State of Tennessee v. Kimberly Mangrum

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs November 10, 2010

STATE OF TENNESSEE v. KIMBERLY MANGRUM

Direct Appeal from the Circuit Court for Dickson County

No. CR7087A George Sexton, Judge

No. M2009-01810-CCA-R3-CD - Filed November 9, 2011

Defendant, Kimberly Mangrum, was indicted by the Dickson County Grand Jury for

especially aggravated burglary, especially aggravated kidnapping, first degree premeditated

murder, felony murder, and four counts of criminal conspiracy, related to the commission of

each of those offenses. Following a jury trial, Defendant was convicted of aggravated

burglary, especially aggravated kidnapping, attempted first degree premeditated murder, and

felony murder. Her conviction for attempted first degree premeditated murder was merged

into her felony murder conviction, and she was sentenced to life imprisonment for her first

degree felony murder conviction, twenty-five years for especially aggravated kidnapping, and

six years for aggravated burglary, with the sentences to be served concurrently. In this direct

appeal, Defendant challenges the sufficiency of the convicting evidence and asserts that the

trial court erred by not dismissing the indictment following what, Defendant contends, was

the State’s misuse of the grand jury proceedings. After a thorough review of the record, we

affirm the judgments of the trial court.

Tenn. R. App. P. Appeal as of Right; Judgments of the Circuit Court Affirmed

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J AMES C URWOOD

W ITT, J R. and A LAN E. G LENN, JJ., joined.

William Bradley “Jake” Lockert, III, District Public Defender; and Christopher L. Young,

Assistant District Public Defender, for the appellant, Kimberly Mangrum.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paducah Stempel, Assistant

Attorney General; Dan Mitchum Alsobrooks, District Attorney General; and Suzanne M.

Lockert, Assistant District Attorney General, for the appellee, the State of Tennessee.

OPINION

Facts

The victim in this case, LeeAnn Mangrum, was the ex-wife of Defendant’s husband

and co-defendant Terry Mangrum, Sr. The victim and Mr. Mangrum had two children of

their marriage, Terry Mangrum, II, and A.M. (who will be referred to by her initials in this

opinion because of her age). The children had previously lived with the victim but had been

removed from her custody by the Department of Children’s Services and placed in the home

of Defendant and their father. Due to the similarity of their names, Terry Mangrum, Sr. will

be referred to as “Mr. Mangrum,” and Terry Mangrum, II as “Terry.”

Terry, also charged with the murder of his mother, (he was transferred from juvenile

court to be tried as an adult) was 17 years old at the time of Defendant’s trial. He testified

that Defendant had a history of being violent and making threats toward both the victim and

himself. He had seen Defendant curse and call the victim names and threaten her with

violence. Defendant also paddled Terry with a wooden board if he did not obey her, and on

one occasion, Defendant burned him with her cigarette. Defendant had ordered him not to

speak to his mother. He was afraid of Defendant. Terry testified that he was offered the

opportunity to plead guilty to a reduced charge of second degree murder for his testimony

that he acted under duress by Defendant.

On September 7, 2002, the victim met some friends at a local bar to watch a football

game. She left the bar between 11:30 p.m. and midnight. That same night, she called her

mother, Betty Wade, from a friend’s cell phone between 9:00 and 9:30 p.m. and made

arrangements to meet her at church the next morning. Ms. Wade testified that she received

a phone call from the victim’s cell phone at 5:20 a.m. the following morning, and an

unfamiliar voice that was not her daughter’s said, “Mama, please help me. I’m scared.” Ms.

Wade contacted the victim’s neighbor, Agnes Sullivan. Ms. Sullivan testified that the

victim’s vehicle was not at home. The following afternoon, Ms. Sullivan went inside the

victim’s home, using a spare key that she had, and found the home in disarray. She testified

the home looked “ransacked.”

