State of Tennessee v. Doreen Jones

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs at Knoxville December 14, 2004

STATE OF TENNESSEE v. DOREEN JONES

Appeal from the Circuit Court for Warren County

No. F-8962 Larry B. Stanley, Jr., Judge

No. M2003-01942-CCA-R3-CD - Filed March 18, 2005

The defendant, Doreen Jones, was convicted of second degree murder. The trial court imposed a

Range I sentence of twenty-one years. In this appeal, the defendant asserts (1) that the evidence is

insufficient to support the conviction; (2) that the trial court erred in its instructions to the jury; (3)

that the trial court erred by admitting into evidence certain photographs of the victim; (4) that the

trial court erred by failing to instruct the jury regarding expert testimony provided by a defense

witness; (5) that the trial court erred by admitting into evidence a videotape recording; (6) that the

trial court erred by permitting the medical examiner to testify that the victim's death resulted from

abuse and neglect and by refusing to redact this statement from the autopsy report; (7) that the trial

court erred by permitting the state to read certain Social Security regulations; and (8) that the trial

court erred by refusing to grant a change of venue. The defendant has also asked this court to review

the propriety of the sentence in light of Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531

(2004). The judgment of the trial court is affirmed.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR. and

ALAN E. GLENN , JJ., joined.

Dan T. Bryant (at trial and on appeal), Robert Boyd (at trial), and Scott Grissom (at trial), Assistant

District Public Defenders, for the appellant, Doreen Jones.

Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger, Assistant Attorney General; and

Dale Potter and Larry Bryant, Assistant District Attorneys General, for the appellee, State of

Tennessee.

OPINION

On September 25, 2001, Richard Steinbach, a paramedic with Warren and Dekalb County

Emergency Medical Services, responded to a call at the defendant's residence. When he arrived, the

defendant, the sole caretaker of the victim, directed him to a small bedroom, where the victim, sixty-

seven-year-old Fletcher Anderson, was lying in a bed partially clothed and completely uncovered.

According to Steinbach, there was no bedding and the victim was lying on a vinyl shower curtain.

Because he was cold to the touch, blue in color, and had no obvious pulse, Steinbach initially

believed that the victim was dead but, upon further examination, discovered that the victim was

breathing. Steinbach placed an endotracheal tube into the victim's throat to help with his breathing

and then transported the victim to the emergency room of River Park Hospital.

The victim was admitted to the hospital and treated but died seven days later. After an

investigation by the McMinnville Police Department, the defendant was charged with second degree

murder.

Dr. Laura Helfman, who treated the victim when he arrived at the emergency room, testified

that the victim was "cachetic," or "skin and bones," and suffering from malnourishment and

hypothermia. She observed widespread bruising with several bedsores and determined that the

victim's prognosis for recovery was not good. While Dr. Helfman acknowledged that some elderly

patients often suffer from low body temperature, it was her opinion that the victim's body

temperature of only eighty-four degrees could not be explained by poor circulation. It was also her

opinion that medication would not account for such a low temperature.

Bruce Carr, a registered nurse who assisted in the treatment of the victim during his hospital

stay, described the victim as "emaciated" and in an "advanced stage of starvation," having "lost most

of his muscle mass." Carr stated that the victim "had skin stretched over the bones . . . . His temples

were sunken in. The orbits of his eyes were protruded. He looked to be terribly dehydrated as well

as malnourished." It was determined that the victim, who was between 5'6" and 5'9" tall, weighed

only eighty-one pounds and had a large bedsore on his tail bone. According to Carr, the victim "had

the wasted appearance of some[one] who hadn't eaten for months [and] he had bruises and cuts and

marks all over his body." When Carr asked the victim who had caused the marks on his body, he

responded, "Doreen." His blood testing established that the victim was malnourished and

dehydrated.

Carr testified that the victim was given intravenous fluids and fed, which improved the

results of his blood tests. He stated that the victim had a good appetite, although he had trouble

swallowing and the decision was made to insert a feeding tube. The victim died on the day that the

tube was to be inserted.

Dr. Tom Deering, who performed the autopsy, described the victim's appearance as "literally

. . . skin and bones," "[e]xtremely thin to a pathologic state." He found lesions and a number of

bruises of various ages on the victim's face and body. According to Dr. Deering, hair loss on the

back of the victim's head indicated that he had been lying against a mattress or other surface for "a

while." He observed that the victim's abdomen was sunken to the point that the internal organs could

be felt through the skin. Dr. Deering concluded that the victim's muscle mass had completely

deteriorated, leaving nothing but skin to cover his bones and internal organs. The victim had edema

in one foot as a result of "the fact that he [was] not able to keep fluid in his blood vessels because

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he doesn't have enough protein to hold it in there, so it leak[ed] out." Dr. Deering found a large

decubitus ulcer, or bedsore, on the victim's tail bone, suggesting that he had been in the same

position for a prolonged period of time.

