State v. Maraschiello

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

May 2000

STATE OF TENNESSEE v. MICHAEL F. MARASCHIELLO

Direct Appeal from the Circuit Court for Montgomery County

No. 35643 Robert W. Wedemeyer, Judge

No. M1997-00049-CCA-R10-CD - Filed July 28, 2000

The appellant, Michael F. Maraschiello, was convicted by a jury in the Montgomery County Circuit

Court of first degree murder, arson, possession of an explosive weapon, possession of a shotgun with

an altered serial number, and theft. For the offense of first degree murder, a jury imposed a sentence

of life imprisonment in the Tennessee Department of Correction. Additionally, the trial court

imposed a sentence of two years incarceration in the Department for the offense of arson, two years

incarceration in the Department for the offense of possession of an explosive weapon, six months

incarceration in the Montgomery County Workhouse for the offense of possession of a shotgun with

an altered serial number, and six months incarceration in the workhouse for the offense of theft. The

trial court ordered that the appellant serve his sentences consecutively. On appeal, the appellant

presents the following issues for our review: (1) whether the trial court erred in refusing to suppress

the appellant’s confession to the police; (2) whether the trial court committed reversible error in

permitting the State to call the appellant’s accomplice, Timothy Winston, to the witness stand in

light of Mr. Winston’s stated intention to invoke his privilege against self-incrimination; (3) whether

the trial court erred in excluding testimony concerning “Gulf War Syndrome;” and (4) whether the

trial court erred in imposing consecutive sentencing. Following a review of the record and the

parties’ briefs, we affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and JOE

G. RILEY, J., joined.

Clifford K. McGown, Jr., Waverly, Tennessee, and Debra Wall, Clarksville, Tennessee, for the

appellant, Michael F. Maraschiello.

Paul G. Summers, Attorney General and Reporter, Elizabeth T. Ryan, Assistant Attorney General,

and Arthur Bieber, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

The appellant’s convictions of premeditated and deliberate first degree murder, arson,

possession of an explosive weapon, possession of a shotgun with an altered serial number, and theft

arose from the planned slaying of his estranged wife, Roxie Maraschiello, on February 16, 1995, at

her home in Clarksville, Tennessee. At the time of the murder, the appellant and Ms. Maraschiello

had been married for approximately ten years and had two daughters, who were eight and four years

old. During the marriage, the appellant served in the United States Army, ultimately attaining the

rank of captain and commanding a company during the Persian Gulf War.1 According to the

appellant, Ms. Maraschiello experienced some difficulty in adjusting to the role of an officer’s wife.

Moreover, the appellant testified at trial that his relationship with his wife was adversely affected

by her claims that she had been raped by a prior husband and her consequent psychological

problems. The appellant explained that he “became obsessed somewhat and upset at Roxie and

pretty much went into a mode that I felt I had married a - - someone who needed more care and help

than I did or had some major problems.” The appellant further stated that he carried “a grudge . .

. against Roxie because what she was doing wasn’t acceptable in terms of a normal relationship . .

. [p]hysical . . . and emotional . . . .”2

In 1992, following the Persian Gulf War, the appellant was assigned to Fort

Campbell, near Clarksville, Tennessee. While at Fort Campbell, the appellant began to receive poor

performance evaluations. Additionally, his relationship with his wife further deteriorated.

According to the appellant, his wife increasingly neglected family activities and responsibilities and

pursued a social life apart from her husband and her children. The record also reflects that, in March

1993, Ms. Maraschiello filed a complaint with the Fort Campbell Family Advocacy Program,

alleging physical and mental abuse by the appellant. Ms. Maraschiello subsequently submitted

affidavits to the Family Advocacy Program, drafted with the appellant’s assistance, recanting the

allegations.

In the summer or fall of 1993, the appellant received an honorable discharge from the

Army. Following his discharge, the appellant continued to serve in the United States Army Reserve

and also obtained employment with the Nashville Metropolitan Police Department. Psychological

evaluations performed in connection with the appellant’s application for employment with the police

department revealed no significant “psychopathologies,” although examining psychologists noted

“a defensive gruffness that bordered on anger” and “some adjustment problems and behavior traits

which cause [the appellant] difficulties in relating to others . . . .” Indeed, while attending the police

academy, the appellant was the subject of several disciplinary actions. Moreover, following the

1

The appellant apparently served with some distinction during the Persian Gulf War, earning

both the Air Medal and the Bronze Star Medal.

2

The appellant testified at trial that, several months prior to the murder, he spoke with Ms.

Maraschiello’s ex-husband and became convinced that his wife had lied about the rape and feigned

psychological problems in order to manipulate him.

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appellant’s graduation from the police academy, his training officers noted that the appellant resisted

following orders and had difficulty drafting objective incident reports. Master Patrol Officer James

Sullivan explained that the appellant was

constantly argumentative about anything that you tried to teach him.

He had his own ideas of how things should be done even though they

might not have been to departmental standards or anybody else’s

standards. . . . He wouldn’t accept any type of criticism or any type

of supervision.

The police department terminated the appellant’s employment in 1994.

Subsequently, the appellant was unable to maintain steady employment, and the

Maraschiellos’ precarious financial circumstances created additional tensions between the appellant

and his wife. Ultimately, on October 28, 1994, Ms. Maraschiello initiated divorce proceedings in

the Davidson County Circuit Court. On October 29, 1994, the appellant in turn filed a petition for

an order of protection in the Davidson County General Sessions Court, alleging that his wife had

previously threatened to kill him and that she owned a .25 caliber pistol. Finally, on November 1,

1994, the appellant’s eldest daughter reported to school authorities that the appellant had been

sexually abusing her. Detective Steve Cleek of the Nashville Metropolitan Police Department

recounted at the appellant’s trial that he investigated the allegations in conjunction with the

Tennessee Department of Human Services3 but discontinued the investigation on January 4, 1995,

due to insufficient evidence.

Following the initiation of divorce proceedings and the child sexual abuse

investigation, Ms. Maraschiello moved with her daughters from the Maraschiellos’ Nashville

residence to a trailer located in Clarksville, in Belle Glade Trailer Park. Ms. Maraschiello refused

to divulge her address to the appellant. Moreover, on December 15, 1994, the Davidson County

Circuit Court ordered that a restraining order “remain in place as to both parties which shall restrain

both parties from in any way harassing each other or from in any way physically assaulting each

other or making threats of violence to each other.” However, due to “insufficient competent proof

. . . of child sexual abuse,” the court granted the appellant unsupervised visitation with his daughters

on alternate weekends.

At his trial, the appellant denied abusing his children. He further stated his belief that

his wife had forced his eldest daughter to accuse him of sexual abuse. According to the appellant,

his wife was herself abusing the children, sexually and otherwise. Additionally, the appellant

believed that his wife was unfaithful to him during their marriage. These beliefs prompted the

appellant’s decision to murder his wife and “rescue the children.”

In January of 1995, the appellant approached an acquaintance, Timothy Winston, and

offered to pay him ten thousand dollars if he would assist the appellant in murdering Ms.

3

In 1996, the Department of Human Services was replaced by the Department of Children's

Services. See Tenn. Code Ann. § 37-5-101 (1996).

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Maraschiello. Mr. Winston agreed, whereupon the appellant paid him five thousand dollars, and the

two conspirators began to formulate a plan.4 On February 1, 1995, the appellant purchased the

murder weapon, a Mossberg “.12 gauge pump shotgun,” removing the serial number with a drill and

“shortening the stock and barrel length.” On February 9, 1995, the appellant stole a “Ford LTD four-

door” vehicle, which he planned to use for transportation during the commission of the murder. He

additionally stole a license plate from another vehicle and affixed the license plate onto the stolen

Ford. Finally, anticipating the need to destroy the stolen Ford following the murder, the appellant

prepared two incendiary devices, consisting of “M80 firecrackers” and fuses attached with duct tape

to bottles of gasoline. The appellant also attached “military heat tablets” to the sides of the bottles.5

On the night of February 16, 1995, the appellant placed the shotgun, ammunition,

binoculars, a “scanner” capable of monitoring Clarksville police radio frequencies, and the

incendiary devices into the stolen Ford and drove to the Queen City Barber College in Clarksville,

where Ms. Maraschiello was employed. The appellant was wearing a “pony tail wig” and a ski

mask. Mr. Winston followed the appellant in a Peugeot station wagon. Mr. Winston was also

carrying a police scanner in his vehicle in addition to a change of clothing for the appellant.

