State v. Zirkle

• Decision Date: 13 February 1995
• Parties: STATE of Tennessee, Appellee, v. David ZIRKLE, Appellant.
• Court: Tennessee Court of Criminal Appeals

Page 874

910 S.W.2d 874

STATE of Tennessee, Appellee, v. David ZIRKLE, Appellant.

Court of Criminal Appeals of Tennessee,

at Knoxville.

Feb. 13, 1995.

Permission to Appeal Denied by

Supreme Court Aug. 28, 1995.

Edward C. Miller, Public Defender and Alan Feltes, Assistant Public Defender, Dandridge, for Appellant.

Charles W. Burson, Attorney General and Reporter, Nashville, Jeannie Kaess, Assistant Attorney General, Nashville, Al Schmutzer, Jr., District Attorney General and Charles Poole, Asst. District Attorney General, Sevierville, for Appellee.

OPINION

WADE, Judge.

The defendant, David Zirkle, was initially convicted of first degree murder, felony murder, and especially aggravated robbery. Although the state sought the death penalty, the jury declined that option. Initially, the trial court imposed a life sentence for each murder conviction and a twenty-five year sentence for the especially aggravated robbery. The life sentences were to be served concurrently but consecutive to the especially aggravated robbery sentence. Eleven days later, the trial court merged the two murder convictions into a single conviction for first degree murder and modified the sentence to a single life term to be served consecutively to the especially aggravated robbery sentence.

In addition to his challenge to the sufficiency of the evidence, the defendant presents the following issues for review:

(I) whether the trial court erred in denying the defendant's motion for a continuance based on the late appointment of lead counsel (II) whether the trial court erred in denying the defendant's motion for a continuance based on the absence of a material witness;

(III) whether the trial court erred in refusing to suppress the defendant's statement;

(IV) whether the trial court erred in allowing a state witness to refer to the defendant by his nickname, "crowbar";

(V) whether the trial court erred in failing to dismiss the especially aggravated robbery count of the indictment in that it failed to allege that property was taken from the victim's person;

(VI) whether the trial court erred in failing to dismiss the felony murder count of the indictment because the indictment for the underlying felony of especially aggravated robbery was defective;

(VII) whether the trial court erred in failing to strike "alias" from the indictment;

(VIII) whether the trial court erred in allowing argument by the district attorney designed to inflame the jury;

(IX) whether the trial court erred in allowing a photograph of the victim's body to be admitted into evidence;

(X) whether the defendant's convictions for first degree murder, felony murder, and especially aggravated robbery subjected him to double jeopardy;

(XI) whether the trial court erred in allowing a codefendant to invoke his fifth amendment privilege without permitting the defendant to cross-examine him;

(XII) whether the trial court erred in allowing the statement of the same codefendant to be admitted into evidence even though he did not testify; and

(XIII) whether the trial court erred in failing to grant the defendant's request for a special jury instruction.

We find no prejudicial error and affirm the judgment of the trial court.

STATE'S PROOF

Curtis "Jack" Owenby befriended the victim, Larry Sayers, ¹ while both men lived in Arizona. After Owenby moved back to Tennessee, he kept in touch with the victim through letters and phone calls. In early April of 1991, the victim telephoned Owenby to say that he would be travelling through Tennessee and planned to stop for a visit. On April 5 of that year, the victim, the defendant, and James Hasinger ² arrived in a white Courier pickup truck with a camper shell on top. Owenby had no previous acquaintanceship with either the defendant or Hasinger.

The four men spent the evening drinking beer at Owenby's cabin. When they had exhausted their supply of alcohol, Owenby and the victim went to buy more. In order to pay for the beer, the victim took money from a pouch that he wore around his neck.

That night, the defendant and Hasinger slept in the truck. The victim slept inside. When Owenby left for work at around six the next morning, the victim was awake but the defendant and Hasinger were still asleep. Owenby understood that the victim would be waiting for him when he returned from work.

When Owenby got back that afternoon, the three men and the truck were gone. Owenby noticed a spot on the ground which he first thought to be transmission fluid. When the victim had not contacted him by the following morning, however, Owenby re-examined the ground stain and decided that it was either blood or paint. He then noticed that the cap had been taken off his well and that a crowbar had been moved from his front porch. He also found the victim's money pouch on the ground. When he saw that the contents had been removed, Owenby called the authorities.

