IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

December 18, 2013 Session

STATE OF TENNESSEE v. HOWARD BRACKSON CARRIER

Appeal from the Criminal Court for Sullivan County

No. S56158 R. Jerry Beck, Judge

No. E2013-00247-CCA-R3-CD - Filed April 23, 2014

A Sullivan County jury convicted appellant, Howard Brackson Carrier, of first degree

premeditated murder, felony murder committed during the perpetration of a burglary,

attempted first degree murder, and aggravated burglary, for which he received a sentence of

life for the merged murder convictions, fifteen years, and three years, respectively. After the

trial but before the hearing on the motion for a new trial, defense counsel discovered new

evidence indicating that one of the State’s witnesses had falsely testified that a knife

sharpener found at the murder scene belonged to appellant. At the motion for a new trial

hearing, appellant argued that the testimony was crucial because it formed the basis for

premeditation and intent. The trial court denied the motion, and this appeal follows. Herein,

appellant raises one issue for our review: whether the witness’s false testimony necessitates

a new trial. Following our review, we affirm the judgments for attempted first degree murder

and aggravated burglary. We affirm the convictionsfor first degree premeditated murder and

felony murder but vacate the judgments and remand the case to the trial court for entry of a

single judgment for first degree murder noting merger of the two convictions.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court

Affirmed in Part, Vacated in Part; Case Remanded

ROGER A. PAGE,J., delivered the opinion of the court, in which JOSEPH M. TIPTON, P.J., and

NORMA MCGEE OGLE, J., joined.

Stephen M. Wallace, District Public Defender, Blountville, Tennessee, for the appellant,

Howard Brackson Carrier.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel;

Barry Staubus, District Attorney General; and Joseph Eugene Perrin and Julie Canter,

Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION

This case involves the December 10, 2008 murder of Jeffrey Washburn, the attempted

murder of Brenda Carrier, and the aggravated burglary of her residence. Because appellant

presents only one issue for our review, our recitation of the facts will be limited to those

necessary to provide a contextual background and to those pertinent to a determination of this

issue.

I. Facts

Brenda Carrier testified that she was married to appellant and that they had two

children born of the marriage. One of their sons was an adult and lived in his own house,

while the younger son remained in the family home with appellant. In October 2007, Ms.

Carrier left the marital home and told appellant that she “was leaving and [she] wasn’t

coming back.” In March 2008, she moved into a second-floor garage apartment owned and

furnished by her employer. In October 2008, Ms. Carrier emphasized to appellant that “it

was over, and [she] couldn’t do it anymore.” When he questioned her about whether her

decision involved another man, she explained “that it wasn’t because of a man, it was

because [she] was done. [She] was done with him never being there.”

Shortly thereafter, Ms. Carrier met Jeffrey Washburn. In November, she advised

appellant that she had been talking with another man. On the night of December 9, 2008,

Ms. Carrier spoke with appellant around 5:00 p.m. to ensure that appellant would be at home

with their younger son. He responded that he would be at home. Subsequently, Mr.

Washburn drove Ms. Carrier to his home, where they spent the night. When Ms. Carrier left

her apartment, she locked the door and turned on the porch light.

Ms. Carrier returned to her home around 5:30 a.m. on December 10. When she

arrived, she first noticed that her porch light was off. Mr. Washburn and Ms. Carrier

ascended the stairs, and when they reached the landing, they observed that the glass in the

door was broken. Ms. Carrier suggested that they retreat and call the police, but as they

turned to leave, appellant emerged from Ms. Carrier’s apartment and addressed Mr.

Washburn, asking, “‘Are you the man that’s f****** my wife?’” Mr. Washburn responded,

“‘We don’t need to do this. I need to go to work.’” Mr. Washburn then raised his hands and

asked appellant, “‘What’s that in your hand?’” Ms. Carrier began to scream. She tried

several times to call 9-1-1 from her cellular telephone, but she did not think the call ever

connected. Mr. Washburn and appellant began wrestling on the porch. Mr. Washburn was

on top of appellant, and appellant was stabbing Mr. Washburn in the back. Ms. Carrier knew

that appellant was a hunter and owned several knives. Ms. Carrier ran over to the tussle and

removed the knife from Mr. Washburn’s back. She threw the knife, which she described as

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“pretty big,” off the porch. Appellant then stood up and pushed Mr. Washburn onto the floor

of the porch.

