State v. Rimmer

Decision Date20 February 2008
Docket NumberNo. W2004-02240-SC-DDT-DD.,W2004-02240-SC-DDT-DD.
Citation250 S.W.3d 12
PartiesSTATE of Tennessee v. Michael Dale RIMMER.
CourtTennessee Supreme Court

Brock Mehler, Nashville, Tennessee, and Joseph Ozment, Memphis, Tennessee, for the appellant, Michael Dale Rimmer.

Robert E. Cooper, Attorney General and Reporter; Michael E. Moore, Solicitor General; Mark E. Davidson, Assistant Attorney General; William L. Gibbons, District Attorney General; and Thomas D. Henderson, Assistant District Attorney General, for the appellee, the State of Tennessee.


GARY R. WADE, J., delivered the opinion of the court, in which WILLIAM M. BARKER, C.J., JANICE M. HOLDER, CORNELIA A. CLARK, and WILLIAM C. KOCH, JR., JJ., joined.

The Defendant, Michael Rimmer, was convicted of one count of premeditated murder, one count of aggravated robbery, and one count of theft of property. In the penalty phase of the trial, the jury imposed a sentence of death for the first degree murder. On appeal as of right, the Court of Criminal Appeals affirmed the convictions, reversed the sentence of death, and remanded to the trial court for a second sentencing hearing. State v. Rimmer (Rimmer I), No. W1999-00637-CCA-R3-DD, 2001 WL 567960 (Tenn. Crim.App. May 25, 2001). At the conclusion of that proceeding, a different jury imposed the death penalty based upon one statutory aggravating circumstance, i.e. that the defendant had a previous conviction for a felony with statutory elements involving violence to the person. Tenn. Code Ann. § 39-13-204(i)(2) (1997). As required for the imposition of a sentence of death, the jury also concluded that the aggravating circumstance outweighed the mitigating circumstances beyond a reasonable doubt. This sentence was affirmed by the Court of Criminal Appeals. State v. Rimmer (Rimmer II), No. W2004-02240-CCA-R3-DD, 2006 WL 3731206 (Tenn.Crim.App. Dec.15, 2006). Our review is mandatory. Tenn.Code Ann. § 39-13-206(c)(1) (2006). Upon careful review of the entire record, we hold as follows: (1) although the trial court erred during the sentencing hearing by excluding evidence solely on the grounds of hearsay, the evidence was either introduced through other means or lacking in relevance or reliability, so the error was harmless beyond a reasonable doubt; (2) for a waiver of his right to testify to have been valid, a defendant need not state on the record that he was informed by counsel of our ruling in State v. Cazes, 875 S.W.2d 253, 266 (Tenn.1994); (3) the jury instruction defining reasonable doubt does not offend due process; (4) references by defense counsel and a defense witness that the defendant previously had been on "death row" did not, under these circumstances, entitle the defendant to a new sentencing hearing; and (5) the sentence of death satisfies the proportionality guidelines. As to the remaining issues, we agree with the conclusions reached by the Court of Criminal Appeals. The relevant portions of the opinion are appended. The judgment of the Court of Criminal Appeals is, therefore, affirmed.

I. Procedural and Factual History

On November 7, 1998, Michael Dale Rimmer (the "Defendant"), a white male, was convicted of theft, aggravated robbery, and the first degree murder of the victim, Ricci Ellsworth. A Shelby County jury imposed the death sentence. In 2001, the Court of Criminal Appeals affirmed the convictions; however, because of multiple errors that affected the integrity and reliability of the verdict with regard to the presence of aggravating circumstances, a new sentencing hearing was ordered. See Rimmer I, 2001 WL 567960, at *22-23. After a remand for a second trial on the issue of penalty only, a different jury also sentenced the Defendant to death, relying upon Tennessee Code Annotated section 39-13-204(i)(2) as the applicable aggravating circumstance; that is, that the Defendant had prior convictions of one or more felonies with statutory elements involving the use of violence to the person. The State established that in 1985, the Defendant had been convicted of assault with intent to commit robbery, had pleaded guilty to aggravated assault, and, in 1989, had pleaded guilty to three charges involving the murder victim—first degree burglary, aggravated assault, and rape. In his defense, the Defendant, in hopes of leniency by the jury, attempted to cast doubt on both the murder conviction and his 1989 conviction for rape. In this second appeal, the Court of Criminal Appeals affirmed. The terms of Tennessee Code Annotated section 39-13-206(a) mandate our review.

