Opinion

State of Tennessee v. George Glenn Faulkner

Court
Court of Criminal Appeals of Tennessee
Filed
Apr 10, 1997
Status
Published
Cited by
0 cases
Authority
More cited than 30.2%

The opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

STATE OF TENNESSEE v. GEORGE GLENN FAULKNER

Direct Appeal from the Criminal Court for Putnam County

No. 96-0245, Leon Burns, Jr., Judge

No. 01C01-9812-CR-00488 - Decided June 2, 2000

M1998-00066-CCA-R3-CD

On April 10, 1997, the appellant, George Glenn Faulkner, was convicted by a jury in the Putnam

County Criminal Court of first degree murder and attempted first degree murder. For the offense

of first degree murder, the trial court imposed a sentence of life imprisonment in the Tennessee

Department of Correction. For the offense of attempted first degree murder, the trial court sentenced

the appellant as a standard, Range I offender to twenty-five years incarceration in the Department.

Finally, the trial court ordered consecutive service of the appellant’s sentences. In this appeal as of

right, the appellant presents the following issues for our review: (1) whether the evidence adduced

at the appellant’s trial is sufficient to sustain his convictions of first degree murder and attempted

first degree murder; (2) whether the trial court erred in refusing to admit at trial testimony

concerning prior statements by the appellant; and (3) whether the trial court erred in ordering

consecutive service of the appellant’s sentences. 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 Criminal Court Affirmed

OGLE , J., delivered the opinion of the court, in which WADE, P.J., joined. PEAY, J., not participating.

John Philip Parsons, Cookeville, Tennessee, for the appellant, George Glenn Faulkner.

Paul G. Summers, Attorney General and Reporter, Lucian D. Geise, Assistant Attorney General, Ben

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

OPINION

Factual Background

On April 15, 1996, a Putnam County Grand Jury returned an indictment charging the

appellant in Count One with the first degree, premeditated murder of his wife’s boyfriend, Harvey

Glen “Arlis” Bilbrey, on September 24, 1995, and in Count Two with attempting the first degree,

premeditated murder of his wife, Nancy Faulkner Brooks,1 on the same day. The appellant’s case

proceeded to trial on April 7, 1998. At the trial, the State presented the testimony of Ms. Brooks.

She recounted that she married the appellant in 1984 and, thereafter, resided with him in Florida for

1

Since the appellant’s offenses, Ms. Brooks has divorced the appellant and remarried.

almost eleven years before moving to Tennessee. She characterized her marriage as “[v]ery

miserable, very strained, extremely difficult.” She explained that, during her marriage, the appellant

was involved in an ongoing and heated legal dispute concerning his visitation with his daughter from

a prior marriage. Moreover, the stress stemming from this legal dispute was compounded by the

appellant’s behavior toward Ms. Brooks. Specifically, the appellant closely and jealously monitored

Ms. Brooks’ activities, periodically threatening suicide in order to control her behavior and prevent

her from terminating their relationship. Moreover, the appellant began to exhibit abusive behavior

toward Ms. Brooks’ daughter, Amanda.2

In 1995, notwithstanding their troubled marriage, the couple decided to move to

Tennessee and, accordingly, purchased a home in Putnam County. Ms. Brooks and her daughter,

Amanda, moved into the new home on June 15, 1995. The appellant’s sister, Karen Cooper, and her

family also accompanied Ms. Brooks. The appellant, however, remained in Florida in order to

conclude business.

During the appellant’s absence, Ms. Brooks resolved to divorce the appellant and, at

the end of June 1995, informed the appellant of her decision. Consequently, the appellant drove

from Florida to Tennessee on the weekend of July 4 and attempted, unsuccessfully, to persuade Ms.

Brooks to reconsider her decision. The appellant soon returned to Florida, but the couple continued

to speak daily on the telephone. During these conversations, the couple frequently argued about Ms.

Brooks’ decision to divorce the appellant, and, on several occasions, the appellant threatened to

commit suicide.

In mid-July, Ms. Brooks met Arlis Bilbrey and, approximately one week later,

accepted his invitation to a local gas station for a cup of coffee. At the gas station, they sat at a

picnic table outside and talked. Ms. Brooks confided to Mr. Bilbrey her plans to divorce her

husband and apparently also discussed the possibility of dating Mr. Bilbrey. According to Ms.

Brooks, she and Mr. Bilbrey agreed to wait until the divorce to initiate a relationship.

Subsequently, Ms. Brooks told the appellant about her “date” with Mr. Bilbrey.

Initially, the appellant did not seem to be terribly angry. Rather, he simply asked Ms. Brooks to

postpone making a final decision about the divorce until the following year. Soon, however, the

appellant began to threaten suicide once again and also threatened to kill Ms. Brooks and Mr.

