State of Tennessee v. Lindsey Brooke Lowe

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

August 11, 2015 Session

STATE OF TENNESSEE v. LINDSEY BROOKE LOWE

Appeal from the Criminal Court for Sumner County

No. 2011-CR-834 Dee David Gay, Judge

No. M2014-00472-CCA-R3-CD – Filed July 12, 2016

_____________________________

The parents of the defendant, Lindsey Brooke Lowe, discovered the body of one of her

newborn twins in a laundry basket in her bedroom. A second deceased newborn was also

found in the basket, and the defendant gave an incriminating statement to police. A jury

convicted the defendant of two counts of first degree (felony) murder, two counts of first

degree (premeditated) murder, and two counts of aggravated child abuse, a Class A

felony. The trial court merged the first degree murder convictions for each victim. The

defendant received a life sentence for each first degree murder conviction and a twenty-

five year sentence for each aggravated child abuse conviction, all to be served

concurrently. On appeal she asserts that the evidence was insufficient to support the

verdicts; that the trial court erred in not suppressing her statement; that the trial court was

biased; that the trial court denied her the right to testify in her defense; that the burden of

proof was shifted to the defense; that her motion for a change of venue should have been

granted; that the physical evidence obtained through a search warrant should have been

suppressed; that the trial court erred in excluding expert testimony regarding her ability to

waive her right to remain silent; that the trial court erred in various other evidentiary

decisions; and that she is entitled to relief under the theory of cumulative error. After a

thorough review of the record and the applicable law, we affirm the judgments of the trial

court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which NORMA

MCGEE OGLE and ROBERT W. WEDEMEYER, JJ., joined.

David L. Raybin (on appeal), Nashville, Tennessee; John Pellegrin (at trial and on

appeal), Gallatin, Tennessee; and James Ramsey (at trial), Gallatin, Tennessee, for the

Appellant, Lindsey Brooke Lowe.

Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Senior Counsel;

Lawrence Ray Whitley, District Attorney General; and C. Ronald Blanton, Assistant

District Attorney General, for the Appellee, State of Tennessee.

OPINION

FACTUAL AND PROCEDURAL HISTORY

The defendant was interviewed by police and ultimately gave a statement in which

she admitted placing her hand over each baby‟s mouth in order to stifle the child‟s cry.

Prior to trial, the defendant moved to suppress her statement.

On November 5, 2012, the trial court held a hearing during which the State

presented the testimony of Detective Steve Malach, who had obtained the defendant‟s

statement. The defense focused primarily on showing that the Miranda warnings given

by Detective Malach were not adequate. The defendant also tried to introduce the

testimony of Dr. Pamela Auble, a forensic psychologist who had examined the defendant.

The State objected to the testimony, and the trial court ultimately excluded it because Dr.

Auble had not reviewed the interview between the defendant and Detective Malach.

Defense counsel requested to make an offer of proof in question and answer form, but the

trial court refused, concluding that the statements of defense counsel regarding the

potential testimony, along with Dr. Auble‟s report, constituted a sufficient offer of proof.

The defendant was permitted to call Dr. William D. Kenner to testify regarding the

defendant‟s susceptibility to coercion. The trial court denied the motion to suppress,

finding that the defendant was not in custody, that the Miranda warnings were adequate,

and that her statements were knowing and voluntary. The defendant moved for an

interlocutory appeal of the denial of the motion, which was likewise denied. In denying

the interlocutory appeal, the trial court took exception to the defendant‟s summary of the

proceedings on the motion to suppress. This court denied an application to review the

denial of the motion to suppress. The trial court‟s comments at the hearing on the motion

for interlocutory appeal then became the basis of a motion to recuse, which the trial court

heard and denied on January 22, 2013. The denial of the motion to recuse was likewise

appealed to this court, and this court affirmed the trial court‟s decision shortly before the

trial began on March 11, 2013. State v. Lindsey Brooke Lowe, No. M2013-00447-CCA-

10B-CD, 2013 WL 706318, at *5 (Tenn. Crim. App. Feb. 26, 2013).

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The defense also moved to suppress the physical evidence obtained from the

defendant‟s home pursuant to a search warrant. Detective David Harrell testified at the

hearing that he had prepared a search warrant and that he took it to Judge C.L. Rogers at

11:35 a.m. on September 14, 2011. The judge signed three copies in Detective Harrell‟s

presence. One was returned to the judge, one left at the home, and one executed and put

under seal. The copy under seal showed it was signed at 11:35 p.m., while the copies left

in the home and kept in the possession of the judge both showed they were signed at

11:35 a.m. Detective Harrell testified he executed the warrant at 12:34 p.m. Judge

Rogers testified that writing “p.m.” on one warrant was a clerical error.

At the motion to suppress, the trial court found that Tennessee Rule of Criminal

Procedure 41(d) was violated because the three copies of the warrant were not identical.

However, the trial court concluded that the discrepancy was an unintentional clerical

error, that the warrant was otherwise in compliance with constitutional principles, and

that Tennessee Code Annotated section 40-6-108 (2010) acted to preserve the warrant.

The trial court stated, “If there was ever a case for a good faith mistake or exception, this

is the case,” and the court denied the motion to suppress the fruits of the search warrant.

Prior to trial, the trial court also heard the defendant‟s motion for a change of

venue. Defense counsel‟s legal assistant testified regarding certain internet searches she

had performed that retrieved a wide variety of media coverage of the issue. Many of the

comments to the news articles were vitriolic, vicious, and threatening. Rick Berry, an

investigator hired by the defense, contacted persons from the county‟s jury panel lists

from four months in early 2012. He discovered that seventy-seven percent of those who

responded had heard about the deaths of the twins, and most of them had received their

information from the media. Thirty-six percent of those who had heard about the deaths

believed that the defendant was guilty of murder, and twenty-nine percent were closely

connected to law enforcement. Of those that responded, forty-five percent felt it would

be fairer for her to be tried outside the county. The trial court found that, although

publicity around a trial was not a new phenomenon, “this social media, the threats, the

hostility from these sites is something new.” The trial court stated that it could, however,

control the jury that actually sat to try the case, and it took the motion under advisement

until after the panel had been subject to voir dire by the attorneys, noting that several of

the factors in State v. Hoover, 594 S.W.2d 743, 746 (Tenn. Crim. App. 1979) related to

the actual jurors seated and the potential jurors called.

The record reflects that the defense and prosecution worked together to create a

questionnaire to identify potential bias in the jury venire. In an attempt to ensure an

impartial jury, the trial court arranged for summonses to be sent to approximately four

hundred potential jurors and for the jury to be impaneled over a period of two days

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instead of one. During an extensive voir dire process, the trial court excused sixteen

jurors for cause. The State used four of its eight peremptory challenges, and the

defendant used seven out of eight. At the end of voir dire, the trial court denied the

motion for a change of venue, and the case proceeded to trial.

At trial, the State presented evidence tending to show that the defendant became

pregnant after having sexual contact with a man who was not her fiancé, that she hid the

pregnancy because of a fear of its social consequences, and that she suffocated her

children to keep her family from discovering the births. The defendant presented

evidence tending to show that she became pregnant after being sexually assaulted, that

she did not, due to a preexisting mental defect, realize that she was pregnant at any time

during the pregnancy, that giving birth unassisted affected the defendant‟s mental state

and physical capabilities, and that the deaths of the children were not intentional or

premeditated.

The defendant grew up in Hendersonville, Tennessee, and lived with her mother,

father, and younger sister. The defendant‟s father and sister testified that she attended a

private religious school and was involved in numerous activities such as swimming and

dance. The defendant was close with her family and was always well-behaved and

“meek.” In 2005, while the defendant was away at college, the defendant‟s mother, who

had previously run the home in addition to working, developed a benign brain tumor the

size of an orange. After surgery, the defendant‟s mother underwent a change in her

personality. She was no longer able to plan, clean, organize, or make financial decisions,

and she experienced emotional highs and lows. The defendant tried to fill her mother‟s

place by cleaning, getting groceries, and doing other domestic tasks when she came home

from college on the weekends. The defendant had become engaged to Jonathan Brooks

at college, but after she graduated in 2008, she moved into her parents‟ house to assist her

mother. The defendant remained engaged to her fiancé, but the two lived in separate

cities both before and after his graduation in 2009. The mother of the defendant‟s fiancé

became ill, and the relationship between the defendant and her fiancé gradually became

more distant.

Around April or May 2010, the defendant met Jeremy Smith through her cousin‟s

husband. Mr. Smith began to send text messages to the defendant. The defendant‟s sister

testified that she knew that Mr. Smith “had been bothering” the defendant but was not

aware that the defendant at some point began communicating with him. Mr. Smith

testified that he went on three dates with the defendant, had sex with her each time, and

used protection only on the first two occasions. He tried to call her again after the third

date, but she did not return his call. Mr. Smith testified that there were several twins in

his family and that he himself was a twin. He acknowledged that he had told the

defendant he wanted to marry her and wanted her to have his children before they ever

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went on a date and while he had a girlfriend. He denied that the defendant had told him

that she did not want to have sex or that he forced her to have sex with him. He

acknowledged that he actually called her four times after their last meeting in early

January 2011 but that she would not return his calls. He testified that he would have

taken care of the babies and at first denied that he failed to pay child support for an

existing child. However, he ultimately acknowledged that he had been charged with

flagrant non-support of his daughter.

The defendant‟s text messages with Mr. Smith were introduced through Special

Agent Reeves Garnett. In late November 2010, the defendant and Mr. Smith exchanged

numerous flirtatious text messages. In one series of messages, the defendant asked Mr.

Smith to join her at a restaurant and bar. When he responded that he was with his

girlfriend, she asked him, “Y did u ask me to marry u if u were with her[?]” Mr. Smith

responded, “Cuz i want to marry u. I want u to b the mother of my kids.” The two

exchanged messages apparently attempting to arrange a meeting around December 22,

2010.

The defendant became pregnant by Mr. Smith, and she was carrying twins.

However, she did not tell anyone about her pregnancy. The defendant‟s father testified

that he never knew or suspected that she was pregnant, despite the fact that it was not

unusual for the family to go into the defendant‟s room. The defendant‟s sister likewise

testified that she never knew or suspected that her sister was pregnant, even when she

was carrying twins in her ninth month. She never heard anyone speculate that the

defendant was pregnant.

In the spring of 2011, the defendant‟s fiancé‟s mother died. At around the same

time, the defendant‟s mother suffered a return of her brain tumor, and the defendant tried

to help around the house and drove her mother to radiation therapy. The defendant had

been unable to find work in her field after graduating in 2008, so at some point in the

summer of 2011, the defendant obtained work doing billing and insurance claims at a

dental office. In August, she was transferred to a branch closer to her home. Terri

Farrell, who worked with the defendant at the new location, testified that she never

suspected the defendant was pregnant. All the workers at the dental office, even those in

billing who did not have patient contact, wore scrubs with an optional lab jacket, and the

defendant wore a black lab jacket every day. Michelle Stainback, the defendant‟s

supervisor, also did not know or suspect the defendant was pregnant. She testified that

no one at work knew about or suspected the pregnancy.

On the weekend of September 10, 2011, the weekend before the birth of the twins,

the defendant was a bridesmaid in a friend‟s wedding in Kentucky. The defendant‟s

sister, Lacey Lowe, testified that although the defendant had been fitted for her dress in

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January or February, when she was only a month or two into the pregnancy, the dress still

fit the defendant in her ninth month of pregnancy when she wore it to the September

wedding. The defendant‟s sister and a friend named Lacey McFadden drove with the

defendant from Hendersonville to Kentucky to attend the wedding. Although the young

women in the wedding party were all changing in front of each other in the same room,

no one noticed that the defendant was pregnant because she did not look different. The

defendant‟s sister had noticed that the defendant had gained some weight, but her weight

had always fluctuated, so she did not ascribe any significance to the weight gain. The

defendant usually wore scrubs to her work and big t-shirts at home.

The defendant, her sister, and Ms. McFadden returned to Hendersonville on

Sunday, September 11, 2011, and Ms. McFadden slept in the defendant‟s bed with her.

The defendant went to work on Monday the 12th, exchanging a series of text messages

with her sister about going to a concert, with her fiancé about a trip they planned to take

together, and with Ms. McFadden. That evening, the defendant‟s family believed that the

defendant had a stomach virus. The defendant stayed in the bathroom she shared with

her sister, and the defendant‟s mother went to the door three times to check on her,

accompanied by the defendant‟s father during one visit. The defendant told them that she

was fine but sick. Because as a child she had always asked to be left alone when sick, her

parents did not think this was unusual. The defendant‟s sister had stayed in her own

room and was not aware that the defendant was ill until her parents told her. At around

10:39 p.m., the defendant‟s sister sent her a text message saying, “Let me know if u need

anything…love you goodnight.” At some point during the night, the defendant gave birth

to twins in the bathroom.

On Tuesday, September 13, 2011, at 6:03 a.m., the defendant sent a text message

to a coworker asking for the phone number of Ms. Stainback, her supervisor. The

defendant then sent Ms. Stainback a text message identifying herself and saying she had

been “up sick all night” and was still not well. She told Ms. Stainback that she could not

come to work but would be at work the following day. Early in the morning after the

births, the defendant‟s sister used their shared bathroom. She did not notice anything

unusual about the bathroom. While the defendant‟s sister was in the bathroom, the

defendant called her name and asked her for a glass of water. The defendant‟s sister

made sure the defendant did not need anything else and then went to work. The

defendant‟s father got ready to go to work himself and to take his wife, who could not

drive because of her tumor, to work. He believed that the defendant had a stomach flu,

and he did not see her before he left. The defendant was home alone all morning, with

access to two vehicles. When the defendant‟s father returned home for lunch, the

defendant was lying on a couch in an upstairs common area, and she seemed unwell but

told him she was better. The defendant spent the afternoon at the house by herself, again

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with access to two vehicles. The defendant‟s sister got her some Jell-O and crackers

from the store on her way home from work.

During the day of September 13, 2011, the defendant sent several text messages.

She sent her fiancé a text message around noon telling him she loved him. She sent some

text messages to a friend, Rachel Hawkins, who was pregnant and due to deliver in early

September. Ms. Hawkins told the defendant she would be induced the following week if

the baby had not arrived. The defendant responded, “Awe I‟m sorry! Well I‟ve been

thinking about you! Hopefully she will get here before Monday!” The defendant also

discussed watching a television show called “The Vampire Diaries” with Ms. Hawkins if

Ms. Hawkins‟ baby had not arrived by the time the show aired. In a series of text

messages with her sister, the defendant discussed the upcoming concert they were

attending. She also sent text messages to another friend regarding the concert and

regarding her “stomach bug.” The defendant stated that she “never went to bed last[ ]

night I just laid in the bathroom floor.” The defendant also told her fiancé that she had

had a virus via text message that evening.

The next day, the defendant left for work in the billing department of the dental

office. At 8:02 a.m., she sent her father a text message telling him that, in the billing

accounts, she had just come across a man who shared a name with one of her father‟s

relatives. She also sent a text message to her fiancé at 8:35 a.m. regarding information on

the cabin they intended to rent for their trip. The defendant‟s father testified that the

defendant‟s sister had left for work and that his wife was upstairs. The defendant‟s father

heard his wife shout his name in a panicked voice. She told him that there was a

newborn child in the defendant‟s room. The defendant‟s father looked at the child and

spent about fifteen minutes unable to do anything due to shock. He then called a friend

of his father‟s who is an attorney, and this man told him to call his pastor. He called his

pastor, who started for the house but advised him to call the authorities. The defendant‟s

parents did not go upstairs again.

Randy Tope testified that he was answering calls with the Hendersonville Police

Department dispatch on September 14, 2011, when he received a telephone call, which

was played for the jury, from the defendant‟s father at around 8:30 or 8:35 a.m. The

defendant‟s father stated, “My daughter has gone to work, but apparently she has had a

child in her room[,] and it is not living.” Mr. Tope dispatched the police department, fire

department, and emergency medical personnel.

