Delk v. State

590 S.W.2d 435, 1979 Tenn. LEXIS 511

• Court: Tennessee Supreme Court
• Decided: October 9, 1979
• Status: Published

Opinions

OPINION

FONES, Justice.

Defendant was convicted, on circumstantial evidence, of murder in the second degree and sentenced to fifty years in the penitentiary. The Court of Criminal Appeals affirmed, and we granted the writ of certiorari.

Harry Gibson, owner of Gibson’s Wayside Market in Centerville, was killed by one of two shots fired from a .32-caliber weapon on November 12, 1975. He was alive and apparently alone when Sidney Pigg, a 13-year-old customer, left his store at approximately 5:54 p. m. His body was found just inside the front door, a few minutes prior to the placing of a call to the police dispatcher, which call was received at 6:09 p. m. When the body was discovered the telephone was off the hook, and the adjacent cash register was open. The investigators found over six hundred dollars in cash in the register and five hundred and one dollars in cash on the victim.

I.

The State’s theory was that defendant entered the store after Pigg left and shot Gibson. Motivation was said to arise from the fact that months prior to the murder, defendant had damaged a door during a scuffle at Harry Gibson’s Tavern, located three hundred and fifty-feet south on Columbia Avenue from the market, and defendant was required to and did pay for the damage, but that he probably owed Gibson for beer or cigarettes, evidenced by the fact that he was seen on several occasions giving money to friends in front of the market, who entered the market, purchased cigarettes and delivered them to defendant. The murder weapon was not found, no fingerprints were introduced and no witness testified that any shots were heard. The only additional evidence of any significance relied upon by the State was the discovery, on the morning of November 13, 1975, of blank checks, bad checks, receipts, recipes and miscellaneous scraps of note paper, some of which were facially identified with Gibson’s Wayside Market but most of the papers were totally unidentifiable and the record leaves them to speak for themselves. The papers were found by Rose Claiborne near her mailbox just off the roadway in front of her residence. She lived on Highway 100 just across the Duck River Bridge between Centerville and Dickson, on the right-hand side of the road for traffic proceeding toward Dickson from Centerville. There was testimony that Dan Delk, defendant’s twin brother, and defendant were alone together on one or more occasions during the evening of the murder and that Dan Delk had left Centerville for Dickson driving his vehicle, with three females as passengers. Two of the three passengers testified that at or near the Claiborne residence his right wheel or wheels left the pavement for a short distance, but that he regained control, returned to the pavement and continued on without stopping. They disagreed as to the source of the distraction that caused him to “kinda slip off the road.” One of the witnesses testified that it was cold and that all of the windows were closed, and that the vent window on the driver’s side was taped closed. Nevertheless, it was the State’s theory that defendant had taken the worthless papers from the market, gave them to Dan Delk when he had the opportunity during the evening and Dan Delk threw them out the window when he left the pavement momentarily.

Defendant' did not testify and did not adduce any proof.. He made a voluntary oral statement to the Sheriff on the afternoon of November 13, 1975, after Miranda warnings had been given and he had waived his rights.

The Sheriff’s testimony revealed that defendant told him that he had left his home on Wells Street, where he resided with his parents, walked down the left side of Columbia Avenue toward Gibson’s Market and saw Sidney Pigg on the east side of the street, a short distance south of the market. He was asked, “What’s happening?’’, responded, “You got it,” continued on, crossed Columbia Avenue and entered the market. Defendant had told the Sheriff that Gibson was talking on the telephone, that he got a package of cigarettes and one or two boxes of matches, gave Gibson a five dollar bill, that Gibson reached over to the cash register and gave him four dollars, forty-eight cents change and never put the telephone down; that defendant left the store, having been inside between thirty- and forty-five seconds, and denied killing Gibson. According to the Sheriff, defendant said that he then walked down the east side of Columbia Avenue to Gibson’s Tavern, and his arrival there was confirmed by other State witnesses at an approximate time not inconsistent with the theories of either defendant or the State.

The State also brought out on the direct examination of the Sheriff that defendant had denied that there was any animosity or bad feelings between Gibson and himself and denied ever owning a handgun.

