Gary Bradford Cone

Case record: Gary Bradford Cone

People

• Gary Bradford Cone — defendant

The offence

Gary Bradford Cone was convicted of murder in the first degree and murder in the perpetration of a burglary in connection with the homicides of an elderly couple, Shipley O. Todd and his wife Cleopatra Todd, in Memphis on August 10, 1980. He was also convicted of three charges of assault with intent to commit murder in the first degree upon three other persons and of robbery by use of deadly force upon a fourth. All of these offenses were shown to have occurred on August 9, 1980.

In the guilt phase, the jury found Cone guilty of murder in the first degree as a matter of common law and also of felony-murder in the perpetration of burglary. The latter was one of the statutory aggravating circumstances warranting the death penalty under T.C.A. § 39-2-203(i)(7).

The homicides were the climax of a series of criminal episodes commencing on August 9, 1980. On August 9, 1980, Cone robbed a jewelry store in Memphis of approximately $112,000 worth of expensive watches, rings and other jewelry.

Cone later bludgeoned both victims to death, and the deaths were the result of multiple crushing blows to the skulls. It was stipulated that there was no issue of self-defense in connection with the deaths of the Todds, both of whom were repeatedly beaten about the head until they died. Defensive wounds appeared on the arms and hands of both of them. The bodies had been moved or dragged to points inside the house where they would not be visible from either the front or the rear door. Blood was spattered throughout the house. The deaths were not instantaneous, and one had to be killed before the other.

Cone’s killing of the Todds occurred in furtherance of his effort to escape from the crimes committed on the previous day.

Background

Cone was thirty-three years of age. He was an honor graduate of the University of Arkansas and shortly before the events in question had been accepted for admission into law school, scoring in the ninety-sixth percentile on a law school admission test.

He had served in the armed forces from 1966 through 1969, including one year’s service in Viet Nam as a supply sergeant. He had received a bronze star for his service there and had been honorably discharged. After graduating from college, he later became involved in criminal offending.

In 1972, after graduating from college, he was convicted of three separate armed robberies in Oklahoma, covering a period from December 1971 through May 1972. He had been imprisoned in Oklahoma until the latter part of 1979. He then returned briefly to his home in Arkansas and went to Hawaii for a time.

Cone had said he was under the influence of drugs, and his habit developed after returning from the Vietnam War. He asserted an insanity defense or lack of mental capacity based on drug abuse and stress arising out of his previous service in the Vietnamese era, some eleven years prior to the events involved.

In Florida, an acquaintance testified that Cone had not used drugs excessively during the times when he was with her, that he did not appear to be experiencing withdrawal symptoms, and that he returned to Florida on August 12, 1980 without using drugs. A police officer who examined him in Florida and took hair samples from his body stated there were no visible needle marks or other external evidences of drug abuse on Cone’s body.

Investigation

The manager of the jewelry store gave a description to the police. An officer in an unmarked cruiser saw Cone driving his 1972 gray oldsmobile a short time after the robbery. The officer followed Cone at a normal speed, but Cone accelerated in an effort to escape. A high-speed chase ensued through mid-town Memphis and into a residential neighborhood.

Cone abandoned his automobile during the chase. He shot one of the police officers who attempted to arrest him, shot a citizen, John Clark, who challenged him, and drew a gun on a third citizen demanding that the latter give Cone his automobile. The owner of the automobile fled, and Cone snapped his pistol several times; his ammunition had been exhausted. Cone not only threatened the owner of the automobile but apparently was snapping his pistol at a police helicopter flying over the area to assist in his apprehension.

Cone eluded police during the afternoon of August 9, 1980, which was a Saturday. Early on the next morning in the same neighborhood, Cone appeared at the door of a resident, Lucille Tuech. When she refused him admittance to make a telephone call, he drew a pistol on her.

Later that afternoon, Cone entered the home of Mr. and Mrs. Todd in the same residential area where the other shootings had occurred. Cone broke a latch on the rear door. Mr. Todd was 93 years of age and his wife was 79. She had gone to church on the morning of August 10 and had returned, and apparently had eaten a meal.

The bodies of both victims were found three days later upon investigation instituted by anxious relatives. Cone’s fingerprints and hair samples were found in the home, which had been ransacked. After the murders, Cone fled from Memphis to Florida and appeared at the home of an acquaintance on August 12.

