State v. Bigbee
| Decision Date | 03 October 1994 |
| Court | Tennessee Supreme Court |
| Parties | STATE of Tennessee, Appellee, v. Roosevelt BIGBEE, Appellant. |
Broch Mehler, Capitol Case Resource Center, Nashville, William B. Vest (deceased), Niceville, FL, for appellant.
Charles W. Burson, Atty. Gen. & Reporter, Rebecca L. Gundt, Asst. Atty. Gen., Nashville, for appellee.
In this capital case, the defendant, Roosevelt Bigbee, was convicted of first-degree felony murder in an attempt to perpetrate a robbery. In the sentencing hearing, the jury found two aggravating circumstances: (1) that the defendant was previously convicted of one or more violent felonies; and (2) that the murder was committed while the defendant was attempting to commit a robbery. Tenn.Code Ann. § 39-2-203(i)(2), and (7) (1982). 1 The jury found that there were no mitigating circumstances sufficiently substantial to outweigh the aggravating circumstances and sentenced the defendant to death by electrocution.
On appeal, the defendant raises numerous issues for our review which involve alleged errors occurring during both the guilt and sentencing phases of trial. We have carefully considered the defendant's contentions as to errors occurring during the guilt phase and have decided that none require reversal. We therefore affirm the defendant's conviction.
However, we conclude that the sentence of death must be reversed and the case remanded for a new sentencing hearing. Irrelevant evidence was admitted regarding the defendant's previous conviction of first-degree felony murder, and that error, combined with improper prosecutorial argument, resulted in plain error that affected the substantial rights of the defendant. Tenn.R.Crim.P. 52(b). Those errors were also compounded by the use in this case of the felony murder aggravating circumstance, which was held to be error under State v. Middlebrooks, 840 S.W.2d 317 (Tenn.1992) (Drowota, J. and O'Brien, J., dissenting). After reviewing the record, we are unable to conclude that the cumulative effect of the errors was harmless beyond a reasonable doubt. Accordingly, the sentence of death is reversed and the case remanded for resentencing.
The defendant was convicted of the felony murder of Monty Clymer, a relief clerk at a Delta Express Market in Hendersonville, Tennessee. Clymer, who worked the midnight shift, was killed sometime between 12:50 and 1:30 a.m. on December 28, 1988. Disarray about the store's counter and injuries to Clymer's body indicated a struggle had occurred. He had been beaten about the face and shot four times: one wound through the back left thigh, one through the back right shoulder, one graze wound to the right shoulder, and one contact wound to the left chest. The wound to the chest had been fatal. No money was missing from the market and $82.00 was found in the victim's wallet.
The key State's evidence in this case was testimony from the defendant's brother-in-law and co-defendant, Joe T. Baker, who had previously pled guilty to Clymer's murder and received a life sentence. Baker testified that on the evening of December 27, 1988, he and the defendant had picked up Chris and Joel Hoosier at a poolroom in Clarksville around 6:30 p.m. According to him, the four men rode around for awhile and discussed robbing a convenience store "somewhere away from Clarksville." Baker said that the group drove to Springfield, where Baker borrowed four pistols from a man named Tom Sircy, and that Chris Hoosier took a .25 caliber gun, Joel Hoosier a .22, the defendant a .38, and Baker a second .22. Baker related that the four then drove around for hours, wandering between Nashville and Springfield, smoking marijuana mixed with cocaine and looking for an "easy target" until they arrived at the Delta Market in Hendersonville.
When the four entered the market, Baker testified, Joel Hoosier, who was standing by the door, told Clymer to give him the money. Thinking Clymer was reaching for something other than cash, Baker stepped forward and began pistol whipping Clymer about the face. Chris Hoosier was standing behind Baker on the left; the defendant was to Baker's right. According to Baker, he struggled with Clymer until he felt his pistol slipping from his grasp and heard a gun fire. At that point, Clymer loosened his grip on Baker's wrist and fell to the floor. Firing his own pistol, Baker fled the market. Baker testified that for some unknown reason his gun stopped working during this time.
