State v. Delk

• Decision Date: 08 January 1985
• Docket Number: No. 83-237-III,83-237-III
• Citation: 692 S.W.2d 431
• Parties: STATE of Tennessee, Appellee, v. Sam DELK, Appellant.
• Court: Tennessee Court of Criminal Appeals

Page 431

692 S.W.2d 431

STATE of Tennessee, Appellee, v. Sam DELK, Appellant.

No. 83-237-III

Court of Criminal Appeals of Tennessee at Nashville.

Jan. 8, 1985.

Jerry L. Smith, Asst. Atty. Gen., Nashville, Douglas Bates, Dist. Atty. Gen., Centerville, for appellee.

William P. Redick, Jr., Lionel R. Barrett, Jr., Nashville, for appellant.

OPINION

DAUGHTREY, Judge.

The defendant, Sam Delk, was convicted of the second degree murder of Harry Gipson and was sentenced to 10 years in prison. On appeal, Delk alleges that the circumstantial evidence used to convict him was insufficient, that he should have been allowed to inspect the notes of a TBI agent, that the jury panel was not impartial, that certain evidence was improperly admitted at trial, and that he should have been allowed to introduce the results of a lie detector test and of a "truth serum" interview. We find no reversible error in connection with these issues and, accordingly, we sustain Delk's conviction.

The evidence adduced at trial showed that Harry Gipson, the owner of Gipson's Wayside Grocery in Centerville, was killed by a gunshot that penetrated his heart and lungs. When his body was found inside the market shortly after 6:00 p.m. on November 12, 1975, the victim had $501 in his pocket, and the open cash register drawer contained $600. Additionally, the register had last recorded a fifty cent transaction, and the store's telephone was found dangling off the hook.

The testimony given at a previous trial by Burford Hornby, now deceased, was read to the jury. In that testimony, Hornby claimed that he had left the grocery at exactly ten minutes before six on the evening of the murder. When he left, only 13-year-old Sydney Pigg remained in the store with Gipson. Moreover, as he departed, Hornby saw no one else on Columbia Avenue in front of the market.

Sydney Pigg testified that he visited the store that night for 15-20 minutes and left approximately five minutes after Mr. Hornby did. When Pigg left, Mr. Gipson was the only person in the market. As Pigg walked home from the grocery, he observed defendant Sam Delk walking toward him on the opposite side of Columbia Avenue. The two neighbors greeted each other but continued on their respective ways. Later, when he glanced back toward Delk, Pigg saw the defendant cross the street and walk toward Gipson's Wayside Grocery.

Louise Chavers lived in the second building south of the victim's store on Columbia Avenue. When her clock was "straight up and down" at 6:00 on the evening of the murder, she exited from her back door, crossed her yard, and called her tenant, a Mr. Small, to supper. Small lived in another of Louise Chavers's buildings, next to the market. Chavers testified that she saw no one else in the area at that time. After returning to her home, she turned off the stove and heard a car horn blow from across the street. Looking through her front door, Chavers saw Floyd Stone and Charles "Goon" Gilbert at the home of another neighbor, Vodrine Walker.

From the Walker residence, Stone and Gilbert drove around a horseshoe-shaped drive and stopped where the drive ended at Columbia Avenue, just across from Gipson's grocery. From there the men could see a body lying in the store, and they went to investigate. After searching the store for four to five minutes, according to Stone, the men telephoned the police. The police dispatcher testified that the call was received at approximately 6:09 p.m.

Sheriff Frank Atkinson testified that he timed witness re-enactments of the events of the evening of November 12, 1975. From the time Sydney Pigg left the grocery until his encounter with the defendant, 35 seconds elapsed. Forty-five seconds were required to retrace the path that the defendant took from where he spoke to Pigg to the market. It took Louise Chavers one minute and 17 seconds to leave her kitchen, walk to Mr. Small's lodging, return to her home, and reach the front door to look out toward Vodrine Walker's house. Finally, one minute and 50 seconds were necessary for Stone to pick up "Goon" Gilbert at the Walker home, drive around to Columbia Avenue, and enter the grocery.

Atkinson also interviewed the defendant the night after the murder. From him, the sheriff first learned of Delk's exchange of greetings with Sydney Pigg and of Louise Chavers's trip to her tenant's lodging to call Mr. Small to supper.

The defendant also told Sheriff Atkinson that, after seeing Pigg, he entered the market to purchase cigarettes and matches. The cigarettes cost 50 cents and the matches two cents. The bill was paid with a five dollar bill and he received $4.48 in change. The defendant claimed that Mr. Gipson talked on the telephone for the entire 30-45 seconds that the defendant was in the store.

