State v. Bobo

• Decision Date: 09 March 1987
• Docket Number: No. S,S
• Parties: STATE of Tennessee, Appellee, v. Tony Lorenzo BOBO, Appellant. /C 1 727 S.W.2d 945
• Court: Tennessee Supreme Court

Page 945

727 S.W.2d 945

STATE of Tennessee, Appellee, v. Tony Lorenzo BOBO, Appellant.

No. S/C 1

727 S.W.2d 945

Supreme Court of Tennessee,

at Jackson.

March 9, 1987.

Rehearing Denied April 13, 1987.

Harold D. Archibald, Clim Madlock, Jr., Memphis, for appellant.

W.J. Michael Cody, Atty. Gen. & Reporter, Ann Lacy Johns, Asst. Atty. Gen., Nashville, for appellee.

Susan Kay, Vanderbilt Legal Clinic, Nashville, amicus curiae, for Tenn. Ass'n of Criminal Defense Lawyers.

OPINION

DROWOTA, Justice.

This is a direct appeal of a death penalty case. Defendant, Tony Lorenzo Bobo, was convicted of first degree murder in the perpetration of robbery and sentenced to death upon the jury's finding of three aggravating circumstances: Defendant was previously convicted of felonies involving the use or threat of violence to the person, the murder was committed while Defendant was engaged in committing robbery, and mass murder. T.C.A. Secs. 39-2-203(i)(2), (i)(7), and (i)(12). ¹

The victim, Carolyn Doyle, lived alone at 3419 Kimbell in Memphis. She had been a widow for five years and worked as an office clerk. She did not have an automobile and rode the bus to and from work. On January 6, 1983, Earl Floyd, who lived four doors down the street from Mrs. Doyle, went out to get his newspaper at 6:25 a.m., and found her lying face down in his yard. The police arrived within a few minutes after Mr. Floyd called them. The victim had a faint pulse at that time, but she subsequently died of a single gunshot wound that entered her left back and passed through the chest, tearing both lungs, the heart and the aorta.

At trial, Joe Dean Felix testified that he had met Defendant at the house of a relative, Mack Moss, where Defendant and others were shooting dice and doing drugs. On several occasions Mr. Felix drove his car with Defendant and the two Bridgeforth brothers, Alonzo and Emanuel, as passengers while they looked for victims to rob. Before daybreak one morning in January they saw a heavy-set woman crossing the street. Mr. Felix made two left turns, parked in the next block and one of the Bridgeforth boys and Defendant, armed with a revolver, got out of the car and ran in the direction in which they had seen the woman crossing the street. Mr. Felix heard one or two shots fired and Defendant and Bridgeforth returned to the car with a tote sack. He testified that Defendant said, "Let's get out of here--somebody better catch the news because I killed that bitch." The bag contained thirteen dollars, a jar of Tang, and other miscellaneous items.

Defendant gave a tape recorded statement to Memphis police officers on February 14, 1983, in which he admitted robbing and shooting a heavy-set woman at a bus stop on Kimbell, at about 6:00 a.m., on January 6, 1983. He also stated that Alonzo and Emanuel Bridgeforth and he were riding around together in Mr. Felix's car when they saw the victim; he and Emanuel got out of the car and went back around the corner to rob her. Defendant stuck a cocked pistol in her back but when she tried to resist the gun discharged accidentally.

I. THE GUILT ISSUES

Defendant insists that his confession to the murder of Carolyn Doyle should have been suppressed because it was not freely and voluntarily given.

The Memphis Police Department had information implicating Defendant in a number of armed robberies and murders. Upon learning that Defendant was being held in jail at Marion, Arkansas, Sergeant Harvey and another Memphis Police Officer were sent to interrogate him. On February 8, 11, and 14, 1983, eleven separate statements were taken at the Arkansas jail concerning eleven or more separate crimes. On February 19 and March 2, 1983, nine additional statements were taken at the Criminal Justice Center in Memphis.

Defendant contends that on all of these occasions he was undergoing severe drug withdrawal symptoms, that he had an unattended gunshot wound to the head, that he was not allowed to communicate with his family, and that his many requests for counsel were ignored. The officers involved denied that he displayed any signs of drug withdrawal and stated that Defendant had a superficial crease wound about which he never complained. The officers also testified that Defendant never asked for counsel and that he had been advised of his Miranda rights, after which he freely executed written waivers on each occasion. The statements were recorded and transcribed and the tapes were played back to Defendant; he acknowledged the accuracy of the statements in each instance.

