State of Tennessee v. Crystal L. Gregoire

02/25/2019

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

November 14, 2018 Session

STATE OF TENNESSEE v. CRYSTAL L. GREGOIRE

Appeal from the Circuit Court for Lawrence County

No. 33670 Russell Parkes, Judge

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No. M2017-01562-CCA-R3-CD

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The Defendant, Crystal L. Gregoire, pled guilty in the Lawrence County Circuit Court to

tampering with evidence and was convicted following a jury trial of first degree

premeditated murder and sentenced to an effective term of life imprisonment. On appeal,

she challenges the sufficiency of the evidence of premeditation and argues that the trial

court abused its discretion by excluding the testimony of a retired Federal Bureau of

Investigation (“FBI”) agent of the facts surrounding the victim’s 1982 kidnapping

convictions and the victim’s having put out an “open contract” on the agent and the

agent’s family, by granting the State’s request for a special jury instruction pertaining to

the victim’s having become “disarmed or helpless” during the killing, and by admitting

prejudicial crime scene and autopsy photographs. Following our review, we affirm the

judgments of the trial court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which JOHN EVERETT

WILLIAMS, P.J., and NORMA MCGEE OGLE, J., joined.

Brandon E. White, Columbia, Tennessee (on appeal), and Robert H. Stovall, Jr., and

Travis Jones, Pulaski, Tennessee (at trial), for the appellant, Crystal L. Gregoire.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant

Attorney General; Brent Cooper, District Attorney General; and Gary Howell and Christy

Thompson, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

FACTS

The 35-year-old Defendant and the 69-year-old victim, Sam John Passeralla, sold

illegal prescription drugs together and were involved in a romantic relationship that

ended on the night of May 18, 2015, when the Defendant killed the victim by beating him

in the head with a hammer and cutting his throat with a knife. Afterwards, the Defendant

attempted to clean the premises with a bleach-based cleanser, planted a kitchen knife in

the victim’s hands, and went home, where she buried the murder weapons, a latex glove,

pill bottles belonging to the victim, and blood-stained clothing. The Defendant’s 16-

year-old son discovered the victim’s body the next day and called 9-1-1. During the

ensuing murder investigation, the Defendant misdirected investigators and eventually

gave three separate, vastly different statements to police. In the final statement, she

admitted that she beat and stabbed the Defendant in his bedroom but claimed that she

acted in self-defense. She was subsequently indicted for first degree premeditated

murder, first degree felony murder, theft, aggravated assault, and tampering with

evidence. Before her trial began, the Defendant opted to plead guilty to tampering with

evidence and the State dismissed the aggravated assault count of the indictment.

Trial

State’s Proof

Johnny Cheatwood, Director of Lawrence County Emergency Communications,

identified the 9-1-1 call that the Defendant’s son, Josh Brown, made at 8:50 p.m. on May

19, 2015, upon his discovery of the victim’s body.

Chief Terry Beecham of the Lawrenceburg Police Department, one of the first two

officers to respond to the 9-1-1 call, testified that when he arrived at the victim’s

apartment, he found a semi-hysterical, weeping Josh Brown outside and the victim dead

inside his apartment. He identified crime scene photographs that showed the victim on

his bed, lying on his back in a pool of blood, the victim’s walker beside the bed, and a

candle that was burning on the victim’s nightstand. He testified that although he had

known the victim, he was unable to recognize him due to the damage that had been

inflicted on his body. On cross-examination, he acknowledged that there were no

windows in the victim’s adjoining bathroom and only one entry/exit door from the

apartment.

Investigator Tommy Goetz of the Twenty-Second Judicial District Attorney’s

Office testified that there was a bathroom on the right side of the room, a nightstand on

the side of the bed nearest the bathroom, a chest of drawers on the opposite side of the

bed, and a mirrored dresser at the foot of the bed with a path between the dresser and the

bed. The victim, dressed in pajama bottoms and white socks, was lying on his back

across the bed with his feet at the floor toward the bathroom and his head toward the

chest of drawers. A white shirt was lying on the victim’s shoulder next to his face, and a

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bread knife, which appeared to have come from the knife block in the kitchen, was in the

victim’s right hand on top of his stomach.

Investigator Goetz testified that although he was not certified as an expert, he had

extensive training in homicide investigations, which involved the use of blood spatter and

blood sling evidence. He explained that blood spatter is what occurs when blood is cast

from a body upon impact, and blood sling is what occurs when blood is cast from an

object used to strike a victim. At the crime scene, there was a void, or lack of blood

spatter or blood sling, in the area around the chest of drawers and the bedroom window,

which indicated that the perpetrator was behind the victim. There was no blood spatter

on the bread knife, which indicated that it had been placed in the victim’s hand after his

death.

When Investigator Goetz exited the apartment, the Defendant was outside standing

beside a police car in which her son was sitting. On May 21, Investigator Goetz and

Special Agent Wayne Wesson of the Tennessee Bureau of Investigation (“TBI”)

interviewed the Defendant at her home. Based on the information she provided, they

returned to the victim’s apartment, where they uncovered a manila envelope containing

TBI discovery documents in the case of an individual who had been arrested on drug

charges, and which named the victim as one of the individuals to whom he supplied

drugs. According to Investigator Goetz, the documents

named [the victim] as giving marijuana, several pounds a week. And that

he thought he had determined who the snitch was and he had approached an

individual. And so [the Defendant] was leading us to believe that [the

victim] was possibly killed over these discovery papers.

Investigator Goetz testified that they followed up on the lead and interviewed the

“snitch,” but it led nowhere. On cross-examination, he acknowledged that the discovery

documents included a signed statement of David Dover, also known as “Daisy Dover,” in

which he stated that he imported marijuana from Mexico and sold ten or twelve pounds

of it per week to the victim.

Investigator Goetz conceded that the victim had such a close relationship with the

Defendant and her son that Mr. Brown referred to the victim as “Uncle Tony.” He

acknowledged that Mr. Brown had spent the entire weekend before the victim’s death

with the victim at his apartment, that the victim had dined with the Defendant and Mr.

Brown on the night he was killed, and that there were no indications in the victim’s and

the Defendant’s exchanged text messages that the two had argued.

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Investigator Goetz further acknowledged that he learned that the victim had spent

time in prison for aggravated kidnapping and was on parole at the time of his murder. He

also learned that the Defendant had been trained as a law enforcement officer. He

conceded that his own law enforcement training would lead him to shoot at the center

mass “to eliminate the threat” of an individual who was advancing on him with a knife

but on redirect examination testified that he could not envision any scenario in which his

training “would instruct [him] . . . to attack someone from behind[.]”