According to Dr. Deering, the victim had no anatomical defect or disease that would have

affected his ability to consume or digest food. He did not detect the presence of any disease, such

as cancer or tuberculosis, that would account for the victim's advanced state of muscle wasting. The

victim did have a "very large pneumonia," or infection, in his right lung, which was likely caused

by his aspirating food. Dr. Deering saw no evidence of a stroke or any other condition that would

have contributed to the victim's emaciated appearance. It was his opinion that the victim died of

"[m]alnutrition, dehydration, and hypothermia, due to neglect." He also believed that the pneumonia

was a contributing factor in the victim's death, explaining that the victim was more prone to such an

infection because of the advanced state of his malnourishment. It was also Dr. Deering's opinion that

the victim was so severely malnourished when he entered the hospital that "no matter what the

hospital [did], his chances of making it [were] not good."

While Dr. Deering acknowledged that the changes in the victim's appearance likely occurred

slowly over a period of time, making it harder for someone who saw him on a daily basis to notice

them, he insisted that the victim's emaciation was so severe that it should have been noticed by

anyone who saw him. Dr. Deering also conceded that the victim had pulmonary emphysema but

explained that the condition would not have contributed to the victim's level of malnutrition. It was

Dr. Deering's opinion that while a feeding tube would have improved the victim's chances, it would

not have guaranteed his survival and the victim likely would have died no matter what treatment he

received. The doctor stated that "the reason that [the victim was] malnourished is because basically

he was starved to death."

Three months before the victim's death, Lisa Gribble, an investigator for Adult Protective

Services, visited the victim at the defendant's residence, which at that time was located in an

apartment complex. Her agency had received an anonymous call alleging that the victim had lost

weight, that he was not being properly cared for, that the defendant had used his money to purchase

alcohol for herself, and that the defendant had been seen slapping him. According to Ms. Gribble,

the defendant denied the allegations and suggested that her ex-boyfriend had made the complaint as

retaliation. The defendant, who admitted that she was the payee on the victim's Social Security

benefits, denied any financial exploitation and claimed to Ms. Gribble that the victim ate well.

Ms. Gribble directed the defendant to take the victim to the doctor that day. When the

defendant began to make excuses as to why she could not take the victim to a doctor, Ms. Gribble

telephoned 911 so that he could immediately be transported to the hospital by ambulance. Although

he was transported to the emergency room, the victim was not admitted but was ordered to follow-up

with his regular physician. According to Ms. Gribble, neither the emergency room physician nor the

victim's regular physician felt that the victim was "at a level of risk or danger" to necessitate legal

involvement at that time. Ms. Gribble visited the victim one additional time before he was admitted

to the hospital just prior to his death. She reported that he was still very thin.

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Ms. Gribble stated that when the victim was finally admitted to the hospital, the defendant

had refused to accompany him to the emergency room. At that time, Ms. Gribble observed bruising

on the victim's face, skin tears on the right side of his torso, extreme weight loss, and a severe

bedsore on the victim's buttocks. When she asked the victim what had happened, the victim

responded, "[The defendant] knocked me to the ground." The victim expressed fear of the

defendant. Ms. Gribble acknowledged on cross-examination that the victim's regular physician had

refused to sign an affidavit and physician's order so that she could intervene legally, explaining that

"he as a physician did not want to become legally involved."

Eldon Johnson, who had met the defendant and the victim months earlier when they all

resided at the Bybee Woods Apartments, testified that he was concerned for the victim because it

appeared that he was not getting enough to eat. He recalled that when he related his concerns to the

defendant, "[s]he just acted like she didn't care." He also remembered an incident at the apartment

complex office when the defendant struck the victim in the back and in the face with her belt. He

also stated that he had seen the victim take a box of cereal from a neighbor and eat it dry.

Katherine McBride, Richard Watson, Kimberly King, and Gwendolyn Galey all observed

instances of mistreatment of the victim by the defendant at the Bybee Woods Apartments. Their

testimony established that the defendant had often cursed the victim and had locked him in an

unsanitary room.

Carol King, manager of the Bybee Woods Apartments, testified that on one occasion, the

victim entered the rental office and "proceeded to stuff his pockets with candy bars." She stated that

he had also shoved candy into his mouth. According to Ms. King, the defendant and her boyfriend,

Jerry Braxton, came for the victim and the defendant took away the candy. She recalled that the

victim was upset and did not want to leave but the defendant forced him into a car. Ms. King

testified that the next time she saw the victim he was much thinner and had bruises on his face. She

remembered that on a later occasion the defendant came into the rental office to use the telephone

and she overheard the defendant say that she needed to "get food because they were coming to check

on [the victim] and she needed to have food in the house."

