State v. Poe

• Decision Date: 18 July 1988
• Citation: 755 S.W.2d 41
• Parties: STATE of Tennessee, Appellee, v. David S. POE, Appellant. 755 S.W.2d 41
• Court: Tennessee Supreme Court

Page 41

755 S.W.2d 41

STATE of Tennessee, Appellee, v. David S. POE, Appellant.

755 S.W.2d 41

Supreme Court of Tennessee,

at Nashville.

July 18, 1988.

Steven T. Atkins, Ted B. Hay, III, Clarksville, for appellant.

W.J. Michael Cody, Atty. Gen. & Reporter, Kymberly Lynn Anne Hattaway, Asst. Atty. Gen., Nashville, for appellee.

OPINION

HARBISON, Chief Justice.

Appellant was convicted of felony-murder in the Criminal Court of Montgomery County, Tennessee, and was sentenced to death by electrocution. We affirm both the conviction and the sentence.

Appellant was tried with a co-defendant, Jay A. Cameron, for the murder of Private Michael James Marlowe on the night of April 4, 1986. The victim and both defendants in this case were regular Army personnel assigned to active duty with an infantry division at Ft. Campbell, Kentucky. Marlowe was a youth who had reached his eighteenth birthday just eight days before his death. Appellant Poe lacked two months of being nineteen years of age, and Cameron was twenty-one.

The Ft. Campbell military reservation lies partly in Kentucky and partly in Tennessee. The death occurred during off-duty hours after the victim and the two defendants had been drinking beer together at a tavern near the military base. The robbery and murder occurred in a large vacant field located a few blocks from the tavern. The exact time of death was not established, but it apparently occurred after darkness and probably between the hours of 9:30 p.m. and midnight.

Statements taken by military and civilian authorities from Poe and Cameron clearly provided sufficient evidence to warrant their conviction of felony-murder. Both admitted being involved in the merciless beating and robbery of the young soldier, Marlowe, who had just recently been assigned to the Ft. Campbell military base after taking basic training in Texas. Both defendants denied any intention to kill the victim; but if their statements were admissible in evidence, little other proof of the deep implication of both Poe and Cameron would be required. In addition, Cameron testified at the trial, admitted being involved in the robbery and clearly implicated Poe in the homicide.

Although Cameron was also convicted of felony-murder, he received a sentence of life imprisonment rather than the death penalty. While this disparity is not assigned as error in the appeal, evidence was adduced at both the guilt and the sentencing hearings which would justify a finder of fact in differentiating between the two defendants. Under the circumstances of the case, the sentence of death is not disproportionate, nor can it be said that there was no rational basis for the decision of the jury to impose the death penalty upon one of the perpetrators and not on the other.

Although counsel for Poe have presented eleven issues for our review, we find no merit in any of them, nor does our independent review of the record reveal any basis for disturbing the conviction or the sentence.

A. The Suppression Issues

Counsel for appellant insists that the arrest of Poe on April 25, 1986, three weeks after the date of the homicide, was made without a warrant and was illegal. It is also insisted that the arrest of Poe was in violation of the posse comitatus statute, 18 U.S.C. Sec. 1385. Finally, it is urged that the statement taken from appellant was obtained in violation of his right to counsel, which right was not intelligently, voluntarily and knowingly waived. There is no claim that the statement, if otherwise admissible, should be suppressed because of inadequate warning or other other Fifth Amendment violation.

The issue regarding a warrantless arrest is predicated upon certain requirements of Kentucky state statutes which were allegedly not met. The State points out, however, that the arrest of appellant occurred on a U.S. military reservation and was made by authorized Army personnel.

It appears that neither Poe nor Cameron made any kind of official report of their attack on Marlowe during the night of April 4, 1986. Marlowe was on a weekend pass. When he did not report for duty on Monday, April 7, his absence was noted; and within a short time he was carried on military records as being absent without official leave.

