State of Tennessee v. Richard Allen , 1999 Tenn. Crim. App. LEXIS 629 ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MARCH 1999 SESSION
July 1, 1999
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) NO. 01C01-9712-CR-00593
Appellee, )
) DAVIDSON COUNTY
VS. )
) HON. J. RANDALL WYATT, JR.,
RICHARD ALLEN, ) JUDGE
)
Appellant. ) (Second Degree Murder)
FOR THE APPELLANT: FOR THE APPELLEE:
MARK J. FISHBURN PAUL G. SUMMERS
TOMMY OVERTON Attorney General and Reporter
213 Third Avenue N
Nashville, TN 37201-1603 TIMOTHY BEHAN
ELIZABETH T. RYAN
Assistant Attorneys General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
VICTOR S. JOHNSON III
District Attorney General
ROGER D. MOORE
PAUL DEWITT
Asst. District Attorneys General
Washington Square, Suite 500
222 Second Avenue South
Nashville, TN 37201-1649
OPINION FILED:
REVERSED AND DISMISSED
JOE G. RILEY,
JUDGE
OPINION
Defendant, Richard Allen, was indicted for the first degree murders of David
Lee Day and James Kevin Huckaby. A Davidson County jury convicted the
defendant of the lesser offense of second degree murder of David Lee Day and
acquitted him of the Huckaby homicide. The trial court sentenced him as a Range
I standard offender to twenty-five years incarceration. In this appeal as of right,
defendant contends that his conviction must be reversed because of insufficient
evidence to corroborate the testimony of an accomplice. The state prosecuted this
accomplice for first degree murder, sought the death penalty, and allowed him to
plead guilty to second degree murder during the accomplice's trial. The state has
now changed its position and argues that he was not an accomplice. This is,
however, impermissible. Since this felon-accomplice provided the only testimony
linking the defendant to the crime, the long-standing, firmly established law in this
state requires us to REVERSE the conviction.
FACTS
The bodies of David Lee Day and James Kevin Huckaby were discovered in
a wooded area in Smith County, Tennessee, on June 14, 1987. Day had been shot
twice in the head; Huckaby had been shot once in the head. Two .32 caliber bullets
were recovered from Day's body. A single .38/357 caliber bullet, dug from the
ground with a shovel, was found under Huckaby's head. A lead fragment was also
recovered from Huckaby's scalp.
Day's and Huckaby's widows testified that their husbands were friends, and
that they suspected their husbands of dealing drugs. The last day they saw their
husbands alive was June 8, 1987, a week before law enforcement discovered their
bodies. Day's brother testified that Day and Huckaby came to his farm on June 8,
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1987, and he loaned Day $4,000 to finance a "drug deal." W hen Day's car was
found on June 10, 1987, it contained a box of marijuana.
John R. Goodwin, pursuant to a best interest plea agreement, pled guilty to
the second degree murders of Day and Huckaby during his capital murder trial.
Sentencing was deferred until after defendant's trial; however, the state agreed to:
(1) recommend the minimum ten-year sentences to run concurrently; (2)
recommend these sentences run concurrently with a Kentucky sentence; and (3)
not oppose Goodwin's parole. The agreement was conditioned upon Goodwin's
giving "truthful testimony" at defendant's trial.
Goodwin testified at defendant's trial. Goodwin, six feet and seven inches
tall weighing 240 pounds, had prior convictions for first degree murder, armed
robbery and grand larceny, in addition to his second degree murder conviction in
this case. Goodwin also acknowledged that he used the false name of "Jack E.
Adams" for two years while "on escape."
Goodwin testified that in 1987 he was a co-worker of the defendant. In June
of that year, he went to defendant's home on Illinois Avenue in Nashville at about
2:30 p.m. According to Goodwin, the house was owned by defendant's
grandmother, who also lived there. When he pulled across the driveway, he saw
defendant's car, defendant's half-brother Darrell Taylor's car, and a third vehicle he
did not recognize.
Goodwin entered the residence and walked into the kitchen where Taylor
was sitting at a table with two men whom Goodwin did not recognize. Goodwin
testified that, as he reached into a cabinet for a water glass to take his medication,
he heard two or three shots. He turned around and saw one of the men laying on
the table and the other man on the floor. He stated that defendant and Taylor were
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standing two to three feet from the men, and that defendant had an automatic
weapon and Taylor had a revolver.1
Goodwin testified that defendant told Goodwin to help move the bodies.