Officer Jeremy Fentress was the first on the scene. He testified that the

defendant‟s father told him that his twenty-five-year-old daughter had been sick and that

his wife went to clean his daughter‟s room that morning. They had found a deceased

newborn in a laundry basket by the bed. Officer Fentress checked on the infant, who was

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under a sheet and bloody towel, and found him cold to the touch and not breathing.

Barbara Jones, a paramedic, arrived on the scene and examined the infant, who was

obviously deceased. She touched the infant‟s arm and found no rigor mortis. Ms. Jones

testified that it would take twelve hours to reach full rigor and about twelve to come out

again. She concluded that the baby had come out of rigor mortis. Ms. Jones testified that

there was fecal matter on the towel but that the fecal matter could have drained out as the

muscles relaxed after death. She testified that there was no meconium stain on the baby,

which can be an indicator of fetal distress. The baby appeared to be full-term, and she

estimated he weighed five pounds.

Law enforcement officers all testified that the defendant‟s mother and father were

very cooperative. Detective Sergeant Jim Vaughn testified that he arrived on the scene

shortly before 9:00 a.m. and assigned Detective Malach to interview the defendant. The

defendant‟s father testified that he told Detective Malach where the defendant was and

that he was concerned for her health because her blood type was Rh negative. He asked

Detective Malach to take her to a hospital. He also asked Detective Malach if he could

have an attorney present while police talked to the defendant, and Detective Malach

replied that “she was too old.”

Detective James Garrett was taking written statements from the defendant‟s

parents while Detective Malach was interviewing the defendant at the police station.

Detective Garrett testified that he received a communication from an officer at the station

that there was a second baby in the home. Although the search warrant had not been

obtained, Detectives Vaughn, Garrett, and Fentress went upstairs to check on the welfare

of the second baby. Detective Garrett removed the sheet and towel from the basket and

put them on the bed, intending to lay the first baby there. However, he discovered that

the first baby‟s umbilical cord was attached to something in the basket, so Officer

Fentress held the baby while Officer Garrett removed some items from the basket and

discovered the second baby and placenta. The second baby had the umbilical cord lying

across his neck and shoulder, but the cord was not wrapped around the baby‟s neck.

After determining that the second child was deceased, they replaced the babies in the

basket. Officer Fentress acknowledged that his report stated that the second baby was

significantly smaller than the first and appeared to be only three or four pounds.

Detective Garrett brought the basket out to an emergency vehicle backed up to the door,

and he attached tags to the babies‟ ankles to distinguish them. The baby who had been

discovered first was tagged “Baby Lowe 1” and the other was tagged “Baby Lowe 2.”

The officers all testified that the defendant‟s home did not contain any baby items or any

supplies for taking care of a newborn.

Detective David Harrell prepared the search warrant for the defendant‟s home and

executed it. Detective Harrell testified that he saw no blood in the bathroom. However,

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testing indicated that there was blood or biological material on the bathroom floor,

covering the toilet, and on a patch of carpet in the defendant‟s bedroom. In the closet of

the defendant‟s bedroom, Detective Harrell found numerous blood towels and sheets,

several pairs of bloody underwear and pajama pants, and a bloody shirt. He also found a

Kendall Curity Maternity pads package for twelve pads in a trash bag in the defendant‟s

room. In introducing photographs of the physical evidence found at the defendant‟s

home, a picture of a shelf containing a series of books or videos of “The Vampire

Diaries” was admitted over the defendant‟s objection. The trial court ruled that the

photograph was “very relevant” to the issue of mens rea.

An autopsy was performed in an attempt to determine the manner of the twins‟

death. Dr. Brent Davis, a forensic pathologist, testified that the gestational age of “Baby

Lowe No. 1” was forty weeks, that the baby weighed 6.5 pounds, and that he suffered

from no abnormalities. The second baby had the same weight, gestational age, and

absence of birth defects. Both babies had a subgaleal hemorrhage, which is a minor

injury common in vaginal birth. Dr. Davis testified that if a baby were to die in utero or

were born deceased, the lungs would not be aerated and would not float. The lungs of

both babies floated and were aerated when examined under a microscope. Dr. Davis

testified this meant that both children were born alive. The second baby had the

umbilical cord around his neck. However, Dr. Davis testified that he examined the neck

tissue and found no indentation or hemorrhage in the neck muscles, indicating that the

baby was not strangled by the umbilical cord. Dr. Davis‟s report concluded that the

babies were victims of homicide and that the manner of death was smothering.

Dr. Davis also, however, testified that “smothering comes down to a

documentation to a lack of injuries.” He elaborated that a conclusion that a baby was

smothered was typically based on scene investigation and the absence of another obvious

cause of death. He acknowledged that he relied heavily on the information given by law

enforcement. He also testified that the placenta, if delivered on top of the babies in a

toilet bowl, could suffocate one or both. He stated it was possible that one baby delivered

on another could suffocate the first baby. Dr. Davis testified that newborns typically

cannot regulate their body temperature well and that hypothermia could kill a newborn,

particularly in water, in a matter of minutes to hours. He stated that hypothermia would

also leave an absence of physical findings and that a baby who died of hypothermia

would look the same as one who died of smothering. He also acknowledged that a

mother who delivered without medical attention could lose consciousness, particularly if

suffering blood loss, that she might not be able to tend the babies, and that they could die

of exposure as a result.

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Dr. Michael Baird testified that the twins were fraternal and that genetic testing

indicated that Jeremy Smith was the biological father of both. The defendant‟s fiancé

Brooks was excluded as the father.

The State introduced the testimony of Detective Malach and the defendant‟s video

recorded statement as evidence that she had intentionally killed her newborns. The

defendant introduced the testimony of Drs. William D. Kenner and Pamela Auble to

establish that the defendant did not realize she was pregnant and that she suffered from

mental defects and hypovolemic shock at the time of the births, rendering her incapable

of forming the intent to commit the crimes.

Detective Malach testified that he was called to the defendant‟s home, and after he

observed the first baby, he spoke with the defendant‟s father, who told him that the room

belonged to the defendant and that, based on a text message he had received that

morning, she was at work. Detective Malach left to interview the defendant at her

workplace. He was driving an unmarked vehicle and wearing a suit.

At the dental office, Detective Malach told the defendant‟s supervisor that he

would like to talk with the defendant privately. The defendant was at her desk, wearing

headphones and smiling. She agreed to speak with him in private. Detective Malach

identified himself as a police detective and asked if she knew why he was there. When

she said she did not, he told her they had found the laundry basket. The defendant

became serious at that point. He explained that he was trying to find out what had

happened, and he asked for her cooperation. He told her that he would like to talk with

her at the station and that he would read her rights when they got there. Detective

Malach told her briefly what the rights were. She told him that she would like to go to

the station with him. He relayed to the defendant his concerns that she might not be able

to drive. He told the defendant that he would drive her, and she “wound up” coming with

him. The defendant retrieved something from her vehicle before leaving the parking lot.

She sat in the front seat, with no handcuffs, and Detective Malach never searched her.

She had her purse with her, and they did not speak about the babies on the way. Instead,

they had a casual conversation, which Detective Malach used to establish a rapport. At

the station, the defendant sat on a bench in the hallway while Detective Malach prepared

the room. No one was watching her. In the interview room, he read the defendant her

rights, and she orally waived them.

During the interview, the defendant told Detective Malach that she knew she was

pregnant “[p]robably almost the whole time,” because she was not menstruating and was

feeling different. She noticed she gained weight and began lactating shortly before the

birth. She at first told Detective Malach that her fiancé was the father but later told

Detective Malach that she “cheat[ed] on him” with Jeremy Smith “right before.” She

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stated that she had intercourse with Mr. Smith twice, once at the end of December and

once in early January, and that Mr. Smith did not use protection. She had not told anyone

she was pregnant because she was “just scared” of what her family would think, and she

did not want her family or fiancé to be disappointed. She also did not want to risk losing

her fiancé.

The defendant told Detective Malach that she was gone to the wedding from

Thursday to Sunday. She stated that her stomach was hurting on Monday but she went to

work. She did not eat dinner and began to have intense back pain about 6:30 p.m. She

had a bowel movement around 9:30 or 10:00 p.m. Shortly after 10:00 p.m., she thought

she was going to have a bowel movement and instead gave birth on the toilet. The

defendant said that the baby landed in the toilet and that she lay down on the floor,

shaking. During the interview, she stated that the baby cried for less than a minute, and

she denied touching the baby. She did not see if the baby was submerged. At this point,

the defendant told Detective Malach that there were two babies and that the second one

was also in the laundry basket. Detective Malach left the room to get a tissue but also

alerted another officer that law enforcement should check on the welfare of the second

baby. The defendant initially stated that the second baby was born five minutes after the

first one and never cried. She told Detective Malach that she got off the floor, delivered

the second baby and placenta into the toilet bowl, and then lay back on the floor. She

raised the possibility that the second baby might have bumped into the first one as it was

born. The defendant stated that both babies were alive when they were born. She said

she never looked at them and did not know what sex they were or if they were moving.

The defendant said she lay on the floor for about an hour and could not move. She

told Detective Malach that her family came to the door two to three times after she had

delivered the babies but she told them she was ill and did not need anything. She

explained that around 3:00 or 4:00 a.m. Tuesday morning, she used a towel to retrieve the

children and put them in the basket. She then cleaned up the bathroom and washed

herself. She moved from the bathroom floor to the bedroom floor and finally got into

bed. At 6:30, she heard her sister getting ready, and her sister asked how she was. The

defendant told Detective Malach that she could not move and stayed in bed until noon, at

which time she moved to the couch. She did not check on the babies, and she put the

clothes she had worn into the closet. She moved to a different couch later in the day, and

then she went to bed. The next day, she went to work. She stated that she had no plan

for what to do with the deceased children. The defendant told Detective Malach that,

although her mother sometimes did laundry for her, she did not think her parents would

find the children.

Detective Malach then told the defendant that during the autopsy, the medical

examiner would be able to tell if the babies were drowned, thrown against a wall, or if

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“someone had their hand over their mouth.” He urged her not to “ruin” the fact that she

had been cooperative and to tell him if there was “more to this story.” At this point, the

defendant said that she did look at the sex of the baby and saw that he had a bowel

movement. Detective Malach then assured her she was a good person who had made

mistakes, told her that the autopsy would reveal what had happened, and told her that he

sensed she felt guilty. The defendant then told Detective Malach:

A. I guess it was more -- the first time was a little

louder, so -- I mean, I don‟t think they‟re definitely not like

drowning but maybe just kind of like -- I don‟t know. I don‟t

want to call it smother. I was just trying to like keep them

quiet.

Q. How were you doing that?

A. Just put my hand down there over the mouth.

Q. Over the baby‟s mouth?

A. (Nods head.)

Q. How long would you say you did that for?

A. Not very long.

Q. Until it stopped crying?

A. I -- I guess. I don‟t know.

Q. I understand. I understand.

A. Oh, my God.

Q. I know. I know. It‟s okay. It‟s okay.

The defendant told Detective Malach that with the second baby “[i]t was just the

same thing,” and “I guess I just put my hand over the mouth.” She stated that there was

not as much crying with the second baby. Detective Malach then summarized the

defendant‟s statement. She agreed that she put her hand over the first baby‟s mouth and

that, when she did so, she knew he could not breathe. She agreed that she killed the baby.

She then agreed that she put her hand over the second baby‟s mouth and that she knew

that she killed him. The defendant agreed that they were “clearly alive” and that she

“clearly killed them.” Detective Malach testified that he attended the autopsy and told

the medical examiner that the defendant had said she smothered her babies.

The defendant‟s version of events was introduced primarily through the testimony

of her psychiatrist, Dr. Kenner. Dr. Kenner, who acted as the defendant‟s treating

psychiatrist, testified that he had interviewed the defendant for over thirteen hours, had

interviewed her parents, and reviewed her statement as well as medical records, text

messages, and psychological reports. His testing revealed that the defendant appeared to

be answering the psychological test questions honestly.

12

He testified that the defendant is a quiet, timid, passive person who froze and

became numb in a challenging situation and who would rather have an interviewer fill in

the blanks than present her own memories. Dr. Kenner testified that from ages three to

thirteen, the defendant suffered from bladder infections, spasms, and incontinence due to

a urinary tract malformation requiring multiple surgeries during her childhood. Dr.

Kenner testified that she used dissociation to cope with the pain and embarrassment of

this prolonged medical treatment. When she was in a dissociative state, the defendant

would feel as though events were happening to someone else. Dr. Kenner testified that,

during high school, the defendant would come out of class and have no memory of

having attended and that this was indicative of dissociation. He testified that, after the

births, she mixed up appointments and arrived at incorrect times to her appointments with

him. He testified that this was also typical for dissociative patients. Due to her medical

history, the defendant would cope with stressful incidents by entering a dissociative state.

Dr. Kenner testified that the defendant‟s description of her two sexual encounters

with Mr. Smith led him to conclude that she had been raped. During the first encounter,

she went to watch a movie at Mr. Smith‟s grandparents‟ home and discovered the

television was in Mr. Smith‟s bedroom. The defendant resisted Mr. Smith and told him

she did not want to have sex with him. Mr. Smith kept putting pressure on her thighs,

causing her pain, and she eventually decided to “just get it over with” and asked him to

wear a condom. Dr. Kenner said that her dissociative disorder kept her from fighting and

caused some amnesia around the event. On cross-examination, he stated that in their

second encounter, the defendant was at a friend‟s house and had been drinking. Mr.

Smith asked her if he could come. Because she knew he did not have a license, she told

him he could come, believing that he would have no way to get there. She did not

remember anything that happened after he arrived.

Dr. Kenner testified that the defendant suffered from pregnancy denial, which is

sometimes associated with trauma such as rape. He stated that pregnancy denial would

have physical effects. For instance, the fetus would be carried vertically so that the

woman would not appear pregnant to others. A woman suffering pregnancy denial might

have lucid moments acknowledging the pregnancy, but would in general not know she

was pregnant. Dr. Kenner stated, “Probably 99.5 percent of the time she considered

herself not pregnant. There were probably these, oh, shoot moments where, you know,

something came through to her like, you know, I am pregnant. That‟s what typically

happens with these women.” He testified it would not be uncommon for the woman,

when she was confronted with the irrefutable evidence that she was pregnant after

delivery, to say that she knew she was pregnant during the pregnancy. At that time, the

denial would be over. The defendant never dreamt of babies or decorating while

pregnant, which was a sign of pregnancy denial. He also explained that she had clear

liquid come from her breast prior to the birth and that she thought she had cancer. Dr.

13

Kenner acknowledged that the defendant had stated that she knew she was pregnant to

Detective Malach and Dr. Auble, but Dr. Kenner stated that this was a realization she had

in retrospect and did not indicate that she did not suffer from pregnancy denial during the

actual pregnancy.

Prior to trial, the defense had moved to exclude certain Google searches retrieved

from the defendant‟s telephone. The prosecution stated that it did not intend to use the

Google searches in its case-in-chief but that it intended to introduce them in rebuttal if the

defendant‟s expert testified that she was not aware of her pregnancy. Accordingly, in

cross-examination, the State attempted to cast doubt on Dr. Kenner‟s diagnosis of

pregnancy denial by cross-examining him on certain Google searches performed on the

defendant‟s cellular phone. The State asked Dr. Kenner if he was aware that the

defendant‟s telephone was used for the following Google searches: “pregnancy

calculator” on September 3, 2011; “pregnant and doctor porn” on September 5, 2011;

“free videos of pregnant sex,” “things to make you go into labor,” and “pregnant women

and doctor porn” on September 6, 2011; and “how to make yourself go into labor” on

September 9, 2011. Dr. Kenner testified that persons suffering from dissociative disorder

can split off segments of behavior and that the defendant might perform these searches

and still generally be unaware of her pregnancy.

