Petition for Writ of Certiorari — Tennessee v. Cauthern

x Supreme Court, U.S,

8 9 -9 1 5 ’ FILED

NOV 24 1989

JOSEPH F. SPANIOL, ur

No. CLERK

In The

Supreme Court of the United States

October Term, 1989

a

al

STATE OF TENNESSEE,

Petitioner,

VS.

RONNIE M. CAUTHERN,

Respondent.

a

4

On Writ Of Certiorari To The

Supreme Court Of Tennessee At Nashville

—

bw

PETITION FOR THE WRIT OF CERTIORARI

. =

i

CHARLES W. BursON

Attorney General & Reporter

Counsel of Record

Jerry L. SmitH

Deputy Attorney General

KyYMBERLY LYNN ANNE Hattaway

Assistant Attorney Genera]

450 James Robertson Parkway

Nashville, TN 37219-5025

(615) 741-3487

Counsel for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225 6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED FOR REVIEW

1. Whether the Supreme Court of Tennessee imper-

missibly expanded the scope of Miranda v. Arizona in

concluding that the respondent invoked his right to

remain silent by merely refusing to make a truthful state-

ment and by indicating a desire to not have his statement

tape recorded?

2. Whether the alleged Fifth Amendment error was

—harmless beyond a reasonable doubt?

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........--- i

TABLE OF AUTHORITIES.........-.---+eeeeeeeees iii

OPINION BELOW..........c-eccceccccccceccceences 1

JURISDICTION ..... 2... eee e cere eens: eee 2

CONSTITUTIONAL PROVISION INVOLVED....... 2

STATEMENT OF THE CASE.......---+++++eeeee23: 2

REASONS FOR GRANTING THE WRIT ........--- 5

CONCLUSION . ...cccsescessuesstnens nes eneenenes 9

APPENDIX:

A - Opinion of the Supreme Court of Tennes-

NS eS App. 1

B - Respondent’s Tape Recorded State-

ili

TABLE OF AUTHORITIES

Page(s)

Cases Citep:

Chapman v. California, 386 U.S. 18 (1967) ............. 7

Connecticut v. Barrett, 479 U.S. 523 (1987)........... 6, 7

Connecticut v. Johnson, 460 U.S. 73 (1983)............. 8

Fare v. Michael C., 442 U.S. 707 (1979)................ 6

Francis v. Franklin, 471 U.S. 315 (1985) ............... 8

Harrington v. California, 395 U.S. 250 (1969)......... 7, 8

Michigan v. Mosley, 423 U.S. 96 (1975).............. 5, 6

Milton v. Wainwright, 407 U.S. 371 (1972)............. 7

Miranda v. Arizona, 384 U.S. 436 (1966)........ £5.67

Quinn v. United States, 349 U.S. 155 (1955) ........... 6

United States v. Hasting, 461 U.S. 499 (1983).......... 7

OrHer AutuHorities Citep:

Tennessee Code Annotated § 39-2-203(i).............. 3

No.

-%

vr

In The

Supreme Court of the United States

October Term, 1989

STATE OF TENNESSEE,

Petitioner,

Vs.

RONNIE M. CAUTHERN,

Respondent.

,%

vv

On Writ Of Certiorari To The

Supreme Court Of Tennessee At Nashville

A

4

PETITION FOR THE WRIT OF CERTIORARI

OPINION BELOW

The opinion of the Supreme Court of Tennessee was

filed on September 25, 1989, and appears as Appendix A.

This opinion has been designated for publication, but has

not been published as of the date of the filing of this

petition.

The tape recorded statement made by the respondent

appears as Appendix B; this statement appears in its

redacted form as submitted to the jury.

ha

_

JURISDICTION

The judgment of the Supreme Court of Tennessee

was entered on September 25, 1989. This petition was

filed within sixty (60) days of that date.

This Court’s jurisdiction is invoked under 28 U.S.C.

§1254(1).

rN

vy

CONSTITUTIONAL PROVISION INVOLVED

U.S. Const. Amend. V:

No person . . . shall be compelled in any

criminal case to be a witness against himself

a

Ww

STATEMENT OF THE CASE

On February 23, 1988, the respondent and co-defen-

dant Brett Patterson were convicted in a jury trial of the

felony murders of Patrick and Rosemary Smith, the

aggravated rape of Rosemary Smith, and first-degree bur-

glary. Following a sentencing hearing, the jury imposed

sentences of death upon the respondent's convictions for

felony murder and sentences of life imprisonment upon

Patterson’s convictions for felony murder. In sentencing

the respondent to death, the jury unanimously deter-

mined the existence of three aggravating circumstances:

The murders were especially heinous, atrocious, or cruel

in that they involved torture or depravity of mind; the

murders were committed during the perpetration of rape;

and the murders were committed during the perpetration

of burglary.!

The jury’s verdict was predicated, in part, upon proof

showing that the respondent made two oral statements

and a tape recorded statement subsequent to his arrest. In

his first oral statement, the respondent denied any

knowledge of the crimes. In his second oral statement,

however, the respondent implicated himself in the com-

mission of the crimes. The respondent also implicated

himself in the tape recorded statement which was made

subsequent to the oral statements.

Prior to the making of the first oral statement and the

tape recorded statement, the respondent executed written

waivers of his right to counsel and his right to remain

silent. During the course of the recorded interrogation,

the respondent indicated that he did not wish to make a

truthful account of his participation in the crimes. In

attempting to turn off the tape recorder, the respondent

also indicated by his conduct that he did not wish to have

his statement recorded. However, the respondent contin-

ued to answer questions after his unsuccessful attempt to

stop the tape recorder. Toward the end of the questioning,

1 Tennessee Code Annotated §39-2-203(i):

(5) The murder was especially neinous, atro-

cious, or cruel in that it involved torture or depravity

of mind; and

(7) The murder was committed while the

defendant was engaged in committing, or was an

accomplice in the commission of, or was attempting

to commit, or was fleeing after committing or

attempting to commit, any first-degree murder,

arson, rape, robbery, burglary, larceny, kidnapping,

aircraft piracy, or unlawful throwing, placing or dis-

charging of a destructive device or bomb.

the respondent turned off the (visible) tape recorder; an

unseen tape recorder recorded the remainder of the inter-

view. At the point the respondent stated that he was

“through talking,” the investigators immediately termi-

nated the interview.

On direct appeal to the Supreme Court of Tennessee,

the respondent challenged the admissibility of his two

oral statements and his tape recorded statement on the

basis that these statements had been involuntarily made.

The court rejected the respondent’s claim of coercion, but

found plain error in the admission of portions of the tape

recorded statement. Relying solely upon Miranda v. Ari-

zona, 384 U.S. 436 (1966), the court determined that the

respondent invoked his Fifth Amendment right to remain

silent by attempting to turn off the tape recorder and by

stating that he did not want to tell the investigators

“again” “just exactly what happened” on the night the

crimes were committed. (Appendix A, at App. 17-18).

In view of its decision concerning the admissibility of

portions of the tape recorded statement, the Supreme

Court of Tennessee conducted an analysis to determine

whether the alleged error was harmless beyond a reason-

able doubt. Focusing upon isolated statements made by

the respondent both before and after the alleged invoca-

tion of his right to remain silent, the court concluded that

the error prejudicially impacted upon the jury’s imposi-

tion of the death penalty. Accordingly, the respondent's

sentences of death were reversed and the case was

remanded for a new trial. (Appendix A, at App. 18-20).

REASONS FOR GRANTING THE WRIT

1. The Supreme Court of Tennessee impermissibly

expanded the scope of Miranda v. Arizona, 384 U.S. 436

(1966), in concluding that the respondent invoked his

right to remain silent. -

In reliance upon the Court’s decision in Miranda, the

Supreme Court of Tennessee concluded that the respon-

dent invoked his right to remain silent during the course

of a custodial interrogation. We submit that the state’s

highest court impermissibly expanded the scope of the

Miranda decision by placing greater restrictions on the

police as a matter of federal constitutional law.

In Miranda, the Court established procedural safe-

guards to protect the constitutional rights of persons

subject to custodial interrogation. The Miranda Court held

that unless law enforcement officers give certain specified

warnings prior to questioning a person in custody, and

follow certain specified procedures during the course of

any subsequent interrogation, the state may not use in its

case in chief any statement by the suspect, over the

suspect’s objection.? 384 U.S. at 476-479; accord Michigan

v. Mosley, 423 U.S. 96, 99-100 (1975).

Among the procedural safeguards established by the

Court is the “right to cut off questioning.” Miranda, 384

U.S. at 474. This right, established as a “critical safe-

guard” of the Fifth Amendment right to remain <ilent,

2 At no time prior to, during, or after trial, did the respon-

dent object to the admission of the tape recorded statement on

the basis of an alleged violation of his Fifth Amendment right

to remain silent.

Mosley, 423 U.S. at 103, requires the police to immediately

cease interrogating a suspect once the suspect “indicates

in any manner, or at any time prior to or during question-

ing, that he wishes to remain silent.” Miranda, 384 U.S. at

473-474; Mosley, 423 U.S. at 100.

Although established in Miranda, the Mosley Court

explored in greater detail the scope of “the right to cut off

questioning.” Reiterating that this right serves as an

essential check on “the coercive pressures of the custodial

setting” by enabling the suspect to “control the time at

which questioning occurs, the subjects discussed, and the

duration of the interrogation,” 423 U.S. at 103-104, the

Mosley Court reaffirmed the requirement that “the inter-

rogation must cease” when the person in custody “indi-

cates in any manner” that he wishes to remain silent. 423

U.S. at 101-102. This requirement was incorporated into

the Court’s holding that statements taken after a suspect

indicates his desire to remain silent are inadmissible

unless the suspect’s “ ‘right to cut off questioning’ was

‘scrupulously honored.’ ” 423 U.S. at 101, 103-104.