Bilbrey.

On July 27, the appellant made a surprise visit to Tennessee, arriving unexpectedly

at Ms. Brooks’ workplace. He accused Ms. Brooks of having sexual relations with her male co-

workers and again threatened to commit suicide. Ms. Brooks persuaded the appellant to go to a

nearby hotel and rest until she was able to leave work. After work, Ms. Brooks visited the appellant

at the hotel, and the couple began to argue about the divorce. During the course of their argument,

2

Amanda is Ms. Brooks’ daughter from a prior marriage. The appellant adopted Amanda in

1986.

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the appellant barricaded the door to the hotel room and threatened to kill both Ms. Brooks and

himself. According to Ms. Brooks, the appellant additionally stated that Mr. Bilbrey “was an old

man with a shriveled up [penis] and he was going to cut it off and cram it down [Ms. Brooks’] throat,

and why would [she] want that when [she] could have [the appellant].” The appellant then forcibly

engaged in sexual intercourse with Ms. Brooks.

Later, on the same evening, the appellant informed Ms. Brooks that he hated her and

that, in 1986, he had visited prostitutes in an attempt to contract AIDS and infect her with the

disease. He also stated that he had impregnated one of their neighbors in Florida and had paid for

her abortion. Following these confessions, the appellant appeared resigned to a divorce and returned

to Florida.

In August, Ms. Brooks and Mr. Bilbrey began having an affair. Meanwhile, the

appellant continued to make surprise visits to Tennessee, alternating between threats against Ms.

Brooks’ and Mr. Bilbrey’s lives and acceptance of both the divorce and Ms. Brooks’ relationship

with Mr. Bilbrey. Ultimately, due to her fear of the appellant, Ms. Brooks moved into Mr. Bilbrey’s

home in Monterey.

In September, approximately ten days prior to the appellant’s offenses, the appellant

telephoned Ms. Brooks from Florida. He informed Ms. Brooks that she was “running out of chances

and that [she’d] better change her mind.” He reiterated that he intended to kill Ms. Brooks, Mr.

Bilbrey, and himself. Ms. Brooks then heard a “pop” over the telephone followed by silence. For

one moment, Ms. Brooks believed that the appellant had shot himself, and she began to panic. The

appellant, however, began laughing and stated, “I just wanted to see what you’d do. I wanted to see

if you loved me or not.” The appellant further stated that he had purchased a 9 millimeter Beretta

pistol. Later, the appellant called Ms. Brooks again and apologized for threatening her. He seemed

resigned to the pending divorce, assuring Ms. Brooks that he intended to sign the necessary divorce

papers on the following Monday. Both the appellant and Ms. Brooks agreed that, in the future, they

would communicate solely in writing.

On September 24, Ms. Brooks and Mr. Bilbrey went to a local restaurant in Monterey

for breakfast and discussed the possibility of reporting the appellant’s erratic behavior to the local

police department. Subsequently, as they were leaving the restaurant, Ms. Brooks noticed a black

Toyota pickup truck outside the restaurant. Ms. Brooks was troubled, because the appellant had

recently purchased an identical truck. Nevertheless, Ms. Brooks and Mr. Bilbrey got into their car,

and Mr. Bilbrey began to drive them home. They soon noticed, however, that the black truck was

following them, and they decided to stop at a nearby gas station. As they pulled into the gas station,

the truck rammed their car, pinning the car against a pole. The appellant then jumped out of the

truck and began shooting steadily at their car. Two bullets struck Mr. Bilbrey in the arm and

shoulder before he and Ms. Brooks managed to drive away.

The appellant pursued the two victims, who immediately drove to the local police

station. However, when Ms. Brooks and Mr. Bilbrey arrived at the police station, there were no cars

parked in the parking lot. Accordingly, they drove into the parking lot of the nearby Goff Funeral

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Home and attempted to turn their car around. At this point, the appellant caught up to them and

again rammed their car. Ms. Brooks testified that the appellant’s truck was traveling at a speed of

fifty-five or sixty miles per hour when it hit their car, and the force of the impact caused their car to

spin.

When the car stopped spinning, the appellant jumped out of his truck and began firing

his weapon into the car. According to Ms. Brooks, the appellant appeared to be targeting both Mr.

Bilbrey and herself. Specifically, she testified, “And at the funeral home after Arlis took I think two

or three more bullets, [the appellant] put his hand up under [the pistol] and it was like he was trying

to shoot around to the passenger seat or past Arlis.”