Derwin Adcock, Lieutenant Detective of the McMinnville Police Department, testified that

he interviewed the defendant as part of his investigation into the victim's death. The videotape

recording of the interview was played for the jury. During the interview, the defendant initially told

Detective Adcock that the victim ate well, explaining that he usually ate eggs and bacon for

breakfast, a sandwich for lunch, and a large dinner. Later, she stated that she did not always have

enough money for food but claimed that she fed the victim whatever she had, explaining that "it

sometimes might be a can of corn" or a "piece of bread." She maintained that the victim ate

"something" every day, even if there was not enough food for her to eat. The defendant stated that

her only source of income was the victim's Social Security benefits, which were barely enough to

cover the rent and utilities. She told Detective Adcock that every time the victim ate, it would go

"straight through him." The defendant denied starving the victim and claimed that he had been up

singing, talking, and laughing on the night before he was taken to the hospital.

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April Rumage, a psychiatric nurse practitioner who treated the victim during his life, testified

as a defense witness. Ms. Rumage, who began treating the victim in November of 2000, recalled

that the victim had been diagnosed with schizo-affective disorder and required medication to manage

his condition. According to Ms. Rumage, the victim missed an appointment in January, returned in

February and in April, and then did not return in July as scheduled. She testified that the defendant

accompanied the victim on each of the visits and sat in during interviews to help convey the victim's

history. Ms. Rumage stated that she would be "very surprised" if the victim were able to relate the

things that had happened to him in a cohesive manner. She testified that she had no reason to

question the care that the defendant was providing to the victim. According to Ms. Rumage, the

defendant was able to describe which medications were helpful to the victim and which were not.

Ms. Rumage stated that the victim was always clean and dressed appropriately for the weather. She

described the victim's appearance as "very frail and very thin in the face, especially." It was her

opinion that the victim would have been incapable of telling someone that the defendant had struck

him, that he was afraid of her, and that he did not want her around.

Ms. Rumage stated that she did not notice any change in the victim's physical condition

between November and April. Ms. Rumage recalled that testing conducted in April established that

the victim had low hemoglobin and a low red blood cell count. She prescribed a vitamin and

provided directions for the defendant to take the victim to his primary care physician.

Dr. Charles Harlan, a forensic pathologist, also testified on behalf of the defendant. After

reviewing the autopsy report, the photographs taken of the victim, and the records from the hospital

stay, he agreed with Dr. Deering's conclusion that the victim suffered from malnutrition, dehydration,

and hypothermia but opined that "the actual cause of death [was] the pneumonia . . . which is there

because of the pulmonary edema fluid which accumulated in the lungs and the presence of the

excessive fluid in the pleural spaces in the peritoneal cavity." It was Dr. Harlan's further belief that

the victim "died of congestive heart failure which was caused as a result of the dehydration and

hypothermia and the nutritional status." Dr. Harlan testified that the victim's dehydration,

malnutrition, and hypothermia were caused by chronic illness which prevented him from being

appropriately hydrated and from achieving appropriate nutritional status. According to the doctor,

the victim would have died regardless of any treatment he received, explaining that "[e]ither you

leave them relatively dehydrated or you hydrate them, and then they develop the pneumonia and they

die. . . . You are darned if you do, and darned if you don't."

Dr. Harlan stated that it was possible to develop a decubitus ulcer in a period of six hours and

opined that it was possible that someone with a bedsore like that suffered by the victim could be

walking around, explaining that "[t]here is no real relationship between the decubitus and the ability

to walk around from time to time." According to Dr. Harlan, the victim's hair loss was caused by

his nutritional status and by the normal process of aging. He acknowledged, however, that the

ultimate cause of the victim's death was malnutrition, dehydration, and hypothermia.

Ernest Whited, who met the defendant through a mutual friend, testified that he had been to

the defendant's residence when she lived in the housing project and when she lived at Bybee Woods

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Apartments. Whited, who described both residences as clean, did not speak with the victim on either

occasion. During his visit at the Bybee Woods residence, Whited observed the victim have "an

accident" on the floor, which the defendant cleaned.

Larry Battles, who became acquainted with the defendant when she worked at Jackson's

Boarding Home, recalled that the victim had been a resident there. Battle testified that he never saw

the defendant mistreat the victim but acknowledged that he did not see either the victim or the

defendant after the boarding home closed.

Dr. Joseph Caten, the victim's primary physician, testified that he saw the victim

approximately once a year. He stated that he primarily treated the victim for his mental health

problems. Dr. Caten recalled that when he treated the victim approximately three months before his

death, he "seemed to be his normal self." According to Dr. Caten, he saw no evidence that the victim

was being abused. Dr. Caten testified that when he saw the victim in the hospital three months later,

the victim had rashes, had lost weight, and "appeared very sick." He stated that the victim got better

when he was given fluid and medication to raise his blood pressure and that within two days, the

victim was breathing on his own but still bedridden. Dr. Caten recalled that the victim was unable

to eat, so a neurologist was called to examine him. According to Dr. Caten, the neurologist

suggested that a feeding tube be placed into the victim's stomach but there was no one to authorize

such a procedure. While awaiting the feeding tube, the victim was fed through a nasal-gastric tube

and given nutrients intravenously but the victim's heart rate dropped drastically and he died.

