July 18, 1988
STATE OF TENNESSEE, APPELLEE,
DAVID S. POE, APPELLANT
Montgomery Criminal, Hon. John H. Peay, Judge, S. Ct. No. 88-3-I
Harbison, C.j., Concur: Fones, Cooper, Drowota and O'Brien, JJ.
The opinion of the court was delivered by: Harbison
WILLIAM J. HARBISON, C.J.
Appellant was convicted of felony-murder in the
Criminal Court of Montgomery County, Tennessee, and was sentenced to
death by electrocution. We affirm both the conviction and the sentence.
Appellant was tried with a co-defendant, Jay A.
Cameron, for the murder of Private Michael James Marlowe on the night
of April 4, 1986. The victim and both defendants in this case were
regular Army personnel assigned to active duty with an infantry
division at Ft. Campbell, Kentucky. Marlowe was a youth who had
reached his eighteenth birthday just eight days before his death.
Appellant Poe lacked two months of being nineteen years of age, and
Cameron was twenty-one.
The Ft. Campbell military reservation lies partly
in Kentucky and partly in Tennessee. The death occurred during off-duty
hours after the victim and the two defendants had been drinking beer
together at a tavern near the military base. The robbery and murder
occurred in a large vacant field located a few blocks from the tavern.
The exact time of death was not established, but it apparently
occurred after darkness and probably between the hours of 9:30 p.m.
Statements taken by military and civilian
authorities from Poe and Cameron clearly provided sufficient evidence
to warrant their conviction of felony-murder. Both admitted being
involved in the merciless beating and robbery of the young soldier,
Marlowe, who had just recently been assigned to the Ft. Campbell
military base after taking basic training in Texas. Both defendants
denied any intention to kill the victim; but if their statements were
admissible in robbery evidence, little other proof of the deep
implication of both Poe and Cameron would be required. In addition,
Cameron testified at the trial, admitted being involved in the robbery
and clearly implicated Poe in the homicide.
Although Cameron was also convicted of felony-murder,
he received a sentence of life imprisonment rather than the death
penalty. While this disparity is not assigned as error in the appeal,
evidence was adduced at both the guilt and the sentencing hearings
which would justify a finder of fact in differentiating between the
two defendants. Under the circumstances of the case, the sentence of
death is not disproportionate, nor can it be said that there was no
rational basis for the decision of the jury to impose the death
penalty upon one of the perpetrators and not on the other.
Although counsel for Poe have presented eleven
issues for our review, we find no merit in any of them, nor does our
independent review of the record reveal any basis for disturbing the
conviction or the sentence.
A. The Suppression Issues
Counsel for appellant insists that the arrest of
Poe on April 25, 1986, three weeks after the date of the homicide, was
made without a warrant and was illegal. It is also insisted that the
arrest of Poe was in violation of the posse comitatus statute, 18
U.S.C. § 1385. Finally, it is urged that the statement taken from
appellant was obtained in violation of his right to counsel, which
right was not intelligently, voluntarily and knowingly waived. There
is no claim that the statement, if otherwise admissible, should be
suppressed because of inadequate warning or other other Fifth
The issue regarding a warrantless arrest is
predicated upon certain requirements of Kentucky state statutes which
were allegedly not met. The State points out, however, that the arrest
of appellant occurred on a U.S. military reservation and was made by
authorized Army personnel.