In Florida, Cone admitted committing the homicides and the other crimes involved from the beginning. His defense in trial focused on lack of mental capacity.

After the crimes, police had combed the area in which the Todds lived and in which the other shootings had occurred on Saturday afternoon. They used tear gas on an abandoned residence in an effort to find Cone. Cone had apparently concealed himself from them.

Timeline

• August 9, 1980 — Cone robbed a jewelry store in Memphis of approximately $112,000 worth of expensive watches, rings and other jewelry; Cone was involved in a high-speed chase; he shot a police officer, shot John Clark, and threatened a third citizen while demanding an automobile.
• August 10, 1980 — Cone entered the home of Shipley O. Todd and Cleopatra Todd; the homicides occurred in the afternoon; Cone made a telephone call from the residence of the Todds to his sister in Chicago at 3:45; the Todds’ bodies were later found after investigation.
• August 12, 1980 — Cone appeared at the home of an acquaintance in Florida.
• Three days later — the bodies of both victims were found upon investigation instituted by anxious relatives.
• July 29, 1982 — Cone was sentenced to death.
• January 23, 1984 — Supreme Court of Tennessee affirmed the judgment and sentence; unless otherwise ordered, the sentence would be carried out as provided by law on June 29, 1984.
• June 29, 1984 — the sentence was scheduled to be carried out as provided by law.

Arrest

Cone eluded police during the afternoon of August 9, 1980. The narrative described efforts to locate him by police, including the use of tear gas on an abandoned residence.

Trial

In trial, Cone’s only defense was insanity or lack of mental capacity due to drug abuse and stress arising out of previous Vietnamese service. This proved tenuous because neither of the expert witnesses who testified on his behalf had ever seen or heard of him until a few weeks prior to the trial. Neither was a medical doctor or psychiatrist, and neither had purported to treat him as a patient. Their testimony that he lacked mental capacity was based purely upon his personal recitation of his history of military service and drug abuse.

A psychiatrist and a psychologist examined Cone on orders of the trial court. Neither found evidence of a stress syndrome or of excessive drug abuse. Lay witnesses who saw Cone at or about the time of the homicides contradicted his statements to his expert witnesses about the degree and extent of his drug abuse.

The jury was warranted in finding that Cone was not insane at the time of the criminal episodes involved on August 9 and August 10, 1980.

Cone’s fingerprints and hair samples were found in the Todd home. The record described that items taken from the jewelry store were found in Cone’s abandoned automobile, together with some $2,400 in cash and a very large quantity of contraband controlled substances.

Evidence and expert testimony

Cone offered the testimony of two witnesses for lack of mental competence:

• Dr. Matthew Jaremko, a clinical psychologist at the University of Mississippi. He interviewed Cone on two occasions for a total of about six hours beginning in February 1982, less than two months prior to the trial. Dr. Jaremko opined that Cone was suffering from post-traumatic stress disorder as a result of his experiences in Viet Nam, and that upon this was superimposed a serious drug-abuse disorder.
• Dr. Jonathan Lipman, a neuropharmacologist. He testified that Cone, in his opinion, suffered from “chronic amphetamine psychosis” as a result of serious drug abuse.

The State offered two witnesses whose qualifications equaled or exceeded those of Cone’s experts. Neither found any basis for an insanity defense.

Quoted material

Cone gave information to one of his expert witnesses in undertaking to explain the homicides:

“He described that he was at their hous with the agenda of getting cleaned up, getting fed, so that he could flee the area. And in the course of his time there they ceased to cooperate with him, and he started to try to control them physically to cooperate, and that's all the detail I have. He has no more recollection of specifics after that. "Q. But there's no question that he told you that he did kill those two old people? "A. That's what he told me, yes. "Q. And they ceased to cooperate with him, is that what you said he told you. Right? "A. They became frightened, and that was not what he wanted them to do."”

The jury reported another aggravating circumstance, T.C.A. § 39-2-203(i)(3), as follows:

“The defendant knowingly created a great risk of death to two (2) or more persons, other than the victim murdered, during his act of murder....”