In the early morning hours of September 8, 2002, Defendant woke up Terry and told

him to go with her. He and his sister, A.M., got into Defendant’s car, and Defendant began

driving around. She drove by the victim’s trailer, but the victim was not there. As they were

driving away, they passed the victim in her Jeep, and Defendant turned around and followed

the victim home. Defendant grabbed a baseball bat from behind her seat and began beating

the victim’s vehicle with it. Defendant yelled at Terry and A.M. to get out of the car. The

victim tried to drive away, and Defendant burst the passenger side window with the bat.

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Defendant then broke the driver side window and pulled the victim out of her vehicle by her

hair. Defendant punched the victim in the face and beat her with the baseball bat until she

was unconscious. She then found a piece of wood and ordered Terry to hit her with it. He

testified that he did not want to hit his mother with the wood, but Defendant “made [him] hit

her.” Defendant told A.M. to get some rope out of her car and told Terry to help tie up the

victim. She threatened Terry that if he did not follow her orders he would end up in the

“same situation.” While the victim was still unconscious, Defendant and Terry tied the

victim’s hands behind her back and put her in the backseat of her Jeep. Defendant then told

Terry to drive his mother’s Jeep and follow her in her Mustang. They drove down a rocky,

dirt road and parked beside a creek. Terry and Defendant pulled the victim out of the car and

laid her beside the water. Defendant told A.M. to get Defendant’s medications from her car.

Defendant and Terry shoved pills down the victim’s throat and pushed her into the water.

Defendant threatened to kill Terry if he did not put his foot on the victim and hold her

underwater to make sure she was dead. Defendant then drove the victim’s Jeep into the

water.

Defendant, Terry, and A.M. left in Defendant’s Mustang. Defendant told Terry to

throw his shirt, the rope, and a cell phone out of the window as they drove away. Defendant

drove back to the victim’s trailer because she had left the baseball bat there. On the way

there, she told Terry and A.M. “over and over” to “keep their mouths shut [and] it would be

okay and . . . all blow over and nobody [would] ever know about it.” When they arrived at

the victim’s trailer, Defendant stated that they were going to go inside to see if the victim had

any money. Defendant gave Terry a screwdriver from her car and told him to pry open the

door, but he could not pry it open, so she told him to break the window with the screwdriver.

Terry broke the window and lifted A.M. through the window in order to let Defendant inside

the trailer. Once inside, Defendant broke things and knocked over things inside the victim’s

home. Defendant and A.M. filled four trash bags with the victim’s clothes and jewelry and

left the victim’s residence.

The following day, Terry and A.M. washed Defendant’s Mustang, and Defendant

concocted a story for them to tell the authorities. Sometime later, Defendant learned of a

search warrant to obtain Defendant’s DNA, and Defendant took Terry and A.M. to live in

North Carolina. After they returned to Tennessee one month later, the police obtained DNA

samples from Defendant and Terry pursuant to a search warrant. Defendant became

increasingly paranoid and “made” Terry write a statement admitting that he had killed his

mother. Terry testified that Defendant stuck him in the side with a knife while he wrote the

statement. On another occasion, Terry missed the school bus, and Defendant sat on him

while cutting his neck with a coat hanger.

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A fisherman found the victim’s body and her partially submerged Jeep in Turnbull

Creek on the afternoon of September 8, 2002. Police were called to investigate. The

victim’s injuries included multiple blunt force traumas to the head and contusions on the

abdomen, torso, and buttocks. Her injuries were consistent with being hit with a baseball bat.

She died from drowning. Defendant’s DNA was found on a recently deposited cigarette butt

found outside the victim’s home. A drop of blood found on a window at the victim’s home

matched Terry’s DNA, and his fingerprints and A.M.’s palm print matched latent prints taken

from a broken piece of window pane. Latent prints were also taken from the victim’s Jeep,

but none of the prints were identified as belonging to either Defendant, the victim, or Terry.

A.M. testified that Defendant made them wear gloves during the incident.