Appellant next threatened Ms. Carrier, saying that he was going to kill her. He took

Ms. Carrier into her apartment, where he displayed a pocket knife. He forced her to the

ground and stabbed her in the breast, in the chest, and in the face. Ms. Carrier believed she

was going to die. Patsy Kendrick, Ms. Carrier’s neighbor, then entered the apartment and

told appellant to stop. She assisted Ms. Carrier to her home. An ambulance arrived and

escorted Ms. Carrier to the hospital, where she remained for six days.

In the early morning hours of December 10, 2008, Patsy Kendrick heard Ms. Carrier

screaming out, “Howard!” She ran toward Ms. Carrier’s garage apartment as she called out

for someone in her home to dial 9-1-1. Upon arriving, Ms. Kendrick saw that the glass in

the door was broken, and she saw appellant standing over Ms. Carrier with a knife. Ms.

Carrier was lying on the floor, and her mouth was full of blood. Appellant appeared calm

and emotionless. After Ms. Kendrick instructed appellant to leave the apartment, he stabbed

himself. Ms. Kendrick grabbed Ms. Carrier’s hand, pulled her through the door, and assisted

her down the stairs. They proceeded to Ms. Kendrick’s home, and as she looked back, Ms.

Kendrick noticed appellant calmly walking down the stairs. Ms. Kendrick attempted to

render aid while they waited for emergency medical personnel to arrive.

While Ms. Carrier’s personal items were being removed from the apartment, a knife

sheath and a knife sharpener were found in the apartment, but they did not belong to her. She

had never seen the items during the time she lived in the apartment.

Cordell Carrier, the older son of Ms. Carrier and appellant, testified that appellant

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suspected Ms. Carrier of seeing another man while they were separated. Appellant told him

that “if he caught her with another man[,] he would kill him.” In late November 2008,

Cordell was eating lunch with appellant in appellant’s truck. He noticed a large hunting

knife lodged in the seat of the truck and asked appellant why he had it. Appellant answered,

“[I]n case [I] needed to kill someone.”

Appellant went to Cordell’s home sometime after midnight on December 10, 2008,

and wanted to borrow a pipe with which he could smoke crack cocaine. Appellant left then

returned between 2:00 and 3:00 a.m. He again left Cordell’s home. Appellant telephoned

Cordell around 5:45 or 5:50 a.m. and informed Cordell that he had killed Ms. Carrier and the

Appellant and his son, Cordell Carrier, share the same surname. To avoid confusion, we will refer

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to Cordell Carrier as “Cordell” and to Howard Carrier as “appellant.” In addressing Cordell Carrier by his

first name, we intend no disrespect. 

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man she had been seeing and that he had stabbed himself. Cordell knew appellant to be a

hunter and to possess hunting knives, sheaths, and knife sharpeners. At trial, he identified

a knife sheath and a knife sharpener that were found in Ms. Carrier’s apartment as belonging

to appellant.

Ms. Carrier’s sister, Joyce Ann Hall, accompanied Ms. Carrier and others to the

apartment to collect her personal belongings approximately one week after she was released

from the hospital. As they were packing, Ms. Hall found a knife sharpener and a sheath and

removed them from the apartment so as not to upset Ms. Carrier. Approximately three

months later, Cordell asked Ms. Hall for the items, and he subsequently turned them in to a

detective.

Appellant testified that in early 2008, Ms. Carrier began to stay at the garage

apartment on Tuesday nights only because she worked late and received several telephone

calls late into the night on those occasions. In October 2008, Ms. Carrier began staying at

the apartment every night.

Appellant “sensed a change” in Ms. Carrier and attempted to take her out to dinner

and buy her flowers more frequently. Ms. Carrier “started disappearing” and would be

unreachable on her cellular telephone. When he questioned her whereabouts, she would

respond that “it was none of [his] business.” Appellant asked Ms. Carrier if she was seeing

someone else, and she denied that she was.

Appellant telephoned Ms. Carrier at 12:22 a.m. on December 10, 2008, but she did

not answer. He again called her at 4:56 a.m., and she indicated that she was at her home.

Appellant purchased breakfast at a drive-thru restaurant and drove to Ms. Carrier’s home.

After knocking several times and receiving no response, he became concerned thatsomething

was wrong, so he kicked in the door. He entered the apartment and looked around to ensure

that she was not in distress. At that time, he had in his possession a pocketknife, which he

always carried, and his uncle’s knife, which he regularly carried “as a memento to [his]

uncle” who had passed away. He denied that the knife sharpener found in Ms. Carrier’s

apartment belonged to him.

Upon completing his search, he started to exit the apartment but encountered Ms.