Poe, however, talked to a number of persons about the incident, including both Cameron and Private Gregory L. Gray. Gray testified at trial that on or about April 20 or 21 Poe stated that "he had been involved in a murder." He testified:

Q. Well, specifically what did he tell you?

A. He told me that he broke someone's neck.

Q. That he broke someone's neck?

A. Yes, Sir.

Gray testified further:

He told me that him and Jay Cameron had met a 'newby' at a bar, and this guy had just gotten to Fort Campbell, just got out of basic training and he had been flashing some money around, buying people drinks. He said that the kid had bought them some drinks, and that eventually they turned around and he was gone. So, they went outside and found him passed out in the back of a truck, I believe he said. And with the intention to roll him, they took him into a field behind a local grocery store and I believe exactly what he said--said to me, was--it went too far and I broke his neck.

On the morning of April 25, 1986, Gray reported what Poe had told him to a special agent of the Criminal Investigation Division at Ft. Campbell. Thereafter special agent Steve Chancellor, who later testified at trial, actively participated in the investigation. On April 25 Chancellor went to the field where he understood the homicide had occurred, and there he found the badly decomposed corpse of Marlowe. This point is located in Montgomery County, Tennessee, about 600 ft. south of the Tennessee-Kentucky state line.

Agent Chancellor ordered other military officers to arrest both Poe and Cameron on the base at Ft. Campbell, and this was done during the morning of April 25. Defendants were brought to headquarters of the Criminal Investigation Division, and subsequently both of them gave taped interviews and signed written statements, admitting their involvement in the robbery of Marlowe on April 4.

Since both the perpetrators and the victim were military personnel on active duty, there seems to be no question but that they were subject to the provisions of the Uniform Code of Military Justice, 10 U.S.C. Secs. 801 et seq. See Solorio v. United States, --- U.S. ----, 107 S.Ct. 2924, 97 L.Ed.2d 364 (1987).

The military code specifically permits the arrest of persons by authorized officials based upon reasonable belief that an offense has been committed and that the person apprehended committed it. 10 U.S.C. Sec. 807(b). No warrant is required as appellant insists.

At the time Poe and Cameron were arrested on the base, no Tennessee warrant had yet been issued, but civilian authorities promptly requested such a warrant. Apparently the military officials were not certain at the outset whether to retain the case under military jurisdiction for court martial or to turn the offenders over to civilian authorities for prosecution. The remains of Marlowe were first taken to a military hospital but were later released to the Deputy State Medical Examiner. Poe and Cameron were delivered to civilian authorities, and subsequently Tennessee state warrants were served on them.

We find nothing illegal about the arrest of these individuals at the instance of military authorities on the military base. No authority is cited suggesting that either Tennessee or Kentucky retained exclusive jurisdiction over the federal enclave.

The posse comitatus statute, 18 U.S.C. Sec. 1385, was originally enacted during the Reconstruction era. It provides:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both.

The investigation in the present case commenced with military officials and involved exclusively military personnel. No case has been cited to us holding that there was a violation of the posse comitatus statute when both the victim and the perpetrators of the crime were on active military duty. In this case the actions of the military officers were performed primarily to accomplish military purposes; that is, to investigate the death of one soldier at the hands of others.

We are of the opinion that no violation of the statute has been shown by the action of the military personnel in cooperating with civilian officials or in turning over to the civilian officials the arrested individuals and information concerning them.

It is recognized by counsel for appellant that even if there had been a violation of the posse comitatus statute, there is no automatic exclusionary rule for such violations. The clear majority of cases which have considered this subject have held that exclusion does not follow as a matter of course but must be determined under the facts of each case. See, e.g., United States v. Roberts, 779 F.2d 565, 568 (9th Cir.1986); United States v. Wolffs, 594 F.2d 77, 85 (5th Cir.1979); United States v. Walden, 490 F.2d 372, 376-77 (4th Cir.1974).

In our opinion, there was no violation of this Act under the circumstances of this case; and even if there were, it certainly could not be said to be flagrant or willful. An enlisted man had been killed, and the military officials had reliable information that two other enlisted men were involved in committing the crime. We find nothing illegal in either the arrest or the interrogation of Poe and Cameron.

We find no substance to the Sixth Amendment claim. At the time of their interrogation, both Poe and Cameron were repeatedly advised of their right to counsel as well as their other constitutional rights. They waived their right to counsel several times and after full advice concerning all of their...