Sufficiency of the Evidence

Defendant challenges the sufficiency of the convicting evidence. Specifically,

Defendant asserts that there was insufficient evidence of premeditation. The State responds

that Defendant’s conviction was for felony murder in the perpetration of a kidnapping, rather

than first degree premeditated murder. The record shows that Defendant was convicted of

felony murder and attempted first degree premeditated murder, and the trial court

appropriately merged her conviction for attempted first degree premeditated murder into her

conviction for felony murder. Therefore, the State is correct in that evidence of

premeditation is not necessary in order to sustain Defendant’s conviction.

Although Defendant does not specifically challenge her convictions for felony murder

or especially aggravated kidnapping, we conclude that the evidence was sufficient to sustain

both convictions. When an accused challenges the sufficiency of the convicting evidence,

our standard of review is whether, after reviewing the evidence in a 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, 99 S. Ct. 2781, 2789,

61 L. Ed. 2d 560 (1979). The trier of fact, not this Court, resolves questions concerning the

credibility of the witnesses, and the weight and value to be given the evidence as well as all

factual issues raised by the evidence. State v. Tuttle, 914 S.W.2d 926, 932 (Tenn. Crim. App.

1995). Nor may this Court reweigh or re-evaluate the evidence. State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978). On appeal, the State is entitled to the strongest legitimate

view of the evidence and all inferences drawn therefrom. Id. Because a verdict of guilt

removes the presumption of innocence and replaces it with a presumption of guilt, the

accused has the burden in this Court of illustrating why the evidence is insufficient to support

the verdict returned by the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

Felony murder is defined as “[a] killing of another committed in the perpetration of

or attempt to perpetrate any . . . kidnapping.” Tenn. Code Ann. § 39-13-202(a)(2).

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“Especially aggravated kidnapping is false imprisonment, as defined in § 39-13-302, [w]here

the victim suffers serious bodily injury.” Tenn. Code Ann. § 39-13-305. False imprisonment

is the knowing removal or confinement of “another unlawfully so as to interfere substantially

with the other’s liberty.” Tenn. Code Ann. § 39-13-302.

Viewed in the light most favorable to the State, the record shows that Defendant beat

the victim unconscious by repeatedly hitting the victim with a baseball bat and a piece of

wood. As a result of the beating, the victim suffered blunt force trauma to the head, bleeding

in the skull, and multiple skin contusions. Defendant and Terry tied the victim up with rope,

and Defendant ordered Terry to assist her in putting the unconscious victim in the Jeep.

Terry then drove the victim’s Jeep and followed Defendant to a creek where he and

Defendant placed the victim in the water and she drowned. Accordingly, the evidence is

sufficient to support Defendant’s conviction.

Defendant only briefly addresses, without any citation to authority, the issue of

whether there was sufficient evidence to corroborate the testimony of Terry and A.M., who

were accomplices. She argues that the only corroborating evidence is Defendant’s DNA on

a cigarette butt found in the victim’s yard. In its brief, the State fails to respond to the issue.

It is well settled in Tennessee that “a conviction may not be based solely upon the

uncorroborated testimony of an accomplice.” State v. Shaw, 37 S.W.3d 900, 903 (Tenn.

2001) (citing State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994)). This “very salutary rule”

is designed to prevent the “obvious dangers” of allowing a defendant to be convicted solely

on the basis of an accomplice’s testimony. Sherrill v. State, 204 Tenn. 427, 321 S.W.2d 811,

814 (Tenn. 1959). However, Tennessee law requires only a modicum of evidence in order

to sufficiently corroborate the testimony of an accomplice. State v. Copeland, 677 S.W.2d

471, 475 (Tenn. Crim. App. 1984). With respect to the nature, quality, and sufficiency of the

evidence necessary to corroborate an accomplice’s testimony, this Court has held as follows:

The rule of corroboration as applied and used in this State is that there must

be some evidence independent of the testimony of the accomplice. The

corroborating evidence must connect, or tend to connect the defendant with

the commission of the crime charged; and, furthermore, the tendency of the

corroborative evidence to connect the defendant must be independent of any

testimony of the accomplice. The corroborative evidence must of its own

force, independently of the accomplice’s testimony, tend to connect the

defendant with the commission of the crime.