Carrier and Mr. Washburn at the door. He asked what was going on, and Mr. Washburn

responded that he did not have time for an encounter because he had to go to work. Appellant

asked, “‘Have you been f****** my wife?’” Mr. Washburn responded, “‘Every chance [I]

[get].’” The two men then began fighting. Appellant said that he “blacked out” and did not

recall stabbing Mr. Washburn. The next thing he remembered was Ms. Carrier’s neighbor

shouting for him to leave the apartment. At some point, he stabbed himself in the chest four

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times, but he did not recall whether he did so in Ms. Carrier’s apartment or after he left.

When he arrived home, he cut both of his wrists and attempted to cut his jugular vein by

stabbing himself in the neck. Subsequently, the SWAT team entered appellant’s home, and

an ambulance transported him to the hospital, where he was released one to two days later

and placed in custody.

In rebuttal, Lieutenant Jerry Smelser and Officer Michael Still testified that appellant

made statements while at the hospital indicating that he had stabbed Mr. Washburn and Ms.

Carrier and that he thought he had killed them both.

After deliberating, the jury found appellant guilty of first degree premeditated murder,

felony murder committed during the perpetration of a burglary, attempted first degree

murder, and aggravated burglary. Following a sentencing hearing, the trial court merged the

murder convictions and sentenced appellant to life for the merged conviction; fifteen years

for attempted first degree murder; and three years for aggravated burglary.

At the motion for a new trial, appellant presented evidence that the knife sharpener

found at Ms. Carrier’s apartment belonged to the owner of the apartment and not appellant,

as was mistakenly asserted at trial by Cordell Carrier. The State stipulated to the admission

of affidavits from Cordell and the property owner. Cordell recanted his trial testimony with

regard to the knife sharpener, and the property owner affirmed that the knife sharpener

belonged to him. Appellant contends that false testimony concerning his bringing the knife

sharpener to the crime scene with him was pivotal in establishing premeditation and intent

for felony murder. The State stipulated the truth of the facts, as well as the fact that defense

counsel did not have an opportunity to interview Cordell because he declined to speak with

counsel prior to trial. However, the State argued that the false testimony did not affect the

jury’s verdict of guilty on the charge of premeditated murder and that even if premeditation

were negated, the false testimony would not have impacted the guilty verdicts for felony

murder or aggravated burglary whatsoever.

The trial court reviewed the evidence and found that the evidence of guilt was

overwhelming. Accordingly, the trial court denied appellant’s motion for a new trial. This

appeal follows.

II. Analysis

The sole question presented in this appeal is whether appellant is entitled to a new trial

because his right to a fair trial was violated by the testimony of a State’s witness who

mistakenly identified a knife sharpener found at the murder scene as belonging to appellant.

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He asserts that he has never denied killing Mr. Washburn or stabbing Ms. Carrier; rather, he

contends that his actions were the result of provocation and not premeditation or intent.

In this case, all parties agree that the State did not intentionally present false testimony

to the jury. As such, we review this issue under the standard for recanted testimony. In

conducting such a review, we are mindful that a trial court should grant a motion for a new

trial based on recanted testimony only if:

(1) the trial judge is reasonably well-satisfied that the testimony given by the

material witness was false and the new testimony is true; (2) the defendant

was reasonably diligent in discovering the new evidence, was surprised by the

false testimony, or was unable to know of the falsity of the testimony until

after the trial; and (3) the jury might have reached a different conclusion had

the truth been told.

State v. Housler, 193 S.W.3d 476, 494 (Tenn. 2006) (citing State v. Mixon, 983 S.W.2d 661,

666 (Tenn. 1999)); see also State v. Eric R. Hinton, No. E2007-00657-CCA-R3-CD, 2008

WL 5206434, at *8 (Tenn. Crim. App. Dec. 15, 2008). On appellate review of the denial of

a motion for a new trial based on newly discovered evidence, we employ an abuse of

discretion standard of review. Eric R. Hinton, 2008 WL 5206434, at *8; State v. Russell

Allen, No. M2000-01656-CCA-R3-CD, 2001 WL 767003, at *4 (Tenn. Crim. App. July 10,

2001).

In the instant case, the State conceded that Cordell’s testimony at trial was mistaken

and that the post-trial affidavits from Cordell and the owner of the apartment were true. The

State also admitted that the defense, through the exercise of due diligence, could not have

known about the falsity of Cordell’s testimony because he declined to speak with counsel

prior to trial. Thus, the only remaining factor is whether the jury might have reached a

different conclusion had it been presented with the truth.

In ruling on the motion for a new trial, the trial court considered the third factor in

light of the remaining evidence of premeditation to determine the likely impact on the jury’s

verdict. The trial court stated:

[A] knife was used in the attack of both victims. I think the evidence was

overwhelming in that regard.

