State v. O'Guinn

• Citation: 709 S.W.2d 561
• Parties: STATE of Tennessee, Appellee, v. Kenneth Wayne O'GUINN, Defendant-Appellant. 709 S.W.2d 561
• Decision Date: 24 March 1986
• Court: Tennessee Supreme Court

Page 561

709 S.W.2d 561

STATE of Tennessee, Appellee, v. Kenneth Wayne O'GUINN, Defendant-Appellant.

709 S.W.2d 561

Supreme Court of Tennessee at Jackson.

March 24, 1986.

Patrick F. Martin, Charles H. Farmer, Jackson, for defendant-appellant.

W.J. Michael Cody, Atty. Gen. and Reporter, Ann Lacy Johns, Asst. Atty. Gen., Nashville, Jerry Woodall, Dist. Atty. Gen., Roger D. Moore, Asst. Dist. Atty. Gen., Jackson, for appellee.

OPINION

DROWOTA, Justice.

The defendant, Kenneth Wayne O'Guinn, appeals his conviction of first degree murder, for which he was sentenced to death, and his conviction of aggravated rape, for which he was sentenced to life in the state penitentiary. The defendant presents three issues for review: (1) whether the trial court erred in denying his motion to suppress the admission of his statements; (2) whether the trial court erred by not granting a mistrial regarding the surprise testimony of the State's pathologist witness; and (3) whether the trial court erred by not granting certain expert witness fees pursuant to statute.

On September 6, 1983, the Madison County Grand Jury returned an indictment charging the defendant with the rape and strangulation death of Sheila Cupples. The record reveals that on Saturday evening, about 7 p.m. on May 23, 1981, Sheila Cupples, seventeen; her cousin, Joanie Cupples, twenty-two; and two other young women, Pam Johnson and Janet Pierce, went to the Hat and Cane Club, a lounge and dance hall in Jackson, Tennessee. They were celebrating Sheila's graduation from high school. Shortly after arriving, Joanie's mother and Janet Pierce's mother joined them at their table in the lounge. During the evening Sheila drank beer, took a "hit of speed," and danced with several different men. Sheila was dressed in pink pants, pink and white halter top and sandals. By eleven o'clock, she was seriously intoxicated and had to be helped to the restroom "to straighten up" by Joanie. Afterwards, she told Joanie there was someone she had to talk to across the room. Around midnight Joanie last saw her standing by the door leading from the dance floor to the lounge looking as if she was waiting for someone.

An employee of the Hat and Cane Club, Diane King, was not working that evening but was present and she danced with the defendant. She saw Sheila and the defendant leave the dance floor for the lounge at the same time. Danny Dunn was at the club that evening and he saw Sheila and the defendant in the parking lot leaving the club around eleven forty-five p.m. The heavily intoxicated Sheila tripped over a motorcycle. Danny helped her up, and the defendant led her away. Joanie, unable to locate Sheila, searched unsuccessfully for her and finally went home around four-thirty a.m.

On Sunday afternoon around three-thirty, Sheila's nude body was found lying in a weeded field at the end of a dead-end road near the Highway 45 By-pass in Jackson. It appeared that her body had been dragged about six to eight feet. A tire tool lay between her outstretched legs. Her halter top was wrapped tightly around her neck. Her face had been badly beaten. Tire tracks were found nearby before a heavy thunderstorm occurred and made the collection of certain evidence difficult. No scientific or physical evidence, such as hairs or fingerprints, connected the defendant with the body.

The County Medical Examiner and Coroner, and the former Deputy Shelby County Medical Examiner and Assistant Chief Medical Examiner for the State of Tennessee, testified extensively concerning Sheila's injuries and the cause of her death. The County Medical Examiner examined Sheila's body at the scene and the Deputy Shelby County Medical Examiner performed his autopsy in Memphis. Their testimony showed that Sheila had been dead about twelve hours when her body was first examined around 4:12 p.m. Injuries (some offensive, some defensive) to her chest, arms, and head indicated she had suffered a severe and brutal beating; but the cause of her death was ligature strangulation, that is, an object having been placed around her neck, i.e., her halter top. Once force was applied to Sheila's neck, she would have been conscious three to four minutes. Weeds caught under the halter top indicated she had been strangled in a weedy spot. A contusion with parallel bruises on either side of her left nipple might have been made by pliers or a similar object. A laceration or tear of the tissue at the front of her vagina .8 inches in length and three-fourths of an inch in depth was consistent with the forceful insertion of a hard, firm, wooden or metal object such as a tire tool into her vagina. Abrasions on her buttocks indicated the body had been dragged across the ground. The injuries to her head, neck, breast, and vagina had occurred prior to her death. Her blood alcohol was 0.18, her urine-alcohol 0.28. This was consistent with the condition of a person who had been drinking earlier and was, at the time of her death, on the "downside" of being drunk. The drug Darvon was also detected in her system. Although no spermatozoa were found either in the vagina, mouth, nasal passage or anus, seminal acid phosphates were detected.