When the bullets struck Mr. Bilbrey, his foot pressed down on the accelerator and the

car lunged forward into the Goff Funeral Home. Following the collision, Ms. Brooks attempted to

lie still inside the car and feign death, instructing Mr. Bilbrey to do likewise. She then heard the

appellant walk around the car to the passenger side, clear away debris, and open the door. The

appellant grabbed Ms. Brooks’ head and laughed. He remarked, “Isn’t it ironic? I killed the bitch

and her boyfriend and they crashed into a funeral home.” As the appellant released Ms. Brooks’

head, he further stated, “Goddam it, why can’t I kill myself.” Ms. Brooks continued to lie still with

her eyes closed, but the appellant grabbed her head once again. Ms. Brooks testified that she felt a

hard object pressing against her head, and the appellant said, “Nancy, you’re going to talk to me. .

..”

At that moment, Terry Rizor, an officer with the Monterey Police Department, arrived

at the scene of the shooting. Officer Rizor testified on behalf of the State that, when he arrived at

the Goff Funeral Home, he observed that a car had crashed into the funeral home. The officer then

observed the appellant step from behind the wrecked car and place a pistol under his own chin. The

appellant appeared to be “real excited.” Officer Rizor drew his weapon and asked the appellant to

drop the pistol. The appellant refused, stating to the officer, “I’ve done what I came here to do. Now

I have to die.” Subsequently, he asked Officer Rizor to shoot him, informing the officer that he had

“told them what would happen and they wouldn’t listen; now look what’s happened, I’ve killed

them.”

During the course of his conversation with the appellant, Officer Rizor realized that

there were two people inside the wrecked car and also heard a female voice calling for help. When

the appellant heard the voice, he began to move toward the car but stopped when Officer Rizor

threatened to shoot him. The appellant asked the officer to assist Ms. Brooks. Officer Rizor, in turn,

asked the appellant to drop his pistol. The appellant finally complied with the officer’s request,

placing his pistol in a holster and laying the pistol on the funeral home porch.

Billy E. Parrot, an officer with the Putnam County Sheriff’s Department, also testified

on behalf of the State that, on September 24, 1995, he was dispatched to the Goff Funeral Home.

When he arrived, Officer Rizor and the appellant were engaged in a standoff. As soon as the

appellant surrendered his weapon, Officer Parrot ran to the victims’ car. Upon removing the victims

from the car, the officer observed that Mr. Bilbrey had been shot and appeared to be dead. Ms.

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Brooks was covered in Mr. Bilbrey’s blood but had not sustained any injuries. Paramedics soon

arrived and confirmed that Mr. Bilbrey was dead.

Officer Parrot subsequently searched the appellant’s black Toyota pickup truck.

Inside, he found maps of Putnam County, including a handwritten map providing directions to Mr.

Bilbrey’s home, and a telephone book with Mr. Bilbrey’s name and address highlighted. Officer

Parrot also investigated Mr. Bilbrey’s home and the immediately surrounding area. He discovered

“knobby” tire tracks in a neighbor’s driveway that resembled the tread of the tires on the appellant’s

truck.

Donald Pierce, a detective with the Putnam County Sheriff’s Department, testified

on behalf of the State that the pistol surrendered by the appellant to the police was a 9 millimeter

Beretta. There were three bullets remaining in the ammunition clip and one bullet in the chamber

of the pistol. Moreover, according to Detective Pierce, a search of the appellant’s pickup truck

revealed another, empty ammunition clip or magazine and a gun case containing a fully loaded

magazine, in addition to the aforementioned maps and telephone book. Finally, Detective Pierce

testified that an inspection of the victims’ car revealed bullet holes and spent bullets in the driver’s

side of the car and at least one spent bullet in the passenger’s side of the car.

Marvin Neal, a friend of the appellant and Mr. Bilbrey’s brother- in-law, also testified

on behalf of the State at the appellant’s trial. He related to the jury that he spoke with the appellant

fairly frequently prior to these offenses. During Mr. Neal’s conversations with the appellant, the

appellant threatened to kill Ms. Brooks, Mr. Bilbrey, and himself. According to Mr. Neal, the

appellant stated, “. . . Bilbrey better not ever cross my path.” Mr. Neal also recalled that, prior to

the shooting, the appellant asked him questions concerning the type of car Mr. Bilbrey drove, Mr.

Bilbrey’s place of employment, and places where Mr. Bilbrey could be found after work.

Roger Anderson, Mr. Bilbrey’s neighbor, testified on behalf of the State that, on the

morning of the shooting, he noticed a black Toyota pickup truck driving slowly by his house.

Minutes later, the same truck drove by his house, headed in the opposite direction.

On the day following the shooting, Ms. Brooks visited the appellant’s Florida

residence, where she discovered several used bulls-eye targets, unused silhouette targets, and bullets.

