State v. Smith

Citation755 S.W.2d 757
PartiesSTATE of Tennessee, Plaintiff-Appellee, v. Leonard Edward SMITH, Defendant-Appellant.
Decision Date08 February 1988
CourtTennessee Supreme Court

J. Robert Boatright, Kingsport, Larry S. Weddington, Bristol, for defendant-appellant.

W.J. Michael Cody, Atty. Gen. & Reporter, Gordon W. Smith, Asst. Atty. Gen., Nashville, for plaintiff-appellee.

OPINION

BROCK, Justice.

The defendant was convicted of murder in the first degree for the killing of Mrs. Novella Webb and has been sentenced to death by electrocution. In fixing the punishment at death by electrocution the jury found that the following aggravating circumstances had been established: (1) defendant was previously convicted of one or more felonies other than the present charge which involved the use or threat of violence to the person; and (2) this murder was committed while the defendant was engaged in committing, or was an accomplice in the commission of, or was attempting to commit, or was fleeing after committing or attempting to commit robbery. The jury found no mitigating circumstances sufficiently substantial to outweigh the aggravating circumstances. Accordingly, the trial court entered the judgment of death by electrocution.

The pre-trial aspects of this case are somewhat unusual. Initially, the Grand Jury returned an indictment charging the defendant Smith along with co-defendants David Wayne Hartsock and Angela O'Quinn with murder in the first degree in the killing of John Pierce during the perpetration of a robbery of John Pierce and in a second count charged the defendant Smith and co-defendant David Wayne Hartsock with murder in the first degree of Novella Webb during the perpetration of a robbery of Novella Webb.

On August 24, 1984, the defendants Smith and Hartsock were re-indicted for the murder in the first degree of Novella Webb during the perpetration of a robbery of Novella Webb and W.H. Webb. It was alleged that each of these offenses was committed on May 21, 1984.

The defendants filed pre-trial motions for suppression of the defendants' statement, for severance of the defendants for trial and for a change of venue, which motions were initially denied. Defense motions for severance of the offenses for trial and for an independent mental evaluation were granted. In due course the case came on for trial and on the first day of jury selection, January 7, 1985, the defendants' motion for a change of venue was renewed following the voir dire of a juror wherein she testified that several jurors had been discussing the fact that there were two killings involved. This motion was overruled by the trial court but on the third day of jury selection, January 11, 1985, after a hearing, the trial judge ordered a change of venue to Hamblen County, with the consent of the defendants, and then ruled on the State's late filed motion and severed the defendants for trial, severed the offenses for trial for co-defendant Hartsock, but reversed its earlier ruling and joined the offenses for trial for defendant Smith.

On March 18, 1985, the trial began in Hamblen County after the defendant's motion for continuance of the trial and for the appointment of local counsel to assist in selection of jurors was overruled. In the first phase of the bifurcated trial the defendant was found guilty of first degree murder in both the Webb and Pierce cases. At the conclusion of the sentencing phase of the trial, defendant Smith was sentenced to death by electrocution in the Webb case and sentenced to a consecutive life sentence in the Pierce case. Post-trial motions were overruled and this appeal resulted.

On the afternoon of May 21, 1984, a witness, Orville Malone, heard a sound similar to a firecracker in the vicinity of Malone's store and he observed an unidentified young man running out of the store. He then saw the storekeeper, Mr. John Pierce, appear on one knee in the doorway of the store and fire two shots. The fleeing male got into an automobile that was across the bridge behind the store and the automobile left the scene. Mr. John Pierce was then found, apparently dead, just inside the doorway of the store with a gun by his side. It was the opinion of the pathologist who performed the autopsy that Mr. Pierce's death was caused by a single gunshot wound to the abdomen.

Later that same afternoon, witness Robert Glover observed two young men drive up to Webb's Grocery in a "green looking" Pinto automobile. These two young men got out of the vehicle, one of them spoke to Mr. Glover, and then entered the store. A moment or two later Mr. Glover heard two loud noises from inside the store, and he walked to the entrance and opened the screen door. One of the individuals inside the store told him that he had better not come in if he knew what was good for him. Mr. Glover then ran to the road and stopped a passing motorist, Charles Webb. Mr. Glover testified that the two young men ran from the store to their vehicle. He identified the defendant Smith at trial as one of the two who had entered the store.