The appellant and Mr. Winston approached the barber college at approximately 10:00

p.m. and observed Ms. Maraschiello driving out of the parking lot. They began to follow her, but

Mr. Winston soon became separated from both the appellant and his wife. The appellant, however,

successfully followed Ms. Maraschiello to the Belle Glade Trailer Park.

Several people, including Ms. Maraschiello’s roommate, Linda Hubenthal, and Ms.

Maraschiello’s boyfriend, Tommy Piper, were inside Ms. Maraschiello’s trailer, awaiting her return

from work. The Maraschiellos’ daughters were asleep in a rear bedroom of the trailer. Ms.

Hubenthal and Mr. Piper heard Ms. Maraschiello arrive home and attempt to open the front door of

the trailer. However, the security chain was fastened. Accordingly, Ms. Hubenthal went to the front

door to unfasten the chain. Mr. Piper testified at trial that, before Ms. Hubenthal could unfasten the

chain, someone outside said, “[W]hat the hell do you want.” Mr. Piper then heard loud noises that

“sounded like fireworks going off.” Several bullets penetrated the front door and the walls of the

trailer, and Mr. Piper observed “some stuff fly past [his] face.” During the shooting, Ms. Hubenthal

4

The appellant confessed to police that he hired Mr. Winston to assist him in murdering his

wife. At trial, in contrast, the appellant denied that Mr. Winston participated in the planning and

execution of the murder. The appellant did admit that, upon his discharge from the Army, he

received a substantial amount of “separation pay.” Moreover, he admitted that, on November 2,

1994, he cashed a check amounting to $2,700 and that, prior to the murder, he used a credit card

issued by Nations Bank of Delaware to obtain large cash advances. However, he explained that he

was paying an attorney to represent him in the pending divorce proceedings. Moreover, he asserted

that, at some point, he was denied access to his bank accounts due to the divorce proceedings.

5

A military heat tablet is a “small compressed block of fuel” that military personnel employ

in the field in order to heat their food.

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and Mr. Piper overheard Ms. Maraschiello screaming for help.

In a statement to the police, the appellant recalled that,

when [my wife] pulled into . . . [her] driveway, I pulled in behind her,

T-style. I got out with the shotgun and followed her to the porch,

aimed the shotgun and pulled the trigger and it delayed for a second

before discharging. The first shot missed and hit the door. I then

shot her three or four more times. I was at a distance of about fifteen

feet.

Ms. Maraschiello died as a result of shotgun wounds to the head, chest, and abdomen. Dr. Charles

Warren Harlan, an expert in forensic pathology, opined at the appellant’s trial that a shotgun wound

to Ms. Maraschiello’s abdomen was inflicted from a distance of ten (10) or twenty (20) feet. A

shotgun wound to Ms. Maraschiello’s chest was inflicted from a distance of six (6) feet or less.

Finally, the shotgun wound to Ms. Maraschiello’s head, involving the removal of the left frontal lobe

of her brain, appeared to be a “contact wound,” inflicted when the muzzle of the shotgun was in

contact with Ms. Maraschiello’s skin.

Following the murder, the appellant drove in the stolen Ford toward the exit of the

trailer park, encountering Mr. Winston in the Peugeot station wagon at an intersection inside the

trailer park. Mr. Winston followed the appellant to Frost Auto Alignment in Clarksville. At Frost

Auto Alignment, the appellant parked the stolen Ford and, positioning the incendiary devices inside

the vehicle, ignited one of the devices. The appellant then got into Mr. Winston’s Peugeot, and the

two began to drive toward Nashville. Inside Mr. Winston’s vehicle, the appellant changed into clean

clothing. Moreover, during their somewhat circuitous trip from Clarksville to Nashville, at various

points along Interstate 24, Highway 12, and Highway 49, the appellant threw out of his window

various incriminating items, including the clothing that he wore during the murder.

At approximately 11:00 p.m., Mr. Winston and the appellant were traveling toward

Nashville on Highway 41-A at an excessive rate of speed, when Trooper Timothy Hale Dover with

the Tennessee Highway Patrol conducted a traffic stop of their vehicle. Deputy Randall Anderson

with the Cheatham County Sheriff’s Department assisted in conducting the stop. The Clarksville

Police Department had not yet issued a “BOLO” or “be on the lookout” for the appellant.

Accordingly, after checking Mr. Winston’s driver’s license with the National Crime Information

Center ("NCIC") and issuing Mr. Winston a traffic ticket, Trooper Dover allowed both him and the

appellant to depart.

After the traffic stop, Mr. Winston and the appellant drove to the Sycamore Creek

Bridge on Highway 49. At the bridge, the appellant removed the barrel from the shotgun that he had

used to murder Ms. Maraschiello. Next, while Mr. Winston waited in the car, the appellant threw

the remaining components into the creek. However, before the appellant could return to the Peugeot,

Deputy Anderson, who was en route to his home in Ashland City, approached the bridge, and Mr.

Winston began to drive away.

Deputy Anderson stopped his vehicle on the bridge and asked the appellant what he

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was doing. The appellant explained that he had asked his friend to stop their vehicle, because he

needed to “relieve himself.” He added that, while he was outside the vehicle, his friend had jokingly

driven away. The appellant asked the deputy to pursue Mr. Winston and instruct him to return to

the Sycamore Creek Bridge. As he initiated pursuit, the deputy radioed Trooper Dover and asked

that he drive to the bridge and further question the appellant.

Upon arriving at the Sycamore Creek Bridge, Trooper Dover observed the appellant

walking alongside the road approximately three hundred feet from the bridge. The trooper stopped

his vehicle, requested the appellant’s identification, and asked the appellant what he was doing. The

appellant gave his driver’s license to Trooper Dover and repeated the story that he had told Deputy

Anderson. Trooper Dover recalled at trial that the appellant was

just kind of . . . joking . . . , like his buddy had ran off and left him

just to be messing around with him. . . . [H]e wasn’t combative or

anything and he cooperated totally at that particular point.

Meanwhile, Deputy Anderson had succeeded in detaining Mr. Winston. In contrast

to the appellant, Mr. Winston informed the deputy that the appellant was a hitchhiker whom he had

picked up in Clarksville and that he had left the appellant on the bridge in order to “get rid of him.”

Subsequently, Mr. Winston admitted that he had in fact known the appellant for several years. The

deputy again radioed Trooper Dover, informed the trooper of his and Mr. Winston’s location, and

asked that the Trooper transport the appellant to their location.

Upon the arrival of Trooper Dover and the appellant, Deputy Anderson checked the

appellant’s driver’s license with the "NCIC." Again, the Clarksville Police Department had not yet

issued a “BOLO” for the appellant. Accordingly, the officers allowed Mr. Winston and the appellant

to depart once more. At the appellant’s trial, Deputy Anderson recalled that, during this second

encounter with Mr. Winston and the appellant, he noticed a .12 gauge shotgun barrel lying in the rear

of the Peugeot.

Soon thereafter, the Clarksville Police Department issued a “BOLO” for the appellant

on the basis of a preliminary investigation of Ms. Maraschiello’s murder. Specifically, Detective

Allan Charvis of the Clarksville Police Department had learned that the appellant and Ms.

Maraschiello had been engaged in a “heated divorce” involving numerous “altercations” and that

Ms. Maraschiello had been “hiding” from the appellant. The detective additionally ascertained that

the appellant had recently been accused of sexually abusing his daughter and had been angered by

the accusation. Finally, immediately following the issuance of the “BOLO,” Trooper Dover and

Deputy Anderson notified Detective Charvis that they had encountered the appellant and Mr.

Winston in Cheatham County, en route from Clarksville to Nashville, soon after the murder.6

6

Later that night, the officers also informed Detective Charvis that they had observed the

barrel of a shotgun inside Mr. Winston’s Peugeot. It is unclear from the record, however, whether

the information concerning the shotgun barrel was conveyed to Detective Charvis prior to the

appellant’s arrest.

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Detective Charvis relayed the above information and details concerning Ms.

Maraschiello’s murder to Detectives Mason and West of the Nashville Metropolitan Police

Department, who additionally discovered that the appellant had previously been employed by their

department as a police officer. Detectives Mason and West then proceeded to the appellant’s

Nashville residence in order to determine whether the appellant was present. Their first visit was

unsuccessful. However, they returned to the appellant’s residence at approximately 1:00 a.m. At

this time, Detective Mason understood, erroneously, that a warrant was currently being issued for

the appellant’s arrest.

