State of Tennessee v. Martha Ann McClancy ( 2019 )

08/09/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs February 26, 2019
STATE OF TENNESSEE v. MARTHA ANN MCCLANCY
Appeal from the Criminal Court for Monroe County
No. 13-307 Andrew M. Freiberg, Judge
No. E2018-00295-CCA-R3-CD
The defendant, Martha Ann McClancy, appeals her Monroe County Criminal Court jury
convictions of attempted first degree murder and conspiracy to commit first degree
murder, arguing that the trial court erred by denying her motion to suppress photographs
of the scene taken by her co-conspirator Charles Kaczmarczyk, her motion in limine to
exclude evidence of acts committed following the death of the victim, and her motion for
a mistrial; that the trial court erred by admitting photographs of the victim taken during
the autopsy; that the trial court’s making negative comments to and about her in front of
the jury deprived her of the right to a fair trial; that the evidence was insufficient to
support her convictions; and that the trial court erred by imposing consecutive sentences.
The State concedes, and we agree, that the trial court erred by imposing consecutive
sentences in this case. Instead, because Code section 39-12-106 prohibits the imposition
of dual convictions for two inchoate offenses designed to achieve the same objective, the
trial court should have merged the defendant’s convictions. Thus, we affirm the jury
verdicts, reverse the imposition of consecutive sentences, and remand the case for the
entry of corrected judgment forms reflecting that the convictions are merged.
Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed in Part; Reversed in
Part; Remanded
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which NORMA
MCGEE OGLE, and D. KELLY THOMAS, JR., JJ., joined.
Matthew Rogers, Athens, Tennessee, for the appellant, Martha Ann McClancy.
Herbert H. Slatery III, Attorney General and Reporter; Katherine Redding, Assistant
Attorney General; Stephen Bebb, District Attorney General; and Joseph McCoin,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
The Monroe County Grand Jury charged the defendant with first degree
premeditated murder and the defendant and Charles Kaczmarczyk with conspiracy to
commit first degree murder for the May 15, 2006 death of the defendant’s husband,
Robert J. McClancy.
Factual Overview
The evidence adduced at the defendant’s November 2015 trial established
that Mr. Kaczmarczyk befriended the victim while the two participated in a six-week
residential treatment program for veterans with post-traumatic stress disorder (“PTSD”).
The two remained close after the program ended, and Mr. Kaczmarczyk began visiting
the victim at the home he shared with the defendant. During this time, the defendant and
Mr. Kaczmarczyk began a romantic relationship, and the defendant began discussing
plans to kill the victim so that they could be together.
The defendant, who had agreed to be in charge of the victim’s medication,
indicated to Mr. Kaczmarczyk that she had been mixing medication into the victim’s
food. She asked Mr. Kaczmarczyk, who had been prescribed the same medication as the
victim, to bring more medication to the residence, and she and Mr. Kaczmarczyk secreted
the medication around the residence to make it appear as though the victim had been
hoarding it. When the victim was hospitalized for a drug overdose, both the defendant
and Mr. Kaczmarczyk told treating physicians that the victim had expressed suicidal
ideations. After the victim returned home following that hospitalization, the defendant
and Mr. Kaczmarczyk put into action a plan to overmedicate the victim and make it
appear as though he had committed suicide.
Mr. Kaczmarczyk telephoned 9-1-1 on May 15, 2006, to report that he had
discovered the victim’s body. Officers responding to the call found the victim’s lifeless
body in his recliner, a pill bottle in one hand and a pistol in the other. The area around
the victim was in disarray, and pills were strewn about. After officers discovered on a
digital camera belonging to Mr. Kaczmarczyk photographs of the victim’s body in a
variety of poses that indicated that the scene had been staged, Mr. Kaczmarczyk was
arrested and eventually charged with evidence tampering and criminally negligent
homicide. The photographs were later deemed inadmissible due to the failure to obtain a
warrant before searching the contents of the camera, and the charges against Mr.
Kaczmarczyk were subsequently dismissed.
The defendant and Mr. Kaczmarczyk moved in together and began
traveling extensively. The defendant applied for and received survivor’s benefits from
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the United States Department of Veteran’s Affairs (“VA”) and the United States Social
Security Administration (“SSA”). The defendant and Mr. Kaczmarczyk eventually
married and began a scheme to defraud the federal government. A federal investigation
led to their arrests and subsequent guilty pleas to theft in federal court. During the
pendency of the federal investigation, the defendant executed a durable power of attorney
giving her son authority to conduct her affairs while she was incarcerated. She also gave
her son several computers for him and his children to use. After one of the children
discovered a disturbing image on one of the computers, the defendant’s son examined the
contents of the computers and discovered the photographs of the victim that had
originally been taken by Mr. Kaczmarczyk’s camera. He contacted the federal
authorities, who, in turn, contacted the state authorities. He later turned the computers
and some documents over to the state authorities.
Upon questioning by the Tennessee Bureau of Investigation (“TBI”), Mr.
Kaczmarczyk implicated the defendant in the victim’s murder and admitted that they had
planned the murder together.
Trial
Jeffrey Colins, a former Monroe County 9-1-1 operator, testified that on
May 15, 2006, he answered a call shortly after 5 p.m. from 215 Unicoi Lake Road (“the
Coker Creek residence”) in Monroe County. A recording of that call was played for the
jury.
Monroe County Sheriff’s Office (“MCSO”) Patrol Officer Christopher
Logan Day responded to the 9-1-1 call, and when he arrived at the Coker Creek
residence, he “encountered Mr. Kaczmarczyk walking from the house up the driveway,
approximately halfway between the house and the road.” Officer Day patted Mr.
Kaczmarczyk down and instructed him to remain outside while Officer Day and his
partner conducted a sweep of the house. Upon entering the house, Officer Day observed
“white pills laying around in the floor” and “a lifeless body in a recliner” holding a
“pistol in his right hand” and “a pill bottle in his left[]hand.” The victim had “a cut or
abrasion[] on his forehead” that appeared to be recent to the time of death. The house,
“particularly around the kitchen, was certainly in disarray.” Officer Day observed a
number of pills and documents, one of which documents he believed to be a living will,
in the kitchen. Officer Day recalled that the defendant arrived “a little bit later,” but he
had only limited contact with her.
MCSO Detective Travis Jones also responded to the Coker Creek
residence, where he took photographs and gathered information. Detective Jones
identified photographs of the victim in the recliner. Detective Jones said that all the
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rounds were chambered in the pistol they took from the victim’s right hand. In the
kitchen, pills, a pill holder, and a do not resuscitate (“DNR”) order were lying on the
counter. He “collected all the pills that were strung about through the house, the pill
bottle in the hand and also the pistol.” Detective Jones said that the defendant arrived 30
to 40 minutes after he did and provided written consent to search the residence. The
defendant also gave Detective Jones “several different pieces of paperwork,” including “a
journal of what she kept about the events at the VA and different stuff.” The journal
contained a variety of odd entries written by the defendant.
Upon cross-examination by the defendant, Detective Jones testified that
Mr. Kaczmarczyk was originally charged in 2006 with evidence tampering and
criminally negligent homicide in relation to the victim’s death. Mr. Kaczmarczyk was
arrested at the scene on the day of the offense after Detective Jones viewed photographs
on Mr. Kaczmarczyk’s digital camera. Those photographs depicted the victim’s lifeless
body in a variety of staged scenes. Detective Jones acknowledged that another judge had
ruled that he should not have examined a digital camera without a search warrant and
had, in consequence, suppressed the photographs from the digital camera. All the
charges against Mr. Kaczmarczyk were dismissed after the photographs were suppressed.
Detective Jones also acknowledged that, in an interview conducted before
his May 15, 2006 arrest, Mr. Kaczmarczyk did not implicate the defendant in any foul
play. Mr. Kaczmarczyk admitted to Detective Jones that he took the photographs with
the digital camera and said that he had “staged the scene to make it look like a suicide so
Ms. McClancy could benefit more through the VA benefits.”
Charles Kaczmarczyk testified that he had pleaded guilty to a charge of
conspiracy to commit first degree murder in exchange for a 25-year sentence for his role
in the victim’s death. Mr. Kaczmarczyk testified that he met the victim in January 2006
when they both participated in a residential treatment program for PTSD at the VA
hospital in Nashville. Mr. Kaczmarczyk recalled that he and the other five program
participants, including the victim, “pretty much all . . . mirrored the same prescription
[medication] regimen,” which included “Clonagin, Mirtazapine and Trazodone.” He and
the victim became close during the program, and, after the program ended at the end of
February, Mr. Kaczmarczyk attended “a sort of reunion-type breakfast” for program
participants and their spouses hosted by the victim and the defendant at “their home in
Coker Creek.” Mr. Kaczmarczyk recalled that as the program participants discussed their
medication regimens and ongoing treatment programs on that day, he was struck by the
defendant’s detailed knowledge of the victim’s medication regimen. He said that he
“thought she was a pharmacist she knew so much about it.” He added, “It appear[ed] that
she knew each one of the medications, what the prescribed dosages were, when they
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should be taken, what the contraindications were, just more information than the average
person would have as far as medications.”
Mr. Kaczmarczyk testified that he and the victim stayed in touch following
the reunion breakfast and that, eventually, the victim invited him “to come back to his
place to visit him.” Mr. Kaczmarczyk said that he agreed to visit the victim because the
victim “was having some problems” and “his PTSD was possibly out of control.” He
said that when he went to visit the victim, the victim, who had been very energetic and
active during the residential program, had become “very lethargic.” Mr. Kaczmarczyk
continued to visit the victim and the defendant at the Coker Creek residence and began
attending the victim’s medical appointments at the VA. During this time, the victim
never expressed any suicidal thoughts to Mr. Kaczmarczyk.
Mr. Kaczmarczyk testified that the defendant initiated a sexual relationship
with him in April 2006. During that same period, the defendant cut her hair and died it
blond. The defendant told him that she had cut her hair “out of spite” because the victim
“liked long hair.” Toward the end of April 2006, the defendant added Mr. Kaczmarczyk
“as a card holder to the Discover card account” held by the victim and the defendant and
provided Mr. Kaczmarczyk with a card for his use. During their courtship, the defendant
“mentioned on several occasions that she would like to get rid of” the victim and said that
“if he went away,” she and Mr. Kaczmarczyk “could be together.”
At the end of April 2006, the victim was hospitalized at the VA hospital in
Johnson City following an apparent drug overdose. While the victim was hospitalized,
Mr. Kaczmarczyk attended “a family meeting” with the victim, the defendant, and the
victim’s treatment providers that “was an ongoing overview of what his continued
treatment would be when he was, in fact, released from the hospital.” He recalled that at
that meeting, the defendant agreed to be in charge of the victim’s medication and stated
that she would make sure that the victim took his medication as prescribed.
The victim was released from the hospital on May 13, 2006, and Mr.
Kaczmarczyk drove him home to the Coker Creek residence. That night, the defendant
prepared the victim’s favorite meal, but when the victim “complained that it didn’t taste
very well,” the defendant “put seasoning on it so that he would eat it.” Later that
evening, the defendant remarked to Mr. Kaczmarczyk “that she had used magic dust on
it,” which he interpreted to mean that she had put medication into the victim’s food. Mr.
Kaczmarczyk said that the victim’s demeanor changed from “alert and oriented to
somewhat lethargic, intoxicated, under the influence of drugs,” and Mr. Kaczmarczyk
attributed the change in the victim’s demeanor to the defendant’s tampering “with his
food and medications.” Mr. Kaczmarczyk maintained that the defendant managed the
victim’s medications at that time as she had been doing “everyday since he had been
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released from” the residential treatment program. Mr. Kaczmarczyk spent the night at
the Coker Creek residence with the victim and the defendant. The next day, May 14,
2006, the defendant told Mr. Kaczmarczyk that if he should happen to find the victim
dead, he should “keep it simple,” which Mr. Kaczmarczyk interpreted to mean that the
defendant wanted him to “make it look as natural as possible or make it look like a
suicide.”
Mr. Kaczmarczyk again spent the night at the Coker Creek residence. He
testified that he left the Coker Creek residence at approximately 6:45 a.m. on the
following morning to attend some appointments in Knoxville. He said that when he left
the residence, both the victim and the defendant were still there. The victim was in his
recliner, and “[h]e appeared to be somewhat lethargic.” When Mr. Kaczmarczyk
returned to the Coker Creek residence later that afternoon, he found the victim “sitting on
the floor with his pajamas kind of in a state of disarray.” The victim called Mr.
Kaczmarczyk by name and asked Mr. Kaczmarczyk “to help him get into his recliner
back in the living room.” Mr. Kaczmarczyk testified that he helped the victim into his
recliner and then went to get the victim a bottle of water. The victim “drank some of the
water. And at that point in time, he expired and vomited.”
Although he believed that the victim had died, Mr. Kaczmarczyk did not
immediately call 9-1-1. Instead, he “took some photos of the scene from the downstairs
area and also from the upstairs area with him lying in his recliner” and then placed a
bottle of pills . . . in his hand . . . and also a gun” before taking more photographs. He
testified that he put the gun in the victim’s hand because, during the residential treatment
program, the victim “mentioned on several occasions that if he died due to his previous
law enforcement experience, that he would like to die with a gun in his hand.” Mr.
