State of Tennessee v. Martha Ann McClancy

08/09/2019

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs February 26, 2019

STATE OF TENNESSEE v. MARTHA ANN MCCLANCY

Appeal from the Criminal Court for Monroe County

No. 13-307 Andrew M. Freiberg, Judge

No. E2018-00295-CCA-R3-CD

The defendant, Martha Ann McClancy, appeals her Monroe County Criminal Court jury

convictions of attempted first degree murder and conspiracy to commit first degree

murder, arguing that the trial court erred by denying her motion to suppress photographs

of the scene taken by her co-conspirator Charles Kaczmarczyk, her motion in limine to

exclude evidence of acts committed following the death of the victim, and her motion for

a mistrial; that the trial court erred by admitting photographs of the victim taken during

the autopsy; that the trial court’s making negative comments to and about her in front of

the jury deprived her of the right to a fair trial; that the evidence was insufficient to

support her convictions; and that the trial court erred by imposing consecutive sentences.

The State concedes, and we agree, that the trial court erred by imposing consecutive

sentences in this case. Instead, because Code section 39-12-106 prohibits the imposition

of dual convictions for two inchoate offenses designed to achieve the same objective, the

trial court should have merged the defendant’s convictions. Thus, we affirm the jury

verdicts, reverse the imposition of consecutive sentences, and remand the case for the

entry of corrected judgment forms reflecting that the convictions are merged.

Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed in Part; Reversed in

Part; Remanded

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which NORMA

MCGEE OGLE, and D. KELLY THOMAS, JR., JJ., joined.

Matthew Rogers, Athens, Tennessee, for the appellant, Martha Ann McClancy.

Herbert H. Slatery III, Attorney General and Reporter; Katherine Redding, Assistant

Attorney General; Stephen Bebb, District Attorney General; and Joseph McCoin,

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

OPINION

The Monroe County Grand Jury charged the defendant with first degree

premeditated murder and the defendant and Charles Kaczmarczyk with conspiracy to

commit first degree murder for the May 15, 2006 death of the defendant’s husband,

Robert J. McClancy.

Factual Overview

The evidence adduced at the defendant’s November 2015 trial established

that Mr. Kaczmarczyk befriended the victim while the two participated in a six-week

residential treatment program for veterans with post-traumatic stress disorder (“PTSD”).

The two remained close after the program ended, and Mr. Kaczmarczyk began visiting

the victim at the home he shared with the defendant. During this time, the defendant and

Mr. Kaczmarczyk began a romantic relationship, and the defendant began discussing

plans to kill the victim so that they could be together.

The defendant, who had agreed to be in charge of the victim’s medication,

indicated to Mr. Kaczmarczyk that she had been mixing medication into the victim’s

food. She asked Mr. Kaczmarczyk, who had been prescribed the same medication as the

victim, to bring more medication to the residence, and she and Mr. Kaczmarczyk secreted

the medication around the residence to make it appear as though the victim had been

hoarding it. When the victim was hospitalized for a drug overdose, both the defendant

and Mr. Kaczmarczyk told treating physicians that the victim had expressed suicidal

ideations. After the victim returned home following that hospitalization, the defendant

and Mr. Kaczmarczyk put into action a plan to overmedicate the victim and make it

appear as though he had committed suicide.

Mr. Kaczmarczyk telephoned 9-1-1 on May 15, 2006, to report that he had

discovered the victim’s body. Officers responding to the call found the victim’s lifeless

body in his recliner, a pill bottle in one hand and a pistol in the other. The area around

the victim was in disarray, and pills were strewn about. After officers discovered on a

digital camera belonging to Mr. Kaczmarczyk photographs of the victim’s body in a

variety of poses that indicated that the scene had been staged, Mr. Kaczmarczyk was

arrested and eventually charged with evidence tampering and criminally negligent

homicide. The photographs were later deemed inadmissible due to the failure to obtain a

warrant before searching the contents of the camera, and the charges against Mr.

Kaczmarczyk were subsequently dismissed.

The defendant and Mr. Kaczmarczyk moved in together and began

traveling extensively. The defendant applied for and received survivor’s benefits from

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the United States Department of Veteran’s Affairs (“VA”) and the United States Social

Security Administration (“SSA”). The defendant and Mr. Kaczmarczyk eventually

married and began a scheme to defraud the federal government. A federal investigation

led to their arrests and subsequent guilty pleas to theft in federal court. During the

pendency of the federal investigation, the defendant executed a durable power of attorney

giving her son authority to conduct her affairs while she was incarcerated. She also gave

her son several computers for him and his children to use. After one of the children

discovered a disturbing image on one of the computers, the defendant’s son examined the

contents of the computers and discovered the photographs of the victim that had

originally been taken by Mr. Kaczmarczyk’s camera. He contacted the federal

authorities, who, in turn, contacted the state authorities. He later turned the computers

and some documents over to the state authorities.

Upon questioning by the Tennessee Bureau of Investigation (“TBI”), Mr.

Kaczmarczyk implicated the defendant in the victim’s murder and admitted that they had

planned the murder together.

Trial

Jeffrey Colins, a former Monroe County 9-1-1 operator, testified that on

May 15, 2006, he answered a call shortly after 5 p.m. from 215 Unicoi Lake Road (“the

Coker Creek residence”) in Monroe County. A recording of that call was played for the

jury.

Monroe County Sheriff’s Office (“MCSO”) Patrol Officer Christopher

Logan Day responded to the 9-1-1 call, and when he arrived at the Coker Creek

residence, he “encountered Mr. Kaczmarczyk walking from the house up the driveway,

approximately halfway between the house and the road.” Officer Day patted Mr.

Kaczmarczyk down and instructed him to remain outside while Officer Day and his

partner conducted a sweep of the house. Upon entering the house, Officer Day observed

“white pills laying around in the floor” and “a lifeless body in a recliner” holding a

“pistol in his right hand” and “a pill bottle in his left[]hand.” The victim had “a cut or

abrasion[] on his forehead” that appeared to be recent to the time of death. The house,

“particularly around the kitchen, was certainly in disarray.” Officer Day observed a

number of pills and documents, one of which documents he believed to be a living will,

in the kitchen. Officer Day recalled that the defendant arrived “a little bit later,” but he

had only limited contact with her.

MCSO Detective Travis Jones also responded to the Coker Creek

residence, where he took photographs and gathered information. Detective Jones

identified photographs of the victim in the recliner. Detective Jones said that all the

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rounds were chambered in the pistol they took from the victim’s right hand. In the

kitchen, pills, a pill holder, and a do not resuscitate (“DNR”) order were lying on the

counter. He “collected all the pills that were strung about through the house, the pill

bottle in the hand and also the pistol.” Detective Jones said that the defendant arrived 30

to 40 minutes after he did and provided written consent to search the residence. The

defendant also gave Detective Jones “several different pieces of paperwork,” including “a

journal of what she kept about the events at the VA and different stuff.” The journal

contained a variety of odd entries written by the defendant.

Upon cross-examination by the defendant, Detective Jones testified that

Mr. Kaczmarczyk was originally charged in 2006 with evidence tampering and

criminally negligent homicide in relation to the victim’s death. Mr. Kaczmarczyk was

arrested at the scene on the day of the offense after Detective Jones viewed photographs

on Mr. Kaczmarczyk’s digital camera. Those photographs depicted the victim’s lifeless

body in a variety of staged scenes. Detective Jones acknowledged that another judge had

ruled that he should not have examined a digital camera without a search warrant and

had, in consequence, suppressed the photographs from the digital camera. All the

charges against Mr. Kaczmarczyk were dismissed after the photographs were suppressed.

Detective Jones also acknowledged that, in an interview conducted before

his May 15, 2006 arrest, Mr. Kaczmarczyk did not implicate the defendant in any foul

play. Mr. Kaczmarczyk admitted to Detective Jones that he took the photographs with

the digital camera and said that he had “staged the scene to make it look like a suicide so

Ms. McClancy could benefit more through the VA benefits.”

Charles Kaczmarczyk testified that he had pleaded guilty to a charge of

conspiracy to commit first degree murder in exchange for a 25-year sentence for his role

in the victim’s death. Mr. Kaczmarczyk testified that he met the victim in January 2006

when they both participated in a residential treatment program for PTSD at the VA

hospital in Nashville. Mr. Kaczmarczyk recalled that he and the other five program

participants, including the victim, “pretty much all . . . mirrored the same prescription

[medication] regimen,” which included “Clonagin, Mirtazapine and Trazodone.” He and

the victim became close during the program, and, after the program ended at the end of

February, Mr. Kaczmarczyk attended “a sort of reunion-type breakfast” for program

participants and their spouses hosted by the victim and the defendant at “their home in

Coker Creek.” Mr. Kaczmarczyk recalled that as the program participants discussed their

medication regimens and ongoing treatment programs on that day, he was struck by the

defendant’s detailed knowledge of the victim’s medication regimen. He said that he

“thought she was a pharmacist she knew so much about it.” He added, “It appear[ed] that

she knew each one of the medications, what the prescribed dosages were, when they

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should be taken, what the contraindications were, just more information than the average

person would have as far as medications.”

Mr. Kaczmarczyk testified that he and the victim stayed in touch following

the reunion breakfast and that, eventually, the victim invited him “to come back to his

place to visit him.” Mr. Kaczmarczyk said that he agreed to visit the victim because the

victim “was having some problems” and “his PTSD was possibly out of control.” He

said that when he went to visit the victim, the victim, who had been very energetic and

active during the residential program, had become “very lethargic.” Mr. Kaczmarczyk

continued to visit the victim and the defendant at the Coker Creek residence and began

attending the victim’s medical appointments at the VA. During this time, the victim

never expressed any suicidal thoughts to Mr. Kaczmarczyk.

Mr. Kaczmarczyk testified that the defendant initiated a sexual relationship

with him in April 2006. During that same period, the defendant cut her hair and died it

blond. The defendant told him that she had cut her hair “out of spite” because the victim

“liked long hair.” Toward the end of April 2006, the defendant added Mr. Kaczmarczyk

“as a card holder to the Discover card account” held by the victim and the defendant and

provided Mr. Kaczmarczyk with a card for his use. During their courtship, the defendant

“mentioned on several occasions that she would like to get rid of” the victim and said that

“if he went away,” she and Mr. Kaczmarczyk “could be together.”

At the end of April 2006, the victim was hospitalized at the VA hospital in

Johnson City following an apparent drug overdose. While the victim was hospitalized,

Mr. Kaczmarczyk attended “a family meeting” with the victim, the defendant, and the

victim’s treatment providers that “was an ongoing overview of what his continued

treatment would be when he was, in fact, released from the hospital.” He recalled that at

that meeting, the defendant agreed to be in charge of the victim’s medication and stated

that she would make sure that the victim took his medication as prescribed.

The victim was released from the hospital on May 13, 2006, and Mr.

Kaczmarczyk drove him home to the Coker Creek residence. That night, the defendant

prepared the victim’s favorite meal, but when the victim “complained that it didn’t taste

very well,” the defendant “put seasoning on it so that he would eat it.” Later that

evening, the defendant remarked to Mr. Kaczmarczyk “that she had used magic dust on

it,” which he interpreted to mean that she had put medication into the victim’s food. Mr.

Kaczmarczyk said that the victim’s demeanor changed from “alert and oriented to

somewhat lethargic, intoxicated, under the influence of drugs,” and Mr. Kaczmarczyk

attributed the change in the victim’s demeanor to the defendant’s tampering “with his

food and medications.” Mr. Kaczmarczyk maintained that the defendant managed the

victim’s medications at that time as she had been doing “everyday since he had been

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released from” the residential treatment program. Mr. Kaczmarczyk spent the night at

the Coker Creek residence with the victim and the defendant. The next day, May 14,

2006, the defendant told Mr. Kaczmarczyk that if he should happen to find the victim

dead, he should “keep it simple,” which Mr. Kaczmarczyk interpreted to mean that the

defendant wanted him to “make it look as natural as possible or make it look like a

suicide.”

Mr. Kaczmarczyk again spent the night at the Coker Creek residence. He

testified that he left the Coker Creek residence at approximately 6:45 a.m. on the

following morning to attend some appointments in Knoxville. He said that when he left

the residence, both the victim and the defendant were still there. The victim was in his

recliner, and “[h]e appeared to be somewhat lethargic.” When Mr. Kaczmarczyk

returned to the Coker Creek residence later that afternoon, he found the victim “sitting on

the floor with his pajamas kind of in a state of disarray.” The victim called Mr.

Kaczmarczyk by name and asked Mr. Kaczmarczyk “to help him get into his recliner

back in the living room.” Mr. Kaczmarczyk testified that he helped the victim into his

recliner and then went to get the victim a bottle of water. The victim “drank some of the

water. And at that point in time, he expired and vomited.”

Although he believed that the victim had died, Mr. Kaczmarczyk did not

immediately call 9-1-1. Instead, he “took some photos of the scene from the downstairs

area and also from the upstairs area with him lying in his recliner” and then placed a

bottle of pills . . . in his hand . . . and also a gun” before taking more photographs. He

testified that he put the gun in the victim’s hand because, during the residential treatment

program, the victim “mentioned on several occasions that if he died due to his previous

law enforcement experience, that he would like to die with a gun in his hand.” Mr.