Investigator Michael Reeves of the Lawrenceburg Police Department, a graduate

of 80 hours of blood spatter training, including an “Advanced Blood Spatter Class,” used

crime scene photographs as he described in detail the blood spatter evidence at the scene,

which included the void of blood behind the victim. He testified that approximately eight

months after the murder, in early February 2016, he collected evidence that was found

partially buried in a chert pit located behind the Defendant’s trailer. Most of the items

were found inside a plastic shopping bag. Among the items recovered were: an Austin

Peay University red bag; a yellow and black hammer partially wrapped in a black latex

glove; a black-handle kitchen knife; a white-handle kitchen knife; a “blackish gray lace

throw over”; a white “I heart NY” t-shirt; a white and black leopard print shirt; a striped

bath towel; and four empty pill bottles. Three of the pill bottles were prescriptions in the

victim’s name, all of which had been filled on April 27, 2015; a 120-count bottle of 30

milligrams of Oxycodone; a 45-count bottle of 350 milligrams of SOMA; and a 90-count

bottle of 10 milligrams of Diazepam. The fourth bottle did not have a legible label but

appeared to have contained a non-prescription medication.

On cross-examination, Investigator Reeves acknowledged that he had never been

declared an expert witness in the area of blood spatter evidence. He further

acknowledged that he had no proof that the victim’s pill bottles were taken from the

victim’s apartment on the night of the killing. On redirect examination, he testified that

when he accompanied Agent Wesson to the Defendant’s home a day or two after the

discovery of the victim’s body, he noted a lot of “reddish clay mud substance” all over

the Defendant’s deck and footprints in the chert leading up the hill. He said the

Defendant’s explanation that day was that they had walked the dog in the area.

Captain Brent Hunter of the Lawrenceburg Police Department’s criminal

investigations division, who also had extensive training in blood spatter evidence,

testified at length with respect to the blood spatter evidence, including what led him to

conclude that an attempt had been made to clean the scene. Based on the appearance of

the “wiped through” blood stains, he estimated that some of the blood had been on the

floor for a minimum of twenty minutes before it was disturbed. On cross-examination,

he acknowledged that the Defendant had not done a very good job of cleaning the scene

but declined to opine whether that fact indicated that she was in a frightened or panicked

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state. He acknowledged that the Defendant would have had to pass within an arm’s

length of the victim in order to exit the victim’s bedroom.

Regina Hall, a physical therapist and the director of rehabilitation at National

Health Care Corporation Lawrenceburg (“NHC”), a skilled nursing center, testified that

the victim was admitted to their facility on April 14, 2015, following his hospitalization

for pneumonia and atrial fibrillation, and discharged on April 26, 2015, when he reached

his insurance coverage limit for in-patient rehabilitation treatment. At the time of his

release, the victim could with difficulty stand unassisted from a seated or lying position,

walk approximately 200 feet with his rolling walker, and walk down the hall with a

straight cane using the hallway handrail for additional support. However, his balance

was poor and his movements labored, so she recommended continued therapy on an out-

patient basis.

Ms. Hall testified that victim returned to NHC on April 29 for an insurance-

required assessment and reevaluation. After receiving insurance approval for outpatient

therapy, the victim was scheduled for his first appointment on May 14, but he called to

cancel because he was not feeling well. The victim also failed to show for his next

scheduled appointment on May 18 but came in that afternoon after they called to check

on him. The victim wanted to participate in therapy that day but was feeling unwell and

unable to do so. His blood pressure was 168 over 82, and he reported that he had been to

the cardiologist the previous week and learned that his irregular heart beat was causing

his blood pressure to rise.

On cross-examination, Ms. Hall testified that the victim weighed over 300 pounds.

She acknowledged that he scored as “independent” on his occupational therapy tests and

had driven himself to his last therapy appointment. She testified that she knew that the

victim had a reputation in the community for violence. Specifically, she knew that “[h]e

had gone to prison because of murder.” On redirect examination, she testified that she

was currently 53, and the incident for which the victim went to prison occurred when she

was “a little girl.” At the time of his death, the victim “was charismatic and kind” and

attended church.

Ashley Waller, a physical therapy assistant at NHC Lawrenceburg, testified that

the victim came to the facility for outpatient therapy at 3:00 p.m. on May 18 after missing

his 1:00 p.m. appointment. As he entered, the victim walked slowly while using a

straight cane and holding onto the hallway railing. Upon his arrival at the gymnasium, he

told her that he was feeling unwell and did not think he would be able to do therapy that

day but wanted to try. After taking his blood pressure and finding it already somewhat

elevated, she determined it would not be in his best interest to attempt therapy, as it did

not “appear he would be able to do anything strenuous.” Because he was unsteady on his

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feet, she accompanied him back to his vehicle, and he left. On cross-examination, she

acknowledged that the Defendant visited the victim on at least one occasion while he was

an in-patient at the facility.

TBI Special Agent Forensic Scientist Charly Castelbuono, an expert in forensic

biology, testified that she obtained only a limited, inconclusive DNA profile from the

latex glove that was partially wrapped around the hammer. She explained that DNA

degrades quickly from items that are exposed to the outdoor elements.

TBI Special Agent Forensic Scientist Dabney Kirk, an expert in latent print

analysis, testified that she was unable to lift an identifiable print from any of the evidence

submitted in the case.

Dr. Adele Lewis, the forensic pathologist who performed the autopsy of the 5’7”,

315-pound victim’s body, testified that the victim sustained at least twenty separate blunt

force injuries to his head and torso, two sharp force injuries to his neck, and blunt force

“bruising on his chest and on his tummy and some bruising on his arms.” Part of the

victim’s right ear “had been cut off or hit off[,]” and there were multiple fractures of the

face and skull, including “multiple broken bones on the skull on the right side, on the top

of his head” as well as “multiple fractures of the bones around the eyes” and fractures of

deep facial bones. The victim’s neck had been cut in two places, with one of the cuts

injuring the victim’s thyroid and creating a significant hole in the victim’s jugular vein.

Bleeding, bruising and swelling had occurred in the victim’s brain. Dr. Lewis estimated

that it would have taken ten to fifteen minutes from the time the trauma began for the

amount of swelling to occur in the victim’s brain. She said that swelling would have

stopped at the victim’s death after his heart stopped pumping.

