State of Tennessee v. Zacarias Salas-Rufino

09/14/2021

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs June 29, 2021

STATE OF TENNESSEE v. ZACARIAS SALAS-RUFINO1

Appeal from the Criminal Court for Hamilton County

No. 302229 Barry A. Steelman, Judge

No. E2020-00986-CCA-R3-CD

Aggrieved of his Hamilton County Criminal Court jury conviction of second degree

murder, the defendant, Zacarias Salas-Rufino, appeals, challenging the admission of

certain telephone calls and the testimony of the medical examiner on the issue of “excited

delirium.” Discerning no error, we affirm.

Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

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

MCMULLEN, and ROBERT L. HOLLOWAY, JR., JJ., joined.

Hannah C. Stokes, Chattanooga, Tennessee (on appeal); and Erinn O’Leary, Assistant

District Public Defender (at trial), for appellant, Zacarias Salas-Rufino.

Herbert H. Slatery III, Attorney General and Reporter; Samantha L. Simpson, Assistant

Attorney General; Neal S. Pinkston, District Attorney General; and Cameron Williams and

Brian C. Bush, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

The Hamilton County Grand Jury charged the defendant with one count of

second degree murder for the death of his estranged wife, Yessica Ruiz, on September 26,

2016.2

The evidence adduced at the defendant’s May 2019 trial established that four

9-1-1 calls came from 3207 Navajo Drive in Chattanooga on September 26, 2016.

1

The record indicates that the defendant was also known as Carlos Delposo.

2

Although the offense giving rise to the charge in this case occurred on September 26, 2016, the

victim did not succumb to her injuries until October 1, 2016. For the sake of clarity, we will use the offense

date of September 26, 2016.

Emergency medical personnel responded to the first call, which had been placed by a man

who identified himself as Carlos, at 6:15 a.m. Emergency personnel “made contact with

an individual. . . . that was having what they told us was chest pains.” The individual

pointed at his chest and indicated “pressure,” but instead of going to the waiting ambulance,

the man turned around, said something in Spanish, and then drove away in a small pickup

truck. Paramedics described the man’s demeanor as “uncooperative and agitated.”

Emergency medical personnel responded to the second call at 6:50 a.m. and

found “a male, a female, and . . . two kids” “[r]ight inside the door.” The female spoke

only Spanish while the man spoke a mix of English and Spanish. The man, who was sitting

on the couch, told emergency personnel that he did not need an ambulance. Paramedics

performed a “quick assessment” by checking his pulse and respirations and found that

“[h]is pulse was not beating fast.” The man appeared “aggravated at” the presence of

emergency personnel but did not appear to be under the influence. The paramedics left at

6:59 a.m.

Sometime between 6:55 and 7:15 a.m., Navajo Drive resident Sharon Brown

heard “screaming and yelling and arguing” from her bathroom window. Ms. Brown

glanced out the window and saw the victim and the defendant, whom she knew only as

“Carlos,” arguing. The argument was in Spanish, so Ms. Brown, a native English speaker,

could not understand what they were saying. Eventually, the sound of the argument, which

had gotten significantly louder, traveled to the side of the building. Ms. Brown opened the

door, and “it got louder.” Ms. Brown testified that she had “never heard wails or cries like

that, and screaming and yelling” and that it sounded as though the victim “was fighting for

her life.”

When “it went quiet,” Ms. Brown went outside and saw the victim “come

out from around the wall,” “walk[] a little way[],” and then fall to the ground “at that rock

wall. She didn’t make it far.” The victim rolled over, and Ms. Brown “saw the blood

coming down her leg,” so she called 9-1-1. The victim crawled to the middle of the yard,

lay “on her side for a few seconds, and then she rolled over on her back” before calling out,

“‘Help me.’” Ms. Brown did not see the defendant but heard him “over there” “[b]eside

the apartment” “doing something loud.” At some point, the couple’s children came

outside, and Ms. Brown took them into her apartment. The children “were very upset.”

Ms. Brown saw no one other than the defendant and the victim from the time she first heard

them arguing to the time the police arrived.

