# State of Tennessee v. Kayln Marie Polochak

> Court of Criminal Appeals of Tennessee · January 16, 2015

URL: https://www.frixlaw.com/law-library/cases/2770742

## Case

- **Court:** Court of Criminal Appeals of Tennessee
- **Decided:** January 16, 2015
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge Robert H. Montgomery
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2770742

## How later opinions describe it (automated extraction)

- holding that a homicide defendant’s Sixth Amendment rights were violated when questioned by a law enforcement officer posing as a jail inmate

## Opinion text

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs October 29, 2014

STATE OF TENNESSEE v. KAYLN MARIE POLOCHAK

Appeal from the Criminal Court for Overton County
No. 2011-CR-45 David A. Patterson, Judge

No. M2013-02712-CCA-R3-CD - Filed January 16, 2015

The Defendant, Kayln Marie Polochak, was convicted by an Overton County Criminal Court
jury of first degree premeditated murder, first degree felony murder, conspiracy to commit
first degree murder, a Class A felony, especially aggravated robbery, a Class A felony, and
theft, a Class D felony. See T.C.A. §§ 39-13-202, 39-13-103, 39-13-403, 39-14-103 (2014).
The trial court merged the first degree and felony murder convictions and imposed a life
sentence. The court also imposed concurrent sentences of fifteen years at 30% service for
conspiracy to commit first degree murder, fifteen years at 100% service for especially
aggravated robbery, and two years at 30% service for theft. On appeal, she contends that (1)
the evidence is insufficient to support her convictions, (2) the trial court erred by denying her
motion for a judgment of acquittal, (3) the trial court erred by denying her motion to suppress
her pretrial statements, (4) the trial court erred by refusing to exclude the video recording of
the crime scene depicting the victim’s body at the scene and a photograph taken during the
victim’s autopsy, (5) the trial court erred by excluding evidence of the victim’s fear of the
codefendant, (6) the trial court erred by excluding witness testimony related to the
Defendant’s mother’s consenting to police questioning of the Defendant, (7) the trial court
erred by failing to provide an intoxication jury instruction, (8) the trial court erred by failing
to provide a duress jury instruction, (9) the mandatory life imprisonment sentence violates
the federal and Tennessee constitutional prohibitions against cruel and unusual punishment,
and (10) the juvenile court erred by transferring her case to the criminal court. We affirm the
judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

R OBERT H. M ONTGOMERY, JR., J., delivered the opinion of the court, in which J OHN E VERETT
W ILLIAMS and R OGER A. P AGE, JJ., joined.

Michael Savage, Livingston, Tennessee, for the appellant, Kayln Marie Polochak.
Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney
General; Randall York, District Attorney General; and Mark E. Gore, Assistant District
Attorney General, for the appellee, State of Tennessee.

OPINION

This case relates to the strangulation death of seventy-two-year-old Hassie Pearl
Breeding on December 10, 2010. At the trial, Teresa Breeding, the victim’s daughter,
testified that she unsuccessfully attempted to telephone the victim on December 11. Her
nephew, Brandon, told her that he and his girlfriend were going to stop by the victim’s house
for a visit. She told Brandon that she had been unable to reach the victim all day and asked
him to text Benjamin Bowers, also her nephew and the codefendant in this case, inquiring
about the victim’s whereabouts. She explained that the Defendant was Mr. Bowers’s
girlfriend and that the Defendant and Mr. Bowers had been living with the victim. She met
the Defendant at Thanksgiving dinner the previous month.

Ms. Breeding testified that at 10:00 p.m. on December 11, 2010, she and her
eight-year-old daughter drove to the victim’s house. Her daughter remained in the car while
Ms. Breeding entered the house. She noticed the lights were off, and the victim’s 2006 silver
Toyota Scion was gone. She said that when she entered one of the bedrooms, she saw a
cover over something on the floor. When she removed the cover, she saw a pillow over the
victim’s face. She said the victim was cold and her skin was discolored. At the time she
found the victim, Ms. Breeding was on the telephone with her niece, Jennifer Bolo. They
each called 9-1-1. While Ms. Breeding was on the telephone with 9-1-1, she saw a cord
around the victim’s neck.

Ms. Breeding identified a diagram of the victim’s house and explained the layout. She
identified a photograph of the victim lying on the bedroom floor and identified the pillow she
removed from the victim’s face. She identified photographs of the victim’s car. She last saw
the victim two or three days previously.

On cross-examination, Ms. Breeding testified that she was on the telephone with Ms.
Bolo when she pulled into the driveway and noticed the lights were off and the victim’s car
was gone and that she asked her niece to stay on the telephone with her. She denied being
afraid. She did not recall finding broken glass near the victim. She agreed she looked in Mr.
Bowers’s room and saw many holes in the walls. Although she never saw Mr. Bowers create
the holes, to her knowledge, Mr. Bowers was responsible for them.

-2-
Ms. Breeding testified that the victim pinned money to the inside of her sock. She
said she was looking for Mr. Bowers when she first entered the house because she wanted
to ask him if he knew the victim’s whereabouts. She spoke to the victim several times per
week.

Billy Breeding, the victim’s son, testified that he was a lienholder on the victim’s car
and that its value at the time of the victim’s death was about $8000. On cross-examination,
Mr. Breeding testified that he saw the victim as often as possible and that he interacted with
Mr. Bowers very little. He denied knowing Mr. Bowers had a reputation for violence. He
recalled, though, an incident when Mr. Bowers was a teenager during which Mr. Bowers
shoved the victim. The police were called to the scene and talked to Mr. Bowers, but Mr.
Breeding heard nothing else about the incident. Mr. Breeding talked to the victim about the
incident.

Mr. Breeding testified that he knew holes existed in the walls of Mr. Bowers’s
bedroom but denied knowing who caused them. He did not recall telling a deputy
investigating the victim’s death that Mr. Bowers had a bad temper and was known for
breaking things when he was angry.

Patricia Bilbrey, the victim’s daughter, testified that she learned about the victim’s
death from her niece. She identified Mr. Bowers as her nephew and said he lived with the
victim. She said the Defendant was Mr. Bowers’s girlfriend, who also lived at the victim’s
house. She said Mr. Bowers was about twenty or twenty-one years old at the time of the
victim’s death. She said the victim was about 5'4", weighed about ninety-eight pounds, and
was in poor health with “crippling arthritis,” a bad knee, and heart problems.

On cross-examination, Ms. Bilbrey testified that the victim had placed her money in
her sock to prevent anyone from knowing where she kept it. She agreed Mr. Bowers had
previously taken some of the victim’s medication. She said the victim generally dreaded
going home because the Defendant and Mr. Bowers left dirty dishes in the kitchen and
clothes on the floor and because the Defendant yelled at the victim. She denied that the
victim claimed Mr. Bowers was violent toward the victim. She admitted, though, the victim
claimed Mr. Bowers had pushed the victim. She denied seeing Mr. Bowers act violently or
yell at anyone. She was not surprised Mr. Bowers and the Defendant were suspects in the
victim’s death. She acknowledged she had not told the police that she was not surprised at
the Defendant’s involvement.

-3-
Overton County Sheriff’s Deputy Tim Porter testified that he responded to the scene
and that he found the victim lying on the floor with a cover over her legs and a red cord
around her neck. A pillow was just above her head. She did not have a pulse, and
paramedics declared her deceased.

On cross-examination, Deputy Porter testified that Deputy Steve Flowers began the
crime scene log. He said a dog was on the back porch and did not know if the dog had been
inside the house after the killing. He did not recall seeing a cat. He said the two paramedics
were escorted inside the house to the victim’s location, and two others came to the bedroom
in which the victim was found. He denied those who entered the house wore protective
coverings on their shoes. He did not recall Fire Chief Rocky Dial being at the scene. On
redirect examination, he denied seeing Chief Dial inside the victim’s house.

Tennessee Bureau of Investigation (TBI) Special Agent Steve Huntley testified that
he arrived at the scene around 12:35 a.m. He said that Mr. Bowers and the Defendant were
considered suspects early in the investigation and noted that they were missing, along with
the victim’s car. He entered the house after a search warrant was obtained, and the outside
of the house was photographed and video recorded.

A recording of the crime scene was played for the jury while Agent Huntley narrated.
The recording showed no broken windows or doors and no signs of forced entry. A cat was
seen walking around inside the house. Agent Huntley noted that the victim was found inside
Mr. Bowers and the Defendant’s bedroom and that the victim was still wearing her jewelry.
A red “dog cord” was found around the victim’s neck. He noted the recording showed holes
in the bedroom door and walls. Items were marked with evidence placards, including two
hats, a black t-shirt, and a red-brownish spot on the floor. Inside the Defendant and Mr.
Bowers’s bedroom, evidence placards identified the dog cord and wire cutters. In the
entryway to the adjoining bathroom, a black ski mask with the eyes cut out and two black
gloves were found. A lens from a pair of eyeglasses was found, and the respective broken
eyeglasses were found in the bedroom with the victim. The blanket and the pillow that
covered the victim were also identified. Outside the victim’s house, a Chevy Blazer was
parked in the driveway, and Agent Huntley noted the passenger-side window was broken and
a screwdriver was lying nearby on the ground. Inside the Blazer, the victim’s TennCare card
was found.

Agent Huntley testified that the dog cord found around the victim’s neck, the pillow
and pillowcase, and the wire cutters were submitted to the TBI Crime Laboratory for
analysis. He identified photographs of the victim after the blanket was removed, which
showed a $20 bill protruding from the victim’s left sock. He learned during the course of his
investigation that the victim kept money in the socks she wore.

-4-
Agent Huntley testified that he and TBI agents traveled to Indiana where Mr. Bowers
and the Defendant were found. The Defendant and Mr. Bowers had the victim’s car, which
Agent Huntley searched upon arriving in Indiana. The victim’s utility bill was found inside
the car. Also inside the car was a black purse containing keys, a pink cell phone, and a gold
watch. In the front passenger seat, he found a handwritten note signed by the Defendant.
The letter stated,

Ben is the only person who has . . . ever had my heart like this[.] I love him
so much. If you have found this you obviously know what has happened. I
want his last name on my grave & I want to be cremated w[ith] him. Kim
Coffel would be my mother. She made me go this way. She’s ignored all my
signs for years. She isn’t a mom & will never be one now.

The letter identified a telephone number for the reader to call and said Natalie “should know
I love her & everyone else.” The Defendant wrote she loved “Benjamin to[o] much. P/z
d[o]n’t break us apart.” Agent Huntley stated that a black backpack was also found inside
the victim’s car.

Agent Huntley testified that the victim’s car was taken to the local police department,
and Mr. Breeding returned the car to Tennessee. Agent Huntley searched the car again after
it was returned to Tennessee and found a Food Lion receipt dated December 10, 2010, at
9:13 p.m. and two toboggans. He said the toboggans were seen inside the car when it was
searched in Indiana. He did not realize they were connected to the Defendant and Mr.
Bowers until he saw video footage of them wearing the toboggans in Overton County. He
said, “[T]ake right, go through Glasgow, take 65” was written on the back of the receipt.

Agent Huntley testified that he obtained video recordings from various places in
Overton County, including a convenience store and Food Lion. He obtained warrants for the
Defendant’s and Mr. Bowers’s DNA, and the samples were submitted to the crime laboratory
for analysis. He said the black gloves and ski mask found inside the victim’s house were also
submitted to the crime laboratory for analysis. He identified a photograph of a Kentucky
Fried Chicken box found on the kitchen counter inside the victim’s house and said the
purchase receipt was dated December 10, 2010, at 5:07 p.m.

On cross-examination, Agent Huntley testified that he reviewed the log identifying
who was allowed to enter the crime scene. He agreed several emergency workers were
allowed inside the house after the victim was declared dead, and no legitimate reason existed
for their entry. He also agreed the log did “not document[]” each time someone left the crime
scene area. He did not know if everyone inside the crime scene wore gloves and protective
coverings over their shoes.

-5-
Agent Huntley testified that the medical examiner gave him the victim’s clothes and
jewelry. Regarding the reddish-brown spot on the floor of the victim’s house, he agreed that
the property inventory stated that it was blood, that the substance was not analyzed, and that
he did not know what it was. Regarding the red substance found on a door, he said the
substance was not analyzed. Although he did not know the cause of death, he said the victim
was clearly strangled.

Agent Huntley testified that his theory of the case was Mr. Bowers placed his foot on
the victim’s back and pulled the dog cord tight around the victim’s neck. He said the
Defendant’s and Mr. Bowers’s statements supported the theory. Wire cutters were collected
from the Defendant and Mr. Bowers’s bedroom and analyzed to determine if the cutters were
used to cut the dog cord. He noted one piece of the dog cord was found around the victim’s
neck and another piece was found inside the Defendant and Mr. Bowers’s bedroom. He
agreed no evidence showed the Defendant touched the wire cutters, however, Mr. Bowers
admitted to using the wire cutters to cut the dog cord.

