Delk v. State

• Decision Date: 09 October 1979
• Citation: 590 S.W.2d 435
• Parties: Sam DELK, Petitioner, v. STATE of Tennessee, Respondent.
• Court: Tennessee Supreme Court

Page 435

590 S.W.2d 435

Sam DELK, Petitioner, v. STATE of Tennessee, Respondent.

Supreme Court of Tennessee.

Oct. 9, 1979.

Petition to Rehear Denied Dec. 3, 1979.

Jerry C. Colley, Columbia, Philip M. Carden, Nashville, for petitioner.

William M. Leech, Jr., Atty. Gen., Willaim O. Kelly, Asst. Atty. Gen., Nashville, Elmer Davies, Dist. Atty. Gen., Franklin, Douglas T. Bates, III, Asst. Dist. Atty. Gen., Centerville, for respondent.

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 Chavers 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...