State v. Shepherd

• Decision Date: 30 May 1995
• Citation: 902 S.W.2d 895
• Parties: STATE of Tennessee, Appellee, v. Joseph Arlin SHEPHERD, Appellant.
• Court: Tennessee Supreme Court

Page 895

902 S.W.2d 895

STATE of Tennessee, Appellee, v. Joseph Arlin SHEPHERD, Appellant.

Supreme Court of Tennessee,

at Knoxville.

May 30, 1995.

Rehearing Denied Aug. 21, 1995.

Charles W. Burson, Atty. Gen. & Reporter, Christina S. Shevalier, Asst. Atty. Gen., Nashville, for appellee.

Charles M. Corn, Cleveland, Reed Dixon, Sweetwater, Brock Mehler, Capital Case Resource Center, Nashville, for appellant.

OPINION

O'BRIEN, Justice.

Joseph Shepherd was charged in an 11 count indictment by the Monroe County Grand Jury. As relevant in this case he was charged with the murder of sixteen year old Roxanne Woodson during the commission of a felony; charged with premeditated murder of Roxanne Woodson, and charged with the aggravated assault of two Monroe County law enforcement officers. He was found guilty of felony murder in the commission of rape in Count 1 and sentenced to death. He was found guilty of aggravated assault in Count 9 and sentenced to not less than two (2) nor more than five (5) years in the State penitentiary.

On this appeal appellant has raised 16 issues the majority of which pertain to the guilt phase of the proceeding. Due to error in the sentencing process it is necessary for this Court to remand for sentencing. As a result we review the evidence to establish its sufficiency, and respond only to those issues which we conclude might have affected the outcome of the guilt proceedings.

The trial in this case occurred in April, 1991. At the trial Frankie Harris and his cousin, Charles Bovard, testified to the events that had occurred on 27 February 1978, 13 years before, when Roxanne Woodson disappeared. Harris, who was 15 years of age in 1978, had been Roxanne's boyfriend. About dusk on that day, Roxanne, Frankie, Charles, then 13, and his 16-year-old brother, Wilbur Bovard, were gathered in the Bovard's yard on Old Federal Road in Monroe County when the defendant, a 25-year-old acquaintance of Harris and his cousins, drove up in his car and asked the teenagers if they wanted to ride around. After Roxanne received her father's permission to go, the group drove to the home of the grandfather of the Bovards in Mt. Vernon so that Wilbur could telephone his girlfriend, Judy McDaniel, and ask her to join them. According to Charles, while Frankie and Wilbur went inside to make the phone call, defendant took a large hunting knife from under the car seat and, after playing with it for a while, brushed Roxanne across the breast with the weapon. About that time Frankie and Wilbur returned to the car with some pills ¹ and the party proceeded to Tellico, where they picked up Judy McDaniel.

The group then drove to a steel bridge over the Tellico River where they sat and talked for a few minutes. About 8:00 p.m., Judy and Wilbur began to quarrel and decided to walk back to town. They told the defendant to pick them up later. The remaining members of the group decided to drive back to Tellico. When they reached Tellico Beach, however, defendant turned up Old Furnace Road. After driving about a mile defendant stopped the car and approached Roxanne about having sex with him. When she refused, defendant persisted for several minutes. Roxanne continued to rebuff him. According to Charles Bovard defendant then leaped into the back seat, where Roxanne was sitting with Frankie, and wrestled with her until everyone got out of the car. Frankie calmed Roxanne down, who was crying and hysterical. Defendant walked up to Roxanne with a pistol and told her, "if you don't shut up, I'm going to blow your brains out." ² After the boys convinced Roxanne to get back into the car they drove further up the mountain and stopped the second time in an area that had been clear cut during logging operations.

Frankie Harris testified that it was at this second stop, not the first place, that the defendant assaulted Roxanne and pulled the gun. This witness also testified that the defendant demanded sex from Roxanne while the gun was drawn but that she again refused. Both Frankie and Charles testified that after they parked on the roadside the second time, the two of them had gotten out of the car to use the bathroom. Defendant also left the car and asked the boys to walk down the road "a little bit" while he talked with Roxanne to calm her down so she would not "call the law" on him. Frankie and Charles walked a short distance down the road, relieved themselves and returned in about five minutes. During this time Charles heard the sounds of a scuffle and Roxanne say, "you son of a bitch."