It appears that neither Poe nor Cameron made any
kind of official report of their attack on Marlowe during the night of
April 4, 1986. Marlowe was on a weekend pass. When he did not report
for duty on Monday, April 7, his absence was noted; and within a short
time he was carried on military records as being absent without
Poe, however, talked to a number of persons about
the incident, including both Cameron and Private Gregory L. Gray. Gray
testified at trial that on or about April 20 or 21 Poe stated that "he
had been involved in a murder." He testified:
Q. Well, specifically what did he tell you?
A. He told me that he broke someone's neck.
Q. That he broke someone's neck?
A. Yes, Sir.
Gray testified further:
He told me that him and Jay Cameron had met a 'newby'
at a bar, and this guy had just gotten to Fort Campbell, just got out
of basic training and he had been flashing some money around, buying
people drinks. He said that the kid had bought them some drinks, and
that eventually they turned around and he was gone. So, they went
outside and found him passed out in the back of a truck, I believe he
said. And with the intention to roll him, they took him into a field
behind a local grocery store and I believe exactly what he said --
said to me, was -- it went too far and I broke his neck.
On the morning of April 25, 1986, Gray reported
what Poe had told him to a special agent of the Criminal Investigation
Division at Ft. Campbell. Thereafter special agent Steve Chancellor,
who later testified at trial, actively participated in the
investigation. On April 25 Chancellor went to the field where he
understood the homicide had occurred, and there he found the badly
decomposed corpse of Marlowe. This point is located in Montgomery
County, Tennessee, about 600 ft. south of the Tennessee-Kentucky state
Agent Chancellor ordered other military officers to
arrest both Poe and Cameron on the base at Ft. Campbell, and this was
done during the morning of April 25. Defendants were brought to
headquarters of the Criminal Investigation Division, and subsequently
both of them gave taped interviews and signed written statements,
admitting their involvement in the robbery of Marlowe on April 4.
Since both the perpetrators and the victim were
military personnel on active duty, there seems to be no question but
that they were subject to the provisions of the Uniform Code of
Military Justice, 10 U.S.C. §§ 801 et seq. See Solorio v. United
107 S.Ct. 2924 (1987).
The military code specifically permits the arrest
of persons by authorized officials based upon reasonable belief that
an offense has been committed and that the person apprehended
committed it. 10 U.S.C. § 807(b). No warrant is required as appellant
At the time Poe and Cameron were arrested on the
base, no Tennessee warrant had yet been issued, but civilian
authorities promptly requested such a warrant. Apparently the military
officials were not certain at the outset whether to retain the case
under military jurisdiction for court martial or to turn the offenders
over to civilian authorities for prosecution. The remains of Marlowe
were first taken to a military hospital but were later released to the
Deputy State Medical Examiner. Poe and Cameron were delivered to
civilian authorities, and subsequently Tennessee state warrants were
served on them.
We find nothing illegal about the arrest of these
individuals at the instance of military authorities on the military
base. No authority is cited suggesting that either Tennessee or
Kentucky retained exclusive jurisdiction over the federal enclave.
The posse comitatus statute, 18 U.S.C. § 1385, was
originally enacted during the Reconstruction era. It provides:
Whoever, except in cases and under circumstances
expressly authorized by the Constitution or Act of Congress, willfully
uses any part of the Army or the Air Force as a posse comitatus or
otherwise to execute the laws shall be fined not more than $10,000 or
imprisoned not more than two years, or both.
The investigation in the present case commenced
with military officials and involved exclusively military personnel.
No case has been cited to us holding that there was a violation of the
posse comitatus statute when both the victim and the perpetrators of
the crime were on active military duty. In this case the actions of
the military officers were performed primarily to accomplish military
purposes; that is, to investigate the death of one soldier at the
hands of others.
We are of the opinion that no violation of the
statute has been shown by the action of the military personnel in
cooperating with civilian officials or in turning over to the civilian
officials the arrested individuals and information concerning them.
It is recognized by counsel for appellant that even
if there had been a violation of the posse comitatus statute, there is
no automatic exclusionary rule for such violations. The clear majority
of cases which have considered this subject have held that exclusion
does not follow as a matter of course but must be determined under the
facts of each case. See, e.g., United States v. Roberts, 779 F.2d
565, 568 (9th Cir. 1986); United States v. Wolffs, 594 F.2d 77,
85 (5th Cir. 1979); United States v. Walden, 490 F.2d 372,
376-77 (4th Cir. 1974).