Kaczmarczyk said that he also “emptied the pill keeper onto the table.” He took the DNR
order, which “was already on the table and had been since we returned from the hospital
on Saturday,” and placed it in a more prominent position. He said that he and the
defendant had planned for the victim to be found while she was at work “[s]o it would be
an alibi.” He said that their planning took place the day before the victim’s death.
Mr. Kaczmarczyk said that after the police found the photographs of the
victim on his digital camera, he was arrested and charged with obstruction of justice. Mr.
Kaczmarczyk acknowledged that he provided a statement to Detective Jones on the day
of the murder wherein he claimed that the victim was dead when he found him and that
he did not touch the victim, the pills, or the gun. In a second statement given that same
day, Mr. Kaczmarczyk admitted that the victim was just barely alive when he arrived and
that he had helped the victim to the recliner. He admitted that he “put the gun and the
pills in his hand to make the scene look worse. I thought it might increase his VA claim,”
explaining that the victim had been previously declared 30 percent disabled. Mr.
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Kaczmarczyk said that the defendant paid an attorney $50,000 to represent him. The
charges were eventually dismissed after a judge ruled that the photographs on the camera
were not admissible.
Following the victim’s death, the defendant applied for “a benefit called
DIC, which means dependent indemnity compensation through the VA. That was also
known as the widow’s pension.” Additionally, “based on the information that he
possibly had accidently overdosed, that it was the VA’s fault for them not managing his
medication better” the victim was retroactively declared 100 percent disabled, which
resulted in an award to the defendant of “one hundred percent what they call widow’s
pension.” He thought the amount was $3,000 per month. The defendant paid off a
$50,000 loan for Mr. Kaczmarczyk, and he moved into the Coker Creek residence with
the defendant. The defendant told him “that she had cut and pasted the will, [the
victim’s] original will, so that his sister . . . and his daughter . . . could not derive
anything financially from him.” On June 15, 2006, Mr. Kaczmarczyk and the defendant
opened a joint bank account. They were married on October 7, 2006, in Las Vegas,
Nevada, and then again on October 7, 2009, in Blue Ridge, Georgia. Mr. Kaczmarczyk
said that the defendant insisted upon the second ceremony, telling him it was “a woman
thing.”
The defendant and Mr. Kaczmarczyk traveled extensively after the victim’s
death, beginning with a June 2, 2006 trip to Atlanta for a Jimmy Buffett concert. Mr.
Kaczmarczyk identified the log of their travels kept by the defendant; the log included 27
separate entries. Mr. Kaczmarczyk testified that the defendant and the victim had never
traveled very much because the victim was “pretty much a recluse.” The defendant was
laid off from her job in September 2006, and Mr. Kaczmarczyk’s only sources of income
were disability benefits from the VA and the SSA. Despite this, the couple continued to
travel and even purchased a large motor coach in 2007. Sometime in 2010 or 2011, the
defendant spontaneously said to Mr. Kaczmarczyk, “If anybody finds out whatever really
happened to Bob, I will never see the light of day.”
Mr. Kaczmarczyk testified that, prior to the victim’s death, Mr.
Kaczmarczyk had placed a bag of pills into the victim’s gun safe after he and the
defendant decided that, if they “planted pills around the property, it would give more
credence to the fact that [the victim] had been misusing drugs, possibly committing
suicide.” He and the defendant invited the defendant’s son, Brian McGavic,1 to stay with
them in 2007, and they had arranged for Brian McGavic to discover the bag of pills in the
gun safe. Mr. Kaczmarczyk recalled that they told Brian McGavic “that there were pills
1
Both of the defendant’s sons testified at trial, and her son, Sean McGavic, also testified at the
hearing on the defendant’s motion to suppress. Given Sean McGavic’s role in the case, we will refer to
him as Mr. McGavic and to Brian McGavic by both his first and last names.
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in there, possibly pills that [the victim] may have used during his time of overdose,” and
Brian McGavic reported it to the police. Mr. Kaczmarczyk said that the pills discovered
in the safe had actually belonged to him and that he and the defendant hoped that the
discovery of the pills would operate in Mr. Kaczmarczyk’s favor with regard to the
charges that were pending against him at that time.
Mr. Kaczmarczyk, an Air Force veteran who served from 1972 until 2001,
testified that despite having served only “a single day in Southeast Asia in Vietnam,
which was the 29th and 30th of April in 1975 during the evacuation of Saigon,” he
portrayed himself as a war hero with a higher rank as part of “a hustle “ to get “benefits
and make money” without having to work. He said that he worked the “hustle” from
2005 to 2012 and that the defendant not only knew about his hustle but began one of her
own during their time together. The defendant claimed to be a retired colonel from the
United States Marine Corp and a former employee of the United States Department of
State. Mr. Kaczmarczyk acknowledged falsifying his service record in order to increase
the amount of benefits he received from the federal government and that he had pleaded
guilty to federal offenses for that action. He said that he had been ordered to pay
$659,000 in restitution to the various agencies from which he had obtained unearned
benefits.
Mr. Kaczmarczyk testified that the defendant filed to divorce him in 2012,
telling him “that if we got divorced and she was single, that it would be financially
beneficial for tax purposes and some reason.” Mr. Kaczmarczyk said that he “was
incarcerated at the time,” so her request “didn’t really bother [him] one way or the other.”
Mr. Kaczmarczyk testified that he provided a written statement to the TBI
on December 20, 2012, while he was serving a federal prison sentence. In the statement,
he said that the defendant had asked him “to bring over medication . . . and to mix the
prescription medications up so that it would look like [the victim] was stealing them from
me and saving them up.” He did as she asked. He said that he knew that the defendant
gave the victim “the drugs to overdose him, but . . . did not see her do this.” He
explained,
My first understanding is that she was overdosing him by
putting the medication in his food. Martha Ann told me that
she was going to overdose Bob so that we could be together,
and with his history of drug overdoses when she, quote, made
him go away, end of quote, it would look like just another
overdose that he had.
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The defendant began putting large quantities of medication in the victim’s food after the
victim returned home from the hospital on May 13, 2006. Mr. Kaczmarczyk said that he
knew that the defendant “was going to start medicating [the victim] heavily when we got
back to the house from the hospital and he would probably die soon.” He recalled that
the defendant “was specific about how and when she wanted” Mr. Kaczmarczyk to check
on the victim, asking him to check on the victim “at a specific time on the day that he
died” so that Mr. Kaczmarczyk “would find him dead and she would be at work with an
alibi.” Mr. Kaczmarczyk said that when the defendant told him when to check on the
victim on May 15, 2006, he “was pretty sure that she was going to give him a lethal dose
of the drugs because he was so close to dying anyway, and she was so specific about me
being there at a certain period of the day on that date.” He acknowledged that he staged
the scene with the pill keeper, the gun, and the DNR order. He said, “I thought it would
look better and more like he had committed suicide.”
Mr. Kaczmarczyk said that he was aware that the defendant had forged the
victim’s will by “manipulat[ing] the signature page of the will” and that she had done so
“because she didn’t want Bob’s sister who lived in Florida to get any of Bob’s assets.”
After the victim’s death, the defendant “was able to remove Bob’s name off of stocks that
were in both of their names” and that were worth “around a hundred thousand dollars or
more.”
Mr. Kaczmarczyk said that, as far as he knew, the defendant planned to kill
the victim so that they could be together and not for “financial reasons.” He added that
he “threw gas on the fire about that and told Martha Ann about now that Bob was dead
she needed to apply to get Bob’s Veterans Affairs benefits and his Social Security
benefits.”
Mr. Kaczmarczyk testified that, at some point, he had downloaded the
photographs of the victim onto his computer and then later deleted them.
During cross-examination, Mr. Kaczmarczyk admitted that the defendant’s
desire to be rid of the victim was initially “emotional” because they wanted to be
together. He acknowledged that, following the victim’s death, he came up with ways that
the defendant could benefit financially from the victim’s death. Mr. Kaczmarczyk
conceded that the victim “was very difficult with taking medications” as prescribed and
that, as far as he knew, the defendant “was administering all [the victim’s] medications
because he had a tough time doing it himself.”
Brian McGavic testified that he visited the defendant and Mr. Kaczmarczyk
in July 2007 and that he “was back and forth between [Mr. Kaczmarczyk’s] house in
Knoxville and Coker Creek” until he returned to Florida in September 2007. At that
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time, the defendant and Mr. Kaczmarczyk spent “[t]he majority of their time . . . in Coker
Creek.” Brian McGavic recalled a particular day when the defendant and Mr.
Kaczmarczyk asked him to locate a lost tool and told him where the tool might be
located. When Brian McGavic found the tool, he also found “a set of keys that would
unlock the spin combination on the” large gun vault in the garage. The defendant and
Mr. Kaczmarczyk gave Brian McGavic permission to open the vault and provided him
with the combination. The vault contained only “a grocery store bag full of loose
medications, mixed medications all out of their containers.” Brian McGavic testified that
the defendant and Mr. Kaczmarczyk reacted to the discovery with “shock and
exasperation” and asked Brian McGavic to contact the sheriff’s office. Although he
thought it was odd that they should ask him to telephone the police rather than place the
call themselves, he did as they asked. While waiting for the police to arrive, the
defendant and Mr. Kaczmarczyk set up “a card table and a couple of chairs . . . in the
middle of the driveway in front of the garage.” Mr. Kaczmarczyk “had a digital camera
and wanted to place himself . . . where he could take photographs of [Brian McGavic]
and this deputy together as the deputy was separating, identifying and inventorying the
medications that were found.” Brian McGavic testified that he found the behavior of the
defendant and Mr. Kaczmarczyk very unusual. When he inquired about their behavior,
they “explained that they had planned on filing a lawsuit against Monroe County and that
they were also planning on filing a lawsuit against” the VA and “that they were going to
use this in their cases against both.” Mr. McGavic said that “[w]ithout a doubt,” he had
come to believe that the defendant and Mr. Kaczmarczyk had manipulated him into
“accidentally” finding the medications.
James Timothy Bridges, Adjunct Pharmacy Programs Manager at the VA
Mountain Home Healthcare Center in Johnson City, testified that on February 23, 2006,
the victim received 15 30-milligram tablets of Mirtazapine. Mr. Kaczmarczyk received
30 45-milligram tablets of Mirtazapine on March 13, March 28, and May 9, 2006. Mr.
Kaczmarczyk filled prescriptions for Trazodone during this same period.
Martin Edward Smith, a pharmacist at the VA hospital in Murfreesboro,
testified that the victim received 45 15-milligram tablets of Mirtazapine on March 1 and
May 10, 2006, and that he was instructed to take one half pill each day. The victim
received 30 50-milligram Trazodone tablets on January 6, 2006, and 15 50-milligram
Trazodone tablets on January 13, January 23, and February 14, 2006. Mr. Kaczmarczyk
received 30 30-milligram tablets of Mirtazapine on January 24, January 30, March 7,
April 10, and May 5, 2006. Mr. Kaczmarczyk received 90 100-milligram tablets of
Trazodone on January 12, February 2, February 24, March 20, and April 24, 2006.
Doctor Darinka Mileusnic-Polchan, Chief Medical Examiner for Knox and
Anderson Counties and Medical Director of the Regional Forensic Center, testified that
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the victim’s autopsy was performed by Doctor Ronald Toolsie, who provided autopsies
in Monroe County at the time of the victim’s death. Doctor Mileusnic-Polchan testified
that she had reviewed not only Doctor Toolsie’s written autopsy report but had also
examined the photographs taken during the autopsy and at the scene, the “ancillary
studies, such as toxicology,” and the “cystologic slides, such as samples of tissue that was
taken at the time of the autopsy.” Based upon her review, Doctor Mileusnic-Polchan
concluded that the victim was in fairly good health aside from “a mild hypertension”
observable by looking at slides from his heart, kidney, and brain. She noted edema in the
victim’s lungs and brain, which could have been attributed to “hypoxia or a lack of
oxygen in the blood.”
The toxicology report indicated that Trazodone and Mirtazapine were
present in the victim’s system “in the toxic ranges.” Trazodone, which has a relatively
short half-life of three to seven hours, was present in the victim’s blood at 4200
nanograms per milliliter, which “was almost four times the maximum therapeutic range.”
Doctor Mileusnic-Polchan testified that it was her opinion that the Trazodone alone, even
in that amount, would not have caused the victim’s death. Mirtazapine, which has a very
long half-life of 20 to 40 hours, was present in the victim’s blood at 750 nanograms per
milliliter, more than seven times the maximum therapeutic range of 100 nanograms per
milliliter. She noted that Mirtazapine’s long half-life made it “easier to overdose with a
higher or more frequent dose.” She said that Mirtazapine was, in this instance, the
deadlier of the two drugs, explaining,
The Mirtazapine in this level I would be more comfortable
stating it as the only cause of death because it is definitely
more toxic as far as causing some side effects, side effects
being like a serotonergic syndrome or one of those, like
stimulus neurologic syndrome that individuals can overreact
because of chemical changes in the brain.