Defendant’s theory was that Gibson was alive and talking on the telephone when he left the market and that someone entered thereafter, committed the foul deed and escaped unnoticed, probably into the brush and woods behind the market through the side yard between the market and the Small house.

Mr. Small lived in the first house south of the market with only twenty feet of open space between the buildings. Louise Chav-ers and her husband lived in the second house south of the market, with a side yard approximately thirty-nine-feet wide between the Chavers and the Small houses. Mr. Small boarded with the Chavers, and Mr. Chavers owned the Small house. Defendant told the Sheriff that as he walked away from the store he looked into the side yard between the Small and Chavers houses, that he saw Louise Chavers walk from her rear door to a side door in the Small house and call Mr. Small to “come eat.” He said that about half-way across the side yard, Mrs. Chavers looked straight at him and he looked straight at her.

Louise Chavers testified that she was in the kitchen, the news came on, she looked at the clock and it was straight up and down six o’clock; that she went out the rear door that opened into a garage, and across the side yard to Mr. Small’s door, called him; and when he didn’t answer, she opened the door and again said “Your supper is ready,” whereupon he responded. She said that as she left the corner of her garage, she looked toward Columbia Avenue and at an angle to two old abandoned trucks belonging to her husband which had been parked in front of the Small house for more than two years, and indicated that she usually did that when it was dark because she was scared that someone might be hiding out in or around the trucks. However, on that occasion she testified that she saw no one and that she did not see defendant walking along the street. After calling Mr. Small, Mrs. Chavers returned to her house by the same route, went to the stove and turned off something she was cooking and heard a car horn blow. ' She went to the front door and saw Floyd Stone sitting in his vehicle in front of the Walker house, which was located diagonally across the street and to the south of the AME Church. Mrs. Chavers later reenacted her activities between six o’clock and her hearing the horn blown, and the Sheriff timed this interval at one minute, seventeen seconds.

Floyd Stone picked up “Goon” Gilbert at the Walkers to take him to a clinic. He had a toothache and his jaw was swollen. Leaving from the Walkers, they circled behind the AME Church, and as they were making the ninety-degree left turn into Columbia Avenue to go north, they were looking almost directly into the front glass doors of the market when Gilbert saw Gibson’s body on the floor. A later reenactment of the interval from the blowing of the horn for Gilbert to exit the Walker house until they entered the store was timed at one minute fifty seconds. Floyd Stone estimated he placed the call to the police three to five minutes after they entered the store.

If Louise Chavers starting time was correct and all of the witnesses involved in the reenactments, memories and actions were correctly recalled and reenacted, Stone and Gilbert entered the store at 6:03:17 p. m., and did not call the police until five minutes and forty-three seconds later.

Burford Hornbeak said he left the market at 5:50 p. m., and looked at his watch which kept good time. Sidney Pigg testified at the trial that he left five minutes later, but admitted that his estimate, made at the preliminary hearing ten days after the murder, had been three to five minutes. Using the median of four minutes, defendant would have entered the store at 5:55:20 p. m. Time reenactments revealed that Pigg required thirty-five seconds to reach the point of conversation with defendant and it was estimated that defendant would have required forty-five seconds to cross Columbia Avenue and enter the store. This analysis of the evidence reveals, that the murder occurred within the seven minute, fifty-seven-second-interval between 5:55:20 and 6:03:17 p. m. If defendant was in the market only forty-five seconds and did not kill Gibson, seven minutes and twelve seconds remained for the killer to accomplish the act and escape before discovery of the body.

II.