Dr. Caten concluded that the victim had pneumonia and sepsis, even though all of the blood

cultures were negative for the presence of sepsis. Although he had never observed any signs of

abuse, he indicated that the victim was malnourished, dehydrated, and suffering from low blood

sugar. It was his belief that the hydration and blood sugar problems were resolved during the

victim's hospital stay. It was his opinion that the victim had suffered a stroke at some point in time.

He acknowledged, however, that the neurologist found no indication of a stroke. According to Dr.

Caten, the victim weighed one hundred twenty-eight pounds in 1999 and eighty-one pounds when

he was admitted into the hospital. He observed that the victim's mental illness coupled with the fact

that he had no teeth likely contributed to his weight loss. Dr. Caten also noted that the weight loss

could have been caused by malabsorption, even though the autopsy did not support such a finding.

He speculated that the weight loss could also have been caused by a respiratory ailment or one of the

drugs, such as Depakote, that the victim was taking to control his mental illness. It was his opinion

that any one or all of these things "could have" caused the victim's death. Nevertheless, Dr. Caten

agreed that the cause of the victim's death was malnutrition, dehydration, and hypothermia. While

conceding that the victim was incapable of caring for himself because of his mental illness, he stated

that he did not believe that his death was the result of abuse or neglect.

I

The defendant first asserts that the evidence is insufficient to support her conviction. On

appeal, the state is entitled to the strongest legitimate view of the evidence and all reasonable

inferences which might be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

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The credibility of the witnesses, the weight to be given their testimony, and the reconciliation of

conflicts in the proof are matters entrusted to the jury as the trier of fact. Byrge v. State, 575 S.W.2d

292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the evidence is challenged, the relevant

question is whether, after reviewing the evidence in the light most favorable to the state, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Tenn.

R. App. P. 13(e); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983). Because a verdict of guilt

against a defendant removes the presumption of innocence and raises a presumption of guilt, the

convicted criminal defendant bears the burden of showing that the evidence was legally insufficient

to sustain a guilty verdict. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992).

Where the evidence is circumstantial in nature, the jury must find that the proof is not only

consistent with the guilt of the accused but inconsistent with his innocence. There must be an

evidentiary basis upon which the jury can exclude every other reasonable theory or hypothesis except

that of guilt. Pruitt v. State, 3 Tenn. Crim. App. 256, 460 S.W.2d 385, 390 (1970). The trial court

has the duty to charge the jury on the weight and significance of circumstantial evidence when it is

the only basis upon which the state's case rests. Bishop v. State, 199 Tenn. 428, 287 S.W.2d 49, 52

(1956). Like all other fact questions, the determination of whether all reasonable theories or

hypotheses are excluded by the evidence is primarily a jury question. State v. Tharpe, 726 S.W.2d

896 (Tenn. 1987); Marable v. State, 203 Tenn. 440, 313 S.W.2d 451, 457 (1958).

The jury is governed by four rules when testing the value of circumstantial evidence: (1) The

evidence should be acted upon with caution; (2) all of the essential facts must be consistent with the

hypothesis of guilt; (3) the facts must exclude every other reasonable theory except that of guilt; and

(4) the facts must establish such a certainty of guilt as to convince beyond a reasonable doubt that

the defendant is the perpetrator of the crime. Marable, 313 S.W.2d at 456.

The proof adduced at trial established that the victim died as a result of malnutrition,

dehydration, and hypothermia. Dr. Deering, who performed the autopsy, testified that there was no

medical or anatomical cause for the victim's malnutrition. It was his opinion that the victim was

starved to death over a period of weeks to months. There was proof that three months prior to his

admission into the hospital, the victim weighed one hundred twenty-eight pounds. He weighed just

eighty-one pounds when admitted to the hospital. Dr. Caten acknowledged that such drastic weight

loss would have been obvious to the defendant, the sole caretaker of the victim, and that she should

have sought medical attention for him. Carr described the victim as "the most starved patient" that

he had ever seen. The victim had numerous bruises and abrasions and a large bedsore. Dr. Caten,

Dr. Deering, Dr. Harlan, and Ms. Rumage all confirmed that the victim was unable to care for

himself. Although she initially claimed that the victim ate three large meals every day, the defendant

eventually admitted to police that she did not feed the victim much, claiming that she did not have

enough money to buy food. She indicated to Ms. Gribble, however, that she received food stamps

and that she and the victim had plenty of food. While each of the experts agreed that the victim died

of malnutrition, dehydration, and hypothermia, experts for the defense cited contributing causes. As

was its prerogative, the jury chose to accredit the testimony of the state's witnesses. See State v.

Summerall, 926 S.W.2d 272, 275 (Tenn. Crim. App. 1995). In our view, the evidence was sufficient

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for a rational trier of fact to have found beyond a reasonable doubt that the defendant committed "a

knowing killing" of the victim. See Tenn. Code Ann. § 39-13-210(a).