Dr. Lewis opined that the victim was still alive at the time the cut to his jugular

vein occurred, based on the appearance of the wound and the amount of blood. She

testified that it would have taken “a matter of a few minutes” for the victim to “bleed

out,” or bleed to death, from the cut in this jugular vein. In her opinion, the blunt force

trauma she observed to the victim’s body was consistent with having been caused by a

weapon similar to the hammer found in the chert pit. Throughout her testimony, she used

autopsy photographs to show the injuries she described, including a large “hinge”

fracture of the victim’s skull that was only visible after she lifted his scalp.

On cross-examination, Dr. Lewis agreed it was possible the victim was holding a

weapon in his hand at the time his jugular vein was cut. She acknowledged that although

she labeled the manner of death as homicide, she was unable to determine if the killing

occurred in self-defense. On redirect examination, she testified that the blunt force

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trauma that the victim sustained was so severe that she was “almost certain” that he

would have been rendered unconscious.

Retired TBI Special Agent Wayne Wesson, who responded to the scene on the

night the body was found, testified that he found no narcotics of any kind or any cash in

the victim’s apartment. A kitchen chair was underneath the working ceiling light fixture

in the victim’s bathroom and the victim’s cell phone was inside the toilet bowl. Due to

the length of time the phone was submerged, no data was recoverable. Inside the kitchen,

he found a butcher block containing a set of white-handle kitchen knives that matched the

bread knife that was found in the victim’s right hand. In front of the knife stand was a

bottle of “Mean Green,” a cleaning fluid containing bleach. According to Agent Wesson,

most law enforcement officers are aware that bleach completely destroys DNA.

Agent Wesson testified that he saw the Defendant that night at the crime scene.

The next day, he and two other law enforcement officers talked to her at the trailer home

she shared with her boyfriend, Jonathan Howell. At that time, one of the officers pointed

out a trail of shoe prints leading from the trailer out into some deep mud. The Defendant

answered his questions about the victim’s habits and told him that she had not seen the

victim since dining with him and Mr. Brown at the victim’s home on May 18.

The following day, Agent Wesson and Investigator Goetz returned to the

Defendant’s home to talk to her again. Mr. Howell was at work, and the Defendant told

Agent Wesson and Investigator Goetz that she had a few things to tell them that she had

been unable to say the previous day in front of her boyfriend. She went on to inform

them that she and the victim loved each other and had been involved in a romantic

relationship that involved kissing and cuddling but in which no sexual intercourse

occurred due to the victim’s impotence. She said she went to the victim’s home

whenever she and Mr. Howell argued and that Mr. Howell was jealous of the victim.

However, she did not believe that Mr. Howell would harm the victim and she reported

that he would not have had the opportunity to do so.

During that same conversation, the Defendant also told the investigators about TBI

discovery documents at the victim’s home and mentioned a man named “Shawn Tierny,”

also known as “Big New York,” as a potential suspect in the case. Agent Wesson

testified that they followed up on the lead, but it led nowhere as Mr. Tierny was in North

Carolina at the time of the killing. He said the Defendant came to the Lawrenceburg

Police Department on May 22 to provide additional information about a man named

“Damien,” whose phone she claimed the victim used to communicate with Mr. Tierny.

According to the Defendant, Mr. Tierny had threatened to kill the victim via a text

message on Damien’s phone. However, when investigators pursued that lead, they found

no such threat on the phone.

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Agent Wesson’s next conversation with the Defendant took place on February 4,

2016, after he had eliminated all other potential suspects. He tracked her down, found

her in jail in Giles County, and went to Giles County and sat down beside her when she

was in the courtroom. Because he had something else to do that day, he told her he

wanted to interview her but would return at another time. By coincidence, that same

evening, he received a call from Carl Rawdon, who owned the trailer in which the

Defendant formerly resided, about the items found in the chert pit. He therefore returned

to Giles County to interview the Defendant that night. After waiving her rights, the

Defendant provided three different, successive statements -- two that night and a third the

following day.

In the first statement, the Defendant said she was in the victim’s bathroom when

Shane Hughes came to the apartment to argue with the victim about the victim’s cutting

him off from his pain pills. The Defendant said that she heard the two men fighting and

then heard the victim cry out. When she came out of the bathroom, the victim was taking

his last breath. The Defendant suggested that Mr. Hughes buried the evidence in the

chert pit to frame the Defendant.

After Agent Wesson told the Defendant he did not believe her, she gave a second

statement in which she claimed that Mr. Howell had accompanied her to the victim’s

home and gotten into an argument with the victim and killed him, despite the Defendant’s

attempts to stop him. The Defendant said she cleaned the crime scene and went home

with Mr. Howell, where they buried the evidence, including the Defendant’s blood-

stained “I heart NY” t-shirt.

Based on the second statement, Agent Wesson interviewed Mr. Howell the next

day and learned that the second statement was also a lie. He then returned to Giles

County, where he took a final, third statement from the Defendant. In her final statement,

the Defendant admitted that she had alone killed the victim but claimed it was in self-

defense. The first part of the Defendant’s signed written statement was handwritten by

her and reads in pertinent part:

When I arrived back [at] [the victim’s] after I dropped Josh [Brown] off at

home on the 18th of May 2015 [the victim] asked me to go into the

bedroom and help put away some laundry. I went into the bedroom

(approx 10:30 p.m[.] May 18th). [The victim] followed behind me. He

pushed me onto the floor and started yelling and waving a knife [at] me

calling me a no good b****/whore and said to stay on the floor like the dog

I was. He sat on his bed (while I was crying sitting on the floor). He said

he knew that I was double crossing him by messing with his suppliers

(David Dover) and taking his business from him. He also told me that he

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had two “wise guys” on their way to get me and whack my b**** a** and

Jonathan [Howell] was next. He proceeded to pick up his phone indicating

to me that the “wise guys” were being summoned. As I was thinking that I

was surely gonna being [sic] killed I started looking around on the floor

where I was sitting and saw a hammer laying under the bed. I quickly

picked the hammer up and started swinging it. [The victim] fell back and

gasped + yelped. All I could think was the “wise guys” were still coming.

I started grabbing the evidence and tried to collect everything as I rushed

out the door.

