State of Tennessee v. Jeremy Lynden Myrick ( 2018 )

07/16/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
January 23, 2018 Session
STATE OF TENNESSEE v. JEREMY LYNDEN MYRICK
Appeal from the Circuit Court for Rhea County
No. 2013-CR-69 Thomas H. Graham, Judge
No. E2017-00588-CCA-R3-CD
The Defendant, Jeremy Lynden Myrick, appeals his jury convictions for voluntary
manslaughter and aggravated assault, for which he received an effective sentence of five
and one-half years’ imprisonment. In this direct appeal, the Defendant alleges the
following errors: (1) that the trial court erred by denying his motion to suppress his
statement because the stop of his vehicle was not supported by reasonable suspicion; (2)
that the evidence was insufficient to support his voluntary manslaughter conviction,
challenging the evidence establishing cause of death; (3) that admission of a photograph
of the victim’s injuries was more prejudicial than probative; and (4) that the State
committed prosecutorial misconduct by referring to the amended death certificate which
was testimonial in nature. Following our review of the record and the applicable
authorities, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.
Joshua P. Weiss (at trial and on appeal) and Jason A. Fisher (at trial), Chattanooga,
Tennessee, for the appellant, Jeremy Lynden Myrick.
Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;
J. Michael (“Mike”) Taylor, District Attorney General; and James W. Pope III, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTUAL BACKGROUND
On September 14, 2012, the Defendant hit eighty-three-year-old James D. Hassler
(“the victim”) in the head with a baseball bat, although the Defendant’s motivation for
doing so was disputed. The victim died six and a half weeks later on October 31, 2012.
Thereafter, a Rhea County grand jury charged the Defendant with second degree murder
and aggravated assault by causing serious bodily injury. See Tenn. Code Ann. §§ 39-13-
102(a), -210.
Prior to trial, the Defendant filed a motion to suppress the baseball bat found in his
vehicle and the subsequent statement he gave to the police. A hearing on the motion was
held on February 11, 2015.
A. Suppression Hearing
Detective Chris Hall with the Rhea County Sheriff’s Department testified that he
responded to the September 14, 2012 call from the victim’s home located on Rhea
County Highway 27. Upon Detective Hall’s arrival, about thirty or forty minutes after
the call was placed, Detective Hall spoke with the victim’s next-door neighbor, Beecher
Brewer, who said that he had seen the events leading to the victim’s injury. Mr. Brewer
informed Detective Hall that he saw a woman “in a long black dress coming down the
highway chasing a dog” and that the victim was near the victim’s front porch when the
woman approached him. Mr. Brewer said that he “could hear them talking, yelling,
something[,]” before the woman returned to the passenger’s side of a small, red pick-up
truck that had stopped across the four-lane divided highway. According to Mr. Brewer,
the truck was “two-tone[d],” meaning that the front was shiny and the back appeared to
be “primered.”
Mr. Brewer said that, once the female was back inside the vehicle, the “truck went
down the highway south, went through a cut through, c[a]me back up, [and] pulled in the
driveway where [the victim] was” located. According to Mr. Brewer, an approximately
thirty-year-old Caucasian male then exited from the truck’s driver’s side and approached
the victim and hit him in the head “with a stick” or “piece of wood[,]” and the victim
“fell to the ground.” Mr. Brewer further stated that the man returned to the vehicle, and
they drove away traveling north on the highway. At that time, Mr. Brewer did not
mention any children inside the vehicle to Detective Hall.
Detective Hall opined that Mr. Brewer was approximately “[eighty] something
yards” away when this incident occurred. Detective Hall also said that his conversation
with Mr. Brewer lasted about five minutes because he “want[ed] to get on to try to find
the vehicle.” Detective Hall confirmed that Mr. Brewer did not mention a baseball bat
but described a wooden object, that Mr. Brewer described one single blow to the victim’s
head, and that Mr. Brewer did not say anything about seeing the victim grab the female.
Detective Hall further relayed that Sergeant David King had talked with Mr.
Brewer even before he did and that an ambulance had already taken the victim to the
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hospital prior to Detective Hall’s arrival. According to Detective Hall, he and “the others
there on the scene [were] concerned [with] whether [the victim] was going to live or
not[.]”
After receiving the information from Mr. Brewer, Detective Hall, Officer Dean
Cranfield, and Sergeant King left the victim’s home driving north and looking for the
suspect truck. Detective Hall testified that, when he approached the county line between
Rhea and Roane Counties, he passed a red truck matching Mr. Brewer’s description that
was headed south back into Rhea County. Detective Hall said that he radioed this
information to Sergeant King who was patrolling “the side roads” behind him and told
Sergeant King to stop the truck. According to Detective Hall, Sergeant King, a short time
later, radioed back to Detective Hall that he had stopped the truck and indicated that the
truck’s occupants matched Mr. Brewer’s description.
When Detective Hall arrived at the location of the traffic stop “within three to four
minutes,” Detective Hall “walked up to the passenger’s side of the vehicle” and asked
Sergeant King “to get the driver, the male, out of the vehicle, and bring him back.”
Detective Hall wanted the two individuals separated to “[s]ee if they were both telling the
same story.” Detective Hall went to speak with the truck’s passenger, one Stephanie
Heflin, and he saw two small children in the backseat crying. Detective Hall testified that
Ms. Heflin, who was wearing a long black dress, confirmed that she and the Defendant
had been involved in the incident at the victim’s house that occurred earlier that day. She
also acknowledged that the Defendant had struck the victim in the head with a baseball
bat, averring that the Defendant did so because the “old man” was trying to rape her.
Detective Hall opined that Ms. Heflin, the Defendant, and the truck matched the
description given by Mr. Brewer.
Detective Hall said that he was not originally looking for a baseball bat because
the “initial report was that it was a stick.” However, as Detective Hall was speaking with
Ms. Heflin and she mentioned a bat, he observed a baseball bat “in plain view” in the
backseat of the truck behind the driver’s seat. According to Detective Hall, he saw the
bat through the truck’s open window while he was speaking with Ms. Heflin, who
remained seated in the truck. A photograph of the bat inside the truck was introduced as
an exhibit.
When Detective Hall saw the bat, he believed that they needed to take the
Defendant and Ms. Heflin “to the office . . . to get their statements of exactly what
happened.” Detective Hall did not recall speaking with the Defendant about the events
while on the scene of the stop. According to Detective Hall, the Defendant agreed to go
to the sheriff’s department to give a statement, and the Defendant was driven by Sergeant
King in a patrol car. Detective Hall said that it was the department’s policy not “to
transport anybody without handcuffs,” although he could not recall if the Defendant was
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ever placed in handcuffs. Officer Cranfield separately drove Ms. Heflin and the children
to the station, and the truck was towed. According to Detective Hall, they arrived back at
the station approximately one hour after stopping the Defendant, which included thirty to
forty-minutes of travel time. Detective Hall’s vehicle did not have a video camera, and
there was no recording of the traffic stop.
About thirty minutes after arriving at the sheriff’s department, Detective Hall
spoke with the Defendant alone in his office, and another officer spoke with Ms. Heflin.
If the Defendant was in handcuffs initially, Detective Hall believed that he took them off
before speaking with the Defendant. Detective Hall interviewed the Defendant after the
Defendant was read his Miranda warnings and signed a waiver. According to Detective
Hall, at this time, the Defendant was no longer free to leave. During the interview, the
Defendant admitted to hitting the victim in the head with a baseball bat.
According to Detective Hall, the Defendant did not appear to be under the
influence of any substances during the interview; the Defendant did not appear to have
any comprehension problems; the Defendant was not made any promises or threatened;
the Defendant did not request an attorney; the Defendant agreed to give a statement; and
the Defendant was “cooperative.” Detective Hall said that the Defendant first gave an
oral statement, which Detective Hall wrote down and the Defendant signed, dated, and
initialed. According to Detective Hall, it was his “normal policy” to either have the
individual read the statement or for him to “read it back over” verbatim to the individual
before it was signed. Detective Hall clarified this process, “Most of the time I read them
back to them and ask them if they want to read it. If they do then I give it to [them].”
Detective Hall confirmed that the interview was not recorded, and he opined that the
entire interview process did not take “over an hour.” After the interview, the Defendant
was arrested.
The Defendant also testified at the suppression hearing. He stated that, upon being
pulled over on September 14, 2012, he was instructed to get out of his vehicle, and the
officer started asking him questions about what he had been doing and where he was
going. According to the Defendant, he told the officer about “the events that had just
taken place,” and he was immediately placed in handcuffs, put in the back of a patrol car,
and told that he was going to be taken to the police station and that he would “be there for
a while.” The Defendant stated that, when the officer approached the truck’s driver’s
side window, the officer did not ask for the Defendant’s driver’s license. At no point
during this interaction with the officer was the Defendant read his Miranda rights;
nonetheless, the Defendant said that he did not believe that he was free to leave. The
Defendant further stated that he was already in the patrol car when the detective arrived
and that he did not speak with the detective at all on the scene.
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The Defendant averred that, during the car ride to the station, the officer made
“some threats” towards him, “telling [him] what he would have done if [he] would have
done that to his daddy.” The Defendant confirmed that he was taken to an office in the
police station upon his arrival; however, according to the Defendant, it was “quite some
time” before the detective came in and removed his handcuffs. The Defendant
acknowledged that he was given “some forms” and was “sure [he] signed things” because
he “was just in complete shock about the events that had happened in the day.” The
Defendant reasoned, “I probably put my signature on things that I hadn’t read over, just
trying to get out of there, just under the premise that I may be able to leave[.]” The
Defendant conceded that the detective reviewed his Miranda rights with him.
The Defendant testified that he felt “compelled to give a statement” because he
“wanted to clear up . . . the events that took place” and was “hoping that it would help
[his] situation[.]” According to the Defendant, the detective did not threaten him to make
a statement; however, the detective did say to “[him] in a firm voice [he] was going to
give a statement[.]” The Defendant agreed that the detective read the statement back to
him, but he averred that he did not have an opportunity to read or review the statement
before he signed it. Furthermore, the Defendant said that it was the detective and not him
who initialed the statement. The Defendant opined that the statement, as transcribed by
the detective, was not an accurate representation of what the Defendant had told him. He
clarified that it was a “[n]ot a verbatim” recitation, meaning that only parts of it were
true.
The Defendant said that a person “standing at the passenger[’s side] window
could” possibly have seen the “bat in the back floorboard of” the truck but his “windows
[were] tinted very darkly[.]” Moreover, the Defendant noted that the children were in the
truck when the officer approached. He stated that it was unlikely that any of the officers
saw the baseball bat inside the truck even if the window was open. Regardless, the
Defendant claimed that the photograph did not show the officer’s point of view if he was
at the passenger’s side window speaking with Ms. Heflin. According to the Defendant,
the door had been opened in the photograph.
After the trial court heard arguments on the motion, the motion was denied. The
trial court concluded that the traffic stop was supported by reasonable suspicion, that the
baseball bat was observed in plain view, and that the Defendant’s statement to Detective
Hall at the police station was voluntarily given after proper Miranda warnings. The
Defendant proceeded to a trial by jury held in February 2016.
B. Trial
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1. State’s Proof. At trial, the victim’s seventy-seven-year-old brother, Paul
Hassler,1 testified about the victim’s accomplishments and achievements, including
thirty-four years’ service in the United States Army that spanned both the Korean and
Vietnam wars, during which time the victim attained the rank of Master Sergeant, and for
which the victim earned numerous medals. The victim also fathered four children.
According to Paul, when the victim left the Army, he performed “contract work for
railroads, ballast cleaning and rail grinding.” After the victim retired, he came to live
with Paul on Paul’s property on Rhea County Highway, and he had lived there for
approximately seven or eight years prior to September 2012. Paul described that the
victim lived in “a little frame house” on the front of the property near the highway, that
he lived in a house “[p]robably 1500, 1800 feet” uphill, and that Mr. Beecher Brewer was
their next-door neighbor. In addition, Paul reported that, in September 2012, the eighty-
three-year-old victim was roughly five feet, nine inches tal1, weighed approximately 165
pounds, and suffered from “some memory problems.” Paul confirmed that the victim had
a caregiver, Ms. Ernestine Ferrell.
Paul further maintained that, prior to the victim’s head injury, the victim could
feed himself and ate “like a horse” and that the victim would often walk up the “steep
incline” to Paul’s house, sometimes even running. Paul portrayed the victim as an
“[e]asy going” individual. When asked about the victim’s daily routine, Paul described
that, after the victim ate breakfast, he would “go outside and walk around with his old
dog and pick up sticks and trash and stuff out of the yard,” and during the summertime,
the victim would work “in the garden.” Paul said that he was able to converse normally
with the victim. The victim did not have a car and rarely left Paul’s property. According
to Paul, other family members would occasionally stop by to visit with the victim, and at
times, someone would take the victim “over to the creek fishing” or to buy groceries or to
the liquor store for a bottle of Canadian Mist whisky. Paul said that the bottle of whisky
would be replaced “once or twice a month maybe.”