II

The defendant next contends that the trial court erred by failing to repeat the definitions of

the terms "intentional," "knowing," "reckless," and "criminally negligent" when instructing the jury

as to the lesser included offense of reckless homicide and as to the defense of ignorance or mistake

of fact. He claims that the definitions should have been repeated within the definition of each

offense and defense. The state submits that the trial court provided the correct instructions to the

jury and that the failure to repeat the definitions was not error.

Under the United States and Tennessee Constitutions, a defendant has a constitutional right

to trial by jury. U.S. Const. amend VI; Tenn. Const. art. 1, § 6; see State v. Bobo, 814 S.W.2d 353,

356 (Tenn. 1991); Willard v. State, 174 Tenn. 642, 130 S.W.2d 99 (1939). This right encompasses

the defendant’s right to a correct and complete charge of the law. State v. Teel, 793 S.W.2d 236, 249

(Tenn. 1990). In consequence, the trial court has a duty “to give a complete charge of the law

applicable to the facts of a case.” State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986); see State

v. Forbes, 793 S.W.2d 236, 249 (Tenn. 1990); see also Tenn. R. Crim. P. 30.

In this case, the trial court provided the appropriate definitions of the terms knowingly and

intentionally in its instruction on second degree murder, instructing the jury as follows:

The definition of knowingly is that knowingly means that a person

acts with an awareness that her conduct is reasonably certain to cause the death of the

alleged victim.

The requirement of knowingly is established if it is shown that the

defendant acted intentionally.

Intentionally means that a person acts intentionally when it is the

person's conscious objective or desire to cause the death of the alleged victim.

Having once defined these terms, the trial court did not repeat these definitions in its instructions on

the lesser included offenses of reckless homicide and criminally negligent homicide or in the

instruction on the defense of ignorance or mistake of fact. Instead, the trial court made the following

statement as to reckless homicide:

The requirement of recklessly is established if it is shown that the

defendant acted intentionally or knowingly. I previously read to you the definitions

of intentionally and knowingly.

As to criminally negligent homicide, the trial court stated as follows:

The requirement of criminal negligence is also established if it is

shown that the defendant acted intentionally, knowingly, or recklessly. I have

previously defined those three words to you.

Finally, with regard to the defense of ignorance or mistake of fact, the trial court instructed the jury

as follows:

Knowingly and recklessly and criminally negligent have been

previously defined in these instructions.

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The defendant did not object to this practice, which has been approved by our supreme court.

See State v. Cravens, 764 S.W.2d 754, 756 (Tenn. 1989). The record establishes that the jury

instructions fairly submitted the legal issues and did not mislead the jury as to the applicable law.

See State v. Vann, 976 S.W.2d 93, 101 (Tenn. 1998) ("A charge should be considered prejudicially

erroneous if it fails to fairly submit the legal issues or if it misleads the jury as to the applicable

law."). Moreover, the jury instructions were reduced to writing and given to the jury. See Tenn. R.

Crim. P. 30 (requiring the jury instructions in every felony case to be reduced to writing and given

to the jury during deliberations). Under these circumstances, it is our view that the defendant is not

entitled to relief on this issue.

III

The defendant contends that the trial court erred by admitting into evidence post-mortem

photographs of the victim. Specifically, she asserts that because medical testimony adequately

described the extent of the victim's injuries, the probative value of the photographs is outweighed

by the danger of unfair prejudice. See Tenn. R. Evid. 403. The state submits that the photographs

were probative because the appearance of the victim was relevant to establish that the defendant

knew she was starving him to death. The state asserts that because the appearance of the victim was

"virtually indescribable," the probative value of the photographs substantially outweighed any danger

of unfair prejudice.

The admissibility of photographs is governed by Tennessee Rule of Evidence 403. See State

v. Banks, 564 S.W.2d 947 (Tenn. 1978). In order to be admissible, photographs must be relevant

and their probative value must not substantially outweigh any danger of unfair prejudice. Tenn. R.

Evid. 403; Banks, 564 S.W.2d at 950-51. The term "unfair prejudice" has been defined as "an undue

tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional

one." Banks, 564 S.W.2d at 951. Whether to admit the photographs rests within the sound

discretion of the trial court and will not be reversed absent a clear showing of an abuse of that

discretion. State v. Dickerson, 885 S.W.2d 90, 92 (Tenn. Crim. App. 1993); State v. Allen, 692

S.W.2d 651, 654 (Tenn. Crim. App. 1985).

Here, the state introduced nine photographs taken by Dr. Deering before conducting an

autopsy of the victim. Each of the photographs depicts the victim's appearance at the time of his

death and the extent of the injuries he had suffered. Although the autopsy photographs are

unpleasant, each appears to have been taken prior to the initiation of any internal examination.