While the invocation of the privilege against self-

incrimination does not require “any special combination

of words,” Quinn v. United States, 349 U.S. 155, 162 (1955),

“InJothing .. . in the rationale of Miranda, requires

authorities to ignore the tenor or sense of a defendant's

response” to the warnings given pursuant to that deci-

sion. Connecticut v. Barrett, 479 U.S. 523, 528 (1987). Thus,

the privilege is not invoked where the suspect merely

states that he “would not” answer a question. Fare v.

Michael C., 442 U.S. 707, 727 (1979). Likewise, the sus-

pect’s (belated) desire to not make a recorded statement

does not give rise to the level of invoking his right to

remain silent. Cf. Barrett, 479 U.S. at 527.

The question presented here is whether the respon-

dent invoked his right to remain silent by attempting to

turn off the tape recorder and by stating that he did not

want to tell the investigators “again” “just exactly what

happened” on the night of the commission of the crimes.

Considering that the fundamental purpose of the Miranda

decision is “to assure that the individual’s right to chose

between speech and silence remains unfettered through-

out the interrogation process,” 384 U.S. at 469, is clear

that the respondent did not rescind his prior written

waiver of the privilege against self-incrimination by sim-

ply indicating that he did not want to truthfully divulge

his participation in the crimes in a taped recorded

statement.

Viewing the interrogation process in its entirety, and

considering the context of the respondent's actions and

words, we submit that the Miranda decision does not

compel the result reached by the Supreme Court of Ten-

nessee as a matter of federal constitutional law.

2. The alleged Fifth Amendment error was harm-

less beyond a reasonable doubt.

the Court made it clear that “it is the duty of a reviewing

court to consider the trial record as a whole and to ignore-

errors that are harmless.” See also, e.g., Milton v. Wain-

wright, 407 U.S. 371 (1972); Harrington v. California, 395

U.S. 250 (1969); Chapman v. California, 386 U.S. 18 (1967).

In the event the Court determines that the Supreme Court

of Tennessee correctly concluded that the respondent

invoked his right to remain silent, we submit that the

Court should undertake an independent evaluation of the

effect of the error.

While the Court has shown a tendency to defer to the

lower courts in reference to the applicability of harmless

error, see Francis v. Franklin, 471 U.S. 315, 325-326 (1985),

Connecticut v. Johnson, 460 U.S. 73, 87, 102 (1983); but see

Harrington, 395 U.S. at 254 (the Court’s judgment as to

whether constitutional error is harmless must be based on

its own review of the record), the Court conducted its

own evaluation of the proof in Francis and stated that its

“primary task” in reviewing a lower court’s harmless

error determination “is. to ensure that the court under-

took a thorough inquiry and made clear the basis of its

decision.” Francis, 471 U.S. at 326 n. 10.

We submit that even a cursory reading of the record

in the case at bar compels the conclusion that the admis-

sion into evidence of the entirety of the respondent's tape

recorded statement was harmless beyond a reasonable

doubt. In this regard, the state’s proof of aggravating

circumstances was overwhelming, and the respondent

presented only slight evidence in mitigation.

————EE

The record also reveals that the respondent, who was

clearly the mastermind of the criminal episode, displayed

a dispassionate and cavalier attitude toward his victims:

The respondent claimed that he murdered Mr. and Mrs.

Smith because they had only $70.00 in cash in their home

and because he wanted to be famous by being on the

front page of the newspaper. The respondent even had

the unmitigated audacity to cast vicious aspersions on

Mrs. Smith’s character by stating in his pre-trial state-

ments and by testifying at trial that he was involved in an

affair with Mrs. Smith, and that Mrs. Smith “enjoyed”

having sex with him on the night she was murdered.

The record further establishes that the respondent

testified in conformity with the tape recorded statement

at the punishment phase of the trial. With the respondent

having committed the brutal murders of a husband and

wife who dedicated themselves to helping humanity and

who dedicated themselves to serving their country, we

submit that there was no reasonable possibility that any

error in the admission of the tape recorded statement

contributed to the jury’s verdict. Since the error could not

have prejudicially impacted upon the jury’s assessment of

the appropriate punishment, the error was harmless

beyond a reasonable doubt.

CONCLUSION

For the reasons stated, the petitioner urges this Court

to grant the writ of certiorari.

Respectfully submitted,

Cuartes W. Burson

Attorney General & Reporter

Jerry L. Smity

Deputy Attorney General

Kymserty LYNN ANNE Hattaway

Assistant Attorney General

450 James Robertson Parkway

Nashville, TN 37219-5025

(615) 741-3487

Counsel for Petitioner

App. 1

APPENDIX A

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

STATE OF TENNESSEE, For Publication

Appellee, September 25, 1989

vs. Montgomery County

)

)

)

)

RONNIE M. CAUTHERN, } Hon. John H. Peay,

)

)

)

Appellant. Judge

S. Ct. No. 88-41-I

For Appellee: For Appellant:

Charles W. Burson Hugh Poland

Attorney General & Reporter 408 Franklin Street

450 James Robertson Parkway Clarksville, TN 37040

Nashville, TN 37219-5025

Kymberly Lynn Anne

Hattaway

Assistant Attorney General

450 James Robertson Parkway

Nashville, TN 37219-5025

OPINION

REMANDED TO TRIAL COURT

FOR RESENTENCING HEARING

WM. H. D. FONES, JUSTICE

This is-a-direct-appeal- of a death penalty-case. Defen-

dant Ronnie M. Cauthern and a co-defendant Brett Patter-

son were indicted for felony murder of Patrick Smith and

his wife Rosemary Smith during the perpetration of first

degree burglary, and aggravated rape of Mrs. Smith. The

jury found both defendants guilty of the two murders,

first degree burglary and aggravated rape. At the guilt

App. 2

phase the jury sentenced Patterson to life imprisonment

and Cauthern received the death penalty. Patterson’s

appeal is pending in the Court of Criminal Appeals. This

case is the direct appeal of Ronnie Cauthern.

The Smiths were both captains in the U. S. Army

stationed at Fort Campbell Kentucky. They lived in a

split-level home in Clarksville, Tennessee, that they had

purchased shortly after assignment to the nearby base.

Both were nurses. When neither of them reported to their

duty stations on the morning of 9 January 1987 and

telephone calls to their home received no answer, two

persons from the base went to their home, observed

broken glass in the rear door, and both cars in the garage.

A 911 call was made and the police arrived promptly and

discovered the body of Patrick Smith lying face down on

the bed in the master bedroom facing 90 degrees counter

clockwise from his sleeping position, and wrapped in the

top sheet. He had been strangled to death, apparently

with a length of 880 military cord, The bed was broken

and tilted indicating a violent struggle had taken place.

His wife’s nude body was found on the floor. A scarf was

tied around her neck and a small vase had been inserted

into the scarf. She died of strangulation, the vase was

obviously used to twist the scarf and reduce the circum-

ference. Both had massive hematoma of the neck area.

Mrs. Smith’s nightgown and buttons torn from it were

found in the room. Semen was apparent on the gown and

a comforter from the bed. Sperm was found in the vaginal

vault. Tests revealed the presence of PGM Type 1 secre-

tions. The forensic serologist testified that the PGM Type

1 from the swab “was consistent with Cauthern, as well

as Rosemary Smith.” Z

App. 3

The police found the telephone line had been cut

near its entry into the outside wall of the house. A shoe

4 print was found on the back door that matched Patter-

son’s shoe. In a state..1ent that he gave police he admitted

kicking the back door once or twice, but said it would not

open so they obtained a hammer and broke the pane of

glass nearest the door knob to gain entry. The house was

ransacked, chest of drawers open, luggage and clothing

i scattered about. In the master bedroom, the police found

a piece of paper upon which was written defendant Cau-

thern’s name, address and telephone number. Rosemary

Smith’s sister testified she was familiar with both her

sister’s and her brother-in-law’s handwriting and the

information about Cauthern was not written by either of

them. The cumulative evidence in this record establishes

that defendant and the Smiths had been acquainted for

approximately a year at the time of the murders, that he

° had performed some work on Patrick’s Mercedes and

perhaps some additional work at their home, although he

said in one of his statements that he had never been

inside their home until the evening of 8 January 1987.

As far as this record shows the investigation of these

murders did not focus on Cauthern and Patterson until

James Phillip Andrew telephoned the Clarksville Police

and asked to speak to an officer he had seen on T.V. news

in a segment reporting on the double murder. That cal)

was made about 11:00 a.m. Monday morning 12 January

1987. A meeting with Andrew was arranged and as a

result of the information he gave police, defendant and

Patterson were arrested that afternoon.

Andrew was in the U. S. Army stationed at Fort

Campbell. He was living in a trailer located in a mobile

App. 4

home park in Oak Grove, Kentucky, which he shared with

Joe Denning and another man. Joe Denning was

acquainted with defendant and Patterson and Andrew

became acquainted with them through Denning. Andrew

testified that defendant and Patterson came to the trailer

to see Denning about 3:00 or 4:00 a.m. on Friday morning,

9 January, that after being awakened by their arrival he

went back to sleep and neither heard nor saw anything

relevant to the Smith murders. Andrew went to work at

the base as usual that day and saw defendant again that

night at the trailer and later at Rockvegas. It was not until

Saturday afternoon at the trailer when they started to get

“high” smoking marijuana that defendant began telling

Andrew about his role in the Smith murders. Andrew did

not believe him until defendant went to his car trunk and

brought a box into the trailer containing credit cards,

identification cards in the names of Patrick and Rosemary

Smith, clothing and other items of personal property

taken from their home.

