Courtney Mathews &
soldier was convicted of murder for the deaths of four Taco Bell
workers during a robbery in 1994, David Housler -- who confessed to
being the getaway driver and lookout man-- was handed a mandatory
sentence of life in prison. "You've just convicted an innocent 23-year-old
man," defense attorney Michael Terry told the jury.
Radcliff, Ky., was found guilty of helping gunman and fellow Fort
Campbell soldier Courtney Mathews, 23. Mathews, who had worked at the
Taco Bell for 10 days as a part-time dishwasher and food handler,
forced his co-workers to lie on the floor after the restaurant closed,
then shot them. The safe and the cash register were cleaned out, but
the amount taken was not disclosed.
Man Convicted In 1994 Murders Released
Getaway Driver David Housler To Be Supervised Over
October 4, 2010
CLARKSVILLE, Tenn. --
A man once convicted in murders at a Clarksville Taco Bell has
been released from prison after 15 years.
Channel 4's news partners at the Leaf-Chronicle
reported David Housler will live with his parents and be supervised
over the phone while the district attorney decides whether to try him
Last month, a judge ruled Housler's attorneys
should have challenged inconsistencies during his first trial and
overturned his four life sentence convictions.
Prosecutors said Housler served as the getaway
driver for Courtney Matthews, who's in prison for shooting four
workers during a 1994 robbery.
Bond for man convicted in Taco Bell slayings
October 4, 2010
CLARKSVILLE, Tenn. – A
Montgomery County judge on Monday ruled to lower a convicted killer's
bond after granting him a new trial last month.
David Housler was convicted of
the murders of four Taco Bell employees who were found shot to death
on January 30, 1994 inside the Clarksville restaurant.
Last month, Judge John H.
Gasaway ruled that Housler, now 36, received ineffective counsel from
his attorney during his first trial and should be granted a new trial.
Monday, he agreed to reduce his
bond to $15,000. Housler was released from prison just hours later.
Housler will reside with his
parents in Radcliff, Kentucky and be supervised via telephone.
The district attorney's office
said it would review the case and decide if they would prosecute again.
Housler wasn't the gunman in the
murders but in 1997, a jury sentenced him to four life sentences in
prison for helping plan the crime.
Housler confessed to being an
accomplice of convicted triggerman Courtney Mathews but later said he
made up the confession in order to testify against Mathews to get
leniency on an unrelated theft charge.
"We are very pleased with the
judge's decision," said Housler's attorney, Paul Hemmersbaugh. "We
think it will give David Housler an opportunity to try to get on with
his life, to go back to his hometown and resume life where it was
interrupted these 17 years ago."
Mathews was also sentenced to
four life sentences without the possibility of parole.
STATE v. HOUSLER
STATE of Tennessee v. David G. HOUSLER.
July 15, 2005
JANICE M. HOLDER, J., delivered the opinion of the
court, in which FRANK F. DROWOTA, III, C.J., and E. RILEY ANDERSON,
ADOLPHO A. BIRCH, JR., and WILLIAM M. BARKER, JJ., joined.
Michael E. Terry, Nashville, Tennessee, for the
Defendant-Appellant, David G. Housler.Paul G. Summers, Attorney
General and Reporter; Michael E. Moore, Solicitor General; and
Joseph F. Whalen, III, Assistant Attorney General, for the Plaintiff-Appellee,
State of Tennessee.
We granted review to determine whether the Court of
Criminal Appeals erred in reversing the trial court's order
supplementing the appellate record in the defendant's case with the
transcript of co-defendant Courtney Mathews' trial. We conclude that
the trial court properly supplemented the record. Accordingly, we
reverse the judgment of the Court of Criminal Appeals. We order
supplementation of the appellate record with the Mathews transcript
for consideration in the defendant's related Rule 11 appeal pending in
The defendant, David G. Housler, and his co-defendant,
Courtney Mathews, were indicted for four counts of felony murder in
connection with the 1994 deaths of four Taco Bell employees in
Clarksville, Tennessee. The same judge presided over their separate
trials. In 1996, Mathews was convicted as charged. The transcript
of the Mathews trial was prepared in June 1997. Housler's trial was
held in November 1997. Housler was convicted as charged and
sentenced to life imprisonment.
Housler appealed his convictions to the Court of
Criminal Appeals. He raised several issues, including whether the
State presented inconsistent theories in the trials of Housler and
Mathews in violation of Housler's due process rights. According to
Housler, the State argued at Mathews' trial that Mathews acted alone
in committing the murders but argued at Housler's trial that Housler
acted as Mathews' look-out. Housler attached the Mathews transcript
to his appellate brief. The Court of Criminal Appeals refused to
consider the transcript because it was not properly certified and was
not part of the appellate record. Housler then filed a motion
requesting that the Court of Criminal Appeals supplement the record
with the “full record” of the Mathews trial. In the alternative,
Housler requested that the Court of Criminal Appeals direct the trial
court to supplement the record with the Mathews transcript. The
Court of Criminal Appeals denied Housler's motion.