Because the victim died of starvation, his physical appearance was particularly important. See State

v. Bordis, 905 S.W.2d 214, 226 (Tenn. Crim. App. 1995) (holding that photographs taken of the

infant victim were "especially probative of [the defendant's] awareness of the possible results of his

course of conduct and substantially outweighed any prejudicial effect"). Moreover, because the

proof against the defendant was largely circumstantial, the state's burden in establishing that the

defendant knew that her conduct would result in the victim's death was especially onerous. See id.;

see also State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998) ("'A web of guilt must be woven around

the defendant from which he cannot escape and from which facts and circumstances the jury could

draw no other reasonable inference save the guilt of the defendant beyond a reasonable doubt."'

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(quoting State v. Crawford, 225 Tenn. 478, 482, 470 S.W.2d 610, 612 (1971)). While several

witnesses testified as to the cause of the victim's death, the photographs displayed visible signs of

malnutrition and dehydration. In our view, the trial court did not abuse its discretion by admitting

the photographs.

IV

The defendant next contends that the trial court erred by failing to instruct the jury that Dr.

Caten was an expert witness. The state submits that because Dr. Caten was never tendered as an

expert by the defendant, the trial court did not err. In the alternative, the state asserts that any error

was harmless.

Initially, the defendant has failed to cite any authority for her argument and it is, therefore,

waived. See Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R. 10(b). Further, the defendant has

waived our consideration of this issue by contributing to the error at trial. See Tenn. R. App. P. 36(a)

("Nothing in this rule shall be construed as requiring relief be granted to a party responsible for an

error or who failed to take whatever action was reasonably available to prevent or nullify the harmful

effect of an error.").

More important, the record establishes that the defendant is not entitled to relief. Generally,

the qualification of an expert witness is a matter entrusted to the sound discretion of the trial court.

There can be no reversal on appeal absent clear abuse of that discretion. State v. Williams, 657

S.W.2d 405, 411 (Tenn. 1983). The record establishes that while Dr. Caten was questioned

generally about his medical education and experience, the defendant did not ask during trial that he

be qualified as an expert witness. Further, when discussing the jury instructions with the trial court

and the prosecutor, defense counsel conceded that only Dr. Deering and Dr. Harlan had actually been

qualified as expert witnesses. Under these circumstances, it is our view that the trial court did not

err by failing to provide an expert witness instruction with regard to Dr. Caten's testimony.

Moreover, any error could be classified as harmless because Dr. Caten was not prevented from

testifying about his medical opinions and was unable to dispute Dr. Deering's findings as to the cause

of the victim's death.

V

The defendant also claims that the trial court erred by permitting the jury to view the

videotape recording of her interview with Detective Adcock because she was wearing an inmate

uniform. She contends that an audiotape should have been played instead. The state submits that

the trial court committed no error.

The United States Supreme Court has held that a criminal defendant cannot be forced to stand

trial in prison attire because "the constant reminder of the accused's condition implicit in such

distinctive, identifiable attire may affect a juror's judgment." Estelle v. Williams, 425 U.S. 501,

504-05 (1976). The Court held that "[t]he defendant's clothing is so likely to be a continuing

influence throughout the trial that, not unlike placing a jury in the custody of deputy sheriffs who

were also witnesses for the prosecution, an unacceptable risk is presented of impermissible factors

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coming into play." Id. at 505. The Court also concluded that "compelling an accused to wear jail

clothing furthers no essential state policy." Id.

While the defendant was not forced to stand trial in jail attire, the videotape of her interview

was played for the jury. The defendant was attired in an inmate uniform during the interview. The

videotape lasted approximately two hours in a three-day trial. As such, the attire did not serve as a

"constant reminder" that the defendant was in custody. See id. at 504-05. Further, the jury was not

made aware that the defendant remained in custody during the trial. The trial court concluded that

the videotape was particularly relevant because of the defendant's demeanor and instructed the jury

that the defendant was wearing jail attire in the video only because she had recently been arrested

for the offense for which she was on trial.

As the Supreme Court has recognized, "[j]urors are quite aware that the defendant appearing

before them did not arrive there by choice or happenstance." Holbrook v. Flynn, 475 U.S. 560, 567

(1986). In our view, trial courts should take every precaution to avoid the display of the accused,

who stands presumptively innocent, in prison garb or any type of restraint which reflects their

custodial status. See generally Willocks v. State, 546 S.W.2d 819, 820 (Tenn. Crim. App. 1976)

(disapproving of the practice of shackling the accused during trial). In this case, however, the proof

of the defendant's guilt, while circumstantial, was abundant. It is our view that any error caused by

the playing of the videotape can be classified as harmless, having had no effect on the verdict. See

Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a).

VI

The defendant asserts that the trial court erred by permitting Dr. Deering to testify that the

victim died as a result of malnutrition and dehydration which were caused by neglect. She also

contends that Dr. Deering's conclusion that the victim's death was the result of abuse and neglect

should have been redacted from the autopsy report. The state submits that there was no error.