Four statements given to T.B.I. Agent James Leach by the defendant in August 1983, in which he confessed to murdering Sheila, were read to the jury. The defendant told how he traveled from Huntsville, Alabama, to Jackson, where he went to the Hat and Cane Club. Sheila, whose name he did not know, kept running into him at the club. He admitted drinking and taking two or three Darvon, which Sheila gave him. Sheila was drunk and he took her outside to sober up about 11:30. The two rode around in his car and eventually parked behind a Jackson service station. They at least partially disrobed but began to argue, and the defendant choked Sheila with his hand, then stopped and apologized. They had a drink and then she grabbed the bottle of whiskey and started pouring it out of the window, reminding him of his former wife, and he choked her with her "blouse" until she was dead. He admitted striking her before she was dead and twisting her breast with his hands after she died. The defendant could not remember inserting anything into her vagina, although he claimed she was dead if he did do it. He told how he put her body into the trunk of his car, drove to a dead-end road off the Highway 45 By-Pass, and placed the body in a grassy field. He then drove back to Huntsville about daybreak, throwing her clothes in the Forked Deer River.

Defendant's proof consisted of the testimony of Joanie Cupples' mother that she had last seen Sheila at the Hat and Cane Club around twelve to one a.m. that night. To counter earlier testimony by Joanie that the defendant had spoken rudely to Sheila at the Hat and Cane Club on the Thursday before her death, the defendant presented Sharon Wyatt, another of Sheila's cousins, who testified that it was the defendant's brother, Robert O'Guinn, who had made the ugly comment. Sharon had not seen the defendant there on Thursday. Lastly, the defendant introduced a composite photograph made by the Jackson police from descriptions given them.

At the sentencing hearing the State presented no new evidence except to pass to the jury previously introduced photographs not yet shown to the jury which depicted the condition of the victim's body.

The defendant's mother testified on his behalf and told how the defendant's father, from whom she had been divorced in 1966 had run the defendant away from home when he was thirteen or fourteen years old. Her son had been married and divorced and had three children. His relation with his father was strained, particularly because his former wife had had an affair with his father in 1968 or 1969.

I.

The defendant first argues that the trial court erred in not suppressing his statements given to T.B.I. Agent Leach because he misunderstood his right to counsel when he gave the statements. He thought his right to counsel was contingent on the future event of appointment by the court and that he would only get an attorney appointed when he got to court.

On July 4, 1983, the defendant was arrested and incarcerated in the Madison County jail in Huntsville, Alabama, on Alabama charges of rape and first degree assault upon Betty Ivey. On that date, he was interrogated by investigator Al Duffey of the Madison County Sheriff's Department. The defendant was interrogated a number of times by Duffey and other officers of the Alabama jurisdictions where he was being held. Duffey testified that on each occasion the defendant was given his Miranda warnings. The defendant was being questioned about the Ivey case, and about the unsolved murder of Linda Muller, which had occurred in Alabama. When, as a result of these conversations, Duffey obtained information from the defendant concerning the Shiela Cupples murder in Tennessee, Tennessee authorities were contacted and eventually T.B.I. Agent Leach came to Alabama to question the defendant.

The first contact Agent Leach had with the defendant was on August 10, 1983. On that date, Agent Leach contacted defendant's Alabama appointed counsel in the Ivey case for permission to talk to the defendant. He was given permission to talk to the defendant about anything except the Alabama charges for which the attorney had been appointed to represent the defendant. At this time Agent Leach advised the defendant of his Miranda rights. Apparently, the defendant was implicating his brother Robert in the killing.

On August 12, the defendant sent word that he wanted to talk with Duffey and his rights were again read to him from a "Miranda card," and he indicated that he understood them. During the course of his questioning on the Alabama murder, the defendant mentioned the Jackson, Tennessee incident, at which time Duffey brought Agent Leach in to talk with the Defendant. Duffey advised Leach that he had already informed the defendant of his...