Kaczmarczyk said that he also “emptied the pill keeper onto the table.” He took the DNR

order, which “was already on the table and had been since we returned from the hospital

on Saturday,” and placed it in a more prominent position. He said that he and the

defendant had planned for the victim to be found while she was at work “[s]o it would be

an alibi.” He said that their planning took place the day before the victim’s death.

Mr. Kaczmarczyk said that after the police found the photographs of the

victim on his digital camera, he was arrested and charged with obstruction of justice. Mr.

Kaczmarczyk acknowledged that he provided a statement to Detective Jones on the day

of the murder wherein he claimed that the victim was dead when he found him and that

he did not touch the victim, the pills, or the gun. In a second statement given that same

day, Mr. Kaczmarczyk admitted that the victim was just barely alive when he arrived and

that he had helped the victim to the recliner. He admitted that he “put the gun and the

pills in his hand to make the scene look worse. I thought it might increase his VA claim,”

explaining that the victim had been previously declared 30 percent disabled. Mr.

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Kaczmarczyk said that the defendant paid an attorney $50,000 to represent him. The

charges were eventually dismissed after a judge ruled that the photographs on the camera

were not admissible.

Following the victim’s death, the defendant applied for “a benefit called

DIC, which means dependent indemnity compensation through the VA. That was also

known as the widow’s pension.” Additionally, “based on the information that he

possibly had accidently overdosed, that it was the VA’s fault for them not managing his

medication better” the victim was retroactively declared 100 percent disabled, which

resulted in an award to the defendant of “one hundred percent what they call widow’s

pension.” He thought the amount was $3,000 per month. The defendant paid off a

$50,000 loan for Mr. Kaczmarczyk, and he moved into the Coker Creek residence with

the defendant. The defendant told him “that she had cut and pasted the will, [the

victim’s] original will, so that his sister . . . and his daughter . . . could not derive

anything financially from him.” On June 15, 2006, Mr. Kaczmarczyk and the defendant

opened a joint bank account. They were married on October 7, 2006, in Las Vegas,

Nevada, and then again on October 7, 2009, in Blue Ridge, Georgia. Mr. Kaczmarczyk

said that the defendant insisted upon the second ceremony, telling him it was “a woman

thing.”

The defendant and Mr. Kaczmarczyk traveled extensively after the victim’s

death, beginning with a June 2, 2006 trip to Atlanta for a Jimmy Buffett concert. Mr.

Kaczmarczyk identified the log of their travels kept by the defendant; the log included 27

separate entries. Mr. Kaczmarczyk testified that the defendant and the victim had never

traveled very much because the victim was “pretty much a recluse.” The defendant was

laid off from her job in September 2006, and Mr. Kaczmarczyk’s only sources of income

were disability benefits from the VA and the SSA. Despite this, the couple continued to

travel and even purchased a large motor coach in 2007. Sometime in 2010 or 2011, the

defendant spontaneously said to Mr. Kaczmarczyk, “If anybody finds out whatever really

happened to Bob, I will never see the light of day.”

Mr. Kaczmarczyk testified that, prior to the victim’s death, Mr.

Kaczmarczyk had placed a bag of pills into the victim’s gun safe after he and the

defendant decided that, if they “planted pills around the property, it would give more

credence to the fact that [the victim] had been misusing drugs, possibly committing

suicide.” He and the defendant invited the defendant’s son, Brian McGavic,1 to stay with

them in 2007, and they had arranged for Brian McGavic to discover the bag of pills in the

gun safe. Mr. Kaczmarczyk recalled that they told Brian McGavic “that there were pills

1

Both of the defendant’s sons testified at trial, and her son, Sean McGavic, also testified at the

hearing on the defendant’s motion to suppress. Given Sean McGavic’s role in the case, we will refer to

him as Mr. McGavic and to Brian McGavic by both his first and last names.

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in there, possibly pills that [the victim] may have used during his time of overdose,” and

Brian McGavic reported it to the police. Mr. Kaczmarczyk said that the pills discovered

in the safe had actually belonged to him and that he and the defendant hoped that the

discovery of the pills would operate in Mr. Kaczmarczyk’s favor with regard to the

charges that were pending against him at that time.

Mr. Kaczmarczyk, an Air Force veteran who served from 1972 until 2001,

testified that despite having served only “a single day in Southeast Asia in Vietnam,

which was the 29th and 30th of April in 1975 during the evacuation of Saigon,” he

portrayed himself as a war hero with a higher rank as part of “a hustle “ to get “benefits

and make money” without having to work. He said that he worked the “hustle” from

2005 to 2012 and that the defendant not only knew about his hustle but began one of her

own during their time together. The defendant claimed to be a retired colonel from the

United States Marine Corp and a former employee of the United States Department of

State. Mr. Kaczmarczyk acknowledged falsifying his service record in order to increase

the amount of benefits he received from the federal government and that he had pleaded

guilty to federal offenses for that action. He said that he had been ordered to pay

$659,000 in restitution to the various agencies from which he had obtained unearned

benefits.

Mr. Kaczmarczyk testified that the defendant filed to divorce him in 2012,

telling him “that if we got divorced and she was single, that it would be financially

beneficial for tax purposes and some reason.” Mr. Kaczmarczyk said that he “was

incarcerated at the time,” so her request “didn’t really bother [him] one way or the other.”

Mr. Kaczmarczyk testified that he provided a written statement to the TBI

on December 20, 2012, while he was serving a federal prison sentence. In the statement,

he said that the defendant had asked him “to bring over medication . . . and to mix the

prescription medications up so that it would look like [the victim] was stealing them from

me and saving them up.” He did as she asked. He said that he knew that the defendant

gave the victim “the drugs to overdose him, but . . . did not see her do this.” He

explained,

My first understanding is that she was overdosing him by

putting the medication in his food. Martha Ann told me that

she was going to overdose Bob so that we could be together,

and with his history of drug overdoses when she, quote, made

him go away, end of quote, it would look like just another

overdose that he had.

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The defendant began putting large quantities of medication in the victim’s food after the

victim returned home from the hospital on May 13, 2006. Mr. Kaczmarczyk said that he

knew that the defendant “was going to start medicating [the victim] heavily when we got

back to the house from the hospital and he would probably die soon.” He recalled that

the defendant “was specific about how and when she wanted” Mr. Kaczmarczyk to check

on the victim, asking him to check on the victim “at a specific time on the day that he

died” so that Mr. Kaczmarczyk “would find him dead and she would be at work with an

alibi.” Mr. Kaczmarczyk said that when the defendant told him when to check on the

victim on May 15, 2006, he “was pretty sure that she was going to give him a lethal dose

of the drugs because he was so close to dying anyway, and she was so specific about me

being there at a certain period of the day on that date.” He acknowledged that he staged

the scene with the pill keeper, the gun, and the DNR order. He said, “I thought it would

look better and more like he had committed suicide.”

Mr. Kaczmarczyk said that he was aware that the defendant had forged the

victim’s will by “manipulat[ing] the signature page of the will” and that she had done so

“because she didn’t want Bob’s sister who lived in Florida to get any of Bob’s assets.”

After the victim’s death, the defendant “was able to remove Bob’s name off of stocks that

were in both of their names” and that were worth “around a hundred thousand dollars or

more.”

Mr. Kaczmarczyk said that, as far as he knew, the defendant planned to kill

the victim so that they could be together and not for “financial reasons.” He added that

he “threw gas on the fire about that and told Martha Ann about now that Bob was dead

she needed to apply to get Bob’s Veterans Affairs benefits and his Social Security

benefits.”

Mr. Kaczmarczyk testified that, at some point, he had downloaded the

photographs of the victim onto his computer and then later deleted them.

During cross-examination, Mr. Kaczmarczyk admitted that the defendant’s

desire to be rid of the victim was initially “emotional” because they wanted to be

together. He acknowledged that, following the victim’s death, he came up with ways that

the defendant could benefit financially from the victim’s death. Mr. Kaczmarczyk

conceded that the victim “was very difficult with taking medications” as prescribed and

that, as far as he knew, the defendant “was administering all [the victim’s] medications

because he had a tough time doing it himself.”

Brian McGavic testified that he visited the defendant and Mr. Kaczmarczyk

in July 2007 and that he “was back and forth between [Mr. Kaczmarczyk’s] house in

Knoxville and Coker Creek” until he returned to Florida in September 2007. At that

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time, the defendant and Mr. Kaczmarczyk spent “[t]he majority of their time . . . in Coker

Creek.” Brian McGavic recalled a particular day when the defendant and Mr.

Kaczmarczyk asked him to locate a lost tool and told him where the tool might be

located. When Brian McGavic found the tool, he also found “a set of keys that would

unlock the spin combination on the” large gun vault in the garage. The defendant and

Mr. Kaczmarczyk gave Brian McGavic permission to open the vault and provided him

with the combination. The vault contained only “a grocery store bag full of loose

medications, mixed medications all out of their containers.” Brian McGavic testified that

the defendant and Mr. Kaczmarczyk reacted to the discovery with “shock and

exasperation” and asked Brian McGavic to contact the sheriff’s office. Although he

thought it was odd that they should ask him to telephone the police rather than place the

call themselves, he did as they asked. While waiting for the police to arrive, the

defendant and Mr. Kaczmarczyk set up “a card table and a couple of chairs . . . in the

middle of the driveway in front of the garage.” Mr. Kaczmarczyk “had a digital camera

and wanted to place himself . . . where he could take photographs of [Brian McGavic]

and this deputy together as the deputy was separating, identifying and inventorying the

medications that were found.” Brian McGavic testified that he found the behavior of the

defendant and Mr. Kaczmarczyk very unusual. When he inquired about their behavior,

they “explained that they had planned on filing a lawsuit against Monroe County and that

they were also planning on filing a lawsuit against” the VA and “that they were going to

use this in their cases against both.” Mr. McGavic said that “[w]ithout a doubt,” he had

come to believe that the defendant and Mr. Kaczmarczyk had manipulated him into

“accidentally” finding the medications.

James Timothy Bridges, Adjunct Pharmacy Programs Manager at the VA

Mountain Home Healthcare Center in Johnson City, testified that on February 23, 2006,

the victim received 15 30-milligram tablets of Mirtazapine. Mr. Kaczmarczyk received

30 45-milligram tablets of Mirtazapine on March 13, March 28, and May 9, 2006. Mr.

Kaczmarczyk filled prescriptions for Trazodone during this same period.

Martin Edward Smith, a pharmacist at the VA hospital in Murfreesboro,

testified that the victim received 45 15-milligram tablets of Mirtazapine on March 1 and

May 10, 2006, and that he was instructed to take one half pill each day. The victim

received 30 50-milligram Trazodone tablets on January 6, 2006, and 15 50-milligram

Trazodone tablets on January 13, January 23, and February 14, 2006. Mr. Kaczmarczyk

received 30 30-milligram tablets of Mirtazapine on January 24, January 30, March 7,

April 10, and May 5, 2006. Mr. Kaczmarczyk received 90 100-milligram tablets of

Trazodone on January 12, February 2, February 24, March 20, and April 24, 2006.

Doctor Darinka Mileusnic-Polchan, Chief Medical Examiner for Knox and

Anderson Counties and Medical Director of the Regional Forensic Center, testified that

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the victim’s autopsy was performed by Doctor Ronald Toolsie, who provided autopsies

in Monroe County at the time of the victim’s death. Doctor Mileusnic-Polchan testified

that she had reviewed not only Doctor Toolsie’s written autopsy report but had also

examined the photographs taken during the autopsy and at the scene, the “ancillary

studies, such as toxicology,” and the “cystologic slides, such as samples of tissue that was

taken at the time of the autopsy.” Based upon her review, Doctor Mileusnic-Polchan

concluded that the victim was in fairly good health aside from “a mild hypertension”

observable by looking at slides from his heart, kidney, and brain. She noted edema in the

victim’s lungs and brain, which could have been attributed to “hypoxia or a lack of

oxygen in the blood.”

The toxicology report indicated that Trazodone and Mirtazapine were

present in the victim’s system “in the toxic ranges.” Trazodone, which has a relatively

short half-life of three to seven hours, was present in the victim’s blood at 4200

nanograms per milliliter, which “was almost four times the maximum therapeutic range.”

Doctor Mileusnic-Polchan testified that it was her opinion that the Trazodone alone, even

in that amount, would not have caused the victim’s death. Mirtazapine, which has a very

long half-life of 20 to 40 hours, was present in the victim’s blood at 750 nanograms per

milliliter, more than seven times the maximum therapeutic range of 100 nanograms per

milliliter. She noted that Mirtazapine’s long half-life made it “easier to overdose with a

higher or more frequent dose.” She said that Mirtazapine was, in this instance, the

deadlier of the two drugs, explaining,

The Mirtazapine in this level I would be more comfortable

stating it as the only cause of death because it is definitely

more toxic as far as causing some side effects, side effects

being like a serotonergic syndrome or one of those, like

stimulus neurologic syndrome that individuals can overreact

because of chemical changes in the brain.