The admissibility of expert testimony is governed by Rules 702 and 703 of the Tennessee

Rules of Evidence. McDaniel v. CSX Transp., Inc., 955 S.W.2d 257 (Tenn. 1997). Rule 702

addresses the need for expert testimony and the qualifications of the expert:

If scientific, technical, or other specialized knowledge will substantially assist

the trier of fact to understand the evidence or to determine a fact in issue, a witness

qualified as an expert by knowledge, skill, experience, training, or education may

testify in the form of an opinion or otherwise.

Tenn. R. Evid. 702. "To give expert testimony, one must be particularly skilled, learned or

experienced in a science, art, trade, business, profession or vocation. The expert must possess a

thorough knowledge upon which he testifies that is not within the general knowledge and experience

of the average person." Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 443 (Tenn. 1992)

(citing Kinley v. Tennessee State Mut. Ins. Co., Inc., 620 S.W.2d 79, 81 (Tenn. 1981)). Further,

Tennessee Rule of Evidence 704 provides that "[t]estimony in the form of an opinion or inference

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otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the

trier of fact." Tenn R. Evid. 704.

Generally, the admission of expert testimony is largely entrusted to the sound discretion of

the trial court. State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993). The trial court's decision may

be overturned on appeal only upon a showing that the trial court abused its discretion. Id. "The

abuse of discretion standard contemplates that before reversal the record must show that a judge

'applied an incorrect legal standard, or reached a decision which is against logic or reasoning that

caused an injustice to the party complaining.'" State v. Coley, 32 S.W.3d 831, 833 (Tenn. 2000)

(quoting State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)); see also State v. Shuck, 953 S.W.2d 662,

669 (Tenn. 1997).

Here, the defendant did not object to Dr. Deering's being qualified as an expert. The record

establishes that his testimony that the victim's death was caused by deficient care rather than illness

would have been of substantial assistance to the jury. See Tenn. R. Evid. 702. That his testimony

touched on an ultimate issue for the jury is not a basis for its exclusion. See Tenn. R. Evid. 704.

Similarly, the autopsy report, which contained the same conclusion, was admissible. The defendant

was permitted to fully cross-examine Dr. Deering. Further, Dr. Harlan testified that, in his opinion,

such conclusions do not belong in an autopsy report. These were legitimate jury issues. In our view,

the trial court did not err by permitting the testimony or by refusing to redact the autopsy report.

VII

The defendant next contends that the trial court erred by taking judicial notice of and

permitting the state to read into evidence a certain regulation of the Social Security Administration.

That regulation provides as follows:

(a) Current maintenance. (1) We will consider that payments we certify to a

representative payee have been used for the use and benefit of the beneficiary if they

are used for the beneficiary's current maintenance. Current maintenance includes cost

incurred in obtaining food, shelter, clothing, medical care, and personal comfort

items.

20 C.F.R § 404.2040 (2003).

Tennessee Rule of Evidence 202 provides that the trial court "shall take judicial notice of .

. . any rule or regulation of which a statute of the United States or Tennessee mandates judicial

notice." A federal statute, 44 U.S.C. § 1507, provides that "[t]he contents of the Federal Register

shall be judicially noticed." Regulations published in the Code of Federal Regulations are part of

the Federal Register. See 44 U.S.C. § 1510. In consequence, the trial court, in this case, was

required to take judicial notice of the regulation in question. See Paul Edward O'Daniel v. PNB

Corporation, 1988 Tenn. App. LEXIS 567 (Tenn. Ct. App., Western Section, Oct. 10, 1988) ("We

construe 44 USC § 1507 to mandate that state courts should take judicial notice of federal

regulations found in these publications. Our research has not found any case in which a state

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appellate court ruled that a trial court is free to refuse to judicially notice the contents of the Federal

Register and the CFR."). The defendant is not entitled to relief on this issue.

VIII

The defendant asserts that the trial court erred by refusing to grant a change of venue. Her

request was based upon pretrial publicity in the form of an article that appeared in the local

newspaper on the day before the trial. The state submits that the defendant has failed to establish

that the jurors actually empaneled were biased or prejudiced against her.

The pertinent portion of Tennessee Rule of Criminal Procedure 21 provides that "[v]enue

may be changed . . . if it appears to the court that, due to undue excitement against the defendant in

the county where the offense was committed or any other cause, a fair trial probably could not be

had." Tenn. R. Crim. P. 21(a). Whether to grant or deny a motion for change of venue is a matter

of judicial discretion. Rippy v. State, 550 S.W.2d 636, 638 (Tenn. 1977). The appellate court will

not interfere with the exercise of discretion absent clear abuse. State v. Melson, 638 S.W.2d 342,

360 (Tenn. 1982). The ultimate test is whether the jurors who actually sat and rendered verdicts

were prejudiced by the pretrial publicity. State v. Garland, 617 S.W.2d 176, 187 (Tenn. Crim. App.

1981). The burden of proof is on the defendant. See Adams v. State, 563 S.W.2d 804 (Tenn. Crim.