She added, “[T]he concentration of these particular drugs in this combination is definitely
deadly because of all the side effects that they can cause.”
Doctor Mileusnic-Polchan testified that the victim had no gastric contents,
which indicated that he had not eaten within a “minimum of six hours.” The absence of
pill fragments in the victim’s stomach indicated to Doctor Mileusnic-Polchan that the
victim had not ingested the Trazodone and Mirtazapine as whole or half tablets. She
observed that “a lot of these medications are in the tablet form that is designed for slow
release” and that crushing the tablet would defeat the slow release mechanism, which, in
turn, “might elicit sudden increase in the level of concentration.” Doctor Mileusnic-
Polchan said that, in a typical case of suicide by overdose, she would expect to “see a lot
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of granular substance in the gastric content[s]” as well as “a lot of fluids to help all those
drugs push down.” Neither was present in the victim’s autopsy. She added that she
would have expected “much larger levels [of drugs] because when there is intent and
there is an oral intake of the drugs, that elicits sudden surge of these mediations in the
blood stream, then the layers are much higher.” It was Doctor Mileusnic-Polchan’s
opinion that the victim “died of combination of the Trazodone and Mirtazapine, which is
the main cause of death.”
During cross-examination, Doctor Mileusnic-Polchan testified that brain
edema like that present in the victim “is going to be the result of a protracted death,
meaning that that is not sudden.” Her review of the victim’s hospital records from the
last hospitalization before his death showed that “the Mirtazapine and Trazodone were
not the drug that he was released with to go home.”
The defendant’s son, Sean Michael McGavic, testified that the defendant
initially told him that the victim had died as a result of several mini strokes:
[S]he said that he -- he was acting strange at the house and he
was starting to have mini strokes. And she loaded him -- put
him in her truck and took him to the hospital. And on the
way to the hospital, he had another several mini strokes and
she thought he died on the way to the hospital. And she had
to pull the truck over and resuscitate him. And she, I guess,
got him back and then got him to the hospital. And once he
got in the hospital, he passed away sometime at the hospital.
When Mr. McGavic later visited the defendant at the Coker Creek residence, the
defendant told him that the victim “had died of a heart attack at home.” Finally, in 2008,
the defendant told Mr. McGavic that the victim had died of a drug overdose.
Mr. McGavic testified that his relationship with the defendant had always
been tumultuous and that, at some point in 2008, he and the defendant stopped speaking.
In 2012, Mr. McGavic learned that the defendant and Mr. Kaczmarczyk were under
investigation for federal benefits fraud. He said that he contacted the defendant in
August or September 2012 after she was released on house arrest so that he could recover
property from her that had originally belonged to his father and paternal grandparents.
They began talking, and he went to help her clean out the Coker Creek residence. Mr.
McGavic testified that, at that time, the defendant, anticipating a stint in federal prison,
executed a durable power of attorney to allow him to conduct affairs on her behalf and
provided him with the deeds to the Coker Creek residence and the Knoxville residence
that she shared with Mr. Kaczmarczyk. She also gave him full control of all her
-12-
belongings, including three computers. When Mr. McGavic examined the contents of the
computers, he “found some photos on” one of the computers given to him by the
defendant “that . . . appeared to be [the victim] dead in different ways.” He contacted the
federal agents who were investigating the defendant at that time to alert them about the
photographs.
In January 2013, the defendant contacted Mr. McGavic and said that she
had been questioned about the victim’s death and “wanted [him] to come over right
away.” When he arrived, the defendant was in the downstairs bathroom with the radio on
“because she was afraid that . . . somebody [was] listening in.” She told Mr. McGavic
“that the TBI had come and questioned her about” the victim’s death and, referring to the
computers she had given him, said,
I don’t know if, you know, somebody is going to come to
your house to get anything. But if you could, you may want
to take those computers to . . . an IT person, to delete the
information, have him go through these computers that I gave
you and delete whatever is on them. And that way your kids
can use them . . . .
During cross-examination, Mr. McGavic testified that Mr. Kaczmarczyk
had signed the Knoxville residence over to the defendant and that the defendant had
added Mr. McGavic’s name to the deeds for both the Knoxville and the Coker Creek
residences before she began her federal prison sentence. Mr. McGavic clarified that he
had discovered the photographs of the victim on the computer before he had the
conversation wherein the defendant told him to delete the information on the computers.
Mr. McGavic maintained that the defendant and the victim had purchased the Coker
Creek residence using money awarded to Mr. McGavic “from a car accident” and money
that Mr. McGavic “had inherited from the time [he] was born.” He acknowledged that
the defendant had executed a quit claim deed to him for the Coker Creek residence,
insisting that it had been purchased with his money and that no one was living in it.
TBI Agent Josh Melton testified that he was contacted by federal agents,
who informed him “that there was information, intelligence information that might
pertain to a death.” He later received a written request for investigation from the Monroe
County District Attorney’s Office. After a brief conversation with Detective Jones,
Agent Melton “made the independent decision as TBI that we were not going to view”
the MCSO case file for the investigation of Mr. Kaczmarczyk.
Agent Melton spoke to Mr. McGavic, who indicated that he had computers,
electronic storage devices, and documents that had been given to him by the defendant
-13-
and that pertained to the death of the victim. Mr. McGavic surrendered to Agent Melton
documents and computers given to him by the defendant.
Among the documents was a durable power of attorney executed by the
victim and filed June 15, 2006 with the Monroe County Register of Deeds; the second
page of this document was marked with register book M172, page 769. Mr. McGavic
also gave Agent Melton a document purporting to be the victim’s last will and testament;
the second page of this document was also marked as register book M172, page 769.
Agent Melton observed,
[T]he Last Will and Testament in its entirety is, as a whole[,] .
. . a forgery. . . . [I]t has been manipulated, cut and pasted.
The book, page numbers are cut and pasted on each page
from the Durable Power of Attorney onto the will, on each
one of those pages, and then all the signature lines and the
filing dates are exactly the same on the end of the will as they
are on the Durable Power of Attorney.
He noted that the certified copy of the durable power of attorney on file with the Monroe
County Register of Deeds showed the book and page number at the bottom of each page.
Agent Melton said that, upon examining the certified document, he determined that the
durable power of attorney “was a real document that would have been . . . manipulated to
falsify that will” and that the book and page numbers on the document purporting to be
the victim’s last will and testament are actually those from the durable power of attorney.
Agent Melton also identified two marriage licenses for the defendant and
Mr. Kaczmarczyk, one issued in Las Vegas on October 7, 2006, and one issued in
Georgia on October 7, 2009.
Agent Melton interviewed the defendant in January 2013, and she told him
that the victim suffered from PTSD and “had a difficult time taking his prescription
medications as were prescribed to him.” She said that the victim “would skip taking
medications as prescribed and then try to make up for them by taking more later.” The
defendant added that the victim “had been called out by a nurse practitioner for not taking
his prescription medications correctly” while he was attending the six-week residential
treatment for PTSD. The defendant said that the victim had overdosed in April 2006 and
again at the end of April or beginning of May 2006. The defendant told Agent Melton
that Mr. Kaczmarczyk was present when the victim overdosed in May 2006, which led to
his death, and that he had taken photographs of the victim. She said that Mr.
Kaczmarczyk told her that he had moved the victim to a chair in the living room and
planned “to wait for her to get home so they could take him to the hospital as had been
-14-
done in the past.” She said that, after he called 9-1-1, Mr. Kaczmarczyk put the victim’s
“service revolver in [the victim’s] hand and sprinkled pills in his lap.” The defendant
said that Mr. Kaczmarczyk told her that he had staged the scene because he thought it
would help her obtain veteran’s benefits. The defendant said that after the victim’s death,
“she found pills stashed in several places” and that “[t]he pills that she found stashed
were different kinds of prescription pills mixed together.” She claimed that “she found
multiple bottles of these mixed pills while moving some egg cartons in the garage” and
“in an old washing machine in the laundry room.”
The defendant said that she had married Mr. Kaczmarczyk in October 2006
but that the two had separated in March 2007. They later renewed their vows in October
2009. The defendant specifically denied having had a romantic relationship with Mr.
Kaczmarczyk before the victim’s death.
The defendant acknowledged that she had given Mr. McGavic a durable
power of attorney to manage her affairs while she was incarcerated and that she had
given Mr. McGavic a computer from the Coker Creek residence and had given him “an
iMac computer to maintain that came from her residence in Knoxville.” She said that she
had instructed Mr. McGavic to retrieve the victim’s medical records from the Coker
Creek residence.
The defendant told Agent Melton that the victim had executed the will in
2004 before he had heart surgery, but she was not sure whether it had been filed at the
courthouse. She said that she had a hard copy of the will. Agent Melton acknowledged
during cross-examination that he could not establish that the will was forged prior to the
victim’s death.
Kathy Inzerillo, the victim’s sister, testified that she remained in regular
contact with the victim after he and the defendant moved to Tennessee from Florida in
1997 and that she visited him in Tennessee at least once a year. Ms. Inzerillo insisted
that the victim had never expressed any suicidal ideation to her. Ms. Inzerillo testified
that she received an email from the defendant’s work email address at 8:48 a.m. on the
day of the victim’s death. In the email, the defendant described the victim as having
violent mood swings following his return from the hospital. She told Ms. Inzerillo that
the defendant’s medication made him extremely lethargic and drowsy. Ms. Inzerillo
recalled that the defendant telephoned her on the day of the victim’s death and said that
the victim “had overdosed himself.” Ms. Inzerillo and her husband traveled to Tennessee
for the victim’s funeral, and the defendant arranged for them to meet Mr. Kaczmarczyk
while they were there.
-15-
Ms. Inzerillo testified that she did not know that the defendant was in a
relationship with Mr. Kaczmarczyk, but she “knew something was going on because,”
when questioned, the defendant “came up with this job that she had and she would be
gone.” Ms. Inzerillo testified that she communicated with the defendant by email on
October 6, 2006, and that the defendant claimed to have been “at Nellis Air Force Base
on a training assignment.” The defendant told Ms. Inzerillo that she was going “to go to
Key West Naval Air Station on November 1st. There is supposed to be quite a
deployment into the station at that time and I will get yet a different type of training.”
Ms. Inzerillo testified that she received a letter from the defendant on October 6, 2006,
with a return address of Nellis Air Force Base in Nevada. The defendant wrote that she
had gotten a job working for the Secret Service and that she was anticipating an
“overseas assignment.” Of her new job, the defendant said:
I didn’t apply for this job. I actually got recruited. I
am sure you remember that I hired a private investigator to
help me after Bob died. He is a retired field supervisor with
the FBI. He was talking to one of his cohorts in Washington
one day and mentioned that he was working with a lady in
East Tennessee who he wished had been a part of his unit
when he was active. He told him how impressed he was with
my abilities in different areas and the fact that I had worked
law enforcement a number of years ago. He also told the
fellow that I was wasting my time in a Podunk town with a
deadend job. And since my husband had died and left me
with no money and no benefits, he wished I had a better
opportunity. The fellow here in Washington told him about
this job and it sounded like I would be perfect for it. So, yes,
there is no doubt about it, I was truly in the right place at the
right time. They pulled strings and here I am.
When Ms. Inzerillo asked if she ever heard “from that Chuck fellow at all,”
the defendant replied, “Yes, I hear from him everyday,” but she did not tell Ms. Inzerillo
that they had been married. When Ms. Inzerillo asked the defendant whether she had
listened to the 9-1-1 call and whether she thought Mr. Kaczmarczyk’s behavior following
the victim’s death was odd, the defendant said that she had listened to the recording but
did not believe Mr. Kaczmarczyk’s behavior to be odd.2
2
Other emails indicated the depth of the defendant’s deception regarding the alleged Secret
Service job. Following the admission of these emails, the trial court called a jury out hearing and stated
its opinion that none of the emails was admissible and questioned why defense counsel had not objected
to their admission. The trial court questioned the relevance of the emails as anything other than an
attempt to inflame the jury.
-16-
Ms. Inzerillo testified that she received a letter from the defendant in
September 2007 appended to which was a copy of a letter the defendant had sent to the
victim’s daughter and a copy of what purported to be the victim’s will. In the letter, the
defendant accused Ms. Inzerillo of defying the victim’s “wishes that [the victim’s
daughter] not be contacted, made aware of his death.” The defendant called Ms. Inzerillo
“a busy-body and a know-it-all” because she had contacted the victim’s daughter. The
defendant said that she was surprised to think that Ms. Inzerillo thought the victim
“would . . . ever leave anything -- everything that we owned unprotected and vulnerable
to his no-good, lazy daughter and her worthless husband.” The defendant repeatedly
emphasized that the cause of the victim’s death was an overdose of his prescribed
medication and expressed outrage that Ms. Inzerillo did not agree. In the will appended
to the letter, the victim left everything to the defendant, one dollar to his daughter and
both of his stepsons, and purposefully disinherited his mother and sisters.
The victim’s daughter, Teresa Guinn, testified that she had not actually
spoken with the victim since the spring of 2003 and that her last contact with him was an
email birthday card she received from him and the defendant in February 2006. Ms.