Sometime in the early morning hours of September 26, 2016, the defendant

knocked on the door of Tolbert Dye, who lived in the same building as the defendant, and

asked to come inside and sit on the couch but did not mention any health problems. When

Mr. Dye told the defendant that he could not come inside because Mr. Dye’s seven

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Chihuahuas were out, the defendant, who was behaving “[n]ormal like,” “walk[ed] back

down the steps, back down to his apartment.” A short time later, Mr. Dye was awakened

by “[a] big old boom” coming from “[s]omewhere right there in the hallway” outside the

apartment shared by the defendant and the victim. He then “heard the door shut. I could

hear [the victim] crying” “[o]h, no, Carlos, oh, no.” Mr. Dye went back to bed because he

did not want to “get in no domestic violence,” and when he woke up again, he saw “some

blue lights and” looked outside to see the victim “lying right there in front of this truck

where the tree is.” He heard the defendant “hollering ‘Jessica, Jessica,’” and “Help me.”

Chattanooga Police Department (“CPD”) Officer Matthew Ballinger

responded to Ms. Brown’s 9-1-1 call. When he arrived at 3207 Navajo Drive “around 7

o’clock in the morning,” he found “a female lying on the ground covered in blood and there

were two children sitting near her.” Officer Ballinger “tried to talk to her for a second. . .

. It seemed like she was trying to mumble something, but I couldn’t tell what it was.” He

did not stay with the victim “very long, because I had to jump down back onto Navajo

Drive because I heard screaming coming from Navajo Drive.” As Officer Ballinger got

closer to the sound of the screams, he saw the defendant “in the street” “running towards

me at full speed.” Officer Ballinger drew his weapon and ordered the defendant to the

ground. The defendant complied. The defendant, who “seemed very excited,” said

“policia” and “help.” Officer Ballinger handcuffed the defendant and seated him on the

curb because he was covered in blood and had a small injury to his leg. The defendant

continued “spontaneously uttering things” and “yelling” “police” and “help” as he sat on

the curb. His demeanor alternated between “calm to screaming, calm to screaming,” and

he “slumped over at one point.”

The defendant was transported by ambulance to Parkridge Hospital for

treatment of the injury to his leg. Although the defendant had a slightly elevated blood

pressure, elevated blood sugar, elevated respiratory rate, elevated heart rate, and was

sweating profusely, none of these symptoms was dangerous or indeed serious enough to

warrant treatment. The defendant was oriented to time and place and was able to

communicate his name, date of birth, and address to paramedics. Despite this, the

defendant’s behavior was “paranoid and bizarre.” “[O]ne minute he’s screaming and

yelling; the next, he is calm and cooperative, then he accuses people of killing him, and

he’s afraid of lights.” Paramedics indicated on a report that “‘excited delirium is a

possibility’” even though “[t]he fact that he was sometimes lucid and sometimes erratic . .

. indicated . . . that excited delirium probably wasn’t the case” because “sometimes some

of the responses to patients who are suffering from excited delirium by emergency

responders can be the wrong ones.”

Doctor Paul Bing treated the defendant at Parkridge Hospital and, following

an observation of the defendant that lasted only minutes, diagnosed the defendant with

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“cocaine and methamphetamine delirium,” which he described as “a state of intoxication

to the extent that you become delirious; in other words, . . . a state of delirium is marked

by confusion, not being in tune with reality, not being aware of really your surroundings

and what’s going on, often with agitation.” Doctor Bing gave the defendant “medicine to

calm him down,” and the defendant “settled down” and “might have even gone to sleep.”

Doctor Bing checked on the defendant after “a few hours” and stitched the cut in the

defendant’s leg. Blood tests indicated that the defendant had used cocaine and

methamphetamine but not alcohol.