....

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The evidence corroborating the testimony of an accomplice may consist of

direct evidence, circumstantial evidence, or a combination of direct and

circumstantial evidence. The quantum of evidence necessary to corroborate

an accomplice’s testimony is not required to be sufficient enough to support

the accused’s conviction independent of the accomplices testimony nor is

it required to extend to every portion of the accomplice’s testimony. To the

contrary, only slight circumstances are required to corroborate an

accomplice’s testimony. The corroborating evidence is sufficient if it

connects the accused with the crime in question.

State v. Griffis, 964 S.W.2d 577, 588-89 (Tenn. Crim. App. 1997) (citations omitted).

The proof necessary to corroborate the accomplice’s testimony must include “some

fact testified to, entirely independent of the accomplice’s testimony, which, taken by itself,

leads to the inference, not only that a crime has been committed, but also that the defendant

is implicated in it; and this independent corroborative testimony must also include some fact

establishing the defendant’s identity.” Shaw, 37 S.W.3d at 903 (quoting Bigbee, 885 S.W.2d

at 803). In other words, the corroboration must include some fact establishing the identity

of the defendant as a criminal actor. Boxley, 76 S.W.3d at 387. It is generally for the trier

of fact to determine whether sufficient corroboration exists. Id. (citing Shaw, 37 S.W.3d at

903). Where there are multiple accomplices there must be additional corroboration, since

accomplices cannot corroborate each other. State v. Green, 915 S.W.2d 827, 831 (Tenn.

Crim. App. 1995) (citing Bethany v. State, 565 S.W.2d 900 (Tenn. Crim. App. 1978)).

In this appeal, neither party identifies as an issue whether A.M., the victim’s minor

daughter who was not charged, is actually an accomplice. If it were determined that she was

not an accomplice, her testimony need not be corroborated. This Court has previously held:

An accomplice is one who knowingly, voluntarily, and with common intent

unites with the principal offender in the commission of a crime. Conner v.

State, 531 S.W.2d 119 (Tenn. Crim. App. 1975). The test is whether or not

the alleged accomplice can be indicted for the offense. If, however, the

witnesses’ participation in the crime is the result of force, coercion, duress,

or undue influence so that the participant does not act voluntarily, with the

same intent as the principal, then the witness is not an accomplice.” Henley

v. State, 489 S.W.2d 53 (Tenn. Crim. App. 1972).

Green, 915 S.W.2d at 831.

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The question of whether a participant is an accomplice or whether the participant

acted under duress is a question of fact for the jury’s determination. Id. at 831-32 (citations

omitted). There is nothing in the record before us to indicate that the jury considered whether

A.M. was an accomplice. The record shows that she was granted immunity by the State and

therefore was not charged with any offense. The trial court’s jury instructions, however, are

not included in the record. Therefore, we cannot determine whether the jury was instructed

that accomplice testimony must be sufficiently corroborated. We believe that the facts in this

case sufficiently raise the question of whether A.M. was an accomplice. Had the jury

concluded that A.M. was not an accomplice, it could have given her testimony the same

weight as any other witness without the requirement of corroboration. Id.

Nevertheless, after carefully considering the proof in the record before us, we

conclude that the accomplices’ testimony was sufficiently corroborated. Defendant’s DNA

was on a cigarette butt found in the victim’s yard. TBI Agent Joe Minor testified that he had

been employed by the TBI Forensic Services Division for 21 years. Defendant stipulated as

to Agent Minor’s expertise. As a then DNA supervisor, he was the team leader in this case

and went to the first crime scene, the victim’s residence, to document and gather evidence

to be tested. The cigarette butt was found beside a tree stump behind the victim’s trailer.