She added, “[T]he concentration of these particular drugs in this combination is definitely

deadly because of all the side effects that they can cause.”

Doctor Mileusnic-Polchan testified that the victim had no gastric contents,

which indicated that he had not eaten within a “minimum of six hours.” The absence of

pill fragments in the victim’s stomach indicated to Doctor Mileusnic-Polchan that the

victim had not ingested the Trazodone and Mirtazapine as whole or half tablets. She

observed that “a lot of these medications are in the tablet form that is designed for slow

release” and that crushing the tablet would defeat the slow release mechanism, which, in

turn, “might elicit sudden increase in the level of concentration.” Doctor Mileusnic-

Polchan said that, in a typical case of suicide by overdose, she would expect to “see a lot

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of granular substance in the gastric content[s]” as well as “a lot of fluids to help all those

drugs push down.” Neither was present in the victim’s autopsy. She added that she

would have expected “much larger levels [of drugs] because when there is intent and

there is an oral intake of the drugs, that elicits sudden surge of these mediations in the

blood stream, then the layers are much higher.” It was Doctor Mileusnic-Polchan’s

opinion that the victim “died of combination of the Trazodone and Mirtazapine, which is

the main cause of death.”

During cross-examination, Doctor Mileusnic-Polchan testified that brain

edema like that present in the victim “is going to be the result of a protracted death,

meaning that that is not sudden.” Her review of the victim’s hospital records from the

last hospitalization before his death showed that “the Mirtazapine and Trazodone were

not the drug that he was released with to go home.”

The defendant’s son, Sean Michael McGavic, testified that the defendant

initially told him that the victim had died as a result of several mini strokes:

[S]he said that he -- he was acting strange at the house and he

was starting to have mini strokes. And she loaded him -- put

him in her truck and took him to the hospital. And on the

way to the hospital, he had another several mini strokes and

she thought he died on the way to the hospital. And she had

to pull the truck over and resuscitate him. And she, I guess,

got him back and then got him to the hospital. And once he

got in the hospital, he passed away sometime at the hospital.

When Mr. McGavic later visited the defendant at the Coker Creek residence, the

defendant told him that the victim “had died of a heart attack at home.” Finally, in 2008,

the defendant told Mr. McGavic that the victim had died of a drug overdose.

Mr. McGavic testified that his relationship with the defendant had always

been tumultuous and that, at some point in 2008, he and the defendant stopped speaking.

In 2012, Mr. McGavic learned that the defendant and Mr. Kaczmarczyk were under

investigation for federal benefits fraud. He said that he contacted the defendant in

August or September 2012 after she was released on house arrest so that he could recover

property from her that had originally belonged to his father and paternal grandparents.

They began talking, and he went to help her clean out the Coker Creek residence. Mr.

McGavic testified that, at that time, the defendant, anticipating a stint in federal prison,

executed a durable power of attorney to allow him to conduct affairs on her behalf and

provided him with the deeds to the Coker Creek residence and the Knoxville residence

that she shared with Mr. Kaczmarczyk. She also gave him full control of all her

-12-

belongings, including three computers. When Mr. McGavic examined the contents of the

computers, he “found some photos on” one of the computers given to him by the

defendant “that . . . appeared to be [the victim] dead in different ways.” He contacted the

federal agents who were investigating the defendant at that time to alert them about the

photographs.

In January 2013, the defendant contacted Mr. McGavic and said that she

had been questioned about the victim’s death and “wanted [him] to come over right

away.” When he arrived, the defendant was in the downstairs bathroom with the radio on

“because she was afraid that . . . somebody [was] listening in.” She told Mr. McGavic

“that the TBI had come and questioned her about” the victim’s death and, referring to the

computers she had given him, said,

I don’t know if, you know, somebody is going to come to

your house to get anything. But if you could, you may want

to take those computers to . . . an IT person, to delete the

information, have him go through these computers that I gave

you and delete whatever is on them. And that way your kids

can use them . . . .

During cross-examination, Mr. McGavic testified that Mr. Kaczmarczyk

had signed the Knoxville residence over to the defendant and that the defendant had

added Mr. McGavic’s name to the deeds for both the Knoxville and the Coker Creek

residences before she began her federal prison sentence. Mr. McGavic clarified that he

had discovered the photographs of the victim on the computer before he had the

conversation wherein the defendant told him to delete the information on the computers.

Mr. McGavic maintained that the defendant and the victim had purchased the Coker

Creek residence using money awarded to Mr. McGavic “from a car accident” and money

that Mr. McGavic “had inherited from the time [he] was born.” He acknowledged that

the defendant had executed a quit claim deed to him for the Coker Creek residence,

insisting that it had been purchased with his money and that no one was living in it.

TBI Agent Josh Melton testified that he was contacted by federal agents,

who informed him “that there was information, intelligence information that might

pertain to a death.” He later received a written request for investigation from the Monroe

County District Attorney’s Office. After a brief conversation with Detective Jones,

Agent Melton “made the independent decision as TBI that we were not going to view”

the MCSO case file for the investigation of Mr. Kaczmarczyk.

Agent Melton spoke to Mr. McGavic, who indicated that he had computers,

electronic storage devices, and documents that had been given to him by the defendant

-13-

and that pertained to the death of the victim. Mr. McGavic surrendered to Agent Melton

documents and computers given to him by the defendant.

Among the documents was a durable power of attorney executed by the

victim and filed June 15, 2006 with the Monroe County Register of Deeds; the second

page of this document was marked with register book M172, page 769. Mr. McGavic

also gave Agent Melton a document purporting to be the victim’s last will and testament;

the second page of this document was also marked as register book M172, page 769.

Agent Melton observed,

[T]he Last Will and Testament in its entirety is, as a whole[,] .

. . a forgery. . . . [I]t has been manipulated, cut and pasted.

The book, page numbers are cut and pasted on each page

from the Durable Power of Attorney onto the will, on each

one of those pages, and then all the signature lines and the

filing dates are exactly the same on the end of the will as they

are on the Durable Power of Attorney.

He noted that the certified copy of the durable power of attorney on file with the Monroe

County Register of Deeds showed the book and page number at the bottom of each page.

Agent Melton said that, upon examining the certified document, he determined that the

durable power of attorney “was a real document that would have been . . . manipulated to

falsify that will” and that the book and page numbers on the document purporting to be

the victim’s last will and testament are actually those from the durable power of attorney.

Agent Melton also identified two marriage licenses for the defendant and

Mr. Kaczmarczyk, one issued in Las Vegas on October 7, 2006, and one issued in

Georgia on October 7, 2009.

Agent Melton interviewed the defendant in January 2013, and she told him

that the victim suffered from PTSD and “had a difficult time taking his prescription

medications as were prescribed to him.” She said that the victim “would skip taking

medications as prescribed and then try to make up for them by taking more later.” The

defendant added that the victim “had been called out by a nurse practitioner for not taking

his prescription medications correctly” while he was attending the six-week residential

treatment for PTSD. The defendant said that the victim had overdosed in April 2006 and

again at the end of April or beginning of May 2006. The defendant told Agent Melton

that Mr. Kaczmarczyk was present when the victim overdosed in May 2006, which led to

his death, and that he had taken photographs of the victim. She said that Mr.

Kaczmarczyk told her that he had moved the victim to a chair in the living room and

planned “to wait for her to get home so they could take him to the hospital as had been

-14-

done in the past.” She said that, after he called 9-1-1, Mr. Kaczmarczyk put the victim’s

“service revolver in [the victim’s] hand and sprinkled pills in his lap.” The defendant

said that Mr. Kaczmarczyk told her that he had staged the scene because he thought it

would help her obtain veteran’s benefits. The defendant said that after the victim’s death,

“she found pills stashed in several places” and that “[t]he pills that she found stashed

were different kinds of prescription pills mixed together.” She claimed that “she found

multiple bottles of these mixed pills while moving some egg cartons in the garage” and

“in an old washing machine in the laundry room.”

The defendant said that she had married Mr. Kaczmarczyk in October 2006

but that the two had separated in March 2007. They later renewed their vows in October

2009. The defendant specifically denied having had a romantic relationship with Mr.

Kaczmarczyk before the victim’s death.

The defendant acknowledged that she had given Mr. McGavic a durable

power of attorney to manage her affairs while she was incarcerated and that she had

given Mr. McGavic a computer from the Coker Creek residence and had given him “an

iMac computer to maintain that came from her residence in Knoxville.” She said that she

had instructed Mr. McGavic to retrieve the victim’s medical records from the Coker

Creek residence.

The defendant told Agent Melton that the victim had executed the will in

2004 before he had heart surgery, but she was not sure whether it had been filed at the

courthouse. She said that she had a hard copy of the will. Agent Melton acknowledged

during cross-examination that he could not establish that the will was forged prior to the

victim’s death.

Kathy Inzerillo, the victim’s sister, testified that she remained in regular

contact with the victim after he and the defendant moved to Tennessee from Florida in

1997 and that she visited him in Tennessee at least once a year. Ms. Inzerillo insisted

that the victim had never expressed any suicidal ideation to her. Ms. Inzerillo testified

that she received an email from the defendant’s work email address at 8:48 a.m. on the

day of the victim’s death. In the email, the defendant described the victim as having

violent mood swings following his return from the hospital. She told Ms. Inzerillo that

the defendant’s medication made him extremely lethargic and drowsy. Ms. Inzerillo

recalled that the defendant telephoned her on the day of the victim’s death and said that

the victim “had overdosed himself.” Ms. Inzerillo and her husband traveled to Tennessee

for the victim’s funeral, and the defendant arranged for them to meet Mr. Kaczmarczyk

while they were there.

-15-

Ms. Inzerillo testified that she did not know that the defendant was in a

relationship with Mr. Kaczmarczyk, but she “knew something was going on because,”

when questioned, the defendant “came up with this job that she had and she would be

gone.” Ms. Inzerillo testified that she communicated with the defendant by email on

October 6, 2006, and that the defendant claimed to have been “at Nellis Air Force Base

on a training assignment.” The defendant told Ms. Inzerillo that she was going “to go to

Key West Naval Air Station on November 1st. There is supposed to be quite a

deployment into the station at that time and I will get yet a different type of training.”

Ms. Inzerillo testified that she received a letter from the defendant on October 6, 2006,

with a return address of Nellis Air Force Base in Nevada. The defendant wrote that she

had gotten a job working for the Secret Service and that she was anticipating an

“overseas assignment.” Of her new job, the defendant said:

I didn’t apply for this job. I actually got recruited. I

am sure you remember that I hired a private investigator to

help me after Bob died. He is a retired field supervisor with

the FBI. He was talking to one of his cohorts in Washington

one day and mentioned that he was working with a lady in

East Tennessee who he wished had been a part of his unit

when he was active. He told him how impressed he was with

my abilities in different areas and the fact that I had worked

law enforcement a number of years ago. He also told the

fellow that I was wasting my time in a Podunk town with a

deadend job. And since my husband had died and left me

with no money and no benefits, he wished I had a better

opportunity. The fellow here in Washington told him about

this job and it sounded like I would be perfect for it. So, yes,

there is no doubt about it, I was truly in the right place at the

right time. They pulled strings and here I am.

When Ms. Inzerillo asked if she ever heard “from that Chuck fellow at all,”

the defendant replied, “Yes, I hear from him everyday,” but she did not tell Ms. Inzerillo

that they had been married. When Ms. Inzerillo asked the defendant whether she had

listened to the 9-1-1 call and whether she thought Mr. Kaczmarczyk’s behavior following

the victim’s death was odd, the defendant said that she had listened to the recording but

did not believe Mr. Kaczmarczyk’s behavior to be odd.2

2

Other emails indicated the depth of the defendant’s deception regarding the alleged Secret

Service job. Following the admission of these emails, the trial court called a jury out hearing and stated

its opinion that none of the emails was admissible and questioned why defense counsel had not objected

to their admission. The trial court questioned the relevance of the emails as anything other than an

attempt to inflame the jury.

-16-

Ms. Inzerillo testified that she received a letter from the defendant in

September 2007 appended to which was a copy of a letter the defendant had sent to the

victim’s daughter and a copy of what purported to be the victim’s will. In the letter, the

defendant accused Ms. Inzerillo of defying the victim’s “wishes that [the victim’s

daughter] not be contacted, made aware of his death.” The defendant called Ms. Inzerillo

“a busy-body and a know-it-all” because she had contacted the victim’s daughter. The

defendant said that she was surprised to think that Ms. Inzerillo thought the victim

“would . . . ever leave anything -- everything that we owned unprotected and vulnerable

to his no-good, lazy daughter and her worthless husband.” The defendant repeatedly

emphasized that the cause of the victim’s death was an overdose of his prescribed

medication and expressed outrage that Ms. Inzerillo did not agree. In the will appended

to the letter, the victim left everything to the defendant, one dollar to his daughter and

both of his stepsons, and purposefully disinherited his mother and sisters.