Dr. Kenner stated that the defendant believed she was dying at the time of the birth

and did not know she was having a baby until she felt an ear. He also testified that the

defendant did not try to smother the babies but that she told him she “pushed on the

baby.” She had stated that she did not feel the baby‟s mouth or any other body part but

that the place she touched was “just kind of plain,” indicating she was trying to comfort

the baby by patting his back.

Dr. Kenner stated that he had diagnosed the defendant with post-traumatic stress

disorder, chronic; dissociative order not otherwise specified; and major depressive

disorder, chronic and severe. At the time of delivery, the defendant was also suffering

from delirium brought on by hypovolemic shock due to blood loss. Dr. Kenner recounted

the defendant‟s descriptions of feeling dizzy, lying on the floor, and beginning to black

out as soon as she attempted to sit up after delivery. She recalled her head bouncing off

the bathroom floor several times. Dr. Kenner testified that delirium would cause

confusion such as that suffered by dementia patients. He testified that at the time of the

births, the defendant was not able to form the requisite mental intent to commit the

crimes and that she suffered from diminished capacity.

Dr. Kenner also noted that the defendant was still suffering from blood loss a few

days after the birth. The nurse at the jail described her as suffering from pallor,

14

dehydration, and crusty lips. She also described feeling dizzy and coming close to losing

consciousness in her conversations from jail with family members.

The defense sought to have Dr. Kenner testify regarding the reliability of the

defendant‟s statement to police. During an offer of proof, Dr. Kenner testified that he

had professional knowledge of interrogation techniques and false confessions. He

described the defendant as the “low hanging fruit of coercive interrogation.” He noted

that she said “I guess” in front of many of her answers and that her statement was

inaccurate. However, he also testified that he could not say whether her statement was

true but that her statement was “so contaminated by Detective Malach‟s narrative that we

don‟t know if it is true or not.” The trial court decided not to permit testimony on the

reliability of the statement because it found Dr. Kenner‟s testimony was not credible and

would not substantially assist the jury. The trial court also excluded Dr. Kenner‟s report

regarding the voluntariness of the statement.

Dr. Pamela Auble, a forensic psychologist, evaluated the defendant ten days after

the births. Dr. Auble testified that the defendant was passive and introverted and that she

coped with stress by withdrawing. Dr. Auble also concluded that the defendant used

dissociation to distance herself from unpleasant events. The defendant did not think

logically, and she reacted emotionally. The defendant told Dr. Auble that she knew she

was pregnant but dealt with it by forgetting about it or telling herself she was sick. The

defendant said, “[I]t runs through my mind a thousand times a day, why didn‟t you ask

for help, but I just wanted to die.” The defendant told Dr. Auble that, after the first baby

was born, “my mind just shut off all feeling and everything. It all went away. I don‟t

know. I just wanted it over.” She said that she did not look at the baby, but she stopped

the baby from crying by putting her hand on him. She lost consciousness. She pretended

it was not happening, and more than that, that “it wasn‟t happening to … me.” The

defendant remembered very little of the second birth. She thought she was dying because

she was losing blood, shaking, and because whenever she attempted to get up, blood

would gush and she would start to black out. She told Dr. Auble that she also stopped the

second baby from crying. Dr. Auble testified that she relied on Dr. Kenner‟s diagnosis

that the defendant was suffering from delirium. She also diagnosed the defendant with

depressive disorder, chronic; dissociative disorder; and post-traumatic stress disorder.

She stated that the defendant was unable to form the intent for first-degree murder. Dr.

Auble acknowledged that the defendant told her that her biggest mistake had been being

unfaithful to her fiancé. She acknowledged that the defendant was able to clean up

herself and the bathroom, move the babies, and notify her work after the births.

In rebuttal, the State introduced the testimony of Dr. John Hutson, a forensic

psychologist. Dr. Hutson agreed that the defendant suffered from a severe form of major

depression and from post-traumatic stress disorder. He did not find that she suffered

15

from dissociative disorder, but he concluded that the finding would not make much

difference because, even if she had been suffering from dissociative disorder, she would

not have lost her cognitive abilities but would simply have felt that she was not a part of

the events around her. He concluded that she did not suffer from dissociation because

she did not have a history of getting lost driving or an inability to be on time and because

the defendant‟s home was neat in the downstairs and common areas and very messy in

the bedrooms and private areas, indicating that the person taking care of the home was

making rational decisions about where to clean. He also rejected the idea that she was

dissociative based on the fact that she was able to turn her family away when they offered

help and because she was able to thoroughly clean up the evidence of the births. He also

suggested that if she had been in pregnancy denial, she would have sought help when the

birth began because she would have believed it was an illness. Dr. Hutson testified he

felt the defendant had the mental capacity to commit the crimes with which she was

charged. Dr. Hutson testified he was very concerned that the defendant might be suicidal

when he saw her in 2012. He agreed that she might have memory loss from the event

and that dissociation could occur as a defense during trauma. He also agreed that

extreme blood loss could cause loss of consciousness and hallucinations.

During the trial, the record indicates that the defendant became emotional

numerous times. After the testimony of the first witness, Mr. Tope, the trial court had the

jury take a break and asked defense counsel, “Is she okay? And can she do a little bit

better on crying? It‟s a double-edged sword here.” Defense counsel indicated that they

would like a break to allow the defendant to calm down, and the judge responded that

they should let him know whenever they needed a break. During the testimony of Agent

Reeves, the court again took a break to accommodate the defendant‟s emotional response.

Defense counsel noted that the defendant was receiving mental health treatment and had

been avoiding looking at some of the evidence. The trial court noted, “My bottom line

here is I want to be sure that she‟s in a position to assist you.” After the testimony of

Mr. Smith and out of the jury‟s presence, the trial court spoke to defense counsel: “I‟m

concerned about your client. She is acting like a child. She has her head down, her ears

covered, and I‟m not going to tolerate that. Is she on medication? Is she okay?” In

chambers, the trial judge elaborated on the conduct:

Now, I know this is an emotional trial, and we had a

problem yesterday and it was handled. But today, during the

testimony of Jeremy Smith, I looked over at her many times

and she just looked like a child that wasn‟t getting her way.

She had her head down, covered her ears, like she didn‟t want

to listen. I couldn‟t tell if she was awake or asleep.

16

… I can‟t have her emotions being on display in front

of the jury. Their job is difficult enough. And I‟m going to

tell you and I‟m going to tell her that if it happens again she‟s

going out of that courtroom. I‟m going to warn her.

The trial court stated that it did not want the defendant‟s behavior to influence the

jury. Defense counsel noted that the previous day, the defendant had been writing Bible

verses over and over on the advice of a psychologist, and the court stated, “It was

unbelievable what she was doing. She was just over there wham, wham, just not paying

attention to anything, just in her own world.” The trial court stated to counsel that the

defendant would have to “endure the trial and not show any emotions,” noting that the

court could take a recess whenever the defendant needed one. The court concluded that

“I‟ll be sensitive to it. I know it‟s emotional, but I just can‟t have this.” The parties then

returned to the courtroom where the defendant was present, and the trial judge

admonished the defendant:

Now, two times in two days I‟ve had to bring to the

attention of the defense the emotions of the defendant that are

being displayed to this jury. This emotion was displayed

yesterday, and I dealt with the problem yesterday, and it was

handled. But today during the testimony of Jeremy Smith the

defendant looked like a child sitting over there with her head

down, ears covered, like she didn‟t want to listen to the

testimony. And I honestly couldn‟t tell if she was awake or

asleep.

I‟ve told the defense that I will not have her emotions

be on display for this jury. Their job is difficult enough. This

case is extremely emotional, and I know -- I‟m trying to be

sensitive to the emotions of the defendant.

So, Ms. Lowe, this is the way it‟s going to be. It‟s

happened two times that your emotions have been on display

in front of the jury. I have asked the defense to let me know.

If you need a break, we‟ll take a break, but you sit there and

you don‟t show any emotion to this jury. Like I said, their job

is hard enough. We‟re doing the best that we can to keep all

of the emotions out of this case, away from the jury, so that

they can decide this case on the evidence and the law.

17

I will not have you sitting there acting like a child or

displaying emotion uncontrolled. The next time that this

happens, you will be excluded from this courtroom. I have

set up the way that things are going to be handled from this

point on. They will be handled that way. We will watch your

emotions. But I‟m not going to deal with this anymore in the

way that we‟ve had to. Do I make myself clear?

During the in-chambers conference after the testimony of Mr. Smith, defense

counsel also stated to the court:

Judge, you know, we‟re dealing with a young lady

who has some pretty significant mental health issues. She‟s

mentally ill. The problem it poses for us is I have spent a lot

of time going over with her her testimony, and I don‟t think

I‟m going to be able to call her as a witness in her own

defense simply because I don‟t think she can do it. I don‟t

think she can emotionally get through it.

The defendant did not testify at trial. Prior to the defendant making the decision, defense

counsel told the court that the defendant “dreads testifying” and that, although he had

originally anticipated calling her, the defendant had come to the conclusion that she did

not want to testify. During the Momon hearing, the defendant told the court that she had

decided not to testify because “I just don‟t feel like I can emotionally handle it.” She

agreed that she had been crying moments before when they discussed the possibility.

Trial counsel moved for a mistrial on the basis of the trial court‟s comments to the

defendant. The trial court denied the motion, noting that, although it was “sensitive to the

mental health situation” of the defendant, it found that the defendant‟s action of putting

her head down and covering her ears with her hands was “a known, intentional response

and it was childlike.”

The jury convicted the defendant as charged on all counts. The trial court held a

sentencing hearing to determine the length of the sentences for aggravated child abuse.

The defense submitted a scrapbook of the defendant‟s life and eighty-eight letters of

support written by friends and family. The letters spoke of the defendant‟s past

commitment to friends, family, and her church, and they detailed her giving and selfless

nature. Dr. Auble testified that the defendant‟s offense was a “situational crime,” that it

was not part of a larger pattern of criminal activity, that the defendant was not likely to be

repeat offender, was not a risk to the public, and was amenable to rehabilitation. The

defense called eight character witnesses from among the defendant‟s friends and family,

18

who all testified that the defendant was mild-mannered, honest, and non-violent. The

defendant stated that she could not explain why she had put her babies in the laundry

basket or what was going through her mind, and she acknowledged her responsibility and

was sorry. The trial court sentenced the defendant to a life sentence for each murder

conviction and to twenty-five years for each aggravated child abuse conviction and

imposed all of her sentences to run concurrently.

The defendant moved for a new trial on numerous grounds, and the trial court

denied the motion. On appeal, the defendant asserts that: (1) the evidence was

insufficient to uphold the verdict; (2) her statement to police was obtained in violation of

her constitutional rights; (3) the exclusion of Dr. Auble‟s testimony at the hearing on the

motion to suppress was a constitutional violation; (4) she was denied her right to an

impartial judge; (5)the trial court‟s admonitions regarding her show of emotion

effectively denied her the right to testify; (6) allowing the State to present rebuttal

evidence shifted the burden of proof to the defense; (7) that her constitutional rights were

violated by the denial of a change of venue; (8) the physical evidence from the search of

her home should have been suppressed; (9) the exclusion of the testimony of Dr. Kenner

regarding her statement to police was a denial of her right to due process; (10) certain text

messages should not have been admitted because the times reflected on the devices may

not have been accurate; (11) the trial court erred in allowing Dr. Kenner to be cross-

examined regarding the internet searches made on the defendant‟s telephone involving

pregnancy; (12) the jail calls made by the defendant were improperly excluded; (13) the

photograph of the videotapes of “The Vampire Diaries” should have been excluded; and

(14) the defendant is entitled to relief under a theory of cumulative error.

ANALYSIS

I. Sufficiency of the Evidence

The defense challenges the sufficiency of the evidence, asserting that the only

proof of premeditation was the evidence that the defendant continued to plan for her own

future after the deaths of her children. The defendant argues that communicating with

friends regarding a concert, a television show, and a planned trip is insufficient evidence

to establish the element of premeditation.

This court must set aside a finding of guilt if the evidence is insufficient to support

the finding of guilt beyond a reasonable doubt. Tenn. R. App. P. 13(e). The question

before the appellate court is whether, after reviewing the evidence in the light most

favorable to the State, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt. State v. Pope, 427 S.W.3d 363, 368 (Tenn. 2013).

19

This court will not reweigh or reevaluate the evidence, and it may not substitute its

inferences drawn from circumstantial evidence for those drawn by the trier of fact. State

v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004). A jury‟s verdict of guilt, approved by

the trial court, resolves conflicts of evidence in the State‟s favor and accredits the

testimony of the State‟s witnesses. State v. Smith, 436 S.W.3d 751, 764 (Tenn. 2014).

“Questions concerning the credibility of witnesses, the weight and value to be given the

evidence, as well as all factual issues raised by the evidence are resolved by the trier of

fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). “This Court affords the State

the strongest legitimate view of the evidence presented at trial and the reasonable and

legitimate inferences that may be drawn from the evidence.” State v. Wagner, 382

S.W.3d 289, 297 (Tenn. 2012). A guilty verdict replaces the presumption of innocence

with one of guilt, and on appeal, the defendant bears the burden of demonstrating that the

evidence is insufficient to support the conviction. State v. Cole, 155 S.W.3d 885, 897

(Tenn. 2005). “Circumstantial evidence alone is sufficient to support a conviction, and

the circumstantial evidence need not exclude every reasonable hypothesis except that of

guilt.” Wagner, 382 S.W.3d at 297.

The defendant was convicted of two counts of first degree premeditated murder,

two counts of first degree felony murder, and two counts of aggravated child abuse. First

degree premeditated murder is a “premeditated and intentional killing of another.”

T.C.A. § 39-13-202(a)(1) (2010). A premeditated act is one done after the exercise of

reflection and judgment, and the intent to kill must have been formed prior to the act.

T.C.A. § 39-13-202(d). “It is not necessary that the purpose to kill preexist in the mind

of the accused for any definite period of time.” Id. However, it must be determined,

from an examination of the mental state of the accused, that the accused was sufficiently

free from excitement and passion as to be capable of premeditation. Id.

Premeditation is a question of fact for the jury‟s determination. State v. Davidson,

121 S.W.3d 600, 614 (Tenn. 2003). It may be established by any evidence that could

lead a rational trier of fact to infer that the accused committed the killing after the

exercise of reflection and judgment. Id. at 615. Courts frequently look to the

circumstances surrounding a killing to discern the presence of evidence sufficient to

support a finding of premeditation. State v. Larkin, 443 S.W.3d 751, 815 (Tenn. Crim.

App. 2013).

Factors that tend to support the existence of premeditation include: 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. Bland, 958 S.W.2d at 660. The factors listed in Bland are not exhaustive,

however. State v. Adams, 405 S.W.3d 641, 663 (Tenn. 2013). The nature of the killing

20

or evidence establishing a motive for the killing may also support a conclusion that the

crime was premeditated. Id. Lack of provocation by the victim, failure to render aid, and

destruction or secretion of evidence may also support an inference of premeditation.

Larkin, 443 S.W.3d at 815-16 (citing State v. Thacker, 164 S.W.3d 208, 222 (Tenn.

2005); State v. Lewis, 36 S.W.3d 88, 96 (Tenn. Crim. App. 2000)).

A killing of another committed in the perpetration of aggravated child abuse is

also classified as first degree murder. T.C.A. § 39-13-202(a)(2). First degree murder

committed in the perpetration of aggravated child abuse requires no culpable mental state

except the intent to commit the underlying felony. T.C.A. § 39-13-202(b). Aggravated

child abuse is committed when a person knowingly, other than by accidental means,

treats a child in such a manner as to inflict injury, and the treatment results in serious

bodily injury to the child. T.C.A. §§ 39-15-401(a), -402(a)(1).