In our opinion, there was no violation of this Act
under the circumstances of this case; and even if there were, it
certainly could not be said to be flagrant or willful. An enlisted man
had been killed, and the military officials had reliable information
that two other enlisted men were involved in committing the crime. We
find nothing illegal in either the arrest or the interrogation of Poe
We find no substance to the Sixth Amendment claim.
At the time of their interrogation, both Poe and Cameron were
repeatedly advised of their right to counsel as well as their other
constitutional rights. They waived their right to counsel several
times and after full advice concerning all of their rights. The trial
court conducted a lengthy suppression hearing and found no basis for
the suppression of the statement of either of the defendants.
Appellant Poe's suppression issues are overruled.
B. Jury Selection Issues
Appellant insists that the trial court erred in
denying individual examination of prospective jurors concerning pre-trial
publicity and in its refusal to permit defense counsel to question
jurors "regarding their feelings" about the death penalty.
It appears that the trial Judge did permit
individual examination with respect to whether the jurors met the
qualifying test of Witherspoon v. Illinois, 391 U.S. 510
(1968). It is not insisted that any error occurred in that connection,
nor was it shown that the prospective jurors were exposed to
potentially prejudicial material in such a way as to mandate
individual examination. See State v. Claybrook,
736 S.W.2d 95, 99-101 (Tenn. 1987);
Sommerville v. State,
521 S.W.2d 792, 797 (Tenn. 1975).
The scope and extent of the jury examination are
within the sound discretion of the trial Judge, and clearly no abuse
has been shown in this case. See State v. Jefferson,
529 S.W.2d 674, 682 (Tenn. 1975). Merely
restricting questions about prospective jurors' "feelings" on the
subject of the death penalty, in our opinion, did not constitute
error; it certainly is not shown to warrant reversal in this case. See
King v. Strickland, 714 F.2d 1481, 1495 (11th Cir. 1983), aff'd
in part, rev'd in part on other grounds, King v. Strickland, 748
F.2d 1462 (11th Cir. 1984); State v. Zuniga, 320 N.C. 233,
357 S.E.2d 898, 910 (1987).
Counsel assign as error the failure of the trial
Judge to sequester the veniremen who had been tentatively accepted
prior to their being sworn.
The jury examination in this case consumed more
than two full days. The trial Judge did not sequester the veniremen
until the panel had been sworn. The trial Judge, however, repeatedly
admonished the prospective jurors regarding their duties.
Whether to sequester the tentatively selected
jurors is a matter committed to the sound discretion of the trial
court. State v. McKay,
680 S.W.2d 447, 453 (Tenn. 1984). No
abuse has been shown in this case, and there is no suggestion of any
actual impropriety or misconduct on the part of any of the members of
Finally, it is insisted that the trial Judge erred in not providing
counsel for appellant a list of the prospective jurors containing
pertinent background information until after the start of the trial.
It appears that prior to the first day of jury
selection a jury list was furnished to counsel in accordance with the
requirements of Rule 24(g), Tenn. R. Crim. P. The list of persons on
the initial list was exhausted during the jury examination on the
first and second days of the trial, however, and it was necessary for
the trial Judge to impanel additional jurors. Counsel were furnished a
list of these persons as soon as the names had been drawn. Appellant
has shown no prejudice whatever from the failure of his counsel to
receive the list at an earlier time. Under the circumstances, in our
opinion, the trial Judge substantially complied with the requirements
of the Rules of Criminal Procedure. No reversible error has been
demonstrated, and the motion for mistrial by counsel was properly
In their brief counsel suggested that the trial
Judge did not follow certain statutory requirements in opening the
jury selection box pursuant to T.C.A. § 22-2-308(a)(12). There is no
evidence in the record that any such violation occurred, nor is there
any showing that any such irregularity could have affected the
proceedings so as constitute reversible error.