Ms. Ferrell testified that she started caring for the victim after he had gallbladder
surgery, that she cared for the victim for three years prior to his death, and that she
arrived at the victim’s house around 7:00 a.m. every day and left at approximately 3:30
p.m. when J.C. Hassler, another brother of the victim’s, arrived for dinner. According to
Ms. Ferrell, J.C. went home after dinner, and the victim was then there by himself. Ms.
Ferrell said that she provided the victim with companionship and performed such duties
as meal preparation, laundry, and housekeeping.
Ms. Ferrell also described the victim’s “normal day”:
1
Because several witnesses share the same surname, we will refer to some witnesses by their first names
to avoid confusion. No disrespect is intended.
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[H]e would get out of bed in the morning. Before he came out of the
bedroom he’d get on the floor and do pushups with one hand for at least
[fifty] times. Then he’d eat his breakfast. Well, sometimes he’d eat his
breakfast before he took a shower or shaved. That was his normal routine.
Then he would go outside. He didn’t like being inside. He liked the
outdoors. He’d be outside picking up cans or old twigs and stuff out in the
yard, pulling the weeds out of the garden, just keeping himself active[.]
She expressed that the victim “was a very proud independent man who had taken good
care of himself.” According to Ms. Ferrell, the victim was only taking two medications
prior to his head injury, “an iron pill and a baby aspirin,” and only visited the doctor
“something like every three or six months . . . for a regular checkup.” She stated that she
was a retired “clinical nurse’s assistant and scrub tech” and that she would have known if
the victim had been diagnosed with dementia, diabetes, or “a disease that made it hard for
him to swallow[.]”
According to Ms. Ferrell, the victim always “was very nice and friendly” and
treated her with respect. However, she never worried that the victim “might be too
friendly, so friendly as to come across as inappropriate[.]” Moreover, Ms. Ferrell said
that she never observed the victim have any “problems remembering things,” go through
any period of depression, or “act untoward towards anybody[.]”
Ms. Ferrell confirmed that the victim frequently walked uphill to visit Paul at
Paul’s house. While Ms. Ferrell sometimes would accompany the victim, she would
have to stop along the walk to rest, and the victim would “keep going.” Ms. Ferrell
further stated that the victim would sometimes stop by to see his neighbor, Mr. Brewer,
and “they would exchange vegetables and stuff.” Ms. Ferrell reported that, before his
being hit on the head, the victim “had a good appetite” and he did not have any problems
swallowing or communicating. In addition, Ms. Ferrell testified that the victim enjoyed
the occasional glass of whisky with his brother J.C., but she did not see any evidence of
the victim’s being a habitual drinker. Ms. Ferrell stated that the victim did not have
anything to drink on the morning of September 14, 2012,2 prior to these events happening
between 9:00 and 11:00 a.m.
At trial, Mr. Brewer provided testimony similar to his suppression hearing
testimony. In addition, Mr. Brewer said that he spoke with the victim almost every day
when the victim came over to partake in “a chew of tobacco.” Mr. Brewer testified that
he had never seen the victim “drunk out there[.]” Mr. Brewer acknowledged that the
victim had dementia and trouble remembering things, although Mr. Brewer believed that
the victim was “in good physical shape” and health.
2
Ms. Ferrell mistakenly testified that these events occurred on September 11, 2012.
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Mr. Brewer again recounted the events that occurred that day. According to Mr.
Brewer, he was “out [in] front” of his garage and workshop “building some birdhouses
and birdfeeders” on the morning of September 14, 2012, when he saw Ms. Heflin chasing
a dog. Mr. Brewer said that Ms. Heflin yelled that someone needed to get the dog out of
the road before it got hit. Although Mr. Brewer did not see the dog that day, he had
previously seen a “little stray dog” that often roamed that stretch of the highway. Mr.
Brewer relayed that the victim was walking near the victim’s carport with the victim’s
dog, “Woodrow,” when Ms. Heflin started up the victim’s driveway. The victim met Ms.
Heflin in the driveway, and the two spoke. Mr. Brewer returned to his woodworking and
could not hear their conversation. Mr. Brewer testified that, from his vantage point about
200 feet away, nothing was obstructing his view and he never witnessed a struggle
between the victim and Ms. Heflin. Mr. Brewer did not believe “for a minute” that the
victim made any inappropriate comments to Ms. Heflin. According to Mr. Brewer, the
victim had never “said anything disrespectful or out of the way” to him.
Mr. Brewer heard Ms. Heflin’s yelling something, and the man in the truck, who
Mr. Brewer identified at trial as the Defendant, yell something back to her. Mr. Brewer
believed that the Defendant was telling Ms. Heflin to return to the truck because she
quickly did so. Mr. Brewer then saw the truck leave heading south. Shortly thereafter,
about “[t]wo to three minutes” later, Mr. Brewer saw that the truck had returned, and he
then heard the Defendant yell,“You son-of-a-b---h,” before hearing a “smack.” Mr.
Brewer likened the smacking sound to “throwing up a big potato and hitting it with a ball
bat.” According to Mr. Brewer, upon hearing the noise, he looked up, and the victim was
on the ground. Mr. Brewer did not see Ms. Heflin get out of the truck during this return
visit.
Mr. Brewer however testified at trial that he did not see the Defendant strike the
victim but only witnessed the commotion that followed. He did not recall telling
Detective Hall that he saw the Defendant hit the victim “in the head with a big stick.”
Mr. Brewer confirmed that his statement, as transcribed by Detective Hall, provided that
he made such a disclosure.
According to Mr. Brewer, after the truck “speed off[,]” he immediately went to the
victim’s aid and found him “on his hands and knees” with “a big gash over his left eye”
and his skin was torn “and peeled back[.]” Mr. Brewer said that “blood was squirting”
from the injury. Mr. Brewer tried to stop the bleeding by holding his bandana over the
wound. Ms. Ferrell “came out just shortly after” Mr. Brewer arrived, and she described
that the victim was on his knees when she arrived and that the victim had “blood dripping
from his face and [his] eye looked like it was out of place.” Ms. Ferrell also expressed, “I
saw all this blood up here and his eye looked like it was coming out. The left eye looked
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like it was coming out of the socket.” According to Ms. Ferrell, there was blood “all
over” the victim’s dog, too.
Mr. Brewer and Ms. Ferrell helped the victim, who was unable to get up on his
own, to the victim’s carport and sat him down. Ms. Ferrell went inside and called 9-1-1,
and thereafter emergency personnel arrived on the scene. The police arrived first, and
Mr. Brewer told them what had happened, including a description of the Defendant, Ms.
Heflin, and the pick-up truck. Mr. Brewer estimated that it took about twenty to twenty-
five minutes for the ambulance to arrive. Ms. Ferrell said that, while they were waiting,
she took “cold compress[] washcloths” to Mr. Brewer to put over the victim’s eye, which
“was filling up full of blood.” The victim was immediately transported to the hospital
after ambulance arrived.
Detective Chris Hall provided testimony at trial similar to that which he gave at
the suppression hearing. Detective Hall stated that the “initial call was dispatched at
10:40 a.m.,” and he arrived at the victim’s residence around 11:45 to 11:50 a.m.
Detective Hall relayed the details of his conversation with Mr. Brewer that day, including
the description Mr. Brewer gave to him of the Defendant, Ms. Heflin, and their pick-up
truck. Detective Hall also told the jury about the subsequent pursuit and traffic stop of
the Defendant and Ms. Heflin. According to Detective Hall, he radioed to Sergeant King
at 12:07 p.m. to stop the Defendant, and Sergeant King effectuated that order at 12:09
p.m.
Detective Hall also detailed the circumstances of the Defendant’s statement at the
sheriff’s department. The Defendant told Detective Hall that Ms. Heflin approached the
victim about a loose dog, that the victim grabbed Ms. Heflin’s arm while they were
talking, that Ms. Heflin “jerked back” from the victim yelling that the victim was trying
to rape her, that Ms. Heflin ran and got inside the truck, and that he got an aluminum bat
from behind the driver’s seat and hit the “old man in the head one time.” The Defendant
said that they then drove away looking for a state park where Ms. Heflin’s children could
play; however, once there, they “did not find much to do,” so they decided to go home.
Detective Hall testified that his office was not equipped with audio or video
recording technology. Detective Hall also said that there was only one 9-1-1 call and that
the caller’s name was identified to him as one J.C. Hassler.
Detective Hall also measured and determined that Mr. Brewer was approximately
eighty-seven yards away from the incident. The victim had already been buried by the
time Detective Hall became aware of his death. Detective Hall stated that he did not have
the authority to order an autopsy and opined that it was “[c]ase dependent” whether an
autopsy was helpful.
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Paul Hassler testified that, after the victim’s head injury, he visited him “about
every day” at the hospital. Paul said that the victim’s memory problems “had gotten
worse,” explaining that “he could respond to you, but he didn’t really know a whole lot of
people.” Paul maintained that he was not able to have the same conversations with the
victim and that the victim was not “the same person” as before. Moreover, the victim
was unable to feed himself; he ultimately required a feeding tube for nutrition; and he
“was in bed most of the time” after the feeding tube was placed. Paul confirmed that,
after the victim was sent to the nursing home, the victim had to be readmitted to the
hospital on October 21, 2012, because of “kidney failure[.]”
Ms. Ferrell testified that she visited the victim once he was moved to the
rehabilitation center. She said that she stayed with him for eight hours “every day” until
his death. According to Ms. Ferrell, the victim never spoke to her during this time; he
was unable to perform basic tasks, including feeding himself; and he was bedridden. Ms.
Ferrell opined that the victim was not “the same person after” being hit in the head.
Dr. Vincente Mejia, a trauma surgeon at Erlanger Hospital in Chattanooga,
examined the victim when he arrived at the hospital on September 14, 2012. Dr. Mejia
determined that the victim had “multiple injuries to his head and face,” including “a
laceration of the forehead,” “fractures of the bone of his forehead” on his left sinus
cavity, “fractures of the facial bones . . . especially on the left side” of his head, and
injuries to the soft tissue of his forehead. The skull fracture led to the victim’s having
“pooling of the blood around the eyes” or “raccoon eyes.” The victim also suffered from
“bleeding on the brain”: “So he had a hematoma and he had subarachnoid hemorrhage,
which is pooling of blood in the base of the brain, and also bleeding to the ventricles . . .
in the brain.” Dr. Mejia determined that the victim “had traumatic brain injury as a result
of trauma.” He believed that the victim’s injuries were “critical,” particularly given the
victim’s advanced age, and his prognosis for the victim was “guarded.” Dr. Mejia said
that, although he did speak with the victim, the victim “was still confused.” According to
Dr. Mejia, a healthy patient with a head injury would face a recovery period of “at least
six to nine months.”
Dr. Mejia testified that he was unable to determine if the victim’s injuries resulted
from a single blow or multiple blows, although “[i]t looked like one.” According to Dr.
Mejia, the victim’s injuries were consistent with being hit in the head with a baseball bat,
and the injuries were the result of “a significant amount of force.”
Dr. Mejia relayed that the victim had to have several surgeries while in the
hospital. A plastic surgeon had to operate on the victim’s face. In addition, according to
Dr. Mejia, the victim developed a condition called “oropharyngeal dysphagia,” meaning
that he was having difficulty swallowing. Dr. Mejia said that the victim’s swallowing
mechanism remained altered, which caused significant aspiration of food into the lungs,
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thereby creating a risk of pneumonia and sepsis. Therefore, Dr. Mejia performed surgery
to insert a feeding tube. According to Dr. Mejia, the victim did not have “any history of
aspiration before the accident,” and he was not malnourished upon admission to the
hospital. Dr. Mejia confirmed that his “post-op” notes indicated that the victim had
Barrett’s Esophagus, which is a “changing in the lining of the mucosae of the esophagus”
that may cause “chronic reflux.” Dr. Mejia said that Barrett’s Esophagus could
eventually lead to cancer. Furthermore, Dr. Mejia stated that, while in the hospital, the
victim was seen by a cardiologist and treated for “an irregular heartbeat.” Dr. Mejia did
not have any medical history indicating that the victim had a heart condition prior to
September 14, 2012. However, Dr. Mejia maintained that the victim did not have any
other diseases, such as cancer, that concerned him about the victim’s health. After two
weeks in the hospital, Dr. Mejia sent the victim to a rehabilitation facility.
In addition, Dr. Mejia said that he had filled out “many” death certificates. He
testified that “an autopsy is requested if the cause of death is not obvious.” Also, Dr.
Mejia described that there is “usually an immediate cause of death and secondary
causes.” When Dr. Mejia was asked if “[a]n autopsy in this case would have shown
whether or not the head injury had anything to do with the pneumonia and aspiration,” he
opined, “No, I don’t think so, but that’s not my area of expertise, but I can tell you that
probably not, because . . . [y]ou can aspirate for many reasons and you can have
pneumonia.”