When the detectives approached the appellant’s residence a second time, they

observed a light inside the house, indicating the possible presence of the appellant. Accordingly, the

detectives requested additional assistance. Three uniformed officers quickly arrived at the

appellant’s residence and positioned themselves strategically around the house. The detectives then

approached the appellant’s front door and knocked on the door. The appellant eventually responded

to the detectives’ knock, asking the detectives through the closed door to identify themselves.

Detective Mason responded that they were police, and the appellant “need[ed] to open the door and

talk to [them].” When the appellant opened the door, Detective Mason ordered the appellant at

gunpoint to step onto the porch and lie down on the ground. The appellant complied with the

detective’s order, and the detective handcuffed the appellant’s hands behind his back. Upon inquiry,

the appellant indicated that he was alone and refused the detectives permission to search his home

for Mr. Winston. Nevertheless, several officers briefly and unsuccessfully searched the appellant’s

residence for the second suspect.

At the time of the appellant’s arrest, the temperature outside was “sub-zero” or “sub-

freezing.” Accordingly, the officers brought the appellant into his living room and seated him on

the couch. Approximately twelve minutes after the appellant’s arrest, Detective E.J. Bernard of the

Nashville Metropolitan Police Department arrived at the appellant’s residence.7 Detective Bernard

advised the appellant that his wife had been killed and also advised the appellant of his Miranda

rights. The appellant refused to provide a statement and expressed his desire to consult with an

attorney.

Following the appellant’s invocation of his Miranda rights, Clarksville Detective

Charvis arrived at the residence, accompanied by Sergeant Michael Lee Parr, also an officer with

the Clarksville Police Department. The Clarksville officers briefly conferred with the Nashville

officers, whereupon Detectives Charvis and Mason left the residence in order to obtain a warrant to

search the appellant’s house. Detective Bernard and Sergeant Parr also left the residence in order

to search for Mr. Winston.

Meanwhile, the appellant, his hands still handcuffed behind his back, remained under

guard on the couch in his living room. The heating system inside the house was apparently

7

Detective Bernard apparently knew the appellant, having met him during the appellant’s

brief tenure with the police department.

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malfunctioning, and the temperature inside was approximately forty degrees (40°) Fahrenheit. The

appellant was wearing dark blue pants and a t-shirt. At the appellant’s request, the police

additionally provided the appellant with a button-down shirt. Moreover, the police offered the

appellant a blanket, which the appellant initially refused but later accepted. The appellant did not

otherwise request additional clothing or ask that he be moved to a warmer location. In fact, during

much of his wait, the appellant slept. His dog, a large, black Labrador Retriever, lay on the couch

beside him.

At approximately 2:00 a.m. or 2:30 a.m., Trooper Dover arrived at the appellant’s

residence and identified the appellant as one of two men he had encountered earlier in Cheatham

County. At approximately 5:00 a.m., Detectives Charvis and Mason returned to the residence,

having successfully obtained a search warrant. At the same time, Detective Bernard and Sergeant

Parr also returned, accompanied by Mr. Winston. The officers brought Mr. Winston inside the

house, but Mr. Winston quickly indicated that he preferred to wait outside. Accordingly, the officers

placed Mr. Winston inside a patrol car. The police, including Detective Bernard, then began to

execute the search warrant.

At this time, the appellant asked to speak with Detective Bernard. According to

Sergeant Daniel L. Ogren with the Nashville Metropolitan Police Department, the officer primarily

responsible for guarding the appellant in the early morning hours of February 17, the appellant’s

request was entirely unsolicited. Sergeant Ogren immediately notified Detective Bernard of the

request.

Detective Bernard approached the appellant and, at the appellant’s suggestion,

accompanied him to one of the bedrooms. In the bedroom, the appellant asked that the detective re-

handcuff him with his hands in front and also requested cigarettes. The detective acceded to these

requests and also reiterated that the appellant did not have to speak with the police and that the

appellant was entitled to an attorney. The detective then inquired whether the appellant still wished

to make a statement. The appellant asserted that he wished to make a statement and then asked,

“[W]hat should I do?” When the detective indicated that the appellant should tell the truth, the

appellant agreed but asked that he first be allowed to look at his Army uniform, which was hanging

on the door of a closet located in the basement. Detective Bernard agreed and proceeded with the

appellant to the basement, where the appellant gazed at his uniform for several moments. When the

detective inquired whether the appellant had intended to kill himself, the appellant did not respond

and merely “held his head down.” The appellant additionally looked at a flag belonging to his

former Army unit and a picture of his children. Finally, Detective Bernard and the appellant

returned to the bedroom.

In the bedroom, the detective again inquired whether the appellant wished to provide

a statement. The appellant responded, “Yes, sir, . . . I did it.” When the detective requested

clarification of the appellant’s statement, the appellant responded, “I killed her.” The detective then

asked the appellant questions concerning his commission of the murder. The detective recalled:

[E]verytime I would ask him something, [the appellant’s] reactions

were very, very slow. Sometimes when I would ask him a question,

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he would stand there and he was smoking because I was giving him

cigarettes and I had no problem in doing that, it was his house. He

would look up at me and he would look down and he would continue

smoking his cigarette and would look up and it was sometimes as

long as ten minutes before I would get an answer, and I do mean ten

minutes because I looked at my watch. It was as if he was thinking

very, very carefully about what he was saying.

The detective observed that the appellant exhibited no remorse during the interview.

At approximately 6:00 a.m., the police left the appellant’s house with both the

appellant and Mr. Winston.8 The appellant informed the police that he had disposed of several

incriminating items in Cheatham County. Accordingly, they proceeded to the Cheatham County

Sheriff’s Department. While waiting for the Sheriff’s Department to disperse traffic from areas

within the scope of their search, the police provided the appellant with a cup of coffee. The police

and the detainees then drove to the Sycamore Creek Bridge on Highway 49 and recovered the

murder weapon from the creek. The appellant attempted to recall other locations, where he might

have thrown additional items of evidence. However, due to the appellant’s unfamiliarity with the

area, the ensuing search was largely unsuccessful. Afterwards, the appellant directed the police to

Frost Auto Alignment in Clarksville, where he had disposed of the stolen Ford. Finally, the police

drove the appellant and Mr. Winston to the Clarksville Police Department, stopping briefly along

the way to purchase food for the detainees. At the police department, the appellant provided a

written confession, which he signed at approximately 2:00 p.m. The police finally obtained a

warrant for the appellant’s arrest later on the same day.

On April 3, 1995, the appellant was indicted by a Montgomery County Grand Jury

for first degree murder, arson, possession of an explosive weapon, possession of a shotgun with an

altered serial number, and theft. Additionally, on September 28, 1995, the State notified the

appellant of its intent to seek a punishment of life imprisonment without parole for the offense of

first degree murder on the basis of the aggravating circumstance set forth in Tenn. Code Ann. § 39-

13-204(i)(3) (1994), that “[t]he defendant knowingly created a great risk of death to two (2) or more

persons, other than the victim murdered, during the act of murder.” The appellant’s case proceeded

to trial on March 17, 1997, concluding on March 21, 1997.

At trial, the State relied heavily upon the appellant’s statements to the police

following the murder. The appellant testified on his own behalf, again confessing that he killed his

wife. In defense, however, the appellant adduced testimony in support of the proposition that, prior

to the shooting and at the time of the shooting, he did not possess the capacity to form the requisite

mental state for first degree murder.

Specifically, the appellant presented testimony by Kevin Wilkinson, a pastor of the

First Christian Church in Hendersonville, Tennessee, and a captain in the Tennessee Army National

8

The appellant and Mr. Winston traveled in separate police vehicles.

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Guard. According to Mr. Wilkinson, he is also a dilettante or an amateur in the field of psychology.

Mr. Wilkinson testified that, at the request of the appellant’s parents, he visited the appellant in the

Montgomery County Jail on March 2, 1995, and spoke with the appellant for approximately two

hours. Mr. Wilkinson recalled that, during their interview, the appellant’s speech was “flighty,” i.e.,

the appellant “frequently departed from the stream of thought.” Additionally, the appellant appeared

to possess a “very, very tenuous, a very fragile connection with reality.” Mr. Wilkinson concluded

that the appellant was experiencing the “residual effects of a psychotic episode.” Moreover, Mr.