The victim’s daughter, Teresa Guinn, testified that she had not actually

spoken with the victim since the spring of 2003 and that her last contact with him was an

email birthday card she received from him and the defendant in February 2006. Ms.

Guinn insisted, however, that she had telephoned the victim on Christmas Day 2006 and

left a message on the answering machine. Ms. Guinn testified that, at some point, Ms.

Inzerillo called her and told her that the victim had died. Ms. Guinn said that she

immediately telephoned the defendant and left a message but received no reply. Ms.

Guinn acknowledged that she later wrote the defendant a letter wherein she indicated that

an attorney had told her that she had “a 50 percent right to all” of the victim’s

“[b]elongings ranging from personal momentos [sic], household items, farm equipment,

his 2003 F-250 truck and so forth” and that she wanted to discuss with the defendant how

she “would like to go about dividing his things.” Ms. Guinn said that she also expressed

her interest in owning the Coker Creek residence in the letter. The defendant responded

with a letter, a copy of the victim’s will, and a money order for $1. The defendant

pointed out that Ms. Guinn’s relationship with the victim was acrimonious and that the

two did not talk often. Ms. Guinn conceded that she later learned that she was not

entitled to any of her father’s belongings.3

Deborah K. Hartman testified that she and her husband were friends of the

defendant and the victim and that they “spent a great deal of time with them.” Ms.

Hartman recalled that, before the victim went to the PTSD program in Nashville, “[h]e

was the life of the party,” but that changed when he returned. He came to visit the

Hartmans’ home less and less while the defendant and Mr. Kaczmarczyk started coming

3

Out of the hearing of the jury, the trial court questioned the relevance of Ms. Guinn’s testimony

but noted that the defendant had not objected to its admission.

-17-

to their home together. During that same period, the defendant changed her appearance,

cutting her long gray hair and dyeing it blond. The defendant told Ms. Hartman that the

victim was “very, very upset, that he liked long hair and was not happy with the short.”

Ms. Hartman said that the new haircut made the defendant look 10 years younger.

After the victim’s death, the defendant stayed with Ms. Hartman for “three

or four days until . . . they gave her permission to go back to the house.” On the day

following the victim’s death, the defendant spent several hours on the telephone trying to

obtain the services of a lawyer for Mr. Kaczmarczyk.

The defendant and Mr. Kaczmarczyk often traveled with the Hartmans after

the victim’s death. Ms. Hartman recalled that the defendant and Mr. Kaczmarczyk

bought “a large motor coach” and that the defendant bought “some beautiful diamond

earrings.” She said that the defendant’s lifestyle improved dramatically. While on a

cruise with some other friends in 2008, Ms. Hartman asked the defendant if she intended

to marry Mr. Kaczmarczyk, and the defendant replied, “No, I can’t do that because I

would lose Bob’s annuity, police annuity if I would get re-married.” About a month after

they returned from the cruise, the defendant and Mr. Kaczmarczyk told Ms. Hartman that

they planned to get married as soon as the defendant turned 65.

SSA Special Agent Thomas Goldman testified that he investigated the

defendant to determine whether she had obtained any benefits by fraud. Agent Goldman

described the so-called widow’s pension as a survivor’s benefit payable as a $255.00

lump sum plus a monthly payment based on the deceased spouse’s payment record. He

said that a surviving spouse could also be eligible for a back payment of Social Security

Disability benefits approved after the death of their spouse. He noted, however, that

remarriage before age 60 would terminate both benefits. Agent Goldman testified that as

part of his investigation of the defendant and Mr. Kaczmarczyk, he checked to see

whether she “had filed for any benefits, specifically a lump sum death payment, or any

back payments that [the victim] may have been due for disability.” He learned that

shortly after the victim’s death, the victim’s claim for Social Security Disability benefits

based on his service-related PTSD had been approved and that the defendant received the

funds as a lump sum check for $24,010 along with the $255 death benefit. The defendant

also received a monthly benefit. Born on October 6, 1949, the defendant would have

stopped receiving any of these benefits if she remarried before October 6, 2009.

During cross-examination, Agent Goldman agreed that the victim had

applied for the disability benefits that resulted in the lump sum payment long before his

death and that that money would have been paid regardless of his death. He clarified

during redirect examination, however, that the victim’s death was a factor in his being

declared 100 percent disabled as a result of his PTSD.

-18-

VA Special Agent Nathan Landkammer testified that, at the time of his

death, the victim was receiving a 30 percent disability benefit from the VA but that the

amount “eventually increased to 100 [percent] after his death.” He said that although the

victim had some claims pending when he died, it was the claim filed by the defendant

following the victim’s death that raised the benefit from 30 to 100 percent. Agent

Landkammer said that a program through the VA “for surviving family members of

deceased military veterans who receive compensation benefits . . . entitles the surviving

spouse to receive this monthly monetary benefit” for the rest of his or her life provided

that the surviving spouse does not remarry before turning 57 years old. He noted that the

defendant and Mr. Kaczmarczyk were married one day after the defendant’s 57th

birthday.

Agent Landkammer testified that on at least 13 separate occasions during

his stay in the six-week in-patient treatment program, the victim denied having suicidal

ideation. He noted that the treatment notes in the victim’s file from the Mountain Home

VA facility indicated that the defendant called the facility on May 18, 2006, to report that

the victim had died from a likely drug overdose. The defendant also reported “that she

had been administering his medications since his [discharge] from E2 two days

previously and following instructions per this author’s note of 5/5/06.” The treatment

notes from May 13, 2006, indicate that the victim told his treating physician that the

defendant had “‘cleaned the house of medications’” and that the overdose that led to his

hospitalization at the beginning of May was a mistake and not intentional. The victim

stated at least 50 times that he did not have any suicidal ideation.

During cross-examination, Agent Landkammer conceded that the intake

notes for the victim’s last hospitalization indicated that the victim’s “friend claimed that

he had a history of overdose, and . . . that the spouse said that he had told her he was

attempting suicide.” The victim had another suspected overdose in April 2006 but was

not admitted to the hospital that time.

Shelly Lanelle Peterson, Assistant Veterans Service Center Manager for the

VA Nashville Regional Office, testified that dependency and indemnity compensation is

a tax-free benefit paid to survivors of service members who die on active duty or “who

had a disability incurred or aggravated in service.” A typical benefit was $1,215.00 per

month. The defendant received dependency and indemnity compensation of

approximately $92,000, plus “a month of death benefit” equal to $2,500.00, plus “an

accrued benefit that was payable to her” of approximately $7,900.00. Ms. Peterson

testified that at the time of the trial, the defendant was still receiving a benefit, albeit at a

reduced rate due to her incarceration. Ms. Peterson said that at the time of his death, the

victim was receiving a 30 percent disability benefit. After his death, the percentage was

-19-

increased by 10 percent based upon a system-wide review of certain veterans. The

defendant then applied for an increase to 100 percent based upon the victim’s death. The

defendant’s request was granted.

Following this testimony, the State rested, and the defendant elected to

testify.

The defendant testified that the victim began struggling with PTSD before

they were married. After Mr. McGavic was seriously injured in a car accident, the victim

worked as his primary caregiver, and that seemed to trigger a recurrence in the victim’s

PTSD. The defendant said that she purchased the Coker Creek residence with proceeds

from the sale of the home she received as part of her first divorce settlement. She

recalled that she and the victim initially took out a $50,000 mortgage on the property for

the purpose of establishing good credit in the community, but they paid the mortgage off

quickly. The defendant said that she also paid cash for an additional five acres that

abutted the Coker Creek property. Despite these large cash outlays, the defendant

maintained that she still had significant liquid assets “from the original divorce, and some

of them from when [she] was a child.”

The defendant said that the victim eventually elected against the

defendant’s wishes to retire early because his PTSD was getting worse. She said that she

was forced to take a job with insurance and benefits because “retiree insurance” was so

expensive. She said that she and the victim also started a cleaning business and that the

victim performed lawn maintenance. She said that they also sold eggs from the chickens

that they raised, and she noted that she sold the eggs at a discount to poor people.

Eventually, the victim learned that he was entitled to veteran’s benefits

based upon his service in Vietnam. The victim finally began the process of obtaining

those benefits in 2003. Around that same time, the victim began visiting both a primary

care physician and a psychologist at a VA clinic in Knoxville. The defendant said that

the medication and therapy helped with the victim’s PTSD. When his improvement

seemed sporadic despite all the treatments, the victim admitted to the defendant that “he

was messing with his medicine.” She said that he stopped taking his medication when he

began to feel better, and then, when he started to feel bad again, “he just goes back and

gets a whole handful and takes it.” She said that “he did the same thing with the

psychotropic drugs that were prescribed for him for his PTSD.” The victim continued to

do this despite the defendant’s warning him to stop. The defendant said that the victim

refused to allow her to manage his medication at that time.

The defendant testified that the victim’s PTSD continued to worsen and

that, on one occasion in 2005, she awakened at 3:30 a.m. to find that the victim had left

-20-

the residence on foot. He arrived home at approximately 5 a.m. “in full military

camouflage” and carrying three weapons. She said that the victim told her that “he was

out walking the perimeter.” She recalled that, later that morning, the victim seemed to

“come to himself” and did not understand why he was dressed the way he was. At that

point, the victim admitted that he needed more help. Eventually, after the defendant

threatened to leave him, the victim entered the six-week PTSD program in Nashville.

The defendant testified that the victim called her “excited about . . . his

roommate,” Mr. Kaczmarczyk, whom he described as “a wonderful guy.” The victim

told the defendant at one point that he “had been called out in front of the class one day

for not taking his medication properly.” The class was apparently canceled after an

incident that involved Mr. Kaczmarczyk, and the victim was very upset that they didn’t

get to have their graduation. The defendant said that, when the victim returned from the

program, he was better in some ways “but in the majority of ways” he was not.

She and the defendant hosted a get-together for the program attendees at the

Coker Creek residence on the weekend after the program ended, and Mr. Kaczmarczyk

attended. The defendant said that the victim and Mr. Kaczmarczyk “stayed in very close

contact with one another,” talking on the phone daily and visiting each other’s houses.

Mr. Kaczmarczyk spent the night for the first time at the end of March 2006. At that

time, the victim seemed to be doing better and “appeared to be taking his medication

correctly.” The defendant recalled that the victim injured his back and had an incident

where he took too much pain medication. At the beginning of May, there was an incident

when she and Mr. Kaczmarczyk had difficulty waking the victim for dinner. They took

him to the emergency room, and the victim “admitted to them that he had taken too much

medication.” The victim was hospitalized, and, at the end of that hospitalization, the

victim agreed to allow the defendant to have control of his medication.

The victim came home on May 13, 2006. The defendant said that she was

“astonished that they were turning him loose and not making any effort to get him into a

long-term program.” She asked Mr. Kaczmarczyk to pick the victim up from the hospital

and drive him home. The defendant recalled that, when he got home, the victim “had a

deer in the headlight look” and thought he was “back in the 1970’s, after he had returned

from Vietnam.” On the following day, the victim fell on the stairs. The defendant

recalled that Mr. Kaczmarczyk stayed at the Coker Creek residence because he and the

victim were planning to go to Orlando for a reunion of their military unit. She said that

she and the victim argued because he would not let her apportion his medication for the

trip. She claimed Mr. Kaczmarczyk overheard the argument and told the victim to let the

defendant control the medication.

-21-

The defendant said that on the day of the victim’s death, the three of them

ate breakfast together, and then she left for work. Mr. Kaczmarczyk left at the same time

as she did to go to Knoxville to retrieve his things for the trip to Orlando. The defendant

said that when she returned home from work, she saw “emergency vehicles everywhere.”

The defendant said that the police would not allow her to enter the residence until several

days after the victim’s death and that she stayed with Ms. Hartman during that time. She

testified that she was shocked when she learned that Mr. Kaczmarczyk had been charged

in relation to the victim’s death. When the police told her that Mr. Kaczmarczyk had

altered the scene and taken photographs, she “didn’t understand why he would do

something like that.”

The defendant said that after Mr. Kaczmarczyk was released from jail, she

took him his truck and suitcase, and Mr. Kaczmarczyk denied having any involvement in

the victim’s death. He told her “that he made those pictures, that he sprinkled the pills

and the deal with the gun, because he wanted to make pictures that he thought would help

me with the V.A.” The defendant adamantly denied sprinkling medication on the

victim’s food: “That is an absolute, out and out lie. I never ground up any of his

medication. I never attempted to kill my husband. I didn’t want him dead. I still wish he

was around today.” She also denied discussing killing the victim with Mr. Kaczmarczyk:

“I don’t know where he has come up with this. I, I have my ideas but he’s never told me

where he cooked this up. I never heard this story before he and I were arrested in July of

2012.” She said that she had no reason to kill the victim for financial gain because she

had her own money.