Goodwin helped defendant undress the victims, and they moved the bodies to the
bathtub. He said that Taylor took the victims' rings, watches and wallets, and put
them in a box. He claimed that defendant told him that, "if [he] ever said anything
that he would kill [him]." Goodwin then left and went to work.
At eleven o'clock that night, Goodwin ended his shift and went to his car. He
testified that defendant was standing there and told Goodwin they needed to use
his car because defendant's car was not big enough. Goodwin followed defendant
to the Illinois Avenue house where the two men loaded the bodies into the trunk of
Goodwin's car. They eventually drove onto a dirt road, stopped, and unloaded the
bodies into a ditch.
Although the record is unclear as to the circumstances, Detective Mike
Roland received information from Taylor in 1992 that the 1987 killings had occurred
at the house on Illinois Avenue. The occupant who lived there at the time
consented to a search. Roland and Officer Brad Corcoran found a bullet in the
kitchen wall. When they peeled back the baseboard, they discovered dried blood.
They found more blood beneath the floor and took scrapings for identification.
Michael DeGuglielmo testified as an expert in the field of forensic DNA
analysis. He was provided with the blood scrapings taken from the house and blood
drawn from Day's biological parents. He testified that the comparisons of these
three samples indicated a child/parent relationship.
1
Taylor was indicted jointly with defendant but their cases were severed. The record
does not reveal how the charges against Taylor were resolved. He did not testify at
defendant’s trial.
4
Tommy M. Heflin of the Tennessee Bureau of Investigation testified as an
expert in the field of firearms examination. He examined the two .32 caliber bullets
recovered from Day's body; the .38/357 caliber bullet found under Huckaby's head
in Smith County; another .38/357 bullet recovered from the Illinois Avenue house;
and the lead fragment recovered from Huckaby's scalp. Heflin testified that each
of the .32 caliber bullets had been fired from a semi-automatic pistol. He also
testified that both of the .38/357 bullets had the same class of rifling characteristics,
and were fired from a revolver.2 He further testified that the lead fragment may have
originally been a piece of the bullet recovered from Smith County.
Goodwin was apprehended in Florida in 1995. He denied any knowledge of
the murders in his first statement to police. His story changed when the authorities
told him they would "protect" him from defendant. Goodwin testified that the officers
told him that if he made a statement and told the truth, he would not have to return
to Tennessee to testify and would be released from jail that day. Goodwin then told
them in a second statement that he heard the shots as he walked up to the door.
In a third statement, he related that he was in the kitchen when the shots were fired.
On cross-examination, he was questioned about an alleged fourth statement in
which he said he was in the kichen with defendant and Taylor before the two victims
arrived. After being shown this alleged statement, he denied making the statement.
On further cross-examination, Goodwin admitted that the state had sought the
death penalty against him for these two murders, and he pled guilty during his
capital murder trial.
2
Because Goodwin testified that he saw defendant holding an automatic weapon and
Taylor holding a revolver, Heflin's findings may explain why the jury convicted defendant
of Day's murder but not Huckaby's. Also, as noted by the trial court, the jury could have
believed that Huckaby was actually murdered in Smith County. This, of course, would be
inconsistent with the testimony of Goodwin.
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GOODWIN'S STATUS AS ACCOMPLICE
A. Accomplice Determination - Tennessee Cases
The trial court in this case instructed the jury that Goodwin was an
accomplice as a matter of law, whose testimony required corroboration. An
accomplice is one who "knowingly, voluntarily, and with common intent participates
with the principal offender in the commission of the crime alleged in the charging
instrument." State v. Griffis, 964 S.W.2d 577, 588 (Tenn. Crim. App. 1997).
Goodwin's status as such is significant because, in Tennessee, a defendant cannot
be convicted of a felony on the uncorroborated testimony of an accomplice. Id. at
587-88. Defendant contends that the trial court's instruction was correct, but there
is insufficient corroborative evidence to sustain the verdict.
The state argues that there was "a modicum of evidence sufficient to
corroborate" Goodwin's testimony. Alternatively, the state contends that Goodwin
was not an accomplice as a matter of law; the trial court erred in so charging the
jury; and this case must, therefore, be remanded for a new trial. See State v.
