State v. Carpenter

• Decision Date: 01 February 1989
• Citation: 773 S.W.2d 1
• Parties: STATE of Tennessee Appellee, v. Jerry Neal CARPENTER, Appellant.
• Court: Tennessee Court of Criminal Appeals

Page 1

773 S.W.2d 1

STATE of Tennessee Appellee, v. Jerry Neal CARPENTER, Appellant.

Court of Criminal Appeals of Tennessee,

at Knoxville.

Feb. 1, 1989.

Permission to Appeal Denied by

Supreme Court May 8, 1989.

Rehearing Denied June 27, 1989.

Joseph M. Tipton, Albert J. Harb, Knoxville, for appellant.

W.J. Michael Cody, Atty. Gen. and Reporter, James W. Milam, Asst. Atty. Gen., Nashville, Robert L. Jolley, Jr., David C. Jennings, Asst. Dist. Attys. Gen., Knoxville, for the State.

OPINION

WADE, Judge.

The defendant, Jerry Neal Carpenter, appeals as of right from his conviction of first degree murder during the commission of a robbery. A life sentence was imposed.

The defendant alleges that the trial court committed prejudicial error as follows:

(1) by its failure to suppress as fruits of unconstitutional conduct evidence taken from his home, a dumpster, and witness Dean Herrell;

(2) by allowing witness Imogene Smith to testify of her conversation with Myrt Chapman concerning the identification of the defendant and his presence at the scene because such evidence was hearsay and violated the defendant's right of confrontation;

(3) by allowing witness Darrell Waddell to read certain material contained in a pre-trial statement because it constituted inadmissible hearsay;

(4) by permitting the state to rehabilitate witness Dean Herrell on re-direct examination through leading questions and through the use of his prior consistent statements because the testimony violated the defendant's right to confrontation, the rule against hearsay and the authoritative guidelines governing re-direct examination procedure;

(5) by excluding the hospital records of the witness Waddell which tended to impeach his credibility; and

(6) by refusing to instruct the jury on the issue of accomplice testimony.

This court finds no reversible error and affirms the judgment.

Myrtle Chapman, the operator of Myrt's Package Store, was found dead at her place of business on Clinton Highway in Knox County on March 25, 1985, shortly after 7:00 P.M. She had been struck repeatedly with a sharp object. Blood spatters were found throughout the store. The Knox County Medical Examiner testified that there were approximately ten deep lacerations to the head and face of the victim. His opinion was that a hatchet could have been used to inflict the wounds.

A bank bag found next to the cash register was open and empty. Three adding machine tapes and a bank deposit slip were found on the counter near the bank bag or on the floor.

The victim's husband, J.D. Chapman, testified that his wife had discovered money missing from the bag on the morning of the offense as she prepared to make her bank deposit. He stated that on the day before, a Sunday, the only persons who had been behind the counter, where the money was generally kept, were his two nephews, John and Jack Head, and the defendant.

Shortly after he discovered the loss, Chapman asked the defendant if he had taken the money on the previous day. The defendant denied he had done so, volunteered to take a lie detector test, and offered not to return to the premises. The amount missing from the previous day was determined to be $270.00.

At 5:45 P.M. on the day of the murder, the defendant was observed in the package store telling the victim that he had cut himself under the left eye. After he made a telephone call, however, he left.

Imogene Smith testified that she talked by telephone to the victim on the afternoon of March 25th. The victim advised her that she would have to hang up because "that little son-of-a-bitch is coming back in the store." When Smith asked if she was talking about "the guy who stole your money," the victim replied affirmatively. Smith related that the victim had told her during a phone conversation earlier in the day that she suspected that the defendant was the thief and had informed him that she was going to have the money bag fingerprinted. The trial court admitted into evidence the victim's statements in the last telephone conversation as statements within the present sense impression exception to the hearsay rule.

Darrell Waddell, the defendant's first cousin, testified that he saw the defendant receive a cut under his left eye on the afternoon of March 25th. Between 5:30 and 6:00 P.M., the defendant went to the victim's place of business for a Band-aid and cold drinks. After Waddell and the defendant finished some chores at a nearby furniture store, the defendant announced that he was returning to Myrt's to get something else to drink.