The defendant claimed that she and the victim “had wills, living wills, and

powers of attorney that mirrored each other” and that they took all six documents to be

“witnessed and notarized” in January 2004. She said that “[t]he one document that in

shuffling all of the papers that we did not get signed and notarized was his will.” The

defendant said that she first realized that the victim’s will had not been signed or

notarized when she looked at it in August 2007. She claimed that Mr. Kaczmarczyk took

“the real will that [the victim] had drawn up and had cut and pasted it to fit the pages of

his power of attorney to where it looked like it had been signed and notarized, but it never

was. It was fake in that issue.” She insisted that “[t]he contents of the will were [the

victim’s] wishes but he never signed it the day that we were at the bank, and so that was

how the will got . . . falsified.” (ellipsis in original). She said that she did not object to

Mr. Kaczmarczyk’s altering the will and admitted that she had mailed a copy of the will

to Ms. Inzerillo and Ms. Guinn.

The defendant testified that shortly after the victim’s death, Mr.

Kaczmarczyk invited her to attend a Jimmy Buffet concert with him in Stone Mountain,

Georgia, and she went. She said that they shared a hotel room but not a bed during the

-22-

trip. After that trip, Mr. Kaczmarczyk continued to come to the Coker Creek residence to

help her with yard work and take care of the animals. The defendant agreed to loan Mr.

Kaczmarczyk the money to hire an attorney to represent him on the original Monroe

County charges related to the victim’s death. She insisted that they were not romantically

involved when she loaned him the money and maintained that they were not romantically

involved before the victim’s death. The defendant said that she agreed to travel to New

England with Mr. Kaczmarczyk to visit his family on the week of July 4, 2006, and she

became romantically involved with Mr. Kaczmarczyk during that trip.

The defendant testified that she agreed to marry Mr. Kaczmarczyk in

October 2006 because she needed back surgery but had been laid off from her job and, as

a result, had lost her health insurance coverage. She said that Mr. Kaczmarczyk offered

to add her to his insurance policy and agreed that they did not have to tell anyone that

they were married since it was “nothing but a business deal.” She said they were

romantically involved at the time but that she “wasn’t in love with the man.” The

defendant said that she lived with Mr. Kaczmarczyk at the Knoxville residence during the

winter of 2007, but the couple separated at some point after she saw an email that Mr.

Kaczmarczyk had written to another woman. The defendant testified that in May 2007,

while living alone at the Coker Creek residence, she “overdosed on some pills, and [Mr.

Kaczmarczyk] came in and came down to the house and found me.” After she “had

sobered up,” Mr. Kaczmarczyk told her that she needed to pursue psychiatric help at the

VA. At some point, the defendant mortgaged the Coker Creek residence to pay for the

motor coach. She finally agreed to “openly” marry Mr. Kaczmarczyk in October 2009.

The defendant admitted lying to Ms. Inzerillo about her having a job with

the Secret Service, saying, “I mean, it was just a hoax. That’s all in the world it was, was

a hoax to more or less get her to stop bugging me.” She said that she even sent letters to

Ms. Hartman’s daughter who lived in Maryland to have her mail them to Ms. Inzerillo to

make it look like the mail had originated in D.C. She said that she and Mr. Kaczmarczyk

“hatched that up together.”

After she and Mr. Kaczmarczyk were arrested and charged with federal

offenses, she hired a private investigator who found out that Mr. Kaczmarczyk was “a

fraud” and a “con man.” The defendant testified that she filed for divorce from Mr.

Kaczmarczyk in December 2012 after she spoke to the private investigator. After that,

Mr. Kaczmarczyk told “this wild concocted story of [her] having murdered [the victim]

for the first time.” The defendant added,

I did not kill Bob McClancy. I did not have anything to do

with killing Bob McClancy. I cannot tell you anything more

than what I know, that he died of a drug overdose. I know

-23-

that when he died, I begged Dr. Toolsie to please not put on

his death certificate that it was a suicide, because as a

Catholic, Bob could not have had a Catholic funeral if it had

been ruled a suicide, and I begged them not to do that. I said,

“None of us know what his state of mind was when this

happened.”

The defendant testified that two weeks before she was scheduled to be

released from federal custody, she was charged with murder in Monroe County and that

she had “sat in Monroe County jail for 76 weeks.”

During cross-examination, the defendant insisted that Mr. McGavic lied

when he said she had used proceeds from his civil settlement to pay for the Coker Creek

residence. She also said that Mr. McGavic lied when he said she told him the victim had

died of a stroke, but she admitted that she told “everybody at first that he had died of a

heart attack because I did not want that dirty linen aired that he had died of an overdose.”

The defendant denied telling personnel at the VA that she would agree to be in charge of

the victim’s medication, saying, “I remember telling them that I worked two jobs and

could not be in charge of it. That’s why they needed to keep him.” She acknowledged

that the log that she kept indicated that on Sunday, May 14, 2006, she woke the victim “at

6:30 in order to administer new drugs in manner mandated by Dr. Hendricks.” The

defendant admitted that in July 2007 she prepared a statement to the VA on behalf of Mr.

Kaczmarczyk that indicated that she was administering Mr. Kaczmarczyk’s medications

and that he was not doing well.

The defendant admitted that she had cut and died her hair but insisted that

she had not done so until after the victim’s death. She admitted that she had lied to the

victim’s daughter about the location of the victim’s ashes. She also conceded that she

had given the will and power of attorney documents to Mr. Kaczmarczyk so that he could

alter them and that she had sent the forged will to the victim’s family members.

Based upon this evidence, the jury convicted the defendant as charged of

conspiracy to commit first degree murder but convicted her of the lesser included offense

of attempted first degree murder in lieu of the charged offense of first degree

premeditated murder. Following a sentencing hearing, the trial court imposed

consecutive sentences of 25 years, the maximum within the range, for the defendant’s

convictions. The defendant filed a timely but unsuccessful motion for new trial followed

by a timely notice of appeal.

In this timely appeal, the defendant challenges the rulings of the trial court

with respect to her motions to suppress the photographs taken by Mr. Kaczmarczyk of the

-24-

victim following his death, to exclude evidence of acts committed by her and Mr.

Kaczmarczyk following the victim’s death, and to declare a mistrial when Agent Melton

commented on the defendant’s having terminated their January 2013 interview on the

advice of her counsel as well as the court’s ruling admitting into evidence photographs

taken of the victim during the autopsy. The defendant argues that certain of the trial

court’s comments amounted to an improper commentary on the evidence and that his

negative comments to and about her deprived her of the right to a fair trial. The

defendant challenges the sufficiency of the convicting evidence, arguing that the State

failed to present sufficient evidence to corroborate Mr. Kaczmarczyk’s testimony

implicating her in the victim’s murder and that even Mr. Kaczmarczyk’s testimony failed

to establish that they had planned to murder the victim in order to benefit financially.

Finally, the defendant contends that the trial court erred by imposing consecutive

sentences, arguing that her convictions should be merged because dual convictions

violate principles of due process. We consider each claim in turn.

I. Suppression

The defendant asserts that the trial court erred by denying her motion to

suppress the photographs of the victim taken shortly after his death by Mr. Kaczmarczyk.

She argues that, because the photographs were suppressed by a different trial judge in the

original case charging Mr. Kaczmarczyk with evidence tampering and criminally

negligent homicide, they should have been suppressed in her case as the fruit of the

original unconstitutional search. She also argues that Mr. McGavic lacked the authority

to give the computers that contained the digital images to the TBI because she had placed

them in his possession only for safekeeping. Finally, she asserts that the search warrant

was insufficient to permit the TBI to examine the contents of the computers.

At the suppression hearing, Detective Jones testified as he did at trial that

he responded to the 9-1-1 call placed from the victim’s Coker Creek residence. While at

the residence, Detective Jones observed photographs of the victim on a digital camera at

the scene. The photographs depicted “[the victim] in a recliner, appeared to be deceased,

and then there was some more photos, of the . . . same recliner, of [the victim] holding

the pill bottle. Then the other photo was [the victim] holding a pistol and a pill bottle.”

After observing the photographs, officers transported Mr. Kaczmarczyk to the sheriff’s

office, where Detective Jones interviewed him at approximately 10:00 p.m. Mr.

Kaczmarczyk was later placed under arrest, and he remained in custody for three days.

Detective Jones said that, after Mr. Kaczmarczyk was charged in the

victim’s death, Mr. Kaczmarczyk moved to suppress the photographs. The trial court

granted the motion, ruling that the police needed a search warrant to access the digital

camera at the scene. The suppression of these photos led to dismissal of the case.

-25-

Mr. McGavic testified that after the defendant had been charged in federal

court, she was placed on house arrest. While she was on house arrest at the Coker Creek

residence, she executed a durable power of attorney that granted Mr. McGavic authority

over all her affairs. She provided him with keys to both the Knoxville residence and the

Coker Creek residence. The defendant gave Mr. McGavic three computers and told him

that they were for him and his children to use; she told him to let the kids “have free reign

on” the Apple computers in particular. Mr. McGavic testified that after he let the

children use the computers, one of his children found a photograph of one of Mr.

McGavic’s nephews inside a casket following the nephew’s death. At that point, Mr.

McGavic decided to look through the rest of the photographs on each of the computers to

make sure the children didn’t find anything else that was inappropriate. He found

pictures of the victim in the computer’s “trash bin”; the victim appeared to be deceased.

In some of the photographs, the victim

had a gun in one hand and no gun, and the next picture he

didn’t have a gun. In one picture, he was laying a different

way or position, and in the next picture he was in another

position. In another photo, . . . the kitchen was in disarray,

and then the next photo, the kitchen was just fine. And then

in another photo, there were pills on the kitchen table, and in

the next photo, there weren’t pills on the kitchen table.

After observing the photographs, Mr. McGavic unplugged the computers

“and didn’t mess with them anymore.” He then contacted Agent Landkammer to report

what he had seen and to ask the agent to come and get the computers. Mr. McGavic later

gave the computers given to him by the defendant to Agent Melton. In a telephone

conversation after Mr. McGavic’s discovery of the photographs, the defendant told him

that he “should try to get rid of these photos off of the computers.” Later, during a face-

to-face visit, the defendant asked him “to have [his] I.T. friend delete the photos.”

During cross-examination, Mr. McGavic testified that the federal agents

“never looked in the computer” and refused to take possession of any of the computers.

He recalled that when Agent Melton came to retrieve the computers, he had a search

warrant and was accompanied by agents from the VA and SSA. He said that agents of

the TBI executed two search warrants, one dated November 15 and one March 15.

Agent Melton testified that he received information from the office of

special investigations for the VA and the SSA that the defendant had given Mr. McGavic

some computers that might contain information related to the victim’s death. Agent

Melton testified that although Mr. McGavic was eager to turn the computers over to the

-26-

TBI, he obtained warrants to search the defendant’s Knoxville residence, the McGavic

residence, and the contents of the computers and other digital media. Additionally, Agent

Melton asked both Mr. McGavic and his wife to execute consents to search the

computers, digital media, and documents that Mr. McGavic provided to Agent Melton.

Agent Melton testified during cross-examination that his investigation

began when agents of the VA and SSA conducting “an investigation completely

unrelated” to the victim’s death contacted the TBI. It was his understanding that, during

that investigation, documents were uncovered “that led suspicion to the fact that

potentially a death investigation should be opened.” Agents conducting the other

investigation contacted the United States Attorney’s Office, which “pointed them in the

direction of the State.” Later, agents of the SSA and the VA met with representatives of

the Monroe County District Attorney’s Office and the MCSO, “at which time a

determination was made that this was a case that needed [to] be investigated primarily by

the Tennessee Bureau of Investigation.” The case was then delegated to him because he

was assigned to Monroe County.

Agent Melton said that of particular interest to the authorities was “a Last

Will and Testament that they felt had been forged, and then a voluminous amount of

documents that had been submitted to Veterans Affairs . . . that appeared to be suspicious

in nature.” After Agent Melton was assigned to the case, he contacted Detective Jones to

find out what had led to the suppression of the evidence in the earlier case “so that we

could remain as sterile as we could with our investigation and not taint anything.” He

said that he made a point not to retrieve the old case file.

At the conclusion of the hearing, the trial court found all of the witnesses4

to be credible and specifically found Mr. McGavic’s “credibility to be very high.” The

court denied the defendant’s motion to suppress. The court first found that the defendant

no longer had an expectation of privacy in the computers because she no longer owned

the computers, no longer retained a possessory interest in the computers, and took no

steps to keep the information contained on them private or to exclude others from

viewing the information. The court found that the defendant abandoned the property to

Mr. McGavic:

The first basis for my ruling is I think [the defendant]

relinquished an expectation of privacy to this property. I

don’t believe she has standing. That’s the first basis, and I’m

gonna go through many alternatives to say why this evidence

4

A TBI Forensic Scientist also testified about the process used to recover the photographs and the

location of the photographs on each computer’s hard drive. We have not included that testimony because

it is not relevant to the determination of the issue presented.

-27-

is admissible, but I don’t think she any longer had the ability

to come into court and say, “That’s mine. You couldn’t do

that because it’s mine.” An individual has no right to the

possession of contraband or evidence of illegal activity. . . .

Courts are to make two inquires: one, whether the individual

by their conduct has exhibited an actual subjective

expectation of privacy. I do not find even that first prong in

this case. The testimony was she gave it up. She gave it to

Mr. McGavic. She gave him not only the property, but she

gave him power of attorney. . . . She voluntarily relinquished

it. And when she did that, I don’t think she exhibited any

personal subjective expectation in privacy. . . .