Guinn insisted, however, that she had telephoned the victim on Christmas Day 2006 and
left a message on the answering machine. Ms. Guinn testified that, at some point, Ms.
Inzerillo called her and told her that the victim had died. Ms. Guinn said that she
immediately telephoned the defendant and left a message but received no reply. Ms.
Guinn acknowledged that she later wrote the defendant a letter wherein she indicated that
an attorney had told her that she had “a 50 percent right to all” of the victim’s
“[b]elongings ranging from personal momentos [sic], household items, farm equipment,
his 2003 F-250 truck and so forth” and that she wanted to discuss with the defendant how
she “would like to go about dividing his things.” Ms. Guinn said that she also expressed
her interest in owning the Coker Creek residence in the letter. The defendant responded
with a letter, a copy of the victim’s will, and a money order for $1. The defendant
pointed out that Ms. Guinn’s relationship with the victim was acrimonious and that the
two did not talk often. Ms. Guinn conceded that she later learned that she was not
entitled to any of her father’s belongings.3
Deborah K. Hartman testified that she and her husband were friends of the
defendant and the victim and that they “spent a great deal of time with them.” Ms.
Hartman recalled that, before the victim went to the PTSD program in Nashville, “[h]e
was the life of the party,” but that changed when he returned. He came to visit the
Hartmans’ home less and less while the defendant and Mr. Kaczmarczyk started coming
3
Out of the hearing of the jury, the trial court questioned the relevance of Ms. Guinn’s testimony
but noted that the defendant had not objected to its admission.
-17-
to their home together. During that same period, the defendant changed her appearance,
cutting her long gray hair and dyeing it blond. The defendant told Ms. Hartman that the
victim was “very, very upset, that he liked long hair and was not happy with the short.”
Ms. Hartman said that the new haircut made the defendant look 10 years younger.
After the victim’s death, the defendant stayed with Ms. Hartman for “three
or four days until . . . they gave her permission to go back to the house.” On the day
following the victim’s death, the defendant spent several hours on the telephone trying to
obtain the services of a lawyer for Mr. Kaczmarczyk.
The defendant and Mr. Kaczmarczyk often traveled with the Hartmans after
the victim’s death. Ms. Hartman recalled that the defendant and Mr. Kaczmarczyk
bought “a large motor coach” and that the defendant bought “some beautiful diamond
earrings.” She said that the defendant’s lifestyle improved dramatically. While on a
cruise with some other friends in 2008, Ms. Hartman asked the defendant if she intended
to marry Mr. Kaczmarczyk, and the defendant replied, “No, I can’t do that because I
would lose Bob’s annuity, police annuity if I would get re-married.” About a month after
they returned from the cruise, the defendant and Mr. Kaczmarczyk told Ms. Hartman that
they planned to get married as soon as the defendant turned 65.
SSA Special Agent Thomas Goldman testified that he investigated the
defendant to determine whether she had obtained any benefits by fraud. Agent Goldman
described the so-called widow’s pension as a survivor’s benefit payable as a $255.00
lump sum plus a monthly payment based on the deceased spouse’s payment record. He
said that a surviving spouse could also be eligible for a back payment of Social Security
Disability benefits approved after the death of their spouse. He noted, however, that
remarriage before age 60 would terminate both benefits. Agent Goldman testified that as
part of his investigation of the defendant and Mr. Kaczmarczyk, he checked to see
whether she “had filed for any benefits, specifically a lump sum death payment, or any
back payments that [the victim] may have been due for disability.” He learned that
shortly after the victim’s death, the victim’s claim for Social Security Disability benefits
based on his service-related PTSD had been approved and that the defendant received the
funds as a lump sum check for $24,010 along with the $255 death benefit. The defendant
also received a monthly benefit. Born on October 6, 1949, the defendant would have
stopped receiving any of these benefits if she remarried before October 6, 2009.
During cross-examination, Agent Goldman agreed that the victim had
applied for the disability benefits that resulted in the lump sum payment long before his
death and that that money would have been paid regardless of his death. He clarified
during redirect examination, however, that the victim’s death was a factor in his being
declared 100 percent disabled as a result of his PTSD.
-18-
VA Special Agent Nathan Landkammer testified that, at the time of his
death, the victim was receiving a 30 percent disability benefit from the VA but that the
amount “eventually increased to 100 [percent] after his death.” He said that although the
victim had some claims pending when he died, it was the claim filed by the defendant
following the victim’s death that raised the benefit from 30 to 100 percent. Agent
Landkammer said that a program through the VA “for surviving family members of
deceased military veterans who receive compensation benefits . . . entitles the surviving
spouse to receive this monthly monetary benefit” for the rest of his or her life provided
that the surviving spouse does not remarry before turning 57 years old. He noted that the
defendant and Mr. Kaczmarczyk were married one day after the defendant’s 57th
birthday.
Agent Landkammer testified that on at least 13 separate occasions during
his stay in the six-week in-patient treatment program, the victim denied having suicidal
ideation. He noted that the treatment notes in the victim’s file from the Mountain Home
VA facility indicated that the defendant called the facility on May 18, 2006, to report that
the victim had died from a likely drug overdose. The defendant also reported “that she
had been administering his medications since his [discharge] from E2 two days
previously and following instructions per this author’s note of 5/5/06.” The treatment
notes from May 13, 2006, indicate that the victim told his treating physician that the
defendant had “‘cleaned the house of medications’” and that the overdose that led to his
hospitalization at the beginning of May was a mistake and not intentional. The victim
stated at least 50 times that he did not have any suicidal ideation.
During cross-examination, Agent Landkammer conceded that the intake
notes for the victim’s last hospitalization indicated that the victim’s “friend claimed that
he had a history of overdose, and . . . that the spouse said that he had told her he was
attempting suicide.” The victim had another suspected overdose in April 2006 but was
not admitted to the hospital that time.
Shelly Lanelle Peterson, Assistant Veterans Service Center Manager for the
VA Nashville Regional Office, testified that dependency and indemnity compensation is
a tax-free benefit paid to survivors of service members who die on active duty or “who
had a disability incurred or aggravated in service.” A typical benefit was $1,215.00 per
month. The defendant received dependency and indemnity compensation of
approximately $92,000, plus “a month of death benefit” equal to $2,500.00, plus “an
accrued benefit that was payable to her” of approximately $7,900.00. Ms. Peterson
testified that at the time of the trial, the defendant was still receiving a benefit, albeit at a
reduced rate due to her incarceration. Ms. Peterson said that at the time of his death, the
victim was receiving a 30 percent disability benefit. After his death, the percentage was
-19-
increased by 10 percent based upon a system-wide review of certain veterans. The
defendant then applied for an increase to 100 percent based upon the victim’s death. The
defendant’s request was granted.
Following this testimony, the State rested, and the defendant elected to
testify.
The defendant testified that the victim began struggling with PTSD before
they were married. After Mr. McGavic was seriously injured in a car accident, the victim
worked as his primary caregiver, and that seemed to trigger a recurrence in the victim’s
PTSD. The defendant said that she purchased the Coker Creek residence with proceeds
from the sale of the home she received as part of her first divorce settlement. She
recalled that she and the victim initially took out a $50,000 mortgage on the property for
the purpose of establishing good credit in the community, but they paid the mortgage off
quickly. The defendant said that she also paid cash for an additional five acres that
abutted the Coker Creek property. Despite these large cash outlays, the defendant
maintained that she still had significant liquid assets “from the original divorce, and some
of them from when [she] was a child.”
The defendant said that the victim eventually elected against the
defendant’s wishes to retire early because his PTSD was getting worse. She said that she
was forced to take a job with insurance and benefits because “retiree insurance” was so
expensive. She said that she and the victim also started a cleaning business and that the
victim performed lawn maintenance. She said that they also sold eggs from the chickens
that they raised, and she noted that she sold the eggs at a discount to poor people.
Eventually, the victim learned that he was entitled to veteran’s benefits
based upon his service in Vietnam. The victim finally began the process of obtaining
those benefits in 2003. Around that same time, the victim began visiting both a primary
care physician and a psychologist at a VA clinic in Knoxville. The defendant said that
the medication and therapy helped with the victim’s PTSD. When his improvement
seemed sporadic despite all the treatments, the victim admitted to the defendant that “he
was messing with his medicine.” She said that he stopped taking his medication when he
began to feel better, and then, when he started to feel bad again, “he just goes back and
gets a whole handful and takes it.” She said that “he did the same thing with the
psychotropic drugs that were prescribed for him for his PTSD.” The victim continued to
do this despite the defendant’s warning him to stop. The defendant said that the victim
refused to allow her to manage his medication at that time.
The defendant testified that the victim’s PTSD continued to worsen and
that, on one occasion in 2005, she awakened at 3:30 a.m. to find that the victim had left
-20-
the residence on foot. He arrived home at approximately 5 a.m. “in full military
camouflage” and carrying three weapons. She said that the victim told her that “he was
out walking the perimeter.” She recalled that, later that morning, the victim seemed to
“come to himself” and did not understand why he was dressed the way he was. At that
point, the victim admitted that he needed more help. Eventually, after the defendant
threatened to leave him, the victim entered the six-week PTSD program in Nashville.
The defendant testified that the victim called her “excited about . . . his
roommate,” Mr. Kaczmarczyk, whom he described as “a wonderful guy.” The victim
told the defendant at one point that he “had been called out in front of the class one day
for not taking his medication properly.” The class was apparently canceled after an
incident that involved Mr. Kaczmarczyk, and the victim was very upset that they didn’t
get to have their graduation. The defendant said that, when the victim returned from the
program, he was better in some ways “but in the majority of ways” he was not.
She and the defendant hosted a get-together for the program attendees at the
Coker Creek residence on the weekend after the program ended, and Mr. Kaczmarczyk
attended. The defendant said that the victim and Mr. Kaczmarczyk “stayed in very close
contact with one another,” talking on the phone daily and visiting each other’s houses.
Mr. Kaczmarczyk spent the night for the first time at the end of March 2006. At that
time, the victim seemed to be doing better and “appeared to be taking his medication
correctly.” The defendant recalled that the victim injured his back and had an incident
where he took too much pain medication. At the beginning of May, there was an incident
when she and Mr. Kaczmarczyk had difficulty waking the victim for dinner. They took
him to the emergency room, and the victim “admitted to them that he had taken too much
medication.” The victim was hospitalized, and, at the end of that hospitalization, the
victim agreed to allow the defendant to have control of his medication.
The victim came home on May 13, 2006. The defendant said that she was
“astonished that they were turning him loose and not making any effort to get him into a
long-term program.” She asked Mr. Kaczmarczyk to pick the victim up from the hospital
and drive him home. The defendant recalled that, when he got home, the victim “had a
deer in the headlight look” and thought he was “back in the 1970’s, after he had returned
from Vietnam.” On the following day, the victim fell on the stairs. The defendant
recalled that Mr. Kaczmarczyk stayed at the Coker Creek residence because he and the
victim were planning to go to Orlando for a reunion of their military unit. She said that
she and the victim argued because he would not let her apportion his medication for the
trip. She claimed Mr. Kaczmarczyk overheard the argument and told the victim to let the
defendant control the medication.
-21-
The defendant said that on the day of the victim’s death, the three of them
ate breakfast together, and then she left for work. Mr. Kaczmarczyk left at the same time
as she did to go to Knoxville to retrieve his things for the trip to Orlando. The defendant
said that when she returned home from work, she saw “emergency vehicles everywhere.”
The defendant said that the police would not allow her to enter the residence until several
days after the victim’s death and that she stayed with Ms. Hartman during that time. She
testified that she was shocked when she learned that Mr. Kaczmarczyk had been charged
in relation to the victim’s death. When the police told her that Mr. Kaczmarczyk had
altered the scene and taken photographs, she “didn’t understand why he would do
something like that.”
The defendant said that after Mr. Kaczmarczyk was released from jail, she
took him his truck and suitcase, and Mr. Kaczmarczyk denied having any involvement in
the victim’s death. He told her “that he made those pictures, that he sprinkled the pills
and the deal with the gun, because he wanted to make pictures that he thought would help
me with the V.A.” The defendant adamantly denied sprinkling medication on the
victim’s food: “That is an absolute, out and out lie. I never ground up any of his
medication. I never attempted to kill my husband. I didn’t want him dead. I still wish he
was around today.” She also denied discussing killing the victim with Mr. Kaczmarczyk:
“I don’t know where he has come up with this. I, I have my ideas but he’s never told me
where he cooked this up. I never heard this story before he and I were arrested in July of
2012.” She said that she had no reason to kill the victim for financial gain because she
had her own money.