Wilkinson opined that the appellant was suffering “post battle phase.” Mr. Wilkinson described

“post battle phase” as

the time after battle has occurred when troops are given time to

intentionally reconstitute mentally, emotionally, physically,

psychically and to stabilize. . . . The symptomologies of people who

are not properly reconstituting . . . would be erratic behavior, manic

types of behavior, blood thirstiness, a desire to get back out on the

line. Sometimes it is indicated by fighting, sometimes it is indicated

by people who are simply withdrawn, what they called in World War

I, shell-shock, battle fatigue is what the term is now.

The appellant also presented the testimony of Dr. Pamela Auble, a clinical

psychologist. Dr. Auble examined the appellant on February 6, 1996, and on September 18, 1996,

and reviewed various records pertaining to the appellant, including records from the Middle

Tennessee Mental Health Institute, the Harriet Cohn Mental Health Center, the Veterans

Administration, the Army, the Nashville Metropolitan Police Department, and the Louisville,

Kentucky Police Department. According to Dr. Auble, the appellant was suffering from a delusional

disorder, post-traumatic stress disorder, and depression. She also noted “elements of a paranoid

personality structure.” She concluded that, due to the appellant’s delusional disorder, his

intent to commit . . . [the murder of his wife] was really on a false

data base. He - - what he believed and what was true were two

different things. So that Mr. Maraschiello was like living in a

nightmare. He thought that he could see how evil this other person

was and nobody else could see it. He acted as if - - he believes that

his beliefs were true. His beliefs were that his wife was someone who

was abusing and neglecting their children, sexually, physically, and

emotionally and that she was in essence, a prostitute. So his actions

were based on his belief that all that was true. As part of his

delusional disorder.

Dr. Auble conceded, however, that the appellant was not insane at the time of the instant offenses.

Moreover, Dr. Auble testified that, at the time of her interview with the appellant, he was competent

to stand trial.

Dr. William D. Kenner, a psychiatrist, also testified on behalf of the appellant. Dr.

Kenner testified that he interviewed the appellant on February 17 and 25, 1996, and reviewed

numerous records concerning the appellant, including Dr. Auble’s report. He concurred in Dr.

Auble’s conclusion that the appellant was suffering a delusional disorder. Specifically, he opined

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that the appellant was suffering from “conjugal delusions” or an “Othello syndrome.” The doctor

explained:

...Shakespeare’splay,Othello,inwhichhehasthisfellownamedDiago,whoisarottenappleinthebunchandDiagoistelling

Othello all these bad things about his wife and Othello believes him and ends up killing his wife.

In delusional disorder, the Diago is a part of the individual himself.

Dr. Kenner further described the appellant’s delusions and their impact upon his capacity to form

the requisite mental state for first degree murder:

[The appellant believed] that his wife was out to kill him, that she

was trying to abuse his children, sexually abusing his children. That

she was the devil herself. She was - - all involved in pornography in

terms of being photographed or something along those lines and that

she was involved in various affairs.

***

[On February 16, 1995,] . . . what happened was a sort of tragic

convergence if you will of his mental illness on the one hand and on

the other hand, the fact that he and his wife were having problems

probably in a large part as a result of his mental illness because

someone who develops this disorder is no fun to be with. I mean,

they are - - they are picky. They go for very small details, they are

accusatory. They have this tremendous amount of anger focused on

the other person and so it is really burdensome to have a relationship

with someone like this, so I would imagine that she was trying to get

away from him and his disordered way of thinking and interacting

with her so that she was trying to leave him at a time when he was

looking for evidence to prove his case that she was evil, that she was

killing, damaging him in that he actually committed this crime, not

with the ability to think logically about it. Even though so many of

the actions may have looked logical. The thinking process that was

the foundation for that action was severely distorted.

***

[I]t impacted on his ability to form intent in that his basis for his

action was defective and he was operating not with a full deck. It was

like he was playing poker and there were some jokers in the deck and

he was dealing with those jokers as if they were real face cards or

something. As though his wife was definitely out to kill him and she

was sexually abusing the children and all these horrible things.

Finally, noting the incidence of mental illness in the appellant’s family, Dr. Kenner opined that the

appellant likely possessed a genetic predisposition to develop a delusional disorder. Moreover, Dr.

Kenner observed that a delusional disorder is “more likely to occur in people who have gone through

some kind of stressor” and opined that the appellant’s military service in the Persian Gulf War could

have triggered his disorder.

In rebuttal, the State presented the testimony of Dr. Sam Craddock, a psychologist

employed by the Forensic Services Division of the Middle Tennessee Mental Health Institute.

-11-

According to Dr. Craddock, the appellant was admitted to the institute at the beginning of July 1995

and was evaluated by the institute for approximately one month. On the basis of this evaluation and

on the basis of a social history compiled by Rebecca Smith,9 a psychiatric social worker employed

by the Forensic Services Division, Dr. Craddock diagnosed the appellant with a narcissistic

personality disorder. He conceded that psychological testing did not support his diagnosis but

further noted that the appellant’s responses to testing were inconsistent with his observations of the

appellant during the appellant’s stay at the institute. Dr. Craddock also opined that the appellant was

not insane at the time of the instant offenses, was competent to stand trial, and did not qualify for

commitment to a psychiatric hospital. He concluded that, at the time of the murder, the appellant

was capable of forming the requisite mental state for first degree murder. Rokeya Farooque, a

psychiatrist employed by the Forensic Services Division, concurred in Dr. Craddock’s opinion.

Moreover, she rejected Dr. Auble’s and Dr. Kenner’s diagnoses of a delusional disorder. She

explained that interviews with the appellant’s friends and family had revealed that the appellant’s

beliefs concerning his wife, as described by the appellant to the doctor, were based in reality.

At the conclusion of the trial, the jury convicted the appellant of the offenses charged

in the indictment.10 Immediately following the jury’s verdicts of guilt, the trial court conducted a

separate sentencing hearing in accordance with Tenn. Code Ann. § 39-13-204. At the conclusion

of the hearing, the jury imposed a sentence of life imprisonment for the offense of first degree

murder. Moreover, following a sentencing hearing on May 13, 1997, the trial court imposed a

sentence of two years incarceration in the Department for the offense of arson, two years

incarceration in the Department for the offense of possession of an explosive weapon, six months

incarceration in the Montgomery County Workhouse for the offense of possession of a shotgun with

an altered serial number, and six months incarceration in the workhouse for the offense of theft. The

trial court ordered consecutive service of the appellant’s sentences.

II. Analysis

a. The Appellant’s Confession

On appeal, the appellant first challenges the trial court’s denial of his motion to

suppress the State’s use at trial of his confession to the police. Specifically, the appellant challenges

the voluntariness of his confession and, in any event, contends that his confession was the fruit of

his unlawful arrest. The State, in turn, concedes that the appellant’s arrest violated the Fourth and

Fourteenth Amendments to the United States Constitution and Article I, Section 7 of the Tennessee

Constitution. However, the State asserts that the appellant voluntarily confessed to the murder of

his wife and that the connection between the unlawful arrest and the appellant’s confession was

9

Ms. Smith conceded at trial that, in compiling the appellant’s social history, she was not able

to review the appellant’s Army records.

10

A minor exception relates to the appellant’s theft of the Ford vehicle. Although the

indictment originally charged the appellant with theft of property worth more than one thousand

dollars ($1,000), the jury convicted the appellant of theft of property worth less than five hundred

dollars ($500).

-12-

sufficiently attenuated to dissipate the primary taint of the unlawful invasion. Wong Sun v. United

States, 371 U.S. 471, 486, 83 S.Ct. 407, 416 (1963).

The trial court conducted a suppression hearing on March 14 and 15, 1996.

Following the hearing, the trial court concluded that the police had unlawfully arrested the appellant.

However, the court further noted that,

even though the arrest was illegal at that point, the statement made by

the defendant need not be suppressed if it is voluntary, under the Fifth

Amendment and there were sufficient intervening circumstances to

break the causal connection between the illegal arrest and a

confession, so that the confession is on its own sufficiently an act of

free will and thus, because it is an act of free will on its own, it purges

the taint created by the initial illegal arrest.