The last portion of the statement was handwritten by Agent Wesson but

initialed and signed by the Defendant:

I threw [the victim’s] phone in the toilet before I left. The knife in

[the victim’s] hand was placed there by me. I gathered things up and put

them into bags and took them with me. I took wash rags, towels, hammer

two knives and my clothes. I buried that stuff behind my old house . . .

I threw my shoes behind Hill Top Market. They were covered in red

clay. I threw them there on the morning of the 19th of May.

No one helped me cover this up or helped me in any way. I did this

alone.

When I hit [the victim] with the hammer he fell and dropped the

knife in his hand. I picked up the small knife [the victim] had and stabbed

him in the neck with it. I thought [the victim] was probably dead but I

wanted to make sure.

I left [the victim’s] and drove straight home. The next morning I got

the stuff out of the truck and buried it. I took some bleach and water on a

cloth and washed out the back of the truck.

I told [Mr. Howell] about this months later.

The statement also included the following handwritten notation in the margin,

signed by the Defendant: “One of the knives I used to dig a hole with. The other came

from [the victim’s]. The black one is the one I stabbed [the victim] with.”

Agent Wesson testified that the Defendant told him during her previous statement

in which she blamed the killing on Mr. Howell that she had sent text messages to the

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victim’s phone on the day after the killing in order to cover her involvement. During the

course of his investigation, he was able to confirm that she had sent two text messages to

the victim’s phone after the victim’s death.

On cross-examination, Agent Wesson acknowledged that he did not uncover any

evidence that the Defendant had previously threatened the victim or that anything unusual

had occurred in their relationship prior to the night of the killing. He further

acknowledged that the victim had a reputation in the community for violence.

Specifically, he was aware that the victim had been sentenced to the federal penitentiary

in 1982 for two counts of kidnapping and was on parole for those crimes at the time of

his death.

Defendant’s Proof

Carl Rawdon, a friend of the victim and the owner of the trailer in which the

Defendant lived at the time of the victim’s death, testified that the victim paid the

Defendant’s $300 per month rent on the trailer for three months, making the last payment

in April 2015. On cross-examination, he acknowledged that the victim “was crazy about

[the Defendant.]”

Kathy Yates, the manager of the victim’s apartment complex, testified that in the

last few weeks of his life, the victim was ambulatory and able to drive his vehicle.

Misty McMasters, the Defendant’s sister, testified that the victim made regular

$200 payments to her on the Defendant’s behalf in repayment of a loan she had made to

the Defendant. She said on two occasions when she was dining out with the Defendant,

the victim sent the Defendant threatening text messages demanding that she come to his

apartment immediately. Each time, the Defendant got up and left the restaurant, telling

Ms. McMasters that she was frightened of the victim. Ms. McMasters testified that she

was aware of the victim’s reputation for violence, having heard that he had murdered

someone in the past.

On cross-examination, Ms. McMasters testified that the victim’s threatening text

messages consisted of his telling the Defendant that he would come and “hunt [the

Defendant] down” if she did not come to him immediately. She acknowledged having

told Agent Wesson that the Defendant was on drugs at the time of the victim’s murder

but would not concede having said that law enforcement should investigate the Defendant

as a suspect. She said she did not know if the Defendant and the victim were involved in

an intimate relationship.

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T.B., the Defendant’s daughter, who was 16 years old at the time of trial, testified

that she once heard the victim, who was sitting in his living room, curse at the Defendant,

who was in the kitchen, and threaten to kill her with his pen. On another occasion when

the victim was driving T.B., T.B.’s friend, and the Defendant to dinner, the victim and the

Defendant began arguing about money and drugs, and the victim threatened to drive his

car off the road. According to T.B., the victim boasted to her more than once about

having kidnapped and murdered someone and buried the vehicle used in the crime.

On cross-examination, T.B. testified that the victim’s threat to kill the Defendant

with his pen occurred when T.B. was in the seventh grade, and his threat to drive his

vehicle off the road occurred when she was in the eighth grade. She agreed that the

victim regularly gave gifts to the Defendant and her children and paid for the family’s

outings. She testified that the victim never physically struck or harmed the Defendant or

her children.

Shane Hughes, a friend of the victim, agreed that he once helped the victim

assemble a bed, using the witness’s hammer. He did not, however, recognize the hammer

found at the chert pit and had never seen it in the victim’s home. He testified that on at

least two occasions he helped the victim with his “pill count” by providing him with

some of his own Oxycodone to make up a shortfall. He also, on at least four or five

occasions, wired money via Western Union on the victim’s behalf to a woman in another

state, who he later learned was Mr. Tierny’s girlfriend. To his knowledge, the victim and

the Defendant were just friends, although the victim would have liked a more intimate

relationship. Mr. Hughes stated that the victim frequently became angry with the

Defendant and about six months before his death made the comment, “If I get that b****

in the right place one of these days, I might just have to kill her.” The victim also said he

was going to have to keep the Defendant “on a short leash.”

On cross-examination, Mr. Hughes was adamant that the victim never asked him

to kill anyone and said if the victim called him on the night of May 18, 2015, it was about

a different matter. He agreed that the victim was “a blowhard” and testified that he did

not believe the Defendant was in danger when the victim made the comment about

having to kill her one day. On redirect examination, he testified that he learned after the

victim’s death that the victim had been “dealing in prescription pills to a pretty good

level.”

The Defendant testified that she met the victim through her boyfriend, Jonathan

Howell, who was addicted to prescription pain pills and began selling for the victim in

order to finance his habit. She said she initially sold pills with Mr. Howell, but over time

the victim realized that she was more capable than Mr. Howell, and she began selling for

the victim by herself. She estimated that she sold pills for the victim for approximately

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two years. During that time, she and the victim became very close and she grew to love

him deeply, although they were “not intimate.”

The Defendant explained the victim’s prescription pill business and how he

enlisted the aid of a nurse practitioner and pharmacist to obtain prescriptions and pills.

She said Shawn Tierny came each month to Lawrenceburg to get prescriptions refilled,

and she and the victim would meet him at the pharmacy to take possession of the pills.

The victim also had another minor pill supplier, “Daisy,” whose primary role was to

supply the victim with marijuana. Because of the Defendant’s role in selling pills, it was

not uncommon for her to have prescription pills of the victim’s in her possession. In fact,

each month she helped ensure that the victim’s pill count was correct before the victim’s

parole officer made his monthly visit of inspection to the victim’s apartment.