The defendant claimed that she and the victim “had wills, living wills, and
powers of attorney that mirrored each other” and that they took all six documents to be
“witnessed and notarized” in January 2004. She said that “[t]he one document that in
shuffling all of the papers that we did not get signed and notarized was his will.” The
defendant said that she first realized that the victim’s will had not been signed or
notarized when she looked at it in August 2007. She claimed that Mr. Kaczmarczyk took
“the real will that [the victim] had drawn up and had cut and pasted it to fit the pages of
his power of attorney to where it looked like it had been signed and notarized, but it never
was. It was fake in that issue.” She insisted that “[t]he contents of the will were [the
victim’s] wishes but he never signed it the day that we were at the bank, and so that was
how the will got . . . falsified.” (ellipsis in original). She said that she did not object to
Mr. Kaczmarczyk’s altering the will and admitted that she had mailed a copy of the will
to Ms. Inzerillo and Ms. Guinn.
The defendant testified that shortly after the victim’s death, Mr.
Kaczmarczyk invited her to attend a Jimmy Buffet concert with him in Stone Mountain,
Georgia, and she went. She said that they shared a hotel room but not a bed during the
-22-
trip. After that trip, Mr. Kaczmarczyk continued to come to the Coker Creek residence to
help her with yard work and take care of the animals. The defendant agreed to loan Mr.
Kaczmarczyk the money to hire an attorney to represent him on the original Monroe
County charges related to the victim’s death. She insisted that they were not romantically
involved when she loaned him the money and maintained that they were not romantically
involved before the victim’s death. The defendant said that she agreed to travel to New
England with Mr. Kaczmarczyk to visit his family on the week of July 4, 2006, and she
became romantically involved with Mr. Kaczmarczyk during that trip.
The defendant testified that she agreed to marry Mr. Kaczmarczyk in
October 2006 because she needed back surgery but had been laid off from her job and, as
a result, had lost her health insurance coverage. She said that Mr. Kaczmarczyk offered
to add her to his insurance policy and agreed that they did not have to tell anyone that
they were married since it was “nothing but a business deal.” She said they were
romantically involved at the time but that she “wasn’t in love with the man.” The
defendant said that she lived with Mr. Kaczmarczyk at the Knoxville residence during the
winter of 2007, but the couple separated at some point after she saw an email that Mr.
Kaczmarczyk had written to another woman. The defendant testified that in May 2007,
while living alone at the Coker Creek residence, she “overdosed on some pills, and [Mr.
Kaczmarczyk] came in and came down to the house and found me.” After she “had
sobered up,” Mr. Kaczmarczyk told her that she needed to pursue psychiatric help at the
VA. At some point, the defendant mortgaged the Coker Creek residence to pay for the
motor coach. She finally agreed to “openly” marry Mr. Kaczmarczyk in October 2009.
The defendant admitted lying to Ms. Inzerillo about her having a job with
the Secret Service, saying, “I mean, it was just a hoax. That’s all in the world it was, was
a hoax to more or less get her to stop bugging me.” She said that she even sent letters to
Ms. Hartman’s daughter who lived in Maryland to have her mail them to Ms. Inzerillo to
make it look like the mail had originated in D.C. She said that she and Mr. Kaczmarczyk
“hatched that up together.”
After she and Mr. Kaczmarczyk were arrested and charged with federal
offenses, she hired a private investigator who found out that Mr. Kaczmarczyk was “a
fraud” and a “con man.” The defendant testified that she filed for divorce from Mr.
Kaczmarczyk in December 2012 after she spoke to the private investigator. After that,
Mr. Kaczmarczyk told “this wild concocted story of [her] having murdered [the victim]
for the first time.” The defendant added,
I did not kill Bob McClancy. I did not have anything to do
with killing Bob McClancy. I cannot tell you anything more
than what I know, that he died of a drug overdose. I know
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that when he died, I begged Dr. Toolsie to please not put on
his death certificate that it was a suicide, because as a
Catholic, Bob could not have had a Catholic funeral if it had
been ruled a suicide, and I begged them not to do that. I said,
“None of us know what his state of mind was when this
happened.”
The defendant testified that two weeks before she was scheduled to be
released from federal custody, she was charged with murder in Monroe County and that
she had “sat in Monroe County jail for 76 weeks.”
During cross-examination, the defendant insisted that Mr. McGavic lied
when he said she had used proceeds from his civil settlement to pay for the Coker Creek
residence. She also said that Mr. McGavic lied when he said she told him the victim had
died of a stroke, but she admitted that she told “everybody at first that he had died of a
heart attack because I did not want that dirty linen aired that he had died of an overdose.”
The defendant denied telling personnel at the VA that she would agree to be in charge of
the victim’s medication, saying, “I remember telling them that I worked two jobs and
could not be in charge of it. That’s why they needed to keep him.” She acknowledged
that the log that she kept indicated that on Sunday, May 14, 2006, she woke the victim “at
6:30 in order to administer new drugs in manner mandated by Dr. Hendricks.” The
defendant admitted that in July 2007 she prepared a statement to the VA on behalf of Mr.
Kaczmarczyk that indicated that she was administering Mr. Kaczmarczyk’s medications
and that he was not doing well.
The defendant admitted that she had cut and died her hair but insisted that
she had not done so until after the victim’s death. She admitted that she had lied to the
victim’s daughter about the location of the victim’s ashes. She also conceded that she
had given the will and power of attorney documents to Mr. Kaczmarczyk so that he could
alter them and that she had sent the forged will to the victim’s family members.
Based upon this evidence, the jury convicted the defendant as charged of
conspiracy to commit first degree murder but convicted her of the lesser included offense
of attempted first degree murder in lieu of the charged offense of first degree
premeditated murder. Following a sentencing hearing, the trial court imposed
consecutive sentences of 25 years, the maximum within the range, for the defendant’s
convictions. The defendant filed a timely but unsuccessful motion for new trial followed
by a timely notice of appeal.
In this timely appeal, the defendant challenges the rulings of the trial court
with respect to her motions to suppress the photographs taken by Mr. Kaczmarczyk of the
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victim following his death, to exclude evidence of acts committed by her and Mr.
Kaczmarczyk following the victim’s death, and to declare a mistrial when Agent Melton
commented on the defendant’s having terminated their January 2013 interview on the
advice of her counsel as well as the court’s ruling admitting into evidence photographs
taken of the victim during the autopsy. The defendant argues that certain of the trial
court’s comments amounted to an improper commentary on the evidence and that his
negative comments to and about her deprived her of the right to a fair trial. The
defendant challenges the sufficiency of the convicting evidence, arguing that the State
failed to present sufficient evidence to corroborate Mr. Kaczmarczyk’s testimony
implicating her in the victim’s murder and that even Mr. Kaczmarczyk’s testimony failed
to establish that they had planned to murder the victim in order to benefit financially.
Finally, the defendant contends that the trial court erred by imposing consecutive
sentences, arguing that her convictions should be merged because dual convictions
violate principles of due process. We consider each claim in turn.
I. Suppression
The defendant asserts that the trial court erred by denying her motion to
suppress the photographs of the victim taken shortly after his death by Mr. Kaczmarczyk.
She argues that, because the photographs were suppressed by a different trial judge in the
original case charging Mr. Kaczmarczyk with evidence tampering and criminally
negligent homicide, they should have been suppressed in her case as the fruit of the
original unconstitutional search. She also argues that Mr. McGavic lacked the authority
to give the computers that contained the digital images to the TBI because she had placed
them in his possession only for safekeeping. Finally, she asserts that the search warrant
was insufficient to permit the TBI to examine the contents of the computers.
At the suppression hearing, Detective Jones testified as he did at trial that
he responded to the 9-1-1 call placed from the victim’s Coker Creek residence. While at
the residence, Detective Jones observed photographs of the victim on a digital camera at
the scene. The photographs depicted “[the victim] in a recliner, appeared to be deceased,
and then there was some more photos, of the . . . same recliner, of [the victim] holding
the pill bottle. Then the other photo was [the victim] holding a pistol and a pill bottle.”
After observing the photographs, officers transported Mr. Kaczmarczyk to the sheriff’s
office, where Detective Jones interviewed him at approximately 10:00 p.m. Mr.
Kaczmarczyk was later placed under arrest, and he remained in custody for three days.
Detective Jones said that, after Mr. Kaczmarczyk was charged in the
victim’s death, Mr. Kaczmarczyk moved to suppress the photographs. The trial court
granted the motion, ruling that the police needed a search warrant to access the digital
camera at the scene. The suppression of these photos led to dismissal of the case.
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Mr. McGavic testified that after the defendant had been charged in federal
court, she was placed on house arrest. While she was on house arrest at the Coker Creek
residence, she executed a durable power of attorney that granted Mr. McGavic authority
over all her affairs. She provided him with keys to both the Knoxville residence and the
Coker Creek residence. The defendant gave Mr. McGavic three computers and told him
that they were for him and his children to use; she told him to let the kids “have free reign
on” the Apple computers in particular. Mr. McGavic testified that after he let the
children use the computers, one of his children found a photograph of one of Mr.
McGavic’s nephews inside a casket following the nephew’s death. At that point, Mr.
McGavic decided to look through the rest of the photographs on each of the computers to
make sure the children didn’t find anything else that was inappropriate. He found
pictures of the victim in the computer’s “trash bin”; the victim appeared to be deceased.
In some of the photographs, the victim
had a gun in one hand and no gun, and the next picture he
didn’t have a gun. In one picture, he was laying a different
way or position, and in the next picture he was in another
position. In another photo, . . . the kitchen was in disarray,
and then the next photo, the kitchen was just fine. And then
in another photo, there were pills on the kitchen table, and in
the next photo, there weren’t pills on the kitchen table.
After observing the photographs, Mr. McGavic unplugged the computers
“and didn’t mess with them anymore.” He then contacted Agent Landkammer to report
what he had seen and to ask the agent to come and get the computers. Mr. McGavic later
gave the computers given to him by the defendant to Agent Melton. In a telephone
conversation after Mr. McGavic’s discovery of the photographs, the defendant told him
that he “should try to get rid of these photos off of the computers.” Later, during a face-
to-face visit, the defendant asked him “to have [his] I.T. friend delete the photos.”
During cross-examination, Mr. McGavic testified that the federal agents
“never looked in the computer” and refused to take possession of any of the computers.
He recalled that when Agent Melton came to retrieve the computers, he had a search
warrant and was accompanied by agents from the VA and SSA. He said that agents of
the TBI executed two search warrants, one dated November 15 and one March 15.
Agent Melton testified that he received information from the office of
special investigations for the VA and the SSA that the defendant had given Mr. McGavic
some computers that might contain information related to the victim’s death. Agent
Melton testified that although Mr. McGavic was eager to turn the computers over to the
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TBI, he obtained warrants to search the defendant’s Knoxville residence, the McGavic
residence, and the contents of the computers and other digital media. Additionally, Agent
Melton asked both Mr. McGavic and his wife to execute consents to search the
computers, digital media, and documents that Mr. McGavic provided to Agent Melton.
Agent Melton testified during cross-examination that his investigation
began when agents of the VA and SSA conducting “an investigation completely
unrelated” to the victim’s death contacted the TBI. It was his understanding that, during
that investigation, documents were uncovered “that led suspicion to the fact that
potentially a death investigation should be opened.” Agents conducting the other
investigation contacted the United States Attorney’s Office, which “pointed them in the
direction of the State.” Later, agents of the SSA and the VA met with representatives of
the Monroe County District Attorney’s Office and the MCSO, “at which time a
determination was made that this was a case that needed [to] be investigated primarily by
the Tennessee Bureau of Investigation.” The case was then delegated to him because he
was assigned to Monroe County.
Agent Melton said that of particular interest to the authorities was “a Last
Will and Testament that they felt had been forged, and then a voluminous amount of
documents that had been submitted to Veterans Affairs . . . that appeared to be suspicious
in nature.” After Agent Melton was assigned to the case, he contacted Detective Jones to
find out what had led to the suppression of the evidence in the earlier case “so that we
could remain as sterile as we could with our investigation and not taint anything.” He
said that he made a point not to retrieve the old case file.
At the conclusion of the hearing, the trial court found all of the witnesses4
to be credible and specifically found Mr. McGavic’s “credibility to be very high.” The
court denied the defendant’s motion to suppress. The court first found that the defendant
no longer had an expectation of privacy in the computers because she no longer owned
the computers, no longer retained a possessory interest in the computers, and took no
steps to keep the information contained on them private or to exclude others from
viewing the information. The court found that the defendant abandoned the property to
Mr. McGavic:
The first basis for my ruling is I think [the defendant]
relinquished an expectation of privacy to this property. I
don’t believe she has standing. That’s the first basis, and I’m
gonna go through many alternatives to say why this evidence
4
A TBI Forensic Scientist also testified about the process used to recover the photographs and the
location of the photographs on each computer’s hard drive. We have not included that testimony because
it is not relevant to the determination of the issue presented.
-27-
is admissible, but I don’t think she any longer had the ability
to come into court and say, “That’s mine. You couldn’t do
that because it’s mine.” An individual has no right to the
possession of contraband or evidence of illegal activity. . . .
Courts are to make two inquires: one, whether the individual
by their conduct has exhibited an actual subjective
expectation of privacy. I do not find even that first prong in
this case. The testimony was she gave it up. She gave it to
Mr. McGavic. She gave him not only the property, but she
gave him power of attorney. . . . She voluntarily relinquished
it. And when she did that, I don’t think she exhibited any
personal subjective expectation in privacy. . . .