Once at the rehabilitation center, the victim was treated by internal medicine Dr.
Hak Seo. Initially, Dr. Seo hoped to rehabilitate the victim so he could return home and
resume his relatively independent lifestyle. However, the victim was unable to
communicate with Dr. Seo, not being able to talk in full sentences, and the victim
remained “very confused” and only responded to visitors by smiling or crying. The
victim also continued to require a feeding tube, was confined to a bed or wheelchair, and
needed a Foley catheter. Dr. Seo said that the victim “went down quick[ly],” and he
eventually resigned himself to making the victim as comfortable as possible.
Dr. Seo confirmed that the victim ultimately died on October 31, 2012, from
malnutrition and dehydration, “secondary to aspiration pneumonia[,] secondary to head
trauma.” Dr. Seo explained aspiration pneumonia:
[A]fter any kind of head trauma, or someone who suffers a real bad injury, .
. . they kind of lose their function of swallowing, so that they, you know—
and a lot of times they can, they can get fed, and if they’re not really
watching that food or liquid can go into their windpipe and that’ll settle in
their lungs and they can develop an infection.
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Dr. Seo said that the head trauma was an “obvious” contributor to the victim’s death. In
addition, Dr. Seo was not aware of the victim’s having any swallowing problems or
history of pneumonia prior to his head injury. Moreover, Dr. Seo said that the victim did
not suffer from cancer, heart disease, or diabetes. Dr. Seo confirmed that the victim took
“baby aspirin once a day.” Dr. Seo opined to a reasonable degree of medical certainty
that the victim’s condition never improved prior to his death.
Dr. Seo prepared the victim’s death certificate, certifying therein that the victim
died from aspiration pneumonia and classifying the victim’s death as resulting from
natural causes. Dr. Seo affirmed that he did not list the head trauma in the death
certificate, that he did not report the death to the county medical examiner or the sheriff’s
department, and that no autopsy was performed. When asked if he should have reported
the victim’s death, Dr. Seo replied, “I don’t think so. . . . Because we decided to go on
hospice care, so . . . the brother just wanted comfort measures.” Dr. Seo also explained
that the victim’s brother did not request an autopsy, but Dr. Seo agreed that an autopsy
could have been helpful.
Dr. Darinka Mileusnic-Polchan, the Chief Medical Examiner for Knox and
Anderson Counties and the Chief Forensic Pathologist for East Tennessee Regional
Forensic Center, received a request from the Rhea County Medical Examiner, Dr. Beth
Casady, to review the victim’s case. Dr. Mileusnic-Polchan reviewed the victim’s
medical records, and she described the initial injuries. She maintained that it was “a
miracle” that the victim survived the original head trauma, believing that the victim’s
initial survival was likely due to his good health at the time of the injury. Dr. Mileusnic-
Polchan opined that, based upon her review of the victim’s medical history and her
knowledge of the victim’s “state of health” prior to the assault, “all the complications . . .
recorded in the victim’s medical records stem or come from the blunt force head trauma.”
Dr. Mileusnic-Polchan continued, “As a matter of fact, the complications that are
described such as inability to process what he’s being told, inability to utter or say the
words, communicate, and the problems swallowing are pretty typical for . . . direct
trauma to the brain in the left hemisphere.” She conveyed that the immediate cause of
death in this case, aspiration pneumonia, was a complication from the original head
trauma.
Dr. Mileusnic-Polchan opined to a reasonable degree of medical certainty that the
victim’s cause of death was “sequela result blunt force head trauma due to assault,” and
she maintained that was how she would have documented it in the death certificate. Dr.
Mileusnic-Polchan confirmed that an autopsy, which included a toxicology report, could
have provided “additional helpful information that strengthen[ed] the case.” Dr.
Mileusnic-Polchan maintained that the immediate cause of death can provide an
incomplete picture of “what really happened” and believed that many physicians were not
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properly “trained in [the] art of completing death certificate[s]” or “even reporting the
cases to the medical examiner.” Dr. Mileusnic-Polchan said that she would have
classified the victim’s death as a homicide on the death certificate rather than death from
natural causes as Dr. Seo did.
According to Dr. Mileusnic-Polchan, Dr. Seo “messed up” by not recording that
blunt force head trauma was the ultimate cause of the victim’s death, and the reason that
there was no autopsy in this case was because the victim’s death was not reported. Dr.
Mileusnic-Polchan said that, in a case like this one that “f[e]ll through the cracks,” “there
[were] a couple of options, . . . either review the medical records or . . . perform
exhumation.” She noted that a county’s medical examiner could amend a death
certificate “from the investigation that they do.” However, Dr. Mileusnic-Polchan
clarified that “exhumations are actually very expensive” and “very time consuming” and
averred that “the results are not necessarily always the best.”
Dr. Mileusnic-Polchan confirmed that she only reviewed the victim’s medical
records about a week prior to trial, and she did not believe that Dr. Casady ever examined
the victim’s body. Dr. Mileusnic-Polchan explained that, when she spoke with Dr. Frank
King, the Defendant’s expert, she had not yet reviewed the victim’s medical records.
Moreover, upon reviewing the medical records, Dr. Mileusnic-Polchan did not find it
necessary to contact Dr. Seo to discuss this matter before making her conclusions.
In addition, Dr. Mileusnic-Polchan said that she did not “see anything in the
medical records that would indicate . . . that [the victim] was poisoned by wrong
administration of drugs.” She also said that Barrett’s Esophagus “would not necessarily
cause regurgitation and aspiration” as seen in this case. She confirmed that the victim,
while being cared for, suffered from an infection around his feeding tube.
2. Defense Proof. Dr. Frank King, a retired forensic pathologist, who spent most
of his career as the Hamilton County Medical Examiner, testified on the Defendant’s
behalf. Dr. King also reviewed the victim’s medical records, which he described as
“confusing.” When asked if he was “able to glean any type of medical history or
illnesses” that the victim had, Dr. King replied,
Well, when he showed up at the Rhea County emergency room, . . .
they wrote in their chart then that he had, of course, the head injury. His
blood pressure was elevated at that time. He had, they said severe
dementia, and they said was mumbling speech. He had a cough. He had an
increased heart rate, and he had a past medical history of having had his
gallbladder removed, his blood sugar was elevated, and the nursing home
admission notes added that he had atrial fibrillation, which is a . . . type of
abnormal rhythm in the top part of the heart, and he also had hypertension.
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Dr. King also determined from the x-rays that the victim had calcium deposits in “the
aortic arch,” signifying “advanced atherosclerotic disease” or “hardening of the arteries.”
In addition, Dr. King believed that the victim had “diabetes type two.” Regarding the
assertions that the victim was in good health prior to this incident, Dr. King said, “So you
can be healthy and strong in appearance outside and you can still have some medical
problems that are ultimately going to get you on the inside of your body, so that can be a
little misleading.”
Dr. King said that he could not recall ever testifying in a murder trial where an
autopsy had not been conducted, despite both Detective Hall’s and Dr. Mileusnic-
Polchan’s testimony that they had done so. According to Dr. King, an autopsy needed to
be conducted “to prove [the] cause of death[] and to prove the absence of other things”
and also to collect medical evidence. Dr. King also noted his disagreement with Dr.
Mileusnic-Polchan’s conclusion regarding the cause of the victim’s death. Dr. King’s
disagreement with Dr. Mileusnic-Polchan’s opinion resulted solely from the lack of an
autopsy and the inability to exclude other causes.
Dr. King claimed that he had spoken with both Drs. Casady and Mileusnic-
Polchan about two weeks prior to trial. He said that Dr. Casady told him that she did not
issue an autopsy report because she did not see the body and did not investigate. Dr.
King said that Dr. Mileusnic-Polchan told him she had no opinion regarding the victim’s
cause of death and that “she wouldn’t feel comfortable saying what the cause of death
was” without an autopsy. Dr. King maintained that the performance of toxicology tests
was also an important function of an autopsy to establish that the victim did not have
“inappropriate drug levels” in his system at the time of death. Dr. King affirmed that his
“first thought” would be that complications from the head injury caused the victim’s
death, but he averred that “there’s still some unknown things” he would want to clarify.
Dr. King surmised, “I would have a hard time coming to the conclusion that the head
injury alone caused the death with any level of confidence.”
On cross-examination, Dr. King admitted that, while he was the medical examiner,
he “did not autopsy a lot of cases,” although he would still investigate the circumstances
of the death. Dr. King agreed that an autopsy was more difficult on a body that had
already been embalmed. Dr. King acknowledged that, once a body was buried, the only
two avenues to determine cause of death were to review the medical records or have the
body exhumed for an autopsy.
Dr. King also stated that, if Dr. Seo believed that blunt force trauma to the head
was the victim’s cause of death, then Dr. Seo should have so noted on the death
certificate. Dr. King said that Dr. Seo “disagree[d] with himself.” Dr. King further noted
his disagreement with the amended death certificate prepared by Dr. Casady, wherein she
classified the victim’s death as a homicide. Dr. King described the process for filing an
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amended death certificate. However, Dr. King agreed that, regardless of what was noted
on the death certificates, the facts of the case remained unchanged.
Dr. King acknowledged that, “but for [the victim’s] being struck in the head with a
bat, he would not have been in the hospital with a feeding tube,” and that being bedridden
can lead to pneumonia and aspiration. Dr. King also admitted that the victim “would
have had some permanent decrease in brain function” from the head injury.
Ms. Heflin testified that she was thirty years old, that she had moved to Tennessee
with her two young children and the Defendant to escape a previous abusive relationship,
and that she had only lived in the area two or three days prior to this incident. On
September 14, 2012, they “loaded up the kids and picnic snacks and sports equipment
and everything” for a day at the park, and they set off. Ms. Heflin relayed that she had an
affinity for animals and wanted to rescue the dog on the highway. According to Ms.
Heflin, when she approached the victim to ask him about the dog, the victim told her that
she looked “too decent to be dressed so indecent,” and he attempted to grab her chest.
Ms. Heflin said that she took a step back and that the victim missed her chest, instead
aggressively grabbing her by the arm and hair. Ms. Heflin alleged that the victim said to
her that she looked like a “whore” and that he was going to take her inside and treat her
like one. Ms. Heflin described that she was “wearing [her] favorite black skirt” that came
down to her knees and her “black tank top with gold accents on it that matched it.”
Ms. Heflin claimed that she was unable to break free from the victim’s grasp and
yelled out to the Defendant that the victim was trying to rape her. According to Ms.
Heflin, when the Defendant pulled in the driveway and came to her rescue, she was in
tears, and the Defendant, with the baseball bat in hand, told the victim to release her.
However, the victim failed to comply, so the Defendant freed her from his grip. Ms.
Heflin claimed at trial that she never saw the Defendant hit the victim with the baseball
bat because her main concern was returning to the truck and attempting to console her
frightened children. In addition, Ms. Heflin maintained that the Defendant had never
before been involved in a fight and that she had no reason for wanting the Defendant to
beat up the victim.
As they pulled away from the victim’s home, Ms. Heflin saw the victim’s kneeling
down on the ground “with his hand on his head.” He appeared “fine.” They proceeded
to continue to look for a state park for the children to play, but once at the park, they
decided to go home because they were in no condition to play games. They drove back
towards the Defendant’s parent’s house where they were living.
Ms. Heflin testified that Detective Hall was aggressive when he came to the
passenger’s side window and that he ordered her to “get out of the f--king truck or [he
was] going to show [her] what the f--k [she] did wrong.” She did not recall Detective
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Hall’s asking her about the incident at the victim’s home. Ms. Heflin said that she was
then placed in the back of a patrol car, along with her two boys, and they were driven to
the police station. She asserted that she asked for her heart and anxiety medication
during the ride, but her request was denied.
Ms. Heflin said that she was not allowed to see her children once at the station
until she gave a written statement. She said that her children were kept from her for four
hours. According to Ms. Heflin, although she told an officer what had happened at the
victim’s house, and the officer drafted her statement for her, it did not accurately reflect
what she told him. Ms. Heflin testified that she informed the officer that she was having
trouble with her vision and breathing and was unable to think clearly during the
interview. Ms. Heflin further claimed that the officer did not read her statement back to
her and that she signed the statement without reviewing it. She also wanted to prosecute
the victim for sexual assault, and she unsuccessfully tried to “press charges” that day at
the station.
The thirty-two-year-old Defendant also testified, relating many of the same details
as he did at the motion to suppress hearing and giving a similar recount as Ms. Heflin’s.
The Defendant claimed that he was “laid back” and not a violent person. He averred that
he was not a jealous individual, had never been involved in a fight, and had not been
convicted of any crime, excluding speeding tickets. He claimed that Ms. Heflin was “the
love of [his] life.”
