The opinion
08/31/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
July 14, 2020 Session
STATE OF TENNESSEE v. EDWARD WALSH
Appeal from the Criminal Court for Clay County
No. 2015-CR-51 Gary McKenzie, Judge
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No. M2019-00989-CCA-R3-CD
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In October of 2015, Defendant, Edward Walsh, was indicted by the Clay County Grand
Jury for first degree murder, abuse of a corpse, tampering with evidence, and theft of
property. The theft of property charge was severed, and the tampering with evidence
charge was nolled before trial. After a jury trial, Defendant was found guilty of first
degree murder and abuse of a corpse. The trial court sentenced Defendant to life
imprisonment for the murder conviction and a concurrent two-year sentence for the abuse
of a corpse conviction. On appeal, Defendant argues that the trial court erred in not
severing the offenses of first degree murder and abuse of a corpse, that the trial court
erred in admitting hearsay, that the trial court was not impartial, that the State’s closing
argument was based on inferences from facts not in evidence, and that evidence was
insufficient to prove first degree murder. After a thorough review of the record, we
affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
TIMOTHY L. EASTER, J., delivered the opinion of the court, in which THOMAS T.
WOODALL and ROBERT L. HOLLOWAY, JR., JJ., joined.
Craig P. Fickling, District Public Defender and Benjamin D. Marsee, Assistant Public
Defender (at trial), M. Todd Ridley, Assistant Public Defender (on appeal), for the
appellant, Edward Walsh.
Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Assistant Attorney General; Bryant C. Dunaway, District Attorney General; and Mark E.
Gore, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Facts and Procedural History
I. Pre-Trial Severance Motion
Defendant filed a pre-trial motion to sever the offenses of first degree murder and
abuse of a corpse. In Defendant’s motion, Defendant argued that the offenses were
“wholly separate and unrelated to each other.” Defendant further argued that the offenses
were not part of a common scheme or plan and that evidence “relating to the offenses
would not be admissible upon trial of the other offenses.” Finally, Defendant argued that
if the offenses remained joined, he would be unduly prejudiced and that severance is
necessary in “order to promote a fair determination of [Defendant’s] guilt or innocence
on each offense.” In support of his severance argument, Defendant argued that joinder
was permissive rather than mandatory. Defendant conceded that joinder of the abuse of
corpse count and the tampering of evidence count were subject to mandatory joinder but
that the theft count and first degree murder count should be severed. The State conceded
that the theft count should be severed but argued the remaining counts should not be
severed. The State argued that the counts were subject to mandatory joinder.
On January 9, 2017, a hearing was held on Defendant’s motion to sever. The State
presented the testimony of the medical examiner, Dr. David Zimmerman, Tennessee
Bureau of Investigation (“TBI”) Special Agent Steve Huntley, and District Attorney
Investigator Randal Slayton.
Dr. Zimmerman testified that he received the victim’s body in “multiple
fragments” that were in various states of decomposition. He observed that the head had
been cut from the torso, and opined that the marks on the bones were consistent with cuts
made by a saw and could not have been made by a knife. Much of the skin and fat had
been removed from the victim’s back and buttocks. The left arm was missing, and the
remaining limbs were detached from the victim’s torso. Flesh had been removed from
several limbs. The victim’s internal organs were in a state of decomposition because they
were found buried in the ground. The victim’s brain was “extremely decomposed.” The
remaining limbs were better preserved because they were found in Defendant’s freezer.
There was no blood in the victim’s body, so the victim’s liver was analyzed, and it
showed that the victim had several drugs in her system including gabapentin and three
different opioids. Dr. Zimmerman indicated that it was impossible to tell if the victim’s
death was an overdose because the intoxicant levels found in the liver would be much
higher than the levels found in the blood. Based on the condition of the victim’s body
and the circumstances under which it was found, Dr. Zimmerman concluded that the
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cause of death was “homicidal violence.” This is a term used when he “can’t definitively
tell a cause and manner of death.” Dr. Zimmerman indicated that the dismemberment
could have caused the death or been inflicted after death. Given the state of the victim’s
remains, Dr. Zimmerman could not state the cause of death for certain, but he determined
that the severing of the head and limbs were a possible cause of death. Dr. Zimmerman
saw no evidence of manual strangulation such as ligature marks or a fracture to the hyoid
bone, but the absence of such injuries did not rule out death by strangulation.
Dr. Zimmerman could not give a specific time and date of death. He stated,
however, the condition of the victim’s remains were consistent with the theory that the
victim had been killed sometime on July 7, 2015. Dr. Zimmerman saw no evidence of
natural disease that would have caused the victim’s death. Although Dr. Zimmerman
could not determine the exact cause of death, the dismemberment was an important factor
in concluding that she died from “homicidal violence.”
Investigator Slayton learned of a missing person’s case from Clay County Sheriff
Brandon Boone. The victim had been reported missing by her sister, Sonya Scott, on
August 7, 2015. Investigator Slayton called Agent Huntley to advise him of the case.