Defendant gave several statements to the police, one

of which was recorded on tape, transcribed and intro-

duced at trial. Although he admitted participating in a

robbery of the Smith premises, he denied that he

“planned” anything or raped or murdered anyone. He

claimed that he had had sexual relations with Mrs. Smith

twice before and that she invited him to come to the

Smith house and knock on the back door that Thursday

evening. His statement to the police contained numerous

contradictions and discrepancies. The “statement” he

gave Andrew on Saturday afternoon while high on mari-

juana more closely coincided with proven events than

App. 5

any version that appears in this record. We quote from

that part of Andrew’s testimony, as follows:

A He said that him and Patterson went to

the Smith’s house - see, I didn’t know the names

then.

Q Was the name at that time not in the

murder report in the paper?

A They weren’t in the newspaper, there

were no names and he said how they broke into

the house, they kicked the door and they broke

the window in the door, they opened the door,

went in and they said they were sleeping and

they woke up and Mr. Smith - you know, kept

saying — what do you want and he said — Ronnie

said that Patterson had jumped Mr. Smith and

Ronnie had told Mrs. Smith to get in the closet.

While he was doing that, they were trying to

strangle — said they was trying to strangle Mr.

Smith and Ronnie took Mrs. Smith in another

room and said he had raped her then and went

back in to help Patterson with Mr. Smith, and

they said they couldn’t get him down and they

had to use a strap or belt, I don’t know, to

strangle him, and when they got him down,

they both went in and then they raped her and

then Ronnie killed Mrs. Smith -

Q Ronnie killed who?

A Mrs. Smith.

—_Q Did he tell you how he killed Mrs.

Smith?

A Yes.

Q Tell the ladies and gentlemen of the jury

that he told you as to how he did that?

A Okay, he first tried to strangle her, he

couldn’t do it, and then he grabbed the scarf,

App. 6

wrapped it around her neck and put a vase in it

like a tourniquet and turned it until she

strangled.

Q Did he talk to you about the sexual -

A Yes.

Q What did he tell you about that?

A He says - that she wasn’t putting up a

fight, she enjoyed it.

He told you that she was enjoying it?

She enjoyed it, yes.

oO >”

Anything else he said about the rape?

A Not about the rape, no - after that, do

you want me to keep going?

Q Just tell the ladies and gentlemen - you

just tell them what he told you, everything he

told you about this incident over at the Smith

house.

A And he said they started going through

the house, that they were piling up things they

were going to take in one pile and they took the

VCR and there was a cord on the TV, they put

this cord behind the TV and put books on the

TV so it would look like they didn’t have one.

Q What no, I didn’t understand that, I am

sorry.

A They said there was a VCR on the TV,

and a plug in the back of the VCR, they threw

the cord behind the TV and put books on it to

look like there was no VCR on top of the TV.

Q They were gathering up other stuff -

did he say why they would do that?

A They planned on taking everything they

had piled up.

App. 7

Q Oh, okay.

A And then they changed their minds,

they took the VCR, their wallets —

Q Did he say - was anything mentioned

about any jewelry?

A Yes.

What was that?

He showed us a band.

He showed you what?

The wedding band of Mr. Smith’s.

Mr. or Mrs.?

Mr. Smith’s. He said he give the ring to

his girlfriend.

>O FD 0

Q But he showed you a wedding band?

A He showed me a wedding band.

Q A man’s wedding band?

A lonly got a glimpse of it ‘cause he want

[sic] out to the car and got all the stuff to prove

it that he did it.

In addition Andrews testified that he asked defen-

dant why he killed the Smiths and his response was they

only had $70 and that made him mad. He said he had

worked around the house, they were doctors and “alwa ys

had money.” Andrew was asked if defendant indicated to

him he was having “some kind of an affair’ with Mrs.

Smith. His response was that defendant always told them

“who he was messing around with” and he never said

anything about “messing around with her.”

Patterson gave a statement to TBI agent Breedlove

and an investigator for the Clarksville Police Department.

App. 8

He said they were “originally supposed to be hitting

some place owned by a guy by the name of Charles

Hand.” Defendant told him that Hand would have “like

$15,000” in the trunk of his car, at night, and all they had

to do was “pop the trunk and be gone.” The car was not

at Hand’s house, so defendant told Patterson he knew

another place where nobody would be home and they

could pick up a couple of thousand. Defendant said he

had worked for them and knew no one would be home.

They drove up behind the house, got a hammer, screw-

driver and other stuff out of the trunk of defendant's car

and went to the back door. He tried to kick the back door

open but defendant had to break the glass panel to get it

open. He said they both had on leather gloves and ski

masks. He checked out the downstairs with a flashlight

“just looking stuff over, seeing what was there.” When he

went upstairs defendant was “wrestling with this guy on

the bed.” He thought defendant had already put-the

woman in the closet of the other bedroom. He said he

was armed with a .45 caliber automatic and defendant

had a .38 caliber. He said all he could think about was

that this guy’s going to get the better of defendant and he

jumped in, turned him over face down and “put him ina

sleeper, put him out.” Smith was supposed to be out three

to five minutes, but it didn’t last that long, so he got a

pillow case and tried to put it around his neck but it

wasn’t working and defendant handed him some twine,

that was 880 military cord and he “used it like a garrote.

All I wanted was to put him out so we could get the

(expletive) out of there.” He said he went in the other

room, defendant said “it’s your turn” and he had sex

with the woman. In the meantime defendant had stacked

— eee

App. 9

up a lot of stuff, a couple of bags, a purse, VCR; they

loaded it up and got out of there. He said that when he

left the bedroom, the woman was alive and there was no

gag or anything around her neck. He was asked if defen-

dant said, “what he did with her.” Patterson responded,

“He said he strangled her.”

When defendant and Patterson were arrested Mon-

day afternoon, they were working on defendant’s car at a

duplex where they lived. Search warrants were obtained

and from the car and the house numerous credit cards,

identification cards, receipts, checks and other items of

personal property belonging to the Smith’s were found.

Also, a roll of 880 military cord was found.

Defendant’s girl friend testified that defendant and

Patterson accompanied her to Arby’s on Thursday night 8

June 1987 at about 9:30 p.m. She had a sandwich but they

did not eat. Their eyes were dilated, and they weren't

saying much. They were “laid back.” She was sure they

were not drinking because she could not smell anything,

and she was a part-time bartender. She expressed the

opinion they were on acid. She said defendant had told

her several days before that, that he had ten hits of acid

and on Wednesday night he told her he had been doing

acid with Pat and Joe. She was on her way to report to

work at 10:00 p.m. at Rockvegas, a bar and rock and roll

joint. Defendant rode in her car from Arby’s to Rockvegas

and they smoked a marijuana cigarette on the way. Pat-

terson left Arby’s driving defendant’s Camaro Z-28.

She also testified that on Friday 9 January defendant

called her about noon, picked her up at her home about

1:00 p.m. and they rode around in the rain. He gave her a

App. 10

watch, a wedding band and a wedding ring to “hold on

to for him for a while.” She saw him again on Sunday. He

was jolly, in a good mood and told her again that he was

planning to leave for Chicago — he had told her a week or

more before the Smith murders that he was going to

Chicago. He was always nice, courteous and pleasant

with her, except for one occasion, and she had no basis

whatever to suspect him of complicity in the Smith mur-

ders until her sister called her on Monday or Tuesday and

told what she had heard on T.V. She tuned in the 10:00

p-m. news and heard the report that defendant had been

arrested. She talked to her parents and went to the police

station the next morning, gave them the wedding rings,

watch and a stereo that defendant had installed in her car

before the murder.

The first issue defendant raises on this appeal is that

the trial judge erred in failing to suppress all of the

statements defendant made to police because they were

obtained by coercion.

Defendant made two oral statements on 12 January,

the day he was arrested and gave a taped interview on

Tuesday, 13 January 1987. The officers to whom the state-

ments were given were Charles Denton and Joe Griffy.

Defendant’s counsel contends that defendant had worked

for those officers for about one year prior to the murders,

as an informer and an undercover man; that defendant

trusted them, that a friendship existed between defen-

dant and the two officers and that, “this very young naive

defendant was coerced and persuaded by Denton and

Griffy into giving the only really damaging confession.”

App. 11

At the suppression hearing, pre-trial, Officers Denton

and Griffy testified, defendant did not testify. The first

oral statement was made shortly after he was brought to

the police station from the place of arrest. He was given

complete Miranda warnings and signed a waiver. He

denied any knowledge of the Smith murders or burglary.

The so-called second oral statement was made to

Griffy, who had taken defendant from Denton’s office to

the booking room for processing, fingerprinting, photo-

graphing, etc. Griffy testified that while that was going

on defendant began telling him about some things about

the Smiths. He told him that he had known them for

some time, had worked on the Smith’s car and was hav-

ing an affair with Mrs. Smith, that she called him during

the day of the murders and told him to come by that

night; that he and Patterson went to the house, knocked

on the door for 15 or 20 minutes and couldn’t get in; that

Patterson said, “let’s break in”, and tried to kick the door

down but couldn’t so defendant broke the glass, reached

in and unlocked the door. Griffy gave no explanation for

defendant stopping at that point, but that was the extent

of the second statement, given about 4:00 p.m. on 12

January.