The Defendant claimed that they headed out on “an adventure” that day looking
for Fall Creek Falls State Park, but they were unfamiliar with the area. The Defendant
said that, while Ms. Heflin was trying to rescue the loose dog, the victim grabbed her, and
Ms. Heflin was screaming for help. According to the Defendant, he turned around in a
“cut-through” and made his way to the victim’s driveway. Baseball bat in hand, the
Defendant approached the victim who was “trying to drag” Ms. Heflin at this point, and
Ms. Heflin was screaming that the victim was trying to rape her. He said to the victim,
“Get the f--k off her.” When the victim did not immediately release Ms. Heflin, the
Defendant “just swung to get him off of her” and ran back to the truck. The Defendant
claimed that he did not aim, that it was “one wild swing,” and that he had “no idea” of the
amount of force he used, although the hit “was probably loud.”
The Defendant denied that Ms. Heflin was able to break free from the victim’s
grasp and return to the truck. He insisted that he would have avoided hitting the victim if
at all possible. The Defendant admitted that they did not call the police after the incident.
However, he claimed that making such a call “was definitely not outside of . . . [his]
thought patterns,” but he “was more concerned with consoling the kids” and Ms. Heflin.
In addition, the Defendant said that the victim did not “immediately drop to the ground”
-16-
after being hit and that he did not see any blood squirting out of the victim’s wound. He
said that, upon reflection, he “most likely” would have behaved the same way.
The Defendant acknowledged that he had the opportunity to read the written
statement he gave at the police station but claimed that he “was in such a state of shock”
and that he “was in no condition to comprehend anything.” The Defendant also claimed
that his statement to Detective Hall was incorrect, although he conceded that Detective
Hall did not fabricate the details in the statement. The Defendant maintained that
Detective Hall “just switched the timeline around.” The Defendant agreed that, if his
statement as written by Detective Hall was accurate, then he “wouldn’t have had to
defend anybody.” He denied collaborating with Ms. Heflin to prepare consistent
accounts of the incident.
3. Rebuttal Proof. The State then called retired Rhea County Sheriff’s Department
Detective Mike Owenby, the officer who interviewed Ms. Heflin. Ms. Heflin’s statement
reflected that the interview began at approximately 1:05 p.m. and lasted only five
minutes. Detective Owenby testified that there was “no way” Ms. Heflin had been at the
police station for four hours before he interviewed her. Detective Owenby maintained
that he wrote down “exactly what” Ms. Heflin told him and that he read it back to her for
her approval or she read it to herself before she signed and initialed it. According to
Detective Owenby, Ms. Heflin did not wish to make any changes to the statement. Ms.
Heflin did not appear to be under the influence at the time she gave her statement, in
Detective Owenby’s opinion. Detective Owenby estimated that the whole process took
approximately thirty minutes, and then an officer took Ms. Heflin and her children home.
Detective Owenby confirmed that the interview was not recorded and averred that it was
not their usual practice to record statements.
Detective Owenby relayed that Ms. Heflin told him that they were trying to find
Frozen Head State Park, instead of Fall Creek Falls, that day, but they were unsuccessful.
Ms. Heflin believed they were in Wartburg when they started back towards Dayton and
encountered the loose dog. According to Ms. Heflin in her statement, the victim started
talking about the way Ms. Heflin was dressed and called her a prostitute before he tried to
grab her arm; the victim continued to call her a hooker and threatened to treat her like
one; and she ran back to the truck where, once inside, she told the Defendant what had
happened. Ms. Heflin told Detective Owenby that the Defendant got out of the truck and
asked the victim what he had said to Ms. Heflin, but Ms. Heflin claimed that she did not
see what transpired after that because she was tending to her children who were upset.
When the Defendant returned to the truck, they tried to find the state park again. During
the interview, Ms. Heflin never mentioned the victim’s touching her or the Defendant’s
possessing a baseball bat. Detective Owenby said that he did not threaten Ms. Heflin or
withhold her children from her in order to secure her statement. According to Detective
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Owenby, the children sat on the couch in the sheriff’s department, and Ms. Heflin knew
where they were when she gave her statement.
C. Verdict, Sentencing, and Appeal
Following the conclusion of the proof, the jury found the Defendant guilty of the
lesser-included offense of voluntary manslaughter in Count 1 and guilty as charged of
aggravated assault in Count 2. Thereafter, the trial court sentenced the Defendant to four
years and six months for the voluntary manslaughter conviction and five years and six
months for the aggravated assault conviction. The two convictions were merged. The
Defendant’s timely motion for new trial was denied, and his appeal is now properly
before this court.
ANALYSIS
On appeal, the Defendant argues (1) that the trial court erred by denying his
motion to suppress his statement because the stop of his vehicle was not supported by
reasonable suspicion; (2) that the evidence was insufficient to support his voluntary
manslaughter conviction, challenging the evidence establishing cause of death; (3) that
admission of a photograph of the victim’s injuries was more prejudicial than probative;
and (4) that the State committed prosecutorial misconduct by referring to the amended
death certificate which was testimonial in nature. We will address each in turn.
I. Motion to Suppress
The Defendant argues that the baseball bat and his statement “must be suppressed
because the initial seizure of [his] vehicle was unlawful and unsupported by reasonable
suspicion.” Specifically, he avers that, “under the totality of the circumstances and the
absence of the arresting officer’s testimony, there was insufficient information to justify
the stop.” Moreover, the Defendant asserts that the baseball bat and his statement
“should be suppressed and excluded as fruits of the poisonous tree” stemming from the
illegal stop. He continues that “the erroneous admission of the baseball bat” was not
harmless and that the taint of illegality “was not sufficiently attenuated” to allow
admission of the Defendant’s statement. The State responds that the trial court properly
denied the Defendant’s motion to suppress because, “given Mr. Brewer’s description of
the [D]efendant, his companion, his truck, and his assault of [the victim], Detective Hall
had reasonable suspicion to order another officer to stop the [D]efendnat’s truck.”
Because the stop was constitutionally reasonable, according to the State, the fruit of the
poisonous tree doctrine is inapplicable.
On appellate review of suppression issues, the prevailing party “is entitled to the
strongest legitimate view of the evidence adduced at the suppression hearing as well as
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all reasonable and legitimate inferences that may be drawn from the evidence.” State v.
Talley, 307 S.W.3d 723, 729 (Tenn. 2010) (quoting State v. Odom, 928 S.W.2d 18, 23
(Tenn. 1996)). Questions about “the assessment of witness credibility, the weight and
value of evidence, and the resolution of evidentiary conflicts are entrusted to the trial
court” as the trier of fact. State v. Meeks, 262 S.W.3d 710, 722 (Tenn. 2008) (citing
State v. Scarborough, 201 S.W.3d 607, 615 (Tenn. 2006)). When the trial court “makes
findings of fact in the course of ruling upon a motion to suppress, those findings are
binding on appeal unless the evidence in the record preponderates against them.” Id.
(citing State v. Berrios, 235 S.W.3d 99, 104 (Tenn. 2007)). Conversely, a trial court’s
conclusions of law along with its application of the law to the facts are reviewed de novo
without any presumption of correctness. Id. (citing State v. Hayes, 188 S.W.3d 505, 510
(Tenn. 2006)). In reviewing a trial court’s ruling on a motion to suppress, an appellate
court may consider the evidence presented both at the suppression hearing and at the
subsequent trial. State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998).
Both the Fourth Amendment to the United States Constitution and article I, section
7 of the Tennessee Constitution guarantee the right to be free from unreasonable searches
and seizures. A vehicle stop and detention of the vehicle’s occupants constitutes a
seizure under both constitutions. Whren v. United States, 517 U.S. 806, 809-10 (1996);
State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000). In the context of a traffic stop, a
person is seized when the officer activates the cruiser’s blue lights. Binette, 33 S.W.3d at
218. Generally, “under both the federal and state constitutions, a warrantless search or
seizure is presumed unreasonable, and evidence discovered as a result thereof is subject
to suppression unless the State demonstrates that the search or seizure was conducted
pursuant to one of the narrowly defined exceptions to the warrant requirement.” State v.
Yeargan, 958 S.W.2d 626, 630 (Tenn. 1997). The State has the burden to demonstrate,
by a preponderance of the evidence, that a warrantless search passes constitutional
muster. State v. Harris, 280 S.W.3d 832, 839 (Tenn. Crim. App. 2008).
A warrant is not required for an investigatory stop “when the officer has a
reasonable suspicion, supported by specific and articulable facts, that a criminal offense
has been or is about to be committed.” State v. Bridges, 963 S.W.2d 487, 492 (Tenn.
1997); see also Terry v. Ohio, 392 U.S. 1, 21 (1968); Binette, 33 S.W.3d at 218; Yeargan,
958 S.W.2d at 630. Reasonable suspicion is a lower standard of proof than probable
cause, but must be more than the officer’s “inchoate and unparticularized suspicion or
hunch.’” State v. Hanning, 296 S.W.3d 44, 49 (Tenn. 2009) (quoting State v. Day, 263
S.W.3d 891, 902 (Tenn. 2008)). Our supreme court has explained that reasonable
suspicion is “a particularized and objective basis for suspecting the subject of a stop of
criminal activity.” Binette, 33 S.W.3d at 218. Reasonable suspicion exists when
‘specific and articulable facts . . . taken together with rational inferences from those facts,
reasonably warrant that intrusion.’” Binette, 33 S.W.3d at 218 (quoting Terry, 392 U.S.
-19-
at 21). In order to determine whether an investigatory detention of a vehicle is supported
by reasonable suspicion, this court must consider the totality of the circumstances,
including the objective observations of the police officer, information obtained from
other officers or agencies, information obtained from citizens, and the pattern of
operation of certain offenders. Day, 263 S.W.3d at 903 (citing Alabama v. White, 496
U.S. 325, 330 (1990); State v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992)).
In addition, “[r]easonable suspicion ‘is dependent upon both the content of
information possessed by police and its degree of reliability.’” Day, 263 S.W.3d at 903
(quoting White, 496 U.S. at 330). “Information provided by a citizen/bystander witness
known to the [police] is presumed to be reliable, and the prosecution is not required to
establish either the credibility of the informant or the reliability of his information.” State
v. Cauley, 863 S.W.2d 411, 417 (Tenn. 1993) (citing State v. Melson, 638 S.W.2d 342,
35455 (Tenn. 1982)); see also Day, 263 S.W.3d at 904 (“We acknowledge that
information from a known citizen informant is presumed reliable and not subject to the
same level of scrutiny applied to a compensated informant.”). The rationale for applying
the presumption of reliability in these circumstances is two-fold. State v. Dotson, 450
S.W.3d 1, 51 (Tenn. 2014). First, “[c]itizen informants, whether they be victims or
witnesses, have necessarily gained their information through first-hand experience.”
State v. Luke, 995 S.W.2d 630, 636-37 (Tenn. Crim. App. 1998) (citing Melson, 638
S.W.2d at 354-56). Second, “[t]he criminal informant provides information in exchange
for some consideration—whether it be monetary or the granting of some exemption or
privilege—while the citizen informant acts in the interest of society or personal safety.”
Id. (citing State v. Smith, 867 S.W.2d 343, 347 (Tenn. Crim. App. 1993)); see also Day,
263 S.W.3d at 904 (citing Luke with approval). Thus, although Tennessee decisions
have recognized the interests that typically motivate citizen informants and justify the
presumption of reliability, no Tennessee decision has conditioned application of the
presumption of reliability upon a showing that the citizen informant was in fact motivated
by one or both of these interests. Dotson, 450 S.W.3d at 51-52. The presumption of
reliability applies if the prosecution establishes simply that the information was provided
by a known citizen informant. Id. at 52.
In this case, Detective Hall received information from Mr. Brewer, who was an
eyewitness to the Defendant’s assault of the victim, or stated another way, Mr. Brewer
“necessarily gained [his] information through first-hand experience.” See Luke, 995
S.W.2d at 636-37. Moreover, Mr. Brewer’s identification of the Defendant, Ms. Helfin,
and the pick-up truck, was motivated only by his interest in identifying the person who
assaulted the victim. See id.
Detective Hall testified that, after the 9-1-1 call, he responded to the scene and
spoke with Mr. Brewer, who stated that he had witnessed a man attack the victim with a
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stick. Mr. Brewer described the assailant as a white man around thirty years of age and
said that man was accompanied by a woman in a black dress and was driving a small, red
pick-up truck with a two-toned paint job. According to Mr. Brewer, the front of the pick-
up truck was shiny while the rear appeared to be painted with primer. Mr. Brewer further
relayed that the pick-up truck left the victim’s house about thirty to forty minutes earlier
and was heading north on Highway 27. As Detective Hall was headed north on Highway
27, he observed a two-toned red truck heading south. Detective Hall radioed to Sergeant
King, who was patrolling just to the south, and instructed him to stop the suspect vehicle.
This information is sufficient to satisfy a “reasonable suspicion” that an occupant of the
pick-up truck had just committed a criminal offense, which justified Sergeant King’s
seizure and brief investigatory stop of the Defendant and Ms. Heflin.