The defendant stated further that after leaving the grocery, he walked past Louise Chavers's home and saw her walking toward Mr. Small's quarters. He thought Chavers had also seen him, and he heard her call Small for supper. Passing the Chavers residence, the defendant then continued down Columbia Avenue to Harry Gipson's tavern, which he entered at approximately 6:05 p.m.

The state attempted to discredit the defendant's account of the occurrences of the night of the murder through the testimony of several witnesses. A number of neighborhood residents testified that the defendant did not usually enter the grocery. Rather, because he owed Mr. Gipson for a six-pack of beer and for damage done to a door of the Gipson tavern, they said that the defendant ordinarily would wait outside the store and give money to other individuals to purchase the necessary supplies from the market.

Furthermore, witnesses were offered to support the state's theory that the killer did not flee the scene via Columbia Avenue. Instead, Sheriff Atkinson theorized that the murderer left the grocery by traveling between the store and Mr. Small's quarters and then through a wooded ravine behind the Chavers's property to the tavern.

Atkinson testified that when re-enacting the events of November 12, 1975, he could not hear Louise Chavers call to Mr. Small from the spot where the defendant claimed to have been. The Sheriff could, however, hear the dinner call while standing near that pathway between Mr. Small's residence and the grocery. Moreover, the sheriff testified that mud found on a wooden fence in the ravine indicated that someone had crossed the gully near the time of the killing.

Other evidence introduced by the state to bolster its theory included the testimony of sisters Melva Vanessa (Sweety) Campbell and Phyllis Campbell Price. At the time of the murder, the Campbells lived behind and to the north of Gipson's Wayside Grocery. At approximately 6:00 p.m. on November 12, 1975, the Campbell's dog, Trixie, began barking as if someone were walking nearby. On cross-examination, however, the sisters testified that Trixie barked only at strangers and had never barked at the defendant, who was a frequent visitor at the Campbell home.

Rose Clayborne testified that she lived between Centerville and Dickson, approximately one-half mile from the Duck River Bridge. Before she went to bed at 11:30 p.m. on November 12, 1975, Clayborne looked out her window and saw nothing out of the ordinary in her yard. When she awoke the next day between 8:30 and 9:00 a.m., however, she found papers scattered over her property. A closer examination of the material indicated that the papers included both personal and business information of Harry Gipson.

Cheryl Weaver and Martha Dansby Elliott testified that they drove from Dickson to Centerville with the defendant's twin brother, Dan Delk, on the evening of Harry Gipson's murder. That night, Dan and the defendant played cards at the Piggs' home before leaving to pick up a friend from work at the Genesco Plant. When the two women and Dan Delk drove back to Dickson later that night, Dan momentarily swerved off the right side of the road onto the shoulder before righting the car. Although later testimony showed that Dan Delk swerved near the property of Rose Clayborne, Cheryl Weaver, Martha Elliott, and Dan Delk all stated unequivocally that Delk threw nothing out of the car that night and that no one opened the car windows or doors anywhere along the road. Elliott did testify, however, that Delk "pushed" against the taped vent window.

Additional trial testimony was offered by Ulysses Gipson, the victim's brother. He testified that the defendant had come to the store at about noon on the day of the murder and had stood outside the market until approximately 2:00 p.m. Also, Fred Stone testified that some time before the murder but after the defendant had damaged the tavern door, Stone had said jokingly, "Man, if y'all don't quit breaking people's doors, somebody is going to be kicking your behind and put a knot on your head." Stone said Delk responded that "that goes two ways."

The defendant denied that he killed Mr. Gipson or that he owned or used a handgun at the time of the murder. He claimed further that he had no reluctance to enter the store and had no hard feelings toward Harry Gipson. Both Sam and Dan Delk denied that any papers were passed between them on the night of the murder.

Finally, state's witness Wright Fowlkes testified that the defendant was in Gipson's tavern when the news of Harry Gipson's death was announced. Like the other people present at the time, the defendant reportedly mourned at the news and went to the store with the others to watch the occurrences there. Fowlkes claimed further that when the defendant first entered the tavern that night, he looked "lonely" but was not perspiring or out of breath.

Based upon this controverted circumstantial evidence, the jury convicted the defendant of second degree murder. Of course the trial judge had instructed the jury on the law of circumstantial evidence and on the heavy burden of proof in a case composed entirely of circumstantial...