State v. Nesbit
| Decision Date | 28 September 1998 |
| Citation | 978 S.W.2d 872 |
| Parties | STATE of Tennessee, Appellee, v. Clarence C. NESBIT, Appellant. |
| Court | Tennessee Supreme Court |
A.C. Wharton, District Public Defender, Memphis, W. Mark Ward, Assistant Public Defender (Appeal only), Ronald S. Johnson, Betty J. Thomas, Assistant Public Defender (Trial Only), Memphis, for Appellant.
John Knox Walkup, Attorney General and Reporter, Michael E. Moore, Solicitor General, John P. Cauley, Assistant Attorney General, Nashville, William Gibbons, District Attorney General, Thomas D. Henderson, Jennifer Nichols, Assistant District Attorneys General, Memphis, for Appellee.
In this capital case, the defendant, Clarence C. Nesbit, was convicted of premeditated first degree murder. At the sentencing hearing, the jury found one aggravating circumstance: (1) "[t]he murder was especially heinous, atrocious or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death." Tenn.Code Ann. § 39-13-204(i)(5) (1991 Repl.). Finding that the aggravating circumstance outweighed mitigating circumstances beyond a reasonable doubt, the jury sentenced the defendant to death by electrocution.
On direct appeal to the Court of Criminal Appeals, the defendant challenged both his conviction and sentence, raising eleven claims of error, some with numerous subparts. After fully considering the defendant's claims, the Court of Criminal Appeals affirmed the trial court's judgment. Thereafter, pursuant to Tenn.Code Ann. § 39-13-206(a)(1) (1997 Repl.), 1 the case was docketed in this Court.
The defendant raised numerous issues in this Court, but after carefully examining the entire record and the law, including the thorough opinion of the Court of Criminal Appeals and the briefs of the defendant and the State, this Court, on September 30, 1997, entered an Order limiting oral argument to five issues, and setting the cause for oral argument at the April term of Court in Jackson. 2 See Tenn. S.Ct. R. 12. 3
After hearing oral argument and carefully reviewing the record, we have determined that none of the assignments of error require reversal. Moreover, the evidence supports the jury's findings as to the aggravating and mitigating circumstances, and the sentence of death is not arbitrary or disproportionate to the sentence imposed in similar cases, considering the nature of the crime and the defendant. Accordingly, the judgment of the Court of Criminal Appeals upholding the defendant's conviction for first degree murder and sentence of death by electrocution is affirmed.
It is undisputed that the nineteen-year-old defendant, Clarence Nesbit, killed the twenty-year-old victim, Miriam Cannon, by shooting her once in the head on the afternoon of May 20, 1993. While Nesbit admitted that he shot the victim, he claimed that the shooting had been an accident.
The proof introduced at the guilt phase of this trial established that the victim lived with her five young children 4 at the Pershing Apartments in Memphis, Tennessee. She had known the defendant for approximately one month prior to her killing. The victim's sister, Constance Cannon, testified that around 1:00 p.m. on the day of the murder, she and a friend stopped by the victim's apartment to drive the victim to the grocery store. Although Cannon knocked at the door for several minutes, no one answered. As they were leaving, Cannon's friend noticed one of the victim's children looking out the window. By the time Cannon returned to the door, the victim had opened it. The victim told Cannon that she was not ready to go and asked Cannon to return at 3:00 p.m. Contrary to her usual practice, the victim did not ask Cannon to come inside. Nonetheless, from the back door, Cannon saw the defendant sitting on the living room couch with one of the victim's children. Cannon had seen the defendant once before the day of the murder, but knew him only by his nickname "Red." Cannon recalled that the victim had been barefoot on the day of the murder, although otherwise fully clothed. Cannon also recalled seeing a horizontal mark on the victim's neck that she had not seen the day before the murder. Cannon left, as the victim requested, but later telephoned the victim around 3:00 p.m. to confirm their plans. Upon receiving no answer, Cannon assumed the victim had made other arrangements and did not return to her sister's apartment.