The Defendant notes that Sergeant King initiated the stop and then avers that,
without Sergeant King’s testimony, “it is unknown what specific and articulable facts he
relied on in stopping the [Defendant’s] vehicle.”3 However, the citizen complainant need
not communicate directly with the officer conducting the investigatory stop. State v.
Christian Philip Van Camp, No. E2014-00667-CCA-R3-CD, 2014 WL 7399671, at *4
(Tenn. Crim. App. Dec. 29, 2104). This court has held that, when, as in this case, an
officer initiates an investigatory stop of a vehicle based not on the manner of driving but
on information relayed from a dispatcher, the stop will be upheld “as long as the
individual or agency placing the dispatch has the requisite reasonable suspicion supported
by specific and articulable facts that indicate criminal conduct.” State v. Moore, 775
S.W.2d 372, 378 (Tenn. Crim. App. 1989). The Moore court reasoned that the State, at
the suppression hearing, may present “the testimony of the individuals who witnessed the
information that is eventually passed on to the investigating officer” and that it was not
necessary to have the police dispatcher testify, since he or she “simply served as a
conduit in relaying the information” to the investigating officer. Moore, 775 S.W.2d at
378.
Further,
[b]ecause the doctrine of collective knowledge applies when determining
whether an arresting officer has probable cause to arrest a particular
suspect, it is logical that this doctrine also applies when determining
whether an officer possessed reasonable suspicion to stop an individual.
This idea of imputed knowledge has been applied by this court in the past.
3
We note that, during the suppression hearing, the prosecutor stated Sergeant King was present in the
courthouse, although the prosecutor did not know if Sergeant King’s testimony was “going to change
anything” because it was “pretty much cut and dried.” Sergeant King did not testify.
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State v. Robert Lamar Kelley, No. M2016-01425-CCA-R3-CD, 2017 WL 3721688, at
*10 (Tenn. Crim. App. Aug. 28, 2017) (citing State v. Bryant, 678 S.W.2d 480, 482-83
(Tenn. Crim. App. 1984) (concluding that the initial detention of the defendant by an
officer who heard another officer’s description of the defendant’s vehicle and request for
assistance over the police radio was lawful even though the officer who stopped the
defendant had not witnessed any unlawful activity by the defendant)), perm. app. denied
(Tenn. Dec. 6, 2017). Under the concept of collective knowledge, all of the information
known to Detective Hall would be imputed to Sergeant King at the time of the stop, so
long as a sufficient nexus of communication existed. Because Detective Hall had
reasonable suspicion that the Defendant was involved in the victim’s assault and then
directed Sergeant King to act by stopping the Defendant, a sufficient nexus existed such
that Detective Hall’s reasonable suspicion was imputed to Sergeant King. See id.
(holding that, where a detective had reasonable suspicion that the defendant possessed
marijuana and then directed another officer to act by stopping the defendant, a sufficient
nexus existed such that the detective’s reasonable suspicion was imputed to the officer
conducting the stop).
The Defendant maintains that the trial court should have suppressed his statement
and the baseball bat observed in the truck as “fruits of the poisonous tree.” However, we
have concluded that the stop was constitutionally reasonable being supported by
reasonable suspicion. Accordingly, where there is no initial taint of unconstitutional
police conduct, the “fruit of the poisonous tree” doctrine does not apply. See State v.
Talley, 307 S.W.3d 723, 734 (Tenn. 2010).
Nonetheless, “[a]n investigatory traffic stop under Terry ‘is a far more minimal
intrusion [than an arrest pursuant to probable cause], simply allowing the officer to
briefly investigate further. If the officer does not learn facts rising to the level of
probable cause, the individual must be allowed to go on his way.’” Binette, 33 S.W.3d at
218 (quoting Illinois v. Wardlow, 528 U.S. 119, 126 (2000)). In addition, “a reasonable
traffic stop can become unreasonable and constitutionally invalid ‘if the time, manner or
scope of the investigation exceeds the proper parameters.” State v. Troxell, 78 S.W.3d
866, 871 (Tenn. 2002) (quoting United States v. Childs, 256 F.3d 559, 564 (7th Cir.
2001)). “[T]he proper inquiry is whether during the detention the police diligently
pursued a means of investigation that was likely to confirm or dispel their suspicions
quickly.” Id. However, “no hard-and-fast time limit exists beyond which a detention is
automatically considered too long and, thereby unreasonable.” State v. Justin Paul Bruce,
No. E2004-02325-CCA-R3-CD, 2005 WL 2007215 at *7 (Tenn. Crim. App. Aug. 22,
2005); see also United States v. Sharpe, 470 U.S. 675, 685 (1985) (“if an investigative
stop continues indefinitely, at some point it can no longer be justified as an investigative
stop”).
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Much of the Defendant’s secondary argument focuses on the officers’ actions after
they stopped the Defendant. For example, he avers that, “after being pulled over, he was
immediately removed from the vehicle, interrogated [without Miranda warnings], placed
in handcuffs, and finally placed in the back of a patrol vehicle to be taken to the sheriff’s
department.” However, this court has held that, “requests for driver’s licenses and
vehicle registration documents, inquiries concerning travel plans and vehicle ownership,
computer checks, and the issuance of citations are investigative methods or activities
consistent with the lawful scope of any traffic stop.” State v. Harris, 280 S.W.3d 832,
840 (Tenn. Crim. App. 2008) (quoting State v. Gonzalo Garcia, No. M2000-01760-CCA-
R3-CD, 2002 WL 242358, at *21 (Tenn. Crim. App. Feb. 20, 2002), overruled on other
grounds by State v. Garcia, 123 S.W.3d 335 (Tenn. 2003)). After stopping the suspect
vehicle, Sergeant King radioed to Detective Hall that the truck’s occupants matched the
description provided by Mr. Brewer. Detective Hall arrived within minutes, and the
officers inquired about Ms. Heflin’s and the Defendant’s travel plans and their activities
that day. Ms. Heflin confirmed to Detective Hall that she and the Defendant were
involved in the incident earlier that day at the victim’s house. Ms. Heflin relayed to
Detective Hall that the Defendant had struck the victim with a baseball bat, and Detective
Hall testified that he observed a bat inside the pick-up truck in plain view. The trial court
accredited Detective Hall’s testimony. These facts were sufficient to establish probable
cause to detain the Defendant further. See Henning, 975 S.W.2d at 294 (Tenn. 1998)
(defining probable cause as “a reasonable ground for suspicion, supported by
circumstances indicative of an illegal act”).
In addition, Detective Hall testified that the Defendant willingly agreed to go to
the police station, where he gave a statement after signing a Miranda waiver. Because
the seizure was lawful, we likewise reject the Defendant’s argument that the taint of the
prior illegality was not sufficiently attenuated making his statement at the police station
inadmissible. The Defendant further submits that, once at the station, “[h]e felt
compelled to give a statement or otherwise he would be stuck there all day” and that he
was not allowed time to review his statement before he signed it. The Defendant also
notes that his statement was not electronically recorded and states that “it is unknown”
whether he was properly Mirandaized. He makes these arguments in the section
discussing whether his statement was sufficiently attenuated from the prior illegality. To
the extent this can be construed as an attack challenging the voluntariness of the
Defendant’s statement, the issue is waived due to the Defendant’s failure to cite to
authorities, make appropriate references to the record, or provide an argument on the
issue. See Tenn. R. App. P. 27(a)(7)(A); Tenn. Ct. Crim. App. R. 10(b).
II. Sufficiency of the Evidence
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The Defendant challenges the sufficiency of the convicting evidence supporting
his voluntary manslaughter conviction, arguing that the State failed “to prove the element
of cause in fact” or, stated another way, that the Defendant caused the victim’s death. In
support of this argument, the Defendant notes that “no autopsy was performed,” that “Dr.
Seo’s death certificate states the victim’s cause of death was due to natural causes,” and
that “Dr. Mileusnic-Polchan[’s] opinion regarding the cause of death [was] mere
conjecture and speculation.” The State counters that the evidence was sufficient to
support the Defendant’s voluntary manslaughter conviction.4
An appellate court’s standard of review when a defendant questions the
sufficiency of the evidence on appeal is “whether, after viewing 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.” Jackson v. Virginia, 443 U.S. 307,
319 (1979). This court does not reweigh the evidence; rather, it presumes that the jury
has resolved all conflicts in the testimony and drawn all reasonable inferences from the
evidence in favor of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984);
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness
credibility, conflicts in testimony, and the weight and value to be given to evidence were
resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).
A guilty verdict “removes the presumption of innocence and replaces it with a
presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the
evidence is insufficient to support the jury’s verdict.” Id.; State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982). The standard of proof is the same whether the evidence is direct
or circumstantial. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). Likewise,
appellate review of the convicting evidence “is the same whether the conviction is based
upon direct or circumstantial evidence.” Id. (quoting State v. Hanson, 279 S.W.3d 265,
275 (Tenn. 2009)). The duty of this court “on appeal of a conviction is not to
contemplate all plausible inferences in the [d]efendant’s favor, but to draw all reasonable
inferences from the evidence in favor of the State.” State v. Sisk, 343 S.W.3d 60, 67
(Tenn. 2011).
Causation is an essential element of every homicide offense. State v. Farner, 66
S.W.3d 188, 204 (Tenn. 2001). Generally, this is established by showing that the
victim’s death was the natural and probable result of the defendant’s unlawful conduct.
4
The State correctly notes that the Defendant does not address the sufficiency of the evidence supporting
his aggravated assault (by causing serious bodily injury) conviction in his appellate brief. Although the
voluntary manslaughter conviction was merged into the aggravated assault conviction, the Defendant is
not precluded from challenging the sufficiency of the evidence of the merged conviction. See State v.
Jose Lemanuel Hall, Jr., No. M2013-02090-CCA-R3-CD, 2014 WL 4384318, at *12 (Tenn. Crim. App.
Sept. 5, 2014).
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State v. Richardson, 995 S.W.2d 119, 125 (Tenn. Crim. App. 1998) (citing State v.
Barnes, 703 S.W.2d 611, 614-15 (Tenn. 1985)). The defendant’s unlawful act or
omission need not be the sole or immediate cause of the victim’s death. Farner, 66
S.W.3d at 203 (citing Letner v. State, 299 S.W. 1049, 1051 (Tenn. 1927)). “It is only
necessary that the defendant unlawfully contributed to the death of the deceased.”
Richardson, 995 S.W.2d at 125 (citing State v. Roberson, 644 S.W.2d 696, 698 (Tenn.
Crim. App. 1982)).
More often than not, a homicide’s causation is not seriously disputed, as little
difficulty arises in proving the necessary causal connection between conduct and result.
Farner, 66 S.W.3d at 204. In the instant case, however, causation is seriously disputed.
“[C]ausation in criminal cases generally is a question of fact for a properly instructed
jury,” and “a jury’s determination of the causation issue will be reviewed under the
familiar sufficiency of the evidence standard and will not be disturbed by an appellate
court so long as the evidence is sufficient to support the jury’s determination.” Id.
The jury was properly instructed on causation. In accordance with Tennessee
Pattern Jury Instruction 42.14, the jury in this case was instructed as follows:
[B]efore the defendant can be convicted of any degree of homicide,
the [S]tate must have proven beyond a reasonable doubt that the death of
the deceased was proximately caused by the criminal conduct of the
defendant. The proximate cause of death is that cause which, in natural and
continuous sequence, unbroken by any independent intervening cause,
produces the death and without which the death would not have occurred.
The defendant’s conduct need not be the sole or immediate cause of
death. The acts of two or more persons may work concurrently to
proximately cause the death, and in such a case, each of the participating
acts is regarded as a proximate cause. It is not a defense that the negligent
conduct of the deceased may also have been a proximate cause of the death.
However, it is a defense to homicide if the proof shows that the
death was caused by an independent intervening act of the deceased or
another which the defendant, in the exercise of ordinary care, could not
reasonably have anticipated as likely to happen. However, if, in the
exercise of ordinary care, the defendant should reasonably have anticipated
the intervening cause, that cause does not supersede the defendant’s
original conduct, and the defendant’s conduct is considered the proximate
cause of death. It is not necessary that the sequence of events or the
particular injury be foreseeable. It is only necessary that the death fall
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within the general field of danger which the defendant should have
reasonably anticipated.
If some other circumstance caused the victim’s death, unrelated to
the defendant’s actions, that would be a defense to homicide unless the
circumstance was of the natural result of the defendant’s act.
There is evidence in this case that the deceased required medical
attention as a result of injuries that may have been unlawfully inflicted by
the defendant, and that such treatment itself may have contributed to the
death of the deceased. If you find this evidence to be true, then you must
determine whether the medical treatment is of such a character as to relieve
the defendant of the responsibility for the death. One who unlawfully and
seriously injures another to the extent that medical attention is required
bears the risk that improper treatment may result in the death of the injured
person. If the defendant unlawfully and seriously injured the deceased, he
is not relieved of responsibility unless the treatment was performed in a
grossly negligent and unskillful manner and unless it was the sole cause of
the death.