Agent Huntley testified that he found a broken eyeglass lens on the floor near the
victim and that the frames were lying on a pile of clothes in the same room. He did not know
how the frames came to be on the pile of clothes. No fingerprints were found on the frames,
and the frames were not analyzed for the presence of DNA or fibers. He agreed he did not
obtain the Defendant’s fingerprints, although he obtained Mr. Bowers’s fingerprints. He
denied the blanket found covering the victim was analyzed but said the pillow found on the
victim’s face showed the presence of the Defendant’s and Mr. Bowers’s DNA profiles. He
said he did not know if the Defendant’s living in the victim’s house might explain the
presence of her DNA on the pillow. He agreed the crime laboratory and the medical
examiner were told the police suspected the victim was strangled and smothered. He
considered the dog cord and the pillow as “instruments of death.”

Agent Huntley testified that the Defendant was a suspect even before she gave her
confession. He learned during the investigation that the Defendant was in the bedroom when
Mr. Bowers began choking the victim with the dog cord. He said the Defendant came out
of the bedroom, placed a pillow over the victim’s face, and smothered the victim. The
Defendant stated that she was not asleep when Mr. Bowers began strangling the victim.

Agent Huntley testified that he believed the scene was staged to look like a “bad
burglary” based on the ski mask and gloves found inside the house and the broken car
window and screwdriver found outside the house. He denied the screwdriver was analyzed
because Mr. Bowers admitted to breaking the car window with the screwdriver and agreed
no evidence suggested the Defendant was involved with breaking the window. He did not
see signs of a struggle inside the house and did not recall any abrasions to the victim’s body.

-6-
The victim’s clothes were not analyzed because the police knew who killed the victim based
on the investigation, the Defendant’s and Mr. Bowers’s confessions, and the presence of their
DNA on the pillow. He noted that the Defendant and Mr. Bowers fled to Indiana in the
victim’s car and that the Defendant told two paramedics that she and Mr. Bowers killed the
victim.

Agent Huntley testified that scrapings from under the victim’s fingernails were
analyzed for DNA but that none was found. He noted the victim was a frail, elderly woman
who, according to the Defendant, could not fight back. Mr. Bowers was 5'9" to 5'10" tall and
weighed about 160 pounds.

Agent Huntley testified that the video recording of the scene showed that a cat was
inside the victim’s house. He placed the cat in the master bathroom after he arrived. He did
not know if the gloves found inside the house were for a man, but after examining them, he
said they appeared to be for a “small” person. He could not identify an object on the
victim’s forefinger, but he said the object did not appear to be a fiber. He said the object
could have been on the victim all day. He did not know if the ring on her forefinger was
backward. He agreed that if the victim’s ring was backward, it could have become “turned
around” during a struggle or when her body was dragged. He denied having the victim’s ring
analyzed for DNA.

Agent Huntley testified that two of the holes in the door were created when Mr.
Bowers became angry due to the Defendant’s mother’s threatening to report Mr. Bowers and
the Defendant to the police. He identified holes in the wall of the Defendant and Mr.
Bowers’s bedroom. He said Mr. Bowers possessed the wire cutters before the victim came
home.

Agent Huntley testified that the crime scene log failed to show when Detective Steve
Hritz left the scene. He said, though, the log correctly reflected who entered the scene. He
agreed his request to the crime laboratory stated that the Defendant and Mr. Bowers choked
the victim with a dog cord and used a pillow to prevent her from breathing.

On redirect examination, Agent Huntley testified that he provided the statement of
facts for the crime laboratory request after investigating the scene, collecting evidence from
the medical examiner, and interviewing the Defendant and Mr. Bowers. He said Detective
Hritz assisted him at the scene.

Agent Huntley testified that he attempted to corroborate the Defendant’s confession
with the physical evidence from the scene and Mr. Bowers’s confession. The Defendant’s
confession was consistent with the evidence found at the scene, and Agent Huntley said the

-7-
Defendant’s and Mr. Bowers’s confessions “pretty much matched.” He agreed the
Defendant’s statement that she and Mr. Bowers attempted suicide corroborated her statement
to the police that they wanted to go out with a bang.

Agent Huntley read to the jury the written statement Mr. Bowers provided to the
police. In the statement, Mr. Bowers stated that his grandmother allowed him and the
Defendant to live with her and that the victim treated them well. They used the bedroom
across from the bathroom, which had the holes in the walls. He admitted stealing from the
victim previously and knew the victim kept her money in a black pouch tucked in her sock.
Mr. Bowers’s only concerns in life, though, were his drug addiction and the Defendant.

On the day of the killing, Mr. Bowers said he and the Defendant stayed home, and
they talked about how they “could be together.” He said, “We figured we would kill my
Grandmother and take her money.” They packed their belongings before the victim arrived
home, and he said the Defendant thought of choking the victim with a dog leash. He said the
plan was for Mr. Bowers to approach the victim from behind and place the leash around her
neck. He said he practiced on the Defendant to determine how best to do it. He cut the leash
with the wire cutters and left them in their bedroom. He stated, “I guess . . . me and [the
Defendant] planned this out even premeditated what we did.” When the victim arrived home
at 5:30 p.m., Mr. Bowers approached her from behind, placed the leash around her neck, and
choked her. He said he wore the black gloves during the attack. He yelled for the
Defendant’s assistance. The Defendant came from their bedroom with a pillow and placed
it over the victim’s face. The victim fell to the floor as Mr. Bowers applied pressure. As he
pulled the leash as tight as possible, the Defendant held the pillow over the victim’s face.
The victim attempted to fight, and Mr. Bowers heard “a little sigh and gurgle.” The
Defendant laid her entire body on the victim and applied pressure on the pillow. After the
victim was dead, Mr. Bowers took money from the victim’s purse. He removed $420 from
the victim’s right sock. Mr. Bowers and the Defendant placed their belongings in the
victim’s car and left. Mr. Bowers and the Defendant bought gas, drove to Sparta to buy
$200 worth of drugs, and drove to Indiana.

Mr. Bowers noted the Defendant spoke with her mother earlier that day. The
Defendant’s mother threatened to call the police “to get Kalyn home.” Mr. Bowers threw the
wire cutters into the bedroom door. He admitted breaking the window in the Blazer when
he attempted to remove the window to unlock the door and take the battery. He wanted to
put the battery in his car, which would not start. He concluded his statement by saying “this
was the only way me and Kalyn could think of being together.” He claimed he would have
done anything for the Defendant.

-8-
Agent Huntley testified that he considered the Defendant’s and Mr. Bowers’s
statements to be consistent. He said the statements each referenced the same date and time
of the killing, Mr. Bowers’s placing the dog cord around the victim’s neck, the Defendant’s
placing a pillow over the victim’s face, and the motive for obtaining money and a car to get
out of town. He said each statement also claimed that the killing occurred because the
Defendant’s mother threatened to report Mr. Bowers to the police. He agreed the evidence
he submitted for analysis to the crime laboratory was based, in part, on the two confessions.
On recross-examination, he stated that the Defendant admitted to attempting suicide three
times within the twenty-four-hour period before her arrest.

TBI Special Agent Darrin Shockey testified that he assisted in the collection of
evidence. He previously worked as a latent fingerprint examiner at the crime laboratory and
said he and Agent Huntley discussed which items, if any, at the scene should have been
examined for fingerprints. Agent Huntley asked his opinion regarding which items should
have been analyzed. Agent Shockey said none of the items needed analysis, and his
conclusion was based on the fact that the people involved in the killing most likely lived in
the victim’s house.

On cross-examination, Agent Shockey testified that he was not surprised that the
eyeglasses were not analyzed for fingerprints. He agreed the agent in charge decided which
items to analyze.

Overton County Sheriff’s Detective Steve Hritz testified that emergency personnel and
four deputies were at the scene when he arrived. He marked the evidence at the scene with
placards and assisted in the collection of evidence. He said that on January 19, 2011, he and
Agent Huntley searched the victim’s car and collected the Food Lion receipt. He also
assisted in the collection of surveillance videos from the Raceway Market in Livingston. On
cross-examination, he stated that about ten people were inside the victim’s house when he
arrived and that many of them were in the bedroom where the victim was found.

Raceway Market Store Manager Ashley Ogletree testified that on December 10, 2010,
she worked from 2:00 p.m. to 12:00 a.m. Although she did not know Mr. Bowers personally,
she knew who he was and recognized him when he entered the store on December 10.
Although she said Mr. Bowers was with a woman, she could not identify the woman in the
courtroom. She said later, though, that she identified the Defendant as the woman at the
juvenile court transfer hearing. She said Mr. Bowers entered the restroom, and the woman
asked a few customers for directions to Indiana, asked to look at a map, and wrote down
directions. The woman mentioned she was pregnant and was going to name her son
Maverick.

-9-
Ms. Ogletree testified that the police obtained a video recording from the store, which
was played for the jury. Ms. Ogletree narrated as the recording was played. She identified
the Defendant, who reached for a map. The Defendant wore a pink and black toboggan. The
Defendant realized she was looking at the wrong map and grabbed the correct map. Ms.
Ogletree gave the Defendant paper and pen to write directions. Ms. Ogletree’s son was
behind the counter, and the Defendant mentioned she was pregnant. The Defendant acted
“just normal” and was happy she was traveling to Indiana to visit relatives. Mr. Bowers
walked into the store wearing a black toboggan. The Defendant and Mr. Bowers discussed
paying for gas and whether Mr. Bowers wanted food or drink. Mr. Bowers left to pump gas,
and the Defendant paid for it and left. Ms. Ogletree saw them leaving in a “silver
hatchback.”

Livingston Food Lion Store Manager Nathaniel Kennard testified that he was
responsible for maintaining the store surveillance system. He described the locations of the
cameras and said he retrieved the recording from December 10, 2010, which was played for
the jury. Mr. Kennard stated that the recording was time stamped at 9:05 p.m. and showed
a person leaving the store. He said the recording also showed a couple checking out at
register three at 9:12 p.m. Mr Kennard maintained an electronic journal of customer
transactions and identified a $25.26 entry from the 9:12 p.m. transaction. He identified the
Food Lion receipt previously entered into evidence and said it corresponded to the journal
entry.

Rebecca Kinder testified that she was a paramedic in Grant County, Indiana and that
she was working with fellow paramedics Yolande Bailey and Justin Black on December 12,
2012. She, Ms. Bailey, and Mr. Black responded to a possible drug overdose call at the Gas
City Police Department. She learned that the Defendant “shot up . . . nicotine water in a
syringe.” She examined the Defendant, and Ms. Bailey and Mr. Black examined Mr.
Bowers. Ms. Kinder said the Defendant was upset and was wearing soaking wet clothes.
The Defendant’s vital signs were normal. She asked about the Defendant’s clothes, and the
Defendant told her that she had been in the bathtub at her grandparents’ house with her
boyfriend and that the “stuff on TV you see doesn’t work.” When Ms. Kinder asked the
Defendant what she meant, the Defendant said “we” put electronic devices in the bathtub
attempting to electrocute “ourselves.”

Ms. Kinder testified that the Defendant claimed she felt nauseous and might have been
pregnant. She said one of the officers asked the Defendant for her mother’s contact
information, but the Defendant refused and claimed her mother was a drunk who did not care
about her. Ms. Kinder convinced the Defendant to provide the contact information, and she
began to talk about the killing. The Defendant stated that she lived at her boyfriend’s
grandmother’s house with her mother’s consent but that her mother was going to force her

-10-
to return home because her mother stopped receiving “finances of some type.” The
Defendant claimed her mother threatened to have her boyfriend arrested for statutory rape
if the Defendant did not return home.

Ms. Kinder testified that the Defendant continued to cry and stated, “[I]t’s never going
to be okay, I shouldn’t have done it, I shouldn’t have hurt her, I just wish I hadn’t done it.”
Ms. Kinder asked if someone needed medical assistance, and the Defendant said nobody
could help because “she” was in Tennessee. The Defendant said, “[Y]ou can’t help her, we
killed her, oh my God, I wish I hadn’t done that, oh my God, I wish I hadn’t done that.” The
Defendant told Ms. Kinder that her boyfriend “got behind her, took a dog leash and strangled
her and I put a pillow on her face and smothered her, oh my God, oh my God, I just wish I
hadn’t done it.”

Ms. Kinder testified that although the Defendant was upset, her vital signs were
normal, and Ms. Kinder found no medical problems to warrant treatment. The Defendant
complained of an upset stomach, lay on the floor, and slept.