***

In other words, is the violation of the Fourth Amendment and the

illegal arrest resulting therefrom, so egregious that it affects the

otherwise voluntary statement under the Fifth Amendment given by

the Defendant.

The court concluded that the appellant’s confession was, indeed, voluntary and that the confession’s

connection with the unlawful arrest was sufficiently attenuated.

Preliminarily, we note that the appellant made more than one incriminating statement

to the police. The appellant’s argument on appeal focuses exclusively upon the circumstances of his

initial statement to Detective Bernard at the appellant’s residence. Our discussion will similarly

focus upon the appellant’s initial statement. On the one hand, if the initial statement was involuntary

or the fruit of an unlawful arrest, the ensuing statements were likely the result and the fruit of the

first. “[H]aving ‘let the cat out of the bag’ does not automatically vitiate [the voluntariness]” of a

subsequent confession nor, under the “fruit of the poisonous tree” doctrine, preclude the admission

of the subsequent confession. State v. Crump, 834 S.W.2d 265, 271-272 (Tenn. 1992)(citing State

v. Smith, 834 S.W.2d 915, 919 (Tenn. 1992)). However, the provision of one incriminating

statement does bolster the pressures to provide a second or “at least vitiate any incentive . . . to avoid

self-incrimination.” Brown v. Illinois, 422 U.S. 590, 605 n.12, 95 S.Ct. 2254, 2262 n.12 (1975).

See Crump, 834 S.W.2d at 272 (under the Tennessee Constitution, there is a rebuttable presumption

that an illegally obtained confession will taint any subsequent confession). On the other hand, if the

initial statement was admissible at the appellant’s trial, the appellant does not argue that the

subsequent statements were otherwise inadmissible. Moreover, if the initial statement was

admissible, any error by the trial court in admitting the ensuing statements was harmless beyond a

reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828 (1967). See also

Arizona v. Fulminante, 499 U.S. 279, 310-312, 111 S.Ct. 1246, 1265-1266 (1991).

With respect to the appellant’s initial statement, a determination of whether a

confession satisfies the Fifth and Fourteenth Amendments to the United States Constitution and

Article I, Section 9 of the Tennessee Constitution logically precedes any attenuation analysis under

the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 7

-13-

of the Tennessee Constitution. Obviously, if a confession is inadmissible pursuant to the former

constitutional provisions, a court need not determine whether the confession is additionally the fruit

of some other illegality.

The Fifth and Fourteenth Amendments to the United States Constitution and Article

I, Section 9 of the Tennessee Constitution protect an accused’s right against compelled

self-incrimination. State v. Blackstock, No. E1994-00004-SCR-11-CD, 2000 WL 358624, at *6

(Tenn. at Knoxville, April 10, 2000)(citing State v. Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994)).

Moreover, in Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612 (1966), the United States

Supreme Court held that the Fifth and Fourteenth Amendments’ proscription against compelled self-

incrimination requires that any interrogation of a suspect in custody be preceded by advice that he

has the right to remain silent, that any statement that he makes may be used against him in court, and

that he has the right to consult with an attorney, whether retained or appointed, and have the attorney

present during any questioning. In other words, a constitutional waiver of the right against

compelled self-incrimination requires the accused to make a knowing, intelligent, and voluntary

waiver of the rights afforded by Miranda. State v. Ashworth, 3 S.W.3d 25, 31 (Tenn.Crim.App.

1999).

At a suppression hearing, the State has the burden of proving a valid waiver of

Miranda rights by a preponderance of the evidence. State v. Bush, 942 S.W.2d 489, 500

(Tenn.1997). In other words, the State must establish that a defendant’s waiver of Miranda rights

was

voluntary in the sense that it . . . [was] the product of a free and

deliberate choice rather than the product of intimidation, coercion or

deception. Moreover, the waiver must . . . [have been] made with full

awareness of both the nature of the right being abandoned and the

consequences of the decision to abandon it.

Stephenson, 878 S.W.2d at 544. See also Blackstock, No. E1994-00004-SCR-11-CD, 2000 WL

358624, at *6. Courts look to the totality of the circumstances when determining whether an accused

has made a knowing, intelligent, and voluntary waiver. State v. Callahan, 979 S.W.2d 577, 581-582

(Tenn. 1998). On appeal, the determination by a trial court that a defendant executed a valid waiver

is binding upon this court unless the appellant can demonstrate that the evidence preponderates

otherwise. State v. Carter, 988 S.W.2d 145, 149 (Tenn. 1999); State v. Odom, 928 S.W.2d 18, 22-23

(Tenn. 1996). See also Blackstock, No. E1994-00004-SCR-11-CD, 2000 WL 358624, at *8.

If an accused declines to waive the rights afforded by Miranda and “expresse[s] his

desire to deal with the police only through counsel, [he may not be] . . . subject[ed] to further

interrogation by the authorities until counsel has been made available to him, unless the accused

himself initiates further communication, exchanges, or conversations with police.” Edwards v.

Arizona, 451 U.S. 477, 484, 101 S.Ct. 1880, 1884-1885 (1981). See also Stephenson, 878 S.W.2d

at 545. “Interrogation” encompasses any “practice that the police should know is reasonably likely

to evoke an incriminating response from a suspect . . . .” Rhode Island v. Innis, 446 U.S. 291, 301,

100 S.Ct. 1682, 1690 (1980). A trial court’s determination of whether an accused was subjected to

police interrogation involves questions of both fact and law and is reviewed de novo by the appellate

-14-

courts. See, e.g., State v. Land, No. M1999-01023-CCA-R3-CD, 2000 WL 678787, at *4 (Tenn.

Crim. App. at Nashville, April 28, 2000).

In the absence of interrogation, the Fifth and Fourteenth Amendments do not prohibit

police from “merely listening to a defendant’s voluntary, volunteered statements and using them

against him at trial.” Edwards, 451 U.S. at 485, 101 S.Ct. at 1885. This is true even when the

statement is volunteered by an accused who is in custody and has previously asserted his right to

remain silent or his right to counsel. 2 WAYNE R. LA FAVE, ET AL., CRIMINAL PROCEDURE § 6.7(d),

at 566 (West Group ed., 2d ed. 1999). Of course,

[i]f, as frequently would occur in the course of a meeting initiated by

the accused, the conversation is not wholly one-sided, it is likely that

the officers will say or do something that clearly would be

“interrogation.” In that event, the question would be whether a valid

waiver of the right to counsel and the right to silence had occurred,

that is, whether the purported waiver was knowing and intelligent and

found to be so under the totality of circumstances, including the

necessary fact that the accused, not the police, reopened the dialogue

with the authorities.

Edwards, 451 U.S. at 486 n. 9, 101 S.Ct. at 1885 n.9. See also Oregon v. Bradshaw, 462 U.S. 1039,

1044-1045, 103 S.Ct. 2830, 2834 (1983)(plurality opinion).

As previously noted, the appellant in this case was advised concerning his Miranda

rights approximately twelve minutes following his arrest and immediately invoked his rights,

declining to provide a statement to the police and requesting an attorney. Four hours later, the

appellant asked to speak with Detective Bernard and confessed to the murder of his wife.

Significantly, the appellant does not explicitly argue in his brief that he was subjected to

“interrogation” during the interval between his invocation of Miranda rights and his request to speak

with Detective Bernard, nor do we believe that the record reflects any activity by the police during

this interval that the police should have known was likely to evoke an incriminating response from

the appellant. Innis, 446 U.S. at 301, 100 S.Ct. at 1690.

Thus, we reject any implication in the appellant’s brief that the police placed the

appellant in uncomfortable circumstances in order to elicit a confession or should otherwise have

anticipated a confession due to the circumstances of the appellant’s detention. Again, following his

arrest and invocation of his Miranda rights and prior to his request to speak with Detective Bernard,

the appellant was detained in his home for approximately four hours while the police procured a

warrant to search his home and sought the appellant’s accomplice. During this four-hour interval,

the appellant slept on a couch in his living room. Although the temperature in the house was

approximately forty degrees Fahrenheit (40°), the appellant never asked that he be moved to a

different location. Sergeant Ogren testified that he would have moved the appellant to a warmer

location had the appellant indicated any discomfort. The appellant did request and was provided a

button down shirt. Moreover, the police offered and the appellant ultimately accepted a blanket.

The police also permitted the appellant’s Labrador Retriever to lie on the couch with the appellant.