Thereafter, Housler filed a motion in the trial
court requesting that the trial court supplement the record with the
Mathews transcript. The trial court granted Housler's motion,
finding that without supplementation and certification of the Mathews
transcript the record did not accurately disclose the factual basis
for Housler's due process claim of inconsistent theories and the
court's decision regarding that issue. The Court of Criminal Appeals
granted the State's application for extraordinary review pursuant to
Tennessee Rule of Appellate Procedure 10 and reversed the trial
court's order supplementing the record. The Court of Criminal
Appeals held that supplementation of the record was inappropriate
because the Mathews transcript was not introduced in the trial court
and was not properly certified. We granted review.
Tennessee Rule of Appellate Procedure 24 governs
the content of the record on appeal. The record on appeal consists
of papers 1
and exhibits filed in the trial court, the transcript or statement of
the evidence, any requests for instructions, and “any other matter
designated by a party and properly includable in the record as
provided in subdivision (g) of this rule.” Tenn. R.App. P. 24(a).
The purpose of the appellate record is to “convey a fair, accurate and
complete account of what transpired with respect to those issues that
are the bases of appeal.” Id. The procedure for correction or
modification of the record is set forth in subdivision (e) of Rule 24,
If any matter properly includable is omitted from
the record, is improperly included, or is misstated therein, the
record may be corrected or modified to conform to the truth. Any
differences regarding whether the record accurately discloses what
occurred in the trial court shall be submitted to and settled by the
trial court regardless of whether the record has been transmitted to
the appellate court. Absent extraordinary circumstances, the
determination of the trial court is conclusive. If necessary, the
appellate or trial court may direct that a supplemental record be
certified and transmitted.
The trial court's authority to add to or subtract
from the record is not unlimited. Subdivision (g) of Rule 24
[n]othing in this rule shall be construed as
empowering the parties or any court to add or subtract from the record
except insofar as may be necessary to convey a fair, accurate and
complete account of what transpired in the trial court with respect to
those issues that are the bases of appeal.
The procedure for correcting or modifying the
record reflects the dual goals of avoiding technicality and expediting
a just resolution of the case on its merits. These goals are
achieved by according deference to the trial court's decision as to
which matters are properly includable in the record, thereby avoiding
additional litigation on that subject alone. Bradshaw v. Daniel, 854
S.W.2d 865, 868 (Tenn.1993). The trial court is in the best position
to determine those matters necessary to provide a fair, accurate, and
complete account of the proceedings upon which the appeal is based. Id.
at 869; see also Artrip v. Crilley, 688 S.W.2d 451, 453 (Tenn.Ct.App.1985)
(identifying the trial court as the final arbiter of the transcript or
statement of the evidence).
This Court has upheld supplementation of the record
by the trial court under Rule 24 in several cases involving matters
not introduced into evidence at trial. In Johnson v. Hardin, 926 S.W.2d
236 (Tenn.1996), the plaintiffs attached transcript portions to their
motion for a new trial but failed to follow the provisions of Rule 24
for filing a partial transcript. The trial court granted the
plaintiffs' request to supplement the record with the appropriately
certified portion of the transcript already contained in the technical
record. The Court of Appeals reversed the trial court and dismissed
the appeal. We reversed the Court of Appeals, holding that the trial
judge's determination that the partial transcript conveyed a fair,
accurate and complete account of what transpired at trial with respect
to the single issue raised on appeal was conclusive. Johnson, 926 S.W.2d
In State v. Causby, 706 S.W.2d 628, 633 (Tenn.1986),
this Court held that the Court of Criminal Appeals erred in failing to
consider affidavits that had not been admitted into evidence but had
been filed with the trial court in support of the motion for a new
trial. We reasoned that the affidavits alleging improper jury
separation were “properly includable” in the record because, once the
affidavits were filed, Tennessee Rule of Criminal Procedure 33(c) 2
mandated that they be considered as evidence. Causby, 706 S.W.2d at
In Bradshaw, a new trial had been granted to the
plaintiff after a trial on the merits. 854 S.W.2d at 869. On remand,
the defendant filed a motion for summary judgment, relying on the
entire record. The trial judge concluded that the defendant's
testimony at the first trial was properly includable in the record on
appeal. The Court of Appeals refused to consider this testimony,
holding that because it was not transcribed at the time of the hearing
on the motion for summary judgment, it was not before the trial judge
when he ruled on the motion. Reversing, we held that under Rule
24(e), “absent extraordinary circumstances, an appellate court does
not have the authority to refuse to consider matters that are
determined by the trial court judge to be appropriately includable in
the record.” Id.