And the second prong is whether that . . . individual’s
subjective expectation of privacy is one that society or this
Court is prepared to recognize as reasonable. I don’t feel it’s
reasonable for her to say now that she has an expectation in
those, those computers and in those floppy discs. She gave it
all up. She gave power of attorney back in 2012. . . . I just
don’t think with the facts as they [were] presented, this Court
or society would think that she has a right recognized as
reasonable.
The court also found that the computers were in the exclusive possession and control of
Mr. McGavic and that he gave consent to search the computers. Finally, the court found
that the search warrants were valid because Mr. McGavic qualified as a citizen informant,
and “the inherent details contained within the four corners” of the warrant affidavit
supported the probable cause finding.
The trial court expressed concern with the fact that the warrants were issued
in Bradley and Monroe Counties for property that was located at Mr. McGavic’s
residence in Cumberland County but ultimately concluded that this factor did not affect
the validity of the warrants because they were issued by a court with statewide
jurisdiction to the TBI, which also has statewide jurisdiction.
As to the defendant’s claim that the photographs should be suppressed as
the fruit of the earlier unconstitutional search, the court found that the search of the
computers was attenuated in time and circumstances: “You’re talking about years later
and a concerned citizen finding the same evidence but in separate electronic form in
different electronic media, years later. . . . Nothing that was done by the State in this
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case is a product of the illegal search of that digital camera, nothing.” He described the
two cases as “two ships passing in the night.”
A trial court’s factual findings on a motion to suppress are conclusive on
appeal unless the evidence preponderates against them. State v. Binette, 33 S.W.3d 215,
217 (Tenn. 2000); State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, questions of
credibility, the weight and value of the evidence, and the resolution of conflicting
evidence are matters entrusted to the trial judge, and this court must uphold a trial court’s
findings of fact unless the evidence in the record preponderates against them. Odom, 928
S.W.2d at 23; see also Tenn. R. App. P. 13(d). The application of the law to the facts,
however, is reviewed de novo on appeal. State v. Keith, 978 S.W.2d 861, 864 (Tenn.
1998). We review the issue in the present appeal with these standards in mind.
Both the federal and state constitutions offer protection from unreasonable
searches and seizures with the general rule being “that a warrantless search or seizure is
presumed unreasonable and any evidence discovered subject to suppression.” State v.
Talley, 307 S.W.3d 723, 729 (Tenn. 2010) (citing U.S. Const. amend. IV; Tenn. Const.
art. I, § 7). The constitutional protections against unreasonable search and seizure “are
personal in nature, and ‘they may be enforced by exclusion of evidence only at the
instance of one whose own protection was infringed by the search and seizure.’” State v.
Cothran, 115 S.W.3d 513, 520 (Tenn. Crim. App. 2003) (quoting State v. Ross, 49
S.W.3d 833, 840 (Tenn. 2001)). “One who challenges the reasonableness of a search or
seizure has the initial burden of establishing a legitimate expectation of privacy in the
place where property is searched.” State v. Oody, 823 S.W.2d 554, 560 (Tenn. Crim.
App. 1991) (citing Rawlings v. Kentucky, 448 U.S. 98 (1980); State v. Roberge, 642
S.W.2d 716, 718 (Tenn. 1982)); see Katz v. United States, 389 U.S. 347, 357 (1967); see
also State v. Prier, 725 S.W.2d 667, 671 (Tenn. 1987) (stating that our state constitution
affords no greater protection than the federal constitution and adopting the Katz
standard). Thus, we must determine “(1) whether the individual had an actual, subjective
expectation of privacy and [if so] (2) whether society is willing to view the individual’s
subjective expectation of privacy as reasonable and justifiable under the circumstances.”
State v. Munn, 56 S.W.3d 486, 494 (Tenn. 2001) (citing Smith v. Maryland, 442 U.S.
735, 740 (1979); Ross, 49 S.W.3d at 839). The second part of this inquiry focuses on
“whether, in the words of the Katz majority, the individual’s expectation, viewed
objectively, is ‘justifiable’ under the circumstances.” Smith, 442 U.S. at 740 (quoting
Katz, 389 U.S. at 357).
Because the Fourth Amendment protects people and privacy rather than
places and property, a property interest does not determine standing to challenge a search
and does not control the right of officials to search and seize. See Oliver v. United States,
466 U.S. 170, 183 (1984); Katz, 389 U.S. at 351, 353. As the Supreme Court has
-29-
recognized, “[w]hat a person knowingly exposes to the public, even in his own home or
office, is not a subject of Fourth Amendment protection. But what he seeks to preserve
as private, even in an area accessible to the public, may be constitutionally protected.”
Katz, 389 U.S. at 351 (citations omitted). Importantly, a “person can lose his reasonable
expectation of privacy in his real property if he abandons it.” United States v. Harrison,
689 F.3d 301, 307 (3d Cir. 2012). “Abandonment for purposes of the Fourth Amendment
differs from abandonment in property law; here the analysis examines the individual’s
reasonable expectation of privacy, not his property interest in the item.” United States v.
Fulani, 368 F.3d 351, 354 (3d Cir. 2004) (citing United States v. Lewis, 921 F.2d 1294,
1302 (D.C. Cir. 1990)). Consequently, “abandonment,” as understood in the
constitutional context of unreasonable searches and seizures, “is not meant in the strict
property-right sense, but rests instead on whether the person so relinquished his interest
in the property that he no longer retained a reasonable expectation of privacy in it at the
time of the search.” United States v. Veatch, 674 F.2d 1217, 1220-21 (9th Cir. 1981).
Our supreme court has noted that a reviewing court should consider
whether the individual has an ownership interest in the place searched, whether he has a
possessory interest in the place searched, whether he has the right to exclude others from
the place, and whether he undertook normal precautions to maintain the privacy of the
place searched to determine whether an individual had a legitimate expectation of privacy
in the place searched. See Oody, 23 S.W.2d at 560.
We agree with the ruling of the trial court that the defendant abandoned the
computers, and, by extension their contents, when she gave them to Mr. McGavic and
told him to “have free reign” with them. Nothing suggests that the items were placed in
Mr. McGavic’s possession solely for safe keeping. Instead, the accredited evidence
established that the defendant had forfeited both her property and possessory rights to the
computers. Furthermore, the record establishes that the defendant knowingly exposed the
contents of the computers to Mr. McGavic and his family members. We hold, therefore,
that the defendant had no reasonable expectation of privacy in the computers or their
contents. Consequently, because Mr. McGavic consented to allow the TBI to seize and
search the computers, the seizure and subsequent forensic search did not violate the
defendant’s constitutional rights. See State v. Ledford, 438 S.W.3d 543, 554 (Tenn.
Crim. App. 2014).
Moreover, this is not a situation where the TBI, having come into legal
possession of the computers from a third party, was constrained to obtain a warrant for
the eventual viewing of the images at issue. In Walter v. United States, the Supreme
Court found that although the FBI had lawfully acquired possession of obviously
pornographic films when they were tendered to the FBI by the unintended recipient of the
films, the FBI could not view the films because the unintended recipient had not actually
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viewed the films. See Walter v. United States, 447 U.S. 649, 657 (1980). The Court held
that because the FBI’s possession of the films was predicated upon a private-party search
for which there was no Fourth Amendment protection, the agents could not go any
further than the initial private-party search. Id. at 656, 658-59 (1980) (“[T]here was
nothing wrongful about the Government’s acquisition of the packages or its examination
of their contents to the extent that they had already been examined by third parties.”).
Here, however, it was Mr. McGavic’s review of the challenged images that prompted him
to tender the abandoned computers to the TBI. In consequence, the Fourth Amendment
placed no limitation on the State’s use of the property. See California v. Greenwood, 486
U.S. 35, 40 (1988); Abel v. United States, 362 U.S. 217, 241 (1960) (“There can be
nothing unlawful in the Government’s appropriation of such abandoned property.”);
Fulani, 368 F.3d at 354. Thus, the search warrants were superfluous, and we need not
examine their efficacy. See Ledford, 438 S.W.3d at 554-55.
Finally, we find no merit to the defendant’s claim that the suppression of
the photographs in the earlier case against Mr. Kaczmarczyk bars the use of the
photographs in this case. Just as the defendant had no standing to challenge the search of
the computers because she had abandoned them, she had no standing to challenge the
search of Mr. Kaczmarczyk’s digital camera because it did not belong to her. The
warrantless search of Mr. Kaczmarczyk’s camera could not have violated the defendant’s
constitutional rights because she had no property or possessory interest in the item.
Furthermore, even if the defendant had standing to challenge the search of Mr.
Kaczmarczyk’s camera, both the independent source doctrine and the attenuation
doctrine would operate to purge any potential taint from the earlier unconstitutional
search.
When a claim has been made that evidence is “fruit” of an unlawful search,
the evidence may nevertheless be admissible if it fits within one of several recognized
exceptions to the exclusionary rule. See Utah v. Strieff, 136 S. Ct. 2056, 2061 (2016).
The question to be answered is “whether, granting establishment of the primary illegality,
the evidence to which instant objection is made has been come at by exploitation of that
illegality or instead by means sufficiently distinguishable to be purged of the primary
taint.” Brown v. Illinois, 422 U.S. 590, 598-99 (1975) (citation omitted). By way of
example, the Supreme Court explained,
Three of these exceptions involve the causal relationship
between the unconstitutional act and the discovery of
evidence. First, the independent source doctrine allows trial
courts to admit evidence obtained in an unlawful search if
officers independently acquired it from a separate,
independent source. Second, the inevitable discovery
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doctrine allows for the admission of evidence that would have
been discovered even without the unconstitutional source.
Third, . . . is the attenuation doctrine: Evidence is admissible
when the connection between unconstitutional police conduct
and the evidence is remote or has been interrupted by some
intervening circumstance, so that “the interest protected by
the constitutional guarantee that has been violated would not
be served by suppression of the evidence obtained.”
Strieff, 136 S. Ct. at 2061 (citations omitted).
“In the classic independent source situation, information which is received
through an illegal source is considered to be cleanly obtained when it arrives through an
independent source.” Murray v. United States, 487 U.S. 533, 538-39 (1988) (quoting
United States v. Silvestri, 787 F.2d 736, 739 (1st Cir. 1986)). Here, the photographs used
in the case were obtained from computers voluntarily relinquished to the TBI by Mr.
McGavic, which served to remove any taint associated with the earlier unconstitutional
search of Mr. Kaczmarczyk’s digital camera. Thus, even assuming for the sake of
argument that the earlier suppression of the camera contents operated to bar the use of the
photographs on the camera, for the reasons discussed above, nothing prevented the
admission of the photographs on the computers.
“The attenuation doctrine evaluates the causal link between the
government’s unlawful act and the discovery of evidence.” Strieff, 136 S. Ct. at 2061.
When making this evaluation, a reviewing court considers three factors:
First, we look to the “temporal proximity” between the
unconstitutional conduct and the discovery of evidence to
determine how closely the discovery of evidence followed the
unconstitutional search. Second, we consider “the presence
of intervening circumstances.” Third, and “particularly”
significant, we examine “the purpose and flagrancy of the
official misconduct.”
Id. at 2061-62 (citations omitted). In this case, six years elapsed between the
unconstitutional conduct that led to the suppression of the photographs from Mr.
Kaczmarczyk’s digital camera and the discovery by Mr. McGavic of the photographs on
the computers given to him by the defendant. The transfer of the photographs to the
computers and of the computers to Mr. McGavic were intervening circumstances
between the primary illegality and the TBI’s search of the computers. Finally, the record
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clearly establishes that the TBI did not exploit the earlier illegality to obtain the
photographs from the computers.
Under these circumstances, the trial court did not err by denying the
defendant’s motion to suppress.
II. Motion in Limine
Prior to trial, the defendant moved the trial court to exclude evidence of
both the defendant’s and Mr. Kaczmarczyk’s bad acts undertaken following the victim’s
death on grounds that Mr. Kaczmarczyk told the TBI that they had not contemplated the
acts prior to the victim’s death. The State argued that some of the actions undertaken by
the defendant and Mr. Kaczmarczyk after the victim’s death were evidence of the
conspiracy to murder the victim in order to fraudulently obtain government benefits. The
trial court denied the motion, observing, “I think the law is pretty clear that that embodies
subsequent acts to avoid detection and prosecution for the crime . . . .” The trial court
also observed that the defendant had not been sufficiently specific with the particular
evidence she wanted excluded. The court invited the defendant to reassert her motion
with specificity at a later date and concluded that prior bad act evidence would not be
admissible without a jury-out hearing beforehand. The trial court specifically denied the
defendant’s motion to exclude evidence that the defendant benefited financially from the
victim’s death.
In this appeal, the defendant again argues that the trial court should have
excluded evidence that the defendant and Mr. Kaczmarczyk “had financial gain after the
death of the alleged victim” because Mr. Kaczmarczyk “denied that the conspiracy was
for any financial gain.” As she did in the trial court, the defendant fails to point to any
particular piece of evidence or testimony that she believes should have been excluded.