Trial rulings and appellate issues discussed

Cone assigned error upon the trial court’s failure to grant individual voir dire of a juror, Floreine C. Dragon. The juror indicated she was taking some medication at the time of the trial. Defense counsel requested that the other prospective jurors be sequestered so he could examine the juror individually and avoid embarrassing her. The trial court denied this request, and the appellate court found the ruling within discretion. The appellate court stated there was nothing necessarily embarrassing in questioning the juror about her medication as part of the group, and it found no indication of incompetence or prejudice connected to the voir dire ruling.

Cone also assigned error on the voir dire examination of five other persons excused for cause because they expressed irrevocable and unconditional refusal to consider the imposition of the death penalty. The appellate review concluded the trial judge acted properly in excusing them, citing Houston v. State, 593 S.W.2d 267, 272 (Tenn. 1980).

During a weekend recess, a court officer furnished members of the jury with a Sunday newspaper, and in the sports section there was a story about John Douglas Clark, who had been shot by Cone on August 9, 1980. In a magazine story there was also a brief reference to a double murder of an elderly couple in mid-town Memphis. The appellate court stated the judge conducted an individual examination of the jurors on their exposure to the magazine article. It found no error and concluded a mistrial was not justified.

The appellate decision also discussed:

• Objection to the cross-examination of Dr. Lipman; it stated the cross-examination was properly permitted because he testified that what he knew about Cone’s history was what Cone had told him and admitted that different information from Cone could affect his opinion.
• Admission of expert witnesses called by the State concerning statements made to them by Cone with reference to his use of drugs; the appellate court stated no incriminating statements about the facts of the case were quoted.
• Contention that the trial judge permitted three witnesses to testify for the State on rebuttal; the appellate court found the witnesses sharply contradicted Cone’s contention about being “out of his mind” as a result of drug abuse and experiencing severe and extreme symptoms of drug withdrawal after the crimes.
• Admission of photographs of the homicide victims; the appellate court stated the judge excluded photographs showing facial features in detail, and that the admitted photographs showed portions of the house with the bodies sometimes visible but were not gruesome and did not have prejudicial effect outweighing probative value.
• Prosecutor’s reference to a motion in limine; the appellate court stated the judge excused the jury when the prosecutor reached the point when introducing Todd residence photographs, and it found the conduct proper and no attempt to suggest to the jury the subject of the pre-trial motion or the court ruling.

The appellate decision discussed numerous other assertions of improper conduct by prosecuting attorneys in the presence of the jury and stated it found none warranting reversal. It also addressed some curative instruction offer regarding an improper remark, with defense counsel declining, and concluded it could not have affected results. It concluded similar reasoning for brief comments during argument.

It also addressed and rejected contentions about:

• insufficient indictments,
• jury instructions,
• State’s failure to produce witness statements for use on cross-examination,
• improper or selective prosecution due to not offering a life sentence in pre-trial negotiations,
• invalidity of the death penalty in Tennessee, citing State v. Austin, 618 S.W.2d 738 (Tenn. 1981); State v. Pritchett, 621 S.W.2d 127 (Tenn. 1981); Houston v. State, 593 S.W.2d 267 (Tenn. 1980).

Sentencing

Cone was sentenced to life imprisonment for the armed robbery and for a term of years upon each of the assault charges. He was given the death penalty for each of the two murders.

The appellate court reviewed aggravating circumstances and discussed multiple aggravating circumstances clearly established by evidence. It reasoned that even if error occurred regarding one aggravating circumstance, it was harmless beyond a reasonable doubt due to multiple aggravating circumstances.

The appellate decision described the aggravating circumstances:

1. T.C.A. § 39-2-203(i)(2) — prior convictions of one or more felonies involving the use or threat of violence to the person. It stated it was proved that Cone had been convicted of three separate armed robberies in Oklahoma in 1982.
2. T.C.A. § 39-2-203(i)(5) — murders especially heinous, atrocious, or cruel involving torture or depravity of mind. The appellate court stated evidence established that both elderly victims were brutally beaten to death by multiple crushing blows to their skulls, with blood spattered throughout the house and defensive wounds indicating attempted resistance.
3. T.C.A. § 39-2-203(i)(6) — murders committed for the purpose of preventing a lawful arrest or prosecution, which it stated was established by testimony of police officers and by Cone’s own statement to his expert witnesses.
4. T.C.A. § 39-2-203(i)(3) — creating a great risk of death to two or more persons other than the victim murdered, which the appellate court questioned as to whether the statute contemplated an extended criminal episode, but it concluded any error would be harmless beyond a reasonable doubt.