Green, 915 S.W.2d 827 (Tenn. Crim. App. 1995). The basis for the state's
argument is that Goodwin's trial testimony establishes he was an accessory after
the fact, which does not make him an accomplice to the murder. See Monts v.
State, 214 Tenn. 171, 379 S.W.2d 34, 43 (1964); State v. Allen, 976 S.W.2d 661,
666 (Tenn. Crim. App. 1997).
We must initially determine, therefore, whether Goodwin was an accomplice
as a matter of law. Goodwin pled guilty to Day's murder, the same crime with which
defendant was charged and now stands convicted. Numerous Tennessee cases
indicate that this is sufficient to brand Goodwin an accomplice as a matter of law.
See, e.g., State v. Lawson, 794 S.W.2d 363, 369 (Tenn. Crim. App. 1990) (finding
that the alleged accomplice was an accomplice as a matter of law because he was
convicted of the identical offense prior to the defendant's trial); Griffis, 964 S.W.2d
at 589 (witness who pled guilty to attempted first degree murder was an accomplice
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as a matter of law); and State v. Anderson, 985 S.W.2d 9, 16 (Tenn. Crim. App.
1997) (finding witness an accomplice as a matter of law where he was jointly
indicted for the offense, pled guilty to the crime, and admitted his involvement at the
defendant's trial). However, in the instant case, the state now argues that because
Goodwin's testimony at defendant's trial was inconsistent with his guilty plea, his
status became a question of fact for the jury to decide.
The state relies upon State v. Allen, 976 S.W.2d 661, 666-67 (Tenn. Crim.
App. 1997). In that case, two witnesses were alleged to have participated in a
robbery with the defendants. One witness pled guilty in juvenile court, and the other
was found guilty in juvenile court. The defendants were tried for the same robbery
in criminal court. At defendants' trial the witnesses testified they were unaware the
robbery was to occur. None of the briefs addressed whether or not the witnesses
were accomplices. The trial court's charge to the jury was not included in the
record, but this Court found that the "jury upon proper instruction could have found
that [the witnesses] did not knowingly, voluntarily, and with common intent unite with
the appellants in [the robbery]." Id. at 667. In so ruling, this Court concluded that
the witnesses' accomplice status was a question of fact for the jury. Id. We note,
however, that this Court did not discuss whether the prior juvenile adjudications
required that the witnesses be considered accomplices as a matter of law. There
was no application for permission to appeal to the Tennessee Supreme Court. We
conclude that Allen is not controlling.
B. Accomplice Determination - Other Jurisdictions
We note that our sister state of Alabama has held that "a witness for the
State [who] has been convicted for the same crime as the one for which a
defendant is being tried does not require the conclusion that he is an accomplice
to the crime." Tinsley v. State, 395 So. 2d 1069, 1078 (Ala. Crim. App. 1980), cert.
denied 395 So. 2d 1080 (Ala. 1981); see also Siler v. State, 705 So. 2d 552, 555
(Ala. Crim. App. 1997), cert. denied (Ala. 1997) (" '[e]ven where a witness has been
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jointly indicted with the defendant and convicted before the defendant's trial, if the
witness denies his participation at the defendant's trial, the issue of whether he was
an accomplice is a question of fact for the jury.' ") (citation omitted). Arizona has
held likewise, noting that "[p]leas of guilty may be entered for a number of reasons[,]
some unrelated to the issue of true guilt." State v. Anderson, 512 P.2d 613, 615
(Ariz. App. 1973), aff'd as modified 517 P.2d 508 (Ariz. 1973).
Montana, however, has taken a different approach. In State v. Johnson, 918
P.2d 293 (Mont. 1996), the state charged a co-defendant with criminal mischief and
obstruction of justice. The defendant was also charged with criminal mischief and
criminal endangerment arising from the same incident. The co-defendant entered
into a deferred prosecution agreement that provided for dismissal of the charges
after she testified against the defendant. The state conceded that the co-
defendant's and another accomplice's testimony were all that connected defendant
to the crime. However, it argued that co-defendant was not an accomplice because
" 'she did not share a common intent with [defendant] to [commit the crime] nor did
she unite in the planning, preparation or commission of the offense.' " Id. at 295.
The Supreme Court of Montana considered that the co-defendant "was not
only chargeable with criminal mischief, but was also charged and arrested for the
crime[,] . . . [and] the State did not dismiss those charges prior to trial." Id. at 296.