Investigator Slayton and Agent Huntley first spoke to Defendant on August 11, 2015.
They learned that Defendant had been in a romantic relationship with the victim for about
sixteen months. Defendant denied knowledge of the victim’s wherabouts and indicated
that she left with her belongings after an argument on July 7, 2015. Defendant gave
consent to a search of his residence.
Later on August 11, Investigator Slayton learned that what appeared to be a body
was found buried on the property behind Defendant’s home. Investigator Slayton and
Agent Huntley both observed a shallow grave and what appeared to be a body emitting a
“strong odor or decomposition.” A forensics team was called to excavate the remains.
During the search, the victim’s head was found at another burial site in a trash bag along
with “what appeared to be skin.” The victim’s limbs were found in trash bags in
Defendant’ freezer. There was blood splattering on the wall in Defendant’s bathroom
and around the faucet of the bathtub.
After the discovery of the torso, Investigator Slayton again interviewed Defendant,
outside his home. Defendant stated that he and the victim argued for several days about
her drug use and money. During the argument, Defendant pushed the victim onto the bed
four or five times. The victim followed Defendant out of the bedroom and retrieved a
knife from the kitchen. Defendant “disarmed her, spun her around, put her in a choke
hold, using the bend of his arm at his elbow.” “[Defendant] explained it as, [Defendant]
squeezed [the victim around the neck] and lifted [her] up.” The victim passed out.
Defendant took the victim to the bedroom and laid her on the bed. After leaving the
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victim in the room on the bed for about an hour “to cool off,” Defendant went to check
on the victim and “realized that she had passed away.” Defendant indicated that he
started digging a grave around 2:30 a.m. He did not finish digging that night because the
work was “really hard on him.” Defendant denied that he dismembered the victim’s
body.
Defendant was interviewed a third time after investigators learned the extent of the
victim’s dismemberment. Defendant admitted that he cut off the victim’s arms, legs, and
head. Defendant contradicted his earlier statement and said he returned to check on the
victim only a couple of minutes after choking her and found her dead. After sitting on
the bed for several minutes, Defendant decided that he would “have to do something with
the body.” Defendant cried for a while and decided a couple of hours later to bury the
victim and started digging the grave. Given Defendant’s physical disabilities, he
indicated that it was hard work and he made little progress. He returned to his house
around daylight and then went to work. When he returned home, he resumed digging
around 9:00 p.m. and finished around 4:00 a.m. Later that morning, Defendant
determined that the victim was too heavy for him to carry her to the grave, so he “decided
that he would cut her up.” Defendant dragged the victim into the bathroom and put her in
the tub. Defendant then left to go to work and returned later that afternoon and started to
dismember the victim’s body. Based on Defendant’s statement, Investigator Slayton
determined that Defendant began to dismember the victim within forty-eight hours of her
death.
The trial court found that mandatory joinder applied. The trial court found that the
events of murder and abuse of corpse occurred during the same criminal episode. The
trial court noted that the idea to “get rid of the body” was formed immediately or a short
time after Defendant realized the victim was dead. The trial court found it was in close
sequence and in a closely situated area and that the proof of one offense involved the
proof of the other. The trial court stated that “the jury needs to hear all of this proof to
make a determination.” Defendant’s motion for severance was denied by the trial court
as being permissively joined as well.
II. Trial
A jury trial was held August 15–18, 2017. Ms. Scott testified that she had last
seen the victim on November 17, 2014, when Ms. Scott was jailed for a probation
violation. The victim regularly put money on Ms. Scott’s jail account so Ms. Scott could
call the victim from jail. Ms. Scott stated that the victim and Defendant had been in a
romantic relationship for about two years. Ms. Scott explained that the victim received a
monthly social security disability check and that Defendant was the “representative
payee” who handled the victim’s checking account.
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Ms. Scott had a parole hearing on July 7, 2015 and became concerned when the
victim and Defendant did not show up to the hearing. Later that month, Ms. Scott
learned that money had been put into her account, so she called to talk to her sister.
Defendant told Ms. Scott that her sister “had been missing for over a month.” Defendant
explained to Ms. Scott that he and the victim had argued and she left while he was
sleeping. Defendant told Ms. Scott that he would report the victim as missing to the
police. Ms. Scott called back a few days later and became more concerned after hearing
that Defendant had not contacted the police.
In early August, Ms. Scott made several phone calls to the Clay County Sheriff’s
Office and reported her sister missing to Sheriff Boone. Sheriff Boone opened an
investigation on August 7, 2015. On August 8, 2015, Deputy Jason Sells and Deputy
Tyler Thompson spoke to Defendant about the missing person report. Defendant told the
deputies that the victim had been missing since July 8. Defendant had not reported her
missing because he “just figured she’d show up sometime.” Defendant told the deputies
that the victim left after an ongoing argument about money. Defendant told them he had
made some inquiries with some of her friends to try to find her. Defendant explained that
the victim had an appointment with an attorney in Nashville to collect on a settlement.
Defendant claimed that he called the attorney and asked him to call if she showed up.