Hoyt Eugene Phillips, a special agent with the Tennessee Bureau of Investigation, testified that he

examined the nine shooting targets discovered by Ms. Brooks. Latent fingerprints on three of the

bulls-eye targets matched the appellant’s fingerprints. Latent fingerprints on several other targets

did not match the appellant’s fingerprints. Finally, “smudges” on several targets were not

susceptible to comparison.

Dr. Charles W. Harlan, an expert in the field of forensic pathology, testified at the

appellant’s trial that he performed Mr. Bilbrey’s autopsy. According to Dr. Harlan, Mr. Bilbrey died

as a result of six bullet wounds and accompanying blood loss. Dr. Harlan opined that the wounds

were caused by five different bullets. He concluded that either of two bullet wounds to the victim’s

chest would have been fatal.

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In defense, the appellant essentially presented testimony in support of the proposition

that, prior to the shooting and at the time of the shooting, he was in a state of passion caused by Ms.

Brooks’ termination of their relationship and Ms. Brooks’ affair with Mr. Bilbrey. Brad Green, Ms.

Brooks’ stepbrother, testified on behalf of the appellant that, contrary to Ms. Brooks’ testimony, Ms.

Brooks was the controlling or “manipulative” partner in the Faulkner marriage. According to Mr.

Green, Ms. Brooks told the appellant “what to do and when to do it.” Mr. Green never observed the

appellant exhibit abusive behavior toward Ms. Brooks or her daughter, and Ms. Brooks never

mentioned to Mr. Green any abusive behavior. Finally, Mr. Green testified that, when Ms. Brooks

announced her intention to divorce the appellant, the appellant became

despondent. He was extremely upset. He would go through crying

jags. He felt that his world was falling apart. . . . He could not

understand why his marriage was dissolving. . . . He would

alternately laugh over what fate had handed him and cry within a 30

second period of time. Like anyone else, he was just physically

upset.

Karen Cooper, the appellant’s sister, also testified on behalf of the appellant that, after

learning of his impending divorce, the appellant became extremely depressed and frequently

discussed the possibility of committing suicide. Indeed, at one point, Ms. Cooper considered

pursuing her brother’s involuntary commitment to a psychiatric hospital. Similarly, Robert Michael

Donahue, one of the appellant’s co-workers in Florida, testified that the prospect of divorce

precipitated a complete change in the appellant’s demeanor. For example, the appellant lost weight,

he began “breaking down on the job site,” he discussed suicide on several occasions, and his hands

shook constantly. Jeffrey Scott Smith, the appellant’s employer, added that, in August and

September of 1995, the appellant began to arrive at work late or not at all. On two or three

occasions, the appellant appeared to be on the verge of tears. Finally, on September 22, 1995, two

days before the shooting, the appellant remarked to his employer that he felt tired and wanted to

“give up.”

Linda Schoonover, a family law attorney licensed in Florida, testified on behalf of

the appellant that, in 1994, she advised the appellant and Ms. Brooks concerning a child custody

dispute. At that time, Ms. Schoonover believed that the Faulkners’ marriage was happy and stable.

However, in early August of 1995, the appellant again visited her office, informed her that his wife

wanted a divorce, and asked that she represent him. The appellant was “very upset, in tears.”

Accordingly, Ms. Schoonover spoke with Ms. Brooks and suggested marriage counseling. Ms.

Brooks rejected her suggestion and declined to explain to Ms. Schoonover her reasons for seeking

a divorce. Subsequently, on numerous occasions, the appellant visited Ms. Schoonover or spoke

with her on the telephone concerning the divorce. Ms. Schoonover testified that the appellant

appeared despondent, and she quickly became concerned that the appellant would hurt himself. She

briefly considered the possibility of involuntary commitment proceedings but ultimately advised the

appellant to seek psychological counseling.

Finally, Greg Whittaker and Pat Story, both officers with the Putnam County

Sheriff’s Department, testified on behalf of the appellant. Officer Whittaker recounted that,

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immediately after the appellant’s arrest, as the officer was transporting the appellant to the Putnam

County Jail, the appellant began crying and hyperventilating. Officer Story further testified that,

when the appellant arrived at the Putnam County Jail, he was “upset, crying, just visibly disturbed.”

The appellant stated to Officer Story, “Dammit, damn my soul . . . I should have just killed myself.”

Following the parties’ presentation of proof, the trial court instructed the jury on the

following offenses pursuant to Count I of the indictment pertaining to Mr. Bilbrey: first degree

murder; second degree murder; voluntary manslaughter; reckless homicide; and criminally negligent

homicide. With respect to Count II of the indictment pertaining to Ms. Brooks, the trial court

instructed the jury on the following offenses: attempted first degree murder; attempted second degree

murder; and attempted voluntary manslaughter. Again, the jury found the appellant guilty of the first

degree murder of Mr. Bilbrey and the attempted first degree murder of Ms. Brooks.