If you find that the defendant’s acts, if any, did not unlawfully cause
or contribute to the death of the deceased, or if you have a reasonable doubt
as to this proposition, then you must find him not guilty.
A. Autopsy and Disinterment. The Defendant first submits that no autopsy was
performed because Dr. Seo did not report the victim’s death to the county medical
examiner or sheriff as required by Tennessee Code Annotated section 38-7-108.
According to the Defendant, “[i]f the death had been reported to one of the appropriate
authorities, then the county medical examiner would [have] be[en] required to conduct an
investigation regarding the circumstances of the death, including performing an autopsy.”
The Defendant surmises that, “without an autopsy and without the [victim’s] previous
medical history[,] it is impossible to prove beyond a reasonable doubt that [the
Defendant] was the ‘cause-in-fact’ of the death of the [victim].”
The powers and duties of the county medical examiner are described in several
sections of the Post-Mortem Examination Act in Tennessee Code Annotated, Title 38,
Chapter 7. Tennessee Code Annotated section 38-7-108(a) requires that “[a]ny physician
. . . having knowledge of the death of any person from violence or trauma of any type,
suddenly when in apparent health, [or] . . . deaths in any suspicious/unusual/unnatural
manner . . . shall immediately notify the county medical examiner or the district attorney
general, the local police or the county sheriff, who in turn shall notify the county medical
examiner.” When the death is reported as provided in section 38-7-108, “it is the duty of
-26-
the county medical examiner . . . to immediately make an investigation of the
circumstances of the death” and for the county medical examiner to record and process
the findings. See Tenn. Code Ann. § 38-7-109(a). Under the latter section, the duty to
investigate the circumstances of a death where a death is reported under suspicious,
unusual, or unnatural circumstances passes to the county medical examiner and is
ministerial in nature. Dunbar v. Strimas, 632 S.W.2d 558 (Tenn. Ct. App. 1981). Any
person who neglects or refuses to comply with section 38-7-108 commits a Class E
felony. Tenn. Code Ann. § 38-7-113.
Moreover, under Tennessee Code Annotated section 38-7-106(a), “a county
medical examiner may perform or order an autopsy” on the body of any person in a case
involving a homicide, a suspected homicide, a suicide, or a violent, unnatural or
suspicious death. In the absence of a county medical examiner or if the county medical
examiner fails to act, the district attorney general may order an autopsy in such cases.
Tenn. Code Ann. 38-7-106(a). However, section 38-7-106 is discretionary, not
mandatory. Workman v. Levy, 136 F. Supp. 2d 899, 900 (M.D. Tenn. 2001).
While it is true that a death under the circumstances outlined in section 38-7-108
must be reported, the statute only requires the county medical examiner to investigate the
circumstances of the death and make a report, but it does not require an autopsy.
Performance of an autopsy is discretionary and is not a prerequisite for a criminal
conviction. Regardless of these statutory principles, Dr. Seo’s compliance with section
38-7-108, or lack thereof, is not a yardstick for reasonable doubt.
The Defendant also comments that “the medical examiner, sheriff, and district
attorney never requested or attempted to exhume the body of the deceased.” Tennessee
Code Annotated section 38-7-107 deals with the disinterment of bodies by the district
attorney general. That statute currently provides, in relevant part, as follows:
(a)(1) When a person’s death occurs under any of the circumstances set out
in this part, any of the following persons may request the district attorney
general in the district where the body is buried or interred to petition the
appropriate circuit or criminal court judge in the district where a body is
buried or interred to order a body disinterred:
(A) A state or county medical examiner;
(B) The district attorney general of the district in which it is claimed the
death occurred;
(C) The district attorney general of the district in which an act causing the
death occurred; or
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(D) The district attorney general of the district in which the body is buried
or interred, in the general’s own discretion.
(2) The grounds for disinterment under this subsection (a) are:
(A) The person’s death occurred under one (1) of the circumstances set out
in this part;
(B) The person was buried or interred before an autopsy could be
performed; or
(C) The disinterment will substantially assist in the collection of evidence
for a pending criminal investigation, regardless of whether an autopsy was
previously performed, or DNA, scientific, or forensic evidence was
collected.
(3) The petition shall specify whether the district attorney general is
requesting disinterment for the performance of an autopsy, to collect
scientific or forensic evidence, to collect a DNA specimen from the
deceased, or any combination of the three (3).
....
(b) Upon the presentation of the petition to the judge, the judge shall be
authorized to consider the petition and in the exercise of sound judicial
discretion, either make or deny an order authorizing the disinterment and an
autopsy to be performed upon the body of the deceased. The cost of
disinterment and autopsy shall be paid by the state as provided in § 38-1-
104.
The obvious purpose of this statute “seems to be to facilitate” the district attorney general
“in the performance of [his or her] duty, when [he or she] deems such an order to be
necessary, by providing expressly that [he or she] may file [a] petition [for disinterment]
and if same be granted, the costs shall be paid by” the State. See Dennis v. State, 279
S.W.2d 512, 516 (Tenn. 1955) (concluding same under a prior version of the statute).
However, section 38-7-107 does not attempt to cover the entire subject matter
governing disinterment and does not limit the authority of the court, or vest in the district
attorney general alone, exclusive authority to make the application for disinterment.
Dennis, 279 S.W.2d at 515-16. The court, upon application of either the State or a
defendant, “has always had the discretion and power to order an exhumation and autopsy
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where the necessity for same sufficiently is made to appear.” Id. at 515. Stated another
way, exhumation by the trial court is discretionary and requires a showing of necessity.
Dr. Mileusnic-Polchan noted that “exhumations are actually very expensive” and
“very time consuming” and averred that “the results are not necessarily always the best.”
Dr. King agreed that an autopsy was more difficult on a body that had already been
embalmed. Here, the Defendant had the ability to request exhumation of the victim’s
body but failed to do so. See State v. Jefferson, 529 S.W.2d 674, 690-91 (Tenn. 1975),
overruled on other grounds by State v. Mitchell, 593 S.W.2d 280 (Tenn. 1980); Ricky
Harris v. State, No. 03A01-9401-CV-00016, 1994 WL 399127, at *2-3 (Tenn. Ct. App.
Aug. 3, 1994). Regardless, we conclude that the fact that body was not exhumed in order
for an autopsy to be performed does not negate otherwise sufficient evidence supporting
a criminal conviction. See, e.g., State v. Terry Lynn Craft, No. W2009-02049-CCA-R3-
CD, 2010 WL 3365914, at *5-6 (Tenn. Crim. App. Aug. 26, 2010) (affirming the
sufficiency of the evidence in a vehicular homicide by intoxication case where no
autopsy was performed, and in doing so, rejecting the defendant’s argument that it was
“possible that something other than his conduct proximately caused the deaths of the
victims” because “(1) [the victim] had prescription drugs in his system at the time of the
crash; (2) [the victim] was not wearing his seat belt; (3) hospital employees might have
negligently killed [the victims]; (4) the victims’ Explorer might have had an undetected
defect; (5) [the] 9-1-1 call and later interview were inconsistent in some ways”).
We note that our supreme court has stated that, “until the autopsy is performed,
law enforcement cannot know with certainty the cause or manner of death.” State v.
Hutchinson, 482 S.W.3d 893, 913 (Tenn. 2016) (citing People v. Leach, 980 N.E.2d 570,
5921-92 (Ill. 2012) (noting that the cause of death determined by medical examiner could
have “either incriminated or exonerated [the suspect], depending on what the body
revealed about the cause of death”)). However, in Hutchinson, the victim suffered a
sudden, violent death, and this comment was not made in discussing the sufficiency of
the evidence. See id. (making the comment in determining whether an autopsy report
was testimonial in nature). Here, the victim received medical treatment for weeks before
finally succumbing to his injuries. There was extensive medical testimony about the
victim’s injuries and the medical treatment that followed up until the time of the victim’s
death. Logically, if a murder conviction can be upheld without a body at all, an autopsy
is likewise not a prerequisite to convict someone of murder. State v. Kenneth Patterson
(“Pat”) Bondurant and Hugh Peter (“Pete”) Bondurant, No. 01C01-9501-CC-00023, 1996
WL 275021, at *8 (Tenn. Crim. App. May 24, 1996) (holding that “[t]he failure to
recover a victim’s body should not be fatal to the prosecution of a homicide” because
“[r]equiring a body would afford absolute immunity to defendants who are cunning
enough to destroy the body or otherwise conceal its identity”); see also State v. Reggie
Carnell James, No. W2007-00775-CCA-R3-CD, 2009 WL 636726, at *7 (Tenn. Crim.
-29-
App. Mar. 10, 2009) (concluding that, “despite the fact that the victim’s body was not
recovered, the evidence produced at trial was sufficient to establish the elements of first
degree premeditated murder beyond a reasonable doubt”). Accordingly, we do not read
Hutchinson as requiring an autopsy in every case; however, an autopsy is certainly
advisable particularly in cases where the cause of death is challenged.
B. Death Certificates. The Defendant remarks that Dr. Seo’s death certificate
established prima facie evidence that the victim died of natural causes due to aspiration
pneumonia. According to the Defendant, the State was required “to rebut[] the
presumption” of the cause of death stated in the certificate but was unsuccessful in doing
so. The Defendant also notes that Rhea County Medical Examiner Dr. Casady “drafted a
delayed report diagnosis of death adding ‘assault causing skull fractures.’” However, the
Defendant submits that, because Dr. Casady did not testify at trial and the delayed report
was not introduced as an exhibit, the “only physical evidence provided to the jury
certifying the cause and manner of death was” Dr. Seo’s certificate.
Under Tennessee Code Annotated section 68-3-202(c), a death certificate is
prima facie evidence of the facts stated” therein. “Prima facie” evidence is “‘[e]vidence
that will establish a fact or sustain a judgment unless contradictory evidence is
produced.’” State v. Clark, 452 S.W.3d 268, 280 (Tenn. 2014) (quoting Black’s Law
Dictionary 638-39 (9th ed. 2009)). In addition, our supreme court has held that a death
certificate “only raises a bare rebuttable presumption which becomes functus officio when
met by contrary evidence[.]” See Boles v. Aluminum Co. of America, 483 S.W.2d 582,
583 (Tenn. 1972) (citing Milstead v. Kaylor, 212 S.W.2d 610, 614 (Tenn. 1948)).
Dr. Seo opined that, although he was responsible for preparing the death
certificate, it did not reflect the chain of causality that led to the victim’s death but
reflected only the immediate cause of death. According to Dr. Seo, while the immediate
cause of the victim’s death was malnutrition and dehydration from aspiration pneumonia,
the original blunt force trauma to the victim’s head was the ultimate cause of the victim’s
death. Moreover, Dr. Mileusnic-Polchan, who was trained in forensic pathology,
explained that many doctors do not receive adequate training in filling out death
certificates, and she asserted that she would have handled the case differently. Dr.
Mileusnic-Polchan likewise testified that head trauma was the ultimate cause of the
victim’s death and that she would have classified the victim’s death as a homicide.
Additionally, the Vital Records Act of 1977 provides that a certificate “may be
amended only in accordance with this chapter and regulations adopted by the
department.” Tenn. Code Ann. § 68-3-203(a). “The date of amendment and a summary
description of the evidence submitted in support of the amendment shall be endorsed on
or made a part of the record.” Tenn. Code Ann. § 68-3-203(b). The Department of
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Health’s regulations establish that all amendments to vital records, other than minor
errors, shall be supported by
1. an affidavit signed by one of the persons defined in 1200-07-01-.10(3)
setting forth the information to identify the certificate, the incorrect data as
it is listed on the certificate, and the correct data as it should appear; and 2.
one or more items of documentary evidence which support the alleged facts
and which were created at least five years prior to the date of the
application for amendment or within seven years of the date of the event,
i.e., birth, death, marriage or divorce related to the record.
Tenn. Dep’t of Health, Comp. R. & Regs. 1200-07-01-.10(2)(a), “Amendment of Vital
Records.” Furthermore, Regulation 1200-07-01-.10(3) provides that “[a]pplications to
amend the date of death or the medical certification of cause of death shall be made by
the physician who signed the medical certification or the medical examiner.”
Accordingly, Dr. Casady had the authority to amend the death certificate. Regardless,
Dr. Casady did not testify at trial, and the amended death certificate notwithstanding, we
agree with the State that it rebutted any presumption created by Dr. Seo’s death
certificate.
C. Dr. Mileusnic-Polchan’s Opinion. The Defendant maintains that Dr.
Mileusnic-Polchan’s “opinion regarding the cause of death [was] mere conjecture and
speculation.” According to the Defendant, Dr. Mileusnic-Polchan’s opinion was
“speculative because she ha[d] insufficient information” upon which to base her
knowledge “without an autopsy or any medical proof of [the victim’s] health prior to the
injury[.]” The Defendant notes that the victim suffered from a “number of questionable
illnesses and conditions” and that no toxicology report was performed.
