State v. Clifton

• Decision Date: 10 March 1994
• Citation: 880 S.W.2d 737
• Parties: STATE of Tennessee, Appellee, v. Joe Wendell CLIFTON, Appellant.
• Court: Tennessee Court of Criminal Appeals

Page 737

880 S.W.2d 737

STATE of Tennessee, Appellee, v. Joe Wendell CLIFTON, Appellant.

Court of Criminal Appeals of Tennessee,

at Knoxville.

March 10, 1994.

Permission to Appeal Denied by

Supreme Court June 20, 1994.

Jerry H. Summers, Jeffrey W. Rufolo, Chattanooga, for appellant.

Charles W. Burson, Atty. Gen., and Amy L. Tarkington, Asst. Atty. Gen., Nashville, Gary D. Gerbitz, Dist. Atty. Gen., and Rodney Strong, Asst. Dist. Atty. Gen., Chattanooga, for appellee.

OPINION

TIPTON, Judge.

The defendant, Joe Wendell Clifton, was convicted in a jury trial in the Hamilton County Criminal Court of criminally negligent homicide, a Class E felony. He was sentenced to two years, granted unsupervised probation for all but twenty-eight days, ordered to perform one hundred days of community service, and ordered to pay restitution in the amount of four thousand eighty-seven dollars, the amount proven to be the victim's funeral expenses. He appeals as of right, contending (1) that the evidence was not sufficient to convict him for criminally negligent homicide and (2) that the trial court erred in requiring him to serve twenty-eight days in confinement.

The case relates to the defendant guarding the Quick Cash Pawn Shop on the night of November 29, 1990, when he shot and killed Joe Tommy Duffy, Jr. The victim was found dead on the morning of November 30, 1990, lying in an open drainage ditch behind the pawn shop.

Walter Parson testified that his wife, Ann, owned the pawn shop since 1986. Parson testified that there had been numerous break-ins and thefts at the shop until he began spending nights at the shop sometime in 1987. He hired the defendant to spend the night at the shop on three or four nights during the two weeks preceding the incident in question. Parson admitted that he only knew the defendant by his first name, but hired him on Parson's son-in-law's recommendation. He said that he kept a refrigerator and a microwave oven in the back of the shop for whoever stayed. He acknowledged that he provided a loaded handgun for the defendant's use when the defendant stayed in the shop.

The shop building spans a drainage ditch which is uncovered except under the road and the shop. The building is made primarily of twelve-inch concrete blocks. A shed, which Parson said was unused, is attached to the rear of the building beside the ditch. The shed was apparently sealed from the outside with tin siding on the outside of pressboard. An entrance way between the shop and the shed is sealed with plywood which forms an internal wall in the shop against which a refrigerator and a large metal safe were placed. Inside the shed was a pressboard or plywood panel blocking access to the plywood wall of the shop.

Mr. Parson testified that the defendant called him at home around 10:00 p.m. on the night of the 29th. The defendant told Parson that somebody was breaking into the back and that he could hear them talking. Parson said that he told the defendant to shoot a couple of rounds into the building where they could hear it in order to scare them away. In his testimony, Parson indicated that he did this knowing that the building was made of concrete blocks. Parson did not tell the defendant to call the police. He said that the defendant's voice was trembling and that the defendant was scared.

The Parsons arrived at the shop around thirty minutes after the defendant's call. Mr. Parson and the defendant went behind the shop with a flashlight. Parson said that they went into the shed through a hole where the tin and pressboard had been pulled or torn away. They saw nothing else and returned to the shop. The Parsons returned home without calling the police.

The next morning somebody came into the shop and told them that a body was lying in the ditch. It was at this point that Mr. Parson called the police. Chattanooga Police Officer Charles C. Hass found the victim's body in the drainage ditch behind the shop. He said that it was evident that the body had been there for several hours. No weapon was found around the victim. Officer Hass asked the defendant what had happened. Officer Hass testified that the defendant said that he heard metal being pulled away and heard at least three voices. The defendant said that he yelled at the people, but continued hearing tin being torn away. The defendant stated that he did not know what to do and he called Mr. Parson. The defendant told Officer Hass that Parson told him to fire shots into the building in order to scare the people. The defendant said that he fired a couple of shots, heard no more noise and did not investigate any further. Officer Hass acknowledged that the shop was in a high crime area and that he had previously responded to two or three burglary calls involving the shop.