In the present case, the Mathews transcript was
used by the defense, the prosecution, and the trial court. Defense
counsel read from portions of the Mathews transcript in questioning
witnesses and presenting arguments. The parties and the trial judge
discussed at length the issue of inconsistent theories and the
evidence offered at Mathews' trial. These discussions occurred prior
to and during Housler's trial, as well as during the hearing on
Housler's motion for a new trial. Despite these discussions, the
Mathews transcript was never entered into evidence. Nor was the
Mathews transcript attached to the motion for a new trial.
Nevertheless, the record reflects that the Mathews
transcript was before the trial court for its consideration. At the
beginning of the hearing on the motion for a new trial, the State
objected to the trial court's consideration of any new evidence
regarding the inconsistent theories issue, arguing that the trial
court need only compare the Mathews transcripts and the transcript of
Housler's trial: “There's nothing in this motion six [concerning
inconsistent theories] that's not covered by the transcripts.
Everything the State presented is in the transcript; in the
transcript for the first trial and in the transcript for the second
trial.” During the hearing on the motion for a new trial, the trial
judge remarked that he would “have to go back and read the
transcription” of the Mathews trial to refresh his recollection of a
certain witness' testimony. During the hearing on the motion to
supplement, the trial judge commented:
This Court has said-and I don't think it has really
been objected to by the State, perhaps it-perhaps, but this Court has
said repeatedly, and still now believes, that you cannot read the
Matthews [sic] transcription, you could not have sat through the trial
and believed any other thing than the State of Tennessee believed that
Courtney B. Matthews [sic] acted alone in the robbery and killing of
the people employed at the Taco Bell Restaurant.
(Emphasis added). Furthermore, in the order
granting Housler's motion to supplement the record, the trial court
Mr. Housler raised issues pre-trial, at trial, and
post-trial related to the two prosecutions, particularly the different
prosecution theories. The Court denied Housler's legal arguments, in
part, upon the Court's consideration, review, and comparison of the
trial testimony of the State's prosecution of Courtney Mathews and the
State's prosecution of David Housler.
Contrary to the State's assertion, the trial judge
was not relying solely on his memory of the Mathews trial. See Lane
v. State, 968 S.W.2d 912, 914-15 (Tenn.Crim.App.1997) (holding that an
appellate court “cannot review the memory of the trial court, and this
deficiency would generally hamper [the appellate court's] ability to
effectively review the record”). The record reflects that the trial
court appropriately considered the Mathews transcript in ruling on the
inconsistent theories issue. We hold that any matter appropriately
considered by the trial court is properly includable in the appellate
record and may be added to the record under Rule 24(g) when such
matter is “necessary to convey a fair, accurate and complete account
of what transpired in the trial court with respect to those issues
that are the bases of appeal.”
We emphasize the importance of properly entering
matters into evidence at trial. A party who fails to follow the
proper procedure risks having such matters excluded from the appellate
record. While it would have been better practice for Housler to have
formally introduced the Mathews transcript into evidence, this
technical defect does not justify disregarding a portion of the record
that the trial court appropriately considered and deemed necessary for
a fair, accurate, and complete account of what transpired in the trial
court. See Bradshaw, 854 S.W.2d at 869.
The trial court in this case specifically found
that the record was inaccurate without supplementation and
certification of the Mathews transcript. The State does not dispute
the accuracy of the Mathews transcript certified by the trial court or
suggest that it differs from the transcript used during the Housler
proceedings. Certification of the transcript in conjunction with
supplementation of the record was not improper. See Johnson, 926 S.W.2d
at 240. Absent extraordinary circumstances, a trial court's
determination regarding supplementation is conclusive. Tenn. R.App.
P. 24(e). Finding no extraordinary circumstances, we conclude that
the Court of Criminal Appeals erred in reversing the trial court's
order allowing supplementation of the record with the certified
transcript of the Mathews trial.
We hold that the trial court properly supplemented
the appellate record with the Mathews transcript and that no
extraordinary circumstances exist justifying the Court of Criminals
Appeals' refusal to consider the Mathews transcript. Accordingly, we
reverse the judgment of the Court of Criminal Appeals and hereby order
supplementation of the appellate record with the certified transcript
of the Mathews trial for consideration by this Court in Housler's
related Rule 11 appeal.
Costs of this appeal are taxed to the appellee, the
State of Tennessee.
Rule expressly excludes, however, the following papers:(1) subpoenas
or summonses for any witness or for any defendant when there is an
appearance for such defendant; (2) all papers relating to discovery,
including depositions, interrogatories and answers thereto, reports of
physical or mental examinations, requests to admit, and all notices,
motions or orders relating thereto; (3) any list from which jurors
are selected; (4) trial briefs; and (5) minutes of opening and
closing of court.Tenn. R.App. P. 24(a).
Rule of Criminal Procedure 33(c) provides that affidavits filed in
support of a motion for new trial “shall be considered as evidence by
David Housler at his trial in 1997.
David Housler, 2010.