Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs December 9, 2014
Appeal from the Criminal Court for Washington County No. 36557 Robert E. Cupp, Judge
Jeff Kelly, District Public Defender; William L. Francisco and William Donaldson, Assistant Public Defenders (at trial); and Steve McEwen, Mountain City, Tennessee (on appeal), for the appellant, James Henry Allen.
Herbert H. Slatery, III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Anthony Clark, District Attorney General; and Dennis Brooks, Assistant District Attorney General, for the appellee, State of Tennessee.
Timothy L. Easter, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Alan E. Glenn, J., joined.
TIMOTHY L. EASTER, JUDGE
Deborah Kay Franklin Keplinger married Defendant on March 18, 1985. The couple divorced in September of 1994 after approximately nine-and-a-half years of marriage. The couple have three children together. The divorce did not signify the end of their relationship; the parties still lived together "on and off" in what Mrs. Keplinger characterized as an "up and down" relationship. During the marriage, they lived in a double-wide trailer on Cherry Lane in Fall Branch, Tennessee.
Mrs. Keplinger started dating Richard Carter, the victim, in December of 2009. At that time, she did not have a relationship with Defendant. In fact, Mrs. Keplinger never told Defendant that she was in a relationship with the victim. However, Defendant eventually found out about the relationship. He expressed his disapproval about Mrs. Keplinger's relationship with the victim to at least one of the couple's daughters.
On several occasions, Defendant made disparaging comments about Mrs. Keplinger, the victim, and Mrs. Keplinger's father. Defendant repeatedly sent text messages to Mrs. Keplinger which she described as threatening. But once, Defendant also sent her a text message wishing her happiness.
Eventually, in an attempt to stop Defendant from communicating with her, Mrs. Keplinger got an order of protection against Defendant. After the trial court entered the order of protection, Mrs. Keplinger still received text messages from Defendant. He would also try to "send messages through [their] daughter" and "stay across the street at [Mrs. Keplinger's] neighbor's house and holler things out at [her] and [her] dad." Mrs. Keplinger reported Defendant's behavior to the police on several occasions after he made "threats" toward her and the victim.
On one occasion in particular, Defendant was "making a mockery of [her] dad and stuff and hollering things across the yard." Mrs. Keplinger described it as the "final straw" because she had called 911 several times and had gotten "no response" from the police. As a result of this particular incident, Defendant was arrested for violating the order of protection on March 2, 2010.
After Defendant was arrested, he still made threats to Mrs. Keplinger. Defendant would also tell their oldest daughter that he "was going to kill [Mrs. Keplinger] and [the victim] and threatened [their] lives." Mrs. Keplinger called 911 every time Defendant made threats.
Mrs. Keplinger and the victim lived together at the residence on Cherry Lane. This was the same residence that Defendant and Mrs. Keplinger lived in during their marriage. On the evening of May 10, 2010, Mrs. Keplinger and the victim were at home after work. The victim and Mrs. Keplinger went to Fall Branch early that evening to visit the victim's sister and her husband. The victim was working on a vehicle that belonged to Mrs. Keplinger and wanted to ask them a few questions about the work he was performing. They arrived back at the Cherry Lane residence around 9:30 p.m.
Mrs. Keplinger went to the kitchen to clean up; she also prepared some leftovers of a pot roast for the victim to eat. After the victim ate the leftover roast, he "went to the bathroom to shave and to take his shower before bed." Mrs. Keplinger noticed that both her "outside" dog and "inside" dog, Peaches, were barking. She let Peaches outside. At that point Mrs. Keplinger,
stepped out on the porch to look around to see what it might be that [Peaches] was barking at. And [she] stepped back inside to flip the light switch on and it wouldn't come on and that's when [she] looked up and - and [she] said didn't [they] just change this light bulb. That's when [she] hollered at [the victim] and he c[a]me and [she] said didn't [they] just change this light bulb. He said yeah. And that's when [they] found out that it had -it had been broken and it was no[ ] longer there.