We do note that the appellant’s hands were handcuffed behind his back during his lengthy sojourn

-15-

on his couch, but apparently the handcuffs did not cause the appellant sufficient discomfort to

prevent him from sleeping. Indeed, the appellant did not request that the police change the position

of his hands until immediately prior to his confession.

The record does reflect that, during the four-hour interval, Trooper Dover identified

the appellant. Moreover, during the interval, the police apprehended the appellant’s accomplice, Mr.

Winston, and brought Mr. Winston to the appellant’s home. The disclosure of incriminating

evidence to a suspect, however, does not necessarily constitute interrogation within the meaning of

Innis. See, e.g., Shedelbower v. Estelle, 885 F.2d 570, 573 (9th Cir. 1989)(police officer’s comments

to a rape and murder suspect that his accomplice was in custody and that the surviving victim had

identified his photograph did not constitute interrogation); United States v. Vazquez, 857 F.2d 857,

938 (1st Cir. 1988)(“the disclosure of the fact that a suspected accomplice has been questioned is

[not] of sufficient moment to implicate Innis’ standard of ‘acts reasonably likely to elicit an

incriminating response’”). Compare Nelson v. Fulcomer, 911 F.2d 928, 935 (3rd Cir.

1990)(confronting a suspect with his or her alleged partner in crime and claiming that the partner has

confessed constitute “interrogation”). Moreover, while not determinative, there is no indication in

the record that the police engaged in these activities in anticipation of any response by the appellant.

Rather, the record reflects that the police were “engaged in activity calculated to produce evidence

against the defendant by other means . . . .” 2 LA FAVE, supra § 6.7(c), at 562. We conclude that the

police did not subject the appellant to interrogation during the four-hour interval between his

invocation of Miranda rights and his request to speak with Detective Bernard.

Indeed, the record is devoid of any evidence of coercive activity by the police prior

to the appellant’s confession. Absent coercive police activity, we must conclude that the appellant

voluntarily initiated a dialogue with Detective Bernard and confessed to the murder of his wife.

State v. Brimmer, 876 S.W.2d 75, 79 (Tenn. 1994); State v. Kelly, 603 S.W.2d 726, 728 (Tenn.

1980). See also State v. Phillips, No. E1999-01104-CCA-R3-CD, 2000 WL 336960, at *5 (Tenn.

Crim. App. at Knoxville, March 31, 2000).11 Moreover, even assuming that Detective Bernard,

following the appellant’s initiation of a dialogue, engaged in interrogation, the totality of

circumstances reflect the appellant’s knowing and intelligent waiver of his Miranda rights. The

appellant in this case possesses a college education and is a former captain in the United States

Army. Moreover, at the time of his arrest, the appellant had recently undergone training as a police

officer. Finally, as noted previously, the appellant was advised of his Miranda rights soon after his

arrest and was again advised of his right to remain silent and his right to counsel immediately

11

The appellant indicates in his brief that, prior to his arrest, he had been preparing to commit

suicide. Thus, the appellant hints that his mental condition rendered him more susceptible to police

coercion. Again, the record simply does not reflect any coercive police activity. Moreover, other

than Detective Bernard’s purely speculative testimony, the record does not indicate that the appellant

was suicidal. The appellant’s elaborate efforts to conceal his commission of the murder and the

absence of any weapons in his home suggest a contrary conclusion. Finally, testimony at trial

indicated that, to the extent the appellant was suffering from a mental disorder, the disorder rendered

him inflexible and resistant to any form of authority.

-16-

following his request to speak with Detective Bernard.12

In sum, the admission into evidence of the appellant’s initial confession was

consistent with the Fifth and Fourteenth Amendments to the United States Constitution and Article

I, Section 9 of the Tennessee Constitution. We turn, then, to the question of whether the appellant’s

confession was the fruit of his unlawful arrest.

In Wong Sun, 371 U.S. at 488, 83 S.Ct. at 417 (citation omitted), the Supreme Court

noted that, in determining whether a confession is the fruit of a prior illegality, the “apt question .

. . is ‘whether, granting establishment of the primary illegality, the evidence to which instant

objection is made has been come at by exploitation of that illegality or instead by means sufficiently

distinguishable to be purged of the primary taint.’” Stated in another way, a court must determine

whether the confession was “sufficiently an act of free will to purge the primary taint of the unlawful

invasion.” Id. at 486, 416-417. At a suppression hearing, the State carries the burden of establishing

sufficient attenuation. Brown, 422 U.S. at 604, 95 S.Ct. at 2262; State v. Carter, 16 S.W.3d 762, 766

(Tenn. 2000); State v. Huddleston, 924 S.W.2d 666, 675 (Tenn. 1996).

In Brown, 422 U.S. at 603-604, 95 S.Ct. at 2261-2262, the Supreme Court listed

several factors pertinent to a trial court’s determination of whether the connection between an

unlawful arrest and a confession is sufficiently attenuated, including (1) the provision of Miranda

warnings; (2) the temporal proximity of the arrest and the confession; (3) the presence of intervening

circumstances; and (4) the purpose and flagrancy of official misconduct. See also Carter, 16 S.W.3d

at 766; Huddleston, 924 S.W.2d at 674-675; State v. Burtis, 664 S.W.2d 305, 308-309 (Tenn. Crim.

App. 1983). The Supreme Court emphasized that “[n]o single fact is dispositive . . . .” Brown, 422

U.S. at 603, 95 S.Ct. at 2261. On appeal, this court reviews de novo the trial court’s determination.

State v. Ford, No. M1999-01078-CCA-R3-CD, 2000 WL 502825, at *2 (Tenn. Crim. App. at

Nashville, April 27, 2000).

It is undisputed in this case that the appellant was advised of his Miranda rights

following his arrest and was again advised of his right to remain silent and his right to counsel

immediately prior to his confession. Of course, “Miranda warnings, alone and per se, cannot always

12

Interestingly, the appellant does not appear to argue in his brief that any mental ailment

impaired his ability to comprehend his Miranda rights and the consequences of his decision to waive

those rights. Moreover, we note that, although the record contains some evidence that the appellant

was suffering from a delusional disorder at the time of his arrest, Dr. Kenner’s testimony indicates

that the disorder would not have precluded the appellant’s knowing and intelligent waiver of his

Miranda rights. Specifically, Dr. Kenner testified that a delusional disorder only impairs a person’s

“thinking within that particular area . . . that has to do with their delusion.” In this case, to the extent

that the appellant was suffering a delusional disorder, his delusions related solely to his wife’s

behavior during their marriage. Indeed, the psychologists and psychiatrists who examined the

appellant unanimously observed that, notwithstanding any mental disease or defect, the appellant

was competent to stand trial.

-17-

make the . . . [confession] sufficiently a product of free will to break, for Fourth Amendment

purposes, the causal connection between the illegality and the confession.” Brown, 422 U.S. at 603,

95 S.Ct. at 2261. Nevertheless, this factor weighs against suppression.

As to the temporal proximity of the arrest to the appellant’s confession, one noted

authority has observed that “temporal proximity is the ‘least determinative factor involved’ in the

Brown formula.” 3 LA FAVE, supra § 9.4(a), at 361 (footnote omitted). In any event, the four-hour

interval in this case between the arrest and the confession was insufficient to purge the confession

of the primary taint. See, e.g., Taylor v. Alabama, 457 U.S. 687, 690, 102 S.Ct. 2664, 2667

(1982)(an interval of six hours between an unlawful arrest and a confession will not purge the

primary taint). Accordingly, this factor weighs in favor of suppression.

As to the presence of intervening circumstances, a spontaneous, volunteered

statement can itself be a significant intervening circumstance. See, e.g., United States v. Houle, 620

F.2d 164, 166 (8th Cir. 1980); United States v. McQuagge, 787 F.Supp. 637, 663 (E.D. Texas 1992);

State v. Gonzales, 731 P.2d 1101, 1108 (Wash. App. 1986). In other words,

[w]hen a suspect volunteers a statement absent the pressures of

interrogation, . . . it is far . . . [from] clear that the law enforcement

officers have actively exploited the illegal arrest. In such a case, ‘the

illegal arrest merely provides the occasion of initial contact between

the police and the accused,’ and the deterrent effect of excluding such

a statement is doubtful.

