State v. Barber

• Decision Date: 21 March 1988
• Citation: 753 S.W.2d 659
• Parties: STATE of Tennessee, Appellee, v. Terry Dwight BARBER, Appellant. 753 S.W.2d 659
• Court: Tennessee Supreme Court

Page 659

753 S.W.2d 659

STATE of Tennessee, Appellee, v. Terry Dwight BARBER, Appellant.

753 S.W.2d 659

Supreme Court of Tennessee at Jackson.

March 21, 1988.

Rehearing Denied May 23, 1988.

W.J. Michael Cody, Atty. Gen. & Reporter, James W. Thompson, Asst. Atty. Gen., Nashville, for appellee.

John E. Vaughn, III, Mark L. Hayes, Tiptonville, for appellant.

OPINION

DROWOTA, Justice.

The Defendant, Terry Dwight Barber, appeals directly to this Court his conviction of first degree murder and the sentence of death imposed by the jury. He raises numerous issues in this appeal, but, after careful review of the entire record and the law, we find these issues to be without merit. We, therefore, affirm the conviction and the sentence.

The victim, Lora Smith, age 75, lived alone in her home in Ridgely, Lake County, Tennessee. On the evening of February 3, 1986, she was robbed and murdered. The cause of death was multiple blows to the head and ensuing brain damage. There were at least five blows to the head, possibly more. All the blows to her head were struck while the victim was alive. The wounds were consistent with and could have been made with a crescent wrench.

On March 10, 1986, the Defendant, Terry Barber, and his brother, Ronnie Dale Barber, were indicted by the Lake County Grand Jury for first degree burglary, robbery by use of a deadly weapon, and first degree murder. On the same date, the State announced its intent to seek the death penalty as to Terry Barber. The Defendants' trials were severed. On July 19, 1986, Terry Barber was tried before a jury which returned a verdict of guilty to first degree burglary, robbery by use of a deadly weapon, and first degree murder in perpetration of larceny. He was sentenced to fifteen years, life imprisonment, and death by electrocution, respectively. The fifteen-year sentence was to be served concurrently with the life sentence.

At the sentencing hearing on the murder conviction the jury was charged and found two aggravating circumstances: (1) the murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind, and (2) the murder was committed while the Defendant was engaged in committing larceny. T.C.A. Sec. 39-2-203(i)(5) and (7) respectively. The trial judge charged two mitigating circumstances: (1) the youth of the Defendant at the time of the crime (T.C.A. Sec. 39-2-203(j)(7)), and (2) the Defendant is a person capable of being rehabilitated. The jury found no mitigating circumstances sufficiently substantial to outweigh the aggravating circumstances, and returned their verdict as punishment of death.

THE FACTS

The Defendant was 29 years old at the time of the murder, unmarried and resided with his parents, brother, Ronnie, sister, Teresa Dianne Lybarger, and brother-in-law, Steve Lybarger, in Lake County, not far from where the victim lived. On the night in question, the Defendant, his brother, sister and brother-in-law were playing cards at their home. Around 6:00 p.m. the Defendant and his brother Ronnie left in Ronnie's car and returned less than an hour later. Upon their return, the Defendant's sister heard the Defendant tell their mother that "he had to do it because she recognized him."

Defendant's brother-in-law, Steve Lybarger, testified that a few days before Christmas 1985 the Defendant asked him to participate in a burglary in Tennessee involving "an old woman and that he'd have to kill her because she'd recognize him." Lybarger responded that he "didn't want anything to do with it." The Defendant again tried to get Lybarger to join in the burglary plan during the last week in January or the first of February, and Lybarger declined a second time. Lybarger testified that on the evening of February 3, Ronnie and the Defendant left the house, were gone less than an hour, and returned around 7 p.m. The Defendant said: "Well, we did it." Later, the Defendant commented, "that the old lady was dead, that there was nothing to worry about." Lybarger asked the Defendant what he used and "he said a large crescent wrench ... she was hit in the head a few times." Lybarger described seeing a diamond ring when the Defendant had an encyclopedia and matched the diamond size to the diamond pictured in the encyclopedia. The ring had one large stone in the middle and one small stone on each side. Lybarger also observed a small plastic bag containing costume jewelry, a small caliber revolver, and two jewelry boxes, all of which he identified at trial. The Defendant then left alone to go uptown to make some phone calls. He told Lybarger "he was going to try and get rid of the stuff." Lybarger remembered the Defendant mentioning the name Bob. The Defendant told his mother that if anyone asked about his activities on that date, she was to say all he did was go to town to buy gas and cigarettes. On cross-examination, Lybarger admitted there was bad blood between him and the Defendant.