When the two (2) boys returned to the car, neither the defendant nor Roxanne was in sight. About a minute later, defendant came running out of the woods and told them that Roxanne had thrown a comb at him and "run off." The three called for Roxanne and searched for her along the road in the direction in which Frankie and Charles had gone to use the bathroom. After getting back into the car, they continued their search as they drove down the mountain by calling Roxanne's name and stopping occasionally. They also asked a man at the only house on the road if he had seen a girl walk by. He replied that he had not. ³ The three continued back toward Tellico and picked up Wilbur and Judy. After dropping Judy off in town the four (4) boys returned to the mountain, called for Roxanne, but received no response. Defendant took the boys home and told them he would go back to look for Roxanne. He admonished them to keep quiet about what had happened.

The next day, after Roxanne's father came to the homes of Frankie and Charles looking for his daughter, a massive search began for the missing girl. During the search a bloodhound was taken to the spot where the defendant had stopped the car the second time. After taking a scent from an article of Roxanne's clothing, the dog tracked a path from the area where the car had been parked to a brush pile about 100 yards away. No trail was found away from the brush pile in any other direction. Searchers noticed an indentation in the pile and evidence that the brush had been disturbed.

On the evening of 28 February 1978, deputy Bill Bevins and Officer Marshall Hendricks went to the home of Shepherd's parents in Tellico, where the defendant lived, to talk with him about Roxanne's disappearance. During their visit he agreed to show the officers where he had last seen her and went into his bedroom to put on his shoes and coat. Deputy Bevins could hear defendant cursing and talking to himself while he was in the bedroom, saying, "I'm getting goddamn tired of being aggravated by these sons of bitches about these damn whores." Defendant then came out of the bedroom holding a single-shot .12 gauge shotgun. Hendricks pushed Bevins into the kitchen, drew his revolver and shot at the defendant, who was immediately disarmed and restrained by his parents. The officers called for help and defendant was taken into the custody of the Monroe County Sheriff's Department. ⁴ The next day Deputy Graves took the defendant to the location where Roxanne was last seen. Defendant participated in the search that day, but a day or two later he disappeared. He was not seen again by authorities until 29 March 1978 when he was arrested on a fugitive warrant in Gastonia, North Carolina. He was found hiding in some quilts at the home of his former wife's parents. He declined to waive extradition and remained in North Carolina.

On 8 April 1978 defendant's parents summoned authorities to their home where Roxanne Woodson's body was discovered in a shallow grave in an area where junk was scattered, approximately 100 feet from their home. Early spring vegetation was growing from the grave which had been covered with a car seat. Her hands, which were described as gnarled and weathered, and her half-eaten toes were protruding from the ground. Upon exhumation, her putrescent body was found lying on its back with a denim jacket wrapped around her head. The upper torso was clad in a shirt and bra. Except for socks on the feet, the body was nude from the waist down. A pair of rust colored pants and pink panties lay on or next to the body and her shoes had been placed beside each knee. The garments found with the body matched those Roxanne had worn the night of 27 February. Frankie Harris testified that she had been fully clothed the last time he saw her. Dr. William Elliott, a pathologist who performed the autopsy on the body, testified that it had been in the ground several weeks when it was found.

TBI agent Wayne Atkins and Deputy Joe Graves of the Monroe County Sheriff's Department went to North Carolina to talk with the defendant, who at first claimed someone had put the body where it was found to make him "look bad." Eventually, however, defendant admitted to burying Roxanne but not to killing her. He confessed that on the night of Roxanne's death he had gone back to the car to see if he could "get him some" while Frankie and Charles went to the bathroom. He said that Roxanne had relented and agreed to have sex with him and had started to pull down her pants but that he had decided he wanted nothing to do with her after "all the hassle he had been through." He claimed to have gotten out of the car to call for Frankie and Charles when Roxanne left the car and, after running about 8 or 10 feet, fell and hit her head "on a rock or something." He said that he checked for a pulse. (At this point the two (2) accounts of the defendant's statement disagree. Deputy Graves testified that defendant said he found no pulse in the victim. Agent Wayne Adkins related that defendant said he felt a pulse but could get no other response from her.) Defendant also claimed he had covered Roxanne's face and body with a blue jean jacket to keep her warm. He told the officers he had then run up and down the hill so he would appear breathless when he returned to the car where Frankie and Charles were. He related how he told the boys that Roxanne had become upset and run...