McQuagge, 787 F.Supp. at 663 (citation omitted). We have already concluded that the appellant was

not subjected to interrogation prior to his initiation of a dialogue with Detective Bernard. We

likewise conclude that the appellant’s statement to the detective that, “I killed her,” was not the

product of interrogation and, therefore, was not “‘come at by exploitation of th[e] [primary]

illegality.’” Wong Sun, 371 U.S. at 488, 83 S.Ct. at 417 (citation omitted).13

Finally, the police conduct in arresting the appellant was neither purposeful nor

flagrant. In this regard, we note that it was at least arguable that the police possessed probable cause

to believe that the appellant had murdered his wife, and, indeed, the record reflects Detective

Mason’s belief that an arrest warrant was currently being issued.14 In other words, the appellant’s

13

In reaching this conclusion, we note that “a question which would clarify a prior ambiguous

statement (e.g., ‘did what?’ in response to ‘I did it’)” does not constitute interrogation. 2 LA FAVE,

supra § 6.7(d), at 567. Moreover, under the circumstances of this case, Detective Bernard’s

indication to the appellant that, if he intended to make a statement, he should tell the truth did not

constitute interrogation. See, e.g., State v. Clark, 377 S.E.2d 54, 60 (N.C. 1989)(“[e]ncouraging a

defendant to tell the truth, even after she has asked for a lawyer, does not constitute interrogation nor

its ‘functional equivalent’”).

14

Detective Mason correctly noted that he was not required to have the warrant in his

possession at the time of the arrest. Tenn. R. Crim. P. 4(d)(3).

-18-

illegal arrest was more the result of miscommunication between the Clarksville Police Department

and the Nashville Police Department than the result of any “purposeful” misconduct. That having

been said, at the time of his arrest, the proof implicating the appellant in his wife’s murder was

purely circumstantial. Thus, while the police in this case did not merely arrest the appellant “in the

hope that something would turn up,” Taylor, 457 U.S. at 693, 102 S.Ct. at 2668, the appellant’s

arrest was clearly one component of a continuing investigation, Carter, 16 S.W.3d at 768.

Nevertheless, having considered all of the above factors, we conclude that the appellant’s confession

was not the fruit of his arrest and was admissible at his trial. This issue is without merit.

b. Testimony of Timothy Winston

Citing State v. Dicks, 615 S.W.2d 126 (Tenn. 1981), the appellant next contends that

the trial court committed reversible error in permitting the State to call the appellant’s accomplice,

Timothy Winston, to the witness stand in light of Mr. Winston’s stated intention to invoke his

privilege against self-incrimination. The State responds, in essence, that the appellant has failed to

demonstrate prejudice.

During the appellant’s trial, the State announced that it intended to call Mr. Winston

to the witness stand. Defense counsel immediately objected, stating that Mr. Winston had informed

her that he intended to invoke his privilege against self-incrimination. The prosecutor responded that

he was unaware of any authority prohibiting him from calling Mr. Winston to the witness stand

regardless of Mr. Winston’s intention. The prosecutor also noted that Mr. Winston had not indicated

to him that he intended to invoke the privilege.

Due to defense counsel’s objection, the trial court permitted the prosecutor to

question Mr. Winston outside the jury’s presence in order to determine his intention, whereupon Mr.

Winston confirmed that he intended to invoke his privilege against self-incrimination. Nevertheless,

the trial court permitted the State to examine Mr. Winston in the jury’s presence. The following

colloquy ensued:

Prosecutor: Please state your full name, sir.

Mr. Winston: Timothy Glenn Winston.

Prosecutor: Mr. Winston, where do you live?

Mr. Winston: 3104 River Drive.

Prosecutor: Is that in Nashville?

Mr. Winston: Yes.

Prosecutor: Where are you currently employed?

Mr. Winston: I am supposed to start work Monday

at United Stationary.

Prosecutor: Is that in Nashville too?

Mr. Winston: Yes.

Prosecutor: To my left, I think is seated, Michael

Maraschiello, wearing a gray suit; do

you know Mr. Maraschiello?

Mr. Winston: Yes.

Prosecutor: How long have you known Mr.

-19-

Maraschiello?

Mr. Winston: Based on counsel, I am going to take

the Fifth.

The Court: Mr. Winston, on advice of your

attorney, you are asserting your Fifth

Amendment privilege against self-

incrimination, is that correct?

Mr. Winston: Once again, Your Honor, based on

information that I was given from both

sides, and the information then

conflicting, yes.

The Court: And you wish to assert that privilege

with regard to any questions . . . that

either attorney might ask pertaining to

this case, is that correct, sir?

Mr. Winston: That’s correct.

At the time of his testimony, Mr. Winston was wearing “orange jailhouse clothes with Montgomery

County Jail on the back of his shirt and on the sides of his pants.”

In Dicks, 615 S.W.2d at 129, our supreme court noted the general principle that

neither a defendant nor the prosecution possesses the right to benefit from any inferences a jury may

draw from a witness’ assertion of his privilege against self-incrimination. Dicks, 615 S.W.2d at 129

(citing United States v. Johnson, 488 F.2d 1206, 1211 (1st Cir. 1973)); State v. Butler, 880 S.W.2d

395, 399 (Tenn. Crim. App. 1994). Consistent with this general principle, the prosecution “‘may

not deliberately call a witness closely identified with the defendant, knowing that the witness will

assert his right to remain silent.’” Busby v. Holt, 781 F.2d 1475, 1477 (11th Cir. 1986). The United

States Court of Appeals for the District of Columbia explained that, while a jury may believe that

a witness’ invocation of the privilege is of probative significance,

the probative value of the event is almost entirely undercut by the

absence of any requirement that the witness justify his fear of

incrimination and by the fact that it is a form of evidence not subject

to cross-examination.

Bowles v. United States, 439 F.2d 536, 541-542 (D.C. Cir. 1970).

Nevertheless, in Namet v. United States, 373 U.S. 179, 186-187, 83 S.Ct. 1151, 1154-

1155 (1963), the United States Supreme Court observed that “[n]one of the several decisions dealing

with this question suggests that reversible error is invariably committed whenever a witness claims

his privilege . . . [in the jury’s presence].” Rather, the Supreme Court noted that lower courts

consider several factors. Id. First, courts consider the presence of prosecutorial misconduct, i.e.,

whether the prosecutor made a conscious and flagrant attempt to build his case out of inferences

arising from invocation of the privilege. Id. Second, courts consider whether the witness’ refusal

to answer “added critical weight to the prosecutor’s case in a form not subject to cross-examination,

and thus unfairly prejudiced the defendant.” Id. See also Douglas v. State of Alabama, 380 U.S.

415, 418-420, 85 S.Ct. 1074, 1076-1077 (1965)(under the latter circumstances, the witness’ refusal

-20-

to answer will violate the Confrontation Clause of the Sixth Amendment to the United States

Constitution, applicable to the states through the Fourteenth Amendment).

The two factors articulated above have subsequently been referred to as the “Namet

test.” See, e.g., United States v. Victor, 973 F.2d 975, 979 (1st Cir. 1992). In applying this “test,”

courts more specifically consider (1) the prosecutor’s intent in calling the witness; (2) the number

of questions which elicit an assertion of the privilege; (3) whether either side attempted to draw

adverse inferences, in closing argument or at any time during trial, from the witness’ refusal to

testify; (4) whether the inferences relate to central issues or collateral matters; (5) whether the

inferences constitute the only evidence bearing upon the issue or are cumulative of other evidence;

and (6) whether the trial court provided curative instructions. Id.; United States v. Crozier, 987 F.2d

893, 901 (2nd Cir. 1993).

Having considered the above guidelines, we conclude that the trial court erred in

permitting Mr. Winston to testify before the jury, but the error does not mandate reversal of the

appellant’s convictions. In reaching this conclusion, we acknowledge that, with the possible

exception of establishing Mr. Winston’s acquaintance with the appellant, the prosecution’s motive

in calling Mr. Winston to the witness stand was clearly the creation of an impermissible inference

that Mr. Winston’s testimony would be unfavorable to the appellant and would further establish the

appellant’s guilt of the charged offenses. This inference was underscored by Mr. Winston’s

appearance before the jury in a jail uniform. However, the inference was cumulative of other,

overwhelming evidence of the appellant’s guilt, including the appellant’s own statements to the

police and his testimony at trial. Moreover, the prosecutor in this case only asked a few, purely

preliminary questions prior to Mr. Winston’s invocation of his privilege against self-incrimination.