And the second prong is whether that . . . individual’s

subjective expectation of privacy is one that society or this

Court is prepared to recognize as reasonable. I don’t feel it’s

reasonable for her to say now that she has an expectation in

those, those computers and in those floppy discs. She gave it

all up. She gave power of attorney back in 2012. . . . I just

don’t think with the facts as they [were] presented, this Court

or society would think that she has a right recognized as

reasonable.

The court also found that the computers were in the exclusive possession and control of

Mr. McGavic and that he gave consent to search the computers. Finally, the court found

that the search warrants were valid because Mr. McGavic qualified as a citizen informant,

and “the inherent details contained within the four corners” of the warrant affidavit

supported the probable cause finding.

The trial court expressed concern with the fact that the warrants were issued

in Bradley and Monroe Counties for property that was located at Mr. McGavic’s

residence in Cumberland County but ultimately concluded that this factor did not affect

the validity of the warrants because they were issued by a court with statewide

jurisdiction to the TBI, which also has statewide jurisdiction.

As to the defendant’s claim that the photographs should be suppressed as

the fruit of the earlier unconstitutional search, the court found that the search of the

computers was attenuated in time and circumstances: “You’re talking about years later

and a concerned citizen finding the same evidence but in separate electronic form in

different electronic media, years later. . . . Nothing that was done by the State in this

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case is a product of the illegal search of that digital camera, nothing.” He described the

two cases as “two ships passing in the night.”

A trial court’s factual findings on a motion to suppress are conclusive on

appeal unless the evidence preponderates against them. State v. Binette, 33 S.W.3d 215,

217 (Tenn. 2000); State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, questions of

credibility, the weight and value of the evidence, and the resolution of conflicting

evidence are matters entrusted to the trial judge, and this court must uphold a trial court’s

findings of fact unless the evidence in the record preponderates against them. Odom, 928

S.W.2d at 23; see also Tenn. R. App. P. 13(d). The application of the law to the facts,

however, is reviewed de novo on appeal. State v. Keith, 978 S.W.2d 861, 864 (Tenn.

1998). We review the issue in the present appeal with these standards in mind.

Both the federal and state constitutions offer protection from unreasonable

searches and seizures with the general rule being “that a warrantless search or seizure is

presumed unreasonable and any evidence discovered subject to suppression.” State v.

Talley, 307 S.W.3d 723, 729 (Tenn. 2010) (citing U.S. Const. amend. IV; Tenn. Const.

art. I, § 7). The constitutional protections against unreasonable search and seizure “are

personal in nature, and ‘they may be enforced by exclusion of evidence only at the

instance of one whose own protection was infringed by the search and seizure.’” State v.

Cothran, 115 S.W.3d 513, 520 (Tenn. Crim. App. 2003) (quoting State v. Ross, 49

S.W.3d 833, 840 (Tenn. 2001)). “One who challenges the reasonableness of a search or

seizure has the initial burden of establishing a legitimate expectation of privacy in the

place where property is searched.” State v. Oody, 823 S.W.2d 554, 560 (Tenn. Crim.

App. 1991) (citing Rawlings v. Kentucky, 448 U.S. 98 (1980); State v. Roberge, 642

S.W.2d 716, 718 (Tenn. 1982)); see Katz v. United States, 389 U.S. 347, 357 (1967); see

also State v. Prier, 725 S.W.2d 667, 671 (Tenn. 1987) (stating that our state constitution

affords no greater protection than the federal constitution and adopting the Katz

standard). Thus, we must determine “(1) whether the individual had an actual, subjective

expectation of privacy and [if so] (2) whether society is willing to view the individual’s

subjective expectation of privacy as reasonable and justifiable under the circumstances.”

State v. Munn, 56 S.W.3d 486, 494 (Tenn. 2001) (citing Smith v. Maryland, 442 U.S.

735, 740 (1979); Ross, 49 S.W.3d at 839). The second part of this inquiry focuses on

“whether, in the words of the Katz majority, the individual’s expectation, viewed

objectively, is ‘justifiable’ under the circumstances.” Smith, 442 U.S. at 740 (quoting

Katz, 389 U.S. at 357).

Because the Fourth Amendment protects people and privacy rather than

places and property, a property interest does not determine standing to challenge a search

and does not control the right of officials to search and seize. See Oliver v. United States,

466 U.S. 170, 183 (1984); Katz, 389 U.S. at 351, 353. As the Supreme Court has

-29-

recognized, “[w]hat a person knowingly exposes to the public, even in his own home or

office, is not a subject of Fourth Amendment protection. But what he seeks to preserve

as private, even in an area accessible to the public, may be constitutionally protected.”

Katz, 389 U.S. at 351 (citations omitted). Importantly, a “person can lose his reasonable

expectation of privacy in his real property if he abandons it.” United States v. Harrison,

689 F.3d 301, 307 (3d Cir. 2012). “Abandonment for purposes of the Fourth Amendment

differs from abandonment in property law; here the analysis examines the individual’s

reasonable expectation of privacy, not his property interest in the item.” United States v.

Fulani, 368 F.3d 351, 354 (3d Cir. 2004) (citing United States v. Lewis, 921 F.2d 1294,

1302 (D.C. Cir. 1990)). Consequently, “abandonment,” as understood in the

constitutional context of unreasonable searches and seizures, “is not meant in the strict

property-right sense, but rests instead on whether the person so relinquished his interest

in the property that he no longer retained a reasonable expectation of privacy in it at the

time of the search.” United States v. Veatch, 674 F.2d 1217, 1220-21 (9th Cir. 1981).

Our supreme court has noted that a reviewing court should consider

whether the individual has an ownership interest in the place searched, whether he has a

possessory interest in the place searched, whether he has the right to exclude others from

the place, and whether he undertook normal precautions to maintain the privacy of the

place searched to determine whether an individual had a legitimate expectation of privacy

in the place searched. See Oody, 23 S.W.2d at 560.

We agree with the ruling of the trial court that the defendant abandoned the

computers, and, by extension their contents, when she gave them to Mr. McGavic and

told him to “have free reign” with them. Nothing suggests that the items were placed in

Mr. McGavic’s possession solely for safe keeping. Instead, the accredited evidence

established that the defendant had forfeited both her property and possessory rights to the

computers. Furthermore, the record establishes that the defendant knowingly exposed the

contents of the computers to Mr. McGavic and his family members. We hold, therefore,

that the defendant had no reasonable expectation of privacy in the computers or their

contents. Consequently, because Mr. McGavic consented to allow the TBI to seize and

search the computers, the seizure and subsequent forensic search did not violate the

defendant’s constitutional rights. See State v. Ledford, 438 S.W.3d 543, 554 (Tenn.

Crim. App. 2014).

Moreover, this is not a situation where the TBI, having come into legal

possession of the computers from a third party, was constrained to obtain a warrant for

the eventual viewing of the images at issue. In Walter v. United States, the Supreme

Court found that although the FBI had lawfully acquired possession of obviously

pornographic films when they were tendered to the FBI by the unintended recipient of the

films, the FBI could not view the films because the unintended recipient had not actually

-30-

viewed the films. See Walter v. United States, 447 U.S. 649, 657 (1980). The Court held

that because the FBI’s possession of the films was predicated upon a private-party search

for which there was no Fourth Amendment protection, the agents could not go any

further than the initial private-party search. Id. at 656, 658-59 (1980) (“[T]here was

nothing wrongful about the Government’s acquisition of the packages or its examination

of their contents to the extent that they had already been examined by third parties.”).

Here, however, it was Mr. McGavic’s review of the challenged images that prompted him

to tender the abandoned computers to the TBI. In consequence, the Fourth Amendment

placed no limitation on the State’s use of the property. See California v. Greenwood, 486

U.S. 35, 40 (1988); Abel v. United States, 362 U.S. 217, 241 (1960) (“There can be

nothing unlawful in the Government’s appropriation of such abandoned property.”);

Fulani, 368 F.3d at 354. Thus, the search warrants were superfluous, and we need not

examine their efficacy. See Ledford, 438 S.W.3d at 554-55.

Finally, we find no merit to the defendant’s claim that the suppression of

the photographs in the earlier case against Mr. Kaczmarczyk bars the use of the

photographs in this case. Just as the defendant had no standing to challenge the search of

the computers because she had abandoned them, she had no standing to challenge the

search of Mr. Kaczmarczyk’s digital camera because it did not belong to her. The

warrantless search of Mr. Kaczmarczyk’s camera could not have violated the defendant’s

constitutional rights because she had no property or possessory interest in the item.

Furthermore, even if the defendant had standing to challenge the search of Mr.

Kaczmarczyk’s camera, both the independent source doctrine and the attenuation

doctrine would operate to purge any potential taint from the earlier unconstitutional

search.

When a claim has been made that evidence is “fruit” of an unlawful search,

the evidence may nevertheless be admissible if it fits within one of several recognized

exceptions to the exclusionary rule. See Utah v. Strieff, 136 S. Ct. 2056, 2061 (2016).

The question to be answered is “whether, granting establishment of the primary illegality,

the evidence to which instant objection is made has been come at by exploitation of that

illegality or instead by means sufficiently distinguishable to be purged of the primary

taint.” Brown v. Illinois, 422 U.S. 590, 598-99 (1975) (citation omitted). By way of

example, the Supreme Court explained,

Three of these exceptions involve the causal relationship

between the unconstitutional act and the discovery of

evidence. First, the independent source doctrine allows trial

courts to admit evidence obtained in an unlawful search if

officers independently acquired it from a separate,

independent source. Second, the inevitable discovery

-31-

doctrine allows for the admission of evidence that would have

been discovered even without the unconstitutional source.

Third, . . . is the attenuation doctrine: Evidence is admissible

when the connection between unconstitutional police conduct

and the evidence is remote or has been interrupted by some

intervening circumstance, so that “the interest protected by

the constitutional guarantee that has been violated would not

be served by suppression of the evidence obtained.”

Strieff, 136 S. Ct. at 2061 (citations omitted).

“In the classic independent source situation, information which is received

through an illegal source is considered to be cleanly obtained when it arrives through an

independent source.” Murray v. United States, 487 U.S. 533, 538-39 (1988) (quoting

United States v. Silvestri, 787 F.2d 736, 739 (1st Cir. 1986)). Here, the photographs used

in the case were obtained from computers voluntarily relinquished to the TBI by Mr.

McGavic, which served to remove any taint associated with the earlier unconstitutional

search of Mr. Kaczmarczyk’s digital camera. Thus, even assuming for the sake of

argument that the earlier suppression of the camera contents operated to bar the use of the

photographs on the camera, for the reasons discussed above, nothing prevented the

admission of the photographs on the computers.

“The attenuation doctrine evaluates the causal link between the

government’s unlawful act and the discovery of evidence.” Strieff, 136 S. Ct. at 2061.

When making this evaluation, a reviewing court considers three factors:

First, we look to the “temporal proximity” between the

unconstitutional conduct and the discovery of evidence to

determine how closely the discovery of evidence followed the

unconstitutional search. Second, we consider “the presence

of intervening circumstances.” Third, and “particularly”

significant, we examine “the purpose and flagrancy of the

official misconduct.”

Id. at 2061-62 (citations omitted). In this case, six years elapsed between the

unconstitutional conduct that led to the suppression of the photographs from Mr.

Kaczmarczyk’s digital camera and the discovery by Mr. McGavic of the photographs on

the computers given to him by the defendant. The transfer of the photographs to the

computers and of the computers to Mr. McGavic were intervening circumstances

between the primary illegality and the TBI’s search of the computers. Finally, the record

-32-

clearly establishes that the TBI did not exploit the earlier illegality to obtain the

photographs from the computers.

Under these circumstances, the trial court did not err by denying the

defendant’s motion to suppress.

II. Motion in Limine

Prior to trial, the defendant moved the trial court to exclude evidence of

both the defendant’s and Mr. Kaczmarczyk’s bad acts undertaken following the victim’s

death on grounds that Mr. Kaczmarczyk told the TBI that they had not contemplated the

acts prior to the victim’s death. The State argued that some of the actions undertaken by

the defendant and Mr. Kaczmarczyk after the victim’s death were evidence of the

conspiracy to murder the victim in order to fraudulently obtain government benefits. The

trial court denied the motion, observing, “I think the law is pretty clear that that embodies

subsequent acts to avoid detection and prosecution for the crime . . . .” The trial court

also observed that the defendant had not been sufficiently specific with the particular

evidence she wanted excluded. The court invited the defendant to reassert her motion

with specificity at a later date and concluded that prior bad act evidence would not be

admissible without a jury-out hearing beforehand. The trial court specifically denied the

defendant’s motion to exclude evidence that the defendant benefited financially from the

victim’s death.

In this appeal, the defendant again argues that the trial court should have

excluded evidence that the defendant and Mr. Kaczmarczyk “had financial gain after the

death of the alleged victim” because Mr. Kaczmarczyk “denied that the conspiracy was

for any financial gain.” As she did in the trial court, the defendant fails to point to any

particular piece of evidence or testimony that she believes should have been excluded.