On cross-examination, Ms. Kinder testified that Mr. Bowers was in an adjacent room
while she talked to the Defendant and that Mr. Bowers stared at the two of them while they
talked. She agreed Mr. Bowers watched them closely. She also agreed the Defendant
admitted to using drugs and to attempting suicide because “they . . . wanted to be together
forever.” She said the Defendant looked liked she had not slept.

Ms. Kinder testified that the Defendant definitely said “we” killed the victim, not “he”
killed her. She was positive the Defendant said she put the pillow on the victim’s face and
smothered the victim.

Yolande Bailey testified that on December 12, 2010, she worked as a part-time
paramedic in Grant County, Indiana. She received an attempted suicide call and responded
to the police department with Ms. Kinder and Mr. Black. She said the Defendant and Mr.
Bowers were examined but not transported to the hospital. She said the Defendant did not
receive medical treatment. She heard the Defendant tell Ms. Kinder about attempting suicide
and killing Mr. Bowers’s grandmother in Tennessee. The Defendant said Mr. Bowers “got
behind the grandmother . . . with a leash and then [the Defendant] got on top of her with a
pillow.” The Defendant said they killed the grandmother for money. On cross-examination,
Ms. Bailey stated that the Defendant’s clothes were soaking wet.

Indiana State Police (ISP) Sergeant Matthew Collins testified that on December 12,
2010, he was asked to help locate the Defendant and Mr. Bowers, who were wanted for
questioning relative to a homicide in Overton County, Tennessee. He was provided

-11-
information about the victim’s vehicle because it was believed the Defendant and Mr.
Bowers were traveling in the car. Overton County Sheriff’s Deputy John Mackie asked him
to investigate a house owned by Charles and Helen Vaunce,1 the Defendant’s grandparents.
He said the victim’s car was found at the Vaunce’s house. He said that Gas City Police took
the Defendant and Mr. Bowers into custody and that they were at the police station when he
arrived. He was advised that the Defendant stated she was involved in the murder of Mr.
Bowers’s grandmother. Sergeant Collins drove to the Vaunce home to examine the victim’s
car, which was secured and towed to the Fort Wayne ISP Post. He spoke to Mrs. Vaunce and
returned to the Gas City Police Department to interview the Defendant.

Sergeant Collins testified that he read the Defendant her Miranda rights, that the
Defendant read the form herself, that the Defendant said she understood her rights, and that
she did not have any questions. The Defendant signed the waiver of rights form and
provided a statement.

The Defendant’s recorded statement was played for the jury. When asked for
identifying information, the Defendant said she had “been [giving] it all day long.” She
asked if her mother knew what was happening. Sergeant Collins told the Defendant that her
mother had been told it was important for the authorities to speak to the Defendant. The
Defendant had been living with Mr. Bowers at his grandmother’s house. On December 10,
2010, her mother called and was upset after receiving a notification she would not receive
food stamp benefits if the Defendant did not live with her. The Defendant’s mother said that
she would have Mr. Bowers arrested for statutory rape and that the Defendant would be in
trouble with the authorities. The Defendant might have been pregnant. After the call, the
Defendant and Mr. Bowers got high by injecting Dilaudid. They discussed going “out with
a bang.” Mr. Bowers mentioned killing his grandmother. The Defendant did not want to see
blood and recommended they use a dog leash as a weapon. When the victim came home
from work, Mr. Bowers choked her with the leash, and the Defendant pushed a pillow on the
victim’s face. The victim made unusual noises and died after about two minutes. They
dragged the victim’s body into a bedroom and covered it with bed linens and a pillow. Mr.
Bowers took $200 from the victim’s body, and they took the victim’s car to Indiana to visit
the Defendant’s relatives. The Defendant said she was sorry she had damaged the lives of
Mr. Bowers, herself, and her unborn child. On the day she was taken into custody, she had
tried to commit suicide three times. She and Mr. Bowers sat in a bathtub and put appliances
in the water. They also tried to kill themselves in a car through carbon monoxide inhalation
and by injecting nicotine water. She wished she were dead. Near the end of the interview,
she asked if she could still have a lawyer.

1
The record reflects that the witness referred to the Defendant’s grandparents as Vaunce and that
the prosecutor referred to Faunce. We use Vaunce for consistency.

-12-
On cross-examination, Sergeant Collins testified that the Defendant was taken into
custody around 11:20 a.m. and that he did not recall if her clothes were wet. His interview
of the Defendant began at 7:13 p.m. He did not know if the Defendant had eaten, had
anything to drink, or used the restroom between her arrest and the interview. The Defendant
did not appear sleepy or disoriented, and Sergeant Collins did not recall if she wore
handcuffs during the interview. He agreed he thought it was important to talk to her when
he did because she was a person of interest in a homicide.

TBI Special Agent Chuck Hardy, an expert in DNA analysis, testified that he analyzed
various items found at the crime scene for the presence of DNA, including the ski mask, a
pair of gloves, the pillow and pillowcase, the dog cord found around the victim’s neck, and
nail clippings from the victim. He was provided samples of the victim’s blood and the
Defendant’s and Mr. Bowers’s DNA. Relative to the right glove, Agent Hardy found the
presence of the Defendant’s and Mr. Bowers’s DNA. He said the probability of randomly
selecting an unrelated individual who would have been a contributor to the DNA found on
the glove was approximately one in 1.9 million for the African-American population, one in
38.5 million for the Caucasian population, one in 78.2 million for the Southeastern Hispanic
population, and one in 40.6 million for the Southwestern Hispanic population. He concluded
that the victim’s DNA was not on the glove.

Agent Hardy testified that he found the presence of Mr. Bowers’s and the Defendant’s
DNA on the ski mask. Regarding the Defendant’s DNA, he concluded that the probability
of an unrelated individual having the same DNA profile was approximately one in 946 for
the African-American population, one in 231 for the Caucasian population, one in 327 for
the Southeastern Hispanic population, and one in 352 for the Southwestern Hispanic
population. Relative to the left glove, he found the presence of the Defendant’s and Mr.
Bowers’s DNA.

Agent Hardy testified that he did not examine the pillow but that he examined the
pillowcase. He found a stain on the pillowcase, and his testing failed to show the presence
of blood. He found the Defendant’s and Mr. Bowers’s DNA on the pillowcase. Regarding
the Defendant’s DNA, he concluded that the probability of an unrelated individual having
the same DNA profile was the same as the statistics regarding the right glove. He said that
he swabbed the outer perimeter of the pillowcase and that he excluded the presence of the
victim’s DNA. Regarding the dog cord, an insufficient amount of DNA was found,
preventing his excluding the presence of the Defendant’s, Mr. Bowers’s, and the victim’s
DNA profiles. His findings were inconclusive.

-13-
On cross-examination, Agent Hardy testified that if a cat had walked on the evidence,
it were possible but unlikely that the analyses could have been affected. He said that if a cat
walked through the scene multiple times, it would increase the chances of contamination but
that casual walking from one place to another would not be enough to be detected in the
analyses.

Agent Hardy testified that he found a mixture of DNA on the edges of the pillowcase
and that based on his analysis, the mixture included DNA from the Defendant and Mr.
Bowers. He excluded the victim as a contributor to the DNA mixture. He agreed that if
someone had a bleeding cut or wound, it would increase the likelihood of transferring DNA
onto a foreign object. He said, too, that the likelihood of transfer increased when the foreign
object had a rough surface.

Agent Hardy testified that he analyzed the ski mask at the eye and mouth openings
because that was the most likely location of DNA. He agreed that if someone were gasping
for breath or trying to scream for help, the likelihood of transferring DNA from the mouth
would increase. Relative to the pillowcase, he said he analyzed the edges because of the
State’s theory that the victim was strangled and smothered with a pillowcase. He agreed he
did not find the victim’s DNA on the areas analyzed. Regarding his decision not to analyze
the center of the pillowcase, he said the probative evidence was not the location of the
victim’s DNA because the pillow was found on the victim. He said the probative evidence
was identifying the DNA of who might have held the pillow over the victim’s face.

Agent Hardy testified that the presence of the Defendant’s and Mr. Bowers’s DNA
on the pillowcase might be explained by their living in the house. When asked if his analyses
proved the Defendant used the pillow to smother the victim, he said that his analyses only
showed the presence of the Defendant’s and Mr. Bowers’s DNA and that he could not
determine how the DNA was deposited on the pillowcase.

On redirect examination, Agent Hardy testified that his examination of the pillowcase
probably would not have changed had he known the Defendant stated she had smothered the
victim with the pillow. He agreed the Defendant’s confession might explain why the
Defendant’s DNA was on the pillowcase.

Dr. Adele Lewis, an expert in forensic pathology, testified that she performed the
victim’s autopsy. She said generally, medical examiners needed investigative information
from the police in order to determine a cause and manner of death. She said that certain
causes of death could not be determined by an autopsy and that the only way to make a
diagnosis was to use the history provided by law enforcement. Regarding strangulation, she
said ligature marks in the muscles of the neck and breaking of the hyoid bone in the front of

-14-
the neck were findings consistent with strangulation. She said “a fair” amount of force was
needed to break the hyoid bone. Regarding smothering, she said information from
investigating police officers was critical because medical examiners were prohibited from
determining a cause of death if a plastic bag were removed from a person’s head prior to
notifying the police. She said petechial bleeding was also an indication of strangulation and
might indicate smothering.

Dr. Lewis testified that before she performed the autopsy, the police told her the
victim was found on the floor with a red cord around her neck and a pillow on her face. She
concluded to a reasonable degree of medical certainty that the cause of death was asphyxia
due to strangulation and smothering and that the manner of death was a homicide. She said
usually no physical evidence of smothering was found but noted the victim had petechial
hemorrhaging in the eyes, which could have been caused by strangulation or smothering.
She identified photographs of the victim’s hyoid bone and of the ligature mark on her neck
caused by a rope-like object. She concluded that the hyoid bone was broken and noted that
she found antemortem bleeding in the bone. She identified a photograph of petechial
hemorrhages in the victim’s right eye and a photograph of the victim’s face, which showed
petechiae of the skin around the eyes and an abrasion to the forehead between the eyes. Dr.
Lewis noted that the victim’s nose was clearly crooked but could not determine whether the
nose was injured at the time of death. The victim was 64.5" tall, weighed 102 pounds, and
was in fairly good health at the time of her death. No drugs were found in the victim’s
system.

On cross-examination, Dr. Lewis testified that she would not have concluded the
victim was smothered had the police not told her about the pillow covering the victim’s face
and that the evidence she found indicated strangulation as the cause of death, including the
ligature marks around the victim’s neck and the broken hyoid bone. She noted the hyoid
bone was broken in two places. She agreed “quite a bit of force” was needed to break the
hyoid bone and said someone with “a little bit of strength or somebody with a rope or a
rope-like object” could have broken the bone.

Dr. Lewis testified that the victim had abrasions on her elbows, shoulder, and hip.
She said that although it was possible a struggle occurred at the time of the victim’s death,
she was unable to date the abrasions. She noted a subgaleal hemorrhage to the top of the
victim’s head and said it could have been caused by blunt injury. No brain swelling was
found, which might indicate the victim died quickly, and no obstructions were found in the
victim’s throat. She did not find fibers in the trachea or lungs. She found fluid in the
victim’s lungs and said although it was common to see fluid in the lungs, fluid alone did not
necessarily mean the victim died quickly.

-15-
On redirect examination, Dr. Lewis testified that her findings were consistent with the
victim’s dying two minutes after the strangulation began. On recross-examination, she stated
that the blood vessels located in the neck flowing to and from the brain were cut off during
the strangulation. She agreed the victim could have been unconscious in a matter of seconds.

In the interest of judicial efficiency, the Defendant was permitted to call a witness
during the State’s proof. Dr. James Walker, an expert in forensic psychology, testified that
he evaluated the Defendant after reviewing mental health and medical treatment records and
information regarding the present case. He said her previous treatment records showed that
she underwent a psychological exam at the Volunteer Behavioral Health Center, underwent
a neurological examination in November 2010, and received psychotherapy and psychiatric
services at the Personal Growth and Learning Center. He was provided the “suicide note”
previously written by the Defendant, her police statement, and the police reports.

Dr. Walker interviewed the Defendant on May 21, 2012, administered several
psychological tests, and obtained a personal history. Mr. Walker concluded that the
Defendant had multiple “serious” mental health disorders. He concluded the Defendant had
major depression in which she experienced frequent “spells of low mood” lasting for more
than two weeks. He said other symptoms included low energy, difficulty sleeping, guilty
thoughts, preoccupations, loss of appetite, and suicidal thoughts.

