State v. Berry

• Decision Date: 07 January 1980
• Citation: 592 S.W.2d 553
• Parties: STATE of Tennessee, Appellee, v. Russell Keith BERRY, Appellant.
• Court: Tennessee Supreme Court

Page 553

592 S.W.2d 553

STATE of Tennessee, Appellee, v. Russell Keith BERRY, Appellant.

Supreme Court of Tennessee.

Jan. 7, 1980.

James T. Bowman, Johnson City, for appellant.

William M. Leech, Jr., Atty. Gen., Robert L. Jolley, Jr., Asst. Atty. Gen., Nashville Heiskell H. Winstead, Dist. Atty. Gen., Rogersville, John K. Wilson, Larry W. Weems, Asst. Dist. Attys. Gen., Greeneville, for appellee.

OPINION

HENRY, Justice.

This conviction for murder in the first degree with penalty fixed at death by electrocution is before the Court by direct appeal pursuant to Section 39-2406, T.C.A. We reverse and remand.

I. General Background

This murder was marked by shocking and savage brutality. It was described by the Trial Judge as "one of the most brutal crimes this judge has ever encountered," and by the jury as being "especially heinous, atrocious, cruel, and it involved torture and depravity of mind."

On February 9, 1978, at approximately four o'clock in the afternoon, John Harvey Shanks, the aged and retired father-in-law of the defendant, was brutally attacked and killed with a ball-peen hammer, in the basement of his farm home in the Green Shed Community in the Fall Branch area of Greene County. Approximately an hour or hour and a half later his wife, Zelma P. Shanks, defendant's mother-in-law, upon arriving at her residence, was savagely attacked and seriously injured. After attempting to determine that she was not alive by burning various parts of her body with a cigarette, her assailant(s) left her for dead. Approximately twenty-four hours later the bodies were discovered. Zelma P. Shanks was hospitalized and recovered to the extent that she testified for the defendant at the trial.

The defendant's wife, Robin Shanks Berry, is the only child of John H. and Zelma P. Shanks. She holds a bachelor of science degree from East Tennessee State University, is a registered nurse, and at the time of the trial, was a student at Vanderbilt University as a candidate for a master's degree.

The defendant was twenty-six years of age at the time of the crime and had attended East Tennessee State University for about a year and a half. He had no regular employment. A contrary representation to the investigating officers was determined to be untrue. By his own admission he was trafficking in contraband drugs. There is a rather strong suggestion in the record that he killed his own mother and father and, thereafter, burned their residence in order to collect fire insurance proceeds. He was under indictment for arson at the time of the trial. He was also under indictment for solicitation of the offense of murder in the first degree.

There is no suggestion that defendant suffers from insanity or from any form of diminished responsibility.

Two broad generalizations are evident. First, it is apparent that the Shanks family were property owners and people of some means. While not wealthy they were what is commonly described as "well-to-do" rural people of community standing. Secondly, it is obvious that the Shanks' money and property, and the defendant's impecuniosity, bear heavily upon this tragic occurrence.

This prosecution focused upon the defendant as a result of the highly professional and superbly proficient investigation conducted by the District Attorney General and his staff, along with the Tennessee Bureau of Investigation, particularly Agent Bob Baird, whose investigative activities were painstakingly effective.

II. The Jailhouse Statements of the Defendant

A major issue revolves around the admissibility of certain admissions, confessions, and statements made by the defendant after indictment, while in Greeneville City Jail, to a member of the Tennessee Bureau of Investigation posing as a prisoner.

As a prelude to a discussion of this issue, the time sequence becomes important. A search warrant was executed on March 31 1978. During the course of the search the defendant handed Agent Baird a letter signed by his counsel advising of his right to have an attorney present during any conversations with the police and giving other appropriate advice to his client.

On April 17, 1978, the presentment was returned. On that same day the District Attorney General requested Agent David Rhea of the Tennessee Bureau of Investigation to meet with Agent Baird, Sheriff Colyer of Greene County, and Agent Denny of the Tennessee Bureau of Investigation for the purpose of formulating a false charge upon which he might be placed in jail along with the defendant. It was determined that he would be charged with drunken driving, possession of marijuana, going armed, with a hold for armed robbery in Kentucky. A newspaper story was planted in the local newspaper, and Rhea entered the jail as Michael David Turnblazer. He was actually confined on April 18, 1978.