Earl Mullins, a jailer, testified that he was calling the

roll at the jail around 3:00 p.m. on 13 January and as he

passed Cauthern’s cell, Cauthern asked him to contact

Officer Griffy or Denton and teil them he wanted to talk

to them. Mullins delivered that message and the officers

came to the jail about 4:00 p.m., again gave defendant full

Miranda warnings and he signed a waiver of rights. Just

before the warnings were read to defendant he said:

App. 12

CAUTHERN: But, I’, I'll tell you how it is. If

I’m going to have to spend five years, I’d rather

just die. O.K.?

And, later:

CAUTHERN: It is to me, I mean, I’m going to

go crazy up there. I’m going crazy up there now.

The Miranda warnings were read and the last two

sentences in the warnings were as follows:

... If you decide to answer any questions now

without a lawyer present, you still have the

right to stop answering at any time. You also

have the right to stop answering at any time

until you talk to a lawyer. Do you understand

your rights?

Defendant then said that his lawyer had told him that he

wasn’t supposed to “say nothing unless he was here.

Does that mean that I can’t.” Denton responded that it

was up to him, that he could waive his right to an

attorney and talk to him. Denton then read aloud the

contents of the waiver as follows:

DENTON: It says here, I have read the state-

ment of my rights and I understand what my

rights are. I am willing to make statements and

answer questions. I do not want a lawyer at this

time. I understand and know what I am doing.

No promises or threats have been made to me

and no pressure or coercion of any kind has

been used against me. And if you want to talk to

us without your lawyer, you need to sign this

right here on these lines.

He signed the waiver and the taped interview pro-

ceeded. On page 22 of the transcript of that interview, he

expressed his first reservations about talking to the offi-

cers, as follows:

App. 13

DENTON: Are you guilty?

CAUTHERN: Of murder, no.

DENTON: What are you guilty of?

CAUTHERN: Not rape and murder and taking

anything.

DENTON: After telling me things, would you

like to tell me again, just exactly this time, just

exactly what happened?

CAUTHERN: No.

DENTON: Why?

CAUTHERN: Cause I know what I’m facing.

(attempted to turn off machine)

DENTON: It’s got to stay on.

CAUTHERN: No. Chuck.

DENTON: Do you know of anything else that

was taken out of the house?

CAUTHERN: A man’s wedding band was

taken and pawned in a pawn shop.

DENTON: Do you know which one?

CAUTHERN: No.

DENTON: How much money did you get for

it?

CAUTHERN: Twenty dollars.

The interview continued with Denton asking about items

of personal property taken, most all of which had been

found by the police, in the defendant's car and the resi-

dence of defendant and Patterson. Defendant was asked

what time they left the house, where they went and who

saw them and defendant answered. Then defendant cut

App. 14

off the tape recorder that he was aware the officers were

using. However, they had a hidden tape recorder that

picked up the following:

DENTON: Don’t cut it off.

CAUTHERN: And I know it’s over and I know

I can’t change it and that’s it. It was my fault.

DENTON: We can’t cut this off, they’ll throw

everything out.

CAUTHERN: They can throw it all out.

DENTON: It’s got to stay on.

CAUTHERN: No, Chuck.

DENTON: Go ahead.

CAUTHERN: I mean, I couldn’t stop it, there

were no way for me to.

DENTON, Ronnie, you planned this thing.

CAUTHERN: No, I didn’t.

DENTON: You went to this house?

CAUTHERN: I didn’t plan it, Chuck, I did not

plan it. I knocked on the door for her to come

downstairs.

DENTON: Ronnie, you sit here and lie to me

again. You’ve said that you didn’t take the stuff

out, the watch and the ring were brought back

to the office today by the young lady you gave it

to.

CAUTHERN: I didn’t take it. There’s a wed-

ding band from him to, somewhere. In a pawn

shop.

DENTON: Which pawn shop? r

CAUTHERN: I don’t know. The ring was

pawned for twenty dollars.

— Pe ee Sr ee he eA Pte

App. 15

DENTON: Do you know of anything else that

was taken out of the house?

CAUTHERN: A man’s wedding band was

taken and pawned at a pawn shop.

DENTON: Do you know which one?

CAUTHERN: No.

DENTON: How much money did you get for

it?

CAUTHERN: Twenty Dollars.

CAUTHERN: Chuck, this ain’t right

DENTON: I know it’s not right, Ronnie. |

know it’s not right. I can tell by looking in your

beady little eyes you’re not telling the truth and

we're wasting our time.

DENTON: What are you doing that for?

CAUTHERN: Rewinding it.

DENTON: Through?

CAUTHERN: Yeah.

DENTON: I need to put on there what time we

terminated, let me handle this, O.K.

CAUTHERN: I say we destroy it.

DENTON: No we’re not going to destroy it.

CAUTHERN: Why?

DENTON: Quit.

CAUTHERN: Come on, Chuck.

DENTON: Quit, Ronnie.

GRIFFY: You through talking Ronnie?

CAUTHERN: Yes. (inaudible)

App. 16

DENTON: Investigation interview terminated

4:53, January 13. Ronnie Cauthern has been

taken back to his cell. Joe Griffy and Charles

Denton terminating the interview.

During the cross-examination of Officer Griff [sic,

Griffy], defense counsel established that defendant had

“worked with” Griffy and Denton, “turning up certain

things” for a period of “at least six months” preceding

the Smith murders; that it was “easy for defendant to talk

to “you”; and that both officers knew, before the third

statement was given that counsel had been appointed to

represent defendant and had advised defendant not to

talk to anyone unless counsel was present. That was the

extent of the evidence of the “friendship” between defen-

dant and the two officers upon which defendant bases his

claim of “coercion and persuasion” to the extent that

defendant’s statements were not freely and voluntarily

given. Without some expression from defendant about

what the prior relationship meant to him and to what

extent it motivated his actions with respect to the state-

ments made, we find that the prior relationship had no

significant effect upon the voluntariness of either of the

statements at issue.

Defendant cites U. S. v. Henry, 447 U.S. 264, 100 S.Ct.

2183 (1980) and Brewer v. Williams, 430 U.S. 387, 97 S.Ct.

1232 (1977) in support of his insistence that the third

statement should be suppressed. Neither case has any

application to the facts in this record. In Henry defendant

made statements to an informer the government had

planted in his cell, unknown to defendant. Obviously

there was no voluntary waiver of rights, as in the case at

ih

App. 17

bar. In Brewer, the police initiated the interrogation, con-

trary to an express agreement with defendant’s counsel,

did not give warnings nor obtain a waiver.

The trial judge expressly found that defendant “vol-

untarily initiated” the interview that resulted in the third

statement, given on the afternoon of 13 January 1987, and

after reading Henry and Brewer, cited to him by defen-

dant’s counsel at the hearing, denied the motion to sup-

press. We find that defendant initiated the interview, was

given full Miranda warnings and freely, knowingly and

voluntarily executed a written waiver of his right to

remain silent and his right to counsel. The U. S. Supreme

Court has clearly sanctioned the admissibility as [sic, of]

a statement given after the appointment of counsel and

even after defendant has “expressed his desire to deal

with police only through counsel”, where defendant initi-

ates further communication, electing “to face the state’s

officers and go it alone,” and knowingly and intelligently

waives his Sixth Amendment right to counsel. Patterson v.

Illinois, 108 S.Ct. 2389 (1988); Edwards v. Arizona, 451

S.W.2d 477, 101 S.Ct. 1880 (1981).

The real problem with the admissibility of the entire

third statement arises with defendant’s efforts to rescind

his waiver of the Fifth Amendment right to remain silent.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602

(1966) the Court held:

Once warnings have been given, the subse-

quent procedure is clear. If the individual indi-

cates in any manner, at any time prior to or

during questioning, that he wishes to remain

silent, the interrogation must cease. At this

point he has shown that he intends to exercise

App. 18

his Fifth Amendment privilege; any statement

taken after the person invokes his privilege can-

not be other than the product of compulsion,

subtle or otherwise. Without the right to cut off

questioning, the setting of in-custody interroga-

tion operates on the individual to overcome free

choice in producing a statement after the privi-

lege has been once invoked.

86 S.Ct. at 1627, 1628

Defendant sought to terminate the interrogation at page

22 of the transcript of his statement when after saying he

was not guilty of rape, murder or taking anything, Officer

Denton said, will you tell us again “just exactly what

happened?” and he responded “No” and attempted to

turn off the tape recorder. The officers should have termi-

nated the interview at that time.

Defense counsel did not focus on that aspect of the

statement in the trial court or in this Court, but we are

compelled to find that the admission of the contents of

the statement, as and after defendant’s first attempt to

turn off the tape recorder was plain error, in violation of

the teachings of Miranda.

That holding requires that we determine whether the

error was harmless or reversible pursuant to the harmless

error test in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824

(1967). See Milton v. Wainwright, 407 U.S. 371, 92 S.Ct.

2174 (1972). We can say without hesitation that the con-

tents of the statement that should have been excluded

from the jury’s consideration, although constitutional in

scope, did not contribute to the verdict that defendant

was guilty of murder in the first degree, and was harm-

less beyond a reasonable doubt on that issue. However,

Pe SS he ee a ew SS

App. 19

the determination of its effect on the verdict of death as

punishment presents a more difficult issue.

As defendant attempted to turn off the machine, he

said he knew what he was facing. It is obvious that he

had reference to the electric chair. He had said at the

beginning of the statement, as a reason for his willingness

to talk to them without his lawyers, that he would rather

die than spend five years in prison. Having revealed

damaging facts that unmistakably implicated him in bur-

glary, rape and murder he faced the prospect of death,

changed his mind and wanted to stop. Later, he suc-

ceeded in turning off the machine and tried to erase the

tape and asked the officers to destroy it.

