State v. Bargery
| Decision Date | 06 October 2017 |
| Docket Number | No. W2016-00893-CCA-R3-CD,W2016-00893-CCA-R3-CD |
| Parties | STATE OF TENNESSEE v. JOSHUA HUNTER BARGERY |
| Court | Tennessee Court of Criminal Appeals |
Appeal from the Circuit Court for Lake County
Joshua Hunter Bargery ("the Defendant") appeals his Lake County Circuit Court convictions for two counts of first degree felony murder and two counts of especially aggravated robbery, for which he received a total effective sentence of two consecutive life sentences. On appeal, the Defendant contends that: (1) his rights under the Fourth Amendment of the United States Constitution and Article I, section 7 of the Tennessee Constitution were violated by the trial court's denial of his motions to suppress evidence obtained during the search of the Defendant and his automobile; (2) the trial court erroneously excluded as hearsay the Defendant's testimony regarding statements made by Mr. Hill, Mr. Hernandez, and "the three Mexicans"; (3) the trial court erred in excluding relevant and material testimony from the Defendant's crime scene expert; (4) the Defendant is entitled to a new trial based on prosecutorial misconduct; (5) the trial court erred in denying the Defendant's motion to dismiss the indictment based on law enforcement's intentional destruction of exculpatory evidence; (6) the Defendant's due process rights were violated by the State's failure to disclose Mr. Hernandez's complete criminal record and the State's agreement not to treat him as a "suspect"; (7) the trial court erred by admitting a copy of a letter written by the Defendant, which was not produced by the State during discovery; (8) the trial court erred in its instructions to the jury; (9) the evidence was insufficient to support his convictions; (10) the trial court erred when it imposed consecutive sentences; (11) the trial court erred in denying the Defendant's motion for recusal; (12) the Defendant is entitled to a new trial based on violations of the trial court's order of sequestration; and (13) cumulative error deprived the Defendant of due process and a fair trial. Following a thorough review of the record and applicable law, we reverse the judgments of the trial court and remand for a new trial.
J. Houston Gordon (on appeal and at trial); Lyle Reid (on appeal and at trial); Amber Griffin Shaw (on appeal and at trial); Charles Brasfield (at trial); and Samuel L. Ivy (at trial), Covington, Tennessee; and Curtis F. Hopper (at trial), Savannah, Tennessee for the appellant, Joshua Hunter Bargery.
Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Senior Counsel; C. Phillip Bivens, District Attorney General; and Lance E. Webb, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINIONIn July 2011, the Lake County Grand Jury indicted the Defendant on two counts each of first degree premeditated murder, first degree felony murder in the perpetration of a robbery or theft, and especially aggravated robbery, all in connection with the killing of Clarence and Sue Shell ("Mr. and Mrs. Shell" or "the victims"). The State subsequently filed a Notice of Intention to Seek the Death Penalty and of Aggravating Circumstances.
At a trial conducted April 20, 2015, to May 9, 2015, Ashleigh Shell, the victims' granddaughter, testified that she last saw the victims at their home on Owl Hoot Road on the evening of March 3, 2011. She was there with her boyfriend for an hour, and they left at 9:18 p.m. At the time they left, the victims were still in their "day clothes" and were not dressed for bed.
Will Shell, the victims' grandson, testified that he went to the victims' residence the following morning—March 4, 2011. When he arrived, he found that the blinds were drawn, both the front and back doors were locked, and there was blood on the front door. He looked into a window and saw Mr. Shell lying on the floor. When his father, Paul Shell, arrived at the residence, Will1 kicked in the front door. He went about three steps inside the front door but then exited the house and waited for police to arrive. Willtestified that the victims usually went to bed around 9:30 or 10:00 p.m. He stated that Mr. Shell was seventy years old at the time of his death and had open heart surgery several years before the murder. He agreed, however, that Mr. Shell had been a strong man for his age.
Paul Shell, the victims' son, testified that family members had asked the victims to move into the residence on Owl Hoot Road in October 2010 to "watch over the place," after Paul's aunt, who had been living in the residence, went to live in a nursing home. Paul stated that the victims' residence was located on the same tract of land as the house where the Defendant's great-grandmother, Carlene Smith, used to live. He explained that Mrs. Smith had been married to Paul's great-uncle, before he passed away in September 2010.