App. 1978). Prejudice will not be presumed on the mere showing that there was considerable

pretrial publicity. Dobbert v. Florida, 432 U.S. 282, 303 (1977); State v. Kyger, 787 S.W.2d 13, 19

(Tenn. Crim. App. 1989).

In this case, several jurors reported during voir dire that they had read about the case in the

local newspaper. The jurors making such a report were questioned individually as to their ability

to remain impartial and consider only the evidence admitted at trial. Those who stated that they

could not be impartial or could not judge the evidence without taking into account what they had

previously heard about the case were excused by the trial court. The only evidence in the record of

the pretrial publicity were the statements of the potential jurors that they had read an article

published the preceding day. The article was not made a part of the record. The defendant has

offered no proof that any of the jurors impaneled to hear the case were actually biased or prejudiced

by the publicity. As indicated, the defendant bears the burden of establishing that she was prejudiced

by pretrial publicity; it will not be presumed. See Adams, 563 S.W.2d at 807-08; Kyger, 787 S.W.2d

at 19. In our view, there is nothing in the record to suggest that the trial court abused its discretion

in denying a change of venue.

IX

Finally, the defendant has asked this court to review the sentence under the reasoning of

Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004). Initially, the state contends that the

defendant’s Blakely claim is waived because it was not raised in the trial court. Recently, however,

in State v. Chester Wayne Walters, No. M2003-03019-CCA-R3-CD, slip op. at 21 (Tenn. Crim.

App., at Nashville, Oct. 4, 2004, as corrected Dec. 10, 2004), this court rejected the state’s position:

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We acknowledge that Blakely extended Apprendi’s holding that, under the

Sixth Amendment, a jury must find all facts used to increase a defendant’s sentence

beyond the statutory maximum. However, nothing in Apprendi suggested that the

phrase “statutory maximum” equated to anything other than the maximum in the

range. To the contrary, the United States Supreme Court stated the issue in Apprendi

as “whether the 12-year sentence imposed . . . was permissible, given that it was

above the 10-year maximum for the offense charged in that count.” 530 U.S. at 474,

120 S. Ct. at 2354. We also note that the Supreme Court has considered the

retroactive effect of the holding in Ring v. Arizona, 536 U.S. 584, 592-93, 122 S. Ct.

2428, 2435 n.1, 153 L. Ed. 2d 556 (2002), as a new rule for capital cases even though

it was based on Apprendi. See Schriro, ___ U.S. at ___, 124 S. Ct. at 2526-27.

Perhaps this resulted from the fact that Ring overruled a case that had held the

opposite. See Walton v. Arizona, 497 U.S. 639, 110 S. Ct. 3047, 111 L. Ed. 2d 511

(1990). In this regard, with our own supreme court expressly approving our

sentencing procedure under Apprendi, we have a difficult time faulting a defendant

in Tennessee for not raising the issue before Blakely. We conclude that Blakely

alters Tennessee courts’ interpretation of the phrase “statutory maximum” and

establishes a new rule in this state. The defendant’s raising the issue while his direct

appeal was still pending is proper.

In any event, even if Blakely did not establish a new rule, the United States

Supreme Court in Apprendi stated that the defendant’s right to have a jury find facts

that increase his sentence above the prescribed statutory maximum is rooted in his

Fourteenth Amendment right to due process and his Sixth Amendment right to a jury

trial. 30 U.S. at 476, 120 S. Ct. at 2355. In State v. Ellis, 953 S.W.2d 216, 220

(Tenn. Crim. App. 1997), this court held that although there was no common law

right to waive a jury trial, Rule 23, Tenn. R. Crim. P., allowed a defendant to “waive

a jury trial if the waiver is in writing and is knowingly executed.” Absent a written

waiver, “it must appear from the record that the defendant personally gave express

consent [to waive a jury trial] in open court.” Ellis, 953 S.W.2d at 221. Blakely, as

an extension of Apprendi, also requires proof in the record that the defendant

personally waived that right.

This reasoning is persuasive. The defendant’s Blakely claim in this case has not been waived.

The United States Supreme Court’s opinion in Blakely calls into question the continuing

validity of our current sentencing scheme. In that case, the Court, applying the rule in Apprendi v.

New Jersey, 566 U.S. 466, 490 (2000), struck down a provision of the Washington sentencing

guidelines that permitted a trial judge to impose an “exceptional sentence” upon the finding of

certain statutorily enumerated enhancement factors. The Court observed that “the ‘statutory

maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis

of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 124 S. Ct. at 2537.

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Finally, the Court concluded that “every defendant has a right to insist that the prosecutor prove to

a jury [beyond a reasonable doubt] all facts legally essential to the punishment.” Id. at 2543.

Under the rule established in Blakely, any prior convictions may be used to enhance a

sentence. The defendant has prior convictions for theft of property over $1,000, disorderly conduct,

and driving under the influence. Under the rationale of Blakely, the sentence of twenty-one years,

the midpoint within the range, is warranted.

___________________________________

GARY R. WADE, PRESIDING JUDGE

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