Agent Minor testified that, based on the condition of the cigarette butt, it had been there only

24 to 48 hours prior to having been recovered by investigators the day after the crimes

occurred.

Evidence that Defendant’s DNA was found on a “fresh” cigarette butt at the crime

scene clearly establishes that Defendant was present at the victim’s home during the time

frame of the crimes. Further review of the evidence reveals that Defendant gave three

separate interviews to investigators. In an interview on September 9, 2002, the day after the

crimes, Defendant told Detective B.J. Gafford that the victim had been at Defendant’s house

in the early morning hours of September 8th . She was accompanied by a man named “Bob”

with “salt and pepper” hair, who drove a Mustang vehicle, dark in color, that was two or

three years newer than Defendant’s Mustang, and had a Harley Davidson plate on the front,

just like the Harley Davidson plate on Defendant’s Mustang. Defendant told the detective

that “Bob” looked “evil.” She said she had given the victim a Klonopin, and she told the

detective that she could not find her pill bottle and that the victim might have stuck it in the

victim’s purse. She also speculated that the victim might have driven home a “back way.”

In a subsequent interview on February 11, 2004, Defendant again stated that the “salt and

pepper” haired man with the victim on the night she was murdered had driven a “car like

[hers]” also with plates like hers. In that same interview, and in a subsequent interview on

February 24, 2004, Defendant told TBI Agent Joe Craig that she had been to the victim’s

home approximately two weeks before she was murdered. Defendant also told Agent Craig,

without being asked, “I was smoking that day. I’ll go ahead and tell you that.”

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Defendant’s statements to investigators, while certainly not sufficient alone to prove

Defendant’s guilt, do tend to connect Defendant with the commission of the offense because

they show Defendant’s guilty knowledge. The jury could reasonably infer that in

Defendant’s first statement to an investigator, she was concerned that a witness might have

told law enforcement that a vehicle matching the description of Defendant’s vehicle had been

seen in the proximity of the victim’s home or the location of where the victim’s body was

found. The jury could also infer that Defendant had misplaced her prescription pill bottle,

and gave an explanation of why it might be found near the victim. Furthermore, the jury

could infer that Defendant knew the location of where the victim’s body was found and tried

to give an exculpatory explanation to officers that the victim might have driven home a “back

way.” Finally, by the time of the second interview, Defendant was aware that a cigarette butt

had been found and seized in the victim’s yard. At this second interview, she gave an

unsolicited comment that she had been smoking during a visit to the victim’s home

approximately two weeks before the homicide.

The corroborating evidence “need not be adequate, in and of itself, to support a

conviction” and may be only “slight and entitled, when standing alone, to little

consideration.” Green, 915 S.W.2d at 831 (quoting Hawkins v. State, 4 Tenn. Crim. App.

121, 469 S.W.2d 515, 520 (1971). We conclude that Defendant’s statements, taken together

with the DNA evidence, sufficiently corroborate the accomplices’ testimony. Defendant is

not entitled to relief on this issue.

Defendant also asserts on appeal, as part of her argument as to the sufficiency of the

evidence, that the trial court erred by not allowing her to use demonstrative evidence at trial

in the form of a 177-pound dummy, the same height and weight of the victim, to demonstrate

Defendant’s ability, or inability, to lift and carry the unconscious victim. Defendant asserts

that this evidence was relevant “in light of [the] State’s proof in regard to [D]efendant’s

strength testified to by Ronald Durham.” This is the totality of Defendant’s argument on this

issue. In her brief, Defendant then asserts that Mr. Durham’s testimony was not relevant.

