State v. Hurley

• Decision Date: 05 April 1993
• Parties: STATE of Tennessee, Appellee, v. Randy Dwayne HURLEY, Appellant.
• Court: Tennessee Supreme Court

Page 57

876 S.W.2d 57

STATE of Tennessee, Appellee, v. Randy Dwayne HURLEY, Appellant.

Supreme Court of Tennessee at Knoxville.

April 5, 1993.

Order Granting Petition to Rehear

Aug. 30, 1993.

Opinion on Denial of Rehearing

April 11, 1994.

Suzanna W. Laws, Dandridge and Douglas R. Beier, Morristown, for appellant.

Charles W. Burson, Atty. Gen. & Reporter and Rebecca L. Gundt, Asst. Atty. Gen., Nashville, for appellee.

OPINION

O'BRIEN, Justice.

Defendant, Randy Dwayne Hurley, appeals from his conviction for first degree murder of Daniel R. "Sarge" West. He was found guilty of premeditated first degree murder, and of felony murder. He was also convicted of armed robbery. He was sentenced to death on each of the murder charges and to a consecutive sentence of 12 years for armed robbery.

On the morning of Friday, 15 April, 1988, the defendant and West left defendant's trailer on 9th Street in Newport, Tennessee, to work on a well at defendant's house in Keener Hollow, off Middle Creek Road, in Cocke County. Sarah Proctor, at that time defendant's girlfriend, arrived at the Keener Hollow location around 4:50 p.m. West and the defendant were still there. Thirty or forty minutes later Proctor left at defendant's request. He asked her to pick him up on Rocky Top, a remote mountain area a short distance away, near the home of defendant's uncle and grandfather. About dusk Proctor picked defendant up at the intersection of Rocky Top and Pond Roads and took him to his trailer on 9th Street in Newport.

Regina (Northern) Hayes, another of defendant's girlfriends, who lived in the 9th Street trailer, testified that defendant arrived at the trailer around dusk on 15 April 1988. He asked her to wash his army jacket for him. She added the jacket to a load of jeans already in the washer. Turning from the washer she noticed he was smiling and inquired about the reason. Defendant replied, " 'Sarge' is dead." He told her that, while he and West were at the Keener Hollow house, he told West "to go for his gun" and "to say his last prayer." When West went for his gun [West customarily carried a .375 Magnum pistol in his truck] defendant "blowed his head off" with a "punkin ball." He also told Hayes that he had gotten "60 something dollars" off West. Defendant instructed Hayes to tell the sheriff's officers that he had given West $600 and that West had written him a receipt for that amount. Hayes also testified that defendant told her he and Sarah drove West to Rocky Top after he was shot and burned him up in his truck.

On Sunday, 17 April 1988, West's badly charred remains were discovered in his completely burned Toyota truck on a logging road in a desolate area on Rocky Top Mountain. The hands on West's watch had stopped at 8:07 p.m. Dr. Clellan Blake, a State forensic pathologist, testified that he found a single rifle slug called a "punkin ball" with wadding from a shotgun shell in the center of West's brain. The doctor opined that the cause of death was a shotgun wound to the front or front side of the head.

On 19 April 1988 law enforcement officers stopped and questioned Proctor and the defendant in the driveway of the house in Keener Hollow. At this time defendant gave officers a receipt dated 15 April 1988 for $251 received by West from him, and bearing West's signature. On this occasion the officers also found a live .20 gauge shotgun shell in Proctor's purse. The wadding and slug from the shell were similar to that found in the victim's brain. Proctor testified at trial she "assumed" the unfired round was defendant's property. She had earlier claimed it was her father's and had tried to get a friend to say it belonged to him. During a search of defendant's house on 19 April the officers discovered a freshly oiled .20 gauge shotgun.

Defendant argues two (2) issues collectively saying first the evidence was insufficient to support a conviction under the Winship ¹ standard on the felony murder count and secondly, that the weight of the evidence was insufficient to support the jury verdict. Defendant's argument is founded on the credibility of the testimony of witness Regina (Northern) Hayes, which he says was severely impaired by evidence of her ill will and threats against him. He points out, correctly, that Hayes testimony is the only evidence of a robbery of the victim. He argues that he was convicted upon circumstantial evidence while conceding that such evidence can be the sole basis for a conviction. His argument on the weak nature of the testimony of Regina Hayes does not survive the rule on the sufficiency of evidence test which applies in this State. The jury heard the testimony of Ms. Hayes as well as that of the defense witnesses who were presented in an effort to impeach her testimony. The weight and credibility of testimony of witnesses, and reconciliation of conflicts in the testimony, are matters entrusted exclusively to the jury as the triers of fact. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn.1984). The jury resolved the issue of Ms. Hayes credibility as to the robbery of the victim as well as the commission of the homicide by their verdict. The issue is without merit.