After a full pre-trial hearing, the trial judge held that all of the statements were freely and voluntarily given and were admissible at trial. Nevertheless, appropriately, the only statement introduced at the guilt phase of the trial was Defendant's confession to the murder of Mrs. Doyle. ² The trial judge made express findings of fact, all contrary to Defendant's contentions. Those findings have the weight of a jury verdict and we find material evidence to support the trial judge's findings; we are, therefore, required to affirm. See State v. O'Guinn, 709 S.W.2d 561, 565-566 (Tenn.1986).

Defendant insists that the trial judge should have granted his motion for a change of venue based upon the publicity of Defendant's trial for the murder of George Huffman, Jr., which occurred approximately two and one-half months prior to the Doyle murder trial. In support of that issue, Defendant claims that the trial judge did not consider the factors listed in State v. Hoover, 594 S.W.2d 743, 746 (Tenn.Crim.App.1979).

The Huffman murder trial was reported in The Memphis Commercial Appeal from December 4 through 12, 1984. The articles can be fairly described as routine factual reporting of a murder trial. The trial judge allowed individual voir dire of the jurors, no doubt in recognition of the short interval between the two trials. The voir dire indicates that, of the jurors selected who had any knowledge of the publicity about the Huffman Murder trial, all testified that they could decide the case entirely on the evidence presented in this case without reference to any prior publicity. The matter of a change of venue addresses itself to the sound judicial discretion of the trial judge; his decision will be respected absent an affirmative and clear abuse of that discretion. Rippy v. State, 550 S.W.2d 636 (Tenn.1977).

Defendant complains that the trial judge refused to grant his challenge for cause of juror Brenda Endress. Ms. Endress was examined individually on the second day of jury selection, February 19, 1985. The prospective jurors had not been sequestered at that point and that morning she had read an article in The Memphis Commercial Appeal reporting that Defendant's second trial was underway. Although most of the article dealt with Defendant's pre-trial motions, it mentioned that Defendant had been convicted in December of the murder of George Huffman, Jr., and given a life sentence after the jury had dead-locked eleven to one in favor of sending him to the electric chair. Ms. Endress was carefully examined by defense counsel and by the court; her examination concluded as follows:

THE COURT: All right. Can you set anything aside that you have read or seen or heard and make your decision solely on what you hear and see from that witness stand and base it on the law that I give you at the end of this trial? Can you do that?

JUROR ENDRESS: I feel like that I am knowledgeable enough to do that.

There was no error in rejecting Defendant's challenge of this juror for cause.

Defendant asserts that the State's challenges for cause of prospective jurors Morris Brooks and Ella Fields were erroneously granted by the trial judge. Although some of Mr. Brooks's responses to defense counsel's questions were ambiguous, his responses taken as a whole reveal that he was opposed to the death penalty on religious and other grounds and would not impose it under any circumstances. Among his objections to capital punishment, Mr. Brooks believed that "[m]ost of the folks that are on death row and that get the death penalty just happen to be black and I am strongly opposed to that."

With respect to Ella Fields, she repeatedly made it clear that her opposition to the death penalty was so strong that to avoid facing the punishment issue she probably could not vote for conviction, regardless of the proof. The trial court correctly excused jurors Brooks and Fields for cause. See Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 84 (1985).

Defendant says that the trial court excluded jurors from service on the jury who were opposed to the death penalty on religious grounds, amounting to a religious test for jury service in violation of Article I, Sec. 6, Tennessee Constitution. Defendant fails to single out any particular juror in asserting this issue. We have read the voir dire carefully and, while some jurors said their opposition to and inability to impose the death penalty, regardless of the evidence adduced, was based in whole or in part on religious grounds, those jurors were excused because their views on capital punishment rendered them unable to follow the law as given to them by the court and to perform their duties as jurors in accord with their oaths. That their views on capital punishment may have had a religious foundation does not necessarily transform the tests mandated by the United States Supreme Court in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and Wainwright v. Witt, supra, into religious tests for the purposes of the Tennessee Constitution. This issue has no merit.

Defendant raises the "conviction-prone" or "death qualified" jury issue, adopted by an Arkansas Federal District Judge in Grigsby v. Mabry, 569 F.Supp. 1273 (1983), and affirmed by the Eighth Circuit Court of Appeals at 758 F.2d 226 (1985). The decisions in Grigsby were based on social science studies labelled "Conviction-Prone-ness...