Because she has also failed to advance a legal basis for her claim that the evidence should
have been excluded or to support her argument with citation to relevant authorities, she
has waived our consideration of this issue. See Tenn. R. Ct. Crim. App. 10(b) (“Issues
which are not supported by argument, citation to authorities, or appropriate references to
the record will be treated as waived in this court.”); see also Tenn. R. App. P. 27(a)(7)
(stating that the appellant’s brief must contain an argument “setting forth . . . the
contentions of the appellant with respect to the issues presented, and the reasons therefor .
. . with citations to the authorities . . . relied on”).
-33-
III. Autopsy Photographs
The defendant contends that the trial court erred by admitting photographs
of the victim taken during the autopsy because they were not relevant to any issue
presented at trial. The State asserts that the trial court did not err.
At the conclusion of Doctor Mileusnic-Polchan’s testimony, the State
moved to introduce the entire autopsy report, which contained 18 photographs. The
defendant objected on grounds that the photographs were more prejudicial than probative.
The trial court excluded two photographs that depicted the victim’s body cut open during
the autopsy process but allowed the other 16, which included images of the victim in
various states of undress on the autopsy table and slides from his internal organs.
Questions concerning evidentiary relevance rest within the sound discretion
of the trial court, and this court will not interfere with the exercise of this discretion in the
absence of a clear abuse appearing on the face of the record. See State v. DuBose, 953
S.W.2d 649, 652 (Tenn. 1997); State v. Van Tran, 864 S.W.2d 465, 477 (Tenn. 1993);
State v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992). An abuse of discretion occurs when the
trial court applies an incorrect legal standard or reaches a conclusion that is “illogical or
unreasonable and causes an injustice to the party complaining.” State v. Ruiz, 204
S.W.3d 772, 778 (Tenn. 2006) (citing Howell v. State, 185 S.W.3d 319, 337 (Tenn.
2006)).
Relevant evidence is evidence “having any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Tenn. R. Evid. 401. “Evidence which
is not relevant is not admissible,” Tenn. R. Evid. 402, and even if evidence is deemed
relevant, it may still be excluded “if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative
evidence,” Tenn. R. Evid. 403.
“Tennessee courts have consistently followed a policy of liberality in the
admission of photographs in both civil and criminal cases.” State v. Carter, 114 S.W.3d
895, 902 (Tenn. 2003) (citing State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978)). “The
general rule . . . is that photographs of a murder victim’s body are admissible if they are
‘relevant to the issues on trial, notwithstanding their gruesome and horrifying character.’”
Carter, 114 S.W.3d at 902 (quoting Banks, 564 S.W.2d at 950-51). Even relevant
photographs may be excluded, however, if their probative value is substantially
outweighed by the danger of unfair prejudice. Tenn. R. Evid. 403; Banks, 564 S.W.2d at
950-51. The term “unfair prejudice” has been defined as “[a]n undue tendency to suggest
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decision on an improper basis, commonly, though not necessarily, an emotional one.”
See Banks, 564 S.W.2d at 951. “The admission of photographs lies within the sound
discretion of the trial court and will not be overturned on appeal absent a showing that the
trial court abused that discretion.” State v. Odom, 336 S.W.3d 541, 565 (Tenn. 2011)
(citing Banks, 564 S.W.2d at 949).
The photographs admitted in this case are not particularly gruesome or
horrifying; nor, however, are they particularly relevant to any issue presented at trial.
The parties agreed that the cause of the victim’s death was an overdose of his prescription
medications, and the only issue presented at trial was whether the victim ingested the
drugs on his own, either accidentally or intentionally, or whether the defendant had
intentionally overmedicated the victim through nefarious means. None of the
photographs taken during the autopsy made any fact of consequence to the determination
of that issue more or less probable. Because the photographs were not relevant, they
should have been excluded. That being said, it is our view that the erroneous admission
of the photographs was harmless precisely because they are neither gruesome nor
horrifying. See Tenn. R. App. P. 36(b) (“A final judgment from which relief is available
and otherwise appropriate shall not be set aside unless, considering the whole record,
error involving a substantial right more probably than not affected the judgment or would
result in prejudice to the judicial process.”).
IV. Motion for Mistrial
The defendant next contends that the trial court erred by denying her
motion for mistrial when Agent Melton stated during direct examination that the
defendant had elected to end their interview after consulting with her attorney. She
argues that the statement was an improper referrence to her exercising her constitional
privilege against self-incrimination. The State asserts that the trial court did not err.
During Agent Melton’s direct examination testimony, he made the
following statement when describing his January 13, 2013 interview of the defendant:
I will, I’ll tell you up front that at some point in the statement,
out of professional courtesy to her counsel, I took him outside
and told him the direction of where we intended to go with
that interview, and asked him if he would, wanted to speak
with her, and he did and, want to speak with her and he
wanted to discontinue the interview.
The defendant objected and moved for a mistrial because the statement referenced the
defendant’s “refusal to talk to them and that’s an infringement on her right to remain
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silent.” The trial court agreed that the statement was improper and offered to give a
curative instruction, but defense counsel declined, saying, “Your Honor, it’s one of those
things that sometimes I think a jury instruction just makes it worse.” The court noted
counsel’s timely objection, admonished the State, and again offered a curative
instruction. Counsel again declined, noting, “I don’t think it will help. I think it will hurt
even worse than she’s already been prejudiced.” The court denied the mistrial request:
Well, a mistrial is the most Draconian of all measures,
and I do not feel it’s warranted in this case. You objected so
timely, I’m not sure that anyone really even heard it. All he
was talking about is she spoke to counsel; that’s her right. I
think it’s in the sound discretion of the Court. I’m not gonna
declare a mistrial. It just wasn’t overly prejudicial, of all the
things we’ve heard during the course of this trial, things that
sometimes you’ve elicited for strategy purposes or otherwise.
You know, she’s got federal time, a federal conviction. I
don’t think it causes any prejudice, so I’m gonna deny that,
but I will offer to give a curative instruction.
Defense counsel again rejected the offered curative instruction on grounds that he
believed such an instruction “would be more detrimental than helpful in this situation.”
We find no abuse of discretion in the trial court’s decision to deny the
defendant’s motion for mistrial. See State v. Nash, 294 S.W.3d 541, 546 (Tenn. 2009).
“Normally, a mistrial should be declared only if there is a manifest necessity for such
action.” State v. Saylor, 117 S.W.3d 239, 250 (Tenn. 2003) (citing State v. Millbrooks,
819 S.W.2d 441, 443 (Tenn. Crim. App. 1991)). “In other words, a mistrial is an
appropriate remedy when a trial cannot continue, or a miscarriage of justice would result
if it did.” Saylor, 117 S.W.3d at 250 (quoting State v. Land, 34 S.W.3d 516, 527 (Tenn.
Crim. App. 2000)). “The purpose for declaring a mistrial is to correct damage done to
the judicial process when some event has occurred which precludes an impartial verdict.”
State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996).
Although we certainly do not condone Agent Melton’s remark about the
defendant’s decision to terminate the interview, the remark was fleeting, and the
defendant’s objection cut the testimony short. Moreover, the remark was not made in
response to any improper questioning by the State, and the State made no attempt to
exploit the improper comment. See generally Doyle v. Ohio, 426 U.S. 610, 618 (1976)
(declaring prosecution’s exploitation of an arrested person’s post-Miranda silence
“fundamentally unfair and a deprivation of due process”); State v. Transou, 928 S.W.2d
949, 960 (Tenn. Crim. App. 1996). It would have been entirely appropriate at that
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juncture for the trial court to provide a curative instruction, but the defendant specifically
and repeatedly rejected the trial court’s offer to provide a curative instruction. Under
these circumstances, nothing indicated a manifest necessity for the declaration of a
mistrial, and the trial court’s decision to deny the motion did not result in a miscarriage of
justice. See Saylor, 117 S.W.3d at 250.
V. Trial Court’s Commentary
The defendant claims that the trial court made negative comments during
the defendant’s testimony that amounted to an improper comment on the evidence, yelled
at the defendant in the presence of the jury, and showed “a general disdain for” the
defendant during her testimony and that these actions deprived her of the right to a fair
trial. She contends that the trial court’s actions “essentially prohibited” the defendant
“from being able to explain and/or tell her version of the events without specific
parameters in her testimony” and that “her direct testimony was essentially shut down by
the trial court.” The State asserts that the trial court committed no error.
The defendant’s direct examination testimony was marked by rambling
narratives littered with irrelevant details and inadmissible hearsay. The State made its
first objection during a particularly hearsay-heavy tangent about comments made to the
victim by some of the program participants about coming to a get-together hosted by the
defendant and the victim. The State objected, and the trial court correctly sustained the
objection, noting that it was not relevant where all the people were coming from. The
State objected again during another such tangent when the defendant inserted her having
been diagnosed with colon cancer into her response to the question of what had prompted
her to look at the victim’s will in August of 2007. Finally, the State objected when the
defendant mentioned that she had been charged with the victim’s murder only two weeks
before she was scheduled to be released from federal custody and that she had “sat in
Monroe County jail for 76 weeks” awaiting trial. The trial court took another recess, and
the following exchange took place outside the presence of the jury:
THE COURT: All right. I, I’ve had enough. I feel
like she is intentionally --
COURT OFFICER: Larry, shut the door.
THE COURT: Shut the door. That always happens.
Every time they go out, for some reason, they want to hold
that thing open.
COURT OFFICER: Yeah, he --
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THE COURT: I have heard her talk about selling eggs
to poverty here in Monroe County, people who are rubbing
nickels together; I’ve heard about colon cancer; I’ve heard
about 76 weeks; I’ve heard about, “Best interest, I’m not
really guilty.” She is trying to inflame and prejudice this jury.
If a State witness did half of the stuff that she’s doing, if a
State witness did half of what she’s doing, you would be
moving for a mistrial. And none of that is admissible. It’s
prejudicial. It is merely designed to inflame the emotional
passions of this jury, and we have sustained the objection and
sustained and sustained. She has tried to taint this enough;
she has. And no more. How much more direct are we gonna
have? That’s fine, but let it be about substantive issues. She
is trying to taint this jury pool. That is this Court’s opinion.
None of that is admissible, none of it. And I would instruct
you, please -- I’m not yelling at you, I’m just yelling. You
know, the hearsay -- she’s stunned every time I sustain an
objection. All that emotional stuff is irrelevant. It doesn’t
come in. It’s inadmissible. And I would ask that during this
break you instruct her to focus on the issues. Anything she
wanted to do, trust me, it’s out there. It is out there. She has
-- as she’s said, had to say numerous times, “Roman
Catholic.” It’s all out there. I’m gonna take a five-minute
recess. You are instructed to stick to the facts. Stick to the
facts of this case, Ma’am.
The defendant’s claims that the trial court commented on the evidence and
yelled at the defendant in the presence of the jury are completely belied by the record.
The record clearly establishes that the trial court excused the jury from the courtroom
before admonishing the defendant. Although the court officer asked someone to “shut
the door,” there is no proof that any juror heard the trial court, even if we assume that the
door in question was the door to the jury room. Furthermore, the only thing uttered by
the trial court before the officer asked for the door to be shut was “[a]ll right. I, I’ve had
enough. I feel like she is intentionally . . . .” We cannot fathom how this comment, even
if heard by the jury, can be classified as a comment on the evidence or how it might have
prejudiced the defendant.
Additionally, the defendant cites a single case, State v. Hailey, in support of
her argument. In Hailey, however, this court deemed Hailey’s claim that the trial court
had improperly commented on the evidence to be waived. State v. Hailey, 658 S.W.2d
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547, 552-53 (Tenn. Crim. App. 1983). In dicta, we concluded that Hailey had not
demonstrated any prejudice because the “trial judge attempted to prevent introduction of
the irrelevant information” when making the comment. Id. Finally, this court determined
that even though “[t]he trial judge erred in making the potentially prejudicial statement”
any “error was clearly harmless.” Id.
The defendant’s testimony during direct examination was, as the trial court
correctly observed, peppered with irrelevant details and inadmissible hearsay, and the
trial court’s commentary occurred as it attempted to prevent the introduction of even
more irrelevant and inadmissible evidence. The question to be determined by the jury
was whether the defendant conspired to and did murder the victim for financial gain.
Very little of the defendant’s testimony touched upon this issue. Instead, the defendant
attempted to provide most of her life story in what, as the trial court noted, appeared to be
a bid to garner sympathy from the jury. There was no reason that the jury needed to hear
that the defendant had allowed poor persons to buy discounted eggs from her, that she
had been previously diagnosed with cancer, or that she had been incarcerated for an
extended period of time prior to trial. The defendant complains about the “parameters”
affixed to her testimony by the trial court, but the record establishes that the only
parameters imposed by the trial court were those required by the rules of evidence. The
defendant is not entitled to relief on this issue.
VI. Sufficiency
The defendant next asserts that the evidence was insufficient to support her
convictions because it consisted solely of the uncorroborated testimony of Mr.
Kaczmarczyk. The State avers that the evidence was sufficient.
We review the defendant’s claim of insufficient evidence mindful that our
standard of review is whether, after considering the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.