The last of twenty-seven witnesses called by the State was Ulysses Gibson, the victim’s brother. He testified that Jones Delk, the defendant’s father, came into the market a few months prior to the murder, with a sack full of bullets, and he was asked: (1) what did Jones Delk do with the bullets and (2) what color were the bullets. Defendant objected and during a colloquy between the Court and counsel, the prosecuting attorney said, “Well I can tie it in.” Thereupon, upon defendant’s motion the jury was excused. While the jury was out, Ulysses Gibson testified that Jones Delk “had a sack with a whole box of shells in it, bullets and he showed them to me and my brother .”, and that Delk said, “I guess I’ll give old Sam two or three of these.” The most positive answer elicited from Ulysses Gibson when several attempts were made to ascertain how long before the murder that Jones Delk showed the bullets was, “It wasn’t too awfully long.” The trial judge eventually sustained the objection, and defense counsel asked that he instruct the jury to disregard the last question and answer they had heard, but when the Court announced he couldn’t remember the last question and answer, the request was withdrawn.

The Court of Criminal Appeals held that there was no basis for that evidence and when the prosecuting attorney said in the presence of the jury that he could tie it in, he came “perilously close to creating a situation where the jury might be improperly influenced.” But the intermediate Court concluded it was harmless error.

Also cited as errors on the basis of alleged misconduct by the prosecuting attorney were two instances in the course of the trial when he asked, “Have you ever seen Sam Delk with a handgun in his possession?” That question was first asked of Wright Fowlkes, objected to by defense counsel and sustained as to form, whereupon the prosecuting attorney asked that the jury be excused. However, before the objection was made, the witness had already answered with an unequivocal, “No.” With the jury out the Court explained that the objection was sustained, “On the basis of the open-ended import of the word ‘ever,’ ” and if rephrased to a specific recent time the objection might be cured. The prosecuting attorney said that a later witness would lay the foundation and asked that Fowlkes remain subject to recall. He was not recalled.

Eight witnesses later Wayne Dansby was asked the same question, defense counsel objected, and the prosecuting attorney said, “I can show it now.” The jury was excused on motion of defense counsel. The prosecuting attorney argued that since the Sheriff had testified that defendant said he never- owned a handgun, testimony to the contrary was admissible. Dansby was questioned further outside the presence of the jury and said he had “seen” defendant with a handgun twice. When asked how long before the murder, he said he couldn’t remember but estimated eight to nine months. The prosecuting attorney then withdrew his efforts to pursue that line of questioning.

Defendant complains, in effect, that the Jones Delk bullets episode and the handgun possession episode involve the calculated use of questions for the purpose of planting in the minds of the jury the suggestion of the existence of damaging evidence against the defendant, and that except for some mysterious legal technicality would have been more fully adduced, when the prosecuting attorney knew, or should have known, that the evidence proffered would not meet the criterion for admissibility. As all trial lawyers know, such tactics are, strictly speaking, improper but are rather widely used and generally condoned by the courts, with varying degrees of frowning. Prosecuting attorneys should be on notice that they are taking a calculated risk that may result in reversal, if the use of such tactics improperly influence the jury to the prejudice of the defendant.

III.

All of the testimony about the papers found by Rose Claiborne was objected to by defendant, and its admission is assigned as error. Defendant insists that there is no evidence that anything was taken from the market by defendant or anyone else, at the time of the murder or that defendant passed anything to his brother to be disposed of. Further, he insists there is no explanation of how Dan Delk managed to throw papers out of his vehicle when the testimony of two of his passengers negated that possibility, nor was there any rational explanation of how the papers could have landed on the right side of the road if Dan Delk threw them out the window on the driver’s side.

The testimony of Rose Claiborne that she found the papers on the morning of November 13, 1975, and that they were not there at 11:30 p. m. on November 12, was relevant. Some of the papers belonged to Harry Gibson, individually¹, and some were clearly associated with the operation of Gibson’s Wayside Market. The time of their appearance on Rose Claiborne’s property gave rise to an inference that they may have been taken by the killer of Harry Gibson. Likewise, it was relevant to show that defendant had the opportunity to hand any papers he may have taken from the market to his brother, Dan Delk, and .that Dan Delk traversed the road past Rose Claiborne’s house during the time frame of their appearance at that place. It follows that the State was entitled to ask the passengers in Dan Delk’s vehicle what occurred when they passed Rose Claiborne’s house. The fact that the State failed to elicit from the two passengers testimony that Dan Delk did in fact throw papers from the car, does not render their testimony inadmissible, but merely goes to the probative value of the State’s theory of defendant’s complicity in the episode, as is the case with all of the alleged evidentiary errors involving the papers found at Rose Claiborne’s.