A fourth issue concerns the refusal of the trial
Judge to declare a mistrial after it was shown that a prospective
juror had spoken to a potential witness in the case. This matter was
called to the attention of the trial Judge. The prospective juror
explained that he thought that he might have known the individual and
that he expected voluntarily to disclose to the court and counsel any
acquaintance he might have with the prospective witness. This juror
was not challenged for cause or peremptorily. He was seated on the
jury and participated in the proceedings. The foregoing is all of the
evidence that the record contains. This evidence did not warrant the
granting of a mistrial.
C. Trial Errors
Counsel for appellant have raised three issues as
to proceedings which occurred during the trial. The first of these was
the failure of the trial court to grant a mistrial during the guilt
phase of the proceedings because of a reference in Cameron's taped
interview to some previous criminal misconduct of Poe.
The trial Judge gave cautionary instructions to the
jury, directing that any such reference be disregarded. The reference
was extremely brief. The trial Judge felt that counsel should have
moved for a redaction of the statement before it was read because the
statements of both Poe and Cameron had been the subject of lengthy
suppression hearings, and their contents were fully known to counsel.
Nevertheless, the trial court instructed counsel to write out curative
instructions, and he gave these verbatim as requested.
In our opinion, in view of the overwhelming
evidence of the guilt of Poe of the offense on trial, no reversible
error occurred. The actions taken by the trial Judge were quite
sufficient under the circumstances, and his refusal to repeat the
curative instructions in the general charge was not error.
The reference was no more than a passing one; and,
in our opinion, even if error occurred, it could not have possibly
affected the verdict of the jury in the guilt phase. The criminal
conduct referred to in this statement was later stipulated and
admitted into evidence at the sentencing phase. During the guilt phase,
however, the details of the alleged prior conduct of Poe were not
developed. While the reference should have been redacted from the
Cameron statement, in our opinion the curative instructions given by
the trial Judge were adequate. As stated, even if error were committed,
in the context of this record it was not reversible.
Error is assigned because the trial Judge limited
counsel for Poe in the cross-examination of a taxicab driver, one
David Brown. Brown testified that at about midnight on April 4, 1986,
he picked up Cameron and another individual near the field where
Marlowe's body was found. *fn1 The witness did
not identify Poe as having been present on that occasion. During
cross-examination, however, counsel for Poe stated that he would "like
this witness to view some other person to see whether or not this
might have been the person with the defendant, Cameron." At that time,
counsel did not identify the other person whom he wished the witness
to view. Since the witness had already said that he could not identify
the other person, the trial Judge denied the proffered examination.
It later developed that the person whom counsel
wished the witness to view was one Chris Bajema. Counsel for Poe
called Bajema as a witness at the trial, however, so that the jury had
a full opportunity to see and observe this person. Counsel for Poe did
not interrogate Bajema as to whether the latter rode in a taxicab
driven by Brown on the night of April 4. During cross-examination
Bajema denied being with Cameron at all on that occasion. He testified
that he had been with Cameron on other occasions, including an
instance three months earlier in January when he and Cameron talked
about robbing an intoxicated individual but did not do so.
Under the circumstances we find no error on the
part of the trial Judge in limiting the cross-examination of Brown.
Counsel for defendant attempted to develop a theory
that Cameron and Bajema had returned to the scene of the robbery where
Marlowe had been left unconscious, and that Cameron and Bajema then
murdered the victim. Cameron attempted to develop a similar theory
that Poe had returned to the scene alone and committed the homicide.
By their verdict, the jury obviously rejected both theories, which
were supported by very little evidence in the record. The limitation
on the cross-examination of the taxicab driver, in our opinion, did
not unduly limit the attempts of counsel for Poe to develop their
theory, particularly since they actually called Bajema as a witness
and had every opportunity to examine him on the subject if they had
desired to do so.