Mrs. Keplinger walked back into the house to ask the victim about the light bulb. The victim walked to the front door, flipped the switch up and down, and looked at the outside light fixture, confirming that the bulb was missing. Mrs. Keplinger walked to the kitchen to get a new bulb. The victim closed the door and looked out through the small, diamond shaped window in the door. At that point, Mrs. Keplinger heard what sounded like "fireworks" and "popping sounds" coming from outside the home. Mrs. Keplinger realized that they were gunshots but could not tell from what direction the shots were coming. She heard four or five pops all in a row. When she ran to the front door, the glass in the front door was shattered. Mrs. Keplinger ran to the victim who was still standing near the front door; he stated that he had been shot. The victim fell toward Mrs. Keplinger to the floor.
Mrs. Keplinger ran back to the bedroom, picked up her phone, and dialed 911. She tended to the victim by getting a towel for under his head. The victim was lying on his stomach. She could not see any injuries but the victim had "a little bit of puke coming out of his mouth" that she wiped off with a towel. The victim was semi-responsive at this point, moaning in pain. Medical personnel and police arrived. The victim was transported to the hospital but ultimately died as a result of the gunshot wounds.
After a police investigation, Defendant was indicted by the Washington County Grand Jury for premeditated first degree murder, unlawful possession of a deadly weapon with the intent to employ it in the commission of a first degree murder, and a violation of an order of protection in connection with the murder of his ex-wife's cohabiting boyfriend.
Motion to Suppress
Prior to trial, Defendant filed a motion to suppress his statement. The trial court held a suppression hearing on the admissibility of Defendant's statement to police. Investigator Jeff Miller of the Washington County Sheriff's Department testified at the hearing. He interviewed and took a written statement from Defendant on May 14, 2010, after Defendant was identified as a suspect in a "shooting" in Fall Branch at the home of Defendant's ex-wife.
Investigator Jeff Miller explained that the police had a difficult time locating Defendant until they were notified by Defendant's "kinfolks" that he had called someone in the family. The next morning, Investigator Miller received a call from Defendant's daughter, Leslie Nelson. She relayed to officers that she had spoken with Defendant on the phone. During the conversation with Mrs. Nelson, Defendant expressed his desire to turn himself in to police. He also threatened to shoot himself. Police eventually reached Defendant on the phone. Defendant claimed that he was cold, hungry, and wanted to turn himself in to the police. Defendant was apprehended by a SWAT team in a rural area. At the time, he was in possession of a pistol, several books, several bottles of prescription medication, and a Mountain Dew soft drink. Defendant was taken to police headquarters for questioning.
On the way to the police station, Defendant was given a foot-long sandwich from Subway, a granola bar, and something to drink. He was given Miranda warnings by Sergeant Sam Phillips before he gave a statement. Investigator Miller took thirteen pages of notes while Defendant was questioned about the events leading up to the victim's death. The statement was reduced to writing by Investigator Miller and signed by Defendant. The statement was not recorded.
Defendant testified at the hearing on the motion to suppress. He claimed that he was not given Miranda warnings. He stated that it did not look like his signature on the form because his signature "is always different every time [he] sign[s] it." Defendant stated that it was a forged signature on the Miranda form but acknowledged that it was his signature on at least page one of the three page statement. He was "not for sure" if it was his signature on the remaining pages.
At the conclusion of the hearing on the motion to suppress, the trial court found there "was absolutely no difference in those four signatures" and that Defendant was "not being truthful . . . when he [said] he didn't sign that." The trial court denied the motion to suppress.
At trial, the State presented the testimony of Officer Roger Conkin of the Washington County Sheriff's Office. He responded to a call about a shooting on Cherry Lane in Fall Branch on May 12, 2010. Mrs. Keplinger called 911 to request an ambulance and to report the shooting. The 911 call was admitted into evidence over objection by counsel for Defendant. During the call, Mrs. Keplinger was often hysterical, stating more than once that it was probably her "ex" that was responsible for the shooting. On the tape, she can be heard crying, begging, and pleading for help. She gave the 911 dispatcher Defendant's name, a description of his vehicle, and the location of his residence.
As Officer Conkin and Deputy Dwayne Cowan entered the residence, they noticed the victim "laying in the floor in front of the door-front door, had some [gunshot] wounds to the chest area." The only other occupant of the residence was Mrs. Keplinger. Deputy Cowan described Mrs. Keplinger as "hysterical, " "panicked, " and "scared." Deputy Cowan stated that Mrs. Keplinger kept repeating that she "thought it was her ex-husband due to him making threats [that] he would kill her."
Officers noticed that it was dark outside the residence and discovered that the porch light was not working. Officers got a lightbulb and "put it in the porch ...