Defendant’s statement that he knew what he was

facing plus his later statement that: “ . . . | know it’s over

and I know I can’t change it and that’s it. It was my

fault.” followed by, “I mean, I couldn’t stop it, there was

no way for me to.” could have been one of the factors, if

not the leading factor in the jury’s verdict of death in

defendant’s case and life imprisonment in Patterson's

case.’ For that reason we cannot find the admission of

1 There was sufficient evidence of other factors in support

of the jury’s verdict to give Cauthern the death penalty and

Patterson life imprisonment that would enable this Court to

find that the sentence of death was not imposed on Cauthern

in any arbitrary fashion, or was excessive or disproportionate

to the penalty imposed in similar cases. However, that circum-

stance does not alter the fact that the inadmissible portion of

defendant’s 13 January statement cannot be said to have had

no effect on the verdict of death and that it was harmless

beyond a reasonable doubt.

App. 20

that part of the statement harmless with respect to the

verdict of death, and a remand for a resentencing hearing

will be necessary.

In the next issue raised by defendant, he makes an

elaborate argument premised upon the theory that “mal-

ice” was used as an element to obtain a conviction of

murder in the first degree, and that “malice” is syn-

onymous with “heinous”, “atrocious” and “depravity”,

which was used as an aggravating circumstance in the

sentencing phase to obtain the death penalty. Defendant

says that double use of malice violates the Eight Amend-

ment to the U. S. Constitution. Defendant is mistaken,

factually and legally. Defendant was indicted and con-

victed of felony murder. Malice is not an element of

felony murder. There is no Eighth Amendment prohibi-

tion against using an element in the conviction of first

degree murder and using the same element in an aggra-

vating circumstance to support the death penalty. See

Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546 (1988). This

issue has no merit.

Next, defendant says the trial judge abused his dis-

cretion in “refusing to allow individual voir dire regard-

ing pretrial publicity,” and, “to allow defense counsel to

question jurors regarding their feelings about the death

penalty, other than to ask questions based on the stan-

dards set forth in Witherspoon v. Illinois, 391 U.S. 510, 88

S.Ct. 1770 (1968). Defendant failed to cite any particular

ruling, by reference to any volume or page of the record,

by a juror’s name, or otherwise. Our review of the record

to respond to this generalized complaint reveals no fac-

tual basis whatever for either complaint. The trial judge

did permit individual and sequestered voir dire of jurors

App. 21

who indicated in general questioning that they had been

exposed to pretrial publicity. With respect to questioning

about the death penalty, we find that there were several

instances where defendant’s counsel asked wholly

improper questions and the trial judge properly so ruled.

There is no merit to this issue.

Defendant contends that the death penalty statute is

unconstitutional because if any one of the aggravating

circumstances is proven the statute shifts the burden to

defendant to prove mitigating circumstances that out-

weigh the aggravating circumstance; and he says the

statute does not “meaningfully limit the class of death

eligible defendants.” We have considered and rejected

similar constitutional attacks on the statute, most recently

in State v. Thompson, 768 S.W.2d 239 (Tenn. 1989). There is

no merit to this issue.

Finally, defendant asserts that the death penalty is a

cruel and unusual punishment. He relies upon the dis-

senting opinion in State v. Dicks, 615 S.W.2d 126 (Tenn.

1981). We continue to adhere to the majority opinion in

that case.

We find that no prejudicial error was committed

bearing upon the verdict of murder in the first degree,

and that the evidence is such that any rational trier of fact

could find guilt beyond a reasonable doubt in conformity

with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979)

and T.R.A.P. 13 (e). The verdict imposing the death pen-

alty is set aside for the reason given and the case is

remanded to the trial court for a resentencing hearing.

App. 22

/s/ Wm. H. D. Fones

Wm. H. D. Fones,

Justice

Concur:

Drowota, C.].

Cooper, Harbison, O’Brien, JJ.

App. 23

APPENDIX B

Interview with Ronnie Cauthern

Re: Smith Homicides

352 Hampshire Dr.

Page 1 of 30

GRIFFY: Well, I’m right, I guarantee you, I’m right.

DENTON: Give me your date of birth, 09

something.

CAUTHERN: Five.

DENTON: Five.

CAUTHERN: First thing I want to know, is Joe Den-

ning in jail?

DENTON: Not yet.

CAUTHERN: My daddy just told me he was.

GRIFFY: I don’t think he is.

Inaudible.

GRIFFY: He may be but (inaudible)

CAUTHERN: Ya’‘ll charged him with anything?

GRIFFY: We didn’t. Chuck and I didn’t charge him

with anything.

CAUTHERN: He should be.

DENTON: You ready?

CAUTHERN: Uh-huh.

App. 24

DENTON: Joe, are you ready?

CAUTHERN: Have you told him anything?

GRIFFY: Basically, just bits and pieces.

CAUTHERN: I didn’t lie to you Chuck, I just didn’t

tell it.

DENTON: O.K.

CAUTHERN: O.K.

DENTON: I knew when you got ready, you'd tell

(p. 2) CAUTHERN: I had to think about it.

GRIFFY: (inaudible) tell everybody that.

CAUTHERN: But I’, I'll tell you how it is. If I’m

going to have to spend five years, I’d rather just die.

O.K.?

GRIFFY: Now, what now?

CAUTHERN: I mean if I tell you...

DENTON: (inaudible)

CAUTHERN: It is to me, I mean, I’m going to go

crazy up there. I’m going crazy up there now.

GRIFFY: Well.

CAUTHERN: I feel a lot better with warm shoes on.

DENTON: Time is eight minutes after four p.m.,

January 13, 1987. Present, Charles Denton, Joe Griffy, and

Ronnie Cauthern. This will be a taped interview taking

place here at the Montgomery County Jail at the request

App. 25

of Ronnie Cauthern. And Ronnie, I’m going to start and

what I’m going to do here is I’m going to read you your

rights. I want you to read along with me. It says before

we ask you any questions, you must understand your

rights. You have the right to remain silent. Anything you

say can be used against you in Court. You have a right to

talk to a lawyer for advice before we ask you any ques-

tions and to have him with you during questioning. If

you cannot afford to hire a lawyer, one will be appointed

to represent you before questioning, if you wish one. If

you decide to answer any questions now without a law-

yer present, you still have the right to stop answering at

any time. You also have the right to stop answering at

any time until you talk to a lawyer. Do you understand

your rights?

CAUTHERN: Yes.

DENTON: O.K., this is the waiver. You want to talk

to us.

CAUTHERN: My lawyer (inaudible) but he said |

wasn’t supposed to say nothing unless he was here. Does

that mean I can’t?

(p. 3) DENTON: That’s up to you.

CAUTHERN: I mean, you know ...

DENTON: What this is, you can waive your right to

an attorney and talk to us.

CAUTHERN: O.K.

DENTON: It says here, I have read the statement of

my rights and I understand what my rights are. I am

willing to make statements and answer questions. | do

App. 26

not want a lawyer at this time. I understand and know

what I am doing. No promises or threats have been made

to me and no pressure or coercion of any kind has been

used against me. And if you want to talk to us without

your lawyer, you need to sign this right here on these

lines.

CAUTHERN: You got me on tape?

DENTON: Yes, that’s how we, that way we won't

miss anything.

GRIFFY: I got writer’s cramp yesterday.

DENTON: Now, where do you want to start? Do

you want to start at the beginning or you si | where you

want to. I may ask you questions from time ‘9 time, you

just start from wherever you want to start, whatever time.

CAUTHERN: Thursday at 4:30, 4:30 (inaudible), I

got a call, from Rose, come see her and didn’t arrive there

until 10:30 or 11 that night. When I arrived there, I was a

passenger in the Camaro. When I knocked on the back

door, the one she told me to go to, nobody answered.

When I started to leave, the back door was kicked and it

wouldn’t open. The door window was broken and the

door was opened reaching in and turning the handle, a

flashlight was used to look through the house, a pair of

pliers was obtained from the car and the phone line cut. I

went upstairs and went straight to the back bedroom

where Mr. Smith sat up in bed and yelled “who is it”. Mr.

Smith was grabbed. And turned over on the bed and Rose

hadn’t woke up until [ ] Mr. Smith yelled. And she

started to get out of bed and I grabbed her and tried to

get her away.

App. 27

(p. 4) CAUTHERN: Mr. Smith was in the bed and

when he sat up, Mr. Smith was grabbed and turned over

and put under a pillow. And Rose started screaming and |

got here out of the room and took her into the front living

room and told her to stand there and then I told her to go

get in the closet and hide.

DENTON: Which closet?

CAUTHERN: The one in the center bedroom. There

was a fight with Mr. Smith in his room. I went to use the

phone and I didn’t realize it was out. | went back down-

stairs and when I come back up, Mr. Smith was dead or

he was just laying there out. I don’t think he was dead,

though, cause you could still hear him. There was a

pillow case laying on the bed, it was stretched out and |

ran through the house again, went back downstairs and |

come back up. Rose wasn’t in the closet and she was in

the house and was being grabbed.

DENTON: Which room were they in?

CAUTHERN: She wasn’t in the room then, she

come back up the hall and was grabbed and she was

going back into the bedroom. And she took her clothes

off, voluntarily.

DENTON: Where?

CAUTHERN: In the center bedroom, then she told

me she was sorry. A rope was tied around Mr. Smith’s

neck.