The defense presented evidence that tended to show that the defendant was not

aware of her pregnancy and was shocked by the births, that she was physically

incapacitated and lost consciousness as a result of blood loss, that she suffered from

diminished mental capacity, and that the physical evidence was consistent with the babies

dying from hypothermia while she was unconscious or with the babies being suffocated

by each other or the placenta while she lay unconscious on the floor. The defendant took

no steps to dispose of the bodies of the babies, despite opportunity to do so.

However, on appeal we must view the evidence in the light most favorable to the

State, and we conclude that a rational trier of fact could have found the elements of the

crimes established beyond a reasonable doubt. The State presented evidence that the

defendant had a close relationship with her religious, conservative family and that she

was engaged to be married. She became pregnant and was afraid to reveal her pregnancy

to her family and to her fiancé, who was not the father of the children. The defendant did

not see a doctor about the pregnancy and made no preparations for the birth or care of a

child. However, several internet searches performed on her telephone in September

related to pregnancy. Furthermore, the packaging of some maternity pads was recovered

from the trash can in her room. On the evening of the birth, the defendant told her family

that she had a stomach virus. Her parents came to the bathroom door to check on her

three times, but she never asked for assistance. She told Detective Malach that she

placed her hand over each baby‟s mouth because she “was just trying to … keep them

quiet.” She stated that she put her hand over the first baby‟s mouth until he stopped

crying. After having held her hand over the first baby‟s mouth, she told Detective

Malach that she gave birth again and that she then did the same to the second baby. She

agreed that she knew that the baby could not breathe with her hand over his mouth, and

she agreed that she knew she had killed the second baby. A rational trier of fact could

have found that the defendant formed the intent to kill prior to the act and after the

21

exercise of reflection and judgment. T.C.A. § 39-13-202(d). The jury could have

inferred that she had a motive to kill the children in order to continue hiding the fact that

she had become pregnant, that she made preparations to hide the births by procuring

maternity pads, that she hid evidence of the crime by cleaning the bathroom and hiding

the laundry basket, and that she demonstrated calmness after the crimes when she was

able to refuse her family‟s offers of help. See Adams, 405 S.W.3d at 663; Bland, 958

S.W.2d at 660; Larkin, 443 S.W.3d at 815-16. A rational trier of fact could also have

found that the defendant knowingly treated the children in such a manner as to inflict

injury by placing her hand over the newborns‟ mouths, that the act resulted in serious

bodily injury to the children, and that the defendant committed two killings in the

perpetration of this aggravated child abuse. T.C.A. §§ 39-15-401(a), -402(a)(1); T.C.A. §

39-13-202(a)(2). The evidence was sufficient to support the jury‟s verdicts.

II. Suppression of Statement

The defendant alleges that her statement was obtained in violation of her rights

because the trial court erred in finding that she was not in custody and because the

Miranda warnings were invalidated by Detective Malach‟s accompanying statements.

She also claims that the waiver was not made voluntarily due to her mental condition.

A trial court‟s factual findings made during a motion to suppress are binding on an

appellate court unless the evidence preponderates against them. State v. Saylor, 117

S.W.3d 239, 244 (Tenn. 2003). Determinations of witness credibility and the resolution

of conflicts in the evidence are left to the trial court. State v. Riels, 216 S.W.3d 737, 753

(Tenn. 2007). An appellate court may consider testimony presented at trial in reviewing

the trial court‟s conclusions in a motion to suppress evidence. Id. The prevailing party

is entitled to the strongest legitimate view of the evidence and to all reasonable inferences

drawn from the evidence. State v. Day, 263 S.W.3d 891, 900 (Tenn. 2008). A trial

court‟s conclusions of law are reviewed de novo. State v. Sawyer, 156 S.W.3d 531, 533

(Tenn. 2005). Likewise, a trial court‟s application of law to the facts is reviewed de

novo. Walton, 41 S.W.3d at 81.

Detective Malach testified at the suppression hearing that he was called to

investigate a death at the home where the defendant lived with her parents. He arrived at

the house around 8:38 a.m. on September 14, 2011, and he observed a deceased newborn

baby lying on his side inside a laundry basket in the defendant‟s room. The defendant‟s

father informed police that he believed the defendant was at work based on a text

message he had received from her. Detective Malach was assigned to go to the

defendant‟s workplace and interview her. At around 9:00 a.m., Detective Malach arrived

at the dental clinic where the defendant handled insurance and billing claims, and he

22

asked the manager if he could speak with the defendant privately. The defendant

appeared to be in a good mood and was smiling and wearing headphones when he saw

her. Detective Malach asked her if she knew why he was there, and she said she did not.

When he informed her that police had discovered the laundry basket, the defendant‟s

mood changed. He explained to her that he wanted her cooperation and would like her to

go to the police department, where he would administer Miranda warnings. Detective

Malach testified that he told the defendant what the Miranda warnings would entail, but

he did not consider this a formal Miranda warning. Detective Malach testified he told the

defendant she did not have to come or to talk to him if she did not want to, but she agreed

to come to the station.

Detective Malach was aware that the birth had been recent, and although the

defendant told Detective Malach that she was able to drive, Detective Malach “asked if

she would mind” if he drove, offering to return her to her car later. He testified that she

had driven herself to work and appeared healthy, but he wanted her to ride with him for

her safety. The defendant agreed. The defendant rode in the front seat and was not

handcuffed. The conversation during the approximately thirty-minute drive to

Hendersonville did not touch on the deaths but was casual conversation related to the

defendant‟s career.

At the station, Detective Malach took the defendant into an interview room.

Detective Malach testified that the interview room had no windows, was in the interior of

the building, was past several doors, and was not open to the public. Only law

enforcement and civilian police staff were in the area. Detective Malach testified at the

hearing that a locking door to the area had recently been installed, but he could not recall

if there was a locked door to get to the area at the time he interviewed the defendant.

He explained to the defendant that if she needed a break, he would give her one,

and he got her water to drink. He acknowledged that he did not have her sign the waiver

of her rights, which he read to her. He also did not read the portion of the form that

recited that the defendant‟s waiver was not the result of promises or threats and that the

defendant chose not to have a lawyer. He acknowledged that he referred to the defendant

losing a lot of blood toward the end of the interview and that he did not know if she had

received any medical attention since giving birth.

The defense offered the testimony of Dr. Auble, which the trial court excluded

because she had not reviewed the interview with police. After the exclusion of Dr.

Auble‟s testimony, the defense offered the testimony of Dr. Kenner, who had reviewed

the police interview. Dr. Kenner testified that he first saw the defendant on October 21,

2011, and that he had seen the defendant between eight and ten times. He diagnosed her

with post-traumatic stress disorder, dissociative disorder, and adjustment disorder with

23

anxiety and depression. He testified that the defendant had suffered from repeated

urinary tract infections, bladder spasms, and incontinence from the ages of three to

thirteen and that she underwent multiple surgeries. Her medical history made her likely

to retreat if confronted with powerful people. He stated that while she was capable of

hearing and understanding rights cognitively, she was not capable from an emotional

standpoint of maintaining her will in the face of a powerful male interrogator. He

testified that she was passive and vulnerable to complying with the interrogator‟s version

of reality. She was also suffering from postpartum physical symptoms, including

hormonal swings, dehydration, insomnia, and pallor. He testified that, in the interview,

Detective Malach created a narrative with which he asked her to agree. He noted that the

detective‟s demeanor was friendly but that he suggested eleven times that she smashed,

drowned, or suffocated her babies. Dr. Kenner also testified that the defendant was

delirious at the time of the births and was not capable of knowing that her hand would

suffocate a baby.

The trial court denied the motion to suppress, finding that the defendant was not in

custody, that she was alerted to her rights, and that her statements were knowing and

voluntary. The trial court found that the interrogation took place in the morning for about

one and a half hours, after the defendant had driven herself to work. The defendant

agreed to ride in the passenger‟s seat next to Detective Malach, who did not handcuff her.

Only one officer, who was pleasant and polite, was present. The trial court found that, in

the interview room, the defendant was seated between the detective and the closed door

and that the two were about five feet apart. The defendant appeared to be deliberative

and able to engage in a conversation, even about sensitive, private issues. She was given

water, a tissue, and a break. The trial court also found that Detective Malach sufficiently

clarified the defendant‟s reference to having an attorney, and it ruled that the statement

would be admissible at trial.

The defense was permitted to revisit the suppression issue at a hearing on

February 21, 2013. In particular, the defense was permitted to adduce proof on the issue

of custody, which the defense claimed had not been contested by the State at the prior

hearing and unexpectedly formed the basis of the trial court‟s decision to deny the motion

to suppress.1 At the second hearing on the motion to suppress, the defendant testified that

on September 14, 2011, she arrived at work between 7:30 and 8:00 a.m., and that

Detective Malach arrived at around 10:00 a.m. He was wearing a suit. She spoke with

him for about ten minutes in a private room at her workplace. He asked her to go to the

police station, and she asked if she could get her purse and then went with him. The

1

We note that in defense counsel‟s argument at the hearing, counsel stated that the

custody issue “did come up. We were not surprised.” Counsel noted that the defense had

prepared, but not filed, a supplemental brief on the issue.

24

defendant asked the detective if she could drive and he said, “I would rather you come

with me.” He did not, however, order her to get in the car. When she asked the detective

what to do with her car, he told her to leave it and that they would be back shortly to get

it. She confirmed that she sat in the front seat and was not handcuffed. She testified that

the detective locked the doors when he got in the car. At that point, she felt she was not

free to leave. She acknowledged, however, that she could have opened the car door from

the inside. She was driven to a side building of the police station and went in a side door.

She did not recall going through any doors other than the main entrance. The defendant

sat on a bench in the hallway for about thirty minutes. She had her purse and cell phone

with her. The defendant testified that no one was watching her and she could have

walked out of the station, although it never crossed her mind to do so. She observed

armed officers in the hallway. Because she was not sure if she could use her phone, she

did not answer it when her grandmother called her while she was seated in the hallway.

She then accompanied Detective Malach into an interview room immediately beside the

bench where she had been seated. The defendant did not answer a text message in the

interrogation room. She acknowledged that she was a twenty-five-year-old college

graduate at the time. Detective Malach was not rude or overbearing. The trial court

again denied the motion to suppress. The defendant asserts error, arguing that she was in

custody, that the Miranda warnings were inadequate because they were accompanied by

deceptive statements, and that her waiver was not voluntary.

A. Custody

Both the United States Constitution and the Tennessee Constitution protect against

compelled self-incrimination. U.S. Const. Amend. V (“No person … shall be compelled

in any criminal case to be a witness against himself….”); Tenn. Const. art I, § 9 (“[I]n all

criminal prosecutions, the accused … shall not be compelled to give evidence against

himself.”). Exculpatory or inculpatory statements made during custodial interrogation

may not be admitted unless the prosecution demonstrates that police employed

procedural safeguards by advising the defendant:

that he has the right to remain silent, that anything he says

can be used against him in a court of law, that he has the right

to the presence of an attorney, and that if he cannot afford an

attorney one will be appointed for him prior to any

questioning if he so desires.

Sawyer, 156 S.W.3d at 534 (quoting Miranda v. Arizona, 384 U.S. 436, 444, 479 (1966)).

These warnings are necessary when the accused is in custody and subject to interrogation

or its functional equivalent. R.D.S. v. State, 245 S.W.3d 356, 363 (Tenn. 2008).

25

A person is in custody within the meaning of Miranda when there has been “a

formal arrest or restraint on freedom of movement of the degree associated with a formal

arrest.” State v. Anderson, 937 S.W.2d 851, 854 (Tenn. 1996) (quoting California v.

Beheler, 463 U.S. 1121, 1125 (1983)). The inquiry is ultimately “whether, under the

totality of the circumstances, a reasonable person in the suspect‟s position would consider

himself or herself deprived of freedom of movement to a degree associated with a formal

arrest.” State v. Dailey, 273 S.W.3d 94, 102 (Tenn. 2009) (quoting State v. Anderson,

937 S.W.2d at 855). This determination is made considering the totality of the

circumstances and is not based on the subjective beliefs of the defendant or of law

enforcement. Anderson, 937 S.W.2d at 854. Accordingly, the officer‟s suspicions

regarding the accused are only relevant insofar as they were apparent to the accused and

would have affected a reasonable person‟s evaluation of whether or not he or she was

deprived of freedom of movement. Id. Other factors that bear on the analysis are:

the time and location of the interrogation; the duration and

character of the questioning; the officer‟s tone of voice and

general demeanor; the suspect‟s method of transportation to

the place of questioning; the number of police officers

present; any limitation on movement or other form of restraint

imposed on the suspect during the interrogation; any

interactions between the officer and the suspect, including the

words spoken by the officer to the suspect, and the suspect‟s

verbal or nonverbal responses; the extent to which the suspect

is confronted with the law enforcement officer‟s suspicions of

guilt or evidence of guilt; and finally, the extent to which the

suspect is made aware that he or she is free to refrain from

answering questions or to end the interview at will.

Id. at 855.

Although the defendant arrived to the station in Detective Malach‟s car, her mode

of transportation and the place of the interview are not, alone, determinative of the

custody issue. California v. Beheler, 463 U.S. 1121, 1125 (1983) (noting that the fact

that questioning occurs at the police station does not, in itself, mandate Miranda

warnings); David Louis Raybin, 10 Tenn. Prac. Crim. Prac. & Procedure § 19:19 (“Not

all interrogation in a police vehicle or at a police station is „custodial‟ within the meaning

of Miranda.”). In State v. Bush, the defendant initiated contact with the police, and he

and his father were taken to the station in a patrol car. State v. Bush, 942 S.W.2d 489,

500 (Tenn. 1997). The defendant was not told that he could leave; however, neither was

he restrained or treated in an accusatory manner. Id. The Tennessee Supreme Court

26

concluded that the defendant was not in custody. Id.; see also State v. Darnell, 905

S.W.2d 953, 959 (Tenn. Crim. App. 1995) (defendant was not in custody when he

voluntarily rode with detective to the police station in the front seat of an unmarked car

and was never handcuffed); State v. Gosnell, 62 S.W.3d 740, 745-46 (Tenn. Crim. App.

2001) (no custody where the defendant was taken to the station in an unmarked vehicle

by plain clothes officers, was treated courteously, allowed to visit with relatives in a

hallway, told she would be taken home, and not confronted with guilt).

An interview at the police station that is not confrontational and imposes little

restraint on the movements of the accused may not be custodial given the totality of the

circumstances. Riels, 216 S.W.3d at 754 (concluding the defendant was not in custody

when he arrived with his mother, was not prevented from leaving the interview room,

was left unattended for large amounts of time, and was treated cordially); State v. Munn,

56 S.W.3d 486, 499 (Tenn. 2001) (defendant was not in custody when he arrived to the

police station with his parents, spoke with officers, sometimes with his parents present,

for three and a half to four hours, was treated politely but accused of committing the

crime, and was reminded that he was not under arrest and free to leave).

On the other hand, if the defendant is told that he or she will be charged with a

crime or is prevented from leaving the station, the totality of the circumstances weigh in

favor of finding custody. In State v. Dailey, the defendant was asked to come to the

station under false pretenses and interviewed in a secured portion of the building by two

officers, one of whom was armed; however, he was briefly left alone in the room and not

restrained. Dailey, 273 S.W.3d at 102. Officers were seated between the defendant and

the closed door, and a few minutes into the interview, one officer informed him that,

based on already available evidence, he would have to charge the defendant with first

degree murder. Id. at 103. The Tennessee Supreme Court concluded that the defendant

was in custody “at least by the point at which” the detective informed him that police had

evidence sufficient to charge him. Id. at 104; see also State v. Payne, 149 S.W.3d 20, 33-

34 (Tenn. 2004) (concluding that the defendant, who drove himself to the station, was not

restrained or patted down, was positioned so that his egress was not blocked, and was

initially treated courteously, was nevertheless in custody “at the latest” when officers

stood blocking the defendant‟s egress after a break, were demanding and accusatory, did

not advise him he was free to leave, and insisted that the defendant talk).

