State v. Walker

• Decision Date: 18 September 1995
• Citation: 910 S.W.2d 381
• Parties: STATE of Tennessee, Appellee, v. Tommy Joe WALKER, Appellant.
• Court: Tennessee Supreme Court

Page 381

910 S.W.2d 381

STATE of Tennessee, Appellee, v. Tommy Joe WALKER, Appellant.

Supreme Court of Tennessee,

at Knoxville.

Sept. 18, 1995.

Charles W. Burson, Attorney General and Reporter, Rebecca L. Gundt, Assistant Attorney General, Nashville, for Appellee.

Mark E. Stephens, L. Jeffery Hagood, Keith Lieberman, Knoxville, for Appellant.

OPINION

CHARLES H. O'BRIEN, Special Justice.

On 2 August 1989 a presentment was returned by the Knox County Grand Jury charging defendant, Tommy Joe Walker, his brother, Ernest J. Walker, and his nephew, Danny Branam, with the homicide of Ms. Gladys Houston. Defendants were also charged with armed robbery, conspiracy to commit armed robbery and conspiracy to commit robbery. Subsequently, severances were granted at the State's request. Branam was tried separately and convicted of first degree murder, armed robbery and conspiracy to commit armed robbery. On appellate review this Court found the death penalty was disproportionate to Branam's participation in the offense and remanded for resentencing. ¹ The Court held that remand was also required to determine whether Branam's due process rights were violated by the prosecutions alleged withholding of evidence. Branam's case is now pending in the trial court. Ernest J. Walker's first trial ended in a mistrial because of the jury's failure to reach verdicts. At his second trial both defendant and the State were granted interlocutory appeals. The Court of Criminal Appeals held that it was error to exclude admission of a transcript of the testimony of Branam given at a new trial motion hearing in this defendant's case. The case was remanded and Ernest Walker subsequently submitted a guilty plea.

At a jury trial this defendant was found guilty of felony murder and sentenced to death. He received a 30 year sentence for armed robbery and was sentenced to 12 years for conspiracy to commit a felony with both sentences to be served consecutively to the death sentence imposed. He has appealed the judgment of the trial court on both the guilt phase and the sentencing phase of his trial.

The issues are stated in a fragmented fashion by defendant who first charges error to the trial court in admitting into evidence statements of co-defendants Danny Branam and Ernest J. Walker as statements of co-conspirators.

It is defendant's insistence that the statements of Danny Branam, three or four days after the homicide of Gladys Houston, to the effect that defendant shot the victim, as well as similar statements made by Ernest Jay Walker to Naomi Elliott after her husband's arrest in February 1989 and after his release from jail; as well as the taped recording of a conversation between Danny Branam and Naomi Elliott made on 5 March 1989 were not made during the course of and in furtherance of a conspiracy as excepted by Tennessee Evidence Rule 803(1.2)(E). Defendant's entire argument on this issue relies on federal authorities for analysis on the admission of these statements.

There are several misconceptions which must be clarified in order to place this case in its proper prospective. In defendant's brief an analogy is drawn between Federal Rule of Evidence 801(d)(2)(E) and Tennessee Rule of Evidence 803(1.2)(E). In Dutton v. Evans, 400 U.S. 74, 81, 91 S.Ct. 210, 215, 27 L.Ed.2d 213 (1970), the Court clearly analyzes the difference:

That the two evidentiary rules are not identical must be readily conceded. It is settled that in federal conspiracy trials the hearsay exception that allows evidence of an out-of-court statement of one conspirator to be admitted against his fellow conspirators applies only if the statement was made in the course and in furtherance of the conspiracy and not during a subsequent period when the conspirators were engaged in nothing more than concealment of the criminal enterprise. (Citations omitted). The hearsay exception that Georgia applied in the present case, on the other hand, permits the introduction of evidence of such an out-of-court statement even though made during a concealment phase of the conspiracy.

But it does not follow that because the federal courts have declined to extend the hearsay exception to include out-of-court statements made during the concealment phase of a conspiracy, such an extension automatically violates the Confrontation Clause.... merely because evidence is admitted in violation of a long-established hearsay rule does not lead to the automatic conclusion that confrontation rights have been denied. (Citing California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970)).