Defendant admitted to the deputies that he had received the victim’s disability check and
used it to pay off some of her “bad checks.”
Several days after the sheriff’s office first contacted Defendant, Sheriff Boone
went to Defendant’s house. Defendant agreed to let Sheriff Boone look around his house.
Defendant accompanied the sheriff and made conversation explaining that he was
remodeling. Defendant also pointed out clothing that the victim left behind.
While Sheriff Boone was in the house, Chief Deputy Jeffery Allen and Deputy
Josh Brawner looked around the property outside Defendant’s home. Deputy Brawner
discovered a patch of ground that seemed out of place. It appeared “that something had
been buried there.” Chief Deputy Allen retrieved a shovel from his car and started to dig.
Chief Deputy Allen recalled a very distinct odor. He went inside Defendant’s house and
asked Defendant if he knew what was buried behind Defendant’s house, and Defendant
replied that he did not.
Digging resumed and about eighteen inches down, the deputies felt a “mass.”
Chief Deputy Allen notified Sheriff Boone. Sheriff Boone also smelled a “very strong
odor of body decomposition.” Enough of the mass was uncovered to determine that it
was a human torso buried in the ground. Sheriff Boone then requested the assistance
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from the TBI. The site was secured that day and processing continued with help from the
TBI.
The following morning Sheriff Boone noticed another area on the property that
“looked abnormal.” Another shallow grave was discovered that contained plastic trash
bags with the victim’s head and flesh inside. The TBI forensics team exhumed the
victim’s remains under the direction of Dr. Hugh Berryman. The victim’s limbs were
found in trash bags inside Defendant’s freezer.
Dr. Zimmerman performed the autopsy on the victim and determined that the
victim’s head had been severed by using some type of saw. Dr. Zimmerman provided
testimony substantially similar to the testimony that he provided during the pre-trial
hearing. Dr. Zimmerman stated that the cause of death was “homicidal violence.” Dr.
Zimmerman noted that injuries to the neck were not always observed in strangulation
deaths. He agreed that a “carotid sleeper hold” could cause unconsciousness within
seconds and could lead to death if not released. Dr. Zimmerman agreed that drug
intoxication could decrease the time required for the sleeper hold to cause death.
Herman Goolsby, Defendant’s closest neighbor, testified that he liked to sit on his
porch during the warmer weather months. At some time while Mr. Goolsby was on his
porch, he heard who he assumed to be the victim and Defendant arguing. Mr. Goolsby
stated that he heard Defendant tell the victim to “shut her mouth.” Mr. Goolsby heard the
victim beg Defendant not to hurt her and saying “Honey, Ed, honey, don’t hurt me. I
love you.” Mr. Goolsby then heard something fall. After this day, Mr. Goolsby never
saw the victim again. During Mr. Goolsby’s testimony, Defendant objected to hearsay,
and the State argued that it was admissible as an excited utterance. The trial court
allowed testimony to proceed but eventually sustained Defendant’s objection because a
proper foundation had not been laid. The State asked for a jury-out hearing to present an
offer of proof. Mr. Goolsby left the witness stand and the State proceeded with their next
witness. The trial court noted that it was “difficult to understand [Mr. Goolsby], given
his health conditions and things of that nature.” The court allowed the State to recall Mr.
Goolsby and stated that “you’re going to have to control him and slow down.” The State
responded that given “the dialect that [Mr. Goolsby] uses, we’re getting what we’re going
to get out of him.” Defendant again objected on relevance and hearsay grounds based
mostly on the witness not recalling when he heard the argument between Defendant and
the victim. Mr. Goolsby then testified that he heard the argument in the summer of 2015,
which narrowed the time frame to the relevant time. The trial court then had the
following exchange with Mr. Goolsby:
Trial Court: Let me ask you a quick question. When you heard the
female’s voice, did she sound – how did she sound? Did she sound calm or
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– how did she, when you heard the female’s voice, how would you
describe, how would she sound?
Mr. Goolsby: She was begging not – him not to hurt her.
Trial Court: Okay. Did she sound upset or calm?
Mr. Goolsby: Yeah, yeah, she sounded upset. Yeah.
The trial court stated that the testimony “helped the [c]ourt a lot to understand what just
took place.” The trial court ruled that the State could recall Mr. Goolsby, and Defendant
restated his objections to hearsay and relevance.
Kent McCoy, a friend of Defendant’s, knew the victim as Defendant’s girlfriend.
Mr. McCoy stopped by Defendant’s house sometime during July and asked where the
victim was. Defendant responded that he “killed the bitch.” Defendant followed up by
saying “[n]o, I’m just kidding, . . . she took my truck and my money and left.” Mr.
McCoy replied that the victim would be back to which Defendant replied, “[n]o she
won’t be back.”