Finally it is urged that the trial court committed
error in requiring the trial to proceed past 5:30 p.m. on the fifth
day of the proceeding. The introduction of evidence concluded at about
5:30, and counsel for both defendants requested that final arguments
be delayed until the following morning. The trial Judge, however,
directed the arguments to proceed. At least two recesses were called
during the evening, and court adjourned at about 9:30 p.m. It is not
contended that the trial Judge unduly limited the time for final
summation by any attorney or that counsel were in any way limited in
developing their theories.
In our opinion, this matter lay within the
discretion of the trial Judge, and no reversible error has been shown.
D. Sufficiency of the Evidence
In his final issue, Poe insists that he was
entitled to a judgment of acquittal. This argument hardly warrants
extended Discussion because there was overwhelming proof to support
the finding of the jury that Poe was guilty of felony-murder as found.
Briefly, Poe and Cameron were drinking at the Red
Carpet tavern during the early evening of Friday, April 4, 1986,
during what was described as the "happy hour." During this time beer
was sold at about one-half price.
Young Marlowe, newly arrived at Ft. Campbell, met
Sgt. Dan McIntire at a recreation center on the post. McIntire was
older and realized that Marlowe did not know many people. He then took
McIntire to the Red Carpet so that the latter might meet more young
men of his age. McIntire knew Cameron, but he did not know Poe. He was
introduced to Poe at the tavern; and, in turn, he introduced Marlowe
to the two defendants in this case. McIntire left at some time during
the evening, probably between 8:30 and 9:00 p.m.
Before McIntire left, the group drank several
pitchers of beer, Marlowe having purchased two of them and some of the
other members of the group having purchased the others. Marlowe became
intoxicated and went out of the tavern where he was subsequently
discovered by Poe and Cameron lying in the back of McIntire's truck.
This vehicle had been left at the site when McIntire departed with his
During the evening Marlowe had been seen to have
some money on his person. The two defendants blamed each other for
responsibility in initiating the scheme to rob him, but both agreed
that they decided to "roll" Marlowe. They induced him to accompany
them into the vacant field behind a grocery store, and there they
proceeded to beat him to death and to rob him. In addition, a leather
thong or shoe lace was tied tightly around his neck. Cameron insisted
that Poe had the shoe lace and placed it around the neck of the victim
who by that time had been beaten into unconsciousness. Cameron
insisted that the thong was not tied while he was present at the scene,
and he stated that he refused to assist Poe in tying it. Cameron said
that he also declined to hold the victim's head while Poe "rammed" the
victim's nose into his brain.
When the remains of Marlowe were discovered three
weeks later, the thong was tied tightly and firmly in place with a
circumference of about 12 inches. Marlowe was shown to have a neck
size of about 15 to 15 1/2 inches. One physician testified that if the
thong were tied this tightly around the victim's neck, it would
produce strangulation. The corpse was so decomposed by the time it was
found, however, that the string or thong was hanging loosely, and all
of the soft tissue in the neck area had disappeared.
The remains of Marlowe's skull showed a fracture of
the jaw in two places and the displacement of several teeth. Experts
testified that these injuries resulted from very severe force. The
force of the blows sufficient to inflict such injuries could also have
been sufficient to produce death.
Poe and Cameron placed responsibility upon each
other for the actual homicide although both freely admitted
participating in the assault and battery of the victim and in the
robbery. The victim had $14.00 in cash in his pocket which Cameron
took. He later gave Poe $10.00 of this amount. The victim also had a
wallet and a watch. Poe took these items, according to Cameron, and
later discarded the wallet. The wallet contained an identification
card and a check for $50.00, which had been sent to Marlowe by his
grandmother as a present. After leaving the scene Poe and Marlowe
burned the check and partially burned the identification card.
