State v. Rimmer

• Decision Date: 16 April 2021
• Docket Number: No. W2017-00504-SC-DDT-DD,W2017-00504-SC-DDT-DD
• Citation: 623 S.W.3d 235
• Parties: STATE of Tennessee v. Michael RIMMER
• Court: Tennessee Supreme Court

623 S.W.3d 235

STATE of Tennessee

v.Michael RIMMER

No. W2017-00504-SC-DDT-DD

Supreme Court of Tennessee.

November 4, 2020 Session¹

FILED April 16, 2021

Rehearing Denied May 21, 2021

Paul Bruno (on appeal and at trial), Murfreesboro, Tennessee, and Robert Parris (on appeal and at trial), Memphis, Tennessee, for the appellant, Michael Dale Rimmer.

Herbert H. Slatery III, Attorney General and Reporter; Andrée Sophia Blumstein, Solicitor General; Andrew C. Coulam, Senior Counsel; Pamela Anderson and Rachel Sobrero, District Attorneys General Pro Tem, for the appellee, State of Tennessee.

Michael J. Passino, Nashville, Tennessee, for Amicus Curiae Amnesty International, Nashville.

Holly Kirby, J., delivered the opinion of the court, in which Jeffrey S. Bivins, C.J., Cornelia A. Clark, and Roger A. Page, JJ., joined. Sharon G. Lee, J., filed a concurring opinion.

Holly Kirby, J.

This is a direct appeal in a capital case. The defendant had one prior trial. In the second trial, a Shelby County jury found the defendant guilty of first degree premeditated murder, murder in the perpetration of robbery, and aggravated robbery. He was sentenced to death plus a consecutive eighteen years of incarceration. The Court of Criminal Appeals affirmed the convictions and the sentence. We now consider the appeal on automatic review pursuant to Tennessee Code Annotated section 39-13-206(a)(1). We hold the following: (1) based on sequential jury instructions given in the first trial, the first jury did not have a full opportunity to consider the felony murder count, so double jeopardy principles did not bar retrial on the felony murder count; (2) alleged prosecutorial misconduct in the first trial did not trigger double jeopardy protections and did not bar retrial of the defendant; (3) because the State did not have a duty to preserve the defendant's vehicle, the trial court did not err in denying the defendant's motion to suppress DNA evidence from the vehicle; (4) the trial court did not err under Tennessee Rule of Evidence 404(b) in admitting evidence of the defendant's prior convictions for rape and assault of the victim; and (5) the trial court did not err under Rule 404(b) in admitting evidence of the defendant's escape attempts and corroborating evidence of homemade shanks in his cell. We hold further that imposition of the death penalty is not arbitrary, given the circumstances of the crime; that the evidence supports the jury's finding that the State proved one aggravating circumstance beyond a reasonable doubt; that the evidence supports the jury's conclusion that the aggravating circumstance outweighed any mitigating circumstances beyond a reasonable doubt; and that the sentence of death is neither excessive nor disproportionate to the penalty imposed in similar cases. As to the remaining issues raised by the defendant, we agree with the conclusions of the Court of Criminal Appeals and attach as an appendix to this opinion the relevant portions of the intermediate court's decision. We affirm the convictions and the sentence.

FACTUAL AND PROCEDURAL HISTORY

On February 8, 1997, the victim in this case, Ricci Lynn Ellsworth, disappeared from the Memphis Inn in Shelby County. She left behind her purse, her wedding band, her car, and a chaotic and bloody crime scene. Although the victim was a dependable employee and devoted wife, grandmother, mother, and daughter, neither her employer nor her family ever heard from her again. The victim's body was never located, and she is presumed dead.

The lengthy procedural history in this case includes two trials and three sentencing hearings. At the first trial in 1998, a jury convicted the Defendant, Michael Dale Rimmer, of first degree murder, aggravated robbery, and theft of property. The Defendant received a sentence of death. The State had also charged the Defendant with first degree felony murder during the perpetration of a robbery (felony murder), but the jury did not return a verdict on that count.

On appeal, the Court of Criminal Appeals affirmed the convictions, but it reversed the death sentence due to numerous errors related to the aggravating circumstances considered by the jury. It remanded the case for a new sentencing hearing. See State v. Rimmer , No. W1999-00637-CCA-R3-DD, 2001 WL 567960, at *23 (Tenn. Crim. App. May 25, 2001).

On remand, a second jury imposed the death penalty. On direct appeal, the Court of Criminal Appeals affirmed the sentence. State v. Rimmer , No. W2004-02240-CCA-R3-DD, 2006 WL 3731206, at *28 (Tenn. Crim. App. Dec. 15, 2006), perm. app. granted , (Tenn. Aug. 13, 2007). This Court affirmed the sentence as well. See State v. Rimmer , 250 S.W.3d 12, 18 (Tenn. 2008).