The evidence heard by the jury, including defendant's own admissions to various of the witnesses who testified, was sufficient to establish that he entered into a conspiracy, in combination with his brother and his nephew, to rob Gladys Houston, within the definition of the term conspiracy contained in T.C.A. § 39-1-601, et seq., repealed by Chapter 591 of the Public Acts of 1989. This statute provided in pertinent part that "the crime of conspiracy may be committed by any two (2) or more persons conspiring: (1) To commit any indictable offense.

The seminal question then is whether evidence of the recording between Danny Branam and defendant's sister, Naomi Elliott; statements made by the defendant to his sister and brother-in-law three or four days after the homicide; and the statements made by E.J. Walker to his sister, were made in consonance with the law in effect at that time.

Prior to the enactment of the conspiracy statutes, first noted in the Code of 1858, the law was plainly stated that a conspiracy is, in general terms, a combination of two (2) or more persons, by concerted action, to accomplish some criminal or unlawful purpose. Everyone entering into a conspiracy is a party to every act which has been done before by the others and to every act by others afterward, in furtherance of the common design. All acts or declarations of conspirators, or of any of them, may be given in evidence against all, from the time the conspiracy had its origin until its design has been consummated, or until it is abandoned. But the declarations or acts of one can not be admitted against another, unless the facts and circumstances warrant the conclusion that a conspiracy was existing at the time of such declarations or acts. Owens v. State, 84 Tenn. 1 (1885). (Tenn.1958).

The earliest and most complete reference to the law as it existed in that time is found in Sweat v. Rogers, 53 Tenn. 117, 120 (1871). The conspiracy charged in that case was that two (2) persons, at the instigation of the defendant, set fire to a storehouse, and stole and carried away the goods not consumed by the fire. The Court, citing Greenleaf, Vol. I, Sec. 111, as follows: "Care must be taken that the Acts and Declarations thus admitted be those only which were made and done during the pendency of the criminal enterprise and in furtherance of its objects. If they took place at a subsequent period, and are therefore merely narrative of past occurrences, they are, as we have just seen, to be rejected." This authority was cited with approval in Harrison v. Wisdom, 54 Tenn. 99, 108 (Tenn.1872). In Snowden v. State, 66 Tenn. 482 (1874), the defendant was put to trial in a presentment charging him and two (2) others in the larceny of three (3) head of cattle. A judgment of conviction was entered against him. At trial one of the three (3) confessed implicating all of them. The Court found that the larceny was already complete, and that the confessor was detailing a past transaction, even though the cattle may have not yet been sold. The Court ruled that "when the common purpose is at an end, whether by accomplishment or abandonment, no one of the conspirators is permitted by the subsequent act or declaration of his own to affect the others."

In State v. Crabtree, 655 S.W.2d 173 (Tenn.Cr.App.1983), the Court of Criminal Appeals noted that "a conspiracy may continue after the crime has been completed for, among other things, the concealment of the crime or to prevent witnesses from testifying." We conclude that this statement in Crabtree has been totally abrogated by the current statute, T.C.A. § 39-12-103, defining criminal conspiracy. The law on the subject of conspiracy at the time of the offenses in this case remains as set out in the cases we have cited herein.

Due to the manner in which this issue has been presented the Court finds it expedient to address the purported statements of co-conspirators in the sequence in which they were presented in court rather than the chronological order in which they occurred. Each of the statements objected to came in through the testimony of Naomi Elliott. The robbery and homicide which are the basis of the charges against this defendant occurred in July 1987. In March 1989 Ray Elliott, had been arrested as an accessory before the fact to the homicide of Mrs. Houston. After talking with counsel Mrs. Elliott agreed to go to the penitentiary and talk to Danny Branam, wearing a device to tape record their conversation. This was accomplished and the tape recording of this conversation was introduced into evidence at defendant's trial under the co-conspirator exception to the hearsay rule. The trial court specifically held the conversation admissible because statements in it were made "in an effort to conceal detection of the crime." The argument of counsel, for and against the admission of the tape recording was intense. The recording itself was garbled almost beyond transcription. The several transcripts made of the tape all differed in some respects. Its admission is the basis of a number of the issues raised for reversal on this appeal. In Tennessee Law of Evidence, (2nd Ed.1990), the authors have made an analysis of the admissibility of conspirator's declarations under Evidentiary Rule 803(1.2)(E). Although, as we have noted, the rules were not in effect at the time of the commission of the...