Finding these facts "critical," it held that:
the threat of continued prosecution of [co-defendant] for
the same crime Johnson was charged with and tried for
was an admission by the State that she was an
accomplice to the crime. To procure her testimony by
such a threat and then argue to the Johnson jury that
there is no basis for finding that she was accountable
for the crime was the kind of duplicitous conduct by an
officer of the court that cannot be sanctioned by the law.
Id. See also, State v. Rose, 972 P.2d 321, 323 (Mont. 1998) (holding "the State's
prosecution of one person for the same crime for which the defendant is tried
constitutes an acknowledgment that the person is an accomplice to the crime.")
8
C. Determination of Goodwin's Status
We recognize, of course, that Goodwin was not under the threat of continued
prosecution in this case as was the co-defendant in the Johnson case. Goodwin
entered his guilty plea during his first degree murder trial in which the state was
seeking the death penalty. Goodwin's "Petition to Enter Best Interest Plea of
Guilty," made a part of the record,3 includes the following:
[Goodwin's] sentencing hearing will be delayed until
after the trials of Richard Allen and Darrell Taylor. . . .
[Goodwin] agrees that if called to testify as a witness at
the trial of Richard Allen and/or Darrell Taylor he will
give truthful testimony which will be consistent with his
statement at the time of his arrest in Ft. Lauderdale,
Florida. [Goodwin] further agrees to give a statement
under oath at the time of his plea setting forth to the
best of his recollection the facts and circumstances
surrounding the events of June 8, 1987. Upon
[Goodwin's] agreement to do those acts as stated
herein, the State agrees that at the defendant's
sentencing hearing it will recommend a minimum
sentence of ten years on each count of murder in the
second degree to be served concurrently with each
other and concurrent with any sentence remaining
undischarged from his conviction in Simpson County,
Kentucky in 1988. It is the further agreement that upon
the defendant becoming eligible for parole
consideration, the State will not oppose parole.
Thus, Goodwin was under the threat of a harsher sentence if he did not testify
against defendant.
Montana utilizes a type of estoppel policy to prevent the state from "playing
both ends against the middle." We are likewise concerned with the state taking
inconsistent positions where it prosecutes and convicts a witness for murder and
then portrays that same witness as something less than an accomplice in a
subsequent prosecution of another individual for the same crime. This is particularly
troublesome where, as here, the witness is convicted on the basis of a "best
interest" plea.4 While Tennessee recognizes the validity of such a plea, see, e.g.,
3
Defendant attempted to introduce this petition as a part of the defense proof. The
trial court disallowed its introduction into evidence but made the petition a part of the record.
4
See North Carolina v. Alford, 400 U.S. 25 (1970). A best interest plea is made by
a defendant who does not wish to acknowledge his or her guilt, but has determined that a
guilty plea is preferable to standing trial and is in his or her “best interest.” See VanArsdall
9
State v. Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995), it is, nevertheless,
a plea of guilty and carries the same consequences as any other guilty plea. Id. at
354. Yet, the state's position in this case would permit the use of best interest pleas
to possibly avoid the necessity of putting on sufficient corroborative proof at the trial
of a co-perpetrator. We are not persuaded that the state's inconsistent positions
are warranted under existing Tennessee law.
When the state prosecuted Goodwin for Day's murder and accepted his
guilty plea to second degree murder, it effectively declared that Goodwin had
"knowingly, voluntarily and with common intent" participated in Day's murder. We
hold that declaration to be binding on the state. To hold otherwise would permit the
state to obtain a conviction against an accused solely on the basis of a convicted
co-perpetrator's uncorroborated testimony, provided the state could convince the
jury it wrongfully convicted the co-perpetrator. This makes no sense. While we do
not fear that such an occurrence would happen frequently, we are concerned that
it could happen at all.
We think the better rule is that once a witness pleads guilty to the same
offense with which the defendant is charged (or which is incorporated in that
offense), then the witness must be deemed an accomplice as a matter of law,
irrespective of his or her testimony at the defendant's trial.
The trial court correctly declared Goodwin an accomplice as a matter of law,
and properly instructed the jury that his testimony must be corroborated. We must
now determine whether there was sufficient corroboration of Goodwin's testimony.
The trial court noted that this was a "close call." Unfortunately, there was absolutely
no corroboration linking the defendant to this horrible crime.
v. State, 919 S.W.2d 626, 629 (Tenn. Crim. App. 1995).