Detective Malach testified that he told the defendant she did not have to come with

him, but he asked for her cooperation. He testified that he wanted to drive her due to

potential health concerns, although the defendant had told him she was capable of

driving. According to the defendant, Detective Malach asked her to ride with him and

told her they would return for her car. The defendant was not handcuffed or frisked, and

she rode in the front seat, engaging in casual conversation on the way to the station.

27

Detective Malach locked the vehicle doors during the ride, but the defendant testified that

the door could be opened from the inside by the passenger. The defendant testified that

she asked to retrieve her purse prior to leaving and that she had her purse and telephone

with her throughout the interview. The defendant was left alone on a bench in the

hallway for approximately thirty minutes. She was also left alone in the interview room

for approximately thirty minutes at one point. According to the defendant, while she was

seated in the hallway immediately outside the interview room, she could have gotten up

and left the station, but it did not occur to her to do so.

The trial court found that the defendant was not in custody. We agree with the

trial court. The defendant accompanied Detective Malach to the police station

voluntarily. The interview was during regular working hours, was not lengthy, and the

detective‟s demeanor was courteous. Although Detective Malach asked about the

possibility that the defendant harmed the babies and although he indicated that trauma

would be discovered in the autopsy, he did not question the defendant in an overly

accusatory way. While she did not have her own transportation, she retained possession

of her bag and telephone, and she was told she would be returned to her vehicle. She was

left unattended on more than one occasion, and there was no physical obstacle to the

defendant leaving. There were also no obstacles to her using her telephone. The

defendant never indicated she wished to end the interview or that she wished to leave,

and she was made aware of her right to remain silent and not speak to police both at the

dental office and at the police station. We conclude the defendant was not in custody.

B. Miranda Warnings

“There is a „hairline of distinction‟ between the investigatory stage and the

accusatory or custodial stage” in an investigation. Darnell, 905 S.W.2d at 958. An

encounter which does not meet the definition of custodial interrogation may turn into a

custodial interrogation based on the totality of the circumstances. Dailey, 273 S.W.3d at

104; Payne, 149 S.W.3d at 33-34. While the defendant was never informed that she was

under arrest, was told that “[a]ll this is voluntary” when being asked permission to search

her vehicle after her confession, and was taken to the hospital rather than jail after

acknowledging her role in the children‟s deaths, we nevertheless note that, even if the

interrogation became custodial after her initial statement that she caused the deaths, the

defendant was adequately apprised of her rights at the beginning of the interview.

The accused may knowingly and intelligently waive his or her Miranda rights.

State v. Climer, 400 S.W.3d 537, 557 (Tenn. 2013) see also Miranda, 383 U. S. at 479.

The State is required to prove waiver by a preponderance of the evidence. State v.

Freeland, 451 S.W.3d 791, 814 (Tenn. 2014). If the accused invokes the right to counsel

28

prior to or during the interrogation, law enforcement must cease further questioning. Id.

The invocation of the right to counsel is analyzed under an objective standard to

determine whether the invocation was clear and unequivocal. State v. Turner, 305

S.W.3d 508, 517 (Tenn. 2010) abrogated on other grounds as recognized by Climer, 400

S.W.3d at 562. Although the Tennessee Supreme Court has noted that clarifying an

ambiguous request for counsel is good practice, “police need not cease questioning until

and unless a suspect unequivocally invokes the right to counsel.” Climer, 400 S.W.3d at

562 n.14. “The accused „must articulate his desire to have counsel present sufficiently

clearly that a reasonable [police] officer … would understand the statement to be a

request for an attorney.‟” State v. Saylor, 117 S.W.3d 239, 246 (Tenn. 2003) (quoting

State v. Huddleston, 924 S.W.2d 666, 670 (Tenn.1996)).

Even if the suspect does not invoke his or her right to counsel or right to remain

silent, the State must establish by a preponderance of the evidence that any waiver of the

rights was made knowingly, voluntarily, and intelligently. State v. Blackstock, 19 S.W.3d

200, 207 (Tenn. 2000). To show that the wavier was knowingly and voluntarily made,

the State must show that it was the product of free and deliberate choice and not

intimidation, coercion, or deception and that it was made with a full awareness of the

nature of the rights being waived and the consequences of the decision to waive them.

Freeland, 451 S.W.3d at 814. The accused may not be “coerced, threatened, or tricked”

into waiving his or her rights. Id.

An explicit waiver may be written or oral. State v. Steven James McCain, No.

M2000-02989-CCA-R3CD, 2002 WL 1033249, at *6 (Tenn. Crim. App. May 22, 2002).

In addition, “the State may establish an implicit waiver of Miranda rights by showing

that the suspect received and understood Miranda warnings, did not invoke Miranda

rights, and gave an uncoerced statement to the police.” Climer, 400 S.W.3d at 565.

Here, Detective Malach read the defendant her rights as required by Miranda.

The discussion included the following exchange:

Q. …. You have the right to remain silent. Anything

you say can be used against you in a court of law. You have

the right to talk to an attorney and have him here before being

questioned. If you cannot afford one, one will be appointed to

you. And you have the right to stop talking at any time. So if

we‟re talking and you don‟t want to answer that question,

that‟s fine. We‟ll just move on. All right? You understand all

that. Right?

A. Uh-huh.

Q. Okay. You don‟t mind if I talk to you then?

29

A. No. Are you -- should I have an attorney?

Q. You don‟t have to have an attorney. That -- that‟s

why I‟m talking to you now and that‟s why we‟re discussing

you have the right to one. If you want to talk a little bit and --

and see what‟s going on and -- my thing is, I want to get to

the bottom of what‟s going on and I‟d love to have your

cooperation so we can work together to do that. Okay?

A. Okay.

Q. So do you have any problem with me talking to

you?

A. Huh-uh,

Q. Okay. And let me say, at any point in time you

don‟t want to answer something, say, Steve, I‟d rather not

answer that question. And we‟re just talking – and then I‟ll

rephrase the question and we‟ll move on. Okay? It‟s going to

be -- we‟re going to talk freely. All right? And we‟re going to

try to make heads or tails of what‟s going on in a bad

situation. Okay? So that‟s pretty much all we want to do.

The defendant was informed of her rights and waived them orally. In her brief,

the defendant falls just shy of conceding that the statement “should I have an attorney”

was equivocal. We conclude that her question is indistinguishable from similar

statements which appellate courts have concluded were equivocal. See, e.g., Climer, 400

S.W.3d at 563 (Tenn. 2013) (among other references to an attorney, defendant asked,

“You mean I can have an uh an appointed lawyer right now?”); Saylor, 117 S.W.3d at

243, 246 (defendant‟s several references to a lawyer included, “I‟m supposed to have a

lawyer though, don‟t I?”). The defendant argues that her waiver was the result of

deception because Detective Malach‟s answer could be interpreted as a statement that she

did not need an attorney and because he told her that if she did not want to answer a

question, he would “rephrase the question.” The trial court found that Detective Malach

gave adequate Miranda warnings and the warnings were not invalidated by trickery. We

conclude that the record supports this finding.

The defendant argues that Detective Malach‟s statement, “You don‟t have to have

an attorney,” misled her regarding the nature of her right to counsel. However, the more

literal reading is that Detective Malach was informing the defendant that an attorney was

not compulsory during the interview and that they could proceed with the interview

without counsel. Detective Malach had just told the defendant that she had a right to an

attorney, told her she had the right to an attorney at the dental office, and followed the

statement to which the defendant objects by informing her, “[Y]ou have the right to one.”

30

We do not think that Detective Malach‟s statement invalidated the warnings he had just

given.

In attempting to clarify the defendant‟s right to stop questioning, Detective Malach

also told her that if she did not wish to respond to a question “then I‟ll rephrase the

question and we‟ll move on.” The defendant argues that this description implied that the

defendant would have to answer the same question after it had been rephrased. However,

Detective Malach had earlier explained her right to refuse to answer a particular question

by stating, “So if we‟re talking and you don‟t want to answer that question, that‟s fine.

We‟ll just move on.” He had also told her, “[Y]ou have the right to stop talking at any

time.” The defendant was college-educated. She was informed of her rights informally

at the dental office and again formally at the police station. She indicated that she

understood her rights, and she orally indicated that she wished to waive them. She never

indicated a desire to assert her right to remain silent. We conclude that there was no

violation of Miranda.

C. Voluntariness of Waiver

The defendant‟s argument also asserts that her waiver was not voluntary because

of the state of her mental and physical health.2 “Although there is likely to be a level of

deficiency so great that it renders a defendant unable to make a knowing and intelligent

waiver, nearly every court to consider the issue has held that mental impairments or

mental retardation are factors that must be considered along with the totality of the

circumstances” in evaluating the voluntariness of a waiver. State v. Blackstock, 19

S.W.3d 200, 208 (Tenn. 2000). Courts consider the defendant‟s age, background,

education, intelligence, reading and writing skills, demeanor and responsiveness to

questioning, prior experience with the criminal justice system, mental disease or disorder

or intoxication, and the manner, detail, and language in which the Miranda rights are

explained. State v. Echols, 382 S.W.3d 266, 280-81 (Tenn. 2012). The totality of

circumstances must show “„an uncoerced choice and the required level of comprehension

before a court can properly conclude that Miranda rights have been waived.‟”

2

The defense asserts that the trial court confused the issue of the voluntariness of the

statement with the issue of whether the waiver was voluntary. See Freeland, 451 S.W.3d at 815

(noting that the test to determine voluntariness of a statement is separate from the determination

that a waiver is valid). While the defendant‟s brief contains one sentence asserting the statement

was not voluntary, there is no legal argument accompanying the assertion, and we agree with the

State that her statement was not the product of coercive State action. State v. Downey, 259

S.W.3d 723, 733 (Tenn. 2008) (“The United States Supreme Court has held that in order for a

confession to be involuntary, it must be the product of coercive state action.”).

31

Blackstock, 19 S.W.3d at 208 (quoting State v. Stephenson, 878 S.W.2d 530, 545 (Tenn.

1994)).

In State v. Bush, the defendant, who suffered from paranoid schizophrenia,

introduced evidence that he had executed the waiver of his rights due to mental illness,

and his psychiatrist offered the opinion that the waiver was not a product of rational

reasoning. State v. Bush, 942 S.W.2d 489, 498 (Tenn. 1997). The Tennessee Supreme

Court noted that Miranda protects against the coercive conduct of the government but not

against compulsions originating within the psyche of the accused. Id. at 501. The Court

noted that the defendant “appeared normal, was coherent and responsive to questioning,

and did not discuss … delusions,” and concluded that, “in the absence of police

overreaching, the waiver was valid.” Id.; see State v. Clayton Eugene Turner, II, No.

03C01-9805-CR-00176, 1999 WL 817690, at *8 (Tenn. Crim. App. Oct. 6, 1999)

(concluding there was no overreaching when the defendant referenced past delusions but

appeared competent); State v. James Christopher Tatrow, No. 03C01-9707-CR-00299,

1998 WL 761829, at *13 (Tenn. Crim. App. Nov. 2, 1998) (concluding that waiver was

valid when there was no overreaching by law enforcement, even though the defendant

was experiencing cocaine and methamphetamine withdrawal); see also State v. James C.

Osborne, No. M2005-00893-CCA-R3CD, 2006 WL 2682773, at *9 (Tenn. Crim. App.

Sept. 7, 2006) (concluding that waiver was knowingly, intelligently, and voluntarily

made despite defendant‟s intoxication when defendant was able to give a detailed account

of his actions).

In State v. Blackstock, the Tennessee Supreme Court concluded that the trial court

erred in finding that the mentally retarded defendant‟s waiver was valid, because the

State had not shown that the defendant “had a meaningful awareness of his Miranda

rights, as well as the consequences of waiving his rights.” Blackstock, 19 S.W.3d at 209.

On the other hand, when a defendant demonstrates a capability of understanding his or

her rights and the consequences of giving them up, waivers have been upheld. See, e.g.,

State v. Brandon Johnson, No. W2007-01655-CCA-R3-CD, 2009 WL 2151814, at *7

(Tenn. Crim. App. July 17, 2009) (concluding that the waiver was valid when the

defendant had extensive experience with the criminal justice system, responded

coherently, indicated he understood his rights, and showed no confusion in detailed

narrative despite mild retardation); State v. Steven Murphy, No. W2004-02899-CCA-R3-

CD, 2006 WL 432388, at *11 (Tenn. Crim. App. Feb. 22, 2006) (concluding that the

defendant, who had relatively high IQ, prior experience with the criminal justice system,

and indications of malingering, had validly waived his rights).

The defendant‟s expert witness testified that her thinking at the time of the police

interrogation was affected by physical impairments such as blood loss and postpartum

hormonal shifts. He also testified that she was cognitively capable of understanding her

32

rights but would not be emotionally capable of asserting her rights due to her passive

personality and mental defects such as depression, anxiety, and dissociative disorder

associated with her childhood medical problems. However, the defendant appeared

normal, coherent, and responsive. She came to the interview from her work, where she

had been performing her duties apparently without difficulty that morning. She was

twenty-five years old, college-educated, responsive to questioning, and although she had

no prior experience with the criminal justice system, her rights were explained to her.

She indicated that she understood and wished to waive her rights. Any mental or

physical defects from which she suffered were not apparent, and her psychiatrist testified

that she was capable of cognitively understanding her rights. Unlike the defendant in

Blackstock, she had a meaningful awareness of her rights and the consequences of

waiving them. We conclude that any mental defects did not render her waiver

involuntary or unknowing.

III. Exclusion of Dr. Auble’s Testimony at the Hearing on the Motion to Suppress

The defendant alleges error in the exclusion from the hearing on the motion to

suppress of Dr. Auble‟s testimony regarding the defendant‟s statement to police. She

also asserts error in the trial court‟s refusal to allow the defendant to question Dr. Auble

in an offer of proof. The defense cites Tennessee Rule of Evidence 103(b) for the

proposition that the trial court must allow an offer of proof in question and answer form.

She asserts that the exclusion of the testimony and denial of the right to make an offer of

proof according to Rule 103 was tantamount to a denial of her right to a fair trial and due

process.

At the hearing on the motion to suppress the defendant‟s statement, the defense

attempted to call Dr. Auble to testify, and the State objected. The State argued that it had

not been aware that Dr. Auble would testify at the hearing and that her testimony

regarding diminished capacity did not affect the voluntariness of the statement. The trial

court attempted to discern whether Dr. Auble would testify that the defendant was not

capable of waiving her rights. Defense counsel stated that Dr. Auble would testify

regarding how the defendant‟s mental diseases and defects would affect her ability to

assert her right to remain silent. The trial court decided to call Dr. Auble to the stand sua

sponte to determine whether it would admit her testimony. After Dr. Auble testified that

she saw the defendant on September 23, 2011, and that she did not review the

defendant‟s statement, the trial court excluded the testimony. The trial court ruled that

Dr. Auble could not testify, in part because she had not reviewed the statement and in

part because “significant intervening events” may have affected the defendant‟s mental

state.

33

Trial counsel then asked to make an offer of proof. The trial court ruled that

counsel‟s statements, along with Dr. Auble‟s report, constituted a sufficient offer of

proof, and it refused to permit counsel to question Dr. Auble regarding the defendant‟s

statement. The trial court did, however, permit the testimony of Dr. Kenner. Dr. Kenner

testified about the various mental diseases that the defendant suffered from and about her

history of childhood medical trauma. Dr. Kenner testified that, while the defendant was

capable of understanding her rights cognitively, she would emotionally be incapable of

asserting her rights in the face of a powerful male interrogator. He further testified that

Detective Malach‟s interrogation was coercive and bullying and that “elements of the

statement” were “clearly against her will or what she … knew happened.”