Dean Herrell arrived at the furniture store just before the defendant returned at about 6:30 P.M. At that time, the defendant carried his beige jacket under his arm. Each of the three then took hits of LSD. Before the defendant left with Herrell, Waddell arranged to pick him up at an apartment. When Waddell arrived, he noticed that the defendant had dark spots on his jeans which appeared to be blood. The defendant changed clothes when they arrived at his residence. Waddell also heard the furnace door open and close when the defendant went downstairs.

Waddell and the defendant passed by Myrt's Package Store after they left the residence. When Waddell saw police cars and asked what was going on, the defendant said, "I think I've hurt J.D. (Chapman). Me and J.D. got in a fight." When Waddell stopped for gas later, the defendant said he would pay and pulled out several bills, including 5's, 10's, and 20's. When asked where he had gotten the money, the defendant replied, "Darrell, I think I've killed Myrt." He then said, "She seen me getting into her money bag." The defendant told Waddell that Myrt had hit him on the head with a stick. After they attended an auction that evening, the defendant asked Waddell not to "tell on me.... If you don't tell nobody, nobody won't know."

Waddell then related that a handheld hatchet kept at a woodpile near the furniture store had disappeared between Sunday, March 24th, and Monday, March 25th. He testified that he had looked for the hatchet since then but had never found it.

Herrell said that he noticed a knot on the defendant's head when he arrived at the furniture store on the afternoon of March 25th. After Herrell gave the defendant a ride, the defendant paid for his gas. He saw the defendant throw the vest jacket he carried underneath his arm into a dumpster. Herrell said that he detected brown splotches on the defendant's pants. After he threw the jacket into the trash, the defendant told Herrell he thought he had killed someone. After Herrell dropped the defendant off, he noticed a one and one-half foot long hatchet left on the floorboard of his car. It was stained by the same brown color on the defendant's pants. Herrell threw the hatchet into a lake but never told anyone about it until the day of the trial. Herrell admitted to a drug addiction and sought treatment several months after the incident.

Detective Mike Lett, after conducting interviews of certain witnesses, found the defendant's shirt and vest in the trash dumpster. After acquiring a search warrant for the defendant's residence, he searched the ashes of the defendant's furnace. He found several metal pieces which could have come from burned jeans.

A serologist who made an analysis of the shirt and vest found blood stains consistent with that of both the defendant and the victim. He found blood on the victim's glasses which was consistent with that of both the victim and the defendant.

A metallurgist testified that the metal pieces from the ashes were rivets and fasteners similar to those used in the garment industry to make jeans.

The defense presented three witnesses. Charles Cox testified he saw a blue truck parked at Myrt's Package Store on March 25th. The time was established at 6:00 to 6:15 P.M. by Bernice Nance.

The defendant's mother testified that she usually obtained the clothes she wore at yard sales or from donations. She said she commonly burned any clothes that she could not use in her basement furnace.

I

The defendant was successful in suppressing statements he provided to the investigating law enforcement officials. The trial court ruled that the state did not carry "its burden of proving that the defendant waived his right to counsel and gave an intelligent, knowing, and voluntary statement." The state did not appeal the ruling.

The defendant argues that the search warrant issued for and executed upon his residence was based upon the involuntary pre-trial statement. The items taken from the furnace, he contends, were "fruits of the poisonous tree." See Wong Sun v. U.S., 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The defendant submits that there was insufficient untainted evidence upon which to issue the search warrant. See U.S. v. Smith, 730 F.2d 1052, 1056 (6th Cir.1984).

The affidavit upon which the search warrant was issued provides as follows:

On March 25, 1985, I examined the scene of the killing of Myrtle Chapman at Myrt's Package Store on Clinton Highway. Copious amounts of blood were at this scene. Upon further investigation, I interviewed Jerry Neal Carpenter and Darrell Waddell. Carpenter gave a statement in which he admitted killing Myrtle Chapman. Carpenter stated that he disposed of certain bloody clothes and bloody boots which he had been wearing at the time of the killing at the residence at 208 Black Oak Drive. Darrell Waddell to whom Carpenter confessed, confirmed the disposal of these clothes at this residence. I have shown copies of Carpenter's and Waddell's written statements to the above signed judge.

The defendant asserts that a reasonable redaction of the defendant's statement provides an insufficient basis for the search warrant. The state's redacted proffer is as follows:

On March 25, 1985, I examined the scene of the killing of Myrtle Chapman at Myrt's Package Store on Clinton Highway. Copious amounts of blood were at this scene. Upon further investigation,...