Also on April 18, 1978, the defendant was arrested, on a capias, in Nashville by Sheriff Gale Colyer of Greene County and Agents Baird and Denny. While still in Nashville, and immediately following the arrest, counsel for the defendant called Sheriff Colyer by long distance, advised him that he represented the defendant and requested that he not be questioned. The Sheriff agreed and promised that he would not be questioned. This was one day After the Sheriff had participated in the planning conference and after it had been determined that a TBI agent, posing as an accused criminal, would be placed in the Greeneville City Jail along with defendant. To say the least the Sheriff was somewhat less than candid about the matter, lulling Lawyer Bowman into a false sense of security.

Thus it was that the ruse of placing a TBI agent, posing as a criminal, in jail with the defendant, occurred after defendant had been indicted, after his custodians knew he was represented by counsel and after defendant's counsel had been promised there would be no interrogation, and while defendant was secure in the knowledge that he would not be interrogated.

David Rhea, the TBI agent, testified that he was placed in jail, under an assumed name and posing as a prisoner, "to determine what, if any action, Russell Berry was taking as far as taking the life of Bobby Baird." The trial court found that the agent had gone into the cell, not for the purpose of interrogating defendant or of obtaining a statement about this particular crime, but to determine what harm was in the making for the prosecution witnesses. This is the theory of the State. Substantial effort was made to prove threats against Agent Baird. We find scant proof of any threat made to or about Agent Baird. Indeed there is no testimony of any direct threat except to sue for slander. During the course of the trial Agent Baird represented to the court that several persons had communicated threats to him. He declined to reveal their identity. The Trial Judge directed him to submit to the court "the nameS of those persons who tell you about threats made." The submission made by Agent Baird, pursuant to those instructions, appears in this record in a sealed envelope.

Examination reveals that the identity of a single person was disclosed Mrs. Clyde Phillips, a sister of Zelma Shanks. No direct statement is attributed to her. The statement simply recites she is "very apprehensive about actions toward Her by defendant Keith Berry." It is noteworthy that Mrs. Phillips testified as a witness for the State and nothing in her testimony touches upon this assertion.

Assuming Arguendo that the meager proof presented a reasonable ground for belief that the defendant would inflict death or some bodily harm upon Agent Baird or any other witness and overlooking the fact that he did not do so from the time of the murder on February 8, 1978, until his incarceration on April 18, 1978, more than two months later the validity of the action of the State in placing a law enforcement officer, posing as a prisoner, in the cell with defendant is not thereby established. The testimony of the agent may or may not be competent in the context of another trial on another charge, E. g., solicitation to commit murder or arson, but it is not admissible in this trial. Further, assuming the statements made by the defendant to have been voluntary, as found by the Trial Judge, and as insisted by the State, they do not necessarily become admissible. See infra.

Agent Rhea testified that as soon as defendant entered the cell he started talking. After about two hours he stated that he would like to have Agents Baird and Denny killed and was willing to pay a price. "Turnblazer" offered to kill these two individuals "if there was enough money in it." After further discussion they agreed on a price of $5,000.00 each. The deed was to be accomplished before the following Monday because this was the date of the bond hearing. Defendant stated that these two agents knew more about the case than anyone and the way to win was to "eliminate witnesses."

Defendant suggested the use of dynamite as a good way to eliminate Baird.

As a part of the conversation, "Turnblazer" told defendant that he had contacted his girl friend and had mentioned to her that they could make some money. In due course, Rita Sisson, another agent for the TBI, showed up at the jail and was introduced to defendant as Turnblazer's girl friend. They talked some fifteen to twenty minutes about the details and plans for the murder of the two agents. They agreed on $500.00 front money.

Still later, according to Turnblazer, defendant's wife, Robin Berry, came to the jail. Defendant begged her for a gun but she refused unless and until he was convicted. On two or three occasions during her visits he asked her for $500.00 and told her that he had hired Turnblazer to kill Agent Baird.

During a visit by defendant's wife after they had discussed the "front money," she stated she had checked all their bank accounts and advised defendant that they had no money. Defendant admitted he had lied to her about various money...