After the denial of the motion, the defense made the affidavit of Dr. Auble part of

the record. Dr. Auble‟s affidavit stated that she had evaluated the defendant and that the

defendant‟s thinking and reasoning were impaired at the time of the evaluation and

“[m]ore likely than not” also at the time of the crime and interrogation. She stated that

the defendant would be compliant and susceptible to manipulation by people in authority

and that these traits would have affected her responses during the interview. Dr. Auble

reaffirmed that she would have testified that the defendant was more likely than not

impaired at the time of the interview.

A. Offer of Proof

Tennessee Rule of Evidence 103(b) provides that the trial court may establish a

record including “any other or further statement which shows the character of the

evidence, the form in which it was offered, the objection made, and the ruling.” Tenn. R.

Evid. 103(b). The trial court “shall permit the making of an offer in question and answer

form.” Id.

An offer of proof serves to inform the trial court of the exact nature of the

evidence so that it can make an informed decision regarding admissibility, and it serves

to create a record for the appellate court to determine if there was reversible error. Taylor

v. State, 443 S.W.3d 80, 84 (Tenn. 2014). Generally, “„it is error for the trial court to

refuse to permit counsel to state what evidence he is offering.‟” Alley v. State, 882

S.W.2d 810, 815 (Tenn. Crim. App. 1994) (quoting 89 A.L.R. “Offer of Proof – Ruling –

Error” § 2 at 283 (1963)). This is true unless it is obvious from the record that the

evidence could not, under any circumstances, be relevant to the contested issues. Taylor,

443 S.W.3d at 84. Likewise, “it is apparent that courts are required, in appropriate

circumstances, to allow offers of proof when evidence is excluded so as to enable

consideration of the issue on appeal.” Alley, 882 S.W.2d at 815-16. The court in Alley

concluded that “if the obvious incompetence or irrelevance is not readily apparent from

34

the record, it is error to exclude any reasonable offer which demonstrates the relevance

and general import of the excluded evidence.” Id. at 816.

An erroneous refusal to allow an offer of proof, however, does not necessarily

require reversal. Id. Failure to permit an offer may be harmless error. See State v.

Martin, 642 S.W.2d 720, 724 (Tenn. 1982) (holding that the trial court erred in not

permitting an offer of proof regarding the defendant‟s proposed testimony but that the

error was harmless because the defendant was convicted of five crimes that were clearly

admissible, in addition to the two crimes that the defendant claimed were not admissible,

and these five were the basis of the choice not to testify). Instead, whether the error is

reversible depends on the facts and circumstances of the case, including “„the apparent

nature and admissibility of the evidence and its relation to determinative issues.‟” Alley,

882 S.W.2d at 816 (citation omitted); see Bray v. State, 450 S.W.2d 786, 787 (Tenn.

Crim. App. 1969) (concluding that trial judge‟s exclusion of testimony and denial of an

offer of proof required reversal because the appellate court could not determine that the

error was harmless in the absence of the offer of proof).

The court in Alley v. State examined the method of the offer and held that “not

only are question and answer offers such as were attempted in this case appropriate, they

are preferred, and the trial court must allow them when appropriately offered.” Alley, 882

S.W.2d at 817. However, limiting the method of the offer of proof is also subject to

harmless error analysis. State v. William Phillip Graham, No. W2006-00173-CCA-R3-

CD, 2007 WL 2404303, at *11 (Tenn. Crim. App. Aug. 22, 2007) (concluding that the

trial court did not err in refusing a proffer for irrelevant evidence and that error in

refusing the question-and-answer proffer for other proof required a demonstration of

prejudice).

In State v. Torres, the defense attempted to introduce a videotape of an interview

with police that had been conducted prior to the defendant‟s confession, and the trial

court refused to review the tape or allow the defendant to make a full offer of proof.

State v. Torres, 82 S.W.3d 236, 250 (Tenn. 2002). The Tennessee Supreme Court noted

that, while refusal to allow an offer of proof is generally error, the inclusion of the

excluded videotapes in the appellate record served to provide an adequate basis for

appellate review and the parties verbally summarized the nature of the evidence so that

the trial court could make a ruling. Id. at 251. The Court concluded that this satisfied the

two primary purposes of an offer of proof. Id. Accordingly, the Court held that any

failures in the offer of proof did not, independently, entitle the defendant to relief. Id. at

251, 252-53 (holding that the video was excluded in error but that the error was

harmless).

35

We conclude that in this case, the defendant is not entitled to relief based on the

refusal to permit an offer of proof at the suppression hearing in the form of questions and

answers. Although the trial court did not abide by the language of Tennessee Rule of

Evidence 103(b), the evidence in the record, consisting of Dr. Auble‟s report and the

statements of defense counsel, was adequate to give the trial court a basis for ruling on

admissibility, and this evidence, together with Dr. Auble‟s affidavit, is also sufficient to

allow appellate review. As in Torres, the two primary purposes of an offer of proof were

met in this case, and the trial court‟s error does not entitled the defendant to relief.

B. Admissibility

The trial court refused to allow Dr. Auble‟s testimony because it concluded that

her examination of the defendant was too remote from the time of her statement and

because Dr. Auble had not reviewed the statement to police. The trial court repeatedly

asked trial counsel if Dr. Auble would testify that the defendant was incapable of

knowing that she was giving up her rights, and defense counsel‟s responses centered

around Dr. Auble‟s diagnoses regarding the defendant‟s mental defect or disease. Dr.

Kenner was then permitted to testify that the defendant would be able to understand her

rights cognitively but would not be able to assert them.

A trial court has broad discretion regarding the admissibility of expert testimony.

State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993). A trial court abuses its discretion

when it applies an incorrect legal standard or reaches a conclusion which is against logic

or reasoning and causes an injustice to the complaining party. State v. Ayers, 200 S.W.3d

618, 620 (Tenn. Crim. App. 2005). Under Tennessee Rule of Evidence 702, “[i]f

scientific, technical, or other specialized knowledge will substantially assist the trier of

fact to understand the evidence or to determine a fact in issue,” an expert witness may

“testify in the form of opinion.” Tenn. R. Evid. 702. The trial court, however, is required

to exclude the testimony “if the underlying facts or data indicate a lack of

trustworthiness.” Tenn. R. Evid. 703. Accordingly, testimony is only admissible if it is

based on reliable facts and data. Ayers, 200 S.W.3d at 621. The trial court‟s gatekeeping

function is meant “to ensure that „an expert, whether basing testimony upon professional

studies or personal experience, employs in the courtroom the same level of intellectual

rigor that characterizes the practice of an expert in the relevant field.‟” Brown v. Crown

Equip. Corp., 181 S.W.3d 268, 275 (Tenn. 2005) (quoting Kumho Tire Co. v.

Carmichael, 526 U.S. 137, 152 (1999)). The trial court must make sure that the basis of

the opinion supports the expert‟s conclusions and that there is no “analytical gap”

between the data and the opinion. State v. Stevens, 78 S.W.3d 817, 834 (Tenn. 2002).

36

In State v. Brimmer, the defendant‟s expert wished to testify that the defendant

was an individual who could plausibly have been coerced into a false confession. State v.

Brimmer, 876 S.W.2d 75, 79 (Tenn. 1994). The trial court, however, excluded the

testimony because the doctor had only listened to a small portion of the taped confession.

Id. The court premised its exclusion on the conclusion that the basis of the expert‟s

opinion was not sufficiently trustworthy, and the Tennessee Supreme Court upheld the

decision. Id. We conclude that the trial court did not abuse its discretion in excluding the

testimony based on the fact that Dr. Auble‟s testimony centered on the reliability of a

statement she had not reviewed.

Even if we were to conclude that the trial court erred in refusing to admit Dr.

Auble‟s testimony, any such error would be harmless. Dr. Auble‟s affidavit stated that

she would have testified that the defendant‟s thinking and reasoning were more likely

than not impaired at the time of the interrogation and that the defendant would be

susceptible to manipulation by people in positions of authority. Dr. Kenner‟s testimony

also stated that the defendant was susceptible to manipulation and that she was suffering

from blood loss and hormonal swings, which would have a cognitive and emotional

impact. Dr. Auble‟s excluded testimony merely corroborated Dr. Kenner‟s testimony.

Moreover, the trial court reconsidered the motion to suppress in February, after Dr. Auble

had filed her affidavit, when the defendant presented additional evidence on the issue of

custody. Finally, Dr. Auble‟s proposed testimony did not cast doubt on the fact that the

defendant appeared to have “a meaningful awareness of [her] Miranda rights, as well as

the consequences of waiving [her] rights.” State v. Blackstock, 19 S.W.3d 200, 209

(Tenn. 2000). Dr. Auble‟s testimony was that the defendant, due to internal compulsion,

would be more susceptible to waiving her rights. See State v. Bush, 942 S.W.2d 489, 501

(Tenn. 1997). We conclude that, even if the exclusion of the evidence were error, any

error is harmless.

IV. Right to an Impartial Judge

The defendant also contends that her right to an impartial judge was violated.

Primarily, the defendant points to the trial court‟s admonitions regarding her displays of

emotion during the trial. The defendant alleges that the trial court‟s limitations on the

defense‟s cross-examination of Mr. Lowe regarding the defendant‟s church activities also

illustrates the court‟s bias. The defendant alleges bias in the trial court‟s admonitions to

trial counsel during the hearing on the motion for interlocutory appeal of the denial of her

statement‟s suppression, asserting that the court‟s comments gave rise to an appearance

of bias. The defendant likewise raises the failure to permit an offer of proof regarding

Dr. Auble‟s testimony in question-and-answer form as evidence of bias.

37

Initially, we note that, after the trial court denied the motion for interlocutory

appeal of the statement‟s suppression, trial counsel on January 17, 2013, moved for

recusal based on the trial court‟s comments during the hearing. The comments in

question were:

Now, before I get into this, there‟s something I want to

take up with the attorneys here. I respect the attorneys in this

case immensely. I know three of you, and [co-counsel is]

relatively new to the practice of law -- the three of you for an

extremely long time as an attorney, a fellow attorney, and as a

judge. And anything that any of you all represent to me, I

consider truth. I consider each and every one of you upmost

examples of integrity and honestly in the way that you should

represent your respective interests in the criminal court.

You are leaders of your profession, but I‟m going to

tell you, as a father might speak to a son, sternly, that I‟m

disappointed in this particular pleading. The motion … is

sloppy and it‟s not correct. And that‟s why I am bringing this

to your attention before we go through the argument.

The trial court elaborated that it believed defense counsel had not adequately

summarized its finding that the defendant was not in custody, making the appellate

arguments regarding Miranda moot. The trial court also took offense that the defense

asserted it was not permitted to make an offer of proof. The trial court asserted that the

statements of counsel and the report were sufficient to make an offer of proof, and it

objected that Dr. Kenner‟s testimony was not mentioned in the motion seeking

interlocutory appeal. The trial court stated that it was “striking all that because it is so

misrepresentative of what happened here.” The trial court then stated that it would not

“strike anything. I‟ll ignore it.” At the hearing on the motion for permission to appeal,

Detective Malach testified that the motion to suppress was not dispositive of the State‟s

case.

In the subsequent motion to recuse, the defendant raised as evidence of bias the

trial court‟s comments, the trial court‟s legal rulings regarding the testimony of Dr.

Auble, its “argumentative” questions to Dr. Kenner, and its raising of the custody issue

sua sponte. The trial court denied the motion, finding that the court was not biased but

had merely objected to what it perceived as a failure to summarize its ruling by excluding

the finding that the defendant was not in custody. It further noted:

38

Let me state those comments were predicated by respect for

the attorneys. They were not personal. They were

professional. That is what I‟m called to do as a trial judge

and comment about sloppy work. Also, judges are not robots

with monotone voices or computer voices like you do when

you call and try to get somebody on the phone, it‟s important

and you can‟t get a human. Not like these smartphones when

you talk to somebody that is not a human. Attorneys should

not mistake emotion from the judge in making a ruling with

allowing emotion to control the judge‟s application of the law

in presiding over a case.

On February 26, 2013, this court denied the defendant‟s appeal of the recusal

decision. Conducting a de novo review, this Court concluded that “while the trial judge

may have spoken a little too candidly at times, we do not believe any of his comments

rise to the level of creating an unfair bias or prejudice toward the Appellant or her

attorneys.” State v. Lindsey Brooke Lowe, No. M2013-00447-CCA-10B-CD, 2013 WL

706318, at *5 (Tenn. Crim. App. Feb. 26, 2013). This is now the law of the case, and

accordingly, we do not address the defendant‟s arguments based on the trial court‟s

pretrial actions.

The State asserts that any argument that the trial court should have recused itself

for bias based on its actions during trial is waived for failure to move for a recusal. The

State is correct that defense counsel did not specifically move for recusal during trial.

Defense counsel did, however, move for a mistrial, and in doing so, he raised the issue of

the judge‟s partiality as evidenced by the admonitions to the defendant regarding her

demeanor and as evidenced by the limitation on cross-examination. The defense noted

that the appeal of the recusal had been denied but that the defense felt “that Your Honor

does not treat the district attorney in the same fashion, and because of that, we move for a

mistrial as well.” In rejecting the motion, the trial court addressed allegations of its own

partiality. The trial court quoted extensively from this court‟s denial of the appeal of the

recusal, and the trial court found: “There is absolutely no mention of any other basis for

recusal in the entire history of the case -- other than today there is a double standard issue

being raised.” The trial court concluded that it had “no partiality” and that “the record

absolutely demonstrates the trial court‟s fairness and impartiality.” The argument was

presented as an argument that the trial court was not impartial, and the trial court

addressed both allegations of partiality and whether there were any basis for recusal. We

conclude the argument is not waived.

Article VI, section 11 of the Tennessee Constitution provides that “[n]o Judge of

the Supreme or Inferior Courts shall preside on the trial of any cause in the event of

39

which he may be interested.” Accordingly, the right to a trial before an impartial judge is

constitutional in nature. Bean v. Bailey, 280 S.W.3d 798, 803 (Tenn. 2009). Rule of

Judicial Conduct 2.11 provides that “[a] judge shall disqualify himself or herself in any

proceeding in which the judge‟s impartiality might reasonably be questioned.” Tenn.

Sup. Ct. R. 10, R.J.C. 2.11(A). A judge is further required to perform his or her duties

“without bias or prejudice.” Tenn. Sup. Ct. R. 10, R.J.C. 2.3(A). Because the appearance

of bias is injurious to the integrity of the legal system whether or not bias actually exists,

a judge should disqualify himself or herself “„when a person of ordinary prudence in the

judge‟s position, knowing all of the facts known to the judge, would find a reasonable

basis for questioning the judge‟s impartiality.‟” Davis v. Liberty Mut. Ins. Co., 38

S.W.3d 560, 564-65 (Tenn. 2001) (quoting Alley v. State, 882 S.W.2d 810, 820 (Tenn.

Crim. App. 1994)). The test is an objective one. Bd. of Prof’l Responsibility v. Slavin,

145 S.W.3d 538, 548 (Tenn. 2004). Bias is present when a judge has expressed an

opinion on the merits of a case prior to hearing evidence, has taken a position favorable

or unfavorable to a party prior to a hearing, or has prejudged factual issues. Alley, 882

S.W.2d at 822. An appellate court reviews a trial court‟s decision on recusal under an

abuse of discretion standard. State v. Odom, 336 S.W.3d 541, 576 (Tenn. 2011).

A judge presiding at a trial “must be sufficiently neutral and free of

preconceptions about the factual issues to be able to render a fair decision.” Alley, 882

S.W.2d at 820 (quoting Charles W. Wolfram, Modern Legal Ethics 988 (1986)).

However, “[n]ot every bias, partiality, or prejudice merits recusal. To disqualify,

prejudice must be of a personal character, directed at the litigant, „must stem from an

extrajudicial source and result in an opinion on the merits on some basis other than what

the judge learned from ... participation in the case.‟” Alley, 882 S.W.2d at 821 (quoting

State ex rel. Wesolich v. Goeke, 794 S.W.2d 692, 697 (Mo. Ct. App. 1990)). Bias based

on actual observation of witnesses and evidence during trial does not disqualify the judge

unless it is so pervasive that it is sufficient to deny the litigant a fair trial. Alley, 882

S.W.2d at 821. Adverse rulings alone do not establish bias meriting disqualification,

even if “erroneous, numerous and continuous.” Id.