On April 7, 1991, Detective Mark A. Holt, of the Sevier County Sheriff's Department investigated at the Owenby residence. He recovered the crowbar and the victim's woven pouch and had them examined. A sample of the fluid found on the ground was sent to the Tennessee Crime Laboratory for testing.

On the next day, Hasinger told Candy Lou Fisher, a teller at Dominion Check Cashing Company in Norfolk, Virginia, that he was "Larry Sayers" and tried to get her to cash a check. The teller asked for identification and became suspicious when the photograph on the card did not resemble Hasinger. When asked to fill out a form, Hasinger misspelled the victim's surname. The teller called the police and waited in the back until two officers arrived and arrested the man.

Keith J. Curry, one of the arresting officers, testified that Hasinger attempted to leave when he saw the police car. The officers blocked his path, patted him down, and took him inside for identification. Upon questioning, Hasinger initially claimed to be Larry Sayers, but later confessed to his true identity.

After his arrest, Hasinger told the officers that he was not alone and provided them with the defendant's name, his description, and the vehicle he was driving. As he was being placed in the police car, Hasinger pointed out the defendant, who was walking in the parking lot of a neighboring business. The officers drove toward the defendant, who started walking in the opposite direction. When Officer Curry ordered him to halt, the defendant asked why he was "being hassled" and denied knowing Hasinger. While frisking the defendant for weapons, Officer Curry found identification bearing Hasinger's name and photograph and then placed the defendant under arrest.

Thereafter, the officers located a truck in the parking lot that fit the description given by Hasinger. When asked if he knew about the vehicle, the defendant claimed that he had never seen it before. Officer Curry, however, had found keys in the defendant's possession that fit the truck's ignition, door, and camper shell.

Investigator Brett Johnson testified that he administered Miranda warnings to the defendant and questioned him after he was brought to the Sheriff's Department. Approximately three hours later, the defendant told Investigator Johnson that he had something to say, but that he needed protection from Hasinger. After being assured of his safety, the defendant confessed that he and Hasinger had killed a man in Tennessee.

At trial, the jury heard a tape recording of the confession. The defendant told officers that he met Hasinger at a shelter in California. Both were from the Northeast and wanted to return there. Bus tickets donated by a local church took them part of the way. They intended to hitchhike the rest of the distance. The victim, who was bound for Canton, Ohio, agreed to give them a ride and, according to the defendant, became "mean and bossy" as the trip progressed. The defendant related that the victim stopped in Gatlinburg, while en route, to visit Owenby. That night the defendant claimed that he slept alone in the truck, while everyone else slept inside Owenby's residence. All continued to drink on the following morning and the victim got "bossy." Hasinger struck the victim in the head with a tire iron or crowbar and "made" the defendant help put the victim in the back of the truck before they left. According to the defendant, Hasinger dumped the victim in a creek bed near the North Carolina border. The defendant claimed that the victim, who had asked to be taken to a hospital, was still alive at that point. That night the defendant and Hasinger stopped at a motel in Burlington, North Carolina, where they went through the victim's belongings and disposed of anything that they did not want. The defendant said that they then drove to Virginia Beach where Hasinger tried to cash one of the victim's checks.

At the conclusion of the interrogation of the defendant, Investigator Johnson contacted police in Burlington, North Carolina and Sevierville, Tennessee for assistance. He then questioned Hasinger, who gave a separate statement admitting that the victim had been killed.

During the trial, Investigator Johnson testified that the victim's truck was mistakenly sold by the police department at auction. He identified photographs taken of the inside of the victim's truck which, among other things, showed maps with red markings.

Ricky Earl Lee, a sergeant with the Burlington Police Department, testified that he had received a call from the Norfolk Police Department asking for help in the homicide investigation. Officer Lee searched a dumpster at a Super 8 Motel located in Burlington where he found blood stained clothing, a pair of boots, blankets, and a prescription drug container issued to Larry Sayers. He also obtained a card from the motel showing that Hasinger had paid for a room on April 7 and 8, 1991.

Sevier County Sheriff Don Ogle also assisted in the investigation. He found the victim's body in a dry creek bed close to the Tennessee/North Carolina...