Analysis

I. Sufficiency of the Evidence

The appellant first contends that the evidence adduced at trial is insufficient to sustain

the jury’s verdicts. In Tennessee, appellate courts accord considerable weight to the verdict of a jury

in a criminal trial. In essence, a jury conviction removes the presumption of the appellant’s

innocence and replaces it with one of guilt, so that the appellant carries the burden of demonstrating

to this court why the evidence will not support the jury’s findings. State v. Tuggle, 639 S.W.2d 913,

914 (Tenn. 1982). The appellant must establish that “no reasonable trier of fact” could have found

the essential elements of the offenses beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

319, 99 S. Ct. 2781, 2789 (1979); Tenn R. App. P. 13(e).

Accordingly, on appeal, the State is entitled to the strongest legitimate view of the

evidence and all reasonable inferences which may be drawn therefrom. State v. Williams, 657

S.W.2d 405, 410 (Tenn. 1983). In other words, questions concerning the credibility of witnesses and

the weight and value to be given the evidence, as well as factual issues raised by the evidence, are

resolved by the trier of fact, and not the appellate courts. State v. Pruett, 788 S.W.2d 559, 561

(Tenn. 1990).

With respect to the appellant’s conviction of first degree murder, the State was

required to prove beyond a reasonable doubt that the appellant killed Mr. Bilbrey intentionally and

with premeditation. Tenn. Code Ann. § 39-13-202(a)(1) (1995). “[A] person . . . acts intentionally

with respect to the nature of the conduct or to a result of the conduct when it is the person’s

conscious objective or desire to engage in the conduct or cause the result.” Tenn. Code Ann. § 39-

11-302(a) (1997); see also Tenn. Code Ann. § 39-11-106(a)(18) (1995). A premeditated act

additionally requires the prior exercise

of reflection and judgment. ‘Premeditation’ means that the intent to

kill must have been formed prior to the act itself. It is not necessary

that the purpose to kill pre-exist in the mind of the accused for any

definite period of time. The mental state of the accused at the time

the accused allegedly decided to kill must be carefully considered in

order to determine whether the accused was sufficiently free from

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excitement and passion to be capable of premeditation.

Tenn. Code Ann. § 39-13-202(d). “At the same time, if a defendant becomes impassioned later, but

‘the intent to kill was formed as a result of premeditation . . . prior to the crime, it is immaterial that

the act was carried out in a state of passion.’” State v. Sims, No. W1998-00634-CCA-R3-DD, 2000

WL 298901, at *7 (Tenn. Crim. App. at Jackson, March 14, 2000)(citations omitted).

With respect to the appellant’s conviction of attempted first degree murder, the State

was required to prove beyond a reasonable doubt that the appellant acted intentionally and with

premeditation to kill Ms. Brooks. Tenn. Code Ann. § 39-12-101(a) (1997). Specifically, the State

was required to prove that the appellant

act[ed] with intent to complete a course of action or cause a result that

would constitute [first degree murder], under the circumstances

surrounding the conduct as the [appellant] believe[d] them to be, and

the conduct constitute[d] a substantial step toward the commission of

the offense.

Tenn. Code Ann. § 39-12-101(a)(3).

The appellant alleges that the State failed to prove beyond a reasonable doubt that he

acted with premeditation.3 He argues that, even assuming his intent to kill both Mr. Bilbrey and Ms.

Brooks, the evidence adduced at trial at most established his guilt of voluntary manslaughter and

attempted voluntary manslaughter.4 According to the appellant, the evidence demonstrated that,

prior to the shooting and at the time of the shooting, he was acting “in a state of passion produced

by adequate provocation sufficient to lead a reasonable person to act in an irrational manner,” the

adequate provocation being his wife’s affair with Mr. Bilbrey. Tenn. Code Ann. § 39-13-211(a)

(1997).

Initially, “[n]ot every provocation will reduce killing to manslaughter, for the

resentment must bear a reasonable proportionality to the provocation.” State v. Jesperson, No.

03C01-9206-CR-00212, 1993 WL 305781, at *7 (Tenn. Crim. App. at Knoxville, August 11, 1993).

See also State v. Skidmore, No. 03C01-9502-CR-00039, 1997 WL 199061, at *8 (Tenn. Crim. App.

at Knoxville, April 24, 1997)(in evaluating the adequacy of provocation under the voluntary

manslaughter statute, a court must employ an objective standard). Thus, although our supreme court

has noted the “well settled legal principle” that marital infidelity “is an act obviously calculated to

arouse ungovernable passion,” State v. Thornton, 730 S.W.2d 309, 312 (Tenn. 1987), the adequacy

3

The appellant also argues in his brief that the State failed to prove beyond a reasonable

doubt that he acted with deliberation. However, the State was not required to prove deliberation

under the statute in effect at the time of the appellant’s offenses. Tenn. Code Ann. § 39-13-

202(a)(1).