Mr. Durham testified that he lived across the street from the Mangrums before and during

the time of the incident and that he noticed a difference in how often he saw Terry and A.M.

after Defendant married their father. He testified that prior to Defendant living there, he saw

the children frequently with Mr. Mangrum, and afterwards, he saw them very infrequently

and on those occasions it was always with Defendant. In a jury-out hearing, the trial court

stated:

Well, I’m going to allow the testimony. I don’t see very much relevance to

it; but part of it, apparently, the State’s theory is that [Defendant] was

controlling and she was able to control this family to the extent that she was

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able to cause Little Terry to commit this murder. And it bears some

relevance as to that issue.

....

Again, it doesn’t have a lot of relevance, but it’s at least circumstantial

evidence that the jury could infer that they were under her control.

The State responds that Defendant has waived these issues because she failed to cite

any authority in support of her argument as required by Tennessee Rule of Appellate

Procedure 27(a)(7) and Tennessee Court of Criminal Appeals Rule 10. We agree. Tennessee

Rule of Appellate Procedure 27(a)(7) provides that a brief shall contain “[an]

argument . . . setting forth the contentions of the appellant with respect to the issues

presented, and the reasons therefor, including the reasons why the contentions require

appellate relief, with citations to the authorities . . . relied on.” Tennessee Court of Criminal

Appeals Rule 10(b) states that “[i]ssues which are not supported by argument, citation to

authorities, or appropriate references to the record will be treated as waived in this court.”

See also State v. Sanders, 842 S.W.2d 257 (Tenn. Crim. App. 1992) (determining that issue

was waived where defendant cited no authority to support his complaint). Defendant fails

to cite any authority for her claims. Therefore, Defendant is not entitled to relief.

Grand Jury Process

Defendant argues that the indictment should have been dismissed or A.M.’s testimony

should have been suppressed during trial, pursuant to her pre-trial motion. Defendant

contends that the prosecutor “misus[ed] the grand jury process to discover [A.M.’s]

testimony and grant [A.M.] immunity.” The crux of Defendant’s argument, at trial and on

appeal, is that the return of the presentment, the charging instrument in this case, removed

all inquisitorial and investigative powers of the grand jury. Defendant argues that the grand

jury could not be used for the purpose of obtaining additional inculpatory evidence against

Defendant.

While there is no Tennessee case directly on point, “[i]t is universally recognized that

it is improper to use the grand jury for the purpose of preparing [a case on] an already

pending indictment for trial. The grand jury’s role is to investigate possible criminal conduct

in order to determine whether to return an indictment . . . [and] not . . . to conduct discovery

in a pending criminal case.” Sara Sun Beale et al, Grand Jury Law and Practice § 9:16 (2d

ed.)(internal footnotes omitted) (citations omitted).

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The courts have made it clear that the grand jury is entitled to continue to

investigate the indicted defendant, if that investigation is for a purpose other

than to discover evidence relating to the charges in the pending indictment.

Such a legitimate purpose would include exploring the possibility of filing

additional charges against the same defendant. It is equally clear that the

grand jury can continue to investigate other persons who were not charged

in the initial indictments. Finally, it is settled that if, in the course of such

legitimate investigative efforts, the prosecution obtains evidence that is

relevant to the pending case, it can use that evidence at trial.

Id.

The State argues that the filing of a superseding indictment, charging Defendant with

additional charges, constitutes a legitimate purpose for further grand jury investigation. The

decision whether to dismiss an indictment lies within the discretion of the trial court. State

v. Harris, 33 S.W.3d 767, 769 (Tenn. 2000) (citing State v. Benn, 713 S.W.2d 308, 311

(Tenn. 1986)). Appellate courts “‘may not interfere with a ruling made within the

discretionary powers of the trial court absent clear abuse.’” Harris, 33 S.W.3d at 769-70

(quoting State v. Street, 768 S.W.2d 703, 709 (Tenn. Crim. App. 1988)). Furthermore, “[t]he

power to seek a superseding indictment lies within the broad discretion of the State.” Harris,

33 S.W.3d at 771. Our supreme court has held,

[w]here there has been no jeopardy on the first indictment, a grand jury may

return a new indictment against an accused even though another indictment

is pending. Although the State may not bring a superseding indictment to

harass or intimidate the accused, a legitimate decision to bring a

superseding indictment is uniquely within the State’s authority. Thus, the

State may obtain a superseding indictment at any time prior to trial without

dismissing the pending indictment and may then select the indictment under

which to proceed at trial.