The Defendant testified that she once asked the victim to explain the story she had

heard about the victim’s having murdered someone. She said the victim proudly related

how he had set up a man who was selling fake silver by purchasing $30,000 of the fake

silver from him. After the purchase, the victim called his “gangster” friends and

announced that they were “gonna whack this guy.” The victim, with his accomplices,

then kidnapped the man and his pregnant wife at gunpoint, stowed the wife in a storage

shed, shot the husband in the head, and buried the Cadillac in which the murder occurred

in one location and the husband in another location. The Defendant said the victim let

the wife go without harming her because she was pregnant. She testified that the victim

was convicted of two counts of aggravated kidnapping, was sentenced to 70 years in

prison, and was released on parole after serving 29 years and seven months.

The Defendant related the circumstances surrounding her killing of the victim as

follows: The victim picked up Chinese food, which he shared with the Defendant and her

son at his apartment. He then told the Defendant to take Mr. Brown home because he

was about to transact a big drug deal. When the Defendant returned to the victim’s

apartment, he told her to put up the laundry that was in his bedroom. She started into the

bedroom and the victim struck her from behind, knocking her to the floor beside his bed.

When she started to get up, the victim said to her, “B****, you better stay on the ground

like the dog you are.” She asked the victim why, and he accused her of trying to send

him back to jail. He also threatened the lives of herself and her children, saying, “I’ve

got some wise guys coming to get you. Your kids are gonna watch me kill you, and then

I’m gonna kill them and throw your bodies in a []hole. No one will ever find y’all.” The

victim was wearing a white t-shirt and took it off and threw it at her, saying, “I’m not

gonna get blood on that shirt, b****. You’re not worth it. . . . And that candle that is

burning, I’ll say a prayer when you’re passed, when you’re dead and gone.”

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The Defendant testified that the victim was standing over her with a knife at this

time. She said that she started looking around for something to throw at him and spotted

a hammer underneath the bed. When the victim turned to sit on the bed in order to call

his “wise guys,” she saw her opportunity, grabbed the hammer, and “flew across the bed

and started hitting him.” She stated that she remembered hitting the victim only two or

three times but realized from the evidence that she must have hit him many more times.

She said that her hammer flew out of her hands at one point. His knife slipped, and she

grabbed it and stabbed him because he was still fighting, and she had no weapon.

Afterwards, she went out to her vehicle, retrieved a bag and a pair of latex gloves that Mr.

Howell had in the vehicle because he used them in his line of work, returned to the

apartment, cleaned up, threw the victim’s phone in the toilet, planted a different knife in

the victim’s hands, gathered up the evidence, and went home. The next day, she buried

the evidence in the chert pit. She explained her actions in concealing the evidence by

saying that she was panicked and frightened of going to jail for her role in the drug

business. She was also still frightened for the lives of herself and her children because of

the victim’s “wise guy” friends.

On cross-examination, the Defendant claimed that the portion of her written

statement about having stabbed the victim to be sure he was dead, which was not in her

handwriting, was fabricated by Agent Wesson. She said the portion about the victim

falling back onto the bed after she hit him with the hammer was not accurate and that

what really occurred was that he started swinging at her with his knife, cutting her hand.

She acknowledged that she signed the statement but said she did not read it before

signing it.

Retired FBI Agent Richard Knudsen testified that he investigated a matter in the

late 1970s/early 1980s that resulted in the victim’s conviction on two counts of

aggravated kidnapping, for which he received a 70 year prison sentence. The victim was

never charged with murder, but his investigation led him to conclude that the victim had

committed a murder in connection with the case. According to Agent Knudsen, the

victim’s reputation in the community was as an “extremely dangerous and violent” man.

His own personal opinion was that the victim was “dangerous, threatening, [and]

menacing.”

Agent Wesson, recalled by the State, denied having fabricated any portion of the

Defendant’s statement to police.

Following deliberations, the jury found the Defendant guilty of first degree

premeditated murder and not guilty of theft of property and first degree felony murder.

She was subsequently sentenced to life imprisonment for the first degree murder

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conviction, to be served concurrently to a three year sentence for tampering with

evidence.

ANALYSIS

I. Victim’s Violent Felonies and Threats to FBI Agent and His Family

As her first two issues, the Defendant contends that the trial court abused its

discretion in excluding testimony by Retired FBI Agent Knudsen of the facts surrounding

the victim’s aggravated kidnapping convictions and of the victim’s having taken out an

“open contract” on the agent and his family.

In a jury-out hearing, Agent Knudsen testified that he was the case agent in the

victim’s aggravated kidnapping case. He described the facts surrounding the crimes,

which were essentially the same as those recounted by the Defendant during her

testimony, with the exception that, according to Agent Knudsen, the victim had tried to

find someone to kill the pregnant wife before he ultimately let her go. Agent Knudsen

testified that during the prosecution of the case, he learned through a prison informant

that the victim had put out an “open contract,” seeking someone to kill either him or one

of the witnesses in the case. He said he had three small daughters at the time, so

“obviously it impacted [his] family.” Because he believed the victim had the money and

contacts to carry out the threat, he even considered moving with his family to a different

location to keep them safe. He stated that he confronted the victim during one of the

victim’s court proceedings, telling him that he had just been doing his job and asking him

to “pull that contract back.” He said the victim did not reply and “just g[o]t red like he

was either embarrassed or mad.”

At the conclusion of the hearing, the trial court found that the probative value of

the specific acts of violence was substantially outweighed by the danger of unfair

prejudice. The court further found that the threats communicated to the agent were so

remote as to be irrelevant and constituted hearsay for which the Defendant had not shown

a valid exception. Accordingly, the trial court ruled that Agent Knudsen could testify

about the victim’s reputation in the community for violence but would not be allowed to

testify about the threats made against the agent in 1981 or the facts surrounding the

victim’s decades-old crimes. The court reserved, pending the proof presented at trial,

whether the Agent Knudsen would be allowed to tell the jury what the victim had been

convicted of or that the victim was on parole at the time he was killed.

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Following the Defendant’s trial testimony, the court ruled that Agent Knudsen

could testify about the victim’s convictions, the length of his sentence, and the victim’s

parole status, but could not get into the underlying facts of the crimes. After further

argument of counsel, the court later expanded its ruling to allow defense counsel to

inquire into whether the agent believed, based on his investigation, that the victim had

committed a murder in connection with the kidnapping.