Witness Charles Webb testified that he observed two unidentified young men run from the store, "hop in a car and take off." Another witness, Tommy Trivette, travelling behind Charles Webb, testified that he observed two young men walking slowly out of the store and that they "appeared to be smiling." Witness Trivette identified the defendant Smith at trial as one of the two men he observed leaving the store. He further testified that when he entered the store Mr. Webb stated that he had been robbed.

Mrs. Novella Webb was found inside the store lying on the floor behind the counter. The pathologist who performed the autopsy testified that her death was caused by a single gunshot wound that entered her face at the right nostril, at an upward angle of fifteen or twenty degrees, lodging inside the rear portion of the brain. He further testified that she was unconscious within seconds and that there was no chance of saving her life.

Gladys Sheets testified that on the evening of May 22, 1984, she drove the defendant Smith and the co-defendants Hartsock and O'Quinn to Johnson City and that they threw a gun out of the car. She testified that the defendant Smith gave O'Quinn some money and that she and O'Quinn purchased back packs, blankets, shoes and hats at a K-Mart store. Then they purchased food at a Giant Food Market and purchased gas and cigarettes at a service station with the money that the defendant had given her. They then drove to her sister-in-law's house in a rural section of Johnson County, Tennessee, where she left them.

Mike Gardner, the Sheriff of Sullivan County, testified that on May 21, 1984, he investigated a shooting at Malone's Grocery Store located on Highway 19E in Sullivan County. While he was there he received a call concerning another shooting at Webb's Grocery on Hickory Tree Road, also in Sullivan County. On May 22, 1984, the investigation of these shootings led to three suspects, the defendant Smith, David Hartsock and Angela O'Quinn. These three were arrested at daybreak on May 23, 1984, at a secluded house in Johnson County and were returned to Sullivan County.

Doctor Leland Blake, a clinical pathologist, testified that he performed an autopsy on the body of John Pierce and determined that the cause of death was a gunshot wound to the abdomen from which he removed a thirty-two caliber bullet. He also testified that he performed an autopsy on the body of Novella Webb and determined the cause of death to be a gunshot wound to her head. He also removed a thirty-two caliber bullet from her body.

Keith Carr, a detective employed by the Sullivan County Sheriff's Department, testified that he investigated the shooting at Malone's Grocery Store at approximately 5:30 p.m. on May 21, 1984. On his arrival he saw Mr. John Pierce lying in the doorway. While he was at Malone's Grocery Store he was dispatched to Webb's Grocery Store approximately five miles from Malone's. Upon arrival at the Webb's Grocery Store he observed a tremendous amount of disarray inside the store and blood stains behind and beside the counter. The body of Mrs. Webb had already been removed when he arrived. He testified that he observed an indentation in the wall directly behind the cash register.

Following the arrest of defendant Smith, Detective Carr interviewed him at the jail and obtained the following statement which he read to the jury, to wit:

I, Leonard Edward Smith, am giving this statement of my own free will and without any threats or promises being made to me. On Monday, May 21, 1984, I was with my girlfriend Angie O'Quinn and David Hartsock and we went and got some liquor and went to a road near the Sullivan-Carter County line. We parked and were just drinking and talking and smoked some joints. While we were on that road in my black Ford Pinto which I had painted black because it used to be orange, David said "Get out, I want to talk to you." He and I got out and walked a ways from the car where Angie couldn't hear us talking and David said, "I can get us a little bit of money down here at this store." He said, "It is the store down at the county line," and I asked him if it was Shorty Malone's and he said, "Yes." Angie and I drove David down there, and let him off a little ways from the store. I parked on the little paved road beside the store. David had a thirty-two caliber chrome plated pistol with him. The pistol was his pistol. I heard several shots fired and just a few seconds later David came running around the store. David jumped into the car and said, "Get the hell out of here, I had to shoot him." I figured it was Shorty because he ran the store. We drove out the road that goes behind the side of Malone's Grocery, and it dead ends, and you can turn left to the Wautauga area or right back to Sullivan County. We turned onto the Wautauga Highway and drove to what is known as Mountain Road. I...

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