James Shaw, a boyfriend of the defendant's aunt, lived in the victim's apartment complex. Shaw testified that he had been sitting outside his apartment on the afternoon of the murder when he heard a gunshot in a nearby apartment unit. Shortly afterward, Shaw saw the defendant leave the area from which the gunshot had sounded, casually walk to his car, a blue Oldsmobile, and drive away from the apartment complex at a normal rate of speed. Shaw described the defendant's behavior as normal, except for the "funny look" Shaw had observed in the defendant's eyes. Shortly after the defendant departed, Shaw saw the victim's children crying in the parking lot of the complex. When Shaw inquired about their mother, one of the children responded, "She's dead."
Tracy Davis, the victim's close friend and neighbor, testified that on the day of the murder she had heard children crying in the victim's apartment and had seen three of the victim's children walking toward her apartment. The children told Davis that their mother was asleep and could not be woken. As a result, Davis went to the victim's apartment and found the victim lying in a pool of blood in front of the kitchen door. The victim's youngest child was on the floor beside her mother trying to wake her. Davis returned to her apartment and called the police.
When the police arrived, they first spoke with the victim's children who told them that "Red" had shot their mother. "Red" was one of the defendant's nicknames. When the police entered the victim's apartment, they found her body lying face up, fully clothed, with sandals on her feet. Next to her body police found a cigarette butt, a match, a book of matches, and a hair barrette. Four cartridges were found on top of the refrigerator and a lead bullet fragment on the kitchen floor at the door to the living room. A hot curling iron lay on the kitchen counter. A ricochet mark made by a bullet was found approximately 4'8" above the ground on the wall behind the stove.
Dr. O.C. Smith, assistant medical examiner for Shelby County, performed the autopsy on the victim. Dr. Smith testified that the victim had died from a single gunshot wound to her head. Dr. Smith opined that the gun inflicting the wound had been approximately twelve to thirty-six inches from the victim's head when it was fired. The bullet entered the victim's body through her left ear, about 5'0" above the floor, traveled in a downward trajectory through the victim's skull and brain, and exited behind her right ear at a height of 4'11" above the floor. According to Dr. Smith, the gunshot wound would have instantly incapacitated the victim.
Dr. Smith also had observed burns on the victim's chin, neck, abdomen, and forearm. The burns had been inflicted at various points in time from six hours to mere minutes before the victim had died. Dr. Smith described the burn on the left side of the victim's neck as in the shape of the numeral one ("1"). Upon viewing photographs of the victim's body, Constance Cannon testified that the horizontal bar at the base of that burn appeared to be the mark she had seen on her sister's neck the afternoon of the murder. Dr. Smith testified that soot and blistering on another triangular burn under the victim's chin indicated that it had been caused by an open flame. Although the other burns had also been thermal in origin, Dr. Smith could not identify the precise cause of those burns.
Dr. Smith also found bruising and scraping on the soles of the victim's feet during the autopsy. He opined that these injuries had been caused by striking the victim's feet with a long, hard, thin object such as a rod or a coat hanger. Dr. Smith found no defensive wounds on the victim's body.
With respect to the defendant's actions on the day of the murder, the proof showed that, after the shooting, Nesbit left the Pershing Apartments and drove to the Royal Oaks Motel, where his uncle Ashley Nesbit, had a room. Once there, he spoke privately with his uncle, and hid the murder weapon, a .357 Magnum revolver, in the bathroom of the motel room. After the victim's body had been found the defendant returned to the Pershing Apartments in his cousin's green pickup truck. The defendant encountered James Shaw and told him that the victim had shot herself while playing Russian Roulette. Upon Shaw's advice to tell the truth, Nesbit admitted to Shaw that he shot the victim, but claimed it was an accident. The defendant also told Shaw that he had left the gun at the motel. Shaw and the defendant were preparing to drive out of the apartment complex to retrieve the gun when police stopped their vehicle and apprehended the defendant. A search of the defendant's person revealed a beeper and $602 in cash. With police permission Shaw proceeded to the motel, retrieved the gun, and surrendered it to police.
In the meantime, the defendant was interrogated by police and stated that he spent the night before the killing at the victim's apartment. At first, Nesbit told police that the victim had been "playing" with the gun when it discharged and killed her. Later, the defendant related that he accidentally shot the victim, claiming that he had pulled the trigger believing the gun to be unloaded.
At trial Nesbit testified that he had been visiting his uncle's motel room on the night before the killing when police officers arrived at the motel and began a search of the premises. Observing a gun on the dresser, Nesbit removed it from the room before the...
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