On appeal, the Defendant argues that Agent Knudsen’s testimony about the

victim’s violent acts should have been admitted to corroborate the Defendant’s claim that

the victim was the first aggressor. She argues that Agent Knudsen’s testimony about the

victim’s threats to the agent and the agent’s belief that the victim had associates capable

of carrying out the threat would have corroborated the Defendant’s testimony and

bolstered her claim that she acted in genuine fear of the victim’s “wise guy” associates.

The State responds that Agent Knudsen’s testimony about having heard that the victim

had put out an open contract on his life was inadmissible hearsay, and the details of the

victim’s crimes were inadmissible under Tennessee Rule of Evidence 405.

We, first, agree with the State that what Agent Knudsen heard about the victim’s

advertising for someone to kill the agent constituted inadmissible hearsay. Hearsay is “a

statement, other than one made by the declarant while testifying at the trial or hearing,

offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid. 801(c).

Agent Knudsen’s proffered testimony made it clear that the threats were communicated

to him by a prison informant and never acknowledged by the victim. As such, we

conclude that the evidence was properly excluded by the trial court.

As for whether the trial court properly excluded the proffered testimony about the

prior violent acts, we note that both parties analyze the issue pursuant to Tennessee Rule

of Evidence 405, “Methods of proving character,” which provides that after evidence has

been presented of a person’s character trait by reputation or opinion testimony, inquiry

may be allowed on cross-examination “into relevant specific instances of conduct” if

certain conditions are met. See Tenn. R. Evid. 405(a). However, as explained in

Tennessee Law of Evidence:

Victim’s Prior Violent Acts. Since the adoption of the Tennessee

Rules of Evidence, some appellate decisions have held that if the issue of

who was the first aggressor is raised by the evidence (as opposed to by the

arguments of counsel), proof of the victim’s prior violent acts is admissible

to corroborate the defendant’s claim of self-defense. These prior acts may

have involved the victim’s assaults on people other than the defendant. It

must be stressed that this use of the victim’s prior acts is not covered by

Rule 404(a)(2), which deals with substantive rather than corroborative

proof.

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Since Rule 404(a)(2) does not apply to the corroborative use of

evidence of the victim’s prior violent acts, Rules 405(a) and (b) also do not

appear to apply. This means that the usual rule that specific acts may be

use[d] only on cross-examination apparently is not applicable.

Accordingly, in a criminal case where there is some evidence suggesting

that the victim was the first aggressor, the defendant may offer proof of the

victim’s prior violent acts with third persons. Such proof may be presented

on direct examination.

Neil P. Cohen et al., Tennessee Law of Evidence § 4.04[5][d] (6th ed. 2011).

Regardless of whether Rule 405 applies, “evidence [of the victim’s prior acts in

support of a defendant’s claim of self-defense in a case where first aggressor has been

raised by the proof] is ‘at minimum, subject to the balancing test set forth in Tennessee

Rule of Evidence 403.’” State v. Samuel Sherrill, No. M2009-01979-CCA-R3-CD, 2011

WL 1564009, at *7 (Tenn. Crim. App. Apr. 21, 2011), perm. app. denied (Tenn. Aug. 26,

2011) (quoting State v. Marquette Houston, No. W2006-00095-CCA-R3-CD, 2007 WL

1890650, at *8 (Tenn. Crim. App. June 29, 2007), perm. app. denied (Tenn. Nov. 19,

2007)).

Relevant evidence is “evidence having any tendency to make the existence of any

fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” Tenn. R. Evid. 401. All relevant

evidence, subject to certain exceptions, is generally admissible under Rule 402 of the

Tennessee Rules of Evidence. Relevant evidence may be excluded under Rule 403,

however, if “its probative value is substantially outweighed by the danger of unfair

prejudice[.]” Tenn. R. Evid. 403.

Questions regarding the relevancy of evidence lie within the discretion of the trial

court, and the appellate courts will not “interfere with the exercise of that discretion

unless a clear abuse appears on the face of the record.” State v. Franklin, 308 S.W.3d

799, 809 (Tenn. 2010) (citing State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007)).

Evidence of the victim’s prior bad acts involved in his kidnapping convictions was

arguably relevant to support the Defendant’s claim that the victim was the first aggressor

and that she acted in self-defense. Whether the probative value of the evidence was

substantially outweighed by the danger of unfair prejudice, however, is a much closer

question. On the one hand, the prior bad acts involved kidnappings and a murder that

was allegedly committed in retaliation for the victim’s having been wronged in a criminal

enterprise, which would tend to bolster the Defendant’s claim that the victim attacked her

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because he believed she was cutting him out of the drug transactions. On the other hand,

the victim’s crimes were committed not just years, but decades earlier. Given the great

length of time since the events, we can find no abuse of discretion in the trial court’s

exclusion of the evidence on the basis that its probative effect was substantially

outweighed by the danger of unfair prejudice. Cf. Samuel Sherrill, 2011 WL 1564009, at

*7-8 (concluding that the trial court committed harmless error in excluding evidence of

victim’s prior bad acts that occurred approximately three and four years before the

victim’s death).

Even if we agreed with the Defendant that the testimony about the specific bad

acts of the victim should have been admitted, we would have no hesitation in concluding

that the proof against the Defendant was so overwhelming that any error in excluding the

testimony was harmless beyond a reasonable doubt. The proof in this case was that the

victim, at the time of his death, was a morbidly obese, elderly man experiencing heart

problems who had just been released from a nursing facility and who had to use a rolling

walker or a cane to ambulate. The proof also showed that the victim was struck from

behind in the back of his head and that the knife found in his hand was planted there by

the Defendant after his death. Moreover, multiple witnesses, including the retired FBI

agent, were allowed to testify that the victim had been convicted of aggravated

kidnapping, which involved a murder, and that he was on parole at the time of his death.

We, therefore, conclude that the trial court properly excluded the agent’s proposed

testimony of the facts surrounding the victim’s convictions and the victim’s alleged threat

to the agent’s life.

II. Special Jury Instruction

The Defendant next contends that the trial court erred by granting the State’s

request for a special jury instruction regarding the victim’s having become “disarmed or

helpless” during the killing. Specifically, the Defendant complains of the following

sentence that the trial court inserted at the end of a paragraph about when the use of force

against a “first aggressor” victim would no longer be justified: “If the deceased had

become disarmed or helpless, or all danger to the defendant had disappeared, then the

defendant’s right to self-defense would not justify her further use of force.” The

requested sentence was part of the pattern jury instruction on self-defense prior to 2007

but was not included in the 2007 amendments to the instruction. See 7 Tenn. Prac.

