Harrell pleads no contest to second-degree murder

Oaks family unhappy with settlement; state cites case problems

By Kathy Helms-Hughes
STAR STAFF

   A Roan Mountain family was cheated by the untimely death of their son and now feels cheated by a court system which protects victims' rights but, in their opinion, doesn't go far enough.
   Terry Dean Harrell, 50, 275 Cove Creek Road, entered a no contest plea to a charge of second-degree murder Friday rather than go to trial and face first-degree murder in the May 14 shooting death of Roger Lynn Oaks Jr., 23, of Roan Mountain. Had Harrell gone before a jury, he also stood the chance of being found guilty of voluntary manslaughter, which because he has no prior record, would have netted him only three to six years in prison as opposed to the 15 to 25 he now faces.
   Harrell's case originally had been set for trial last Tuesday but was canceled when he decided to plead out.
   At Friday's hearing, Criminal Court Judge Lynn Brown questioned why the charge against Harrell was being reduced. Assistant District Attorney Ken Baldwin told the court that the state would have a lot of difficulty proving premeditation, which is required to substantiate first-degree murder. First-degree carries the penalty of life without possibility of parole, life with the possibility of parole, or electrocution.
   "The state also is persuaded that a jury could find him guilty of voluntary manslaughter," Baldwin said, a risk his office didn't want to take.
   "For the record, the family is against this plea," he said. "I did try to talk to Roger Oaks Sr. He wanted to have a jury trial."
   Oaks' attorney, Randy Fallin of Mountain City, wrote a letter to the court conveying the family's objections to the plea.
   "The intent of this letter is to convey to the court our strong objection to this plea offer and to state in the strongest terms possible our desire that this matter proceed to trial as it is currently charged, that is, first-degree murder," Fallin wrote.
   Judge Brown said he did some research into victims' rights Thursday evening and according to a law passed by the Tennessee General Assembly in 2000, Tennessee Code Annotated 40-38-114-, "The rights of the victim do not include the authority to direct the prosecution of the case." Brown said that while the law does give the victim some rights, it does not give them the right to determine what the prosecution does.
   Before accepting Harrell's plea, Brown asked him:
   "On May 14, 2001, did you kill somebody?"
   "Yes," Harrell replied.
   "Who did you kill?
   "Roger Oaks Jr."
   "What did you kill him with?"
   "A handgun," Harrell said. "A .45 caliber."
   The judge asked Harrell whether Oaks was armed at the time?
   "Did he have a handgun?" Harrell asked. "I thought he had one but I never saw it."
   "You knew what you were doing, right?" Brown asked.
   "Yes," Harrell said.
   Judge Brown asked whether the mother of Roger Oaks Jr. was in the courtroom. Barbara Oaks raised her hand.
   Judge Brown then asked Harrell: "Is there anything you'd like to say to the family of this man that you shot and killed?"
   Harrell looked over his shoulder toward the family, turned back toward the judge and said, "No."
   Judge Brown then passed sentencing.
   "As a violent offender he will be sentenced as though found guilty by jury trial and is to be held in jail without bond. ... His sentencing hearing is set for 1 p.m. Feb. 26."
   As a Range I offender facing 15 to 25 years, Harrell could serve 13 to 21 years in prison based on good behavior, at a cost of $32,000 to $33,000 per year to state taxpayers.
   Rudy Oaks, brother of Roger Oaks Sr., said though his brother's attorney sent a letter to Baldwin's office voicing the family's objections to the plea and their desire that the case go to trial, "They didn't want to hear it."
   If the resulting verdict was voluntary manslaughter, Rudy said, "We could have lived with it. We'd have been mad, but we could have lived with it."
   The family was not notified of the plea agreement and showed up at the Justice Center Tuesday morning for trial, Rudy said. "We sat down there from about 8:30 to 9:15-9:30" before finding out a settlement had been reached.
   Had the family known, Rudy said, they could have been at home grieving for the sister they buried on Monday.
   Prosecutor Baldwin said he could appreciate the family's desire to see the case tried. "We understand that, but we were concerned about the fact that the jury might have come back with a voluntary manslaughter verdict. I'm not saying it definitely would have happened, but it could have happened and then he would be facing three to six years. We just didn't want to roll the dice on that one.