Because both of the defendants had blood on their
jerseys, or t-shirts, they discarded these and threw them into a pond
near a construction site. The discarded wallet of Marlowe was also
found at the edge of this pond. Both the shirts and the wallet were
retrieved after Poe and Cameron had given their statements to
investigating CID agents and a Montgomery County deputy sheriff. The
partially burned identification card was also found where the
statements indicated it would be. No remnants of the check were ever
Although both Poe and Cameron stated that the body
of Marlowe was left near a path running through the vacant field, it
was found 30 to 40 feet from the path when discovered on April 25,
three weeks later. The jury were not bound to believe that Poe and
Cameron left the body near the path, however, because Cameron
testified that Poe had warned him during the course of the assault
that the path was travelled fairly frequently.
As stated earlier, both Poe and Cameron claimed
that the victim was not dead when they left him in the field. The jury,
however, were not required to accept that testimony, any more than
they were required to accept the rather attenuated theories of each of
the defendants that the other came back to the scene and committed the
homicide independently or separately in order to prevent the victim
from identifying or giving evidence against them. There is ample
evidence to support the Conclusion of the jury that both Poe and
Cameron committed the homicide while in the act of brutally beating
and robbing their youthful, intoxicated and practically helpless
victim, then strangling him with a leather thong or shoe lace.
In our opinion, this was certainly not a proper
case for the entry of judgment of acquittal by the trial Judge as a
matter of law. The issues were clearly for the jury, and the
convictions are supported by evidence of guilt beyond any reasonable
No issues are raised concerning the sentencing
hearing or the fact that Cameron received a life sentence while Poe
received the death penalty. As stated earlier, however, there was a
basis in the record for this action by the jury.
Poe did not testify at the guilt phase, and he
offered no evidence in the sentencing phase. In the sentencing phase,
it was stipulated that he had previously been convicted of a felony
under the Uniform Code of Military Justice - assault with a dangerous
weapon, a knife.
In imposing the death penalty, the jury found three
aggravating circumstances, one of these being that the homicide in the
present case was committed during the perpetration of robbery. T.C.A.
§ 39-2-203(i)(7). The previous conviction of a felony involving
violence to the person was stipulated. T.C.A. § 39-2-203(i)(2).
Finally, the jury concluded that the murder was especially heinous,
atrocious, or cruel in that it involved torture or depravity of mind.
T.C.A. § 39-2-203(i)(5).
No issue is made as to the sufficiency of the
evidence with respect to the latter aggravating circumstance. It
should be pointed out, however, that during the time when he was being
assaulted, young Marlowe, according to Cameron, told his assailants to
take his money and that it was not necessary for them to beat him. He
was obviously conscious during the severe beating which was
administered by both of his assailants, regardless of whether he was
still conscious after the ligature was tied around his throat.
At the guilt phase, Cameron offered a number of
character witnesses, including family members. At the sentencing
hearing he did the same and introduced evidence of his social history.
He had no prior criminal convictions. He testified at trial, as he had
stated in his earlier taped and written interviews, that Poe took the
lead in initiating the assault against Marlowe and in the eventual
killing of the victim.
Evidence was offered of a previous religious
affiliation and activity of Cameron, and there was evidence from which
the jury could have been convinced that he was capable of
While it might be concluded that Cameron was indeed
fortunate to escape the death penalty under this record, as previously
stated we cannot conclude that its imposition upon Poe was arbitrary
or disproportionate. In a number of similar situations, the death
penalty has been upheld. See State v. Caldwell,
671 S.W.2d 459 (Tenn. 1984) (defendant
shot victim with whom he left disco); State v. Campbell,
664 S.W.2d 281 (Tenn. 1984) (defendant
beat and robbed elderly man whom he had met in tavern). See also State
v. Barnes, 703 S.W.2d 611 (Tenn. 1985) (two transients brutally
murdered an elderly victim but each accused the other as being the
The judgment and sentence are affirmed at the cost
of appellant. The sentence will be carried out as provided by law on
October 26, 1988, unless stayed by order of this Court or other