There was other evidence introduced, in addition to that related heretofore, which led unerringly to defendant as the person responsible for the homicide of Dan West. Notwithstanding defendant's insistence to the contrary, the weight of the evidence adduced at trial, was sufficient to support the jury verdict and any reasonable trier of fact could have found guilt beyond a reasonable doubt based upon the evidence in the record. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); T.R.A.P. 13(e).

In conjunction with the foregoing complaint, in reference to the sufficiency of the evidence, defendant submits that the trial court erred in admitting letters from him to his wife which were protected by the marital privilege. He cites several authorities, including Tennessee Rules of Evidence; and T.C.A. §§ 24-1-201, 14-25-106.

Tennessee Rule of Evidence 501, in effect at the time of defendant's trial in May, 1990, states that: Privileges are to be recognized only as provided. The rule sets out that except as otherwise provided by constitution, statute, common law, by these or other rules promulgated by the Tennessee Supreme Court, no person has a privilege to:

(1) Refuse to be a witness;

(2) Refuse to disclose any matter;

(3) Refuse to produce any object or writing; or

(4) Prevent another from being a witness or disclosing any matter or producing any object or writing.

Rule 501 left in place T.C.A. § 24-1-201 which speaks of spousal competency to testify in civil actions. Therefore that statute is excluded from our consideration except, so far as the language it contains may assist us in determining the extent of spousal or competency privilege in criminal cases. In pertinent part, the statute provides that a husband and wife shall be competent witnesses, regardless of the disabilities of coverture, though neither husband nor wife shall testify as to any matter that occurred between them by virtue of or in consequence of the marital relation.

T.C.A. § 14-25-106, referred to in defendant's brief, relates to public welfare programs and services for abused persons and is now found at T.C.A. § 71-6-106. It provides for compelled testimony in such cases and has nothing to do with criminal trials. The advisory commission comment to Evidence Rule 501, includes an appendix containing statutes and rules governing privileges. It makes reference to the case of McCormick v. State, 135 Tenn. 218, 186 S.W. 95 (1916), for the rule in criminal prosecutions.

Prior to the adoption of the Rules of Evidence, T.C.A. § 40-17-104 provided that in all criminal cases, the husband or the wife were competent witnesses to testify for or against each other. The forerunner of this statute was the Acts of 1915, Chapter 161. Over the years since that time the cases have held that the statute did not abrogate the rule as to privileged, or confidential communications between husband and wife. Generally they have held that neither husband nor wife are permitted, over objection, to testify, in criminal cases, as to any matter occurring between them by virtue or in consequence of the marital relation, nor as to any confidential communications between them. See McCormick v. State, supra; Crane & Co. v. Hall, 141 Tenn. 556, 213 S.W. 414 (1919); Cavert v. State, 158 Tenn. 531, 14 S.W.2d 735 (1929). T.C.A. § 40-17-104 was repealed by Chapter 273, Sec. 33, Public Acts, 1991. The caption to Chapter 273 states that it is an Act to amend various sections of Tennessee Code Annotated to conform such sections to the Tennessee Rules of Evidence and other rules promulgated by the Tennessee Supreme Court. In view of this it becomes apparent that, at the time of defendant's trial, there was not any constitutional or statutory provision in reference to spousal testimony in criminal cases, leaving us to look to the common law of this State for guidance. A study of the early decisions leaves no other conclusion than that, in company with many of our sister states, Tennessee courts adopted, in criminal cases, a hybrid combination of the ancient common law rule barring interspousal testimony on one hand, and the marital privilege in civil cases, established by statute, on the other.

Prior to the enactment of the Evidence Amendment Act of 1853 in England, which abolished the testimonial disqualification of husbands and wives, ² the law was that neither husband nor wife was a competent witness for or against the other. The reasoning being that husband and wife were one. Although there was some discussion of the matter in legal circles about that time, it appears that the English Act of 1853, enacted the first marital privilege legislation to the effect that "no husband shall be compellable to disclose any communication made to him by his wife during the...