Here, the defendant alleges that the trial court was biased because of its

admonitions regarding her show of emotions, including the court‟s instruction, “If you

need a break, we‟ll take a break, but you sit there and you don‟t show any emotion to this

jury. Like I said, their job is hard enough.” The trial court warned the defendant, “I will

not have you sitting there acting like a child or displaying emotion uncontrolled. The

next time that this happens, you will be excluded from this courtroom.” The trial court

had previously noted for the record that the defendant had put her head down and her

hands over her ears during the testimony of Mr. Smith. The court informed trial counsel,

“She is acting like a child. She has her head down, her ears covered, and I‟m not going to

tolerate that.”

40

In denying the defendant‟s motion based on the admonition, the trial court found

that the defendant‟s act of putting her head down and covering her ears with her hands

was “a known, intentional response.”

We conclude that the trial court‟s comments, including the threat to exclude the

defendant, do not in themselves establish that the defendant was deprived of an impartial

judge. Although the defendant has a right to be present at trial, this right can be waived

by disruptive conduct under certain circumstances. Tenn. R. Crim. P. 43(a), (b)(2); see

State v. Ballard, 21 S.W.3d 258, 261 (Tenn. Crim. App. 2000). Examples of disruptive

conduct include profane gestures combined with argumentative or non-responsive

answers and a refusal to submit to cross-examination during testimony; spontaneous

proclamations to the jurors on multiple occasions that the trial is unfair and trial counsel

unprepared; or physical assaults. See State v. Mosley, 200 S.W.3d 624, 634 (Tenn. Crim.

App. 2005); State v. William J. Ford, No. W2000-01205-CCA-R3CD, 2002 WL

1592746, at *7 (Tenn. Crim. App. July 12, 2002); State v. Cole, 629 S.W.2d 915, 917

(Tenn. Crim. App. 1981). During the course of trial, the court at first expressed a

concern that the defendant‟s emotions would hinder her ability to assist counsel in her

own defense. The trial court and trial counsel agreed that trial counsel would ask for, and

be given, a break whenever counsel noticed that the defendant was becoming emotional.

In denying any relief based on its alleged partiality, the trial court found that its

statements to the defendant, including the threat of excluding her from trial, were based

not on an involuntary show of emotions but on her “known, intentional response” of

covering her ears and putting down her head during testimony. While the defendant‟s

conduct was not as disruptive as the behavior cited in Mosley, Ford, or Cole, and while

the trial court‟s admonition may have been confusing in not narrowing the particular

conduct at issue, the court‟s decision was based on observation of witnesses and evidence

during trial. Alley, 882 S.W.2d at 821. The trial court had the duty to control the

proceedings. State v. Lemaricus Devall Davidson, No. E2013-00394-CCA-R3-DD, 2015

WL 1087126, at *35 (Tenn. Crim. App. Mar. 10, 2015). Accordingly, the trial court did

not abuse its discretion in failing to recuse itself or denying a mistrial based on

allegations of partiality.

Likewise, the trial court‟s decision to limit the cross-examination of the

defendant‟s father regarding her church activities does not indicate bias warranting

recusal. On cross-examination, the prosecution asked the defendant‟s father if the

defendant had sung a solo at her church on Christmas after the deaths of her children, and

the defendant‟s father stated that the family had begun to attend the early Sunday service

and that the defendant had sung a solo. The defense did not object to this line of

questioning, but on redirect examination, trial counsel asked the defendant‟s father about

other church activities in which the defendant participated. The defendant‟s father

41

testified that she went on a mission trip and weekend retreat, and the prosecution then

objected based on relevance. The trial court stated that the lack of objection by defense to

the prosecution‟s questions did not make the material relevant or admissible but allowed

trial counsel to pursue the line of questioning, instructing counsel to “be brief.”

The defendant does not argue that the testimony that the trial court ultimately

admitted but limited was relevant. Neither does she allege that this exchange was based

on extra-judicial observations or a prejudgment on the merits of the case. An adverse

ruling is not sufficient to establish bias. Alley, 882 S.W.2d at 821. We conclude that the

defendant was not denied her right to an impartial judge.

V. Right to Testify

The defendant next argues that the trial court‟s comments regarding her displays

of emotion effectively denied her the right to testify. She claims that her “election not to

testify was caused by (or at a minimum significantly influenced by) her apprehension”

that the trial court would exclude her from the courtroom should she become emotional.

The defendant asserts that the trial court‟s actions were an effective denial of her

constitutional right to testify in her own behalf. We note initially that any error was not

constitutional. “Because the defendant was free to testify despite the trial court‟s

[admonitions], this case does not involve the deprivation of a fundamental constitutional

right.” State v. Galmore, 994 S.W.2d 120, 125 n.3 (Tenn. 1999) (concluding that

erroneous admission of prior convictions which may have affected the defendant‟s choice

not to testify was not constitutional error); compare Momon v. State, 18 S.W.3d 152, 166-

67 (Tenn. 1999) (holding that counsel‟s unilateral waiver of the right to testify was

subject to constitutional harmless error analysis).

A defendant can premise relief on an error that prevents him or her from

exercising the right to testify. In State v. Herron, the Tennessee Supreme Court found

that cumulative error – including an erroneous ruling that certain prior convictions and

arrests would be admissible as impeachment should the defendant testify – entitled the

defendant to appellate relief. State v. Herron, 461 S.W.3d 890, 911-12 (Tenn. 2015).

The Court‟s decision rested in part on the fact that “the defendant decided not to testify

only after the trial court twice erroneously ruled that, if he did so, the State would be

permitted to question him about prior arrests and convictions.” Id. at 911.

Nevertheless, a defendant must make some showing of prejudice stemming from

the error. Generally, relief is only appropriate where “error involving a substantial right

more probably than not affected the judgment.” Tenn. R. App. P. 36(b). In State v.

42

Galmore, where the trial court erroneously admitted impeachment evidence, the Court

concluded that “[d]epending upon the facts and circumstances of a case, an offer of proof

may be the only way to demonstrate prejudice.” Galmore, 994 S.W.2d at 125.

However, in analyzing the prejudice from the erroneous ruling, the Galmore Court held

that “neither an offer of proof nor a showing that the defendant would have testified but

for the trial court‟s ruling is required in order to preserve for review a claim of an

erroneous ruling on admissibility of a prior conviction for impeachment purposes.” Id.

(emphasis added). In analyzing prejudice, the Court ultimately concluded that “[t]he

defendant‟s assertion that he would have refuted the confession . . . is not supported by

the record.” Id. The Court in Herron, on the other hand, granted relief because it

concluded that the record established “[t]hat the trial court‟s erroneous ruling more likely

than not influenced the defendant‟s decision.” Herron, 461 S.W.3d at 911; see also State

v. Taylor, 993 S.W.2d 33, 35 (Tenn. 1999) (denying relief where impeachment evidence

was erroneously admitted but there was no evidence of proposed testimony or theory of

defense for which testimony would have been critical).

The defendant insists that the trial court‟s admonition to her regarding her

emotional responses led to her decision not to testify. The defendant reiterates the claim

that the trial court‟s admonition was indicative of bias, but she points to no particular rule

of law that the trial court violated in giving the admonition. See State v. Lemaricus

Devall Davidson, No. E2013-00394-CCA-R3DD, 2015 WL 1087126, at *35 (Tenn.

Crim. App. Mar. 10, 2015) (concluding that “it is the duty of the trial court to control the

proceedings” and that the court has broad discretion over the course and conduct of the

trial, including wearing of memorial buttons for victims).

The record reveals that the defendant was emotionally affected by testimony

throughout the course of the trial. After the 911 tape was played, the trial judge

expressed concern about her mental state, informed counsel that he wanted to make sure

the defendant could assist in her defense, and clarified that trial counsel would be granted

a break if they believed the defendant needed one in order to gain control of her

emotions. The defendant became emotional during the testimony of Mr. Smith, putting

her head down and her hands over her ears. During discussions in chambers and outside

the presence of the defendant, trial counsel informed the court that, despite preparation

for the defendant‟s testimony, he did not think he would “be able to call her as a witness

in her own defense simply because I don‟t think she can do it. I don‟t think she can

emotionally get through it.” This was prior to the trial court‟s admonition to the

defendant. Trial counsel reiterated prior to the Momon hearing that the defendant “dreads

testifying.” Furthermore, the defendant herself declared that she would not testify

because “I just don‟t feel like I can emotionally handle it.” The record reflects that she

was properly informed of her right to testify and chose to waive that right. The defendant

43

never presented testimony at the motion for a new trial regarding the influences on her

decision not to testify.

Even if the trial court‟s admonitions could be considered error, the record does not

support the conclusion “[t]hat the trial court‟s erroneous ruling more likely than not

influenced the defendant‟s decision.” Herron, 461 S.W.3d at 911. We cannot conclude

that the defendant has demonstrated any prejudice or that the judgment was more

probably than not affected. See Galmore, 994 S.W.2d at 125; Tenn. R. App. P. 36(b).

Accordingly, the defendant is not entitled to relief on this issue. See State v. Rimmer, 250

S.W.3d 12, 29 (Tenn. 2008) (concluding that the fact that the defendant was not aware

that cross-examination in sentencing hearing would be limited did not invalidate waiver

when “the Defendant, professing complete awareness of his right to testify,

acknowledged that his decision not to do so was his personal desire”).

VI. Shifting Burden of Proof

The defendant also premises relief on her contention that allowing the State to

present rebuttal evidence pursuant to State v. Hall, 958 S.W.2d 679 (Tenn. 1997), shifted

the burden of proof to the defense in violation of her constitutional rights. The defendant

argues that the State had notice of her intent to introduce proof of diminished capacity

and did not address the issue in its case-in-chief, and that the procedures outlined in State

v. Hall operate to shift the burden to the defense to disprove mens rea.

In State v. Hall, the Tennessee Supreme Court described diminished capacity as a

rule of evidence in which the defendant presents “expert, psychiatric evidence aimed at

negating the requisite culpable mental state.” State v. Hall, 958 S.W.2d 679, 688 (Tenn.

1997). Diminished capacity is neither a justification nor an excuse, but simply evidence

that the defendant was incapable of forming the intent required for the crime charged. Id.

Evidence relevant to negating the capacity to form the requisite mental state due to the

defendant‟s mental disease or defect is admissible, while evidence of mere emotional

state or mental condition is not admissible. State v. Faulkner, 154 S.W.3d 48, 56 (Tenn.

2005).

In this case, the jury instructions informed the jury that the State bore the burden

of “proving the guilt of the defendant beyond a reasonable doubt, and this burden never

shifts but remains on the [S]tate throughout the trial of the case.” The instructions stated

that the defendant was not required to prove her innocence. The jury was also instructed

that the State was required to prove all the elements of each crime beyond a reasonable

doubt. More particularly, the jury was instructed:

44

The [S]tate must prove beyond a reasonable doubt the

culpable mental state of the accused. Culpable mental state

means the state of mind of the accused at the time of the

offense. This means that you must consider all of the

evidence to determine the state of mind of the accused at the

time of the commission of the offense. The state of mind

which the [S]tate must prove is contained in the elements of

the offense(s) as outlined in these instructions below.

In this case, you have heard evidence that the

defendant might have suffered from a mental disease or

defect which could have affected her capacity to form the

culpable mental state required to commit a particular offense.

The testimony must demonstrate that the defendant‟s inability

to form the requisite culpable mental state was the product of

mental disease or defect, not just a particular emotional state

or mental condition. However, it is for the jury to determine

whether or not the defendant might have suffered from a

mental disease or defect.

If you find from the evidence that the defendant‟s

capacity to form a culpable mental state may have been

affected, then you must determine beyond a reasonable doubt

what the mental state of the defendant was at the time of the

commission of the offense to determine of which, if any,

offense she is guilty.

The defense moved for a judgment of acquittal at the close of the defendant‟s

proof, arguing that the State had neglected to introduce expert evidence regarding the

defendant‟s mental capacity in its case-in-chief and that permitting the State to introduce

the evidence in rebuttal would be tantamount to shifting the burden of proof to the

defendant.

In its case-in-chief, the State presented evidence from which it could be inferred

that the college-educated defendant was aware that she was pregnant, that she hid her

pregnancy from everyone who knew her, and that she made no preparations for birth.

The defendant stated to Detective Malach that after the births, she had wanted to keep the

babies quiet and had put her hand over each baby‟s mouth until he stopped crying. She

agreed that she killed the babies and, in reference to the second baby, stated that she

knew that she killed him. The State‟s proof also included evidence that the defendant

was able to communicate with her parents immediately after the births to refuse aid, that

45

she was able to clean up the bathroom and herself so that no one would suspect she had

given birth, and that she was able to place the bodies of the babies into a laundry basket,

which she then moved to the far side of her bed inside her bedroom. She was able to

contact her supervisor to say that she was too sick to go to work, and she had

communications via text message with several people about subjects unrelated to the

babies, such as an upcoming concert, trip, and television show.

The defendant is mistaken in her argument that the State did not present proof

regarding her mental state. The mental state of the defendant is “often difficult to

discern.” State v. Larkin, 443 S.W.3d 751, 815 (Tenn. Crim. App. 2013). “Although a

jury may not engage in speculation, it may infer premeditation from the manner and

circumstances of the killing.” State v. Jackson, 173 S.W.3d 401, 408 (Tenn. 2005).

While the State‟s initial proof did not involve an expert opinion regarding the defendant‟s

capacity to form the requisite mens rea, the State did present evidence from which the

jury could have inferred that the defendant was acting intentionally and with

premeditation.

After the close of the State‟s proof, the defendant presented expert testimony that

she was unable to form the requisite mens rea. Had the State neglected to introduce

proof of the requisite mental state of the crimes, the trial court would have been obligated

to grant the defendant‟s motion for judgment of acquittal, but the trial court instead

properly concluded that there was evidence from which the jury could find beyond a

reasonable doubt that the defendant acted with premeditation, although there was also

evidence from which the jury could conclude that the defendant lacked capacity to form

the requisite mental state. In rebuttal, the State countered with its own expert, who

testified that the defendant, although suffering from mental disease and defect, was

capable of forming the intent necessary for the crimes with which she was charged. The

defendant cites no legal authority for the proposition that the State must present such

expert testimony in its case-in-chief. See, e.g., State v. Ward, 138 S.W.3d 245, 276

(Tenn. Crim. App. 2003) (concluding that expert testimony relevant to whether an

infant‟s death was caused by accident or mistake could properly come in only during

rebuttal because the danger of unfair prejudice would substantially outweigh the

probative value of the evidence if presented in the State‟s case-in-chief); Tenn. R. Crim.

P. 12.2(b), Advisory Comm’n Cmt. (requiring notice of defendant‟s intent to introduce

expert testimony regarding mental health so that the prosecution may prepare rebuttal

proof).

The jury was properly instructed that the State bore the burden of proving mens

rea beyond a reasonable doubt. The State introduced in its case-in-chief evidence from

which a jury could have found that the State had established the requisite mens rea

beyond a reasonable doubt. We conclude that the trial court did not err in denying the

46

motion for judgment of acquittal or in permitting rebuttal proof. We likewise reject the

notion that State v. Hall shifts the burden of proof to the defendant.

VII. Change of Venue

The defendant challenges the trial court‟s denial of her motion for a change of

venue. Citing the extensive media coverage and the polarizing issues of the case, the

defendant asserts that the trial court erred in denying the motion for a change of venue.

The trial court heard the evidence presented at the motion hearing and took the matter

under advisement until the voir dire of potential jurors had been completed. The

defendant asserts that reserving a ruling on the matter was likewise error.