Dr. Walker also diagnosed the Defendant with post-traumatic stress disorder as a
result of the Defendant’s suffering serious trauma and abuse from her father. She claimed
she was beaten by her father, sexually abused “over the years,” and involved in abusive
romantic relationships. Dr. Walker, likewise, concluded that the Defendant suffered from
attention deficit hyperactivity disorder in which she had difficulty controlling her behavior.
He said the symptoms included impulsivity, difficulty paying attention, and being overly
distracted. He noted the Defendant’s neurologist concluded that she had the disorder one
year before the killing. Dr. Walker noted that the Defendant had chemical dependence
disorders associated with pain medication, methamphetamine, benzodiazipine, and alcohol.
He further concluded that the Defendant had dependent personality characteristics. The
Defendant formed very dependent attachments with others who were stronger willed than she
and who she perceived as smarter, brighter, older, and more attractive. He said the
Defendant tended to do what others wanted.

Dr. Walker testified that the Defendant complained of a significant degree of
introversion and expressed difficulty making friends. Based on a suggestibility test, he
concluded that the Defendant was very susceptible to being led or misled and that she had
a propensity for being overly suggestible. He said her relationship with Mr. Bowers was “a
very disturbed . . . sick relationship.” He described the Defendant’s multiple motivations for

-16-
being with Mr. Bowers. He said that the Defendant did not have a good relationship with her
mother and felt like an outcast among her family and that Mr. Bowers provided her a place
to live. Dr. Walker believed the Defendant developed a very strong emotional attachment
to Mr. Bowers, although he physically abused, raped, and controlled her.

Dr. Walker testified that although he did not form an opinion about whether the
Defendant was capable of premeditation on the day of the killing, he concluded that her
ability to premeditate was significantly impaired. He said the Defendant was abusing
Dilaudid, which caused “gross intoxication in most people.” The Defendant was also taking
Suboxone, a medication designed to help people stop abusing pain medication. He said these
drugs affected the ability to reason, think, and make good decisions. He concluded to a
reasonable degree of medical certainty that the Defendant was not “in a state where she could
exercise good reasoning or . . . judgment” based on the drug abuse, mental disorders, and
abusive relationship with Mr. Bowers.

Dr. Walker testified regarding the Defendant’s confession that the Defendant’s
emotional state and her willingness to take responsibility for the killing were factors
consistent with her providing a truthful statement. He said, though, that other factors raised
concerns about the truthfulness of her statement. The Defendant told Dr. Walker that she and
Mr. Bowers discussed what they would tell the police if they were caught. The Defendant
claimed that Mr. Bowers said he would not “go[] down” for the killing alone and would
“take her with him.” The Defendant admitted to Dr. Walker that she and Mr. Bowers
conspired about what “they” would admit and what she would admit. He noted the
Defendant feared Mr. Bowers generally. The Defendant told Dr. Walker that Mr. Bowers
would attempt to harm her. The Defendant claimed Mr. Bowers raped her twice and
threatened to kill her after they fled the state.

Dr. Walker testified that the Defendant’s tendency to be very suggestible led him to
question the truthfulness of her police statement. He noted the Defendant’s willingness after
the killing to attempt suicide upon Mr. Bowers’s suggestion. He agreed the Defendant
admitted attempting suicide previously by cutting herself or taking pills, injecting nicotine
into her veins, ingesting carbon monoxide, and placing a hair dryer into a bathtub of water.
Dr. Walker stated that the Defendant’s attempt to take her life after the killing should be
considered in determining the veracity of her confession. He said people in disturbed
relationships, like the Defendant and Mr. Bowers’s relationship, sometimes “project a front
to the world of having it altogether . . . being loving, being affectionate to one another.” He
said this could explain the Defendant’s normal demeanor after the killing.

-17-
On cross-examination, Dr. Walker testified that he did not administer the MMPI test
because the test was inappropriate for a seventeen-year-old girl. He said a subject needed
to be at least eighteen years old.

Dr. Walker testified that the previous records he reviewed showed the Defendant had
met with two physicians once each, a support staff member with a master’s degree once, and
another support staff member several times. He agreed he had copies of the Defendant’s
statements to Yolande Bailey and Rebecca Kinder. Dr. Walker could not say if the
Defendant was truthful and accurate in her statement to him. He agreed the Defendant was
the only person who might benefit from lying to him.

Dr. Walker testified that the Defendant’s psychomotor skills were normal, that she
was alert and oriented, that her speech was fluent and articulate, and that her language
comprehension was intact. He agreed the Defendant did not suffer from preoccupations,
obsessions, or delusions. The Defendant’s affect was normal, her social skills were good,
and she was cooperative. She showed no signs of malingering and had an IQ of 95,
indicating an average range of intellect. He agreed that the Defendant showed no signs of
deficiencies in her ability to reason or to think and showed no signs of dysfunction in her
executive reasoning abilities.

Dr. Walker testified that his post-traumatic stress and attention deficit hyperactivity
diagnoses were based upon the Defendant’s 2010 neurological examination. Regarding the
Defendant’s substance abuse problems, he agreed the Defendant had been drug free for
months before the evaluation but said his “review of the records indicated a different story
was more accurate.” He said that although the Defendant lied, he was required to consider
her statements in light of all the evidence. He said that the Defendant’s statements were the
only evidence of Mr. Bowers’s raping, beating, and controlling her. He said that although
it was possible the Defendant provided false or misleading information during the evaluation,
indications showed that some information was true.

Dr. Walker testified that trial counsel asked him to clarify in a second report whether
the limitations in the Defendant’s mental condition on the day of the killing would have been
due to a mental disorder or defect. After reviewing his original report, he agreed he
concluded that the Defendant’s confession to the police was not the result of duress or
coercion. He agreed that the Defendant complained of a headache on the day of the killing,
denied going to school, said she argued with her mother on the telephone, and said Mr.
Bowers insisted upon listening to her conversation. This statement was consistent with her
police statement, but Dr. Walker acknowledged the remainder of her statement to him was
inconsistent with her police statement. He agreed the Defendant’s telling him that she called
her mother to pick her up and that Mr. Bowers was upset about the Defendant’s relationship

-18-
with her friend Natalie was the first time the Defendant had ever mentioned these topics. He,
likewise, agreed that when he first interviewed the Defendant, she first mentioned her
mother’s not coming to pick her up, Mr. Bowers’s placing the dog cord around her neck and
threatening to kill her, and exchanging punches with Mr. Bowers. He said it would not
surprise him that many of the Defendant’s belongings were not packed and that no ligature
marks were on the Defendant’s neck when she was arrested. He agreed the Defendant’s
telling him that she vomited upon seeing Mr. Bowers strangle the victim and that she played
no role in the killing was inconsistent with her police statement.

Dr. Walker testified that although he thought it was odd the Defendant slept after Mr.
Bowers allegedly threatened to choke her with the dog cord, he said the Defendant was using
Dilaudid, which usually caused the person to sleep. He agreed, though, that the Defendant
never mentioned to him that she was using drugs. He said it was accurate to conclude that
the Defendant used drugs on the date of the crime, whether or not she participated in the
killing. Dr. Walker was unaware the Defendant’s DNA was found on the pillow covering
the victim’s face and said the Defendant denied placing the pillow on the victim. He agreed
it was possible the Defendant lied. He agreed that although the Defendant told the police she
received a portion of the money that was stolen from the victim, she did not tell him that she
received money. The Defendant also did not tell Dr. Walker that they drove to Sparta to buy
drugs after the killing.

Dr. Walker testified that the Defendant’s ability to premeditate was not impaired on
the day he conducted his evaluation. The Defendant told Dr. Sandra Phillips that she did not
use drugs on the day of the killing, and Dr. Walker admitted this conflicted with what the
Defendant told him. He agreed the Defendant lied to him or to Dr. Phillips. He denied the
Defendant told him that she and Mr. Bowers went to different stores to buy items after the
killing, and he admitted this was important information.

Dr. Walker testified that the video recordings from the convenience and grocery stores
indicated that the Defendant did not provide a complete account of what happened on the day
of the killing. He said that he was not surprised that the Defendant looked at a map and
planned how to drive to Indiana just after the killing but that it did not impact his
conclusions. He said he did not have to believe the Defendant was truthful for his
assumptions to be accurate. He believed that the Defendant was honest at times and
misleading at others. He noted Mr. Bowers’s threatening to push her into the lake and said
the statement was probably true given the detail of her statement. He said if the statement
were false, she would have said Mr. Bowers told her that she would drown, not die of
hypothermia. He conceded it was possible the Defendant created this detail after having
more than one year to think about it.

-19-
On redirect examination, Dr. Walker testified that many of the Defendant’s statements
to him were corroborated by previous reports he reviewed and that the reports from the
Defendant’s previous doctors corroborated his diagnoses. He said the Defendant’s behavior
after the killing was “perfectly consistent” with his diagnoses. When told that no evidence
had been presented showing the victim’s DNA was on the pillow, he said that the lack of
DNA was consistent with the Defendant’s statement during his evaluation. On
recross-examination, he agreed the Defendant knew right from wrong and was able to
conform her conduct with that reasoning. On further redirect examination, he stated, though,
that the Defendant’s ability to premeditate might have been impaired on the day of the
killing.

Dr. Sandra Phillips, an expert in the field of clinical psychology, testified that she was
employed with Volunteer Behavioral and that she evaluated the Defendant on February 1,
2011, less than two months before the trial. Based on her evaluation, she concluded that the
Defendant was competent to stand trial and was not mentally ill. She diagnosed the
Defendant with adjustment disorder with a depressed mood. She explained the Defendant
had a relatively low level of depression in response to her legal concerns. She also
provisionally diagnosed the Defendant with post-traumatic stress disorder and with emerging
borderline personality traits.

Dr. Phillips testified that she concluded the Defendant did not have a severe mental
disease or defect at the time of the killing rendering her unable to appreciate the nature or the
wrongfulness of her conduct. She also concluded that the Defendant was capable of
premeditation on the day of the killing. She noted the Defendant reported emptying her
backpack at the victim’s house in order for other people to learn she had been at the house
in the event something happened to her. The Defendant denied using drugs before the
killing, although Dr. Phillips later learned the Defendant told the police she had used drugs.

Dr. Phillips testified that the Defendant denied participating in the killing. The
Defendant told Dr. Phillips that the victim arrived home around 5:30 p.m. and that the
Defendant was in the bedroom packing her belongings. The Defendant was “somewhat
calmer” but worried about what was going to happen because after taking a shower, Mr.
Bowers placed a dog cord around her neck, pulled it, and laughed. The Defendant suspected
Mr. Bowers was going to kill her or the victim because earlier that day Mr. Bowers
threatened to “strangle the b----.” The Defendant denied using drugs and drinking alcohol
for several weeks. The Defendant overheard Mr. Bowers and the victim arguing about a
broken car window and a hole in the bedroom door. The Defendant claimed Mr. Bowers
threw things at her, which caused the hole, and called her a “stupid c---.” The Defendant
wanted to call her mother, but she could not find the house telephone and Mr. Bowers had

-20-
her cell phone. The Defendant reported that after the arguing, she heard nothing. Then, she
heard something falling down. The Defendant said she was “frozen terrified.”

Dr. Phillips testified that the Defendant described the killing. The Defendant saw Mr.
Bowers with his feet against the victim’s back while he choked the victim with the dog cord.
The Defendant dropped to her knees and asked Mr. Bowers, “God, what have you done[?]”
Mr. Bowers struck the Defendant on the head and said, “[N]one of that God s---, it’s hail
Satan, my dark lord master.” The Defendant claimed the victim was lying on the floor in the
hallway. Mr. Bowers walked away and returned with a gun. He pointed it at the Defendant,
told her to get up and to get in the car, and threatened to kill her if she attempted to run or
“do anything stupid.” The Defendant claimed to have emptied her backpack inside the house
so the authorities and her family would know she had been there.

Dr. Phillips testified that the Defendant reported that Mr. Bowers showed her $400
he took from the victim’s body. They drove to Sparta, where Mr. Bowers bought $200 to
$300 worth of Dilaudid. Mr. Bowers told the Defendant that she had two days to live
because he believed the victim would be found by then. The Defendant and Mr. Bowers
stopped at Standing Stone, and the Defendant believed he was going to kill her. They
stopped at a bridge, and Mr. Bowers grabbed her hair, shoved her face over the wall, and
threatened to kill her if she refused to do what he wanted. The Defendant claimed the killing
occurred because she was going to leave Mr. Bowers, who told her that she was supposed
to have loved him and that nobody could have her if he could not.

