McCarty v. State

          DATE OF JUDGMENT: 02/17/2017

          GREENE COUNTY CIRCUIT COURT GREENE COUNTY CIRCUIT COURT TRIAL JUDGE

          ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: PHILLIP BROADHEAD

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS

          BEFORE BARNES, P.J., WILSON AND GREENLEE, JJ.

          WILSON, J.

         ¶1. Following a jury trial in the Greene County Circuit Court, Welford Lee McCarty was convicted of capital murder and desecration of a human corpse. The circuit court sentenced him to life imprisonment without the possibility of parole for capital murder and three years' imprisonment on the latter offense. On appeal, McCarty alleges that the trial judge abused his discretion by admitting photographs of the victim's dismembered and decomposed corpse and bones. He also alleges that the State's use of the photos "was part of a larger pattern of prosecutorial misconduct." McCarty's claims are without merit. Therefore, his convictions and sentences are affirmed.

         FACTS AND PROCEDURAL HISTORY

         ¶2. McCarty manufactured methamphetamine on his property in rural Greene County. In early 2013, McCarty learned that his friend Donovan Cowart was working with law enforcement as a confidential informant. McCarty told Cowart that he wanted to show him a hole that he had dug on his property for use in his meth operation. McCarty, along with Robert Stevens and David Allen, picked up Cowart and drove to the hole. As Cowart was walking over to look at the hole, McCarty retrieved a shotgun from the trunk of his car and shot Cowart in the back of the head. Cowart fell into the hole, and McCarty shot him again. McCarty and Stevens then took Cowart's cell phone, searched his wallet for money, and buried the body in the hole.

         ¶3. A few weeks later, McCarty became concerned that the police would search his property, so he insisted that Stevens help him move the body to another location. After the two men dug up the body, McCarty said that they had to dismember it. McCarty retrieved an ax, and Stevens used the ax to sever the head, arms, and legs below the knees and cut the torso in half. The two men stuffed the body parts into trash bags and then tied up the bags and cinder blocks inside a large tarp. They threw the tarp into a nearby pond, but it would not sink. McCarty fired his shotgun into the tarp, but it still would not sink, so Stevens wedged it under a tree in a culvert.

         ¶4. In May 2015, law enforcement found the tarp with the dismembered and decomposed body in the culvert. One of Cowart's shoes was also in the tarp. The ax used to dismember the body, which Stevens identified at trial, was found about forty feet away in the pond. The FBI subsequently dug up the original burial site on McCarty's property. There, the FBI found Cowart's other shoe, his wallet, a baseball cap with a large hole in the back, and several teeth, which DNA tests later confirmed were Cowart's teeth.

         ¶5. In September 2015, a Greene County grand jury indicted McCarty and Stevens for capital murder, with the underlying felony of robbery, and desecration of a human corpse. The court appointed the State Office of Capital Defense Counsel to represent McCarty, and McCarty's case proceeded to a jury trial in February 2017. Stevens and Allen testified against McCarty at trial consistent with the facts discussed above. Stevens testified that in exchange for his testimony the State had agreed to allow him to plead guilty to second-degree murder with a sentencing recommendation of twenty to thirty years. Allen was not charged in connection with Cowart's murder. He testified that he did not know in advance that McCarty planned to kill Cowart, and he did not help McCarty and Stevens conceal the body afterward. Allen testified that McCarty threatened to kill him and his family if he ever told anyone about the murder. At the time of McCarty's trial, Allen was under indictment for an unrelated armed robbery; however, the State had not offered him any plea bargain or leniency on that charge in exchange for his testimony.^[1]

         ¶6. In addition, Alicia Keel, a friend of McCarty, testified that McCarty confessed to the murder. According to Keel, McCarty admitted that he killed Cowart on his property and buried the body there; she also testified that on a later date, McCarty told her that he planned to move the body and sink it in a pond.

         ¶7. The jury returned a verdict finding McCarty guilty of capital murder, with the underlying felony of robbery, and desecration of a human corpse. The court sentenced McCarty to life imprisonment without the possibility of parole for capital murder and three years' imprisonment for desecration of a human corpse. McCarty filed a motion for a new trial, which was denied, and ...