On August 11, 2015, Defendant agreed to go to the sheriff’s office and speak with
Investigator Slayton and Agent Hunley. Defendant’s statement was recorded and played
for the jury. Defendant told the investigators that on July 7 he and the victim had been
arguing for days over money and drugs. Defendant stated that he had “had enough” and
went to take a nap. When Defendant awoke, the victim was gone. Defendant explained
that it was not unusual for the victim to “disappear for a while.” He stated that he began
looking for her the following day. Defendant recounted that the victim caused him a
great deal of financial stress. In early July, Defendant loaned the victim $200 because
she was upset that her disability check was late. Although Defendant was the
“representative payee” on the victim’s disability check, he did not know what happened
to the proceeds of the July check. He stated that he cashed her August check and used
the funds to pay off some of the victim’s debts. Defendant took the $200 that the victim
owed him and also added funds to Ms. Scott’s jail account.
Defendant claimed that the victim was supposed to receive a large settlement from
a lawsuit against a doctor and that he was promised some of the proceeds. Defendant,
however, doubted whether she had told him the truth about the settlement. Defendant
claimed that he tried to help the victim financially and to help keep her off drugs. Due to
his efforts to help the victim, he lost his house.
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Defendant stated that the victim hit him often but that he never hit her back.
Defendant stated that he would only grab her by the shoulders or arms to make her stop
hitting him. Defendant denied hurting the victim after their last argument. He denied
knowing what happened to the victim and insisted that he would have told investigators if
he had accidentally killed her. At the end of the interview, Defendant consented to a
search of his house and surrounding property. Sheriff’s deputies drove Defendant back to
his house where a search was conducted.
When the victim’s torso was found in a shallow grave during the search,
Investigator Slayton again interviewed Defendant. The second interview was also
recorded and played for the jury at trial. Defendant claimed that he “ha[d] no idea” what
was in the grave. He stated that he had not been in that area of his property. After
Investigator Slayton asked Defendant what happened, Defendant admitted that he and the
victim had been fighting and arguing for several days. The victim began hitting
Defendant, and he walked away at first. Defendant then “just grabbed her by the
shoulders” and shoved her onto the bed. The victim got up and Defendant “pushed her
on the bed a couple of times.” After he pushed her, Defendant claimed he could not
remember anything else. After a short break, Defendant recalled that after he pushed her
down, he walked through the house, and the victim slammed the bedroom door.
Defendant then stated “[h]ow the f . . k could I do that and not ever want to hurt her?”
Defendant then claimed he did not remember how the victim died.
Defendant stated the last time he pushed the victim on to the bed, he “got on top of
her” and held her down. Defendant told the victim to leave and to stop bothering him.
Defendant walked out of the room and told the victim he was “not doing this anymore.”
The victim slammed the bedroom door and told Defendant that he would not receive any
of her settlement money. Defendant went to the front room of his house, laid down on
the floor, and went to sleep.
After continued questioning by Investigator Slayton, Defendant said that the
victim came out of the bedroom and obtained a knife from the kitchen. The victim told
Defendant that “she was going to f. . . ing cut [his] head off.” Defendant disarmed the
victim when she came after him with the knife. Defendant then “put her up . . . in a
headlock-type situation and thought she had passed out.” Defendant dragged the victim
back to the bedroom and put her on the mattress. About an hour or two later, Defendant
went to wake the victim up. When Defendant realized the victim was dead, he “freaked
out.” Defendant was “scared” and “sat there and cried.” Defendant believed it was about
10:00 or 11:00 p.m. when he discovered the victim was dead. Defendant stated that he
left the victim in the bedroom during the two days it took him to dig the grave.
Defendant denied dismembering the victim and stated that he wrapped her body in a
quilt. Defendant admitted that he placed the victim in the grave.
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The day after the shallow grave was found, Investigator Slayton interviewed
Defendant a third time. The third interview was recorded and played for the jury at trial.
Investigator Slayton informed Defendant that human body parts had been found in
Defendant’s freezer. Defendant then agreed with Investigator Slayton’s suggestion that
Defendant dismembered the victim because she was too heavy to move. Defendant
became reluctant to discuss further details.
Defendant admitted that after finding the victim dead that he “was just scared to
death.” Defendant had ruled out calling 9-1-1 because of previous domestic disputes and
“being the one . . . persecuted.” Defendant thought that officers would not believe his
story that the victim’s death was an accident and that he would go to jail. Defendant
decided that calling the police was not an option. Defendant agreed that the only other
option he considered was to hide the victim’s body.
Defendant then described how he used a large kitchen knife to cut the victim up
“like [he] would a deer.” After cutting the victim up, he “took a bath in that bathtub and
scrubbed everything clean.” Defendant claimed that he put the victim’s head and torso in
the same grave. Defendant planned to scatter the body parts that were in the freezer in
different places. He had already taken one of the victim’s legs to the dump in his trash.