Because she has also failed to advance a legal basis for her claim that the evidence should

have been excluded or to support her argument with citation to relevant authorities, she

has waived our consideration of this issue. See Tenn. R. Ct. Crim. App. 10(b) (“Issues

which are not supported by argument, citation to authorities, or appropriate references to

the record will be treated as waived in this court.”); see also Tenn. R. App. P. 27(a)(7)

(stating that the appellant’s brief must contain an argument “setting forth . . . the

contentions of the appellant with respect to the issues presented, and the reasons therefor .

. . with citations to the authorities . . . relied on”).

-33-

III. Autopsy Photographs

The defendant contends that the trial court erred by admitting photographs

of the victim taken during the autopsy because they were not relevant to any issue

presented at trial. The State asserts that the trial court did not err.

At the conclusion of Doctor Mileusnic-Polchan’s testimony, the State

moved to introduce the entire autopsy report, which contained 18 photographs. The

defendant objected on grounds that the photographs were more prejudicial than probative.

The trial court excluded two photographs that depicted the victim’s body cut open during

the autopsy process but allowed the other 16, which included images of the victim in

various states of undress on the autopsy table and slides from his internal organs.

Questions concerning evidentiary relevance rest within the sound discretion

of the trial court, and this court will not interfere with the exercise of this discretion in the

absence of a clear abuse appearing on the face of the record. See State v. DuBose, 953

S.W.2d 649, 652 (Tenn. 1997); State v. Van Tran, 864 S.W.2d 465, 477 (Tenn. 1993);

State v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992). An abuse of discretion occurs when the

trial court applies an incorrect legal standard or reaches a conclusion that is “illogical or

unreasonable and causes an injustice to the party complaining.” State v. Ruiz, 204

S.W.3d 772, 778 (Tenn. 2006) (citing Howell v. State, 185 S.W.3d 319, 337 (Tenn.

2006)).

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. “Evidence which

is not relevant is not admissible,” Tenn. R. Evid. 402, and even if evidence is deemed

relevant, it may still be excluded “if its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless presentation of cumulative

evidence,” Tenn. R. Evid. 403.

“Tennessee courts have consistently followed a policy of liberality in the

admission of photographs in both civil and criminal cases.” State v. Carter, 114 S.W.3d

895, 902 (Tenn. 2003) (citing State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978)). “The

general rule . . . is that photographs of a murder victim’s body are admissible if they are

‘relevant to the issues on trial, notwithstanding their gruesome and horrifying character.’”

Carter, 114 S.W.3d at 902 (quoting Banks, 564 S.W.2d at 950-51). Even relevant

photographs may be excluded, however, if their probative value is substantially

outweighed by the danger of unfair prejudice. Tenn. R. Evid. 403; Banks, 564 S.W.2d at

950-51. The term “unfair prejudice” has been defined as “[a]n undue tendency to suggest

-34-

decision on an improper basis, commonly, though not necessarily, an emotional one.”

See Banks, 564 S.W.2d at 951. “The admission of photographs lies within the sound

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

trial court abused that discretion.” State v. Odom, 336 S.W.3d 541, 565 (Tenn. 2011)

(citing Banks, 564 S.W.2d at 949).

The photographs admitted in this case are not particularly gruesome or

horrifying; nor, however, are they particularly relevant to any issue presented at trial.

The parties agreed that the cause of the victim’s death was an overdose of his prescription

medications, and the only issue presented at trial was whether the victim ingested the

drugs on his own, either accidentally or intentionally, or whether the defendant had

intentionally overmedicated the victim through nefarious means. None of the

photographs taken during the autopsy made any fact of consequence to the determination

of that issue more or less probable. Because the photographs were not relevant, they

should have been excluded. That being said, it is our view that the erroneous admission

of the photographs was harmless precisely because they are neither gruesome nor

horrifying. See Tenn. R. App. P. 36(b) (“A final judgment from which relief is available

and otherwise appropriate shall not be set aside unless, considering the whole record,

error involving a substantial right more probably than not affected the judgment or would

result in prejudice to the judicial process.”).

IV. Motion for Mistrial

The defendant next contends that the trial court erred by denying her

motion for mistrial when Agent Melton stated during direct examination that the

defendant had elected to end their interview after consulting with her attorney. She

argues that the statement was an improper referrence to her exercising her constitional

privilege against self-incrimination. The State asserts that the trial court did not err.

During Agent Melton’s direct examination testimony, he made the

following statement when describing his January 13, 2013 interview of the defendant:

I will, I’ll tell you up front that at some point in the statement,

out of professional courtesy to her counsel, I took him outside

and told him the direction of where we intended to go with

that interview, and asked him if he would, wanted to speak

with her, and he did and, want to speak with her and he

wanted to discontinue the interview.

The defendant objected and moved for a mistrial because the statement referenced the

defendant’s “refusal to talk to them and that’s an infringement on her right to remain

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silent.” The trial court agreed that the statement was improper and offered to give a

curative instruction, but defense counsel declined, saying, “Your Honor, it’s one of those

things that sometimes I think a jury instruction just makes it worse.” The court noted

counsel’s timely objection, admonished the State, and again offered a curative

instruction. Counsel again declined, noting, “I don’t think it will help. I think it will hurt

even worse than she’s already been prejudiced.” The court denied the mistrial request:

Well, a mistrial is the most Draconian of all measures,

and I do not feel it’s warranted in this case. You objected so

timely, I’m not sure that anyone really even heard it. All he

was talking about is she spoke to counsel; that’s her right. I

think it’s in the sound discretion of the Court. I’m not gonna

declare a mistrial. It just wasn’t overly prejudicial, of all the

things we’ve heard during the course of this trial, things that

sometimes you’ve elicited for strategy purposes or otherwise.

You know, she’s got federal time, a federal conviction. I

don’t think it causes any prejudice, so I’m gonna deny that,

but I will offer to give a curative instruction.

Defense counsel again rejected the offered curative instruction on grounds that he

believed such an instruction “would be more detrimental than helpful in this situation.”

We find no abuse of discretion in the trial court’s decision to deny the

defendant’s motion for mistrial. See State v. Nash, 294 S.W.3d 541, 546 (Tenn. 2009).

“Normally, a mistrial should be declared only if there is a manifest necessity for such

action.” State v. Saylor, 117 S.W.3d 239, 250 (Tenn. 2003) (citing State v. Millbrooks,

819 S.W.2d 441, 443 (Tenn. Crim. App. 1991)). “In other words, a mistrial is an

appropriate remedy when a trial cannot continue, or a miscarriage of justice would result

if it did.” Saylor, 117 S.W.3d at 250 (quoting State v. Land, 34 S.W.3d 516, 527 (Tenn.

Crim. App. 2000)). “The purpose for declaring a mistrial is to correct damage done to

the judicial process when some event has occurred which precludes an impartial verdict.”

State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996).

Although we certainly do not condone Agent Melton’s remark about the

defendant’s decision to terminate the interview, the remark was fleeting, and the

defendant’s objection cut the testimony short. Moreover, the remark was not made in

response to any improper questioning by the State, and the State made no attempt to

exploit the improper comment. See generally Doyle v. Ohio, 426 U.S. 610, 618 (1976)

(declaring prosecution’s exploitation of an arrested person’s post-Miranda silence

“fundamentally unfair and a deprivation of due process”); State v. Transou, 928 S.W.2d

949, 960 (Tenn. Crim. App. 1996). It would have been entirely appropriate at that

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juncture for the trial court to provide a curative instruction, but the defendant specifically

and repeatedly rejected the trial court’s offer to provide a curative instruction. Under

these circumstances, nothing indicated a manifest necessity for the declaration of a

mistrial, and the trial court’s decision to deny the motion did not result in a miscarriage of

justice. See Saylor, 117 S.W.3d at 250.

V. Trial Court’s Commentary

The defendant claims that the trial court made negative comments during

the defendant’s testimony that amounted to an improper comment on the evidence, yelled

at the defendant in the presence of the jury, and showed “a general disdain for” the

defendant during her testimony and that these actions deprived her of the right to a fair

trial. She contends that the trial court’s actions “essentially prohibited” the defendant

“from being able to explain and/or tell her version of the events without specific

parameters in her testimony” and that “her direct testimony was essentially shut down by

the trial court.” The State asserts that the trial court committed no error.

The defendant’s direct examination testimony was marked by rambling

narratives littered with irrelevant details and inadmissible hearsay. The State made its

first objection during a particularly hearsay-heavy tangent about comments made to the

victim by some of the program participants about coming to a get-together hosted by the

defendant and the victim. The State objected, and the trial court correctly sustained the

objection, noting that it was not relevant where all the people were coming from. The

State objected again during another such tangent when the defendant inserted her having

been diagnosed with colon cancer into her response to the question of what had prompted

her to look at the victim’s will in August of 2007. Finally, the State objected when the

defendant mentioned that she had been charged with the victim’s murder only two weeks

before she was scheduled to be released from federal custody and that she had “sat in

Monroe County jail for 76 weeks” awaiting trial. The trial court took another recess, and

the following exchange took place outside the presence of the jury:

THE COURT: All right. I, I’ve had enough. I feel

like she is intentionally --

COURT OFFICER: Larry, shut the door.

THE COURT: Shut the door. That always happens.

Every time they go out, for some reason, they want to hold

that thing open.

COURT OFFICER: Yeah, he --

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THE COURT: I have heard her talk about selling eggs

to poverty here in Monroe County, people who are rubbing

nickels together; I’ve heard about colon cancer; I’ve heard

about 76 weeks; I’ve heard about, “Best interest, I’m not

really guilty.” She is trying to inflame and prejudice this jury.

If a State witness did half of the stuff that she’s doing, if a

State witness did half of what she’s doing, you would be

moving for a mistrial. And none of that is admissible. It’s

prejudicial. It is merely designed to inflame the emotional

passions of this jury, and we have sustained the objection and

sustained and sustained. She has tried to taint this enough;

she has. And no more. How much more direct are we gonna

have? That’s fine, but let it be about substantive issues. She

is trying to taint this jury pool. That is this Court’s opinion.

None of that is admissible, none of it. And I would instruct

you, please -- I’m not yelling at you, I’m just yelling. You

know, the hearsay -- she’s stunned every time I sustain an

objection. All that emotional stuff is irrelevant. It doesn’t

come in. It’s inadmissible. And I would ask that during this

break you instruct her to focus on the issues. Anything she

wanted to do, trust me, it’s out there. It is out there. She has

-- as she’s said, had to say numerous times, “Roman

Catholic.” It’s all out there. I’m gonna take a five-minute

recess. You are instructed to stick to the facts. Stick to the

facts of this case, Ma’am.

The defendant’s claims that the trial court commented on the evidence and

yelled at the defendant in the presence of the jury are completely belied by the record.

The record clearly establishes that the trial court excused the jury from the courtroom

before admonishing the defendant. Although the court officer asked someone to “shut

the door,” there is no proof that any juror heard the trial court, even if we assume that the

door in question was the door to the jury room. Furthermore, the only thing uttered by

the trial court before the officer asked for the door to be shut was “[a]ll right. I, I’ve had

enough. I feel like she is intentionally . . . .” We cannot fathom how this comment, even

if heard by the jury, can be classified as a comment on the evidence or how it might have

prejudiced the defendant.

Additionally, the defendant cites a single case, State v. Hailey, in support of

her argument. In Hailey, however, this court deemed Hailey’s claim that the trial court

had improperly commented on the evidence to be waived. State v. Hailey, 658 S.W.2d

-38-

547, 552-53 (Tenn. Crim. App. 1983). In dicta, we concluded that Hailey had not

demonstrated any prejudice because the “trial judge attempted to prevent introduction of

the irrelevant information” when making the comment. Id. Finally, this court determined

that even though “[t]he trial judge erred in making the potentially prejudicial statement”

any “error was clearly harmless.” Id.

The defendant’s testimony during direct examination was, as the trial court

correctly observed, peppered with irrelevant details and inadmissible hearsay, and the

trial court’s commentary occurred as it attempted to prevent the introduction of even

more irrelevant and inadmissible evidence. The question to be determined by the jury

was whether the defendant conspired to and did murder the victim for financial gain.

Very little of the defendant’s testimony touched upon this issue. Instead, the defendant

attempted to provide most of her life story in what, as the trial court noted, appeared to be

a bid to garner sympathy from the jury. There was no reason that the jury needed to hear

that the defendant had allowed poor persons to buy discounted eggs from her, that she

had been previously diagnosed with cancer, or that she had been incarcerated for an

extended period of time prior to trial. The defendant complains about the “parameters”

affixed to her testimony by the trial court, but the record establishes that the only

parameters imposed by the trial court were those required by the rules of evidence. The

defendant is not entitled to relief on this issue.

VI. Sufficiency

The defendant next asserts that the evidence was insufficient to support her

convictions because it consisted solely of the uncorroborated testimony of Mr.

Kaczmarczyk. The State avers that the evidence was sufficient.