Steve Lybarger's testimony was similar to that of Wesley Dwight McClure, who was an inmate in the Lake County jail in February and March, 1986. McClure was in a cell adjacent to the Defendant for two weeks or a month. McClure testified that during the time that he was in the cell next to Barber, the Defendant related to him the details of the murder of Mrs. Smith. The Defendant explained that his brother, Ronnie, had previously worked for the victim on several occasions, and they didn't know if they would have to kill her when they were planning the burglary. On the evening of the robbery, Ronnie went to Mrs. Smith's front door, and Defendant went to the rear of the house and knocked out the back door window with a crescent wrench and gained entrance into the house. The Defendant was wearing a ski mask. Mrs. Smith recognized Ronnie and asked what was going on, and he told her it was a robbery. She started toward the telephone presumably to call the police and the Defendant grabbed her and hit her repeatedly on the top of her head with the crescent wrench. The Defendant told McClure that he "had to hit the old bitch four or five times to even get her down." The Defendant stated that a pistol, a ring, junk jewelry, and a couple of jewelry boxes were taken. The wrench was wrapped in a floor mat, and the Defendant threw it in the river from a bridge. That night he called a friend in Illinois named Bob to sell the ring. Bob came to Ridgely, picked up the Defendant and took him back to Illinois. The ring was sold for approximately a thousand dollars.

Bob McNeil, who lived in Illinois with Kathy King, testified for the State. He stated that on February 3, 1986, he received a telephone call from the Defendant. The Defendant told him he had some jewelry to show him. McNeil drove to Ridgely and got there about 1:00 a.m. on February 4, picked up Defendant and then drove back to Illinois. The Defendant had with him a couple of jewelry boxes, costume jewelry, a pistol, and a two and a half carat diamond ring with a small stone on each side, which he said had been taken in a burglary. On the morning of February 4, the Defendant and McNeil went to Indiana where the ring was sold for $1,200.00. McNeil received $150 and the Defendant got the balance. McNeil carried the Defendant back to Ridgely on February 5, and got there about 12:30 or 1:00 p.m. McNeil had buried the gun; however, he subsequently dug it up and gave it to a T.B.I. agent. McNeil testified that the Defendant told him that he and Ronnie had committed a burglary, but McNeil knew nothing at any time about a murder.

Kathy King, who resided with Bob McNeil, testified that on February 3, she received a telephone call from the Defendant but McNeil was not there at the time. The Defendant called back and talked with McNeil, who left the house about 8:00 or 8:30 p.m. and was gone for six or seven hours. She stated that the Defendant came back to Illinois with McNeil in the early morning of February 4, and then they both left and were gone most of that day. McNeil drove the Defendant back to Tennessee on February 5.

Sue Poole, an employee of the Tennessee Development District, does house work for elderly people. She testified that on February 4, 1986, she went to the home of Mrs. Lora Smith and knocked on the door but there was no answer. She went to the rear of the house and noticed the door window had been broken. At approximately 12:30 or 1:00 p.m., she contacted the Ridgely Chief of Police, W.C. Robinson. Chief Robinson arrived at the scene, went into the house, and saw Mrs. Smith's body slumped over a chair in the livingroom, with blood on her head, the chair, and the floor. She was wearing house shoes and pajamas. The telephone was off the hook and on the floor.

The Defendant was arrested on February 5, 1986, and a search revealed that he had on his person two billfolds, $868.50 in cash, and some keys. One of the keys matched and had the same number, C127A, as a key found in Mrs. Smith's night stand; it fit a wooden sterilizer cabinet in her home. The other key was also identical to a key found in the night stand next to the victim's bed. At the time of his arrest, the Defendant's jacket had blood stains on it. The right front passenger's seat of Ronnie Barber's car also had a blood stain on it. In the search of the Barber home, an encyclopedia volume "D" was found, which contained a section on diamonds.

Willie Kimbell, an inmate in the Lake County Jail during February, 1986, testified that the Defendant gave him some letters to mail and some written messages to deliver to Defendant's brother, Ronnie, who was also in jail. Kimbell took the letters and messages to the Sheriff, who copied them, and then Kimbell would mail or deliver the originals. The Sheriff identified the letters and messages that were intercepted and copied by him, and read portions of them to the jury. A message obtained on February 11, from Defendant to his brother, Ronnie, stated in part: "The gray hairs and blood just...