DENTON: Where did the rope come from?

CAUTHERN: Out of a coat pocket. A black jacket.

App. 28

DENTON: What color coat did you wear?

CAUTHERN: A gray jacket identical to this one.

DENTON: Kind of like a Member’s Only?

CAUTHERN: No, it wasn’t a Member’s Only, it

was, it was made out of material.

DENTON: But it was like, that is similar to a Mem-

ber’s Only Jacket?

(p. 5) CAUTHERN: Right.

DENTON: It was that type of jacket?

~ CAUTHERN: Right, but it was material. And it was

insulated. Nothing else happened (inaudible). Mrs. Smith

was going to be choked, I went to stop this but couldn’t

and the choking proceeded.

DENTON: How was she choked?

CAUTHERN: By grabbing her neck and pulling a

scarf back on it.

DENTON: Where was the scarf?

CAUTHERN: It was around her neck

DENTON: Already around her neck?

CAUTHERN: It was already around her.

DENTON: Do you know where the scarf came

from?

CAUTHERN: No.

DENTON: Was it brought to this house?

App. 29

CAUTHERN: No.

DENTON: It was at her house?

CAUTHERN: It had to have been.

DENTON: When you saw her, the scarf was around

her neck.

CAUTHERN: Right.

DENTON: And then what happened?

CAUTHERN: The choking of Mrs. Smith began then

stopped and she, I think she was still alive. Cause |

checked and said we have to leave and leave them alone

and then I went back upstairs and a ball or something

was twisted on her neck and left her there, and nothing

was taken from the house, nothing was mentioned.

DENTON: And then what did you do?

(p. 6) CAUTHERN: Left.

DENTON: Where did you go?

CAUTHERN: Went straight to RockVegas.

DENTON: O.K., who did you see at RockVegas?

CAUTHERN: I saw Johnny the bartender,

Jackie...

DENTON: Jackie who?

CAUTHERN: Lambert.

DENTON: Is that a male or female?

CAUTHERN: It’s a girl.

App. 30

DENTON: How long did you stay there?

CAUTHERN: At RockVegas, about two hours. This

all took place in less than thirty minutes.

DENTON: At the house?

CAUTHERN: Right.

DENTON: What did you cut the telephone line

with?

CAUTHERN: A pair of wire cutters.

DENTON: Where did you get them?

CAUTHERN: Out of a tool box in my car.

DENTON: Did you put them back in the tool box?

CAUTHERN: I don’t know.

DENTON: Did you see the wire cutters any more

that night?

CAUTHERN: Unh-Unh (negative response).

DENTON: Have you seen them since?

CAUTHERN: No.

DENTON: Do you know if they’re still in your tool

box?

CAUTHERN: Not my tool box.

(p. 7) CAUTHERN: (inaudible) one handle...

DENTON: Orange handle?

CAUTHERN: It’s a kit.

App. 31

DENTON: In a little plastic box container or?

CAUTHERN: Yes, it’s a plastic kit with needlenose,

wire cutters___, and I believe it’s got a screw-driver. And

the rope is the same kind that was on the kitchen table.

DENTON: Was it a military type rope?

CAUTHERN: On a big spool. And you found the

sawed-off shotgun that belongs to Joe Denning; the .45

belongs to Joe Denning and the .38 and one holster.

DENTON: Where is the .38?

CAUTHERN: I don’t know.

DENTON: When was the last time you saw it?

CAUTHERN:. It was in the holster in the back with

the shotgun.

DENTON: What night?

CAUTHERN: Uh, Saturday night.

DENTON: Did you have sex with Ms. Smith?

CAUTHERN: I saw her the day before.

DENTON: What time?

CAUTHERN: About 7 in the afternoon.

DENTON: Seven in the evening. Where did you see

her?

CAUTHERN: I saw her at Faith Drive and we went

out to dinner.

DENTON: Where did you go?

ot ls Lae

as a ete

App. 32

CAUTHERN: We went out to dinner at Stacey’s and

as soon as we left there we went straight back to Faith

Drive and I went in.

(p. 8) DENTON: O.K., so you’re sayig [sic, saying]

you’ve been seeing her for some time.

CAUTHERN: On and off.

DENTON: And you’ve had sex with her in the past.

Did you have sex with her the night before she died?

CAUTHERN: Yes.

DENTON: There at the house?

CAUTHERN: Not at her house.

DENTON: Where did you have sex with her at?

CAUTHERN: At Faith Drive.

DENTON: Do you know that address?

CAUTHERN: Faith Drive.

DENTON: Was anyone else there?

CAUTHERN: No.

DENTON: What time of night was it when you got

to the trailer and had sex with Mrs. Smith?

CAUTHERN: It wasn’t a trailer.

DENTON: Faith Drive.

CAUTHERN: It was late, uh, it was between, after

dinner, cause we couldn’t go out and eat nowhere

because Mr. Smith might see us.

App. 33

DENTON: You met her at her house?

CAUTHERN: No, I did not meet here at her house,

never met her at her house.

DENTON: Where did you have, where did you

make contact with her?

CAUTHERN: Faith Drive.

DENTON: She met you at Faith Drive?

CAUTHERN: Right.

(p. 9) DENTON: And then you went and eat?

CAUTHERN: Right.

DENTON: At Stacey’s Restaurant?

CAUTHERN: I didn’t go in to eat.

DENTON: How did you...

CAUTHERN: Went in and ordered two hamburgers

and left.

DENTON: Who ordered it?

CAUTHERN: I did.

DENTON: You went inside and ordered two ham-

burgers. Did anybody see her with you?

CAUTHERN: No.

DENTON: Whose car were you in?

CAUTHERN: Mine.

DENTON: Which car?

App. 34

CAUTHERN: The Camaro.

DENTON: Then you went back to Faith Drive?

CAUTHERN: Right?

DENTON: Where ya’ll went inside and how long

was you there?

CAUTHERN: Aj hour.

DENTON: You had sex and...

CAUTHERN: She left in her car.

DENTON: Say yes if you had sex.

CAUTHERN: Yes.

DENTON: The tape recorder won’t pick up nods

and head movement. And then what happened?

CAUTHERN: She left. And called me the next day?

DENTON: And called where?

(p. 10) CAUTHERN: Called. First, she called out to

Tom’s house and there was no answer and she called out

in the country where I was working on a Car.

DENTON: Where?

CAUTHERN: Out in Erin.

DENTON: Whose house?

CAUTHERN: Dean Akin.

DENTON: Was he there?

CAUTHERN: No.

App. 35

DENTON: Was anyone there?

CAUTHERN: His son was there.

DENTON: Did his son answer the phone?

CAUTHERN: Yes.

DENTON: O.K., who told you that she called out

there?

CAUTHERN: They told me someone calied.

DENTON: They told you that someone called.

CAUTHERN: They didn’t tell me that it was her.

DENTON: O.K. Go ahead.

CAUTHERN: Uh, I figured it was her and | called

her house to check.

DENTON: And what time was this when you called

her house?

CAUTHERN: I called several times that day and

didn’t get an answer, it was after she got off work, it was

around 5:00.

DENTON: What time does she normally get off?

CAUTHERN: 4:30.

DENTON: She usually gets home at what time?

(p. 11) CAUTHERN: Five.

DENTON: On any other occasions, have you had

sex with her?

CAUTHERN: Yeah.

App. 36

DENTON: How long ago?

CAUTHERN: Uh, months ago. When I worked on

their car.

DENTON: Where did you work on their car?

CAUTHERN: Always at my house.

DENTON: She’d drive her car to your house?

CAUTHERN: No, it’d be the Mercedes; that was the

only car I worked on.

DENTON: Where did you have sex with her months

ago?

CAUTHERN: In the car.

DENTON: In the mercedes?

CAUTHERN: Right.

DENTON: Where were you parked?

CAUTHERN: On a gravel road out there.

DENTON: How did the Mercedes get to your

house?

CAUTHERN: She drove it.

DENTON: You worked on the vehicle...

CAUTHERN: Right.

DENTON: After you got, through, what?

CAUTHERN: We had sex, she paid me, she went

home.

DENTON: How much did she pay you for working

on the vehicle?

App. 37

CAUTHERN: That time, it was seventy-five dollars.

DENTON: What type of work did you do on the

vehicle?

CAUTHERN: Stereo, I put an antenna in it, put cord

in it and (p. 12) put new speakers in the front.

DENTON: Is that the first time you ever had sex

with her?

CAUTHERN: Yes.

DENTON: About what time of the night was it?

CAUTHERN: About nine or ten o'clock.

Inaudible due to announcement coming over jail

loudspeaker.

CAUTHERN: And Mr. Smith drove hers and she

drove the mercedes.

DENTON: So you’ve had sex with her on more than

one occasion?

CAUTHERN: Right.

DENTON: How many occasions?

CAUTHERN: Twice.

DENTON: Did anyone see her come to Faith Drive

the night that she met you at Faith Drive.

CAUTHERN: Maybe the neighbors.

DENTON: What car was she in?

CAUTHERN: The Mercedes.

App. 38

DENTON: Where did she say her husband was?

CAUTHERN: She didn’t.

DENTON: O.K. Going back to the house, did you

have on gloves?

CAUTHERN: No.

DENTON: You didn’t have on gloves. Was a ski

mask worn?

CAUTHERN: No.

DENTON: Was Mrs. Smith raped?

CAUTHERN: Yes.

(p. 13) DENTON: She tell you she was raped?

CAUTHERN: She wasn’t raped, she went along

with it.

DENTON: After seeing that her husband was dead?