4

We note in passing that voluntary manslaughter is a lesser included offense of first degree

murder under the test announced in State v. Burns, 6 S.W.3d 453, 466-467 (Tenn. 1999). See Sims,

No. W1998-00634-CCA-R3-DD, 2000 WL 298901, at *13.

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of the provocation depends upon the circumstances of each case, including whether the defendant

was separated or divorced from his spouse and whether the defendant actually witnessed intimate

activity between a spouse and a paramour. See, e.g., Jesperson, No. 03C01-9206-CR-00212, 1993

WL 305781, at *7. Moreover, the passage of time following the discovery of marital infidelity,

sufficient for any passion or emotion of a defendant to cool, might warrant a verdict of murder.

Thornton, 730 S.W.2d at 313. See also Jesperson, No. 03C01-9206-CR-00212, 1993 WL 305781,

at *7.

In this case, the appellant and Ms. Brooks were separated and engaged in divorce

proceedings at the time of Ms. Brooks’ affair with Mr. Bilbrey. Moreover, the appellant never

witnessed any intimate activity between Ms. Brooks and Mr. Bilbrey.5 Finally, by the time the

appellant observed his wife and Mr. Bilbrey leaving the restaurant in Monterey on the morning of

the shooting, the appellant had known of his wife’s affair with Mr. Bilbrey for at least one month,

since his wife began living with Mr. Bilbrey in Mr. Bilbrey’s Monterey home. Under these

circumstances, the jury’s rejection of the notion of adequate provocation was well within its

prerogative.

That having been said, a homicide committed or attempted in the heat of passion

without adequate provocation is second degree murder or the attempt thereof unless the State

establishes the element of premeditation beyond a reasonable doubt. State v. Brown, 836 S.W.2d

530, 543 (Tenn. 1992). Of course, the circumstances surrounding the killing may suffice to satisfy

the State’s burden. See State v. Pike, 978 S.W.2d 904, 914 (Tenn. 1998), cert. denied, 526 U.S.

1147, 119 S.Ct. 2025 (1999); State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997); Brown, 836

S.W.2d at 539; State v. Burlison, 868 S.W.2d 713, 717 (Tenn. Crim. App. 1993). Specifically, the

following factors will support a jury’s inference of premeditation: (1) Facts about the defendant’s

prior relationship to the victim from which motive may be inferred; (2) Declarations by the

defendant of an intent to kill; (3) Planning activities by the defendant before the killing, including

the procurement of a weapon or preparations for concealment of the crime; (4) The nature of the

killing, including the defendant’s use of a deadly weapon upon an unarmed victim, the killing of the

victim while the victim is retreating or attempting to escape, or the particular cruelty of the killing;

(5) The defendant’s demeanor before and after the killing, including calmness immediately after the

killing. Pike, 978 S.W.2d at 914-15; Bland, 958 S.W.2d at 660 (citing Brown, 836 S.W.2d at 541-

42, and State v. West, 844 S.W.2d 144, 148 (Tenn. 1992)); State v. Gentry, 881 S.W.2d 1, 4-5

(Tenn. Crim. App. 1993); State v. Anderson, 835 S.W.2d 600, 605 (Tenn. Crim. App. 1992). With

respect to the nature of the killing, repeated shots or blows will not alone establish premeditation but

may be considered along with other circumstances in assessing the existence of premeditation.

5

Ms. Brooks testified that, in August, before she moved into Mr. Bilbrey’s home, the

appellant informed her that he had hired a private detective, who had taken photographs of her and

Mr. Bilbrey. Although the appellant was aware of the subject of the photographs, the appellant had

not yet seen the photographs. Subsequently, both the appellant and Ms. Brooks agreed that they

would not look at the photographs, as “it wasn’t going to be beneficial to anything.” Accordingly,

the appellant destroyed the photographs.

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Brown, 836 S.W.2d at 542.

Again, the evidence adduced at trial reflects that, during the months preceding the

shooting, the appellant was alternately angered by and resigned to his impending divorce and his

wife’s relationship with Mr. Bilbrey. During this time period, the appellant repeatedly threatened

both Ms. Brooks’ and Mr. Bilbrey’s lives. Moreover, less than two weeks prior to the shooting, the

appellant purchased a 9 millimeter Beretta pistol in Florida and practiced target shooting. The

appellant also obtained directions to Mr. Bilbrey’s home, where Ms. Brooks was currently residing

with Mr. Bilbrey. The appellant similarly asked Mr. Bilbrey’s brother-in-law for information

concerning Mr. Bilbrey’s car, his employment, and, generally, his daily activities. Following these

preparations, the appellant drove from Florida to Tennessee, carrying with him his pistol and extra

ammunition clips and bullets. Upon arriving in Tennessee, the appellant first drove past Mr.