A criminal offense is to be prosecuted in the county where it was committed,

Tenn. R. Crim. P. 18(a), but the trial court should order a change of venue “when a fair

trial is unlikely because of undue excitement against the defendant in the county where

the offense was committed or for any other cause.” Tenn. R. Crim. P. 21(a). The Rule

requires the movant to attach affidavits detailing the facts which constitute undue

excitement. Tenn. R. Crim. P. 21(b).

A motion for a change of venue addresses itself to the trial court‟s sound

discretion, and the trial court‟s decision will not be reversed absent abuse of discretion.

State v. Howell, 868 S.W.2d 238, 249 (Tenn. 1993). “Mere exposure to news accounts of

the incident does not, standing alone, establish bias or prejudice.” State v. Crenshaw, 64

S.W.3d 374, 386 (Tenn. Crim. App. 2001). A court will not presume unfairness based on

the quantity of publicity unless the trial atmosphere is “utterly corrupted by press

coverage.” Crenshaw, 64 S.W.3d at 387 (quoting Dobbert v. Florida, 432 U.S. 282, 303,

(1977)). A juror who possesses knowledge of the facts of the case may still be qualified

to serve on the panel so long as the juror can demonstrate that he or she will put aside

prior knowledge and will decide the case based on the evidence presented at trial. State

v. Rogers, 188 S.W.3d 593, 621 (Tenn. 2006) (appendix). “The mere fact that jurors

have been exposed to pre-trial publicity will not warrant a change of venue.” State v.

Mann, 959 S.W.2d 503, 532 (Tenn. 1997) (appendix). Instead, the “defendant must

demonstrate that the jurors who actually sat were biased or prejudiced against him.” State

v. Evans, 838 S.W.2d 185, 192 (Tenn. 1992).

The factors which a trial court should consider in deciding whether to grant a

change of venue include:

the nature, extent, and timing of pretrial publicity; the nature

of the publicity as fair or inflammatory; the particular content

47

of the publicity; the degree to which the publicity complained

of has permeated the area from which the venire is drawn; the

degree to which the publicity circulated outside the area from

which the venire is drawn; the time elapsed from the release

of the publicity until the trial; the degree of care exercised in

the selection of the jury; the ease or difficulty in selecting the

jury; the venire persons‟ familiarity with the publicity and its

effect, if any, upon them as shown through their answers on

voir dire; the defendant‟s utilization of his peremptory

challenges; the defendant‟s utilization of challenges for cause;

the participation by police or by prosecution in the release of

the publicity; the severity of the offense charged; the absence

or presence of threats, demonstrations, or other hostility

against the defendant; the size of the area from which the

venire is drawn; affidavits, hearsay, or opinion testimony of

witnesses; and the nature of the verdict returned by the trial

jury.

State v. Sexton, 368 S.W.3d 371, 387 (Tenn. 2012) (citing Rogers, 188 S.W.3d at 621-22

(appendix) (citing State v. Hoover, 594 S.W.2d 743, 746 (Tenn. Crim. App. 1979))).

Here, the trial court found that there had been extensive publicity from the date of

the discovery of the deaths until the date of the motion hearing and that while some

publicity had been fair, some had been inflammatory. The trial court noted that the

publicity permeated the area and that the crime was the topic of national news. Both the

defense and prosecution had participated in the publicity. The crimes were particularly

serious, and the trial court found that extensive evidence about the publicity had been

introduced but that there were no threats or demonstrations. The trial court noted that

there were between 160,000 and 120,000 voters in the area. The trial court found that the

comments on social media and the news were threatening and hostile but not necessarily

localized. The trial court found that there was undue excitement but concluded that,

because several of the factors in Hoover hinged on the outcome of voir dire, it would

hold the motion under advisement. After a thorough voir dire in which a large venire

was called, a questionnaire was given, the trial court excused sixteen jurors sua sponte,

and the defendant used seven of her eight peremptory challenges, the trial court denied

the motion.

The defendant alleges that this denial was in error because she had demonstrated

during the initial motion hearing that there was undue excitement in the county. The

defense notes that it limited its opinion surveys to recently called jurors, distinguishing

State v. Thacker, where the defense did not limit the poll to those qualified to sit on a

48

jury, and State v. Davidson, where an investigator conducted only “informal” surveys.

See State v. Thacker, 164 S.W.3d 208, 236 (Tenn. 2005) (appendix); Davidson, 121

S.W.3d 600, 611 (Tenn. 2003). However, we observe that neither of these cases hinged

on a finding that the surveys were invalid; instead, the court in Davidson concluded that

the trial court did not abuse its discretion when it conducted a detailed voir dire and there

was “no evidence that any juror was actually biased or prejudiced,” and the court in

Thacker concluded that there was no error because the defendant failed to exhaust his

peremptory challenges, because the trial court carefully supervised voir dire, and because

the jurors asserted that they would be impartial. Thacker, 164 S.W.3d at 238 (appendix);

Davidson, 121 S.W.3d at 613.

The defendant argues that the law does not require proof of prejudice and cites

Tennessee Rule of Criminal Procedure 21(a) for the proposition that the test is whether a

“fair trial is unlikely.” While the defendant is correct that this is the criterion the trial

court should employ in deciding whether to grant a change of venue, the test for reversing

a conviction based on a denial of a change of venue is quite different. In order to reverse

a conviction based on the denial of a venue change, “an accused must establish „that the

jurors who actually sat were biased and/or prejudiced.‟” Davidson, 121 S.W.3d at 612

(quoting State v. Dellinger, 79 S.W.3d 458, 481 (Tenn. 2002) (appendix)).

Here, the trial court initially reserved judgment in order to have the benefit of the

factors addressing whether the actual venire was affected by the pretrial publicity. See

Sexton, 368 S.W.3d at 387. We cannot conclude that holding the matter under

advisement was in itself error. See Hoover, 594 S.W.2d at 745 (recounting that the judge

“took the matter under advisement and withheld ruling until the completion of the voir

dire examination of the prospective jurors”). The trial court here “carefully and

meticulously orchestrated the jury selection process to insure that the appellant received a

fair trial.” Hoover, 594 S.W.2d at 746; see also Davidson, 121 S.W.3d at 612 (noting

that the trial court conducted a “meticulous and detailed jury selection process”). The

defendant did not exhaust her peremptory challenges, and she makes no allegations that

any members of the jury that actually tried her were biased from exposure to pretrial

publicity. See Sexton, 368 S.W.3d at 388 (concluding that the trial court did not abuse

its discretion in denying a change of venue when there was no indication that the pretrial

publicity adversely impacted the jury panel); Rogers, 188 S.W.3d at 622 (appendix)

(holding that the trial court did not err in denying a change of venue when the defendant

did not allege any of the jurors who served on the jury were prejudiced by publicity);

Evans, 838 S.W.2d at 192 (concluding that the defendant did not demonstrate prejudice

when the jurors who had been exposed to pretrial publicity stated that they would render

a verdict based on the evidence at trial); Thacker, 164 S.W.3d at 237-38 (appendix)

(concluding the trial court did not abuse its discretion considering “the defendant‟s failure

to exhaust all peremptory challenges, the careful supervision of voir dire by the trial

49

court, and the assertion by the jurors that they could and would give the defendant a fair

and impartial trial”). Accordingly, we conclude that the defendant is not entitled to relief

on this issue.

VIII. Search Warrant

The defendant also asserts that the search of her home was illegal and that the

evidence from the search should have been suppressed because the search warrant failed

to comply with Tennessee Rule of Criminal Procedure 41. The defendant argues that

Tennessee Code Annotated section 40-6-108 cannot save the warrant because it is an

unconstitutional infringement of the legislative branch on the powers of the judicial

branch. The State asserts that the constitutional argument was not presented to the trial

court and is therefore waived.

At the February 12, 2013 suppression hearing, the defendant argued that the

failure to comply with Rule 41 rendered the warrant ineffective and that her due process

rights would be compromised by the application of the Exclusionary Reform Act found

in Tennessee Code Annotated section 40-6-108. The trial court found that Rule 41(d)

was violated because the copies of the warrant were not exact but that the violation “was

the result of a good faith mistake,” that it was a “technical violation,” that the error

constituted “an unintentional clerical error,” and that the warrant was otherwise in

compliance with the Fourth Amendment. The trial court denied the motion to suppress,

relying on the statute.

On February 19, 2013, the defendant filed a motion for permission to appeal the

ruling under Tennessee Rule of Appellate Procedure 9 and an application for a stay

during the pendency of the appeal. The defendant‟s brief in support of this application

argued that the statute was unconstitutional. It appears that this motion was heard and

denied by the trial court, and we proceed to the merits of the argument.

We note, initially, that the evidence contested includes only the physical evidence

obtained pursuant to the warrant. The bodies of the children were discovered prior to the

warrant‟s execution, as the police and paramedics attempted to render them emergency

aid. The remaining physical evidence consisted of the defendant‟s bloody clothing, the

chemical tests showing the presence of blood in the bedroom and bathroom, and the

photographs of the defendant‟s room, including a photograph of the packaging of the

maternity pads.

A trial court‟s findings of fact regarding a motion to suppress are binding on the

appellate court unless the evidence preponderates otherwise. State v. Williamson, 368

50

S.W.3d 468, 473 (Tenn. 2012). “Questions of 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.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The

party who prevailed in the trial court is entitled to the strongest legitimate view of the

evidence and all reasonable and legitimate inferences to be made from the evidence.

State v. Talley, 307 S.W.3d 723, 729 (Tenn. 2010). A trial court‟s application of the law

to the facts is reviewed de novo with no presumption of correctness. State v. Crutcher,

989 S.W.2d 295, 299 (Tenn. 1999).

A warrantless search is presumed unreasonable and any evidence seized through

such a search is subject to suppression by the courts. Talley, 307 S.W.3d at 729.

Tennessee Rule of Criminal Procedure 41 mandates:

The magistrate shall prepare an original and two exact copies

of each search warrant. The magistrate shall keep one copy as

a part of his or her official records. The other copy shall be

left with the person or persons on whom the search warrant is

served. The exact copy of the search warrant and the

endorsement are admissible evidence.

Tenn. R. Crim. P. 41(d). This Rule provides “procedural safeguards [that] are intended

„to secure the citizens against carelessness and abuse in the issuance and execution of

search warrants.‟” State v. Coffee, 54 S.W.3d 231, 233 (Tenn. 2001) (quoting Talley v.

State, 345 S.W.2d 867, 869 (1961)).

The Tennessee Supreme Court has interpreted the requirement of Rule 41 strictly.

State v. Bobadilla, 181 S.W.3d 641, 645 (Tenn. 2005). In State v. Hayes, the court was

faced with a strikingly similar fact pattern. State v. Hayes, 337 S.W.3d 235, 252 (Tenn.

Crim. App. 2010). One copy of the warrant indicated it had been issued at 10:35 a.m.,

while the other two showed that the warrant was issued at 10:35 p.m. Id. The trial judge

testified that he had signed the warrant in the morning; the warrant was executed in the

afternoon. Id. This court noted that the Rule was designed “to prevent improper searches

and facilitate judicial review of whether a search was executed within the scope of the

warrant.” Id. “Logically, in order to ensure that the warrant is first issued, then executed,

not only must the time be endorsed, but the accurate time must be endorsed.” Id. at 254

(emphasis in original). This court suppressed the evidence due to the failure to comply

strictly with the Rule‟s requirements. Id. at 256. Likewise, in State v. Bobadilla, the

Tennessee Supreme Court suppressed evidence when the warrant omitted the hour it was

issued because the omission undermined the Rule‟s purpose of ensuring that “if a search

warrant is executed prior to its issuance, such discrepancy will be apparent on the face of

the warrant.” Bobadilla, 181 S.W.3d at 645.

51

In response to courts‟ suppression of evidence based on clerical mistakes such as

that made in Hayes, the Tennessee Legislature passed the “Exclusionary Rule Reform

Act,” Tennessee Code Annotated section 40-6-108, with an effective date of July 1, 2011.

The Exclusionary Rule Reform Act provides:

a) Notwithstanding any law to the contrary, any

evidence that is seized as a result of executing a search

warrant issued pursuant to this part or pursuant to Tennessee

Rules of Criminal Procedure Rule 41 that is otherwise

admissible in a criminal proceeding and not in violation of the

constitution of the United States or Tennessee shall not be

suppressed as a result of any violation of this part or any

violation of Tennessee Rules of Criminal Procedure Rule 41

if the court determines that such violation was a result of a

good faith mistake or technical violation made by a law

enforcement officer, court official, or the issuing magistrate

as defined in subsection (c).

….

(c) As used in this section, unless the context

otherwise requires, “good faith mistake or technical

violation” means:

(1) An unintentional clerical error or clerical omission

made by a law enforcement officer, court official or issuing

magistrate in the form, preparation, issuance, filing and

handling of copies, or return and inventory of a search

warrant….

T.C.A. § 40-6-108.

The defendant argues that this statute is unconstitutional. Article II, section 1 of

the Tennessee Constitution provides that “[t]he powers of the Government shall be

divided into three distinct departments: the Legislative, Executive, and Judicial.” Article

II, section 2 elaborates that “[n]o person or persons belonging to one of these departments

shall exercise any of the powers properly belonging to either of the others, except in the

cases herein directed or permitted.” Tenn. Const. art. II, § 2. However, the Tennessee

Supreme Court has recognized that “it is impossible to preserve perfectly the „theoretical

lines of demarcation between the executive, legislative and judicial branches of

government.‟ Indeed there is, by necessity, a certain amount of overlap because the three

branches of government are interdependent.” Petition of Burson, 909 S.W.2d 768, 774

(Tenn. 1995) (quoting Underwood v. State, 529 S.W.2d 45, 47 (Tenn. 1975)).

52

Accordingly, our courts have “from time to time, consented to the application of

procedural or evidentiary rules promulgated by the legislature.” State v. Mallard, 40

S.W.3d 473, 481 (Tenn. 2001).

Generally, only the Tennessee Supreme Court has authority to oversee the practice

and procedure of the state‟s court system. Bush v. State, 428 S.W.3d 1, 16 (Tenn. 2014).

Broadly speaking, the courts will consent to legislatively-promulgated rules of procedure

or evidence as long as they (1) are reasonable and workable within the framework already

adopted by the judiciary, and (2) work to supplement the rules already promulgated by

the Tennessee Supreme Court. State v. McCoy, 459 S.W.3d 1, 9 (Tenn. 2014). A

legislative rule “which does not frustrate or interfere with the adjudicative function of the

courts does not constitute an impermissible encroachment upon the judicial branch of

government.” Mansell v. Bridgestone Firestone N. Am. Tire, LLC, 417 S.W.3d 393, 402

(Tenn. 2013) (quoting Lynch v. City of Jellico, 205 S.W.3d 384, 393 (Tenn. 2006)). On

the other hand, the legislature may not enact rules which “strike at the very heart of a

court‟s exercise of judicial power.” Mallard, 40 S.W.3d at 483. “Among these inherent

judicial powers are the powers to hear facts, to decide the issues of fact made by the

pleadings, and to decide the questions of law involved.” Id.

A legislative rule that would remove the court‟s discretion in making

determinations of legal or logical relevancy would violate the principle of separation of

powers and would be void. Id. On the other hand, the Tennessee Supreme Court has

found that a rule that merely limits the application of prior procedural rules may stand.

Mansell, 417 S.W.3d at 404-05 (concluding that statute which places limitations on the

ability of the court to determine the admissibility of expert testimony was permissible in

the context of Workers‟ Compensation Law, which the Court noted was a legislative

creation); Martin v. Lear Corp., 90 S.W.3d 626, 631-32 (Tenn. 2002) (upholding a

workers‟ compensation statute allowing admission of certain expert testimony because it

did not impermissibly conflict with the general procedural rule but merely limited its

application); McCoy, 459 S.W.3d at 9-10 (holding that a legislative rule permitting

certain previously inadmissible hearsay evidence did not “frustrate or interfere wit

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