. . . .

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[While] [Ms. Carrier] was out of her apartment, [appellant] had found out

where she lived. [It] [w]as a very small apartment, a garage apartment . . .

upstairs, so there [were] steps.

. . . .

[H]e goes to her apartment, allegedly broke a window out. There was glass

found . . . , and the lights were off.

. . . .

[H]e was obviously in the apartment . . . , did not have lights on in the

apartment . . . . [T]here was proof that the knife was introduced into the

apartment . . . .

. . . .

I think the evidence is rather overwhelming that he went up there to do

mischief.

. . . .

I think the evidence was overwhelming of guilt, that it was a first-degree

murder and a[n] assault with intent to commit first-degree murder . . . .

I would emphasize again [that] the knife sharpener was not used as a

weapon in . . . the killing of . . . the victim or wounding of the . . . surviving

victim.

The evidence supports the trial court’s conclusion that in light of the overwhelming

evidence, the defense failed to establish that had the jury been informed of the truth, it might

have reached a different conclusion. Cordell testified that appellant suspected Ms. Carrier

of seeing another man while they were separated. Appellant told him that “if he caught her

with another man[,] he would kill him.” In late November of 2008, Cordell was eating lunch

with appellant in appellant’s truck. He noticed a large hunting knife lodged in the seat of the

truck and asked appellant why he had it. Appellant answered, “[I]n case [I] needed to kill

someone.” Around the same time, Ms. Carrier admitted to appellant that she had “been

talking with another man.” He described that he “sensed a change” in Ms. Carrier; she

“started disappearing” and would be unreachable on her cellular telephone. On December

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10, 2008, Ms. Carrier was unreachable on her telephone at 12:22 a.m. Appellant then

borrowed a pipe from Cordell and smoked crack cocaine.

Subsequently, appellant, armed with two knives, broke into Ms. Carrier’s apartment,

remained concealed in the darkness, and confronted Mr. Washburn and Ms. Carrier as they

noticed evidence of the burglary and began to retreat from the apartment. He maintained that

he kicked in Ms. Carrier’s door because in a 4:56 a.m. telephone call, Ms. Carrier indicated

that she was at her home and that when he received no response to his repeated knocking on

her door, he became concerned that something was wrong. Appellant further claimed that

he was provoked into attacking Mr. Washburn by a comment Mr. Washburn made and that

he “blacked out” at that point and had no memory of his attacking Mr. Washburn or Ms.

Carrier. However, law enforcement personnel testified to statements appellant made at the

hospital wherein he recalled his actions and reflected upon the probable result, thus refuting

his claim that he had no recollection of his actions.

Questions involving the credibility of the witnesses and resolution of conflicts in the

evidence are left to the trial court as the trier of fact. See State v. Odom, 928 S.W.2d 18, 23

(Tenn. 1996). The trial court, in this case, obviously credited the testimony of Cordell with

regard to appellant’s statements that could be construed as premeditation and intent.

Moreover, the trial court apparently discredited appellant’s explanation of his carrying a large

knife as being a “memento” to his uncle. We note that although the State highlighted the

presence of the knife sharpener at Ms. Carrier’s apartment as being indicative of

premeditation, there was no testimony that appellant used the sharpener either before or

during the attacks on Mr. Washburn and Ms. Carrier. The record is replete with evidence to

support that appellant’s attacks on Mr. Washburn and Ms. Carrier were premeditated and that

the felony murder and aggravated burglary were intentionally committed, even without

consideration of the knife sharpener. We cannot discern that the trial court abused its

discretion in ruling that this point was not so pivotal that a jury, informed of the truth of the

ownership of the knife sharpener, might have reached a different conclusion. Appellant is

not entitled to relief on this basis.

III. Merger

The judgments in this case fail to reflect merger of the convictions for first degree

premeditated murder and felony murder. When a defendant is convicted for the same offense

under alternate theories, a single judgment of conviction should be entered. See State v.

Addison, 973 S.W. 2d 260, 267 (Tenn. Crim. App. 1977). Accordingly, we remand this

cause for entry of a single judgment form for those convictions.

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CONCLUSION

Following our review of the record as a whole, the briefs of the parties, the arguments

of counsel, and applicable legal authority, we affirm the judgments for attempted first degree

murder and aggravated burglary. We affirm the convictions for first degree premeditated

murder and felony murder but vacate the judgments and remand the case to the trial court for

entry of a single judgment for first degree murder noting merger of the two convictions.

_________________________________

ROGER A. PAGE, JUDGE

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