State v. Austin, W1999-00281-CCA-R3-DD

• Decision Date: 06 March 2001
• Docket Number: W1999-00281-CCA-R3-DD
• Parties: STATE OF TENNESSEE v. RICHARD HALE AUSTININ THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON
• Court: Tennessee Court of Criminal Appeals

STATE OF TENNESSEE v RICHARD HALE AUSTIN

No. W1999-00281-CCA-R3-DD

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

January 9, 2001 Session

Filed March 6, 2001

Direct Appeal from the Criminal Court for Shelby County No. B-58357 C.

Creed McGinley, Judge, by designation

In 1977, Richard Hale Austin was found guilty by a Shelby County jury of accessory before the fact to the first degree murder of Julian Watkins. Austin's conviction stemmed from his role in commissioning the murder of Watkins, a reserve deputy sheriff. The jury subsequently found the presence of aggravating factor (i)(4), murder for remuneration, and imposed a sentence of death. In 1997, Austin was granted habeas corpus relief in the form of a new sentencing hearing by the Sixth Circuit Court of Appeals. At the re-sentencing hearing, twenty-two years after his original trial, a jury again found the presence of the (i)(4) aggravating factor and again imposed a sentence of death. It is from this sentencing decision that Austin appeals. In this appeal, Austin presents numerous issues for our review, including (1) the disqualification of the Tennessee Supreme Court; (2) challenges to the selection of various jurors; (3) the admission and exclusion of evidence; (4) the introduction of victim impact evidence; (5) prosecutorial misconduct during closing argument; (6) the propriety of the jury instructions; (7) whether application of the (i)(4) aggravator violates State v. Middlebrooks; (8) prejudice due to the delay in imposing a sentence of death; (9) the constitutionality of Tennessee's death penalty statutes; and (10) whether the jury imposed a proportionate sentence. After a careful review of the record, we affirm the imposition of the sentence of death.

Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed.

DAVID G. HAYES, J., delivered the opinion of the court, in which JOE G. RILEY and JOHN EVERETT WILLIAMS, JJ., joined.

Frank J. Glankler, Jr. and Robert L. Hutton, Memphis, Tennessee, for the Appellant, Richard Hale Austin.

Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Amy L. Tarkington, Assistant Attorney General, William L. Gibbons, District Attorney General, and John Campbell and Thomas Henderson, Assistant District Attorneys General, for the Appellee, State of Tennessee.

OPINION

The Appellant, Richard Hale Austin, appeals as of right, his sentence of death. In 1977, the Appellant was convicted by a Shelby County jury of accessory before the fact in the premeditated murder of Julian Watkins and was sentenced to death. The Appellant's conviction and sentence of death were affirmed on direct appeal. See State v. Austin, 618 S.W.2d 738 (Tenn.), cert. denied, 454 U.S. 1128, 102 S. Ct. 980 (1981). The denials of his requests for post-conviction relief were likewise affirmed.¹ The Appellant subsequently petitioned for a federal writ of habeas corpus and moved for summary judgment. The federal district court partially granted his motion and issued the writ, holding that (1) trial counsel was ineffective at both the guilt and sentencing phases, and (2) the reasonable doubt instruction was unconstitutional and it was reasonably likely that the jury interpreted the instructions as preventing any juror from considering a mitigating circumstance unless the jury unanimously found that circumstance.² Austin v. Bell, 938 F. Supp. 1308 (M.D. Tenn. 1996). The State sought appeal to the Sixth Circuit Court of Appeals from the district court's ruling granting the Appellant relief on the issues of ineffective assistance of counsel and reasonable doubt instruction. The Sixth Circuit reversed the district court's holdings on all grounds with the exception that the court affirmed the district court's finding that counsel was ineffective at the penalty phase. See Austin v. Bell, 126 F.3d 843 (6th Cir. 1997), cert. denied, 523 U.S. 1079, 118 S. Ct. 1526 and 523 U.S. 1088, 118 S. Ct. 1547 (1998). The case was remanded to the Shelby County Criminal Court for a new sentencing hearing.³

Upon remand, the State filed notice of its intent to seek the death penalty based upon two aggravating circumstances: (1) that the defendant committed the murder for remuneration or the promise of remuneration or employed another to commit the murder for remuneration, or the promise of remuneration; and (2) that the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another. TENN. CODE ANN. 39-2402(i)(4) and (6) (1977). A new sentencing hearing was held on March 1, 1999. At the conclusion of the sentencing hearing, the jury found the presence of one aggravating circumstance, i.e., that the defendant committed the murder for remuneration or the promise of remuneration or employed another to commit the murder for remuneration. The jury further determined that the mitigating circumstances did not outweigh the aggravating circumstance and imposed a sentence of death. The trial court approved the sentencing verdict. The Appellant appeals presenting for our review the following issues:

I. Whether the trial court erred by denying the Appellant's motion to disqualify the Tennessee Supreme Court and/or the State Attorney General from future proceedings in this case and whether the court erred in quashing subpoenas issued by the Appellant regarding this claim (Appellant's Issues III and IV);

II. Whether the trial court properly controlled the selection of numerous jurors (Appellant's Issues VI and XVI);

III. Whether the trial court erred by refusing to admit substantive evidence on the grounds that such evidence was hearsay (Appellant's Issues I and V);

IV. Whether the trial court erred by admitting testimony of Marilyn Lee Pryor recalling threats of violence against her by the Appellant (Appellant's Issue XVII);

V. Whether the trial court erred by permitting the State to cross-examine Levi Haywood as to the treatment of "snitches" in the jail (Appellant's Issue XVIII);

VI. Whether the trial court erred by compelling Jack Blankenship to testify (Appellant's Issue XIX);

VII. Whether the introduction of victim impact evidence constituted error (Appellant's Issue XIV);

VIII. Whether the State committed prosecutorial misconduct during closing argument by commenting on matters not in evidence (Appellant's Issue VII);

IX. Whether the trial court erred by refusing to instruct the jury as to the fairness of the imposition of a sentence of death in light of the sentences received by co-defendants Terry Casteel and Jack Charles Blankenship (Appellant's Issue II);

X. Whether the trial court properly refused to instruct the jury to consider a sentence of life without the possibility of parole as a sentencing option (Appellant's Issue IX);

XI. Whether the trial court properly refused to instruct the jury regarding parole eligibility and properly addressed the jury's question regarding parole eligibility (Appellant's Issue XV);

XII. Whether the application of aggravating circumstance (i)(4), murder for remuneration, violates State v. Middlebrooks (Appellant's Issue XIII);

XIII. Whether the trial court properly refused to impose a life sentence in light of the twenty-year delay in the imposition of a sentence of death (Appellant's Issue VIII);

XIV. Whether Tennessee's death penalty statutes are constitutional (Appellant's Issue XII); and

XV. Whether the jury imposed an arbitrary and disproportionate sentence (Appellant's Issues X and XI).

After review, we find no error of law requiring reversal. Accordingly, we affirm the jury's imposition of the sentence of death.

Factual Background

For background purposes, we have excerpted, from the opinion of the Sixth Circuit Court of Appeals, the following summary of facts establishing the Appellant's guilt for the 1977 murder of Julian Watkins:

In early 1977, the [Memphis Police Department] suspected illegal gambling at [the Appellant's] pool hall and employed [Julian C.] Watkins, a reserve deputy sheriff, to investigate. Based on Watkins' testimony, the [S]tate obtained indictments and arrest warrants for Austin, his wife, and several employees and associates, including Terry Casteel, the manager of the pool hall. Watkins was to be the chief witness against them.

After their arrests, Austin, [Jack Charles] Blankenship, and Casteel met. During their meeting, Austin and Blankenship spoke separately, Austin then asked Casteel to drive Blankenship to Watkins' house. Casteel and Blankenship did not find Watkins there, but returned on the morning of May 23, 1977, when Blankenship killed Watkins. After the murder, Blankenship was seen with a large sum of money. The police arrested him on May 24, 1977. Blankenship pleaded guilty and was sentenced to life in prison.

Austin and Casteel were indicted for murder. Their trials were severed after Casteel agreed to testify for the State that Austin hired him to kill Watkins.

Austin, 126 F.3d at 845 n. 1.

Proof at the Re-Sentencing Hearing

On March 1, 1999, a re-sentencing hearing was held in the Criminal Court of Shelby County. Carolyn Watkins-Cupp, the widow of the victim, testified that she and Julian Watkins had been married for sixteen and one-half years and had three children together at the time of his murder in 1977.⁴ Julian Watkins owned Shelby Body Works, a body shop and wrecker service. Ms. Watkins-Cupp described Julian Watkins as "a very loving man. . . . He was generous. He was a hard worker." Julian Watkins was also very involved in the Shelby County community, performing charitable work and volunteering as a reserve deputy with the Shelby County Sheriff's Department. Ms. Watkins-Cupp testified that his murder "devastated" their family. "It's left a big void in our lives." Specifically, she explained that she met the victim when she was ten years old. The two "grew up together. Went to school together. Church together. They lived next door to us."...