A state appeals court struck down claims from a Johnson City man that his murder trials was filled with errors that warranted him a new trial.
Jason Austin, 31, is serving a 23-year prison sentence for a second-degree murder conviction in the June 28, 2005, shooting death of Brian Ricker.
Ironically, the Tennessee Court of Criminal Appeals issued its opinion on the seventh anniversary of Ricker’s death, upholding a jury’s conviction and a judge’s sentence in 2008.
In the appeal, Austin’s attorney, Gene Scott, based the appeal on several points, including:
n Judicial error to sever the case from Austin’s co-defendant and cousin, Danny Greene. Greene was also convicted of second-degree murder in Ricker’s death and is also serving a 23-year sentence.
n The trial court’s ruling that Christina Boone, Greene’s sister, was a hostile witness and allowing prosecutors to question her about changing her statement to police about the events she observed after the shooting.
n Judicial error on the issue of lost evidence. Police investigators noted they found a hotel towel with blood on it at the crime scene, but it was apparently never tested and became lost. Scott asked Judge Jerry Beck to dismiss the indictment based on that issue but Beck denied that motion.
n A claim that the state violated the rule of exclusion based on the testimony of a rebuttal witness.
n The trial court erred by instructing the jury that guilt could be inferred by evidence Austin fled after the shooting and disposed of the gun.
Ricker died outside the Days Inn on Browns Mill Road, where he and his girlfriend had a room. According to state evidence at trial, the altercation between Ricker and Austin began a few days before when Austin’s girlfriend laughed at Ricker when they pulled up beside him at an intersection and she laughed because he was wearing a pink shirt.
A few nights later Austin and his girlfriend were on Interstate 26 on their way home from buying items for the arrival of their child when he looked over and saw Ricker’s car at the hotel.
Austin drove to Greene’s and after talking, they went to confront Ricker. On the way they picked up a third man, Marc Coffey, to go with them.
At the hotel, Austin saw Ricker outside and confronted him. He attempted to punch Ricker, but Ricker dodged. In the process, Austin claimed he saw what he though was a gun and shot Ricker.
Greene also fire his weapon. That was the shot that hit Ricker in the spine and killed him.
Investigators said Ricker did not have a weapon. The flash Austin said he saw was likely Ricker’s car keys. He was on his way to his vehicle to retrieve a sweater for his girlfriend because she was cold, according to testimony.
According to medical testimony, Ricker was shot twice, once in the leg and once in the back. That was the fatal shot. The bullet traveled up his spine, severed his spinal cord at his neck and lodged in his skull, according to medical testimony at trial.
Ricker also suffered multiple facial abrasions, apparently from being beaten about the face, although there was conflicting medical testimony about exactly how those injuries occurred.
The CCA stated in the opinion that it agreed with one issue Austin presented on due process, but it wasn’t enough to overturn the conviction.
That issue came from testimony at Austin’s sentencing from Ricker’s mother, Diane Ricker. She testified that her son told her about the encounter about the pink shirt and that he pointed a weapon at Austin, but said Austin pulled a gun first.
That evidence “would have corroborated (Austin’s) version of the events leading up to the shooting,” the opinion said. But wasn’t enough to help meet the criteria for due process error.
The testimony “does not make it more likely that the victim had a gun when he was shot by,” Austin, and didn’t make him less responsible for Ricker’s death, the CCA stated in the opinion.
On the issue of Boone being a hostile witness, the CCA ruled that prosecutors were entitled to question her in regard to her statement to police so jurors could judge her credibility.
She didn’t want to testify because she said she was intoxicated on alcohol and Valium when police took the statement and her account of what happened was blurred.
Boone heard Austin and Greene talking about having shot Ricker and what they planned to do. Austin, Greene and Greene’s wife fled the area to Sevierville and were arrested a few days later.
Earlier this week, Scott said he will ask the Tennessee Supreme Court to hear an appeal on the case.