Id. (internal footnotes omitted) (citations omitted).

The technical record shows that Defendant was indicted, by a presentment filed with

the Court on February 23, 2004, for especially aggravated burglary, especially aggravated

kidnapping, first degree premeditated murder, and first degree felony murder. A superseding

indictment, charging Defendant, along with Terry Mangrum, Sr., with the same four counts

as well as conspiracy to commit each of those offenses was also filed on February 23, 2004.

We cannot discern from the record the exact date the grand jury proceeding in question was

convened (wherein A.M. testified), but it is abundantly clear that it was not between the

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filing of the first presentment at 9:55 a.m. on February 23, 2004, and the second presentment,

filed at 4:10 p.m. on the same date. Based on the record before us, the State’s argument must

fail.

Defendant cites several cases, some applicable and some inapplicable, in support of

her argument. Defendant cites Matter of the Additional Grand Jury of Monroe County, 130

Misc.2d 505, 507, 496 N.Y.S.2d 653, 655 (N.Y. Co. Ct. 1985) (A court may intervene in a

grand jury proceeding “where fundamental fairness requires it or where abuse of authority

is present.”); Parton v. State, 455 S.W.2d 645 (Tenn. Crim. App. 1970) (An indictment based

on hearsay testimony to the grand jury was improper, but the trial court did not err by

refusing to dismiss the indictment because defendant’s rights were not violated.); and

Bowling v. Sinnette, 666 S.W.2d 743 (Ky. 1984) (It was proper for the trial court to strike

portions of a grand jury report which “cast aspersions” on the subjects of the investigation

where an indictment was not returned). Defendant also relies upon United States v.

Breitkreutz, 977 F.2d 214, 217 (6th Cir. 1992), in which the Sixth Circuit Court of Appeals

held that “[a] court may not interfere with the grand jury’s investigation ‘so long as it is not

the sole or dominant purpose of the grand jury to discover facts relating to [a defendant’s]

pending indictment.’” Id. (quoting United States v. George, 444 F.2d 310, 314 (6 th Cir.

1971)). The Breitkreutz court also held, “[t]he defendant retains the burden of demonstrating

that an abuse has occurred, as a ‘presumption of regularity attaches to a grand jury’s

proceedings . . . .’” Id. (quoting United States v. Woods, 544 F.2d 242, 250 (6 th Cir. 1976),

cert. denied, 430 U.S. 969, 97 S. Ct. 1652, 52 L. Ed. 2d 361 (1977)).

Here, Defendant filed motions to suppress A.M.’s testimony, to dismiss the

indictment, and to quash the grand jury subpoena for A.M. In an order denying Defendant’s

motions to dismiss the indictment or suppress A.M.’s testimony, the court found that “[i]t

appears . . . that A.M. was an unknown witness on the two previous occasions the grand jury

met, so that it was appropriate to subpoena her back to a third grand jury to testify.” In its

order denying Defendant’s motion to quash the subpoena of A.M., the trial court ruled that

“although the main or predominant purpose of the subpoena is to seek additional inculpatory

evidence against the defendant Kim Mangrum on the indicted charge of first degree murder,

[ ] it is not the sole purpose. . . .” There is nothing in the record before us that indicates that

the trial court erred in its ruling. Defendant is not entitled to relief on this issue.

CONCLUSION

Based on the foregoing, the judgments of the trial court are affirmed.

_________________________________

THOMAS T. WOODALL, JUDGE

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