Finally, during the trial, including closing argument, the prosecutor otherwise refrained from

mentioning to the jury Mr. Winston’s invocation of the privilege. This issue is without merit.

c. Gulf War Syndrome

The appellant next contends that the trial court erred in excluding testimony

concerning “Gulf War Syndrome,” thereby “significantly impair[ing] the jury’s ability to accurately

assess his mental state and . . . [his] ability to form the intent necessary to commit first degree

murder.” The State responds that the disputed testimony was neither relevant nor admissible

pursuant to evidentiary rules governing the admission of expert testimony.

During his trial, the appellant proffered the testimony of Joyce Riley, a nurse,

“medical legal consultant,” and the Spokesperson for the American Gulf War Veteran’s Association.

The trial court conducted a hearing outside the presence of the jury, wherein Ms. Riley informed the

court that she had previously testified as an expert on Gulf War Syndrome and had also testified

concerning chemical and biological warfare before President Clinton’s Presidential Advisory

Commission. With respect to the instant case, she stated that she could not testify that the appellant

was suffering from Gulf War Syndrome but could testify generally concerning problems suffered

by veterans who had fought in the Persian Gulf War. Specifically, Ms. Riley stated that she had

interviewed “hundreds” of veterans of the Persian Gulf War and had examined reports issued by the

United States Senate and other evidence obtained from the federal government, including some

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documents pertaining to “scientifically controlled medical stud[ies],” which were the subject of “peer

review.” On the basis of the interviews and the government documents, she asserted:

[W]e are seeing chronic fatigue, muscle pain, joint pain, night sweats,

chest pain, headaches, extreme emotional ability - - they are not at all

having the same thought processes that they did prior to the Gulf

War. Many of them are divorcing, marital problems, and primarily

we are concerned - - I am concerned about the violent outbursts in

Gulf War Veterans since the Gulf War.

She noted that more than fifty percent (50%) of the veterans that she had interviewed and veterans

whose complaints of “concentration loss and memory loss and problems in thinking processes” are

recorded in government documents “have problems with emotional outbursts, violent behavior and

violent actions, that they are committing, that they never did prior to the Gulf War.”

At the conclusion of the hearing, the trial court declined to admit Ms. Riley’s

testimony pursuant to Tenn. R. Evid. 702, because Ms. Riley was unable “to relate her expertise to

the facts of this case.” The trial court additionally found that Ms. Riley’s testimony relied primarily

upon hearsay statements by veterans allegedly suffering from Gulf War Syndrome and was,

therefore, inadmissible under Tenn. R. Evid. 703.

Expert testimony regarding a defendant’s capacity or lack of capacity to form the

mental state required for the commission of an offense is admissible if it satisfies “general relevancy

standards as well as . . . evidentiary rules which specifically govern expert testimony.” State v. Hall,

958 S.W.2d 679, 689 (Tenn. 1997). In this regard, Tenn. R. Evid. 401 broadly provides that

“‘[r]elevant evidence’ means evidence having any tendency to make the existence of any fact that

is of consequence to the determination of the action more probable or less probable than it would

be without the evidence.” Even relevant evidence may be excluded, however, if its probative value

is “outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury .

. . .” Tenn. R. Evid. 403. Moreover, Tenn. R. Evid. 702 (emphasis added) requires that expert

testimony “substantially assist the trier of fact to understand the evidence or to determine a fact in

issue . . . ,” and the facts or data underlying the expert’s opinion must be “trustworthy,” Tenn. R.

Evid. 703. A trial court’s application of these rules to exclude expert testimony will not be reversed

on appeal absent an abuse of discretion. State v. Edison, 9 S.W.3d 75, 77 (Tenn. 1999).

We conclude that the trial court acted well within its discretion in excluding Ms.

Riley’s testimony. Despite her avowed expertise, Ms. Riley apparently did not interview the

appellant and did not propose to testify that symptoms described by the appellant were consistent

overall with “categorized” symptoms of Gulf War Syndrome. In order to be admissible, an expert’s

testimony must relate to the particular defendant on trial. See Meeks v. State, No. 01C01-9807-CC-

00295, 1999 WL 173972, at *4 (Tenn. Crim. App. at Nashville, March 30, 1999)(interpreting Hall,

958 S.W.2d at 691). Moreover, Ms. Riley did not indicate that, if the appellant were suffering from

Gulf War Syndrome, the syndrome would preclude his formation of the requisite mental state. Our

supreme court emphasized in Hall, 958 S.W.2d at 690, that “[i]t is the showing of a lack of capacity

to form the requisite culpable mental intent [due to a mental disease or defect] that is central to

evaluating the admissibility of expert psychiatric testimony on the issue.” (Emphasis in original).

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Accordingly, Ms. Riley’s testimony was, indeed, irrelevant, raised a significant danger of confusion

of the issues or misleading the jury, and did not satisfy the standard for admissibility of expert

testimony set forth in Tenn. R. Evid. 702.15 This issue is without merit.

d. Consecutive Sentencing

Finally, the appellant argues that the trial court erred in imposing consecutive

sentencing. The State once again disagrees with the appellant. This court’s review of the manner

of service of a sentence is de novo. Tenn. Code. Ann. § 40-35-401(d) (1997). In conducting its de

novo review, this court considers the following factors: (1) the evidence, if any, received at the trial

and the sentencing hearing; (2) the pre-sentence report; (3) the principles of sentencing and

arguments as to sentencing alternatives; (4) the nature and characteristics of the criminal conduct

involved; (5) evidence and information offered by the parties on enhancement and mitigating factors;

(6) any statement by the defendant in his own behalf; and (7) the defendant’s potential for

rehabilitation or treatment. Tenn. Code. Ann. § 40-35-102, -103 (1997), -210 (1994). See also State

v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The burden is upon the appellant to demonstrate the

impropriety of his sentence. Tenn. Code. Ann. § 40-35-401, Sentencing Commission Comments.

See also State v. Wilkerson, 905 S.W.2d 933, 934 (Tenn. 1995). Moreover, if the record reveals that

the trial court adequately considered sentencing principles and all relevant facts and circumstances,

this court will accord the trial court’s determination a presumption of correctness. Tenn. Code. Ann.

§ 40-35-401(d); Ashby, 823 S.W.2d at 169.

Tenn. Code Ann. § 40-35-115(a) (1997) provides that a trial court may impose

consecutive sentencing upon the determination that a defendant meets one of the criteria listed

therein. Moreover, if the trial court classifies a defendant as a dangerous offender pursuant to Tenn.

Code Ann. § 40-35-115(b)(4), the court must also find that the defendant’s sentence reasonably

relates to the severity of his offenses and is necessary in order to protect the public from further

criminal conduct by the defendant. Wilkerson 905 S.W.2d at 938. See also State v. Lane, 3 S.W.3d

456, 460-61 (Tenn. 1999).

In this case, the trial court found that the appellant is a dangerous offender. Tenn.

Code Ann. § 40-35-115(b)(4). However, the trial court failed to make the additional findings

required by Wilkerson, and its determination will not be accorded a presumption of correctness.

Nevertheless, pursuant to our de novo review, we conclude that the trial court properly imposed

consecutive sentencing.

First, we agree with the trial court that the circumstances of this offense amply

demonstrate that the defendant has little or no regard for human life and no hesitation about

committing a crime in which the risk to human life is high. Tenn. Code Ann. § 40-35-115(b)(4).

Indeed, the record reflects that, in murdering his wife, the appellant shot repeatedly through the front

door and walls of his wife’s trailer notwithstanding his certain knowledge of the possibility that his

15

Accordingly, we need not address whether the facts or data underlying Ms. Riley’s

testimony “indicate lack of trustworthiness” under Tenn. R. Evid. 703.

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two daughters were inside. Second, the aggregate length of the appellant’s sentences is without

question commensurate with the gravity of his offenses. Finally, although we have noted the need

for caution when relying totally upon the circumstances of the offenses in applying the public

protection requirement of Wilkerson, we conclude that the requirement has been satisfied in this

case. State v. Shipp, No. 03C01-9907-CR-00312, 2000 WL 290964, at **2-4 (Tenn. Crim. App.

at Knoxville, March 21, 2000). This issue is without merit.

III. Conclusion

For the foregoing reasons, we affirm the judgment of the trial court.

Norma McGee Ogle, Judge

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