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Friday, May 6, 2016

Reduced sentence denied in attack case

Friday, September 7, 2012

A Wartrace man lost his appeal for a reduced sentence in an attack in 2009 that nearly severed the victim's ear.

Richard Dale Capps was found guilty of two counts of aggravated assault and one count of conspiracy to commit aggravated assault following a jury trial, receiving an eight-year sentence from Circuit Court Judge Lee Russell.

An indictment was also returned against codefendant Sarah Malone charging her with conspiracy to commit aggravated assault, but the appeal only involves Capps.

Background

According to the appeal, the victim, James Allen Flippo, had lived with Malone for three or four months in 2009, but she moved out and returned to Capps' home at King Arthur Trailer Park, living with Capps.

Flippo was called by Malone on two occasions in late September 2009 to bring her beer and cigarettes.

But on Oct. 3, Malone called Flippo at 4 a.m. and "acted excited like she was in a panic," asking him to come over. She appeared to be alone but, after three or four minutes there was a knock at the door and Capps, Andy Pugh, and Maurice Smith walked in and confronted Flippo about him being in his home.

It was later learned that Capps, Pugh and Smith hid behind an empty trailer and waited for Flippo to arrive and that Malone lured him to the trailer to be attacked.

Assaulted

Flippo attempted to leave, but Capps and Smith hit him with their fists and pushed him to the back of the trailer while Pugh stood at the door and watched.

Again, Flippo tried to escape, but Capps hit him over the head with a beer bottle which resulted in a two-inch laceration that nearly severed his ear.

Finally, Flippo managed to get out of the trailer, but Capps and Malone followed him out to his car and attempted to pull him out and continue the assault.

But Flippo started the vehicle and backed up, throwing Capps off, and left the trailer park. Flippo did not know it at the time, but he ran over Malone, who was later taken to a hospital by ambulance.

Two statements

During the trial, Pugh testified that he saw Capps and Malone at a later date and that Malone tried to bribe him about what happened that night. Under cross-examination, Pugh also stated that most of his first written statement was a lie because Capps was sitting in the room with him when he wrote it.

Detective Carol Jean of the Shelbyville Police Department also conducted second interviews with both Pugh and Smith.

In his appeal, Capps claimed that the evidence was insufficient to support his convictions, that the prior inconsistent statements of Pugh and Smith should have been admitted into evidence and that he was improperly sentenced.

Appellate Judge Thomas T. Woodall wrote that there was sufficient evidence for the conviction, and that during the trial, Capps was allowed to read portions of Pugh's and Smith's statements in the jury's presence, and also allowed to question both witnesses concerning the inconsistencies.

Woodall also stated that Capps did not object to the prosecutor's notice of enhanced punishment, which had been filed late, and did not ask for a continuance or object to the delayed notice "and he has not shown that he was in any way prejudiced by the later-filed notice."