Defendant had taken the victim to a doctor’s appointment on July 7. He stated that
the victim was agitated because the doctor did not write her a prescription. Defendant
and the victim got in to an escalated argument at home when Defendant refused to give
the victim money to buy pills. The victim began hitting Defendant when he claimed that
he did not love her and had “just put up with [the victim’s s. . .t] for all this [f . . .ing]
time for no reason.” Defendant told the victim that he had “had enough” and pushed her
down on the bed four or five times. Defendant then straddled the victim and told her that
“this was not going to happen no more.” Defendant then left the bedroom, and the victim
slammed the door. A short time later, the victim emerged from the bedroom and got a
knife from the kitchen. She came at Defendant yelling that she was going to “kill [him].”
Defendant grabbed the victim by the wrist and disarmed her. He pushed the victim back
into the bedroom. The victim threatened to call the police and to have “all these people”
come after Defendant.
Defendant told Investigator Slayton the “last straw” came when the victim
obtained another knife. Defendant again disarmed the victim. He then “spun[the victim]
around [and] locked her into [his] arm” in a choke hold. He applied the hold for about
fifteen seconds until she stopped “flailing and stuff.” When she went “limp,” he “tossed
her on the bed.” Defendant walked away to calm down for “probably a couple of
minutes.” Defendant then went to check on her and found her dead. Defendant stated
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that if he got “rid of her body, there ain’t – there ain’t no [f . . . ing] problem, you know?”
Defendant made the decision to dispose of the victim’s body within a couple of hours of
the victim’s death.
Over the next two nights after the killing, Defendant dug a hole. After completing
the hole, Defendant realized that the victim was too heavy and decided to dismember her.
He dragged the victim’s body in to the bathtub. Defendant got a large knife, removed the
victim’s limbs, and let her “bleed out” in the tub. Defendant then removed the victim’s
head and cut off “three or four inches” of skin and fat “to make it light and manageable.”
He put some of the skin and fat in a trash bag, and drove to a remote road. He threw the
flesh into an area where he knew that coyotes and “wolf hybrids” were located.
Defendant then returned home and cleaned the bathroom.
Photographs of the victim’s remains, the graves, Defendant’s house and property,
the bathroom and bathtub with blood splatters, and Defendant’s freezer with the black
trash bags were all entered in to evidence and shown to the jury.
Defendant waived his right to testify and offered no additional proof.
The jury found Defendant guilty of first degree murder and abuse of a corpse.
Defendant timely filed a motion for new trial, and the trial court denied the motion. It is
from that denial that Defendant now appeals.
Analysis
On appeal, Defendant argues that the trial court erred when in denied Defendant’s
motion to sever the offenses, that the trial court improperly inserted itself into the
proceedings when it permitted the State to recall Herman Goolsby, that the trial court
erred when it found that Mr. Goolsby’s testimony was admissible as an excited utterance,
that the State erred in its closing argument by making unsupported inferences and making
improper references to facts not in evidence, and that the evidence is insufficient to
sustain a conviction of first degree murder. The State argues that the offenses were
properly joined, that the trial court did not err in its rulings concerning Mr. Goolsby, that
the State’s closing argument was proper because it was based on reasonable inferences
from facts in evidence, and that evidence was sufficient to sustain a conviction of first
degree murder.
I. Motion to Sever Offenses
Defendant argues that the trial court erred when it denied Defendant’s motion to
sever the offenses and that the error irrevocably prejudiced Defendant. Specifically,
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Defendant argues that the trial court first erred by concluding that the offenses of first
degree murder and abuse of a corpse were subject to mandatory joinder. Defendant
further argues that even under permissive joinder, “the offenses could not be tried
together because evidence of one offense would not have been admissible in a trial on the
other offense.” The State argues that the offenses are “inextricably linked and subject to
mandatory joinder.” The State contends that the offenses were also subject to permissive
joinder. We agree with the State.
Joinder of offenses may either be mandatory or permissive. See Tenn. R. Crim. P.
8(a), (b). “Two or more offenses must be joined or consolidated if (1) the offenses arise
from the same conduct or criminal episode; (2) the conduct is known to the appropriate
prosecuting official at the time of the return of the indictment; and (3) the offenses fall
within the jurisdiction of a single court.” State v. Baird, 88 S.W.3d 617, 620 (Tenn.
Crim. App. 2001) (citing Tenn. R. Crim. P. 8(a)). Offenses are part of the “same
conduct” when “a single act . . . results in a number of interrelated offenses.” State v.
Johnson, 342 S.W.3d 468, 473 (Tenn. 2011). Offenses are part of the “same criminal
episode” when they “occur simultaneously or in close sequence,” “occur in the same
place or in closely situated places,” and “proof of one offense necessarily involves proof
of the others.” Id. at 475 (internal quotations and citations omitted). The Advisory
Commission Comments to Tennessee Rule of Criminal Procedure 8 provide:
This rule is designed to encourage the disposition in a single trial of
multiple offenses arising from the same conduct and from the same
criminal episode, and should therefore promote efficiency and economy.
Where such joinder of offenses might give rise to an injustice, Rule
14(b)(2) allows the trial court to relax the rule.