The appellate decision also addressed the statutory aggravating circumstance connected to felony murder in the perpetration of a burglary (T.C.A. § 39-2-203(i)(7)), stating it was one of the statutory aggravating circumstances warranting the death penalty and that the jury did not repeat this particular circumstance at the end of the sentencing hearing even though it was abundantly established by the evidence.

The appellate court stated that the sentence of death was not disproportionate under all circumstances, including the brutal murders of two elderly defenseless persons by an escaping armed robber who had terrorized a residential neighborhood for twenty-four hours.

Justice Brock concurred in affirming the conviction but dissented with respect to imposition of the death penalty, citing reasons in his dissenting opinion in State v. Dicks, 615 S.W.2d 126, 132 (Tenn. 1981).

Appeals

The case included appellate history referencing:

• Supreme Court of the United States: CONE v. BELL (No. 07-1114), 492 F. 3d 743, vacated and remanded.
• United States Court of Appeals For the Sixth Circuit: Gary Bradford Cone v. Ricky Bell, Warden.
• Supreme Court of Tennessee: STATE OF TENNESSEE v. GARY BRADFORD CONE, with opinion written by Harbison, J. (Hon. James C. Beasley, Judge). It recorded Fones, C.J., Cooper and Drowota, JJ., concur; Brock, J., partial Dissent.
• The appellate court stated it affirmed the judgment and sentence of the trial court and that unless otherwise ordered the death sentence would be carried out as provided by law on June 29, 1984.

Outcome

The Supreme Court of Tennessee affirmed Cone’s convictions and sentence. It upheld the death penalty for each of the two murders and affirmed the judgment and sentence.

Other details

Jurisdiction and parties named in appellate discussion

• The Tennessee case identified STATE OF TENNESSEE as plaintiff-appellee and GARY BRADFORD CONE as defendant-appellant.
• The opinion listed Shelby Criminal; Hon. James C. Beasley, Judge.
• The case name in the United States Supreme Court portion included CONe v. Bell (No. 07-1114) and recorded vacated and remanded.

Vehicle and concealment details

Cone’s vehicle on August 9, 1980 was described as a 1972 gray oldsmobile. The vehicle originally had been registered in his name, but on that date it was registered in the name of his mother.

The jewelry store robbery was described as apparently planned well in advance. On August 8, 1980, Cone stole a Tennessee license plate from a Memphis resident and apparently taped this over the Arkansas plate on the rear of his vehicle. The Tennessee license plate was later found inside his automobile after he had removed it. He changed clothes after the robbery and was dressed in a different costume at the time of the subsequent police chase. After the murders, he shaved his beard and altered his appearance.

Cone had capacity to book plane flights from Memphis to Birmingham and thence to Florida.

Phone call

Cone made a telephone call from the residence of the Todds to his sister in Chicago at 3:45 on August 10, 1980.

Victims’ ages and investigation timing

Shipley O. Todd was 93 years of age and his wife Cleopatra Todd was 79. Their bodies were found three days later upon investigation instituted by anxious relatives.

Jury finding about sanity

The appellate decision stated the jury was clearly warranted in finding Cone was not insane at the time of the criminal episodes involved on August 9 and August 10, 1980.

Court conduct and juror handling

The appellate decision discussed how the trial judge handled jurors’ exposure to newspaper material during a weekend recess and how jurors were privately questioned, as were other jurors, concerning newspaper materials furnished during a weekend recess. It also described individual questioning of jurors on exposure to the magazine article.

Counsel conduct and rulings

The appellate decision stated the prosecutor’s conduct regarding a motion in limine was proper and included that when counsel reached the point of introducing photographs of the Todd residence, the judge excused the jury and found no attempt to suggest the subject of the pre-trial motion or the ruling.

Stored items and contraband

The appellate decision stated the items taken in the jewelry store robbery were found in Cone’s abandoned automobile, along with about $2,400 in cash and a very large quantity of contraband controlled substances.