CAUTHERN: No. She didn’t ask about her hus-

band; she took her clothes off in front of me.

DENTON: And where did she take her clothes of*?

CAUTHERN: In the bedroom.

DENTON: Which one?

CAUTHERN: The center bedroom. And she laid

down on the bed.

DENTON: What kind of clothes did she have on?

CAUTHERN: Some kind of nightgown.

DENTON: What color?

App. 39

CAUTHERN: I don’t know.

DENTON: Was it long, short, describe it.

CAUTHERN: Long.

DENTON: Light-colored, dark-colored?

CAUTHERN: Light-colored.

DENTON: Did she have on underclothes?

CAUTHERN: I don’t know.

DENTON: What did she say to you during all this?

CAUTHERN: She said she was sorry.

DENTON: Sorry about what?

CAUTHERN: That she done something like that.

DENTON: Did she say anything else to you?

CAUTHERN: No. She didn’t even ask about

Patrick, her husband.

(p. 14) DENTON: Did she ever know that he was

dead?

CAUTHERN: I don’t know.

DENTON: Did you drink any wine coolers while

you were there at the house?

CAUTHERN: No.

DENTON: Were any drank?

CAUTHERN: Yes.

DENTON: How many?

App. 40

CAUTHERN: Two.

DENTON: Where were they?

CAUTHERN: They were, I don’t know where they

came from.

DENTON: Where did you see them being drunk?

CAUTHERN: One upstairs and one before leaving.

DENTON: Did you rape Ms. Smith?

CAUTHERN: No.

DENTON: Were you wearing gloves?

CAUTHERN: No.

DENTON: Are you positive?

CAUTHERN: I’m positive. I was not wearing any

gloves.

DENTON: Are you telling me the truth?

CAUTHERN: I'm telling you the truth. I was not

wearing gloves.

DENTON: Did you remove any items from the

house?

CAUTHERN: No, nothing.

DENTON: Was anything removed?

CAUTHERN: I don’t know, what I told Joe, when I

found all this stuff in my car.

(p. 15) DENTON: Did you ride in the same car

back?

App. 41

CAUTHERN: Yes, to RockVegas.

DENTON: You were in this Camaro?

CAUTHERN: Right.

DENTON: It’s a small car?

CAUTHERN: Right.

DENTON: Were there any items in the car?

CAUTHERN: Nothing. Nothing was in the car.

DENTON: To this day, do you know of anything

that was taken out of the house?

CAUTHERN: Credit cards.

DENTON: Anything else?

CAUTHERN: A jacket.

DENTON: What else?

CAUTHERN: A gray Member’s Only jacket made

out of leather.

DENTON: O.K. What else was taken from the

house?

CAUTHERN: That’s it.

DENTON: Was a VCR taken?

CAUTHERN: I don’t think so, I never saw one.

DENTON: Would you have seen it if it were in the

Camaro?

CAUTHERN: Yes, because the trunk was full and

there was no room in the back seat to put one.

DENTON: Were any gloves worn?

App. 42

CAUTHERN: A right hand glove.

DENTON: Did you remove one watch and one ring

from that house?

CAUTHERN: No.

(p. 16) DENTON: Did you give a watch and ring to

a young lady here in town? That works at the

Showdown’s?

CAUTHERN: Yes.

DENTON: When did you give the watch and the

ring . . . What’s the lady’s name?

CAUTHERN: Jackie.

DENTON: When did you give her these items?

CAUTHERN: I gave them to her Saturday night

when I saw the credit cards.

DENTON: Did you tell her where you got them?

CAUTHERN: No. Yes.

DENTON: That’s all you told her?

CAUTHERN: Right.

DENTON: Describe the watch.

CAUTHERN: It was small and it was gold, I’m not

sure what kind of watch it was-

DENTON: Describe the ring.

CAUTHERN: It was gold, had little bitty sapphire

thing on it and a little one on the bottom.

App. 43

DENTON: Have you ever seen that ring or that

watch or Ms. Smith’s hand?

CAUTHERN: No, never.

DENTON: Did you go by the house and break into

the house and commit the act of burglary thinking no one

would be there?

CAUTHERN: No. I want to the house due to the

fact I talked to her and she told me to come by and knock

on the back door.

~ DENTON: Did you look in the basement where the

cars are?

CAUTHERN: No.

(p. 17) DENTON: Did you raise the garage door?

CAUTHERN: No.

DENTON: Was an attempt made to raise the garage

door?

CAUTHERN: Not while I was there.

DENTON: Did you open any drawers or closets in

the house?

CAUTHERN: No, nothing in the house was touched

when I left.

DENTON: You didn’t stack any books...

CAUTHERN: No.

DENTON: Downstairs, where the VCR was sitting?

CAUTHERN: No. Nothing in the house was

touched when I left. Not anything.

App. 44

DENTON: Do you have questions, Joe?

GRIFFY: Yesterday you told me that you did have

sex with Ms. Smith while you were in the house, right?

CAUTHERN: Right.

GRIFFY: Now you say you didn’t, why are you

telling us something different today than yesterday?

CAUTHERN: I did both days.

GRIFFY: You mean you broke in the house and did

have sex with Ms. Smith?

CAUTHERN: Right.

GRIFFY: And yesterday, you told me that ya’ left

the house first time, that her purse was taken.

CAUTHERN: That’s right, and the credit cards.

GRIFFY: And the purse. While ago, you said you

didn’t take nothing the first time you were there.

(inaudible)

DENTON: Answer yes or no.

GRIFFY: Yes, the purse was taken when ya left?

(p. 18) CAUTHERN: The purse was taken but noth-

ing was taken out of the purse.

DENTON: Did you have a .38 revolver with you

when you went in the house?

CAUTHERN: No.

DENTON: Did you have a penlite?

CAUTHERN: No. There was one penlite.

App. 45

DENTON: One penlite?

CAUTHERN: Right.

DENTON: Did you have a short section of rope in

your pocket.

CAUTHERN: No, but there was a short section of

rope in a pocket.

DENTON: You didn’t have a short rope...

CAUTHERN: No. I didn’t even know a short rope

was brought. And I didn’t touch either one of the victims.

GRIFFY: I’ve got another question. You said you

didn’t want Pat, Ms. [sic, Mr.] Smith, her husband, to

know that, that’s why you didn’t go into Stacey’s, you

didn’t want him to see you together? And yet you'd go to

the house at night, pretty sure he’d be at home at night,

didn’t you?

CAUTHERN: No.

GRIFFY: Didn’t think he’d be there?

CAUTHERN: No, he was not supposed to be there.

GRIFFY: O.K., is that why you went out there?

CAUTHERN: Right. Because a lot of times, he

leaves her alone.

GRIFFY: O.K., you said yesterday something about

she was planning on having him killed.

CAUTHERN: She was going to get rid of him.

(p. 19) GRIFFY: Get rid of him, yesterday you said.

App. 46

CAUTHERN: She said she was gonna get rid of

him, no matter what it took.

GRIFFY: All right.

DENTON: Did you help kill Mr. Smith?

CAUTHERN: No.

DENTON: Did you jump on the bed?

CAUTHERN: No.

DENTON: Did you cut the telephone wires?

CAUTHERN: No. I didn’t cut the telephone wires. I

didn’t jump on the bed, and I didn’t strangle either one of

them.

DENTON: You had been at their house before?

CAUTHERN: To the front doorstep.

DENTON: Never been no further?

CAUTHERN: No.

DENTON: You’ve done work for them in the past?

CAUTHERN: Yes.

DENTON: Yard work?

CAUTHERN: No, never, I’ve never went to their

house for any other reason than to pick up a check one

time.

DENTON: Did Mr. Smith ever take you to a doctor?

CAUTHERN: No, he didn’t ever take me to a doc-

tor. I met him at the hospital and he went with me to the

emergency room to get a piece of metal out of my eye.

App. 47

DENTON: How long have you known them?

CAUTHERN: No more than a year.

DENTON: Been friends with them?

(p. 20) CAUTHERN: Right.

DENTON: They’ve been to your house? Both of

them?

CAUTHERN: Right.

DENTON: And they’ve (inaudible) there before?

CAUTHERN: No.

DENTON: How often have you talked to Ms. Smith

over the past year? How many times a month would you

have a conversation (inaudible)?

CAUTHERN: I’ve seen them once every two or

three months.

DENTON: The work you done, they paid you?

CAUTHERN: Right.

CAUTHERN: I was at RockVegas before I left to go

to the Smith house.

DENTON: Did you go by Charlie Hand’s house that

night?

CAUTHERN: No.

DENTON: Had ya’ planned on breaking into Char-

lie Hand’s house?

CAUTHERN: No.

App. 48

DENTON: Or robbing Charlie Hand?

CAUTHERN: No.

DENTON: And then decided to go to the Smith’s

house instead when you found the vehicle not there?

CAUTHERN: No.

DENTON: Did you tell Joe last night that she was

raped before you raped her.

CAUTHERN: No.

DENTON: But yet, she lay there and didn’t offer

any resistance.

(p. 21) CAUTHERN: No, she didn’t.

DENTON: She offered no resistance?

CAUTHERN: No.

DENTON: Did she give sex willingly last, that

night?

CAUTHERN: Yes.

DENTON: Two times?

CAUTHERN: Yes.

DENTON: With her husband in the bedroom?

CAUTHERN: Yes, she did.

DENTON: After being woke up in her own home in

bed with a flashlight in her eyes, she gave sex to you?

CAUTHERN: Yes, she did.

DENTON: Offered no resistance?

App. 49

CAUTHERN: No resistance.