Pattern Jury Instr. T.P.I.-Crim. 40.06(b).

The Defendant argues that the deletion of the sentence from the pattern jury

instructions indicates that the sentence is not a correct statement of the law and that its

inclusion therefore prejudiced her right to a fair trial by undermining her defense theory

of self-defense. She asserts that “[j]ust because an alleged victim becomes ‘disarmed or

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helpless’ during an encounter does not automatically mean that a defendant’s right to

self-defense would not justify any further use of force.” In support, she cites evidence of

the victim’s immense size and his threat of harm to her and her children at the hands of

his criminal “wise guy” associates.

The State argues, among other things, that the language inserted by the trial court

is still an accurate statement of Tennessee law, which has long held that there must be a

threat of imminent harm or death at the time of the killing in order to justify a killing in

self-defense. As such, the State responds to the Defendant’s claim about the threat posed

by the victim’s alleged “wise guys” by arguing that it was not the sort of immediate or

imminent threat that would excuse the Defendant’s actions in killing the victim. We

agree with the State.

“It is well-settled in Tennessee that a defendant has a right to a correct and

complete charge of the law so that each issue of fact raised by the evidence will be

submitted to the jury on proper instructions.” State v. Farner, 66 S.W.3d 188, 204 (Tenn.

2001) (citing State v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000); State v. Teel, 793

S.W.2d 236, 249 (Tenn. 1990)). Accordingly, trial courts have the duty to give “a

complete charge of the law applicable to the facts of the case.” State v. Davenport, 973

S.W.2d 283, 287 (Tenn. Crim. App. 1998) (citing State v. Harbison, 704 S.W.2d 314,

319 (Tenn. 1986)). Tennessee law does not mandate that any particular jury instructions,

or “pattern instructions,” be given so long as the trial court gives a complete charge on

the applicable law. See State v. James, 315 S.W.3d 440, 446 (Tenn. 2010); State v.

West, 844 S.W.2d 144, 151 (Tenn. 1992). An instruction will be considered prejudicially

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

applicable law. State v. Faulkner, 154 S.W.3d 48, 58 (Tenn. 2005) (citing State v. Vann,

976 S.W.2d 93, 101 (Tenn. 1998)).

The pattern jury instructions are not controlling. See James, 315 S.W.3d at 446

(“Trial courts are not limited to the mere recitation of the pattern instructions.”) (citation

omitted); State v. Hodges, 944 S.W.2d 346, 354 (Tenn. 1997) (“[P]attern jury instructions

are not officially approved by this Court or by the General Assembly and should be used

only after careful analysis. They are merely patterns or suggestions.”).

When considering this issue, the trial court noted that the preface to the pattern

jury instructions states that the pattern instructions “are not intended to provide

instructions applicable without change to every case” and instead “are meant to provide

judges and lawyers with models of instructions designed to aid in juror comprehension.”

See T.P.I.-Crim. Preface. The court also noted the evidence in the case that the victim

was still alive at the time the cut to the jugular vein was made, along with the

Defendant’s contradictory accounts in her statement and during her trial testimony about

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the victim’s condition at the time she stabbed him. Finally, the court observed that this

court has cited the challenged language either with approval or without negative

comment in cases that were tried after the change to the pattern jury instructions. See

State v. Mark Hines, No. W2009-00450-CCA-R3-CD, 2010 WL 4286132, at *11 (Tenn.

Crim. App. Oct. 27, 2010), perm. app. denied (Tenn. Apr. 14, 2011); State v. Anthony

Eugene Poole, No. M2010-01179-CCA-R3-CD, 2012 WL 826605, at *5-7 (Tenn. Crim.

App. Mar. 9, 2012), perm. app. denied (Tenn. Aug. 16, 2012).

A trial court’s denial of a request for special jury instructions is error only when

the trial court’s charge does not fully and fairly state the applicable law. State v. Cozart,

54 S.W.3d 242, 245 (Tenn. 2001). Given the evidence in this case, we conclude that the

trial court did not err in granting the State’s request for the special jury instruction at

issue.

III. Crime Scene and Autopsy Photographs

The Defendant next contends that the trial court erred by admitting eight unfairly

prejudicial crime scene and autopsy photographs. She argues that the medical examiner’s

testimony and autopsy report were more than adequate to describe the extent of the

victim’s injuries without admission of the inflammatory autopsy photographs. Similarly,

she argues that testimonial evidence provided by the officers who responded to the crime

scene was sufficient to describe for the jury the location of the blood spatter, the body,

and the apartment layout without the admission of gruesome crime scene photographs.

The admissibility of photographs generally lies within the sound discretion of the

trial court and will not be overturned on appeal absent a clear showing that the trial court

abused its discretion. Faulkner, 154 S.W.3d at 67; State v. Banks, 564 S.W.2d 947, 949

(Tenn. 1978). “Tennessee courts follow a policy of liberality in the admission of

photographs in both civil and criminal cases.” State v. Morris, 24 S.W.3d 788, 810

(Tenn. 2000). In determining whether a photograph is admissible, the trial court must

first determine whether it is relevant to a matter at issue in the case. See Tenn. R. Evid.

401; Vann, 976 S.W.2d at 102; Banks, 564 S.W.2d at 949. The court must next consider

whether the probative value of the photograph is “substantially outweighed by the danger

of unfair prejudice, confusion of the issues, or misleading the jury.” Tenn. R. Evid. 403.

In a pretrial hearing, the trial court carefully reviewed a large number of crime

scene and autopsy photographs before ruling on each one’s admissibility. The court

excluded some of the photographs as cumulative and others as too graphic or

unnecessary. The court admitted the eight photographs at issue on the grounds that they

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were relevant to issues at trial and their probative value was not substantially outweighed

by the danger of unfair prejudice.

We find no abuse of discretion in the trial court’s admission of the photographs.

Four of the photographs are crime scene photographs that show: the victim’s body lying

across the bed with blood spatter on the bed and wall beside him; a closer view of the

torso showing the cuts to the neck and blood around the shoulder and neck area; another

view of the body showing the lack of blood spatter in the area around the chest of

drawers behind the victim’s head; and a view of the large pool of blood that formed

beneath the victim’s body.