A summary of the testimony offered in both the guilt and penalty phases of the 1997 trial appears in the initial opinion by the Court of Criminal Appeals. Rimmer I, 2001 WL 567960, at *1-3. While there are differences in the testimony offered in the two phases of the 1997 trial and that in the resentencing hearing in 2004, they are minor. Our review pertains to the testimony offered in the latter proceeding.

II. Resentencing Hearing

During the middle 1980's, the Defendant had an on-again-off-again romantic relationship with the victim. They started dating sometime after the victim obtained a divorce in 1977 from her first husband Donald Eugene Ellsworth, by whom she had two children. At the time, the victim was apparently struggling with a drinking problem and Ellsworth was experiencing drug problems. Later, after his relationship with the victim had come to an end, the Defendant was indicted for the aggravated assault and rape of the victim and the first degree burglary of her residence. In 1989, he entered pleas of guilt to each charge and was sentenced to the Department of Correction.

During his incarceration, the victim often accompanied the Defendant's mother, Sandra Rimmer, on visits to the prison. Because the victim participated in a religious program that ministered to inmates from about 1988 to 1992, she saw the Defendant regularly. According to the Defendant's mother, the victim and the Defendant displayed an affection for each other during the prison visits. Despite this purported renewal of their relationship, however, there was evidence that during this period of time, the Defendant informed two inmates, Roger LeScure and William Conaley, of his desire to kill the victim upon his release from the prison. He even described to LeScure how he intended to dispose of her body. The Defendant explained to the inmates that he blamed the victim for his incarceration and was entitled to money from her.

The Defendant was released by the Department of Correction in October of 1996 and began work at an auto body repair shop in Memphis. By that time, the victim, who was employed as a night auditor at the Memphis Inn, had remarried Donald Ellsworth and had experienced some success in controlling her alcohol problems.

On February 7, 1997, the victim was scheduled to begin her shift at 11:00 p.m. Her husband awakened her and kissed her goodbye. She drove to the hotel in her 1989 Dodge Dynasty. The only access to her office was through a door, which was locked, or through a small opening in the glass security window. Several hotel guests saw the victim at her office desk between 1:00 and 2:00 a.m. Before 2:00 a.m., one of the guests noticed a "dark-maroonish brown" car that had been backed into an area near the hotel entrance. Although it was raining at the time, the trunk was open.

At about 2:30 a.m., Raymond Summers, a railroad supervisor with CSX Transportation, drove to the hotel when the management service was unable to make telephone contact with a work crew, which was staying there overnight. Because no one was at the front desk, Summers entered the office area. When he heard the sound of water running in the office restroom, he looked inside and discovered blood splatters on the sink, the wall, the toilet bowl, and some towels. He reported his findings to Shelby County officers who were leaving a nearby Denny's Restaurant. The officers notified Linda Spencer, the hotel manager, who lived on the premises. When they investigated, they discovered signs of a struggle in the office area. There were "puddles" of blood throughout the restroom. The sink was cracked, and the lid had been ripped off the commode. Police found the victim's purse. There was a trail of blood approximately thirty-nine feet long that led from the restroom, through the equipment room, office, reception area, and to the vending space. The trail ended on the curb outside the night entrance, indicating that the victim may have been dragged from the restroom to the curb. Some $600 in cash was missing from the register, and three sets of sheets had been taken from the equipment room. Officer Robert Moore of the Memphis Police found a green cigarette lighter under a bloody towel and discovered the victim's gold ring between the office and the bathroom.

Sergeant Robert Shemwell of the homicide department testified that during the investigation the police questioned Richard Rimmer, the Defendant's brother, and Richard Rimmer's ex-girlfriend, Joyce Frazier. According to Sergeant Shemwell, the Defendant appeared at his brother's house during the morning hours after the murder. The Defendant's car was muddy and so were his shoes. The back seat of the car appeared to be wet. There was a shovel inside. The Defendant had asked Richard Rimmer, who was a carpet cleaner, if he knew how to get blood out of carpet. Richard Rimmer admitted that sometime after he had learned of the victim's disappearance, he disposed of the shovel in a dumpster.

The police learned that the Defendant left Memphis without taking the last paycheck he was due from his employer. He gave no notice of his departure. He also left without taking his work tools or the clothing he had stored in the room he occupied.

On March 5, 1997, Michael Adams, a Johnson County, Indiana deputy, stopped the Defendant, checked the license plate number on the Honda, and determined that...

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