Bilbrey’s home and, subsequently, located Ms. Brooks and Mr. Bilbrey at a local restaurant. After

following the victims for a short distance, the appellant rammed their vehicle with his truck and

repeatedly fired his weapon into their vehicle. When the victims fled, the appellant pursued them,

cornered them in a parking lot, rammed their vehicle with his truck once again, and discharged more

bullets into the vehicle. Finally, believing that both victims were dead, the appellant laughed,

remarking upon the irony of their deaths at a funeral home. Upon the arrival of the police, the

appellant apparently did become “real excited,” but he also confessed to Officer Rizor that he had

“done what [he] came . . . to do.” As to the appellant’s repeated threats to commit suicide before and

after the shooting, the record reflects that these threats were more a function of habit and

manipulation than the product of any passion. In sum, the record amply supports the jury’s

determination that the appellant “was sufficiently free from excitement and passion to be capable

of premeditation.” Tenn. Code Ann. § 39-13-202(d).

The appellant also argues that the record does not support the jury’s determination

that he intended to kill Ms. Brooks in addition to Mr. Bilbrey. We disagree. Again, the appellant’s

threats prior to the shooting encompassed Ms. Brooks. Significantly, the appellant executed his

planned attack when Ms. Brooks and Mr. Bilbrey were together, ramming his truck into a vehicle

containing both Ms. Brooks and Mr. Bilbrey. Moreover, Ms. Brooks testified that, during the

shooting, the appellant appeared to be directing bullets toward her. Finally, at least one bullet was

recovered from the passenger side of the vehicle. This issue is without merit.

II. Testimony Concerning Prior Statements by the Appellant

The appellant next argues that the trial court erred in refusing to admit at trial the

testimony of his sister, Kathy Carter, concerning his prior statements. Defense counsel proffered

Ms. Carter’s testimony during a jury-out hearing, indicating that Ms. Carter intended to describe her

telephone conversation with the appellant on the day before the instant offenses, immediately prior

to the appellant’s trip to Tennessee. During this telephone conversation, the appellant stated to Ms.

Carter that he intended to drive to Tennessee and commit suicide, because he wanted Ms. Brooks

to find his body in the home that they had purchased together in Tennessee.

The State objected to the introduction of the proffered testimony, arguing that the

appellant’s statements to Ms. Carter were self-serving. The State explained that the sole conceivable

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purpose of introducing the statements was to demonstrate that, on the occasion of the instant

offenses, the appellant traveled to Tennessee intending to kill himself rather than Ms. Brooks or Mr.

Bilbrey. Defense counsel denied that he was seeking to introduce the appellant’s statements to Ms.

Carter in order to establish the truth of the matter asserted in the statements. Rather, counsel argued

that he was attempting to show the appellant’s state of mind prior to and at the time of the shooting.

The trial court concluded that the statements were self-serving and, therefore, inadmissible.

Initially, it has long been held in Tennessee that, generally, a defendant may not

introduce self-serving statements without testifying. See, e.g., State v. King, 694 S.W.2d 941, 945

(Tenn. 1985); Moon v. State, 242 S.W. 39, 54 (Tenn. 1922); State v. Belser, 945 S.W.2d 776, 784

(Tenn. Crim. App. 1996); State v. Brooks, 909 S.W.2d 854, 862-863 (Tenn. Crim. App. 1995); State

v. Turnmire, 762 S.W.2d 893, 897 (Tenn. Crim. App. 1988); State v. DePriest, 697 S.W.2d 597, 602

(Tenn. Crim. App. 1985); State v. Hall, 552 S.W.2d 417, 418 (Tenn. Crim. App. 1977); State v.

DeJongh, No. 03C01-9806-CR-00211, 1999 WL 71796, at *4 (Tenn. Crim. App. at Knoxville,

February 16, 1999). This rule simply acknowledges that such statements constitute hearsay if

offered to prove the truth of the matter asserted therein and, like other hearsay evidence, are

unreliable. See, e.g., NEIL P. COHEN , ET AL., TENNESSEE LAW OF EVIDENCE § 803(1.2).2, at 514

(Michie ed., 3d ed. 1995)(citing Turnmire, 762 S.W.2d at 897)(a declarant may not use his or her

own statement as an admission under Tenn. R. Evid. 803(1.2)). In other words,

“[t]he vital objection to the admission of [a self-serving declaration]

is its hearsay character; the phrase ‘self-serving’ does not describe an

independent ground of objection.”