Although an autopsy is not required, the State must still prove the corpus delicti
beyond a reasonable doubt. State v. Shepherd, 902 S.W.2d 895, 901 (Tenn. 1995).
Corpus delicti, meaning literally “the body of the crime,” consists of two elements: (1)
the death of a human being; and (2) a criminal agency in producing that death. State v.
Driver, 634 S.W.2d 601 (Tenn. Crim. App. 1981); see also State v. Ellis, 89 S.W.3d 584,
600 (Tenn. Crim. App. 2000). In establishing the corpus delicti, the State may proffer
testimony of an eyewitness to the act or rely purely on circumstantial evidence. Berry v.
State, 523 S.W.2d 371, 373 (Tenn. Crim. App. 1974). Regardless of the State’s method,
the evidence must show that death or disappearance was not occasioned by accident,
suicide, or natural causes. Shepherd, 902 S.W.2d at 901 (citing Davis v. State, 445
S.W.2d 933, 936 (Tenn. Crim. App. 1969)). “Whether the [S]tate has sufficiently
established the corpus delicti is primarily a jury question.” State v. Jones, 15 S.W.3d
880, 891 (Tenn. Crim. App. 1999). The corpus delicti was sufficiently established in this
case.
-31-
According to Dr. Mejia, the victim suffered a traumatic brain injury as a result of
the blow to the head, and the victim’s injuries were critical when he arrived at the
hospital on September 14, 2012. Dr. Mejia testified that, the victim’s injuries were
consistent with his being hit in the head with a baseball bat, and the injuries were the
result of “a significant force.” Because the victim developed a condition causing him to
have difficulty swallowing, which could cause aspiration and pneumonia and eventually
sepsis, Dr. Mejia placed a feeding tube in hopes of reducing the victim’s risk of
aspiration. Dr. Mejia stated that the victim did not have “any history of aspiration before
the accident,” and he was not malnourished upon admission. Furthermore, both Paul and
Ms. Ferrell testified that the victim did not have any difficulty swallowing prior to the
attack and described that he ate plentifully. Moreover, Paul, Mr. Brewer, and Ms. Ferrell
described that the victim was able to communicate and was in overall good physical
health prior to this incident.
The victim was released to the rehabilitation center two weeks after his admission
to the hospital. Dr. Seo described that the victim’s condition deteriorated quickly, and
the victim died six and a half weeks after the original injury. According to Dr. Seo, the
victim died from malnutrition and dehydration, “secondary to aspiration pneumonia[,]
secondary to head trauma.” Dr. Seo averred that the ultimate cause of the victim’s death
was blunt force trauma to the head rather than the immediate cause of death of aspiration
pneumonia despite what he stated in the death certificate. In addition, Dr. Seo stated that
the head trauma was an “obvious” contributor to the victim’s death.
Dr. Mileusnic-Polchan testified that, based upon her review of the victim’s
medical history and her knowledge of the victim’s “state of health” prior to the assault,
“all the complications . . . recorded in the victim’s medical records stem or come from the
blunt force head trauma.” Dr. Mileusnic-Polchan averred that “the complications” the
victim suffered from were “pretty typical for . . . direct trauma to the brain in the left
hemisphere.” She asserted that the immediate cause of the victim’s death, aspiration
pneumonia, was a complication of the original head trauma. Dr. Mileusnic-Polchan
opined to a reasonable degree of medical certainty that the victim’s cause of death was
“sequela result blunt force head trauma due to assault,” and she maintained that was how
she would have documented it in the death certificate. Dr. Mileusnic-Polchan classified
the victim’s death as a homicide.
The Defendant’s own expert, Dr. King, did not deny that the head trauma was a
possible cause of the victim’s death but was reluctant to state that it was the only cause.
Dr. King acknowledged that, “but for [the victim’s] being struck in the head with a bat,
he would not have been in the hospital with a feeding tube,” and that being bedridden can
lead to pneumonia and aspiration. While an autopsy may have been helpful, again, one is
not required as a prerequisite for a criminal conviction. We agree with the State that the
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Defendant is asking this court to reweigh the evidence and disregard the testimony
presented by the State establishing that the victim’s death was the direct result of the
Defendant’s striking the victim in the head with a baseball bat.
The State presented more than pure speculation. The jury as the trier of fact is
responsible for weighing the evidence presented at trial, and this court may not usurp that
role and place itself in the role of fact-finder. We hold that the evidence is legally
sufficient to support a jury’s finding that the Defendant’s conduct proximately caused the
victim’s death. See, e.g., State v. Thomas, 158 S.W.3d 361, 389 (Tenn. 2005) (appendix)
(finding evidence of causation sufficient where both medical examiners testified to the
injuries sustained by the victim from an April 21, 1997 gunshot wound to the head and
the impact of the gunshot upon the victim during the intervening period until the victim’s
death on October 2, 1999, from sepsis due to the rupture of his bladder); State v. Russell
Lee Maze, No. M2004-02091-CCA-R3-CD, 2006 WL 1132083, at *15-17 (Tenn. Crim.
App. Apr. 28, 2006) (concluding that the evidence—the five-week-old victim, who had
been in the defendant’s care, arrived at the hospital May 3, 1999, comatose with severe
and life-threatening injuries; the defendant admitted to shaking his son, although he
insisted that the shaking was not violent; the State’s expert testified that abusive, inflicted
head trauma was the only medically reasonable explanation for the victim’s injuries; and
the State elicited evidence of the infant’s condition from when he was discharged from
the hospital through the time of his death on October 25, 2000—was sufficient to support
convictions for aggravated child abuse and felony murder despite testimony from the
defense’s expert witness attempting “to persuade the jury that the victim’s death was
attributable to fatal liver disease, brain damage from Hepatitis B vaccine, and/or
deterioration in the victim’s diaphragm”).
III. Photograph of Victim’s Injuries
The Defendant submits that the “trial court erred by allowing the State to display
gruesome photographs of [the victim’s] head injury[,]” depicting “[the victim’s] head
with a gaping blood wound and blood.” The Defendant also references a “video [that]
was inherently prejudicial.” In support of his argument that the photographs and video
were improperly admitted, the Defendant cites to the following: (1) the “sole purpose” of
admitting these photographs “was to inflame the jury”; (2) while the “pictures may
corroborate that [the victim] had a head injury,” that fact “was undisputed”; (3) the
photographs “do not show the severity of injury,” and “the medical records were
sufficient to demonstrate the extent of the injury”; the photographs “in no way help
disprove [that the Defendant] acted in defense of a third person”; and “the photographs
do not prove the cause or manner of death.”
The State initially argues that the issue is waived because the Defendant did not
file a pre-trial motion to exclude the photograph and failed to make a contemporaneous
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objection to the admission of the photograph at trial. Alternatively, addressing the issue,
the State responds that the trial court did not abuse its discretion in admitting “a single
photograph” of the victim’s injuries that was “not gruesome, inflammatory, or otherwise
unfairly prejudicial.” The State asserts that the photograph “was highly probative of the
nature of the injury” because the Defendant “focused his defense on the premise that [the
victim’s] death was not the result of the blow to the head inflicted by the [D]efendant”
and, thus, “the severity of the wound was at issue[.]”
First, we must address the State’s allegation of waiver. After the State filed its
appellate brief, the Defendant supplemented the record with a January 22, 2016 motion
titled “Motion in Limine to Exclude Photographs and Video of Decedent’s Injuries.” The
Defendant sought to exclude these items as irrelevant and, even if relevant, the items
were “gruesome in nature” and would “serve no other purpose but to inflame the jury.”
Neither a transcript of a hearing on this motion nor an order by the trial court adjudicating
said motion is present in the appellate record. Moreover, the State correctly notes that
only a single photograph of the victim’s injuries was admitted into evidence at trial. In
addition, there is no mention of a video recording during the trial.
At trial, the photograph was first admitted upon redirect examination of Mr.
Brewer. Prior to showing Mr. Brewer the photograph, defense counsel said, “Same
objection as before, Your Honor[,]” to which the trial court responded, “Okay, we’ve
ruled on that.” The prosecutor then asked Mr. Brewer, “Show you a photograph and ask
if you recognize what’s in that photograph?” Mr. Brewer answered affirmatively and
confirmed that the photograph depicted “the way [the victim] looked after he was hit[.]”
The photograph was then introduced as an exhibit. Ms. Ferrell was likewise shown the
photograph and agreed that it illustrated her depiction of the victim’s injuries, “like his
eye was coming out[.]”
In addition, Dr. Mejia was asked about the photograph on direct examination. The
prosecutor showed Dr. Mejia the photograph and asked him to explain why “the
laceration [was] over the [the victim’s] left eye . . . but the right eye [was] completely
black and swollen shut.” Dr. Mejia said, “[T]hat’s a sign of basic, basic skull fracture.
Fractures to the base of the skull, patients are going to develop those raccoon eyes, and
they’re going to develop also vital signs, which are blood pooling behind the eyes. He
did have a basic skill fracture. His ethmoid bone was fractured and that will cause a
pooling of the blood around the eyes[.]”
Dr. Mileusnic-Polchan was also shown the photograph and asked if the injuries in
the picture were “consistent with the injuries that [she] reviewed in the medical chart.”
She answered affirmatively, explaining that there was “a large stellate laceration” on the
victim’s left forehead, that the skull was fractured underneath the laceration, and that the
skull fracture caused the victim’s “raccoon eyes[.]”
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During the Defendant’s proof, Dr. King confirmed that he had seen the photograph
and agreed that the victim’s injuries reflected therein were consistent with being struck in
the head with a baseball bat. When Ms. Heflin testified that the victim was “fine” after
being hit, the prosecutor showed her the photograph and asked, “You thought that man
was fine?” Ms. Heflin responded, “When I got back in the truck hysterical, because he
had just told me what he was going to do to me, I assumed he was fine.”
Accordingly, while it appears that defense counsel did lodge a contemporaneous
objection to admission of the photograph at trial, the basis for the trial court’s ruling is
not apparent from the record before this court. The trial court’s statement, “Okay, we’ve
ruled on that[,]” indicates that a prior discussion had taken place; however, we have no
transcript of that colloquy. A party seeking appellate review has a duty “to prepare a
record which conveys a fair, accurate and complete account of what transpired with
respect to the issues forming the basis of the appeal.” State v. Ballard, 855 S.W.2d 557,
560 (Tenn. 1993). Failure to prepare a complete record precludes appellate review. See
id. Consequently, the State is correct that this issue is reviewable only for plain error.
The plain error doctrine states that, “[w]hen necessary to do substantial justice, an
appellate court may consider an error that has affected the substantial rights of a party at
any time, even though the error was not raised in the motion for a new trial or assigned as
error on appeal.” Tenn. R. App. P. 36(b). In order for this court to find plain error,
(a) the record must clearly establish what occurred in the trial court; (b) a
clear and unequivocal rule of law must have been breached; (c) a
substantial right of the accused must have been adversely affected; (d) the
accused did not waive the issue for tactical reasons; and (e) consideration of
the error is “necessary to do substantial justice.”
State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d
626, 641-42 (Tenn. Crim. App. 1994)). “It is the accused’s burden to persuade an
appellate court that the trial court committed plain error.” State v. Bledsoe, 226 S.W.3d
349, 355 (Tenn. 2007) (citing United States v. Olano, 507 U.S. 725, 734 (1993)). “[T]he
presence of all five factors must be established by the record before this [c]ourt will
recognize the existence of plain error, and complete consideration of all the factors is not
necessary when it is clear from the record that at least one of the factors cannot be
established.” Smith, 24 S.W.3d at 283.
“Tennessee courts follow a policy of liberality in the admission of photographs in
both civil and criminal cases.” State v. Morris, 24 S.W.3d 788, 810 (Tenn. 2000).
Accordingly, the admissibility of photographs generally lies within the sound discretion
of the trial court and will not be overturned on appeal absent a clear showing that the trial
court abused its discretion. State v. Faulkner, 154 S.W.3d 48, 67 (Tenn. 2005); State v.
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Banks, 564 S.W.2d 947, 949 (Tenn. 1978). In order to be admitted as evidence, a
photograph must be relevant to an issue at trial. Tenn. R. Evid. 402; State v. Braden, 867
S.W.2d 750, 758 (Tenn. Crim. App. 1993). Evidence is relevant if it has “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.
A relevant photograph is generally admissible under Tennessee Rule of Evidence
402, unless 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. The term “unfair prejudice” has been defined as “[a]n undue tendency to suggest
decision on an improper basis, commonly, though not necessarily, an emotional one.”
Banks, 564 S.W.2d at 951. In deciding whether to admit photographs, the trial court
must consider the questions of fact that the jury will have to consider in determining the
accused’s guilt, as well as other evidence that has been introduced during the course of
the trial. State v. Williamson, 919 S.W.2d 69, 78 (Tenn. Crim. App. 1995).