We review the defendant’s claim of insufficient evidence mindful that our

standard of review is whether, after considering 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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.

307, 319 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This

standard applies to findings of guilt based upon direct evidence, circumstantial evidence,

or a combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d

370, 379 (Tenn. 2011).

When examining the sufficiency of the evidence, this court should neither

re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.

Questions concerning the credibility of the witnesses, the weight and value of the

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

fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must

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afford the State the strongest legitimate view of the evidence contained in the record as

well as all reasonable and legitimate inferences which may be drawn from the evidence.

Id.

The defendant was originally charged with first degree premeditated

murder, which, as charged in this case is the “premeditated and intentional killing of

another.” T.C.A. § 39-13-202(a). She was convicted, however, of the lesser included

offense of attempted first degree murder. Criminal attempt occurs when a person “acting

with the kind of culpability otherwise required for the offense . . . [a]cts with intent to

cause a result that is an element of the offense, and believes the conduct will cause the

result without further conduct on the person’s part.” T.C.A. § 39-12-101(a)(2).

The defendant was also charged with and convicted of conspiracy to

commit first degree murder.

The offense of conspiracy is committed if two (2) or more

people, each having the culpable mental state required for the

offense that is the object of the conspiracy, and each acting

for the purpose of promoting or facilitating commission of an

offense, agree that one (1) or more of them will engage in

conduct that constitutes the offense.

T.C.A. § 39-12-103(a).

It is well settled “that a conviction may not be based solely upon the

uncorroborated testimony of an accomplice to the offense.” State v. Bane, 57 S.W.3d

411, 419 (Tenn. 2001) (citing State v. Stout, 46 S.W.3d 689, 696-97 (Tenn. 2001); State

v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994); Monts v. State, 379 S.W.2d 34, 43 (Tenn.

1964)). Indeed, “[w]hen the only proof of a crime is the uncorroborated testimony of one

or more accomplices, the evidence is insufficient to sustain a conviction as a matter of

law.” State v. Jones, 450 S.W.3d 866, 888 (Tenn. 2014) (citing State v. Collier, 411

S.W.3d 886, 894 (Tenn. 2013)). By way of explanation, our supreme court has stated:

There must be some fact testified to, entirely independent of

the accomplice’s testimony, which, taken by itself, leads to

the inference, not only that a crime has been committed, but

also that the defendant is implicated in it; and this

independent corroborative testimony must also include some

fact establishing the defendant’s identity. This corroborative

evidence may be direct or entirely circumstantial, and it need

not be adequate, in and of itself, to support a conviction; it is

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sufficient to meet the requirements of the rule if it fairly and

legitimately tends to connect the defendant with the

commission of the crime charged. It is not necessary that the

corroboration extend to every part of the accomplice’s

evidence.

Bane, 57 S.W.3d at 419 (quoting Bigbee, 885 S.W.2d at 803); see also State v. Fowler,

373 S.W.2d 460, 463 (Tenn. 1963).

An accomplice is an individual who knowingly, voluntarily, and with

common intent participates with the principal offender in the commission of an offense.

State v. Lawson, 794 S.W.2d 363, 369 (Tenn. Crim. App. 1990). “When the facts

concerning a witness’s participation are clear and undisputed, the trial court determines

as a matter of law whether the witness is an accomplice.” State v. Robinson, 146 S.W.3d

469, 489 (Tenn. 2004) (citing Ripley v. State, 227 S.W.2d 26, 29 (1950); State v.

Perkinson, 867 S.W.2d 1, 7 (Tenn. Crim. App. 1992)). When “the facts are disputed or

susceptible to different inferences,” however, the determination of whether the witness is

an accomplice is a question for the trier of fact. Robinson, 146 S.W.3d at 489 (citing

Perkinson, 867 S.W.2d at 7); see also Conner v. State, 531 S.W.2d 119, 123 (Tenn. Crim.

App. 1975). “The test generally applied is whether the witness could be indicted for the

same offense charged against the defendant.” Robinson, 146 S.W.3d at 489 (citing

Monts, 379 S.W.2d at 43).

To be sure, Mr. Kaczmarczyk was an accomplice to both charged offenses.

That being said, his testimony was sufficiently corroborated by other evidence in the

record.

Mr. Kaczmarczyk’s testimony that the previously active and energetic

victim became “very lethargic” following his return from the PTSD treatment program

was corroborated by Ms. Hartman, who testified that the victim stopped visiting the

Hartman residence with the defendant and that the defendant brought Mr. Kaczmarczyk

with her in his stead. Ms. Hartman’s testimony also bolstered Mr. Kaczmarczyk’s

testimony that he and the defendant began a romantic relationship in April of 2006. Both

Mr. Kaczmarczyk and Ms. Hartman testified that the defendant had cut and dyed her hair

around that same time, and both testified that the defendant had remarked that the new

style had upset the victim. Mr. Kaczmarczyk testified that the defendant “mentioned on

several occasions that she would like to get rid of” the victim and that “if he went away,”

she and Mr. Kaczmarczyk “could be together.”

Mr. Kaczmarczyk testified that he suspected that the defendant, who was in

charge of the victim’s medications at that time as she had been “everyday since he had

-41-

been released from Nashville,” had been adulterating the victim’s “food and

medications.” On two occasions, the defendant and Mr. Kaczmarczyk suspected that the

victim had overdosed, but instead of taking the victim to the nearest emergency room,

they drove the victim to the VA hospital nearly three hours away, which was

corroborated by the victim’s medical records. At a “family meeting” at the VA hospital

following the victim’s hospitalization for an overdose, the defendant told the victim’s

treatment team that she would be in charge of the victim’s medication and ensure that he

took it as prescribed. The victim’s medical records confirmed that the defendant said that

she had been administering the victim’s medication following his hospitalization.

Mr. Kaczmarczyk testified that the defendant asked him to bring some of

his medications, which were the same as those prescribed to the victim, so that they could

hide them around the house to make it look like the victim had been hoarding medication.

After the victim’s death, Mr. Kaczmarczyk and the defendant arranged to have Brian

McGavic discover one such stash of drugs in a safe in the garage. Brian McGavic

confirmed that he felt as though the defendant and Mr. Kaczmarczyk had manipulated

him into discovering the drugs. Pharmacy records confirmed that both the victim and Mr.

Kaczmarczyk filled multiple prescriptions for Trazodone and Mirtazapine in the months

between their release from the PTSD treatment program and the victim’s death.

Mr. Kaczmarczyk testified that on May 13, 2006, the day that Mr.

Kaczmarczyk brought the victim home from the hospital, the defendant “had fixed [the

victim’s] favorite meal,” but the victim “complained that it didn’t taste very well,” so the

defendant “put seasoning on it so that he would eat it.” Later, the defendant remarked to

Mr. Kaczmarczyk “that she had used magic dust on it,” which Mr. Kaczmarczyk

interpreted to mean that she had put medication in the victim’s food. Doctor Mileusnic-

Polchan confirmed that the victim “died of [a] combination of the Trazodone and

Mirtazapine, which is the main cause of death.” She said that the victim had “almost four

times the maximum therapeutic” amount of Trazodone and seven and a half times the

maximum therapeutic amount of Mirtazapine in his system at the time of his death.

Despite the high concentration of both drugs in the victim’s blood, the victim had no

gastric contents, which indicated that he had not eaten within a “minimum of six hours,”

and there were no pill fragments in the victim’s stomach, which indicated to Doctor

Mileusnic-Polchan that the victim had not ingested the medication as whole or half

tablets. She observed that crushing the tablets in this case would have defeated the

controlled-release mechanism and caused an increase in the concentration of each drug in

the victim’s system. Doctor Mileusnic-Polchan testified that the absence of “granular

substance in the gastric content” as well as “a lot of fluids to help all those drugs push

down” militated against a conclusion that the victim’s death was a suicide. She also

testified that in typical cases of suicide by overdose, “we have much larger levels [of

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drugs] because when there is intent and there is an oral intake of the drugs, that elicits

sudden surge of these medications in the blood stream, then the layers are much higher.”

Mr. Kaczmarczyk testified that on the day before the victim’s death, the

defendant told him that if he found the victim dead, he should “keep it simple,” which

Mr. Kaczmarczyk took to mean that he should “make it look as natural as possible or

make it look like a suicide.” To that end, when Mr. Kaczmarczyk returned to the Coker

Creek residence on the afternoon of May 15, 2006, to find the victim in serious medical

distress, he did not telephone 9-1-1 but moved the victim to the recliner. When the

victim died shortly thereafter, Mr. Kaczmarczyk did not immediately call for help but

instead staged the scene in a manner designed to increase the defendant’s potential

benefits from the VA. Other witnesses confirmed that the victim received more benefits

because the victim’s death was deemed a suicide due to his service-related PTSD. Ms.

Hartman confirmed that the defendant’s lifestyle improved dramatically after the victim’s

death. The defendant purchased expensive diamond earrings, a large motor coach, and

many matching outfits for herself and Mr. Kaczmarczyk, and the two of them began

traveling extensively. The victim also gave Mr. Kaczmarczyk $50,000 to hire a lawyer

after he was charged with offenses related to the victim’s death. The defendant forged

the victim’s will to further increase her financial gain from the victim’s death.

The defendant lied to Mr. McGavic about the cause of the victim’s death.

Then, after Mr. McGavic discovered the staged photographs taken of the dead victim, the

defendant did not express concern or outrage about the origin of the photographs but

instead instructed Mr. McGavic to have the photographs removed from the computers so

that they would not be discovered by the authorities.

In sum, it is our view that the evidence presented by the State was more

than sufficient to support the defendant’s convictions of attempted first degree murder

and conspiracy to commit first degree murder.

VII. Sentencing

The defendant contends that the trial court erred by imposing the maximum

sentence within the range for both of her convictions and by ordering the sentences to be

served consecutively. She also argues that the trial court should have merged her

convictions because the imposition of dual convictions violates both due process and

double jeopardy principles. The State concedes that the imposition of dual convictions

and consecutive sentences in this case was improper because Code section 39-12-106

prohibits the conviction of more than one inchoate offense for conduct that culminates in

the commission of a single offense.

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Our supreme court has adopted an abuse of discretion standard of review

for sentencing and has prescribed “a presumption of reasonableness to within-range

sentencing decisions that reflect a proper application of the purposes and principles of our

Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). The application of

the purposes and principles of sentencing involves a consideration of “[t]he potential or

lack of potential for the rehabilitation or treatment of the defendant . . . in determining the

sentence alternative or length of a term to be imposed.” T.C.A. § 40-35-103(5). Trial

courts are “required under the 2005 amendments to ‘place on the record, either orally or

in writing, what enhancement or mitigating factors were considered, if any, as well as the

reasons for the sentence, in order to ensure fair and consistent sentencing.’” Bise 380

S.W.3d at 698-99 (quoting T.C.A. § 40-35-210(e)).

Initially, we accept the State’s concession that the defendant’s convictions

must be merged. Although she was originally charged with first degree murder, the

defendant was actually convicted of attempted first degree murder. Tennessee Code

Annotated section 39-12-106 provides that “[a] person may not be convicted of more

than one (1) of the offenses of criminal attempt, solicitation or conspiracy for conduct

designed to commit or to culminate in the commission of the same offense.” T.C.A. §

39-12-106(a). This subsection “bars multiple convictions for more than one preparatory

offense where each is designed to achieve the same criminal objective.” Id., Advisory

Comm’n Comments. The statute thus prohibits imposition of convictions for both

attempted first degree murder and conspiracy to commit first degree murder in this case

and certainly prohibits the imposition of consecutive sentences. Instead, the jury verdicts

should be merged into a single conviction, and the judgment forms should indicate as

much. Consequently, we reverse the imposition of consecutive sentences and remand the

case for the entry of corrected judgment forms indicating that the defendant’s convictions

merge.

Turning to the defendant’s claim that the trial court erred by imposing a

sentence at the top of the range, we observe that although the defendant states the issue

presented as “[w]hether or not the trial court erred by ordering consecutive maximum

sentences,” she does not challenge the trial court’s findings with regard to the

enhancement and mitigating factors. Indeed, the only portion of her argument that could

be said to relate to the imposition of the maximum sentence in this case is a reference to

the sentence imposed for Mr. Kaczmarczyk’s guilty-pleaded conviction of conspiracy to

commit first degree murder. The record reflects “a proper application of the purposes

and principles of our Sentencing Act” as well as appropriate consideration of the

enhancement and mitigating factors, see Bise, 380 S.W.3d at 707, which imbues the

within-range sentence with a presumption of reasonableness. Nothing indicates that the

trial court abused its discretion when setting the length of the sentence.

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VIII. Conclusion

Based upon the foregoing analysis, we affirm the jury verdicts of attempted

first degree murder and conspiracy to commit first degree murder. Because Code section

39-12-106 prohibits dual convictions for attempt and conspiracy to commit the same

offense, the defendant’s convictions must be merged. Accordingly, we reverse the

imposition of consecutive sentences and remand the case to the trial court for the entry

corrected judgments reflecting the merged convictions.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

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