Mr. Parson testified that the panel in the shed near the plywood wall had been pulled away. He stated that the plywood wall was knocked in toward the refrigerator, although he admitted that he had not told this to the police. Also, he said that the refrigerator was on rollers and could be moved.

Both the police and Mr. Parson had photographs of the scene made. They reflect one bullet hole in the ceiling of the shop, another in the concrete block above the plywood wall and over the safe, and a third in the plywood over the refrigerator. Also, there was a hole in the panel found in the interior of the shed which Chattanooga Police Detective Dennis Pedigo attributed to the same bullet which penetrated the plywood wall and killed the victim.

Detective Pedigo testified that he investigated the case. He said that he did not recall seeing any damage to or indications of prying or loosening of the plywood wall by the refrigerator. He identified various photographs of the inside of the shop and the shed. The bullet hole above the refrigerator entered the plywood at a height of sixty-eight and one-half inches above the shop floor and exited the plywood into the shed at approximately the same height from the floor of the shed. Detective Pedigo testified about using a string to connect the hole in the plywood with the hole in the interior panel of the shed in such a fashion as to indicate that the plywood changed the direction of the bullet to a downward path into the shed. He identified a picture which included the defendant standing at the spot from which he fired the fatal shot, as reported by the defendant to Pedigo. It shows the defendant to be some distance from the refrigerator, perhaps ten feet or more, and the bullet hole to be a matter of inches above the refrigerator.

Detective Pedigo conducted a taped interview of the defendant on the day the victim's body was found and the recording was played for the jury. In the interview the defendant said that he was lying in bed in another room watching TV when he heard "beating and hammering." He said he called Mr. Parson who told him to shoot "up high ... in the wall" to try to scare them off. He said he was scared and afraid that they were going to come into the shop. He said that he picked up a pistol and shot two times and waited a few minutes. He said he then heard talking by two voices and that the beating started again. He said that they were "really hammering and beating" when he shot the last time and that he was scared. He said that he could tell that "they" were up against the plywood where the refrigerator was sitting. The defendant acknowledged that he did not call the police, but he did not believe there would have been time for the police to get there. After the third shot, he did not hear any more noise. He said that when the Parsons arrived, he and Mr. Parson went out with a flashlight to investigate. Also, he said that Mr. Parson had previously told him that there had been several break-ins at the shop.

Dr. Frank King, the medical examiner, testified that the bullet entered the victim's right front chest "at 52 inches above the heel" on a downward path and separated into two pieces. The damage to the heart and aorta were such that death would result regardless of when treatment could have been received. Dr. King stated that the victim would have lost consciousness within five minutes of receiving the wound and that death would have occurred within thirty minutes. Tests reflected that the victim's blood alcohol content was between .16 and .18 percent and that trace amounts of several prescription drugs were present.

The defendant did not testify. However, Sammy Durham was called by the defense to testify regarding his being with the victim behind the pawn shop on the night in question. Although stating that he relied upon his privilege against self-incrimination, Durham agreed to answer questions regarding the taped interview he had with Detective Pedigo on December 1, 1990. In essence, Durham gave his account of the events. He said that he was a friend of the victim's family and that he and the victim had been out drinking. He said that he drank beer and liquor and that they went outside to smoke marijuana. When a car passed, they went behind the building. The bar is next door to the pawn shop. He said he was sick and throwing up when the victim jumped across the drainage ditch. He testified that he heard tin and said that the victim was standing on it. He denied telling Detective Pedigo that the victim was pulling tin from the shed.

Durham indicated that they smoked marijuana behind the shed. He said that his uncle is Sonny Boy Francis, who had worked for the Parsons at the pawn shop, spending the night. He said he might have mentioned this to the victim. He stated that he saw a hole in the shed and that the victim wanted to see what was in it. He said that the victim "no sooner stepped in there than a pop went off." He testified that the victim came out fast, ran around some trees, and slid into the ditch. He denied knowing that the victim was shot and thought the victim continued to run. He said he ran to the other side of the bar,...