Paul testified that the victims normally went to bed around 10:00 or 10:30 p.m. He went to the victims' residence on the morning of March 4, 2011, after learning that Will was at the residence and could not get inside. After trying unsuccessfully to pry open the back door, Will kicked in the front door. When they walked inside the residence, Paul saw Mr. Shell lying on the floor in the living room in front of a chair. He then walked into the kitchen where he found Mrs. Shell. He exited the house and called 911.
Robin Surratt, the victims' daughter, testified that Mrs. Shell was sixty-eight years old and Mr. Shell was seventy years old at the time of their deaths. Both were retired. Mr. Shell had "heart issues" and had undergone bypass surgery, and Mrs. Shell retired just before her death because of her declining health. Ms. Surratt testified that Mrs. Shell had undergone one knee replacement surgery and was "a month away from having a second knee replacement," and she used a walker to assist her mobility.
Jason Allison testified that he was Chief Deputy at the Lake County Sheriff's Department in 2011. On the morning of March 4, he responded to the victims' residence with two other officers. When he arrived, Paul and Will Shell were in the driveway, "sobbing" and becoming "physically ill." Paul told him, When he entered the front door of the residence, Deputy Allison saw Mr. Shell's body, but he could not initially see Mrs. Shell. During a sweep of the residence, Deputy Allison noticed that the house had been "ransacked." Inside the victims' bedroom, he saw that "there was stuff just thrown on the bed, looked like jewelry and maybe drawers[.]" There was a wallet in the floor of the bedroom and another in the floor of the master bathroom. After securing the residence, Deputy Allison called the Tennessee Bureau of Investigation (TBI) to the scene.
Deputy Allison testified that, after the discovery of the victims' bodies, he received a phone call from Assistant Chief Kenny Lee with the Ridgely Police Department, who stated that he had received a tip that the Defendant was "selling some guns." Because he knew from the victims' family members that there were guns missing from the victims' residence, Deputy Allison instructed his deputies that if they saw the Defendant while out on patrol they should "ask him if he was selling any guns[.]"
Later that evening, Deputy Allison responded to the residence of Dennis Chisholm after a deputy located the Defendant at the residence. The Defendant was standing in the driveway with deputies when he arrived. Deputy Allison read the Defendant his Miranda rights and asked the Defendant if he had been selling guns. When the Defendant indicated that he had not, Deputy Allison asked for consent to search the Defendant's vehicle. The Defendant responded, The Defendant also asked, "[I]s this about the murders on . . . Owl Hoot Road[?]" During the search of the vehicle, Deputy Allison found a knife that appeared to have blood on it in the area of the console, and another deputy discovered costume jewelry in the trunk. Deputy Allison knew that the victims had likely been stabbed and that costume jewelry had been taken from the scene. Deputy Allison arrested the Defendant and placed him in the back of a patrol car. The Defendant was later interviewed at the Lake County Jail by TBI agents. The following morning, the Defendant's mother came to the jail to visit him. However, when Deputy Allison informed the Defendant that his mother was there, the Defendant said that he did not want to see her. The Defendant said, "Just tell her I'm sorry for everything."
On cross-examination, Deputy Allison testified that he was given the Defendant's cell phone after the Defendant's arrest but that, after leaving the Chisholm residence, he turned the phone over to Investigator Joseph Vernon of the Lake County Sheriff's Department. Deputy Allison acknowledged that he had known the Defendant since the Defendant was approximately nine years old and stated that he had not known the Defendant to be violent. The Defendant had no prior criminal record, but Deputy Allison had heard that the Defendant smoked marijuana and dealt drugs. Deputy Allison acknowledged that Shondell Hill was a known drug dealer in Lake County.
Investigator Joseph Vernon testified that he responded to the victims' residence on the morning of March 4, with Deputy Allison. He and Deputy Allison cleared the home, where the victims were "obviously deceased." Investigator Vernon began taking photographs of the scene. In the kitchen, he saw blood on the floor and several shoeprints in the blood.
Investigator Vernon stated that he did not go to the Chisholm residence...
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