DENTON: Were you standing there when Mr. Smith

was strangled to death?

CAUTHERN: No, I was not.

DENTON: Where were you?

CAUTHERN: I was hiding her in the closet and

running out of the house.

DENTON: Ran out of the house?

CAUTHERN: Right.

DENTON: Run out the back door or the front door?

CAUTHERN: Back door.

DENTON: Where did you go?

CAUTHERN: I went out to the car, to leave and |

heard her scream and came back in.

DENTON: So, all of this that happened, you're not

(p. 22) responsible for any of it?

CAUTHERN: I didn’t strangle anybody, I didn’t

take anything and I didn’t plan it.

DENTON: Why did you go in?

CAUTHERN: I don’t know.

DENTON: Well nobody else knows if you don’t

know. Tell me why you went in the house.

CAUTHERN: When the back door was kicked in, |

followed.

App. 50

DENTON: Did you hear somebody upstairs?

CAUTHERN: A noise was heard and that’s when

the phone line was cut.

DENTON: Could you have left?

CAUTHERN: Yes, I could have left.

DENTON: Was you driving the Camaro that night?

CAUTHERN: No, I didn’t have the keys to the

Camaro.

DENTON: But you could have left?

CAUTHERN: I could have ran, yes.

DENTON: Why didn’t you?

CAUTHERN: I didn’t know what else to do.

DENTON: So you stayed there, went in the house

after the phone lines were cut, you burglarized the house,

you broke in the house, you went upstairs and you

watched Mr. Smith being strangled to death on his bed,

while you put her in the closet?

CAUTHERN: He wasn’t being strangled (inaudible)

it was a fight.

DENTON: Fighting on the bed?

CAUTHERN: Yes.

DENTON: Did the bed break during the fight?

CAUTHERN: I don’t know.

(p. 23) DENTON: You saw all this happening . . .

App. 51

CAUTHERN: And I ran to the phone and it didn’t

work...

DENTON: So you touched the phone and your fin-

gerprints should be on that phone?

CAUTHERN: Right.

DENTON: Which phone did you run to?

CAUTHERN: The one in the front, near the kitchen.

DENTON: What color was the phone?

CAUTHERN: I don’t know, it was dark.

DENTON: How did you know your way around in

the dark, to be able to run through the house and you had

never been in it?

CAUTHERN: I didn’t.

DENTON: Did you knock over anything?

CAUTHERN: I don’t know.

DENTON: So you ran through the room and you

just happened to make it without hitting anything, back

to the phone in the kitchen, where was the phone?

CAUTHERN: The phone was near the back of the

house, sitting on a shelf.

DENTON: Was the phone dark or light?

CAUTHERN: I don’t know.

DENTON: How did you know it was a phone if you

couldn’t see?

CAUTHERN: The shape of it.

App. 52

DENTON: How did you know there was a phone in

that room?

CAUTHERN: I didn’t.

DENTON: But yet you ran to that room in the

house.

CAUTHERN: I went (inaudible)

(p. 24) DENTON: In a dark house.

CAUTHERN: And there should be fingerprints?

DENTON: And you, what time did you know Mr.

Smith was dead?

CAUTHERN: When I left.

DENTON: How did you know?

CAUTHERN: I was told he was.

DENTON: When did you know Ms. Smith was

dead?

CAUTHERN: When I left.

DENTON: This is somebody you are supposed to

have had a love affair with, right?

CAUTHERN: Yes.

DENTON: And possibly even talked to her about

killing her husband?

CAUTHERN: Yes.

DENTON: And yet you had sex with her knowing

this?

App. 53

CAUTHERN: Knowing what?

DENTON: What all was taking place at the time.

CAUTHERN: Yes.

DENTON: Are you wanting to change any of your

statement at this time?

CAUTHERN: No.

DENTON: You had knowledge that both victims

were dead, that a burglary had been committed, phone

lines cut, merchandise taken from the house, and you

didn’t call the police?

CAUTHERN: No.

DENTON: Why?

CAUTHERN: Cause I knew I would be a prime

suspect, cause I (p. 25) knew the people.

DENTON: Are you a prime suspect?

CAUTHERN: Yes, I am.

DENTON: Are you guilty?

CAUTHERN: Of murder, no.

DENTON: What are you guilty of?

CAUTHERN: Going in.

DENTON: That's all you're guilty of?

CAUTHERN: Not rape and not murder and not tak-

ing anything.

DENTON: Would you consider that to be an acces-

sory to murder?

App. 54

CAUTHERN: Yes, I would.

DENTON: Then, you’re just as guilty, aren’t you?

CAUTHERN: Yes, I am.

DENTON: After telling me things, would you like

to tell me again, just exactly this time, just exactly what

happened?

CAUTHERN: No.

DENTON: Why?

CAUTHERN: Cause I know what I’m facing.

(attempted to turn off machine)

DENTON: It’s got to stay on.

CAUTHERN: No, Chuck.

DENTON: Do you know of anything else that was

taken out of the house?

CAUTHERN: A man’s wedding band was taken

and pawned in a pawn shop.

DENTON: Do you know which one?

(p. 26) CAUTHERN: No.

DENTON: How much money did you get for it?

CAUTHERN: Twenty dollars.

DENTON: Anything else?

CAUTHERN: No.

DENTON: Clothes?

CAUTHERN: No.

Mere 4 ae oe ae

App. 55

DENTON: No clothes were taken out of the house?

CAUTHERN: A jacket.

DENTON: Other than the jacket?

CAUTHERN: No.

DENTON: A suitcase?

CAUTHERN: No.

DENTON: Two suitcases?

CAUTHERN: Yes, yes, there were suitcases taken

out.

DENTON: What was in the suitcases?

CAUTHERN: Nothing.

DENTON: Clothes?

CAUTHERN: There was nothing in the suitcases

when I saw them.

DENTON: How big were the suitcases?

CAUTHERN: One big one.

DENTON: How big? How many inches would you

say it was?

CAUTHERN: Thirty inches (inaudible) twelve

inches (wide or long).

DENTON: What color was it?

CAUTHERN: Tan and brown.

(p. 27) DENTON: Where was it put?

App. 56

CAUTHERN: At Faith Drive in the bedroom.

DENTON: What time did you leave the house?

CAUTHERN: Around ten or ten thirty and was in

there thirty minutes.

CAUTHERN: I was at RockVegas after leaving the

Smith house.

DENTON: Who saw you there?

CAUTHERN: Johnny the bartender, Jackie, and

other people who were there that know me.

DENTON: What time did you get there?

CAUTHERN: Eleven, eleven-fifteen.

DENTON: What time did you leave?

CAUTHERN: Late.

DENTON: How late?

CAUTHERN: Two or three in the morning.

CENTON: Who saw you leave?

CAUTHERN: The security guard.

DENTON: Where did you go?

CAUTHERN: I went back to Faith Drive.

DENTON: Which car did you drive back to Faith

Drive?

CAUTHERN: I didn’t, I walked.

DENTON: You walked back to Faith Drive?

App. 57

CAUTHERN: I walked back to Faith Drive. Joe was

there.

DENTON: Joe who?

CAUTHERN: Joe Denning was at RockVegas while I

was there. Chuck...

[CAUTHERN TURNS VISIBLE TAPE RECORDER OFF]

(p. 28) DENTON: Don’t cut it off.

CAUTHERN: And I know it’s over and I know I

can’t change it and that’s it. It was my fault.

DENTON: We can’t cut this off, they’ll throw every-

thing out.

CAUTHERN: They can throw it all out.

DENTON: It’s got to stay on.

CAUTHERN: No, Chuck.

DENTON: Go ahead.

CAUTHERN: I mean, I couldn’t stop it, there was

no way for me to.

DENTON: Ronnie, you planned this thing.

CAUTHERN: No, I didn’t. —

DENTON: You went to this house?

CAUTHERN: I didn’t plan it, Chuck, | did not plan

it. I didn’t know entry was going to be made into the

house and I knocked on the door for her to come

downstairs.

DENTON: Ronnie, you sit here and lie to me again.

You’ve said that you didn’t take the stuff out, the watch

App. 58

and the ring were brought back to the office today by the

young lady you give it to.

CAUTHERN: I didn’t take it. There’s a wedding

band from him too, somewhere. In a pawn shop.

DENTON: Which pawn shop?

CAUTHERN: I don’t know. The ring was pawned

for twenty dollars.

(p. 29) DENTON: Do you know of anything else

that was taken out of the house?

CAUTHERN: A man’s wedding band was taken

and pawned at a pawn shop.

DENTON: Do you know which one?

CAUTHERN: No.

DENTON: How much money did you get for it?

CAUTHERN: Twenty Dollars.

CAUTHERN: Chuck, this ain’t right.

DENTON: I know it’s not right Ronnie. I know it’s

not right. I can tell by looking in your beady little eyes

you’re not telling the truth and we’re wasting our time.

DENTON: What are you doing that for?

CAUTHERN: Rewinding it.

DENTON: Through?

CAUTHERN: Yeah.

DENTON: I need to put on there what time we

terminated, let me handle this, O.K.

App. 59

CAUTHERN: I say we destroy it.

DENTON: No we’re not going to destroy it.

CAUTHERN: Why?

DENTON: Quit.

CAUTHERN: Come on Chuck.

DENTON: Quit, Ronnie.

GRIFFY: You through talking Ronnie?

CAUTHERN: Yes. (inaudible)

DENTON: Investigation interview terminated 4:53,

January 13. Ronnie Cauthern has been taken back to his

(p. 30) cell. Joe Griffy and Charles Denton terminating the

interview.