307, 319 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This
standard applies to findings of guilt based upon direct evidence, circumstantial evidence,
or a combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d
370, 379 (Tenn. 2011).
When examining the sufficiency of the evidence, this court should neither
re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.
Questions concerning the credibility of the witnesses, the weight and value of the
evidence, as well as all factual issues raised by the evidence are resolved by the trier of
fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must
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afford the State the strongest legitimate view of the evidence contained in the record as
well as all reasonable and legitimate inferences which may be drawn from the evidence.
Id.
The defendant was originally charged with first degree premeditated
murder, which, as charged in this case is the “premeditated and intentional killing of
another.” T.C.A. § 39-13-202(a). She was convicted, however, of the lesser included
offense of attempted first degree murder. Criminal attempt occurs when a person “acting
with the kind of culpability otherwise required for the offense . . . [a]cts with intent to
cause a result that is an element of the offense, and believes the conduct will cause the
result without further conduct on the person’s part.” T.C.A. § 39-12-101(a)(2).
The defendant was also charged with and convicted of conspiracy to
commit first degree murder.
The offense of conspiracy is committed if two (2) or more
people, each having the culpable mental state required for the
offense that is the object of the conspiracy, and each acting
for the purpose of promoting or facilitating commission of an
offense, agree that one (1) or more of them will engage in
conduct that constitutes the offense.
T.C.A. § 39-12-103(a).
It is well settled “that a conviction may not be based solely upon the
uncorroborated testimony of an accomplice to the offense.” State v. Bane, 57 S.W.3d
411, 419 (Tenn. 2001) (citing State v. Stout, 46 S.W.3d 689, 696-97 (Tenn. 2001); State
v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994); Monts v. State, 379 S.W.2d 34, 43 (Tenn.
1964)). Indeed, “[w]hen the only proof of a crime is the uncorroborated testimony of one
or more accomplices, the evidence is insufficient to sustain a conviction as a matter of
law.” State v. Jones, 450 S.W.3d 866, 888 (Tenn. 2014) (citing State v. Collier, 411
S.W.3d 886, 894 (Tenn. 2013)). By way of explanation, our supreme court has stated:
There must be some fact testified to, entirely independent of
the accomplice’s testimony, which, taken by itself, leads to
the inference, not only that a crime has been committed, but
also that the defendant is implicated in it; and this
independent corroborative testimony must also include some
fact establishing the defendant’s identity. This corroborative
evidence may be direct or entirely circumstantial, and it need
not be adequate, in and of itself, to support a conviction; it is
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sufficient to meet the requirements of the rule if it fairly and
legitimately tends to connect the defendant with the
commission of the crime charged. It is not necessary that the
corroboration extend to every part of the accomplice’s
evidence.
Bane, 57 S.W.3d at 419 (quoting Bigbee, 885 S.W.2d at 803); see also State v. Fowler,
373 S.W.2d 460, 463 (Tenn. 1963).
An accomplice is an individual who knowingly, voluntarily, and with
common intent participates with the principal offender in the commission of an offense.
State v. Lawson, 794 S.W.2d 363, 369 (Tenn. Crim. App. 1990). “When the facts
concerning a witness’s participation are clear and undisputed, the trial court determines
as a matter of law whether the witness is an accomplice.” State v. Robinson, 146 S.W.3d
469, 489 (Tenn. 2004) (citing Ripley v. State, 227 S.W.2d 26, 29 (1950); State v.
Perkinson, 867 S.W.2d 1, 7 (Tenn. Crim. App. 1992)). When “the facts are disputed or
susceptible to different inferences,” however, the determination of whether the witness is
an accomplice is a question for the trier of fact. Robinson, 146 S.W.3d at 489 (citing
Perkinson, 867 S.W.2d at 7); see also Conner v. State, 531 S.W.2d 119, 123 (Tenn. Crim.
App. 1975). “The test generally applied is whether the witness could be indicted for the
same offense charged against the defendant.” Robinson, 146 S.W.3d at 489 (citing
Monts, 379 S.W.2d at 43).
To be sure, Mr. Kaczmarczyk was an accomplice to both charged offenses.
That being said, his testimony was sufficiently corroborated by other evidence in the
record.
Mr. Kaczmarczyk’s testimony that the previously active and energetic
victim became “very lethargic” following his return from the PTSD treatment program
was corroborated by Ms. Hartman, who testified that the victim stopped visiting the
Hartman residence with the defendant and that the defendant brought Mr. Kaczmarczyk
with her in his stead. Ms. Hartman’s testimony also bolstered Mr. Kaczmarczyk’s
testimony that he and the defendant began a romantic relationship in April of 2006. Both
Mr. Kaczmarczyk and Ms. Hartman testified that the defendant had cut and dyed her hair
around that same time, and both testified that the defendant had remarked that the new
style had upset the victim. Mr. Kaczmarczyk testified that the defendant “mentioned on
several occasions that she would like to get rid of” the victim and that “if he went away,”
she and Mr. Kaczmarczyk “could be together.”
Mr. Kaczmarczyk testified that he suspected that the defendant, who was in
charge of the victim’s medications at that time as she had been “everyday since he had
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been released from Nashville,” had been adulterating the victim’s “food and
medications.” On two occasions, the defendant and Mr. Kaczmarczyk suspected that the
victim had overdosed, but instead of taking the victim to the nearest emergency room,
they drove the victim to the VA hospital nearly three hours away, which was
corroborated by the victim’s medical records. At a “family meeting” at the VA hospital
following the victim’s hospitalization for an overdose, the defendant told the victim’s
treatment team that she would be in charge of the victim’s medication and ensure that he
took it as prescribed. The victim’s medical records confirmed that the defendant said that
she had been administering the victim’s medication following his hospitalization.
Mr. Kaczmarczyk testified that the defendant asked him to bring some of
his medications, which were the same as those prescribed to the victim, so that they could
hide them around the house to make it look like the victim had been hoarding medication.
After the victim’s death, Mr. Kaczmarczyk and the defendant arranged to have Brian
McGavic discover one such stash of drugs in a safe in the garage. Brian McGavic
confirmed that he felt as though the defendant and Mr. Kaczmarczyk had manipulated
him into discovering the drugs. Pharmacy records confirmed that both the victim and Mr.
Kaczmarczyk filled multiple prescriptions for Trazodone and Mirtazapine in the months
between their release from the PTSD treatment program and the victim’s death.
Mr. Kaczmarczyk testified that on May 13, 2006, the day that Mr.
Kaczmarczyk brought the victim home from the hospital, the defendant “had fixed [the
victim’s] favorite meal,” but the victim “complained that it didn’t taste very well,” so the
defendant “put seasoning on it so that he would eat it.” Later, the defendant remarked to
Mr. Kaczmarczyk “that she had used magic dust on it,” which Mr. Kaczmarczyk
interpreted to mean that she had put medication in the victim’s food. Doctor Mileusnic-
Polchan confirmed that the victim “died of [a] combination of the Trazodone and
Mirtazapine, which is the main cause of death.” She said that the victim had “almost four
times the maximum therapeutic” amount of Trazodone and seven and a half times the
maximum therapeutic amount of Mirtazapine in his system at the time of his death.
Despite the high concentration of both drugs in the victim’s blood, the victim had no
gastric contents, which indicated that he had not eaten within a “minimum of six hours,”
and there were no pill fragments in the victim’s stomach, which indicated to Doctor
Mileusnic-Polchan that the victim had not ingested the medication as whole or half
tablets. She observed that crushing the tablets in this case would have defeated the
controlled-release mechanism and caused an increase in the concentration of each drug in
the victim’s system. Doctor Mileusnic-Polchan testified that the absence of “granular
substance in the gastric content” as well as “a lot of fluids to help all those drugs push
down” militated against a conclusion that the victim’s death was a suicide. She also
testified that in typical cases of suicide by overdose, “we have much larger levels [of
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drugs] because when there is intent and there is an oral intake of the drugs, that elicits
sudden surge of these medications in the blood stream, then the layers are much higher.”
Mr. Kaczmarczyk testified that on the day before the victim’s death, the
defendant told him that if he found the victim dead, he should “keep it simple,” which
Mr. Kaczmarczyk took to mean that he should “make it look as natural as possible or
make it look like a suicide.” To that end, when Mr. Kaczmarczyk returned to the Coker
Creek residence on the afternoon of May 15, 2006, to find the victim in serious medical
distress, he did not telephone 9-1-1 but moved the victim to the recliner. When the
victim died shortly thereafter, Mr. Kaczmarczyk did not immediately call for help but
instead staged the scene in a manner designed to increase the defendant’s potential
benefits from the VA. Other witnesses confirmed that the victim received more benefits
because the victim’s death was deemed a suicide due to his service-related PTSD. Ms.
Hartman confirmed that the defendant’s lifestyle improved dramatically after the victim’s
death. The defendant purchased expensive diamond earrings, a large motor coach, and
many matching outfits for herself and Mr. Kaczmarczyk, and the two of them began
traveling extensively. The victim also gave Mr. Kaczmarczyk $50,000 to hire a lawyer
after he was charged with offenses related to the victim’s death. The defendant forged
the victim’s will to further increase her financial gain from the victim’s death.
The defendant lied to Mr. McGavic about the cause of the victim’s death.
Then, after Mr. McGavic discovered the staged photographs taken of the dead victim, the
defendant did not express concern or outrage about the origin of the photographs but
instead instructed Mr. McGavic to have the photographs removed from the computers so
that they would not be discovered by the authorities.
In sum, it is our view that the evidence presented by the State was more
than sufficient to support the defendant’s convictions of attempted first degree murder
and conspiracy to commit first degree murder.
VII. Sentencing
The defendant contends that the trial court erred by imposing the maximum
sentence within the range for both of her convictions and by ordering the sentences to be
served consecutively. She also argues that the trial court should have merged her
convictions because the imposition of dual convictions violates both due process and
double jeopardy principles. The State concedes that the imposition of dual convictions
and consecutive sentences in this case was improper because Code section 39-12-106
prohibits the conviction of more than one inchoate offense for conduct that culminates in
the commission of a single offense.
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Our supreme court has adopted an abuse of discretion standard of review
for sentencing and has prescribed “a presumption of reasonableness to within-range
sentencing decisions that reflect a proper application of the purposes and principles of our
Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). The application of
the purposes and principles of sentencing involves a consideration of “[t]he potential or
lack of potential for the rehabilitation or treatment of the defendant . . . in determining the
sentence alternative or length of a term to be imposed.” T.C.A. § 40-35-103(5). Trial
courts are “required under the 2005 amendments to ‘place on the record, either orally or
in writing, what enhancement or mitigating factors were considered, if any, as well as the
reasons for the sentence, in order to ensure fair and consistent sentencing.’” Bise 380
S.W.3d at 698-99 (quoting T.C.A. § 40-35-210(e)).
Initially, we accept the State’s concession that the defendant’s convictions
must be merged. Although she was originally charged with first degree murder, the
defendant was actually convicted of attempted first degree murder. Tennessee Code
Annotated section 39-12-106 provides that “[a] person may not be convicted of more
than one (1) of the offenses of criminal attempt, solicitation or conspiracy for conduct
designed to commit or to culminate in the commission of the same offense.” T.C.A. §
39-12-106(a). This subsection “bars multiple convictions for more than one preparatory
offense where each is designed to achieve the same criminal objective.” Id., Advisory
Comm’n Comments. The statute thus prohibits imposition of convictions for both
attempted first degree murder and conspiracy to commit first degree murder in this case
and certainly prohibits the imposition of consecutive sentences. Instead, the jury verdicts
should be merged into a single conviction, and the judgment forms should indicate as
much. Consequently, we reverse the imposition of consecutive sentences and remand the
case for the entry of corrected judgment forms indicating that the defendant’s convictions
merge.
Turning to the defendant’s claim that the trial court erred by imposing a
sentence at the top of the range, we observe that although the defendant states the issue
presented as “[w]hether or not the trial court erred by ordering consecutive maximum
sentences,” she does not challenge the trial court’s findings with regard to the
enhancement and mitigating factors. Indeed, the only portion of her argument that could
be said to relate to the imposition of the maximum sentence in this case is a reference to
the sentence imposed for Mr. Kaczmarczyk’s guilty-pleaded conviction of conspiracy to
commit first degree murder. The record reflects “a proper application of the purposes
and principles of our Sentencing Act” as well as appropriate consideration of the
enhancement and mitigating factors, see Bise, 380 S.W.3d at 707, which imbues the
within-range sentence with a presumption of reasonableness. Nothing indicates that the
trial court abused its discretion when setting the length of the sentence.
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VIII. Conclusion
Based upon the foregoing analysis, we affirm the jury verdicts of attempted
first degree murder and conspiracy to commit first degree murder. Because Code section
39-12-106 prohibits dual convictions for attempt and conspiracy to commit the same
offense, the defendant’s convictions must be merged. Accordingly, we reverse the
imposition of consecutive sentences and remand the case to the trial court for the entry
corrected judgments reflecting the merged convictions.
_________________________________
JAMES CURWOOD WITT, JR., JUDGE
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