Dr. Phillips testified that the Defendant said Mr. Bowers drove to Indiana in order for
the Defendant to see her grandmother one last time before he killed her. During the drive,
Mr. Bowers talked about the humorous look on the victim’s face and the victim’s inability
to defend herself. Mr. Bowers told the Defendant that he placed the victim’s body in the
second bedroom, made the victim presentable, and covered her face with a pillow. The
Defendant claimed that she somehow obtained her cell phone when they stopped at the rest
area and wanted to call a friend but realized that the volume was too high and that Mr.
Bowers could hear any conversation. Mr. Bowers saw the Defendant with her phone and
escorted her to the car. Mr. Bowers told her to remove her pants, and when she refused, he
tore off her pants and underwear and raped her.

Dr. Phillips testified that the above version of events was inconsistent with the
Defendant’s statement to the police in Indiana. She noted the Defendant mentioned to her
about going to the convenience store and to Food Lion after the murder. She did not know
if the Defendant was truthful.

-21-
On cross-examination, Dr. Phillips testified that she reviewed the Defendant’s
previous medical records and agreed that the Defendant was raised in an abusive home. She
agreed the Defendant’s father abused the Defendant, the Defendant’s mother, and the
Defendant’s stepmother. She agreed the abuse had a severe adverse effect. She read Dr.
Walker’s report and agreed the Defendant had “severe mental illness.” Although the
Defendant gave three different versions of the events, Dr. Phillips did not think the
Defendant was malingering.

Dr. Phillips testified that the Defendant’s relationship with Mr. Bowers was abusive
based on the Defendant’s statement. She denied administering tests to determine the
Defendant’s level of susceptibility and said that such tests would not show the Defendant’s
mental condition on the day of the offense. She disagreed with Dr. Walker’s conclusion that
the Defendant could have lacked the ability to commit premeditated murder. She agreed,
though, that the Defendant had “less than the average capacity of a normal person.”

On redirect examination, Dr. Phillips testified the Defendant had the ability to form
the required intent of premeditation. On recross-examination, she stated that a clinical
psychologist was not able to determine definitively whether the Defendant had a diminished
capacity at the time of the killing. She agreed, though, with Dr. Walker’s conclusion that the
Defendant “could have been diminished.”

Dr. James Girard testified for the defense as an expert in DNA analysis. He reviewed
Agent Hardy’s report regarding the DNA analyses. He agreed with portions of the Agent’s
conclusions but disagreed with others. Relative to Agent Hardy’s analysis of the pillowcase,
Dr. Girard said Agent Hardy assumed the victim was “not included in the analysis.” Dr.
Girard stated that the DNA sample was a mixture of three contributors, including the victim.
With regard to the statistics of another person matching the DNA profiles found on the
pillowcase, Dr. Girard believed Agent Hardy overstated the data. He concluded that the high
million numbers reported by Agent Hardy were inaccurate.

Dr. Girard testified that he expected the victim’s DNA to be on the pillow if it were
laid on the victim’s face. He agreed with Agent Hardy regarding the number of variables that
played a role in whether DNA would be transferred to the pillow from the abrasion on the
victim’s forehead. He expected that more DNA would be found on the pillow if it were used
to smother the victim.

On cross-examination, Dr. Girard testified that if the victim were smothered with the
pillow, he would expect to find the victim’s DNA on the perimeter of the pillow where Agent
Hardy swabbed it. He said that a small dog was present at the scene and that the dog may
have contaminated the DNA evidence. He agreed the documents he received did not mention

-22-
the dog and said trial counsel told him a small dog was present. He admitted he should have
also considered during his analysis the Defendant’s confessing to using a pillow to smother
the victim.

Dr. Girard testified that he disagreed with Agent Hardy’s conclusions regarding the
right and left gloves and the ski mask because the samples analyzed were of such a low
concentration that the profiles could not be determined confidently. He agreed with Agent
Hardy’s conclusion that the DNA analysis was inconclusive regarding the section of the cord
found around the victim’s neck, although Dr. Girard’s report found the Defendant’s DNA
was not present on the cord. He agreed that the victim’s DNA was the only DNA present in
the nail clippings and said he would not have expected any other DNA to be found based on
evidence that the victim was unable to defend herself and had arthritic hands.

On redirect examination, Dr. Girard testified that he knew the State’s theory was the
victim was smothered with a pillow. He said that based on the State’s theory, he would have
expected to find the victim’s DNA on the pillow and that her DNA was not on it. He said
that had he known a cat was inside the crime scene, rather than a dog, his conclusions would
not have changed.

Dr. Girard testified that he disagreed with Agent Hardy’s conclusions that the victim’s
DNA was not present on the items analyzed and that Agent Hardy’s excluding her DNA
profile “drastically change[d]” the results. He agreed that the results would have been in the
Defendant’s favor had the victim’s DNA not been excluded. He agreed with Agent Hardy’s
conclusion that the DNA analysis was inconclusive regarding the dog cord found around the
victim’s neck and said it was possible the DNA evidence degraded between the time the
evidence was collected and analyzed.

Kimberly Coffel, the Defendant’s mother, testified that her relationship with the
Defendant’s father was abusive and that the Defendant witnessed the abuse. On one
occasion, the Defendant’s father picked up Ms. Coffel by her throat while the Defendant was
present. The Defendant cried and said, “[P]lease stop, please stop.” She said the Defendant
did not understand what was happening when the Defendant’s father became violent.

On cross-examination, Ms. Coffel testified that she talked to the Defendant on the day
of the killing. She denied she told the Defendant to return home because she had stopped
receiving food stamp benefits. She also denied threatening to report the Defendant and Mr.
Bowers to the police for committing crimes. Ms. Coffel said she told the Defendant to come
home and that she did not want to involve the police. When asked if she threatened to have
Mr. Bowers arrested for statutory rape, she said she told the Defendant that she could have

-23-
Mr. Bowers put in jail. The Defendant had been living with Mr. Bowers for one month. Ms.
Coffel admitted she did not know where they were staying.

Insurance Agent Rick Savage testified that he last saw the victim in September or
October before the killing. The victim came to his office. She was upset about something
related to her grandson, and he advised her to contact the sheriff’s department.

Overton County Sheriff D.W. Melton testified that he knew the victim and saw her
on several occasions before her death. The victim spoke to him about her grandson, and he
advised her to throw Mr. Bowers out of her house. He saw bruises on the victim’s arm the
last time she came to the sheriff’s office to talk to him, and he said the victim was upset each
time they talked.

Tina Webb testified that she knew the Defendant and saw her at Food Lion thirty days
before the killing. They exchanged pleasantries, and at the end of their conversation, the
Defendant “clammed up.” Ms. Webb was unsure why the Defendant’s demeanor changed
but noticed Mr. Bowers was approaching at that time. She felt as though the Defendant “cut
her off” and something was wrong.

On cross-examination, Ms. Webb testified that she did not know what occurred after
she saw the Defendant but before the killing. On redirect examination, she stated that the
Defendant was very happy and that it was unusual for the Defendant to clam up.

Chelsea Hanna testified that she had known Mr. Bowers for about ten years. She said
they dated on and off for eight years, lived together twice, and were engaged to be married
twice. They had lived with the victim. She saw the victim and Mr. Bowers argue but denied
witnessing physical violence.

Ms. Hanna testified that in June 2010, Mr. Bowers moved into her apartment after Mr.
Bowers attended a rehabilitation program. Mr. Bowers lived with her until September. She
said that while they lived together, Mr. Bowers took many of her belongings and sold them.
Mr. Bowers was unemployed, and Ms. Hanna expected Mr. Bowers to “take care of things
. . . pick up after himself.” She said they argued when they discussed her expectations. She
said Mr. Bowers yelled, screamed, and punched holes in the walls when he became angry.
She only saw Mr. Bowers punch holes in the walls at the victim’s house. During their last
argument, the Defendant threw her on the floor and punched her.

On cross-examination, Ms. Hanna testified that she never killed anyone during the
time in which she dated and lived with Mr. Bowers. On redirect examination, she stated that
she had never been diagnosed with any severe mental disease.

-24-
Upon this evidence, the jury found the Defendant guilty of first degree murder, felony
murder during the commission of an especially aggravated robbery, conspiracy to commit
first degree murder, especially aggravated robbery, and theft of property. The trial court
merged the murder convictions and sentenced the Defendant to life imprisonment with the
possibility of parole. The Defendant was later sentenced to concurrent sentences of fifteen
years for conspiracy to commit first degree murder, fifteen years for especially aggravated
robbery, and two years for theft. This appeal followed.

I & II

Sufficiency of the Evidence & Motion for a Judgment of Acquittal

The Defendant contends that the evidence is insufficient to support her first degree
murder conviction. In a related issue, she contends that the trial court erred by denying her
motion for a judgment of acquittal. Regarding each issue, she argues that the evidence failed
to show that the victim’s DNA was on the pillow used to smother the victim, that the
evidence showed overwhelmingly that Mr. Bowers strangled the victim, and that the
evidence showed an antagonistic relationship between Mr. Bowers and the victim. The State
responds that the evidence is sufficient and that the trial court properly denied the
Defendant’s motion. We agree with the State.

The standard of review for a trial court’s denial of a motion for a judgment of
acquittal is the “same standard that applies on appeal in determining the sufficiency of the
evidence[.]” State v. Little, 402 S.W.3d 202, 211 (Tenn. 2013). In determining the
sufficiency of the evidence, the standard of review is “whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.
307, 319 (1979); see State v. Vasques, 221 S.W.3d 514, 521 (Tenn. 2007). The State is
“afforded the strongest legitimate view of the evidence and all reasonable inferences” from
that evidence. Vasques, 221 S.W.3d at 521. The appellate courts do not “reweigh or
reevaluate the evidence,” and questions regarding “the credibility of witnesses [and] the
weight and value to be given to the evidence . . . are resolved by the trier of fact.” State v.
Bland, 958 S.W.2d 651, 659 (Tenn. 1997); see State v. Sheffield, 676 S.W.2d 542, 547
(Tenn. 1984).

“A crime may be established by direct evidence, circumstantial evidence, or a
combination of the two.” State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998); see also State
v. Sutton, 166 S.W.3d 686, 691 (Tenn. 2005). “The standard of review ‘is the same whether
the conviction is based upon direct or circumstantial evidence.’” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

-25-
Although the Defendant states that the evidence is insufficient to support her
convictions, her argument focuses on her first degree murder conviction because of its
importance to the remaining convictions. Relevant to this case, first degree murder is the
unlawful, intentional, and premeditated killing of another. T.C.A. §§ 39-13-201 (2014), 39-
13-202(a)(1) (2014). In the context of first degree murder, intent is shown if the defendant
has the conscious objective or desire to cause the victim’s death. State v. Page, 81 S.W.3d
781, 790-91 (Tenn. Crim. App. 2002); T.C.A. § 39-11-106(a)(18) (2010) (amended 2011,
2014) (defining intentional as the “conscious objective or desire to engage in the conduct or
cause the result”). “It is not necessary that the purpose to kill preexist in the mind of the
accused for any definite period of time.” T.C.A. § 39-13-202(d) (2014). “The element of
premeditation is a question for the jury which may be established by proof of the
circumstances surrounding the killing.” State v. Young, 196 S.W.3d 85, 108 (Tenn. 2006).
As a result, the jury “may infer premeditation from the manner and circumstances of the
killing.” State v. Jackson, 173 S.W.3d 401, 408 (Tenn. 2005); see State v. Vaughn, 279
S.W.3d 584, 595 (Tenn. Crim. App. 2008). Our supreme court has provided a list of factors
which “tend to support the existence” of premeditation and deliberation. See Bland, 958
S.W.2d at 660. The list includes the use of a deadly weapon upon an unarmed victim, the
particular cruelty of the killing, declarations by the defendant of an intent to kill, evidence
of procurement of a weapon, preparations before the killing for concealment of the crime,
and calmness immediately after the killing. Id. (citing State v. Brown, 836 S.W.2d 530,
541-42 (Tenn. 1992); State v. West, 844 S.W.2d 144, 148 (Tenn. 1997)).

The record reflects that the Defendant and codefendant Bowers lived at the victim’s
residence. The victim was found in the Defendant and Mr. Bowers’s bedroom with a pillow
over her face and a cord around her neck. A separate portion of the cord was found in the
Defendant and Mr. Bowers’s bedroom. The police found no evidence of forced entry and
noted no windows or doors were broken, and the victim’s car was missing. The Defendant
and Mr. Bowers were found in Indiana the day after the killing and in possession of the
victim’s car. Inside the victim’s car was a handwritten note signed by the Defendant stating
that if the letter was found, the reader knew what happened. She explained she wanted Mr.
Bowers’s last name and wanted to be cremated with him.

Just hours after the killing, the Defendant and Mr. Bowers were seen at a convenience
store. The record reflects that while there, the Defendant engaged in casual conversation
about traveling to Indiana and her need to look at a map. Ms. Ogletree, the Raceway Store
Manager, testified that the Defendant acted normal and was happy to be traveling to Indiana.