Emergency personnel transported the victim to Erlanger Hospital, where she

remained until her death on October 1, 2016. An autopsy established that the cause of her

death was multiple stab wounds and the manner of death was homicide. A total of 27 stab

wounds covered the victim from head to toe and were “mostly concentrated along the left

arm, the chest, and the right side of her back.” She also suffered stab wounds to the scalp,

mouth, and neck. Only two of the wounds “actually hit vital structures,” and the remainder

“are basically going into subcutaneous fat and muscle and soft tissue.” One of the fatal

wounds was a chest wound that “actually penetrate[d] into the chest cavity and hit[] the

left lung . . . , causing hemorrhage into the chest cavity.” The other was a wound to the

victim’s left thigh that “hit the femoral artery,” causing “a lot of hemorrhage.” The

combination of these two wounds “plus the other wounds -- which are also going to bleed,

although not profusely -- results in enough blood loss that even though these injuries are

repaired surgically, by that time she had not had enough blood going to her brain and

suffered brain death, basically, or anoxic brain injury.”

The Tennessee Bureau of Investigation conducted forensic testing on a

kitchen knife recovered from the scene near where the victim eventually fell to the ground

and the clothing the defendant was wearing at the time of her death. Forensic testing

established that the blood on the knife blade came from the victim. The DNA profile

obtained from the knife handle indicated three people: the victim, an unknown male, and a

third person. The defendant’s DNA was not present on the knife in an amount detectable

via forensic testing. Blood on the defendant’s shirt came from both the victim and the

defendant.

Based on the evidence presented at trial, the jury convicted the defendant as

charged of second degree murder, and, following a sentencing hearing, the trial court

imposed a sentence of 25 years’ incarceration, to be served at 100 percent by operation of

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

timely notice of appeal.

In this appeal, the defendant contends that the trial court erred by admitting

into evidence three 9-1-1 calls placed by the victim in April and May 2016 and a telephone

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conversation between the defendant and his employer following the defendant’s arrest and

by permitting the medical examiner to render an opinion on whether the defendant had

suffered from “excited delirium” at the time of the stabbing.

I. 9-1-1 Calls

Prior to trial, the defendant moved the trial court to exclude from evidence

three 9-1-1 calls placed by the victim in April and May 2016 as inadmissible hearsay and

impermissible propensity evidence. The State argued that the calls were admissible via the

excited utterance exception to the hearsay rule to establish the defendant’s identity as the

perpetrator, his motive for the killing, the nature of the relationship between the defendant

and the victim, and the defendant’s settled intent to harm the victim.

At the hearing on the defendant’s motion in limine, CPD Officer Calvin

Cooper testified that he had responded to “more than one call” placed from the 3207 Navajo

Drive residence of a “[f]emale by the name of Yessica Ruiz and a person we were told was

Delposo.” He identified the defendant as the person he knew as “Delposo.” It was Officer

Cooper’s understanding that the defendant and the victim were “boyfriend and girlfriend”

and that they shared two young children. On April 12, 2016, Officer Cooper responded to

“a domestic assault call” placed at approximately “4 or 5 in the morning.” The defendant

told Officer Cooper that the victim “had just returned home by means of another man, and

she was intoxicated, and she was more of the one causing the disorder.” Officer Cooper

recalled that the defendant spoke enough English to communicate with him but that the

victim spoke very little English, “enough just to . . . articulate with her hand motions that

she’d been assaulted in the face.” She indicated with “a closed fist towards her face.”

Officer Cooper also used “a cellphone app called Google Translate” when speaking to the

victim. Officer Cooper “recall[ed] a mark on her face but I don’t recall where it was

exactly.” The victim told Officer Cooper that the defendant had assaulted her, but the

defendant “stated that she came home in that state.” Given that the defendant and the

victim provided “conflicting statements,” Officer Cooper “just transported him to a

different location” because the victim indicated that she did not have anywhere else to go.

