless defense counsel had left specific instructions not to talk to the defendant. Apparently, defense counsel had not done so.

Several days later, the defendant sent Detective Denton and Detective Runyon a letter acknowledging his desire to make a statement despite the fact that he had counsel. He then admitted that he had actually been inside the store during the robbery but was unaware that Hoosier and Bigbee had planned to rob the store or kill the clerk. The defendant identified Bigbee as the "trigger man." Upon receiving this information, Detective Denton and Detective Runyon decided to again talk to the defendant in person. The defendant confirmed the accuracy of the content of the letter.

During the trial proceedings, Assistant District Attorney Garrett acknowledged that he did not inform defense counsel of this last interview. He did, however, state that he had previously told defense counsel that his client "was calling everybody ... trying to talk." Defense counsel recalled the conversation with the assistant district attorney and conceded that he had not left specific instructions that there be no discussions with the defendant outside of his presence. He explained that he had assumed that he would be notified of any possible meetings with the defendant in accordance with the customary practice of the district attorney general's office.

The defendant also telephoned Montgomery County District Attorney General Patrick H. McCutchen asking that he come to the jail. Identifying himself as "Mr. Miller," the defendant claimed to have information on a Robertson County double murder, which he wanted to give in exchange for a lower bail. District Attorney McCutchen suspected that the defendant had called and, upon arriving at the jail, confirmed his suspicions. The defendant immediately asked what kind of "deal" he could get in exchange for his information. The district attorney refused to offer any deal until the defendant told what he knew. The defendant declined.

In a later statement, the defendant claimed that Christopher Walker, a member of the Marine Corps, had also participated in this crime. Naval Criminal Investigative Service Agent James D. Campbell took the statement in the presence of defense counsel, but refused to offer leniency to the defendant in exchange for the information. Afterward, the defendant retracted his accusation.

Bigbee and the defendant were also suspected of other crimes. Even before Bigbee and the defendant were suspects on these charges, officers had asked General McCutchen to participate in a meeting with the two men. Officers believed that Bigbee had been involved in a series of car thefts; the defendant, claiming to be a concerned "father figure," asserted that he had some information about the Beach's Market robbery and murder. He told the officers that he believed he could deliver the murder weapon to them, but wanted to make sure his cooperation would help Bigbee.

Some of the other crimes under investigation occurred outside Montgomery County. In early March, several police officers and district attorneys from Montgomery, Dickson, and Sumner Counties met to discuss the nature of the various crimes and the physical evidence that each had obtained. Detective Donald Linzy and Sergeant Paul Harbsmeier of the Hendersonville Police Department interviewed the defendant about the other crimes in their county and Detective Linzy testified that the defendant never mentioned his involvement in the Montgomery County robbery. During two of the interviews, the defendant attempted to make "a deal" with Sumner County authorities in exchange for the information he possessed; they refused.

At some point in the investigation of the other crimes, the Sumner County officers obtained letters which the defendant had written to Bigbee while both were in jail. During the time that Detective Linzy and Sergeant Harbsmeier were gathering information, the defendant contacted another local attorney and expressed a desire to employ him. Although he already had appointed counsel, the defendant claimed that he had been unable to effectively communicate with his attorney and had been made several promises by various law enforcement officials which had not been kept. When the defendant was unable to obtain the funds necessary to hire the second attorney, the trial court appointed him as co-counsel.

I

After a careful consideration of the defendant's claim that the statements made to police after the appointment of counsel should have been suppressed, we conclude otherwise. There are several reasons: first, the defendant was given his Miranda rights before each statement, see Owens v. State, 561 S.W.2d 167, 169 (Te...