After being arrested and taken to the police station in Indiana, the Defendant told Ms.
Kinder, a paramedic, that she and Mr. Bowers unsuccessfully attempted suicide. When Ms.
Kinder asked the Defendant for her mother’s contact information, the Defendant refused.

-26-
The Defendant stated that although she had been living at the victim’s home with Mr.
Bowers and with her mother’s consent, her mother threatened to have Mr. Bowers arrested
for statutory rape if she did not return home. The Defendant believed her mother’s
motivation was linked to her no longer receiving financial assistance in the Defendant’s
absence. While upset and crying, the Defendant told Ms. Kinder that “[I]t’s never going to
be okay, I shouldn’t have done it, I shouldn’t have hurt her, I just wish I hadn’t done it.” Ms.
Kinder asked if someone needed medical assistance, and the Defendant said Ms. Kinder
could not help because “she” was in Tennessee. The Defendant said, “[Y]ou can’t help her,
we killed her, oh my God, I wish I hadn’t done that, oh my God, I wish I hadn’t done that.”
The Defendant told Ms. Kinder that her boyfriend “got behind her, took a dog leash and
strangled her and I put a pillow on her face and smothered her, oh my God, oh my God, I just
wish I hadn’t done it.” Ms. Kinder was adamant that the Defendant said “we” killed the
victim, not “he.” Ms. Bailey, another paramedic, provided similar testimony regarding the
Defendant’s statements about her role in the victim’s killing and added that the Defendant
said they killed the victim for money.

The Defendant told Indiana officers that the plan to kill the victim began with the
Defendant’s mother threatening to have Mr. Bowers arrested for statutory rape. The
Defendant claimed that the mother’s threat was the result of the State’s terminating her
mother’s food stamp benefits because the Defendant was no longer living with her. After
the threat, the Defendant and Mr. Bowers decided they were going to jail together. The
Defendant said a “little comment” was made that they could kill the victim. She noted the
victim always nagged them. She and Mr. Bowers discussed the fact that they would have a
car and money if they killed the victim and that they could spend whatever time they had
together. Mr. Bowers mentioned using a hammer, but the Defendant suggested strangling
the victim with the dog cord because she did not want to see the victim’s blood. She also
admitted she thought of using the dog cord and smothering the victim. She said that after Mr.
Bowers began to strangle the victim, he yelled for her assistance. She left their shared
bedroom with a pillow, walked to where the victim and Mr. Bowers were located, placed the
pillow on the victim’s face, and pressed down on the victim’s face. The Defendant told the
officers not to place all the blame on Mr. Bowers because she helped kill the victim, and she
admitted Mr. Bowers did not tell her to use the pillow. The Defendant also admitted that she
“helped smother” the victim. She said she deserved the death penalty for her role in the
killing.

The Defendant’s confession was corroborated, in part, by Mr. Bowers’s statement to
the police. Mr. Bowers told the police that he and the Defendant discussed how they would
stay together and that “[w]e figured we would kill my Grandmother and take her money.”
He said the Defendant’s mother called earlier that day and threatened to call the police to
bring the Defendant home. Mr. Bowers reported that the Defendant thought of choking the

-27-
victim with the dog cord. He and the Defendant packed their belongings before the victim
arrived home, and he cut the leash with the wire cutters, leaving the cutters in their bedroom.
When the victim arrived home, Mr. Bowers approached from behind, placed the leash around
her neck, and choked her. He called for the Defendant’s assistance. He said the Defendant
left their bedroom with a pillow and placed it over the victim’s face. As Mr. Bowers pulled
the leash tight, the Defendant lay on the victim and applied pressure on the pillow. Mr.
Bowers took money from the victim’s right sock, and they left in the victim’s car. The
Defendant’s and Mr. Bowers’s confessions each referenced the same date and time of the
killing, the Defendant’s suggesting the dog cord to kill the victim, Mr. Bowers’s placing the
dog cord around the victim’s neck, the Defendant’s placing a pillow over the victim’s face,
and the motive of needing money and a car to leave town. The confessions also referenced
the Defendant’s mother’s threats.

Likewise, the evidence found at the crime scene and during the autopsy corroborated
the Defendant’s and Mr. Bowers’s statements to the police. The video recording of the scene
corroborated the Defendant’s statement that the victim was strangled with the dog cord.
Although an insufficient amount of DNA was found during the analysis, Agent Hardy could
not conclude that Mr. Bowers’s and the Defendant’s DNA was not on the cord. Further, the
pillowcase showed the presence of the Defendant’s DNA around the outer edge, and Agent
Hardy agreed the Defendant’s confession could explain the presence of her DNA on the
pillowcase. Regarding the medical examiner’s findings, Dr. Lewis concluded that the cause
of death was asphyxia due to strangulation and smothering. The victim had petechial
hemorrhaging and ligature marks consistent with strangulation, and Dr. Lewis stated that the
hemorrhaging could have also been caused by smothering. Further, the victim’s hyoid bone
was broken twice and was also indicative of strangulation.

We conclude that the evidence is sufficient to support the Defendant’s first degree
murder conviction. Although the Defendant argues that the victim’s DNA was not found on
the pillow found on the victim’s face and cites to Dr. Girard’s testimony regarding the DNA
analysis, Agent Hardy testified that the purpose of his analyses was to identify the presence
of the perpetrators’ DNA, not the victim’s DNA. The Defendant’s DNA was found on the
pillow, and she and Mr. Bowers told the police that she smothered the victim with the pillow.
Mr. Bowers told the police that the Defendant had the initial idea of killing the victim. Any
conflicts in the testimony were resolved by the jury as the trier of fact. See Bland, 958
S.W.2d at 659. The Defendant also argues that the evidence shows the victim was strangled
by Mr. Bowers. However, Dr. Lewis concluded that the victim was also smothered. In any
event, the Defendant was criminally responsible for Mr. Bowers’s conduct when she assisted
Mr. Bowers during the killing and afterward in taking the victim’s money and car in an effort
to be together.

-28-
In addition to first degree premeditated murder, the Defendant was convicted of felony
murder during the commission of an especially aggravated robbery, an alternative theory of
criminal liability for first degree murder. See Carter v. State, 958 S.W.2d 620, 624-25 (Tenn.
1997); T.C.A. § 39-13-202(a)(2), (b) (2014). Although she does not challenge her felony
murder conviction, we conclude that the evidence is sufficient. The record reflects that the
Defendant and Mr. Bowers discussed how they could stay together after the Defendant’s
mother threatened to have Mr. Bowers arrested. Mr. Bowers’s written statement to the police
shows that they discussed killing the victim and taking her money in order to stay together
and “go out with a bang.” They decided to kill the victim with a dog cord and a pillow and
to take the victim’s money she kept in her sock. The Defendant told the police that Mr.
Bowers took $200 from the victim’s body and that they took the victim’s car after the killing
to drive to Indiana. The Defendant and Mr. Bowers were seen making purchases at
convenience and grocery stores after the killing, and the Defendant claimed they drove to
Sparta to purchase drugs after the killing. Ms. Bailey testified that the Defendant said they
killed the victim for money. The record clearly shows that the Defendant participated and
assisted in an intentional or knowing theft of property from the victim by violence with the
use of a deadly weapon. See T.C.A. §§ 39-13-401(a) (2014), 39-13-403(a)(1)-(2) (2014), 39-
11-402(2) (2014). The record also shows that the Defendant benefitted from taking the
victim’s money. The Defendant is not entitled to relief on this basis.

III

Motion to Suppress

The Defendant contends that the trial court erred in denying her motion to suppress
the evidence of inculpatory statements she made to emergency medical personnel and Indiana
police officers. She contends that the statements were involuntary because they were
improperly obtained through direct or indirect threats, intimidation, coercion, and improper
influence. She also contends that her communications with the paramedics were protected
by Tennessee Code Annotated section 24-1-207 (2000) (psychiatrist/patient privilege). The
State argues the trial court properly denied the Defendant’s motion to suppress. We agree
with the State.

A trial court’s findings of fact on a motion to suppress are conclusive on appeal unless
the evidence preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996);
State v. Jones, 802 S.W.2d 221, 223 (Tenn. Crim. App. 1990). Questions about the
“credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts
in the evidence are matters entrusted to the trial judge as the trier of fact.” Odom, 928
S.W.2d at 23. The prevailing party is entitled to the “strongest legitimate view of the
evidence and all reasonable and legitimate inferences that may be drawn from that evidence.”

-29-
State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998); see State v. Hicks, 55 S.W.3d 515, 521
(Tenn. 2001). A trial court’s application of the law to its factual findings is a question of law
and is reviewed de novo on appeal. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).
In reviewing a trial court’s ruling on a motion to suppress, this court may consider the trial
evidence as well as the evidence presented at the suppression hearing. See State v. Henning,
975 S.W.2d 290, 297-99 (Tenn. 1998); see also State v. Williamson, 368 S.W.3d 468, 473
(Tenn. 2012).

The statements in question were made on December 12, 2010. The proof at the
suppression hearing showed that around 8:05 a.m., Tennessee authorities requested ISP
Sergeant Matthew Collins’s assistance in investigating a car theft and two persons of interest
in a Tennessee homicide. A Gas City Indiana police officer found the stolen car at the
Defendant’s grandparents’ house around 11:13 a.m. The Defendant and Mr. Bowers were
inside the house and were transported to the Gas City Police Department around 11:23 a.m.
At the police station, paramedic Rebecca Kinder evaluated the Defendant, and paramedics
Yolande Bailey and Justin Black evaluated Mr. Bowers. The evaluation was due to a report
that the Defendant and Mr. Bowers had attempted suicide. The Defendant made
incriminating statements to Ms. Kinder, which were overheard by Ms. Bailey. The
Defendant, who was sixteen years old, was later taken to a juvenile detention facility.
Sergeant Collins and Deputy Chad Hammel arrived at the juvenile facility about 6:50 p.m.,
and they began interviewing the Defendant at 7:05 p.m. After being advised of her Miranda
rights, the Defendant signed a written waiver at 7:17 p.m. and inculpated herself and Mr.
Bowers in a recorded statement.

Sergeant Collins testified at the suppression hearing that he was first contacted about
the case by Overton County Sheriff’s Deputy John Mackie, who requested his help finding
the Defendant and Mr. Bowers. He did not recall their discussing whether he would question
the Defendant, if located. The victim’s car was found at the Defendant’s grandparents’
house, and the suspects were found inside the house and taken to the police station. The
grandparents were interviewed, and the car was impounded.

Sergeant Collins testified that when he arrived at the police station, an ambulance was
outside the building. He took statements from Ms. Bailey and Ms. Kinder. He said the
Defendant appeared fine physically. He did not recall her clothes being wet.

Sergeant Collins testified that because the Defendant was a juvenile and her mother
was in Tennessee, he talked to the district attorney’s office in Tennessee about interviewing
her. He faxed a copy of the ISP Advice of Rights and Waiver form to the district attorney
in Tennessee. It was his understanding that Tennessee authorities explained the situation and
the form to the Defendant’s mother and obtained her permission for the Indiana authorities

-30-
to interview the Defendant. He received the form, signed by the Defendant’s mother, by fax.
He said he talked to other Tennessee law enforcement personnel. He did not recall anyone
telling him that the Defendant’s mother did not want the Defendant interviewed or that the
Defendant’s mother initially refused permission before later signing the waiver form.

Regarding the statement Sergeant Collins and Deputy Hammel took from the
Defendant at the juvenile detention facility, Sergeant Collins testified that he advised the
Defendant of her rights. He told the Defendant that her mother had signed a waiver for her
to speak with Indiana authorities and showed her the form. She signed the waiver. The form
the Defendant signed was received as an exhibit and stated in part, “If you are a juvenile, you
have the right to talk with your parent or guardian before any questioning and to have them
with you during such questioning.”

Sergeant Collins testified consistently with his trial testimony regarding the substance
of the Defendant’s statement. A recording of the interview was received as an exhibit. He
stated that the Defendant related the events in narrative form and that he only asked a few
questions to elicit details. He said Deputy Hammel asked some questions. He said the
Defendant was upset and cried at times, although he did not see many tears. He said that her
communication was coherent and that she did not appear intoxicated, injured, or in ill health,
only emotional. He said he never promised leniency. She did not ask to have a parent
present for the statement. He said that in hindsight, they could have taken the Defendant’s
statement the following day.