We agree with defendant that there is no evidence in this record that defendant personally drove or rode past Rose Claiborne’s house that evening, as indicated in the Court of Criminal Appeals’ opinion.

IV.

During rebuttal argument the prosecuting attorney said, in part, the following:

“Mr. Colley says about these checks I don’t have to explain them, I don’t have to explain them, well he doesn’t have to explain them but he had available to him and I don’t know whether he is in the courtroom, yes he is, he had available to him all week Dan Delk, Dan Delk was here all week and could have been called to explain those checks, why wasn’t he called?

MR. COLLEY: Note my exception to this line of argument.”

The prosecuting attorney then said that he had a case in point, the Court asked to see the case and a law book was apparently handed to the Court, but the record fails to show any ruling made by the Court and the prosecuting attorney resumed his argument.

Defendant insists that Article I, § 9 of the Tennessee Constitution is broader than the fifth amendment to the United States Constitution and that the remarks quoted infringed upon defendant’s right to remain silent and to decline to adduce any witnesses or proof whatever, including testimony of any witness or witnesses who might fall within the purview of the rule that failure to call an available witness, who knows material facts and is controlled by or would be naturally favorable to defendant, gives rise to an inference that the uncalled witness’ testimony would not sustain the defendant’s contentions.

No authority has been cited in support of that proposition other than the language of the Tennessee Constitution. The prohibition in our Constitution is that an accused shall not be compelled to give evidence against himself, whereas the language in the federal constitution is that the accused shall not be compelled to be a witness against himself. We do not agree that the Tennessee prohibition against self-incrimination is broader or different in any application thereof because of the use' of the word “evidence” instead of the word “witness.”

However, the comment on defendant’s failure to produce Dan Delk as a witness was improper, in the absence of evidence laying a proper foundation for such comment.

There was no basis in the proof adduced at the trial for the prosecutor’s statement to the jury that Dan Delk was in the courtroom or had been available all week to testify. What the prosecuting attorney may have known of his own personal knowledge or observed in the courtroom cannot be considered part of the evidence in the case. As a predicate for comment on a missing witness, the evidence must show that the witness had knowledge of material facts, that a relationship exists between the witness and the party that would naturally incline the witness to favor the party and that the missing witness was available to the process of the Court for the trial. Cf. City of Lawrenceburg v. Maryland Cas. Co., 16 Tenn.App. 238, 64 S.W.2d 69 (1933).

V.

While we agree with the trial judge and the Court of Criminal Appeals that defendant’s motion for a directed verdict was not well taken and that the State’s proof was sufficient to present a jury issue as to defendant’s guilt or innocence, we do not hesitate to observe that the margin by which the State prevailed was small. Since the case may be retried, we do not think it appropriate to undertake in detail the analysis of the proof that led us to that conclusion. Suffice it to say that we do not agree with the State’s position that defendant’s statement about what he saw and heard Louise Chavers do was damaging to his contention. In fact, his statement made to the Sheriff at a time when he had no knowledge of what, if anything, Sidney Pigg or Louise Chavers had said, reconciles remarkably with their testimony.

In the context of our evaluation of the proof in this case, we think the issues discussed in sections II and IV, cumulatively, resulted in prejudicially influencing the jury against defendant and requires that the conviction be reversed and the cause remanded for a new trial.

VI.

The dissent filed in this case, subsequent to consideration of the first five sections of this opinion by all members of the Court, requires a response.

A further analysis of the time of death and the time of defendant’s presence in Gibson’s Market, is in order. On the basis of the analysis narrated in section one, it was possible that seven minutes and twelve seconds was available for some third person to commit the murder, if defendant did not. We thought it self-evident that the jury could have found that less than three minutes or perhaps even only two minutes remained between the time defendant left the store and the time the body was seen by Gilbert, when the Stone car stopped in the church driveway before entering Columbia Avenue and further that because of potential eye-witnesses, anyone entering or leaving the front door of the store would have been seen during that interval.