Rule 14 allows a trial court to sever mandatorily joined offenses before trial if
appropriate to promote a fair determination of the defendant’s guilt or innocence. See
Tenn. R. Crim. P. 14(b)(2)(A). The trial court’s refusal to grant a severance under
Tennessee Rule of Criminal Procedure 14(b)(2) will not be reversed unless the defendant
was prejudiced by the decision to try the charges together. State v. Wiseman, 643 S.W.2d
354, 362 (Tenn. Crim. App. 1982).
In reviewing a claim under the mandatory provision of Tennessee Rule of
Criminal Procedure 8(a), this Court is bound by the trial court’s factual findings unless
the evidence preponderates against them. State v. Baird, 88 S.W.3d 617, 620 (Tenn.
Crim. App. 2001). The trial court’s application of the law to the facts is reviewed de
novo, with no presumption of correctness. Id. A trial court’s decision concerning
permissive joinder is reviewed on appeal for an abuse of discretion. State v. Shirley, 6
S.W.3d 243, 247 (Tenn. 1999). A trial court’s denial of a motion to sever offenses will
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be reversed on appeal only when the trial court “applied an incorrect legal standard, or
reached a decision which is against logic or reasoning that caused an injustice to the party
complaining.” Id. (quoting State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)); see also
State v. Goodwin, 143 S.W.3d 771, 780 (Tenn. 2004).
After reviewing the evidence presented at the severance hearing, the trial court
concluded that the two offenses arose from the same criminal episode. See State v.
Johnson, 242 S.W.3d 468, 474-75 (Tenn. 2011). The trial court found that Defendant
made the decision to “get rid of the body . . . within a very short time” after killing the
victim. The trial court found that Defendant’s idea to dispose of the victim’s body and
the execution of his plan was “in close sequence” to the killing, and that it occurred in the
same place as the killing. The trial court further found that the proof of the killing was
inextricably linked to the proof of the abuse of a corpse offense. Based on its findings,
the trial court found that mandatory joinder applied and severance was not appropriate.
The proof does not preponderate against the findings of the trial court. Defendant
killed the victim. Based on his own statement, Defendant decided within a short period
of time that his only option was to dispose of the body. He killed the victim, left her
lying in a bed for two days, and then dismembered her; each event happened under the
same roof. He left the body to decompose in a bed for two days while digging a grave.
The fact that his physical limitations made the labor difficult and took two days, does not
negate the fact that the intent was formed “in close sequence” to the killing. Defendant’s
recorded statement to Investigator Slayton regarding his decision to not call 9-1-1,
leaving him only with the option to dispose of the body is “inextricably connected” to the
victim’s murder and abuse of her corpse. As we have found that mandatory joinder was
appropriate, it is not necessary to decide whether permissive joinder applies.
Given that mandatory joinder is appropriate, nothing in the record shows that
Defendant suffered prejudice from the joinder of the offenses. Defendant argues that the
two offenses cannot be separated in the minds of jurors. However, the trial court
instructed the jury that it must consider each count as a separate and distinct offense, and
it must decide each charge separately on the evidence and the applicable law. Jurors are
presumed to follow the trial court’s instructions. State v. Parker, 350 S.W.3d 883, 897
(Tenn. 2011).
Defendant also contends that by trying the offenses together the photographs of
the victim’s dismembered body would be presented and would only serve to inflame the
jury. However, even if the offenses were severed, the photographs of the victim’s
remains would be relevant and admissible at separate trials. Defendant has not shown he
suffered prejudice. Defendant is not entitled to relief.
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II. Violation of Right to Fair Trial
Defendant argues that the trial court improperly inserted itself into the proceedings
when it re-raised the issue of Mr. Goolsby’s testimony and assisted in “coaxing relevant
testimony out of the witness.” In so doing, Defendant claims the trial court violated his
right to a fair trial. The State argues that Defendant’s claim that the trial court unfairly
intervened has been waived. Specifically, the State argues that Defendant only objected
on the grounds of relevancy and hearsay during the trial and that Defendant did not
include the violation of Defendant’s right to a fair trial in his motion for new trial. We
agree the issue has been waived by Defendant.
Our supreme court has stated that parties are entitled to an impartial judge. State
v. Smith, 357 S.W.3d 322, 339 (Tenn. 2011). “[I]f the public is to maintain confidence in
the judiciary, it is required that cases be tried by unprejudiced and unbiased judges.” Id.
(internal citations omitted). A contemporaneous objection is required when a party
objects to the trial court’s actions outside the presence of a jury. See Tenn. R. Evid.
614(c).
Here, the trial court brought up the testimony of Mr. Goolsby on its own. The trial
court was clear in its reasoning that it was trying to understand what Mr. Goolsby was
saying. The State had also requested to present an offer of proof. While we do not have
a recording of the proceedings, the transcript is clear that Mr. Goolsby’s manner of
speaking was difficult to understand. Outside the presence of the jury, Mr. Goolsby was
further questioned by the State and by the trial court, and the trial court reversed its
earlier ruling and allowed Mr. Goolsby’s testimony to be presented to the jury.