Here, the Defendant was charged with second degree murder and aggravated
assault. While the picture is unpleasant as it depicts the victim’s face deformed by his
injuries, we do not find that the picture is so gruesome as to have unduly inflamed the
members of the jury. Both the significance of the injury and the force used by the
Defendant were relevant to establish the Defendant’s intent, as well as to rebut the
Defendant’s claim of defense of a third person and that he did not aim at the victim but
merely swung to free Ms. Heflin. See State v. William Valentine, No. E2014-00522-
CCA–R3-CD, 2015 WL 12978634, at *10 (Tenn. Crim. App. Apr. 9, 2015) (holding that
photographs of the victim’s scars were relevant to establish the defendant’s premeditation
and intent, as well as to rebut the defendant’s claims that he shot the victim in self-
defense, that he did not aim at the victim, and was shooting haphazardly at the car).
Moreover, the Defendant forcefully disputed the victim’s cause of death at trial; thus, the
severity of the wound was at issue. Additionally, the State was required to prove that the
Defendant suffered serious bodily injury in order to satisfy its burden for the aggravated
assault conviction. Id. (citing Tenn. Code Ann. §§ 39-13-101, -102). For all of these
reasons, we conclude that the trial court did not err in admitting the photograph of the
victim’s injuries. Therefore, no clear and unequivocal rule of law was breached, and the
Defendant is not entitled to plain error relief.
IV. Prosecutorial Misconduct
As his final issue, the Defendant submits that “the State committed prosecutorial
misconduct by alluding to the amended death certificate” during cross-examination of Dr.
King. The Defendant affirms that “[t]he trial court had previously excluded the delayed
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diagnosis report drafted by Dr. Casady,” but he acknowledges that “[a] written order was
never filed and a transcript of the hearing is not a part of the record.” Nonetheless, the
Defendant maintains that the amended death certificate was testimonial in nature and that
“[t]he State never intended to call Dr. Casady at trial.” According to the Defendant, the
prosecutor, on cross-examination of Dr. King, “went too far knowing that [the]
Defendant had previously objected and filed pleadings regarding the introduction of the
amended death certificate.”
The State again argues that the issue is waived due to the lack of a complete
record. Alternatively, addressing the issue, the State counters that “Dr. King’s comments
had the potential to mislead the jury and give the impression that Dr. Casady essentially
concurred in Dr. King’s opinion[,]” and thus, “at the very least the [D]efendant opened
the door to questioning about what Dr. King knew about Dr. Casady’s involvement in the
case.” In addition, the State notes that it never sought to enter the amended death
certificate into evidence and that the Defendant has not cited “a single authority
establishing” that cross-examining a witness about a document “to which the witness has
opened the door” is prosecutorial misconduct.
At trial, the prosecutor first referenced the amended death certificate during the
direct testimony of Dr. Mileusnic-Polchan when he asked, “And Doctor, let me show you
another document, one that was done later by Dr. Casady, and I believe she had the—
what does she have as the . . . .” Defense counsel then lodged an objection, stating that
the document was testimonial and that the court had already excluded the document.
However, the prosecutor had no recollection of such a ruling. The trial court asked
defense counsel, “When did I exclude it?” and defense counsel averred “last week.” The
State then withdrew its intention to admit the amended death certificate at that time.
Although defense counsel maintained that “[t]he damage ha[d] been done,” the trial court
disagreed, saying that “no damage [had] been done” because “[t]he jury ha[d] not seen
the document.”
Dr. King opined on direct examination that he could not say to “a reasonable
degree of medical certainty” that the head trauma caused the victim’s death. Dr. King
affirmed that his opinion was at odds with Dr. Mileusnic-Polchan’s. Dr. King testified
that he had spoken with both Dr. Mileusnic-Polchan and Dr. Casady approximately two
weeks prior to trial. According to Dr. King, Dr. Casady told him that she did not “issue a
report[] because she didn’t see the body [and] she didn’t investigate,” and Dr. Mileusnic-
Polchan said to him “she wouldn’t feel comfortable saying what the cause of death” was
in this case without an autopsy.
During cross-examination, Dr. King acknowledged Dr. Seo’s trial testimony that,
in addition to Dr. Seo’s listing “pneumonia and aspiration” as the cause of death, Dr. Seo
would have further said “that basically [the victim] died because of the blunt force trauma
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that led to those conditions[.]” Dr. King then noted that Dr. Seo “disagree[d] with
himself,” that Dr. Seo “didn’t write [that] on the death certificate,” that Dr. Seo “didn’t
make any effort to have that documented,” and that, if that was indeed Dr. Seo’s opinion
about the cause of death and the circumstances,” then “he should have put it [on] there.”
The prosecutor then responded, “That’s just a piece of paper. It does not change the facts
of it. As a matter of fact, you talked to Dr. Casady and she did an amended one and
submitted that where she did find it was [a] homicide, didn’t she?” Dr. King said, “Yeah.
That’s a whole other problem.” Defense counsel then objected, and a bench conference
ensued.
Defense counsel stated, “You excluded that. He brought it up in connection
against him, it’s testimonial in nature and I don’t have an opportunity to cross-examine
Dr. Casady.” The trial court replied, “[T]he discussion is just whether or not a piece of
paper ought to be the final answer to the question,” and “I think he has a right to probe
[Dr. King] on that issue.” Defense counsel again averred, “Judge, you excluded it last
week,” to which the trial court said, “I’m not sure why I excluded it.” Thereafter, the
prosecutor noted that he had no intention on introducing the document itself but merely
wanted to question Dr. King about his conversation with Dr. Casady that Dr. King had
alluded to on direct. The trial court then ruled, “I think if . . . he’s going to say what he
discussed with Dr. Casady then they can go further, so I deny your motion.” The bench
conference concluded, and Dr. King testified that regardless of what was written on either
certificate it did not “change the facts of the case.” Dr. King then described the
procedure for filing an amended death certificate.
While the Defendant did supplement the record with a “Motion in Limine to
Exclude Report of Delayed Diagnosis,” the record still does not contain any reasoning by
the trial court for excluding the amended death certificate. As noted by the Defendant,
there is no transcript or order in the appellate record concerning this issue. Based upon
the record before us, the trial court’s reasoning for originally excluding the amended
death certificate is not apparent from the record before this court. Moreover, the trial
court did not recall ever ruling on the issue. Again, a party seeking appellate review has
a duty “to prepare a record which conveys a fair, accurate and complete account of what
transpired with respect to the issues forming the basis of the appeal[,]” and failure to
prepare a complete record precludes appellate review. See Ballard, 855 S.W.2d at 560.
The State is once more correct that the issue is reviewable only for plain error. See Tenn.
R. App. P. 36(b) (“When necessary to do substantial justice, an appellate court may
consider an error that has affected the substantial rights of an accused at any time, even
though the error was not raised in the motion for a new trial or assigned as error on
appeal.”).
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On appeal, the Defendant focuses on the testimonial nature of the amended death
certificate and does not cite to any case that cross-examining a witness about a document
“to which the witness has opened the door” is prosecutorial misconduct. While the
Defendant acknowledges the lack of a transcript or an order dealing with the issue, the
Defendant makes no argument that we should review this issue for plain error. The
Defendant cites to State v. James Michael Flinn, No. E2009-00849-CCA-R3-CD, 2013
WL 6237253, at *63 (Tenn. Crim. App. Dec. 3, 2013), abrogated on other grounds by
State v. Jackson, 444 S.W.3d 554, 590 n.50 (Tenn. 2014), wherein this court held that a
death certificate was testimonial in nature. The Flinn court reasoned, “A physician
preparing a death certificate in a homicide case could reasonably conclude that the
certificate would be available for use at a trial. . . . We note that although the record
established that Dr. Blake was unavailable, there was no evidence of a prior opportunity
for cross-examination.” The Defendant also cites to Hutchinson, 482 S.W.3d at 906, as
supporting his allegation that “[t]he primary purpose of Dr. Casady’s amended death
certificate was to prove past events for criminal prosecution and not to meet an ongoing
emergency.”
Despite the Defendant’s argument, the trial court allowed the State to ask about
the amended death certificate in response to Dr. King’s answers on direct examination.
Evidence that is not admissible may be admitted if the defendant “opens the door” by
putting the issue into controversy. State v. Gomez, 367 S.W.3d 237, 246 (Tenn. 2012)
(finding that “[e]ven if evidence is inadmissible, a party may ‘open the door’ to
admission of that evidence.”). A party commonly opens the door “by raising the subject
of that evidence at trial.” Id. Our supreme court has explained, “[w]hen a party raises a
subject at trial, the party ‘expand[s] the realm of relevance,’ and the opposing party may
be permitted to present evidence on that subject.” Id. (quoting 21 Charles Alan Wright et
al., Federal Practice & Procedure Evidence § 5039.1 (2d ed. 1987)).
Although raising a subject at trial is one manner of opening the door to otherwise
inadmissible evidence, the concept of “opening the door” is “notoriously imprecise.”
State v. Gomez, 367 S.W.3d 237, 246 (Tenn. 2012) (quoting 21 Charles Alan Wright et
al., Federal Practice & Procedure Evidence § 5039)). In addition,
[a]lthough the doctrine arises from the common law tradition of evidence,
cf. Roger C. Park et al., Evidence Law § 1.11 (3d ed. 2011) (describing
“curative admissibility” as a common law doctrine), our Rules of Evidence
contain numerous examples by which otherwise inadmissible evidence may
become admissible as a result of the action of a party in the case.
Id. For example, if evidence of prior bad acts of a defendant is inadmissible, the
defendant may open the door to admission of that evidence by putting his character at
issue. Id. (citing Tenn. R. Evid. 404(a)(1), (2); see also Tenn. R. Evid. 405(a)). A party
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may also “open the door” to evidence of a witness’s truthful character by attacking the
reputation of a witness for truthfulness. Id. (citing Tenn. R. Evid. 608(a)). In short,
“opening the door” is an equitable principle that permits a party to respond to an act of
another party by introducing otherwise inadmissible evidence. Id.
In the context of otherwise inadmissible hearsay, this court has frequently utilized
the “doctrine of curative admissibility” and concluded that the hearsay statements were
properly admitted during redirect examination. State v. Land, 34 S.W.3d 516, 530 n.11
(Tenn. Crim. App. 2000) (“Although Tennessee has not expressly adopted the doctrine of
curative admissibility, previous decisions of this court reflect an implicit adoption of the
same.”) (citing State v. Chearis, 995 S.W.2d 641, 645 (Tenn. Crim. App. 1999) (officer
permitted to testify on redirect examination to previously excluded evidence because
defense “opened the door” by eliciting on cross-examination the basis for the search of
the defendant); Harrison v. State, 527 S.W.2d 745, 748 (Tenn. Crim. App. 1975) (defense
called Chancery Court Clerk to testify regarding certain divorce matters between
defendant and deceased, defense counsel did not introduce petition as exhibit, State
permitted to cross-examine clerk on specific allegations in bill, since defense counsel had
“opened the door”); State v. Raymond L. Covington, No. 01C01-9109-CC-00267, 1992
WL 99060 (Tenn. Crim. App. May 13, 1992) (defense counsel opened door by direct
questioning of witness, prosecutor was entitled to rebut the appellant’s insinuation by
showing that the tape was not beneficial to either State or defense)). But cf. State v.
Elliot Fullilove, No. W2009-01113-CCA-R3-CD, 2010 WL 4538122, at *5 (Tenn. Crim.
App. Nov. 2, 2010) (declining to adopt the doctrine of curative admissibility). The Land
court further observed that “[s]pecifically, in a criminal case, ‘[t]he rule operates to
prevent an accused from successfully gaining exclusion of inadmissible prosecution
evidence and then extracting selected pieces of this evidence for his own advantage,
without the Government being able to place them in their proper context.’” 34 S.W.3d at
531 (quoting Lampkins v. United States, 515 A.2d 428, 431 (D.C. 1986)). The scope of
the State’s redirect examination, however, is limited to “[o]nly that evidence which is
necessary to dispel the unfair prejudice resulting from the cross-examination.” Id. at 531-
532. In light of this jurisprudence, we cannot say that the trial court breached a clear and
unequivocal rule of law by allowing the State to inquire about the contents of the
amended death certificate.
In addition, the amended death certificate was never admitted as an exhibit at trial,
and, therefore, we decline to delve into a lengthy discussion of whether the document
itself is testimonial in nature. There was only a brief mention of the amended death
certificate by Dr. King. Both Drs. Seo and Mileusnic-Polchan testified that the victim’s
cause of death was due to events occurring from the head trauma despite Dr. Seo’s
conclusion in the original death certificate. Dr. King challenged both Drs. Seo’s and
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Mileusnic-Polchan’s conclusions, as well as Dr. Casady’s in the amended death
certificate. We conclude that plain error relief is not necessary to do substantial justice.
CONCLUSION
For the foregoing reasons, the judgments of the trial court are affirmed.
_________________________________
D. KELLY THOMAS, JR., JUDGE
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