Defendant’s statement to the Sheriff that he heard Louise Chavers’ conversation with Small when only a few feet north of the store would mean that he left the store after 6:00, rather than at 5:55:20. Floyd Stone did not use the telephone in the store to call the police. He went to the Gray house located approximately two hundred ninety-nine feet north of the store, and as he passed the Walker house he took the time to inform them of the discovery of Gibson’s body. The jury could have found that Gilbert and Stone entered the store earlier than 6:03:17 further narrowing the time and opportunity for anyone else to commit the murder.

It is undisputed that the two rear doors of Gibson’s Market were bolted and locked on the inside and were not tampered with, so that the murderer would have had to enter and leave by the front door.

During the interval of time that elapsed between defendant leaving the store and the finding of the body, the following events transpired. Louise Chavers went to her front door, hearing Floyd Stone’s horn blow. The well-lighted front of Gibson’s Market was fully visible to her from that vantage point as her testimony about defendant sending friends into the store to make purchases had made clear. She observed Gilbert and several others outside the Walker house and Floyd Stone sitting in his car parked in front of the Walker house. All of those persons at the Walker house had a clear view of the front of Gibson’s Market, as did Gilbert and Stone as they circled behind the church except for a fleeting moment when the small church building would have blocked their view. Concededly, it is possible that all of those eyes that had the opportunity to see anyone else enter and leave Gibson’s Market during the entire interval that defendant must rely on for his innocence were looking elsewhere, but the probabilities are almost nonexistent that such entry and exit occurred unobserved.

There was evidence from which the jury could have found that defendant did not arrive at Gibson’s Tavern, three hundred and fifty feet from the murder scene until approximately 6:20 p. m.

It was established that a bundle of papers were taken from Gibson’s Market and we think, beyond a reasonable doubt, that the taking occurred at the time of the murder. Among the papers were notations of amounts various persons owed Gibson and bad checks that had been given to Gibson and remained unpaid. The conclusion is inescapable that there was something among those papers that was more valuable to the murderer than the six hundred dollars cash in the open cash drawer. The jury could have found that defendant owed Gibson money for cigarettes, groceries, beer or the door that was damaged in the altercation “with his brother.” The brother could have been Dan Delk, the record does not reveal whether defendant had other brothers.

The failure of defendant to call Dan Delk was significant for several reasons. One of the two women passengers who testified about his activities when his vehicle passed Mrs. Claiborne’s house acknowledge that she had “stayed” with him and, of course, the other one was a friend. The jury was not required to accept their testimony, which was far from convincing and unequivocal, oh its face. Why would a defendant charged with a capital crime fail to put his available brother on the witness stand to state unequivocally that he was given no papers by defendant or anyone else on the night of the murder and that he did not deposit them beside the highway near Mrs. Claiborne’s house? The answer may well be that he did so, or that he knew that defendant owed Gibson money and there was bad blood between them, or both.

There is no question but that the failure of defendant’s brother to testify and the prosecutor’s effective comment on it in rebuttal argument was a hard blow to defendant. However, it is true, as the dissenter observes, that the three errors are normally treated as harmless, certainly each standing alone. But it is also true that the line between harmless and prejudicial error is in direct proportion to the degree of the margin by which the proof exceeds the standard required to convict, beyond a reasonable doubt. The dissenter characterizes this case as proving nothing but presence. The proof of presence and the opportunity to commit the murder, with no eye-witness to the killing, was conclusive and was coupled with a time sequence that would support a finding beyond a reasonable doubt that no one else could have entered the store, committed the crime, and left unobserved.

Reversed and remanded for a new trial.

BROCK, C. J., and COOPER and HARBI-SON, JJ., concur. HENRY, J., dissents.

1 . (1) A 1975 American Legion membership card; (2) a satisfactory chest x-ray report dated February 4, 1974; (3) a food handler’s certificate dated June 25, 1974; and (4) two insur-anee premium receipts in the sum of twenty-five dollars each, one to policyholder Eugene H. Gibson and one to Georgia H. Gibson, both dated October 17, 1975.