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SUFFICIENCY OF CORROBORATIVE EVIDENCE
With respect to the nature, quality and sufficiency of the evidence necessary
to corroborate an accomplice's testimony, our Supreme Court has stated:
The rule of corroboration as applied and used in this
State is that there must be some evidence independent
of the testimony of the accomplice. The corroborating
evidence must connect, or tend to connect the
defendant with the commission of the crime charged;
and, furthermore, the tendency of the corroborative
evidence to connect the defendant must be
independent of any testimony of the accomplice. The
corroborative evidence must of its own force,
independently of the accomplice's testimony, tend to
connect the defendant with the commission of the
crime.
Sherrill v. State, 321 S.W.2d 811, 815 (Tenn. 1959). "In short, the evidence must
confirm in some manner that (a) a crime has been committed and (b) the accused
committed the crime." Griffis, 964 S.W.2d at 589.
In this case, there is more than enough evidence to corroborate Goodwin's
testimony that Day was murdered at the Illinois Avenue house. However, there is
absolutely no independent or corroborative evidence linking defendant to the crime.
The only proof that defendant even lived at that address came from Goodwin.5 No
other evidence put defendant in the vicinity of the crime, linked him to the weapon,
or linked him to Day. In short, the state is unable to point to any corroborative proof
linking defendant to Day's murder. 6
5
In overruling defendant's motion for new trial, the trial judge stated, “[t]here was
indication, clearly . . . that the Defendant lived at this location on Illinois Avenue. There was
other evidence from witnesses at the trial that tend to connect the victim with this location”
(emphasis added). It is unclear whether the trial court meant “victim” or “defendant.” Our
search of the record reveals no other evidence connecting the defendant with this location,
although there certainly was other evidence connecting the victim with this location.
6
The state asserts in its brief that Detective Roland “tied the defendant to the house
on Illinois Avenue at the time of the crime,” citing page 309 of the transcript of evidence.
Detective Roland's testimony on that page does not do so, nor does his remaining testimony
do so.
11
The rule in Tennessee requiring that an accomplice's testimony be
sufficiently corroborated is a long-standing one. See, e.g., Clapp v. State, 30 S.W.
214 (Tenn 1895). This "very salutary rule" is designed to prevent the "obvious
dangers" of allowing a defendant to be convicted solely on the basis of an
accomplice's testimony. Sherrill, 321 S.W.2d at 814. Indeed, Metro Police
Lieutenant Russell Hackett admitted in this case that it is common for suspects to
"put the blame off on other people." Accordingly, where there is not any evidence
whatsoever to corroborate Goodwin's testimony that defendant killed Day, we are
forced to make a finding of insufficient evidence to support the verdict. Such a
finding requires us to reverse defendant's conviction and dismiss the charge. See,
State v. Williford, 824 S.W.2d 553, 554 (Tenn. Crim. App. 1991) (holding "a reversal
because of insufficient evidence corroborating an accomplice's testimony is not a
trial error but relates to the sufficiency of the evidence and is a defect involving the
guilt or innocence of a defendant.")
CONCLUSION
Many aspects of this case remain a mystery. We do not know what evidence
the state intended to introduce at Goodwin's first degree murder trial in which it
sought the death penalty. We assume the state had evidence to indicate that
Goodwin was more involved than his testimony revealed;7 otherwise, Goodwin could
not be convicted of any grade of homicide.
What we know is the state went to trial seeking a first degree murder
conviction against Goodwin and acquiesced in a conviction for second degree
murder. That conviction bars the state from subsequently contending that Goodwin
was not really guilty of murder after all.
7
We have previously alluded to an alleged “fourth statement” in which Goodwin
supposedly said he was in the kitchen with defendant and Taylor before the two victims
arrived.
12
This Court concludes that the law in Tennessee requires corroboration of an
accomplice's testimony. Further, Tennessee precedent requires a person who
pleads guilty to the same offense for which a defendant is being tried be considered
an accomplice as a matter of law. Any departure from these established
precedents should not come from this intermediate appellate court.
Accordingly, the judgment below is reversed and the indictment against
defendant is dismissed.
____________________________
JOE G. RILEY, JUDGE
CONCUR:
____________________________
DAVID H. WELLES, JUDGE
____________________________
THOMAS T. WOODALL, JUDGE
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