Defendant objected on the grounds of relevancy and hearsay. Defendant did not object to
the trial court’s questioning of Mr. Goolsby, nor did it raise an objection as to the trial
court’s “coaching” on the excited utterance exception. As well, Defendant did not
include the violation of his right to a fair trial claim in his motion for new trial. As it is
being presented for the first time on appeal, the issue is waived. See Tenn. R. App. P
3(e).
Tennessee Rule of Appellate Procedure 36(b) allows this Court to take notice of
plain errors that were not raised in the trial court. State v. Smith, 24 S.W.3d 274, 282
(Tenn. 2000). Issues not raised at trial may be reviewed in the discretion of the appellate
court for plain error when these five factors are established: (a) the record clearly
establishes what occurred in the trial court; (b) a clear and unequivocal rule of law was
breached; (c) a substantial right of the accused was adversely affected; (d) the defendant
did not waive the issue for tactical reasons; and (e) consideration of the error is necessary
to do substantial justice. State v. Martin, 505 S.W.3d 492, 504 (Tenn. 2016). In this
case, Defendant admittedly raised the issues for the first time on appeal, thereby waiving
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plenary review. Consequently, we will look to see if the trial court’s failure to merge the
convictions constitutes plain error. Defendant has not established that a clear and
unequivocal rule of law was breached. Defendant is not entitled to relief.
III. Excited Utterance
Defendant argues that the trial court erred when it found that Mr. Goolsby’s
testimony was admissible under the excited utterance exception to the hearsay rule.
Specifically, Defendant argues that Mr. Goolsby was unable to articulate “any
meaningful details about the alleged statement,” and he was “unable to satisfy even the
most basic elements of the excited utterance exception.” The State argues that Mr.
Goolsby’s testimony was properly admitted. We agree with the State.
“Admission of evidence is entrusted to the sound discretion of the trial court, and a
trial court’s ruling on evidence will be disturbed only upon a clear showing of abuse of
discretion.” State v. Robinson, 146 S.W.3d 469, 490 (Tenn. 2004). The Tennessee Rules
of Evidence provide that all “relevant evidence is admissible,” unless excluded by other
evidentiary rules or applicable authority. Tenn. R. Evid. 402. Relevant evidence is
defined as 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.
“Hearsay” is defined as “a statement other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Tenn. R. Evid. 801(c). Hearsay is not admissible except as allowed by the
rules of evidence or other applicable law. Tenn. R. Evid. 802. When a trial court makes
factual findings and credibility determinations in the course of ruling on whether an item
of evidence is hearsay, these factual and credibility findings are binding on a reviewing
court unless the evidence in the record preponderates against them. State v. Gilley, 297
S.W.3d at 759-61. The questions of whether a statement is hearsay or fits under one of
the exceptions to the hearsay rule are questions of law and subject to de novo review by
this Court. Kendrick v. State, 454 S.W.3d 450, 479 (Tenn. 2015). One exception to the
prohibition against hearsay evidence is for excited utterances. An excited utterance is
“[a] statement relating to a startling event or condition made while the declarant was
under the stress or excitement caused by the event or condition.” Tenn. R. Evid. 803(2).
“Underlying the excited utterance exception is the theory that ‘circumstances may
produce a condition of excitement which temporarily stills the capacity of reflection and
produces utterances free of conscious fabrication.’” State v. Franklin, 308 S.W.3d 799,
823 (quoting State v. Land, 34 S.W.3d 516, 528 (Tenn. Crim. App. 2000)).
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While Mr. Goolsby could not identify the exact date, he identified the time frame
as during the summer months because he sat outside during the warmer weather. Mr.
Goolsby also identified Defendant and the victim as his closest neighbors and confirmed
that he was able to hear them from his house. Mr. Goolsby heard an argument coming
from his neighbor’s house. Mr. Goolsby testified that a female voice was “begging” and
that she was upset. The female called out “Ed, don’t hurt me.” In our view, such a
statement, as described under these circumstances, can reasonably be interpreted as a
statement related to a condition made while the declarant was under stress or excitement.
We conclude that the testimony fits within the excited utterance exception to the hearsay
rule. Therefore, the trial court did not abuse its discretion in admitting the statement
during the testimony of Mr. Goolsby. Defendant is not entitled to relief.
IV. Closing Argument
Defendant claims that the State “engaged in unsupported speculation during its
closing arguments about facts not found it evidence.” The State argues that Defendant
has waived this issue because Defendant did not object during the State’s closing. See
State v. Jordan, 325 S.W.3d 1, 57-58 (Tenn. 2010). We agree with the State that the
argument has been waived.
“Appellate review generally is limited to issues that a party properly preserves for
review by raising the issues in the trial court and on appeal.” State v. Minor, 546 S.W.3d
59, 65 (Tenn. 2018). However, Tennessee Rule of Appellate Procedure 36(b) allows this
Court to take notice of plain errors that were not raised in the trial court. Smith, 24
S.W.3d at 282. Initially, Defendant points to no unequivocal rule of law that has been
breached. Defendant is not entitled to plain error relief because he has not established all
five factors necessary for plain error review. See State v. Smith, 24 S.W.3d 274, 282
(Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 626, 642 (Tenn. Crim. App. 1994).