Rebecca Kinder, who was a volunteer paramedic on December 12, 2010, testified that
she, Yolande Bailey, and Justin Black responded to the police station regarding a possible
overdose. She did not speak with any officers about the reason the Defendant was there. She
assessed the Defendant. Ms. Bailey and Mr. Black assessed Mr. Bowers, who was in a
another room. She said officers asked the Defendant for her mother’s name and contact
information, which the Defendant initially refused. The Defendant stated her mother did not
care and was “nothing but a drunk.” She said that she had been staying with her boyfriend’s
grandmother, that her mother wanted her to come home to prevent her mother from losing
food stamp benefits, and that her mother threatened to have Mr. Bowers prosecuted for
statutory rape if the Defendant did not come home. The Defendant stated that she and Mr.
Bowers injected nicotine water. When Ms. Kinder asked why the Defendant was “soaking
wet,” the Defendant stated she and Mr. Bowers tried to kill themselves in a bathtub with
appliances because they wanted to be together forever. The Defendant said she was sorry
she had hurt a woman in Tennessee and wished she had not. The Defendant said she and her
boyfriend killed the victim when he choked the victim with a dog cord and she put a pillow
on the victim’s face. Ms. Kinder said she did not say anything to elicit the Defendant’s
statements. She said Ms. Bailey came into the room during the Defendant’s admissions and

-31-
heard part of it. Ms. Kinder said she was surprised by the Defendant’s admissions and left
the room.

Ms. Kinder said the Defendant’s vital signs were normal. She said the Defendant
cried and appeared upset. The Defendant reported that she felt slightly nauseous, which Ms.
Kinder thought might be from the nicotine water. The Defendant thought she might be
pregnant. Ms. Kinder said the Defendant was not handcuffed and did not recall if the
Defendant was shackled. She said it never crossed her mind that the Defendant was in
custody. She said she was there to assess a patient who had attempted suicide.

Yolande Bailey testified that she went to the Gas City Police Department on
December 12, 2010, regarding a possible suicide attempt. An officer told her that the
Defendant and Mr. Bowers were there for questioning about a Tennessee homicide. She did
not think she told Ms. Kinder this information. She and Mr. Black assessed Mr. Bowers
while Ms. Kinder assessed the Defendant. Mr. Bowers refused treatment, and Ms. Bailey
went into the room where Ms. Kinder was assessing the Defendant to complete her
paperwork. She heard Ms. Kinder ask the Defendant about who had been hurt, referring to
the victim, and how the authorities could help the person. She did not think about the
propriety of the questioning and continued doing paperwork. She said, though, she was
concerned when she heard the Defendant say they killed the victim. Ms. Kinder went to find
an officer. She said an officer “quickly went into there and advised for it to stop.” She said
the Defendant’s clothes appeared to be “soaking wet,” and she thought Mr. Bowers’s clothes
were wet. She said the Defendant may have had a blanket.

Kimberly Coffel, the Defendant’s mother, testified for the defense. She said that
before December 12, 2010, the Defendant had been living away from home for a month with
“Ben,” whose last name she did not know. She thought they lived next door to the crime
scene. She said she had been by the home but had not visited it to check on her daughter in
the month before the crime. She said she and the Defendant “were having some problems.”
She thought that she would give the Defendant one month away from home to live as an
adult and that the Defendant would decide to return home. She said that although she and
the Defendant were “essentially estranged” and did not speak daily, she talked to the
Defendant’s school counselor daily.

Ms. Coffel testified that she talked to her daughter on the Friday before Sunday,
December 12, 2010. She said she told the Defendant that she had called Child Protective
Services for assistance in getting the Defendant home. She acknowledged saying she could
have Mr. Bowers jailed but did not think she said she could have him prosecuted for statutory
rape. She said she talked to the Defendant about a letter she received notifying her that her
food stamp benefits would decrease because the Defendant was not living with her. She said,

-32-
though, she did not care about the benefits and wanted the Defendant home. She said the call
did not end well.

Ms. Coffel testified that on December 12, 2010, at 9:00 a.m., Sheriff Melton,
Assistant District Attorney General Gore, and District Attorney General’s Investigator
Kendall Hargis came to her house and asked about the Defendant and her possible
whereabouts. She said that despite her repeated inquiries, they would not tell her anything
except that it was serious. After they left, Ms. Coffel spoke with her mother by telephone
and learned the Defendant was at Ms. Coffel’s mother’s house. She called Mr. Hargis and
advised him of the Defendant’s location. Sheriff Melton called her around 10:00 or 10:30
a.m. and said the Defendant had been detained. She said she called the Gas City Police
Department before 11:00 a.m. and told Officer Keith Emmons that she did not want the
Defendant questioned without an attorney present. He told her the Defendant was being
taken to juvenile detention. She called the juvenile detention facility and advised Officer
Tetter that the Defendant was being transported to the facility and that the Defendant should
not be questioned until an attorney or Ms. Coffel was present. She said she told Mr. Hargis
the same thing.

Ms. Coffel testified that around 11:00 a.m., Mr. Gore, an unidentified officer, and
District Attorney General York came to her house with a document they wanted her to sign
allowing the Defendant to be questioned. She said they would not tell her what was going
on other than that it was serious. She said she declined to sign the document, and Mr. York
told her that the matter was serious and that if she did not sign it, he would prosecute the
Defendant to the fullest extent of the law. She said that Mr. York told her that the Defendant
would probably spend the rest of her life in prison, that it would be best for everyone if she
signed the document, and that if she signed it, the Defendant would likely get out of prison
someday. She said she felt pressured and intimidated and was “blatant” in saying “no, no.”
She said Mr. Gore told her it would be better for everyone if she signed the document. She
said her boyfriend was nervous and told her maybe she should sign. She said that although
she told herself the Defendant should not be questioned without an attorney present, she
ultimately signed the document after making telephone calls. She said she did not “really
read” the document and trusted what the State’s representatives told her. She did not think
anyone else came to her house that day.

Ms. Coffel testified that she did not recall the State’s representatives telling her that
the Defendant was a suspect in a murder but acknowledged they said there had been a
homicide. She said the sheriff had advised her earlier that there had been a homicide but did
not identify the victim. She said she wanted to talk to the Defendant, but no one told her that
she could. She said no one told her that she had the right to visit the Defendant daily unless
prohibited by court order or that the Defendant had a right to a detention hearing. She

-33-
claimed she did not remember their saying they did not know whether the Defendant would
be charged because they did not know the facts, but she later admitted that this had been said.
She said that although the waiver document listed times of 2:15 p.m. and 2:25 p.m., the times
were not on the document when she signed it. She said she could not have gone to Indiana
that day because there had been a snow storm.

Investigator Kendall Hargis testified that he, Sheriff Melton, and Mr. Gore went to
Ms. Coffel’s house around 8:30 a.m. on December 12, 2010, in order to determine the
Defendant’s whereabouts. He was certain Ms. Coffel wanted to know why they wanted to
locate the Defendant. He thought they told her that it was urgent but not that it was related
to a homicide. He said they relayed the information they obtained from Ms. Coffel to Indiana
authorities.

Investigator Hargis testified that Agent Huntley requested he contact Ms. Coffel to
obtain permission to interview the Defendant. He was unaware Ms. Coffel told other officers
she did not want the Defendant interviewed. He called Ms. Coffel, who advised him that she
had already spoken with Officer Emmons in Indiana and that she did not want the Defendant
questioned without an attorney. He relayed the information to Agent Huntley but did not
know if he told anyone else. He said it was “likely” he told Agent Huntley that Ms. Coffel
had told other officers she did not want the Defendant questioned. He did not think he told
anyone other than Agent Huntley about his conversation with Ms. Coffel, but he
acknowledged it was possible he had. An audio recording of the telephone call was played.

Gregory Hutte testified that he lived with Ms. Coffel and was home on December 12,
2010. He said he was aware of the problems between Ms. Coffel and the Defendant. He said
Ms. Coffel had been trying to visit the Defendant. He said that when Mr. Hargis, Mr. Gore,
and Sheriff Melton visited on the morning of December 12, they would not answer his and
Ms. Coffel’s questions about why they were looking for the Defendant. He said that after
they left, Ms. Coffel made telephone calls to the ISP, the Gas City Police, and “some other
places” trying to obtain information about the Defendant. He said that based upon what he
heard Ms. Coffel tell Gas City authorities, he was “shocked” the Defendant was questioned.

Mr. Hutte testified that when the State authorities brought the waiver for Ms. Coffel
to sign permitting questioning of the Defendant, Ms. Coffel told them that she did not want
the Defendant questioned without a lawyer or herself present. He said Mr. York advised
them that if she did not sign the document, he would prosecute the Defendant to the fullest
extent of the law and that the Defendant probably would never be released from prison. Mr.
Hutte said that Mr. York stated the Defendant might someday be released if Ms. Coffel
signed the document. He said that Ms. Coffel “went back and forth” and that he told her
maybe she should sign it. He said he was scared. He said that she eventually signed it and

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that she looked scared. Regarding the time the authorities were at the house, he thought it
was later than 10:00 or 11:00 a.m. and said he “suppose[d]” the time of 2:00 or 2:15 p.m.
shown on the document was accurate. He said Mr. York stated during the visit with him that
the crime scene was the worst he had ever seen but was unsure if Mr. York said he was not
yet aware of all the facts.

Mr. Hutte disagreed that the sheriff told them before the second visit from the
authorities that a homicide had occurred. He later said he did not remember if the sheriff
called and said a homicide had occurred and did not remember if Ms. Coffel said the sheriff
had called and mentioned a homicide. He said he drove past the victim’s house and saw
crime scene tape. He said he told Ms. Coffel it looked “pretty bad.”

After receiving the proof, the trial court made the following pertinent findings: The
Defendant was in custody when the paramedics were present. She was questioned by Ms.
Kinder for the purpose of rendering medical aid to a minor. Ms. Kinder was not an agent of
the State when she asked the Defendant questions pertinent to rendering medical aid. Ms.
Kinder had no prior knowledge of the case. Ms. Bailey overheard the Defendant’s
statements about the crime and was not a state agent. As soon as the paramedics understood
that the Defendant was incriminating herself, they stopped her. The police officers present
took appropriate action to ensure the Defendant was not questioned until she was advised of
her rights. The Defendant was given a thorough Miranda warning before she signed the
waiver and gave her recorded statement. When she said she had been “doing this all day,”
she was referring to giving her identifying information. The recording shows that Sergeant
Collins did not overbear the Defendant’s will. She was given the opportunity to state what
she knew, and she wanted to do so. She said she was going to be truthful. She was able to
explain the meaning of “coercion.” The court concluded upon review of the totality of the
circumstances, the State had proven by a preponderance of the evidence that the statement
was voluntary. The court filed a written order that stated the Defendant’s statement to the
paramedics was admissible in its entirety, and the statement to the police officers before she
asked for a lawyer was admissible.

A. Statement to Paramedics

The Defendant contends, first, that the Defendant’s statement to the paramedics
should have been suppressed because it was the product of a custodial interrogation by a state
actor using medical inquiries as a pretext for obtaining incriminating information. The
Defendant also emphasizes her young age, lack of experience with the police, and multiple
suicide attempts in the hours before she was taken into custody as factors to consider in our
determination.

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As we have noted, the Defendant was under arrest when she encountered the
paramedics. Our supreme court has condemned the use of deceptive police practices after
a defendant has been charged with a crime because they violate the Sixth Amendment right
to counsel. See State v. Berry, 592 S.W.2d 553, 556-61 (Tenn. 1980) (holding that a
homicide defendant’s Sixth Amendment rights were violated when questioned by a law
enforcement officer posing as a jail inmate); see also State v. Henry Floyd Sanders, —
S.W.3d —, No. M2011-00962-SC-R11-CD, 2014 WL 5801665, at *14 n.12 (Tenn. Nov. 10,
2014) (“Once the right to counsel attaches to a defendant, law enforcement officers are not
permitted ‘to do by ruse, trickery, deceit and deception that which it is not permitted to do
openly and honestly.’” (quoting Berry, 592 S.W.2d at 561)).

The trial court rejected the argument that the paramedics were state actors. No
evidence shows that the police recruited the paramedics to obtain information from the
Defendant. Ms. Kinder testified that she responded to a call about a possible overdose and
that she did not know why the Defendant was at the police station. Ms. Bailey knew the
Defendant was a suspect in a homicide investigation, but she did not think she told Ms.
Kinder. The Defendant’s admissions were not in response to interrogative questioning by
Ms. Kinder. No evidence shows any attempt by the paramedics to elicit incriminating
information. To the extent Ms. Kinder asked questions, they were focused on getting help
for the victim before Ms. Kinder understood the victim was deceased. Ms. Bailey did not
question the Defendant and was merely completing paperwork during part of the Defendant’s
encounter with Ms. Kinder. The paramedics terminated the encounter when the Defendant
began incriminating herself.

The evidence does not preponderate against the trial court’s finding that the
paramedics were not state actors. The Defendant’s statements to the paramedics were not
a result of custodial interrogation by the police.