The four autopsy photographs consist of: two views of the cleaned-up victim’s

head showing the wounds to his eyes and top of his head; a view of the victim’s cleaned

torso and head showing the bruises and wounds to his arms and the top of his hand; and a

very clinical-appearing view, with the scalp apparently pulled back but not visible, of the

indentation or caved-in portion on the top of the victim’s skull. Although not pleasant,

none of the photographs are unduly gruesome. In our view, they were relevant and

admissible to support the State’s position that the victim was struck from behind and was

still alive and bleeding at the time his throat was cut. We, therefore, conclude that the

trial court properly admitted the photographs.

IV. Sufficiency of the Evidence

Lastly, the Defendant contends that the evidence is insufficient to sustain her first

degree murder conviction, arguing that the proof failed to establish that she acted with

premeditation when she killed the victim. In support, she cites, among other things, the

victim’s imposing size, the victim’s violent history and reputation in the community for

violence, the State’s failure to show a motive for the crime, and her own testimony about

the victim’s having threatened her and her children with a knife and with his criminal

“wise guys” associates. The State argues that evidence of the Defendant’s premeditation

was overwhelming, and the jury was well within its province to disbelieve her claim of

self-defense. We agree with the State.

In considering this issue, we apply the rule that where sufficiency of the

convicting evidence is challenged, the relevant question of the reviewing court is

“whether, after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Tenn. R.

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App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury

shall be set aside if the evidence is insufficient to support the findings by the trier of fact

of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn.

1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992).

All questions involving the credibility of witnesses, the weight and value to be

given the evidence, and all factual issues are resolved by the trier of fact. See State v.

Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury,

approved by the trial judge, accredits the testimony of the witnesses for the State and

resolves all conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474,

476 (Tenn. 1973). Our supreme court stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and the

jury see the witnesses face to face, hear their testimony and observe their

demeanor on the stand. Thus the trial judge and jury are the primary

instrumentality of justice to determine the weight and credibility to be

given to the testimony of witnesses. In the trial forum alone is there human

atmosphere and the totality of the evidence cannot be reproduced with a

written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 370 S.W.2d 523

(1963)).

“A jury conviction removes the presumption of innocence with which a defendant

is initially cloaked and replaces it with one of guilt, so that on appeal a convicted

defendant has the burden of demonstrating that the evidence is insufficient.” State v.

Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

For the purposes of this case, first degree murder is defined as “[a] premeditated

and intentional killing of another[.]” Tenn. Code Ann. § 39-13-202(a)(1)

“Premeditation” is

an act done after the exercise of reflection and judgment. “Premeditation”

means that the intent to kill must have been formed prior to the act itself. It

is not necessary that the purpose to kill preexist in the mind of the accused

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

the accused allegedly decided to kill must be carefully considered in order

to determine whether the accused was sufficiently free from excitement and

passion as to be capable of premeditation.

Id. § 39-13-202(d).

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The “element of premeditation is a question of fact” for the jury to determine

based upon a consideration of all the evidence. State v. Suttles, 30 S.W.3d 252, 261

(Tenn. 2000) (citing State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997)).

“[P]remeditation may be established by any evidence from which a rational trier of fact

may infer that the killing was done ‘after the exercise of reflection and judgment’ as

required by Tennessee Code Annotated section 39-13-202(d).” State v. Davidson, 121

S.W.3d 600, 615 (Tenn. 2003). A jury may infer premeditation from circumstantial

evidence surrounding the crime. See State v. Pike, 978 S.W.2d 904, 914 (Tenn. 1998);

State v. Addison, 973 S.W.2d 260, 265 (Tenn. Crim. App. 1997). There are several

factors which our courts have concluded may be evidence of premeditation: “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. An additional factor from which a jury may infer

premeditation is evidence establishing a motive for the killing. See State v. Nesbit, 978

S.W.2d 872, 898 (Tenn. 1998). Motive, however, is not a required element of the crime.

See State v. Bell, 512 S.W.3d 167, 191 (Tenn. 2015).

The Defendant first argues that the evidence supports her claim that she acted in

self-defense when she killed the victim. In support, she relies primarily on her own

testimony about the victim’s actions and threats, along with the victim’s violent criminal

history in association with “gangster” associates. Tennessee Code Annotated section 39-

11-611, the self-defense statute, provides that the use of force, including deadly force,

may be justified when a person has a reasonable belief that there is an imminent danger

of death or serious bodily injury. Tenn. Code Ann. § 39-11-611(b)(2)(A). Whether a

defendant acted in self-defense is a question of fact for the jury to determine. See State v.

Clifton, 880 S.W.2d 737, 743 (Tenn. Crim. App.1994); State v. Ivy, 868 S.W.2d 724, 727

(Tenn. Crim. App. 1993).

The jury heard the testimony of the Defendant about her knowledge of the

victim’s past, the victim’s character, and the victim’s violent behavior and threats to her

life on the night of the killing. The jury also heard testimony of various other witnesses

about the victim’s reputation in the community for violence, his violent and criminal

character, and his history of violent crime. Despite this testimony, the jury convicted the

Defendant of the first degree premeditated murder of the victim, evidencing that it did not

find the Defendant’s claim of self-defense credible. This was its prerogative as the trier

of fact.

The Defendant argues that even if the evidence does not support her defense of

self-defense, it also does not show that she was sufficiently free from passion and

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excitement to be capable of forming premeditation at the time of the killing. In support,

she cites the State’s failure to prove a motive for the crime, as evidenced by the jury’s

acquitting her of the theft and felony murder counts of the indictment. She also again

cites her testimony about the victim’s having cornered her on the floor of his bedroom

and threatened her life with a knife.

We conclude, however, that the evidence was sufficient for the jury to find that the

Defendant acted with premeditation in her killing of the victim. When viewed in the light

most favorable to the State, the proof establishes that the 35-year-old Defendant struck

the 69-year-old morbidly obese, semi-invalid victim from behind with a severe blow to

the top of the head with a hammer, beat him savagely about the head and torso with the

hammer, cut his jugular vein with a knife after he was rendered unconscious by the blows

to his head, planted a weapon in his dead hand, cleaned the scene using latex gloves she

brought with her and a bleach cleanser, removed and buried evidence, and purposefully

misdirected law officers in their investigation. From all of this evidence, a rational jury

could have found beyond a reasonable doubt that the Defendant committed a

premeditated and intentional killing of the victim. Accordingly, we affirm the

Defendant’s conviction for first degree premeditated murder.

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the judgments of the

trial court.

____________________________________

ALAN E. GLENN, JUDGE

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