Defendant is not entitled to plain error review.
V. Sufficiency of Evidence
Defendant argues that the State failed to establish that Defendant acted with
premeditation. The State asserts that the evidence was sufficient to prove all the elements
of first degree murder.
Well-settled principles guide this Court’s review when a defendant challenges the
sufficiency of the evidence. A guilty verdict removes the presumption of innocence and
replaces it with a presumption of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn.
1992). The burden is then shifted to the defendant on appeal to demonstrate why the
evidence is insufficient to support the conviction. State v. Tuggle, 639 S.W.2d 913, 914
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(Tenn. 1982). The relevant question the reviewing court must answer is whether any
rational trier of fact could have found the accused guilty of every element of the offense
beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.
307, 319 (1979). On appeal, “the State is entitled to the strongest legitimate view of the
evidence and to all reasonable and legitimate inferences that may be drawn therefrom.”
State v. Elkins, 102 S.W.3d 578, 581 (Tenn. 2003). As such, this Court is precluded from
re-weighing or reconsidering the evidence when evaluating the convicting proof. State v.
Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d
776, 779 (Tenn. Crim. App. 1990). We may not substitute our own “inferences for those
drawn by the trier of fact from circumstantial evidence.” Matthews, 805 S.W.2d at 779.
Further, questions concerning the credibility of the witnesses and the weight and value to
be given to evidence, as well as all factual issues raised by such evidence, are resolved by
the trier of fact and not the appellate courts. State v. Pruett, 788 S.W.2d 559, 561 (Tenn.
1990). “The standard of review ‘is the same whether the conviction is based upon direct
or circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)
(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).
Here, Defendant was charged with first degree murder. In relevant part, first
degree murder is “[a] premeditated and intentional killing of another.” T.C.A. §39-
13202(a)(1). Tennessee Code Annotated §39-13-202(d) defines premeditation as:
An act done after the exercise of reflection and judgment.
“Premeditation” means that the intent to kill must have been formed prior
to the act itself. It is not necessary that the purpose to kill preexist in the
mind of the accused for any definite period of time. The mental state of the
accused at the time the accused allegedly decided to kill must be carefully
considered in order to determine whether the accused was sufficiently free
from excitement and passion as to be capable of premeditation.
The State must establish the element of premeditation beyond a reasonable doubt.
See State v. Sims, 45 S.W.3d 1, 7 (Tenn. 2001); State v. Hall, 8 S.W.3d 593, 599 (Tenn.
1999). Premeditation may be proved by circumstantial evidence. See, e.g., State v.
Brown, 836 S.W.2d 530, 541-42 (Tenn. 1992). The existence of premeditation is a
question of fact for the jury and may be inferred from the circumstances surrounding the
killing. State v. Young, 196 S.W.3d 85, 108 (Tenn. 2006); State v. Suttles, 30 S.W.3d
252, 261 (Tenn. 2000). Such circumstances include, but are not limited to, the use of a
deadly weapon upon an unarmed victim, the particular cruelty of the killing, the infliction
of multiple wounds, threats or declarations of an intent to kill, a lack of provocation by
the victim, failure to aid or assist the victim, the procurement of a weapon, preparations
before the killing for concealment of the crime, destruction and secretion of evidence of
the killing, and calmness immediately after the killing. State v. Kiser, 284 S.W.3d 227,
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268 (Tenn. 2009); State v. Leach, 148 S.W.3d 42, 53-54 (Tenn. 2004); State v. Davidson,
121 S.W.3d 600, 615 (Tenn. 2003); State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997);
State v. Larkin, 443 S.W.3d 751, 815-16 (Tenn. Crim. App. 2013).
Defendant contends that the only evidence the State presented that substantiates
premeditation is the dismemberment and concealment of the victim’s body. Defendant
relies on State v. Jackson in that “concealment of evidence of a crime, standing alone, is
insufficient to prove premeditation.” 173 S.W.3d 401, 409 (Tenn. 2005). While this is
true, the jury heard evidence that Defendant was calm and collected throughout the
month that the victim was missing. He told the victim’s sister that he had every reason to
believe the victim was still alive. He took two days to dig a hole to put the victim in and
then realized she was too heavy, so he methodically dismembered her like a “deer.” He
cut pieces of the victim’s flesh off and threw them out for wild dogs to devour.
Defendant paid the victim’s debts to minimize inquiries into her whereabouts. Defendant
told a friend that he had killed her and that she “won’t be back.” Defendant admitted that
the victim had ruined him financially and that he had “had enough.” Defendant also
admitted to placing the victim in a choke hold and holding for about fifteen seconds until
she stopped “flailing and stuff.” The evidence is more than sufficient to support the
jury’s decision. Defendant is not entitled to relief.
Conclusion
For the foregoing reasons, the judgments of the trial court are affirmed.
____________________________________
TIMOTHY L. EASTER, JUDGE
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