The Defendant then sought post-conviction relief, alleging ineffective assistance of counsel and prosecutorial misconduct. The post-conviction trial court concluded the Defendant was not entitled to relief on his claims of prosecutorial misconduct. However, it granted post-conviction relief on the ineffective assistance of counsel claims and ordered a new trial and sentencing hearing. The State did not appeal.

In advance of the Defendant's second trial, he filed a number of pretrial motions. They included a motion to dismiss the felony murder count, which the trial court denied; a motion to suppress DNA evidence, which the trial court partially denied; and a motion to suppress Rule 404(b) evidence, which the trial court partially denied.

The second trial commenced on April 28, 2016.² The jury heard evidence that, years earlier, the Defendant and the victim had been in a tumultuous romantic relationship. Though it ended, they remained in contact. In 1989, the Defendant assaulted and raped the victim inside her home. He eventually pled guilty to burglary in the first degree, aggravated assault, and rape. He received a lengthy prison sentence. According to the victim's daughter, Tracye Ellsworth Brown,³ and the victim's mother, Marjorie Floyd, the victim was too forgiving toward the Defendant after the rape. She continued to interact with him and even visited him in prison.

During his incarceration for rape and assault of the victim, the Defendant met William Conaley. Mr. Conaley was a childhood friend of the victim's niece. The Defendant learned the victim and her son had received a sum of money in settlement of a personal injury claim. The Defendant was angry at the victim and felt entitled to a portion of the settlement. The Defendant told Mr. Conaley to tell the victim's niece to let the victim know that if he, the Defendant, did not get the settlement money to which he felt entitled, he would kill the victim upon his release from prison. Mr. Conaley relayed the message by letter and in person. According to Mr. Conaley, whenever the Defendant talked about the victim, he would get agitated, sweat, work himself up, wring his hands, and saliva would build up in the corners of his mouth.

During this same incarceration, the Defendant also met Roger Lescure. In 1996, while he and Mr. Lescure were working together in the prison, the Defendant talked to Mr. Lescure about the victim and said he was going to "kill the funky bitch" after his release. The Defendant described to Mr. Lescure how to get rid of dead bodies: "Put them in a barrel and put lime in them, it eats the bones and all up." Mr. Lescure said that, when the Defendant talked about killing the victim, he got "high strung" and "into talking about it" and would "sort of foam at the mouth."

After he was released from prison, the Defendant and the victim continued to interact. One afternoon, the Defendant's father came home from work to find the Defendant changing the oil in the victim's vehicle. The Defendant's father got angry that the Defendant was maintaining a relationship with the victim because he felt it would lead to more problems.

In 1997, the Defendant worked at Ace Automotive Collision Center⁴ with Howard Featherston⁵ and James Wilcox. During that time, he commonly wore a baseball cap. According to Mr. Featherston, the Defendant also had a tattoo on his arm.⁶ In addition to working with Mr. Featherston at the collision center, the Defendant worked on vehicles with Mr. Featherston at Mr. Featherston's home. At the time, Mr. Featherston owned a maroon Honda Accord. On January 4, 1997, the Accord was driven away from Mr. Featherston's home and was never returned.⁷

On Friday, February 7, 1997, the Defendant did not have enough money for gas. His coworker at the Collision Center, Mr. Wilcox, followed the Defendant to the gas station and put five dollars’ worth of gas in his car so the Defendant could cash his February 6, 1997 paycheck. On that day, Mr. Wilcox recalled, the Defendant was driving a maroon Honda. He expected the Defendant to repay him the five dollars when he came to work the following Monday, since the Defendant was scheduled to work the week of February 10. However, the Defendant never returned to the Collision Center, not even to pick up his paycheck for the shift he worked on February 7.

Also on Friday February 7, after he left work at the Collision Center, the Defendant went to the home of his brother, Richard Rimmer, in Mississippi. He drank some beer and talked about a date he had planned later that night.

The same night, the victim left the home she shared with her husband, Donald Eugene Ellsworth,⁸ for her work as a night clerk at the Memphis Inn. She was scheduled to work from 11:00 p.m. to 7:00 a.m. The victim parked her vehicle in the motel parking lot and began her shift, working in an enclosed office in the motel lobby behind a locked door. Her interactions with guests were from behind protective glass, and monetary transactions occurred via a drawer under the glass window; money and credit cards were placed in the drawer and slid under the glass. In the same vicinity, the motel had change and vending machines.

Devata Brown was a guest at the Memphis Inn the night of February 7, 1997. She described the motel as being...