Swear to Tell the Truth?
A detective retracts testimony that led to a mistrial in a high-profile murder case
by Sarah Kelley
When Metro Police Detective Roy Dunaway testified during a high-profile murder trial last month, a statement he made about the defendant’s alleged confession was both shocking and, as it turns out, completely false.
The veteran detective said under oath that Belinda Hope Mercer admitted to him, “I shot him, I shot him,” referring to her husband, Joseph Mercer III, who was killed in the couple’s Oak Hill home last spring. The detective’s assertion on the stand stunned both the defense and the prosecution, who until that moment in the courtroom on Oct. 3 had heard nothing about such a confession.
Mercer’s attorney immediately moved for a mistrial, which the judge granted without hesitation.
Dunaway has since acknowledged that Mercer never made such an admission to him. Somehow, he says, he made a mistake. But regardless of his intentions, Metro Police Department officials have, as a result, relegated the longtime homicide detective to the position of patrol officer effective this week.
“She never said, ‘I shot him, I shot him.’ I don’t know why I said that, don’t know why I said it, it just came out,” the detective admits in an affidavit, which the District Attorney’s Office filed in Davidson County Criminal Court last week. He goes on to explain that what Mercer actually told him was that the gun accidentally went off, which has been her contention all along.
In the affidavit, the detective explains that he had been “working midnights” and had worked the night before he testified in the Mercer case. He also says he was taking medicine for a cold at the time, adding, “I was tired, maybe, I just don’t know.”
Metro Police spokesman Don Aaron says the 41-year-old Dunaway has spent many of his 15 years with the department as a detective. He’s investigated numerous homicides and other violent crimes over the years. But because of his false testimony in the Mercer trial, Aaron says he will no longer be a detective, at least for the foreseeable future.
“In his conversation with me, he said that he made a mistake, that there were no underlying reasons or issues. He made a mistake,” Aaron says. Still, Aaron says his actions resulted in serious ramifications.
Regardless of whether the misstatement was premeditated or inadvertent, it’s likely to impact any testimony Dunaway provides in future cases, and might even call into question statements he made under oath in previous criminal matters.
“I think Roy Dunaway shot himself in the foot in such a way that he’ll never make a reliable witness again,” says deputy public defender Laura Dykes, who is not connected to the Mercer case. “His cross [examination] in any future case will consist of, ‘What if you remember this correctly two days after this has concluded?’ He just isn’t going to make a decent witness for the state in any situation.”
Given his reassignment, Dunaway won’t be in court and in a position to testify in such cases as often, but Belinda Mercer’s attorney, Hal Hardin, agrees with the public defender’s assessment and predicts that defense lawyers in past cases might try to use Dunaway’s false testimony in the Mercer case as evidence that he might have lied before.
Before Mercer’s trial started, Hardin says prosecutors made it clear that no witnesses were going to testify that his client confessed. That’s why when Dunaway “blurted out this statement,” Hardin says, “I almost fell out of my chair.”
In his opening remarks at trial, Hardin argued that there was no proof his client admitted shooting the victim. “Then they put this officer up, and it made me a liar in front of the jury,” Hardin says, adding that the witness went so far as to claim Mercer felt certain she had shot her husband. “The judge said he had no alternative but to grant a mistrial.”
And it’s clear the prosecution was equally as floored by Dunaway’s performance in the courtroom. “Yes, we were surprised. He [Dunaway] had never told us that before,” says Katy Miller, senior assistant district attorney and one of two prosecutors assigned to the case.
The day after the judge declared a mistrial, Dunaway told prosecutors he was watching news coverage of his testimony when he realized he had made a mistake. He then called assistant district attorney James Sledge, the other prosecutor on the case, and told him Mercer never said she shot her husband. Dunaway goes on to state in the affidavit:
“Mr. Sledge then asked me what she really did say. I remember her saying, ‘I had the gun in my hand.… I was holding the gun…the gun went off, the gun went off.’ She said that ‘the gun went off’ several times and that it was an accident. Mr. Sledge asked me how I got from ‘the gun went off’ to ‘I shot him.’ I don’t know. I just don’t know. I don’t know where it came from. Mrs. Mercer never said, ‘I shot him, I shot him.’ I’m sure she didn’t say that.”
A retrial has been set for March 2007, but Hardin plans to file a motion to dismiss the case citing witness misconduct. Judge Mark Fishburn has scheduled a motion hearing for Nov. 17.
Both Belinda and Joseph Mercer were well known as prominent attorneys in the Nashville area. Mercer’s death at the age of 53—possibly at the hands of his 33-year-old wife—sparked a maelstrom of media attention and interest in the case, particularly among the legal community. The two reportedly were in the midst of a divorce when Joseph Mercer was killed.
Dunaway was the first officer to the scene at 847 North Hillview Court on April 16, 2005, after Belinda Mercer called 911 to report her husband had been shot. Mercer told Dunaway and other detectives that she and her husband were arguing in a bedroom closet when she picked up a pistol he had been carrying. Mercer said that when her husband grabbed for the gun it discharged, striking him in the neck and fatally wounding him.
Further investigation and results of forensic testing proved inconsistent with Mercer’s version of the story, according to police, and she eventually was charged with second-degree murder. Mercer, however, has maintained her innocence, and her attorney has characterized Joseph Mercer’s death as a tragic accident.
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