Judge denies motion for new murder trial

Becky Campbell • Feb 19, 2014 at 8:57 PM

Even though a local judge wasn’t totally pleased with how a murder investigation interrogation was conducted, he said it wasn’t enough to warrant a new trial for the defendant.

Criminal Court Judge Robert Cupp’s ruling came Wednesday morning at the end of a motion hearing in which James Henry Allen was seeking a new trial.

Allen, 52, of Mount Carmel, was convicted in March for the May 12, 2010, shooting death of Richard H. Carter, 45, of Gray.

Carter was dating Allen’s ex-wife, Deborah Franklin, and the shooting occurred at her home in Fall Branch. Allen was convicted of firing a .22-caliber rifle through the front door of Franklin’s mobile home.

Three rounds hit Carter, but only one was fatal.

After the shooting, Allen was a prime suspect and Washington County sheriff’s officers spent two days looking for him. He was eventually arrested in a wooded area in Fall Branch.

Allen was convicted of first-degree murder and sentenced to life in prison.

At the motion for new trial hearing Wednesday, Allen’s attorneys wanted Cupp to recall the conviction and grant a new trial. Much of the motion was based on the sheriff’s office’s failure to audio or video record Allen’s statement.

Cupp has been vocal about this issue, and he didn’t hold back on Wednesday.

“They have those things available and it saves so much time and argument,” Cupp said. “It makes a trial so much easier. I don’t know how to make them understand that.”

Investigator Jeff Miller didn’t video record the interview because the equipment was not working properly the day of Allen’s arrest, according to his testimony during the trial.

Defense attorney Bill Francisco pointed out Wednesday that during the trial Miller admitted having an audio recorder in his vehicle, but that he opted to not use it. Instead, Miller had meticulous notes of the interview.

But a recording of the interrogation would have cleared up any discrepancies between the investigator and Allen that he was not properly given his Miranda warning.

Francisco called Miller’s choice to not retrieve his recorder as a “willful act to not preserve evidence.” It’s enough, he said, to warrant a new trial.

Francisco said there was no other evidence to indicate Allen was at his ex-wife’s home that night — nothing except her assumption it was him and his statement to the investigator that he was outside the residence.

But Cupp said there was plenty more circumstantial evidence the jury could have relied upon to convict Allen, so he denied the motion for a new trial.

“Circumstantially, they didn’t have to have the statement,” Cupp said.

The state’s portion of the hearing was handled by Assistant District Attorney General Dennis Brooks, who also prosecuted the case.

“It’s just a premeditated murder,” Brooks said. “No other person had any such motive that this defendant.”

The next step in the appeals process is for the defense to file an appeal in the Court of Criminal Appeals. There was no indication on Wednesday if that will happen.

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