After the other three men returned to the car, Baker testified, Joel Hoosier tried to give Baker some money. Baker testified that before entering the market, none of the group had any money. Baker said that he had refused the money. Baker also told the jury that his companions had agreed with him when he had remarked that he hoped the clerk was dead because he had seen all of them. The four next drove to Springfield, according to Baker, where they gave the defendant's cousin, Lewis Mason, all of the guns except the .25, which Baker kept. Mason was to return the guns to Sircy. After leaving the Hoosiers at their house in Clarksville, Baker said, he and the defendant talked about what had happened. Baker said that when he asked the defendant if he had shot the clerk, the defendant replied that he had and claimed that he had done it because he was afraid the clerk would get Baker's pistol and Baker would be shot. "[H]e done it for me," explained Baker.
The State offered testimony in corroboration from another witness, Sandy Womack, who said that, on Father's Day 1989, while incarcerated in the Montgomery County Jail, he overheard a conversation between the youngest Hoosier brother, Eric, and the defendant, during which Eric had asked the defendant to tell him some things about the Hendersonville killing. When asked how many people Joe [Baker] said had had a gun in Hendersonville, the defendant told Eric, "We all got one." When asked how far away he had been standing when he shot, the defendant replied, "Two, three, four feet." The defendant also made a remark about his having held the gun "so high" during the episode that it could be seen from any car passing by the market. Womack said that the conversation occurred in the law library at the jail, which was accessible to all the prisoners. Womack also said that, although the defendant was in another wing of the jail, Hoosier was able to converse with the defendant because the steel doors in the law library separating the two wings had a one to two inch space all the way around them. Womack said he was able to overhear the conversation because he was standing near the door.
In addition to Baker and Womack, the State also called the defendant's cousin, Lewis Mason, as a witness. Mason testified that Baker and the defendant borrowed a .22 caliber gun from him twice near the end of 1988. When the gun was returned to him the second time, Mason said, it had a screw missing from the hammer. Mason specifically contradicted Baker's statement that he had given Mason the guns to return to Sircy on December 28, 1988.
None of the fingerprints found at the market nor any other physical evidence from the scene or the automobile driven by the offenders on the night of the killing connected the defendant, Baker, or the Hoosiers to the killing. The murder weapon was never found.
At the scene of the crime, police discovered two spent .22 caliber bullets, two spent .38 caliber bullets, and pieces of a broken trigger guard. A third .38 caliber bullet was removed from the fatal wound in Clymer's chest. A ballistics expert testified that the fatal wound was a contact wound. He said he was able to make that determination because the bullet had passed through five folds of the victim's shirt fabric. This indicated that the gun was being pressed against the shirt at the time it was fired.
Defense strategy at the guilt phase consisted, for the most part, of testimony or impeachment that called into question the credibility of Baker and Womack and raised doubts about the evidence collected at the crime scene. On cross examination, the defense attorney questioned Baker closely and Baker acknowledged that he had lied repeatedly to both Clarksville and Hendersonville authorities, that he had been convicted of perjury as a result of his testimony at Joel Hoosier's preliminary hearing, that he looked upon the Hendersonville case as a way out of his problems in Clarksville where he was facing a capital trial, that he was willing to say almost anything to avoid the death penalty, that his testimony against Bigbee was part of a plea agreement with the State whereby he received a life sentence, and that he had been dishonorably discharged from the Marines after pleading guilty to forgery, making false statements, and conspiracy to possess and distribute cocaine.
Responses to cross-examination questions revealed that Womack had been convicted of two robberies in Montgomery County in March of 1989 and sentenced to 15 years and 50 years, that he had six robbery charges and an habitual criminal charge pending in Robertson County, and that he was under indictment in Davidson County. Womack admitted that, at least initially, he had cooperated with authorities in hopes of bettering his own situation; however, he denied ever receiving a deal. In response to questions that revealed the charges in Robertson County had been retired after Womack began cooperating with authorities in Sumner County, Womack insisted that retirement of the Robertson County charges was unrelated to his cooperation with Sumner County authorities.
As substantive evidence aimed at destroying the credibility of Baker and Womack, the defense offered the testimony of Tonya Baker, wife of Joe Baker and the defendant's sister. She testified that in either January or February of 1989, her husband instructed her to call the Hendersonville police department and ask them whether it was...
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