State v. Austin

• Decision Date: 26 May 1981
• Citation: 618 S.W.2d 738
• Parties: STATE of Tennessee, Plaintiff-Appellee, v. Richard Hale AUSTIN, Defendant-Appellant.
• Court: Tennessee Supreme Court

Page 738

618 S.W.2d 738

STATE of Tennessee, Plaintiff-Appellee, v. Richard Hale AUSTIN, Defendant-Appellant.

Supreme Court of Tennessee.

May 26, 1981.

Rehearing Denied July 27, 1981.

William M. Leech, Jr., Atty. Gen., Robert L. Jolley, Jr., Asst. Atty. Gen., Nashville, for plaintiff-appellee.

Frank J. Glankler, Jr., J. N. Raines, C. Barry Ward, Memphis, for defendant-appellant.

OPINION

HARBISON, Chief Justice.

Appellant appeals from his conviction as accessory before the fact to murder in the first degree. Following the bifurcated trial procedures set out in the controlling Tennessee statutes, the jury imposed the death penalty. The trial judge concurred, finding the sentence appropriate under the facts.

Appellant was convicted of employing an escaped convict to kill one Julian Watkins, an undercover agent for the Memphis police vice squad, as the result of whose activities indictments had been returned against appellant and a number of his employees and associates in an illegal gambling operation. Watkins was to be the principal witness for the prosecution against appellant and his codefendants.

Counsel for appellant have argued only briefly an issue of the insufficiency of the evidence. The record reveals that there was abundant material evidence to support the finding of the jury, concurred in by the trial judge, that appellant did in fact employ and pay a substantial sum of money to Charles Blankenship, an escaped convict, to gun down and execute in gangland fashion Julian Watkins at the latter's place of business. The scheme was carried out as planned and the assassin was paid as agreed.

The principal issues raised by appellate counsel (who were not trial counsel for appellant) involve the constitutionality of the Tennessee statutes authorizing the imposition of the death penalty for murder in the first degree and accessory before the fact of that crime. Although we will discuss these issues briefly, they have been considered and decided adversely to the contentions of appellant in other cases recently decided by this Court. ¹

Although there was conflicting evidence at the trial as to some issues, it was undisputed that Jack Charles Blankenship, accompanied by Terry Lee Casteel, went to the automobile body repair shop operated by Julian Watkins on the morning of May 23, 1977. Blankenship requested Watkins to come outside and give an estimate for some allegedly needed repairs. He then shot Watkins four times, fatally wounding him, re-entered his automobile and left at a high rate of speed.

Casteel testified that he had been employed by appellant, Richard Austin, to operate an establishment known as the "Golden Cue". Members of the Memphis vice squad suspected that illegal gambling operations were being conducted at the Golden Cue. They employed the decedent, Julian Watkins, a reserve deputy sheriff, to engage in an undercover operation at this establishment from January 1977 until April. During that time Watkins went to the Golden Cue on a number of occasions, observed appellant and a number of his employees, including Casteel, and reported that illegal gambling was in fact being conducted. Ten indictments were obtained on the basis of the testimony of Watkins, and arrest warrants were served on appellant and several of his employees on April 20. Watkins accompanied the arresting officers and identified the persons named in the warrants. Not all of these persons were present on that occasion, however, and on Wednesday, May 18, 1977, Watkins returned with officer Thomas Beach to assist him in serving other individuals who had been indicted. Appellant engaged in a conversation with Watkins at that time and ascertained that the latter would be at his body repair shop on the following Monday, May 23.

Casteel testified that he and appellant met with Charles Blankenship, who had escaped from a correctional institution in Shelby County, and that appellant had a conversation with Blankenship. Later appellant directed Casteel to take Blankenship to Watkins' home. He did so on the evening of Sunday, May 22, but Watkins was not at his residence. Casteel then took Blankenship to a trailer owned by appellant and his wife just over the state line in Mississippi. On the morning of May 23 he and appellant went to the trailer, and Casteel then accompanied Blankenship to Watkins' place of business, where the murder occurred. Casteel was indicted in the present case. However, his trial was severed and he testified as a key witness for the State.

Blankenship was seen by a number of witnesses during the day on May 23, following the homicide, and he displayed large sums of money to several of them. He was arrested early on the morning of May 24, 1977. Subsequently he plead guilty to murder in the first degree and received a sentence of life imprisonment. He was not called as a witness by either side in the trial of the present case.

Appellant denied any knowledge of the employment of Blankenship to murder Watkins and attempted to establish that his estranged wife had employed Casteel to concoct the scheme. Casteel denied this, and Mrs. Austin was not called as a witness at the trial. A number of other witnesses, employees of appellant, testified that business at appellant's establishment declined drastically after indictments were returned and arrests made in April, and that appellant on several occasions stated that he would like to see Julian Watkins killed. There was also testimony that appellant subsequently attempted to intimidate witnesses for the State and prevent their testifying in this case.

After finding appellant guilty in the initial phase of the trial, the jury heard some additional evidence offered by the State at the sentencing phase. Appellant offered no testimony during that portion of the trial. In imposing the death penalty the jury found that the evidence established as an aggravating circumstance that the appellant had either committed the murder for remuneration or promise of remuneration, or had employed another to commit the murder for remuneration or promise thereof, T.C.A. § 39-2404(i)(4). The jury found no mitigating circumstances to outweigh this, and our examination of the record establishes that the finding of the jury was fully supported by abundant material evidence.

The trial was a lengthy and hard-fought one, and classic issues for determination by the jury were presented. Although they returned a verdict using the statutory language respecting the aggravating circumstances above referred to, there can be no question but that they found that appellant had deliberately and willfully employed another person and paid him to murder Julian Watkins, thereby eliminating the only witness who could have testified in support of the pending indictments against appellant and his employees for conducting an illegal gambling operation. The issue regarding insufficiency of the evidence is without merit and is overruled.

As previously stated, all of the other issues raised by appellant have been considered in depth by the Court in other cases and found to be without merit. It is first argued on behalf of appellant that the death penalty is violative of the provisions of the United States Constitution and those of the state constitution regarding cruel and unusual punishment. This Court has expressly held to the contrary on numerous occasions and the issue does not warrant...