   "A lot of times we get people who have had their house burglarized and they don't want to prosecute. We prosecute anyway. ... You have to do it according to the law and the likely outcome of what's in the interest of the public. And I didn't want Terry Harrell out here after having served three or four years and having killed a man under these circumstances. I'd rather he'd be in there for hopefully 20 to 25 years and the public would be better protected by that.
   "I have to be concerned about the public, not just what a family wants, because many don't understand the law, they don't understand the jury system, they haven't been doing trials for 26 years. It's a judgment call," he said.
   "On Feb. 26, that's when the family will be able to get up and say their piece about things. You can't expect a family to understand and appreciate all of the ins and outs of this situation. They're guided by their emotions. And who wouldn't be? That's why the decision is rested with us, because we're not supposed to be emotional about it."
   As a violent offender, Baldwin said, Harrell will have to serve 100 percent of his sentence. "You're not eligible for parole after serving 30 percent of it like you are in a burglary. But under the law, if you are an exemplary inmate, there are ways you can get up to 15 percent credit, but it's not automatic. The bottom line is, if you do earn that, you still have to serve at least 85 percent."
   Second-degree murder, which is a Class A felony, carries a sentence of 15 to 60 years. But because Harrell has no prior record, his range is set at 15 to 25 years, with sentence consideration to start at 20 years.
   "The state can introduce aggravating circumstances and get it up to 25. The defendant can introduce what's called 'mitigating circumstances' and try to get it down to 15. Usually the sentencing starts at the bottom of the range, which would be 15, and then we have to introduce aggravating circumstances to get it above the minimum," Baldwin said.
   "But in a second-degree, or any A felony, the sentence in consideration starts at the middle of the range, not the bottom. And that's important, because it's already up to 20 years before the court starts and we're hopeful that we can get it up above that and they (defense attorneys Stacy Street and Bill Hampton) won't be able to get it below that."
   The assistant district attorney said that while those at Carter County Sheriff's Department and the district attorney's office all know that Harrell shot Oaks Jr., the state's proof could fall short of that necessary for first-degree murder.
   "That tape about the killing being over the breaking of a glass in an oven door -- nobody's going to believe that. The jury's not going to believe that, and that's our proof," Baldwin said. And should Amanda Oaks, widow of Roger Oaks Jr., be put on the stand to testify, "They're not going to believe her either, and she's our proof."
   Baldwin said Amanda Oaks has given several statements and a deposition since the day of the shooting that differ from her original statement.
   In order to prove first-degree murder, he said, "You have to show that this is a planned, coolly, soberly thought-out intent to kill. Second-degree is where you just intentionally kill somebody."
   A classic example of first-degree, Baldwin said, "is I insure my wife and then later on after the insurance issues, I kill her. It's planned, cold, calculated, thought-out in the absence of anger and passion.
   "Killing in anger and passion is voluntary manslaughter. What happened here -- and we think the jury might perhaps go there -- is they might decide that Harrell killed Roger in a fit of anger and passion, because I think what's really going to be shown (at sentencing) is that they (Harrell and Amanda Oaks) were having a relationship with one another, and when he sees Roger over there that day, having been assured that she's leaving Roger and is going to be with him, Terry Harrell goes over there to see what's going on and just gets angry and crazy and pulls his gun out and shoots this old boy.
   "He just went over there. But did he go over there to kill him from the time that he left his house? We don't have proof of that. He didn't kill him over an oven door either, and I think a jury would come away from that as confused as I was.
   "We're all speculating about what really happened. We know what really didn't happen, and that's what the state's proof shows. They're going to believe he killed him, but that doesn't get you premeditation," Baldwin said.