The Defendant also contends that the Defendant’s inculpatory statements to Ms.
Kinder should be suppressed pursuant to the psychiatrist/patient privilege. See T.C.A. §
24-1-207. She reasons that the privilege extends to a psychiatrist or a member of a
psychiatrist’s staff and that the Defendant’s statements about having attempted suicide
referred to mental or emotional problems, placing Ms. Kinder in the role of a psychiatric
nurse. Therefore, the Defendant argues her statements were privileged and should have been
suppressed. The Defendant has not cited any authority for the extension of the statutory
psychiatrist/patient privilege to a patient’s statements to emergency medical personnel. The
State notes the lack of authority for the Defendant’s argument and the lack of evidence that
the paramedics in this case were communicating with the Defendant at the direction of a
psychiatrist or as a member of a psychiatrist’s staff. Because this issue was not raised in the
written motion to suppress or at the suppression hearing, it is waived. See State v. Leach, 148

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S.W.3d 42, 55 (Tenn. 2003) (stating that “[a]s a general rule, a party may not litigate an issue
on one ground, abandon that ground post-trial, and assert a new basis or ground on appeal”);
see also T.R.A.P. 36(a) (“[R]elief may not be granted in contravention of the province of the
trier of fact.”).

B. Statement to Police Officers

The Defendant contends that the trial court erred in denying the motion to suppress
her statement to Sergeant Collins and Deputy Hammel. She argues that her waiver of rights
was not voluntary due to her age, state of mind, recent suicide attempts, lack of experience
with law enforcement, and knowledge of a waiver her mother signed allowing the Defendant
to be questioned that was itself a product of coercion.

“The test of voluntariness for confessions under Article I, § 9 of the Tennessee
Constitution is broader and more protective of individual rights than the test of voluntariness
under the Fifth Amendment.” State v. Smith, 933 S.W.2d 450, 455 (Tenn. 1996); see State
v. Northern, 262 S.W.3d 741, 763 (Tenn. 2008). To be considered voluntary, a statement
must not be the product of “‘any sort of threats or violence, nor obtained by any direct or
implied promises, however slight, nor by the exertion of any improper influence.’” State v.
Smith, 42 S.W.3d 101, 109 (Tenn. Crim. App. 2000) (quoting Bram v. United States, 168
U.S. 532, 542-43 (1897)). A defendant’s subjective perception is insufficient to establish the
existence of an involuntary confession. Id. The essential inquiry is “‘whether the behavior
of the State’s law enforcement officials was such as to overbear [the defendant’s] will to
resist and bring about confessions not freely self-determined[.]’” State v. Kelly, 603 S.W.2d
726, 728 (Tenn. 1980) (quoting Rogers v. Richmond, 365 U.S. 534, 544 (1961)). A
confession is involuntary if it is the product of coercive state action. See, e.g., Colorado v.
Connelly, 479 U.S. 157, 163–64 (1986).

When the suspect is a juvenile, a waiver is analyzed using a totality of the
circumstances approach that takes the following factors into account:

(1) consideration of all circumstances surrounding the interrogation including
the juvenile’s age, experience, education, and intelligence;

(2) the juvenile’s capacity to understand the Miranda warnings and the
consequences of the waiver;

(3) the juvenile’s familiarity with Miranda warnings or the ability to read and
write in the language used to give the warnings;

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(4) any intoxication;

(5) any mental disease, disorder, or retardation; and

(6) the presence of a parent, guardian, or interested adult.

State v. Callahan, 979 S.W.2d 577, 583 (Tenn. 1998). In addition, the Tennessee Rules of
Juvenile Procedure provide:

Intimidative or coercive methods shall never be used in questioning children.
If feasible, a parent or guardian should be present during questioning. In any
event, no child having been placed in and present in a detention facility shall
be interrogated concerning an alleged violation of law unless the child
intelligently waives in writing the right to remain silent.

Tenn. R. Juv. P. 7(d).

We will consider the validity of the Defendant’s waiver in light of the Callahan
factors. Regarding her age, experience, education, and intelligence, we note that the trial
court found that the sixteen-year-old Defendant was intelligent and had life experience. She
stated in the interview that she was in the tenth grade. She had been living independently
from her mother. The court found that Ms. Coffel’s concern for the Defendant’s living
independently was related to Ms. Coffel’s loss of food stamp benefits, not the Defendant’s
living as an adult.

Regarding the Defendant’s capacity to understand the Miranda warnings and the
consequences of the waiver and her familiarity with the warnings, the trial court found that
the Defendant was thoroughly advised of her Miranda rights. Her waiver of those rights was
memorialized in the recording and by her signature on the written waiver. The Defendant
stated that she was going to be truthful. She was able to explain the meaning of “coercion.”
The record does not reflect that the Defendant had any prior involvement with law
enforcement, but the Defendant asked whether her mother was aware of what was happening,
appeared to understand her rights when they were explained to her, and indicated her
willingness to waive her rights. When she was questioned, she readily provided information
in narrative form without extensive or accusatorial questioning. She appeared to understand
what she was doing and wanted to relate the facts to the authorities.

Regarding intoxication, the record reflects that the Defendant stated she and Mr.
Bowers had used drugs on previous occasions. They brought pills with them when they left
Tennessee, but the pills were lost. She said that on the day she was taken into custody, she

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and Mr. Bowers attempted suicide by injecting nicotine water and inhaling carbon monoxide.
The record reflects, though, that she had been in custody for approximately eight hours
before she gave her statement and that she was able to communicate without apparent
impairment. Likewise, Ms. Kinder testified that the Defendant’s vital signs were normal and
that she had no medical problems warranting treatment earlier that day.

Regarding mental health concerns, the Defendant did not exhibit or report any
problems. The recording shows that the Defendant was upset and cried frequently during the
interview but that she was not so overcome by emotion that she had any difficulty relating
the events of the crimes. The officers questioned her calmly. Although she reported multiple
suicide attempts, several hours had passed, and she did not appear to be in acute distress. She
expressed her desire to tell the truth about the crime and her remorse for its effects on the
lives of herself, Mr. Bowers, and her unborn child.

Regarding the presence of a parent, the record reflects that Ms. Coffel initially told
officers she did not want the Defendant to be questioned without herself or an attorney
present, but she changed her mind after she received more information from the sheriff that
a homicide had occurred, talked to the district attorney general and employees of his office,
and made telephone calls. Although the Defendant argues that Ms. Coffel was threatened
with the Defendant’s receiving harsher punishment if Ms. Coffel did not sign the consent
form, the evidence falls short of showing that Ms. Coffel was threatened or coerced into
signing the form. We note, as well, that Ms. Coffel testified that she was unable to go to
Indiana on December 12, 2010, due to inclement weather. The Defendant asked about her
mother’s knowledge of what was happening and was advised that her mother signed the
consent form. The Defendant told Ms. Kinder that she did not want to give out Ms. Coffel’s
contact information because her mother did not care about her and was a drunk.

The record reflects that the trial court considered the relevant factors and concluded
upon review of the totality of the circumstances that the State had proven by a preponderance
of the evidence that the statement was voluntary. Upon review, we conclude that the
evidence does not preponderate against the court’s findings and that the findings support the
court’s conclusion. The Defendant is not entitled to relief on this basis.

IV

Crime Scene Video Recording and Photograph

The Defendant contends that the trial court erred by failing to suppress the video
recording of the crime scene depicting the victim’s body and a photograph taken during the
victim’s autopsy. She argues the recording and photograph were admitted in violation of

-39-
Tennessee Rule of Evidence 403. The State responds that the trial court properly admitted
the evidence. We agree with the State.

Relevant evidence is “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.” Tenn. R. Evid. 401. Relevant evidence, however, “may
be excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence.” Tenn. R. Evid. 403.

The admissibility of a crime scene video recording is “within the sound discretion of
the trial judge, and [a] ruling on the admissibility of such evidence will not be overturned
without a clear showing of abuse of discretion.” State v. Van Tran, 864 S.W.2d 465, 477
(Tenn. 1993); see State v. McCray, 922 S.W.2d 511, 515 (Tenn. 1996). A trial court abuses
its discretion when it applies an incorrect legal standard or reaches a conclusion that is
“illogical or unreasonable and causes an injustice to the party complaining.” State v. Ruiz,
204 S.W.3d 772, 778 (Tenn. 2006).

Photographs of victims “are admissible in murder prosecutions if they are relevant to
the issues on trial, notwithstanding their gruesome and horrifying character.” State v. Banks,
564 S.W.2d 947, 950-51 (Tenn. 1978). When determining the admissibility of such
evidence, the trial court should consider

their accuracy and clarity, and whether they were taken before the corpse was
moved, if the position and location of the body when found is material; the
inadequacy of testimonial evidence in relating the facts to the jury; and the
need for evidence to establish a prima facie case of guilt or to rebut the
defendant’s contentions.

Id. at 951.

The record reflects that before the trial, the Defendant moved to exclude the video
recording of the crime scene. Trial counsel argued the recording showed the victim at the
scene and was unnecessary given the testimony of the police officers and emergency
personnel who were present at the scene. Counsel, though, did not object to the remaining
portions of the recording and noted the holes in the walls showed Mr. Bowers’s propensity
for violence and were relevant to the defense.

The trial court found that the video recording was relevant because it permitted the
jury to “be in touch with” the scene and to view firsthand where things were located and how

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events unfolded. The court noted trial counsel’s concession that the recording was relevant,
in part, to Mr. Bowers’s propensity for violence. The court found that the recording was not
gruesome, although it showed the victim lying on the floor. The court found that the
completeness of the police investigation was reflected in the recording and that the recording
reflected what the officer saw. The court found that the recording was relevant and permitted
the State to present it to the jury in its entirety.

Regarding admission of the video recording, we conclude that the trial court did not
abuse its discretion. The recording is neither inflammatory nor gruesome, and it is extremely
probative of the condition and appearance of the victim and the scene. Although the victim
was deceased and lying on the floor, the recording corroborated, in part, the Defendant’s
statements regarding how the victim was killed and showed the placement of the pillow and
dog cord used to kill the victim. The recording also showed the absence of the victim’s car,
the layout of the victim’s house, and the placement of other pieces of evidence.

Relative to the photographs, the Defendant objected to various photographs of the
victim, including photographs taken during the autopsy. Trial counsel argued the
photographs of the victim were too graphic and prejudicial and would inflame the jury. The
trial court excluded several photographs, and the only photograph relevant to this appeal is
a closeup of the victim’s face showing facial petechia indicative of asphyxiation. Counsel
argued the medical examiner’s testimony and the autopsy report sufficiently described the
markings on the victim’s face, which made the photograph unnecessary. The court found
that although the photograph was of the victim’s face, it was not particularly gruesome and
that the photograph clearly showed markings. The court found that the State could present
the photograph as long as it could lay the proper foundation with the medical examiner that
the markings were indicative of asphyxiation.

Regarding the photograph of the victim’s face, the record reflects that trial counsel
objected to its admission on the ground of relevance. The medical examiner testified that the
photograph showed petechia around the victim’s eyes and an abrasion on her forehead. At
that point, counsel withdrew his objection, and the photograph was admitted. Because
counsel withdrew his objection to the photograph, the issue is waived. See T.R.A.P. 36(a);
see also Tenn. R. Evid. 103(a)(2). In any event, we note that nothing in the record warrants
a conclusion that the trial court committed plain error by admitting the photograph. See State
v. Adkisson, 899 S.W.2d 626 (Tenn. Crim. App. 1994); see also State v. Smith, 24 S.W.3d
274 (Tenn. 2000). The Defendant is not entitled to relief on this basis.

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V

Victim’s Fear of Mr. Bowers

The Defendant contends that the trial court erred by failing to admit evidence of the
victim’s fear of Mr. Bowers. She argues witness testimony relative to the victim’s fear was
admissible because it qualified as a state of mind exception to the rule against hearsay. The
State responds that the trial court properly excluded the relevant testimony because the state
of mind exception only applies to material issues. We agree with the State.

Hearsay “is a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid.
801(c). Hearsay is inadmissible unless it qualifies as an exception. Id. at 802. Tennessee
Rule of Evidence 803(3) provides:

Hearsay Exceptions. – The following are not excluded by the hearsay rule:

....

(3) Then Existing Mental, Emotional, or Physical Condition. – A statement of
the declarant’s then existing state of mind, emotion, sensation, or physical
condition (such as intent, plan, motive, design, mental feeling, pain, and bodily
health), but not including a statement of memory or belief to prove the fact
remembered or believed unless it relates to the execution, revocation,
identification, or terms of declarant’s will.

Trial counsel attempted to present e

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2770742. Public record. Not legal advice.