Palmer v. Nationwide Mutual Fire Insurance Company, 723 S.W.2d 124, 128 (Tenn. App.

1986)(citation omitted). See also Hassell v. Metropolitan Government of Nashville and Davidson

County, No. 01A01-9310-CV-00459, 1994 WL 374515, at *2 (Tenn. App. at Nashville, July 13,

1994).

Thus, if a defendant’s self-serving statement is offered for a purpose other than

proving the truth of the matter asserted therein, the statement does not constitute hearsay and will

be admissible unless excluded pursuant to some other rule of evidence. See State v. Roe, No.

02C01-9702-CR-00054, 1998 WL 7107, at *11 (Tenn. Crim. App. at Jackson, January 12, 1998),

perm. to appeal denied, (Tenn.), cert. denied, 526 U.S. 1159, 119 S.Ct. 2049 (1999)(“the key to

determining whether a statement is hearsay is the purpose for which it is offered”). Again, defense

counsel essentially argued at trial that the appellant’s statements to Ms. Carter concerning his intent

to travel to Tennessee and commit suicide, regardless of their truth, buttressed the defense’s theory

that, prior to these offenses and at the time of these offenses, the appellant was in a state of passion.

See COHEN , supra, § 801.7 at 499 (“utterances offered for the underlying implied assertion that is

circumstantially implicit in the literal spoken or written words” is often viewed as nonhearsay). See

also Roe, No. 02C01-9702-CR-00054, 1998 WL 7107, at *10-11; State v. Goins, No. 03C01-9502-

CR-00026, 1996 WL 438891, at *7-8 (Tenn. Crim. App. at Knoxville, July 30, 1996). We agree

that, if proffered for this purpose, the appellant’s statements to Ms. Carter were nonhearsay.

Moreover, even assuming that the appellant proffered his statements to prove the truth of the matter

asserted therein, i.e., that he did, in fact, plan to travel to Tennessee and commit suicide, we note that

the statements would be encompassed by the state of mind exception to the hearsay rule. Tenn. R.

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Evid. 803(3). Finally, evidence which tends to prove or disprove a required mental state is relevant

and generally admissible pursuant to Tenn. R. Evid. 402 and 403. State v. Hall, 958 S.W.2d 679,

689 (Tenn. 1997). We acknowledge that “‘[a]t some point, . . . mental state on one day may become

irrelevant in assessing mental state far in the future or past.’” Goins, No. 03C01-9502-CR-00026,

1996 WL 438891, at *7 (citation omitted). Nevertheless, we conclude that the appellant’s prior

statements in this case were admissible. In any event, in light of the overwhelming evidence

adduced at trial, the trial court’s error was harmless, and the appellant is not entitled to relief. See

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

III. Consecutive Sentencing

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

6

sentencing. Appellate 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,

-210 (1997). 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 only 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 whose

behavior indicates 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). The trial court

explained:

[W]hat’s particularly disturbing to me is the manner in which [the

offenses were] . . . committed. . . . [T]o drive. . .eight or ten hours . .

6

The State suggests in its brief that the appellant is also challenging the length of his sentence

for the offense of attempted first degree murder. However, the appellant’s brief does not reflect any

such challenge.

-12-

.with this feeling and then to just in two separate incidences attempt

to kill in the presence of the public and many witnesses would in my

mind satisfy the statute that the circumstances justify a dangerous

offender finding. . . .

As the State concedes, the trial court failed to make the additional findings required by our supreme

court in Wilkerson and Lane.

Exercising our power of de novo review, we conclude that the trial court properly

imposed consecutive sentencing. We agree with the trial court that the circumstances of the instant

offenses justify a dangerous offender classification. Moreover, the appellant’s aggregate sentence

reasonably relates to the severity of these offenses. Finally, we conclude that the appellant’s

sentence is necessary in order to protect the public from further criminal conduct by the appellant.

In this regard, we note that, according to Ms. Brooks’ testimony at the sentencing hearing, the

appellant has previously engaged in violent, criminal behavior. Moreover, the record reflects poor

potential for rehabilitation. For example, Ms. Brooks testified that, at the time of the sentencing

hearing, the appellant was persisting in attempts to contact her. We additionally note that, at the time

of the instant offenses, the appellant was released on bond by the Orange County Circuit Court in

Florida pursuant to a charge of felony aggravated battery. Finally, the record supports the trial

court’s finding that the appellant has failed to accept responsibility for the instant offenses, assigning

the greater blame to Ms. Brooks. This issue is without merit.

Conclusion

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

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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