Bargery double-murder conviction overturned

Wednesday, October 11, 2017
On Saturday, May 9, 2015 Joshua Hunter Bargery was escorted away from the Dyer County Courthouse after being convicted of the double murder of Lake County residents Clarence and Sue Shell.

RACHEL TOWNSEND

rtownsend@stategazette.com

In May of 2015, a Dyer County Circuit Court jury found Joshua Hunter Bargery guilty in the deaths of Lake County residents Clarence [70] and Sue Shell [69], who were both found murdered inside of their home on Owl Hoot Road.

Bargery was convicted on a total of 6-counts involving the deaths, including two counts of second-degree premeditated murder [reduced from first-degree], two counts of first-degree murder in perpetration of a robbery, and two counts of aggravated robbery.

On May 2, 2017, Bargery appealed his conviction to the Court of Criminal Appeals of Tennessee in Jackson. The judgments of the trial court have now been overturned, with the case remanded for a new trial scheduled for an unknown date and time.

An excerpt from Bargeryís appeal, which highlights the grounds for appeal, reads as follows:

ďIn this case, we have identified five errors that occurred during the course of the Defendantís trial, specifically: (1) the trial courtís exclusion of the Defendantís testimony about Mr. Hillís threat to him the morning after the murders as hearsay; (2) the trial courtís prohibiting the Defendantís expert witness, Ms. Johnson, from testifying that the crime scene was consistent with multiple perpetrators under Rule 702 and 703; (3) a constitutional violation of the Defendantís right to present a defense by excluding Ms. Johnsonís testimony on this issue; (4) the Stateís improper interference with the Defendantís gang expert, Lieutenant Carter; and (5) prosecutorial misconduct in closing argument based on General [Phil] Bivensí statement that defense counsel and his staff had made up the Defendantís story in the four years between the offenses and trial.

ďAt trial, the defense theory was that Mr. Hill and the ďthree MexicansĒ committed the murders and that the Defendant was acting under duress when he drove Mr. Hill and the ďthree MexicansĒ to and from the victimsí residence and when he sold the victimsí stolen property after the murders. In order to establish the defense of duress, the Defendant needed to testify about the threats made to him, including those made by Mr. Hill the day after the murders, which, according to the Defendant, caused him to sell the victimsí property. Ms. Johnsonís expert testimony would have established that the crime did not occur in the manner asserted by the State and would have supported the Defendantís claim that multiple assailants killed the victims. Following the exclusion of Ms. Johnsonís testimony, the State argued repeatedly during closing argument that there was no evidence corroborating the Defendantís testimony. Then, when the prosecutor improperly commented that defense counsel and his staff made up the Defendantís story, there were no remedial measures provided by the trial court. Finally, the Stateís interference with the Defendantís gang expert, Lieutenant Carter, who had agreed to testify that the manner in which the victims were killed was consistent with the modus operandi of the Mexikanemi, was inexplicable and improper. His testimony would have offered further support for the Defendantís testimony that he did not kill the victims.Ē

On July 11, 2011, a Lake County Grand Jury indicted Bargery on two-counts of first-degree premeditated murder, first-degree felony murder in the perpetration of a robbery or theft, and especially aggravated robbery, all of which were in connection with the March 4, 2011 killing of the Lake County residents.

Bargery pleaded not guilty to the murders, but instead claimed to have witnessed Ďthree Mexican mení Ďall with knives in their handsí, enter the Shell residence on the night of the murder; however, proof there was more than one murderer was never established through evidence.

The State Gazette contacted District Attorney General Phil Bivens regarding the appeal; however, Bivens was unable to provide comment on the matter.

Repeated phone calls to Lake County Sheriff Bryan Avery regarding the appeal were not returned.

Bargery is currently being held at the Northeast Correctional Complex in Mountain City, Tenn. where he is serving out a 102-year sentence.

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