Officer Cooper responded to another domestic violence call at 3207 Navajo

Drive on May 23, 2016, at “1 or 2 in the morning.” When he arrived, he found the

defendant and the victim engaged in an argument. “[S]he was saying he wouldn’t leave

her alone, and he would state that she wasn’t leaving him alone.” Officer Cooper “advised

both parties to go to separate rooms. [The defendant] said he was going to sleep on the

couch and she said she was going to sleep in the bedroom.” Officer Cooper “advised her

to lock the door” and to call back “if there were any problems.” He recalled that “both

parties had been intoxicated.” Officer Cooper responded to a second call later that same

morning and found “[p]retty much the same thing. They were just at it.” The victim told

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him that the defendant “kept knocking at her door.” Again, Officer Cooper asked the

parties if they had somewhere else to go, and the victim said she did not while the defendant

indicated the same address where Officer Cooper had taken him in April.

During cross-examination, Officer Cooper acknowledged that he did not

make any arrests in relation to the April call because he could not determine who was the

primary aggressor and could not establish that the defendant had actually caused the

victim’s injury. Officer Cooper said that the victim was obviously intoxicated on those

occasions that he responded to 3207 Navajo Drive and that the defendant did not appear to

be intoxicated despite saying that he had consumed “one or two beers.” In any event, the

defendant “wasn’t highly intoxicated to the level that she was.”

The defendant argued that none of the calls qualified as an excited utterance.

He noted that the victim did not allege any physical altercation in the first May 23 call and

that, although she alleged physical contact in the other calls, Officer Cooper’s testimony

negated her allegations. He argued that the victim’s allegations in the call were “not clear

and convincing proof of an actual event, and that the prejudicial effect of this would

strongly outweigh the probative value.” The State argued that the proof clearly showed a

startling event and argued that any evidence that someone other than the defendant injured

the victim went to the weight of the evidence and not its admissibility. The State argued

that the calls evinced the defendant’s “intent to harm the victim” and that evidence of the

defendant’s intent was particularly relevant given that the defendant had indicated that he

would rely, at least in part, on a voluntary intoxication defense. The prosecutor candidly

acknowledged that “[i]f the defense of intoxication or delirium is not asserted, then I don’t

know that the probative value outweighs the danger of unfair prejudice.” The defendant

said that the purpose of presenting such a defense would be to show that the defendant was

not able to form the requisite mental state for either first or second degree murder. The

prosecutor also argued that the calls were probative of motive, and, in turn, identity and

that they were even more crucial to the State’s case because the trial court had suppressed

the defendant’s statement to the police.

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

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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 be 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.

Generally speaking, “[e]vidence of a person’s character or trait of character

is not admissible for the purpose of proving action in conformity therewith on a particular

occasion.” Tenn. R. Evid. 404(a). This rule is subject to certain exceptions, however,

including “evidence of a pertinent trait of character offered by an accused or by the

prosecution to rebut the same.” Tenn. R. Evid. 404(a)(1). In addition, “[e]vidence of other

crimes, wrongs, or acts” may be admissible for “other purposes,” such as proving identity,

criminal intent, or rebuttal of accident or mistake. Tenn. R. Evid. 404(b); State v. Thacker,

164 S.W.3d 208, 239-40 (Tenn. 2005). To admit such evidence, the rule specifies four

prerequisites:

(1) The court upon request must hold a hearing outside the

jury’s presence;

(2) The court must determine that a material issue exists other

than conduct conforming with a character trait and must upon

request state on the record the material issue, the ruling, and

the reasons for admitting the evidence;

(3) The court must find proof of the other crime, wrong, or act

to be clear and convincing; and

(4) The court must exclude the evidence if its probative value

is outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 404(b).

Tennessee courts have accepted the use of evidence of a homicide

defendant’s threats or prior violent acts directed toward the homicide victim as a means of

allowing the State the opportunity to establish intent, theorizing that such evidence is

probative of the defendant’s mens rea at the time of the homicide because it reveals a

“settled purpose” to harm the victim. See State v. Smith, 868 S.W.2d 561, 574 (Tenn.

1993); see also State v. Turnbill, 640 S.W.2d 40, 46-47 (Tenn. Crim. App. 1982).

Specifically, our supreme court has ruled that “[v]iolent acts indicating the relationship

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between the victim of a violent crime and the defendant prior to the commission of the

offense are relevant to show defendant’s hostility toward the victim, malice, intent, and a

settled purpose to harm the victim.” Id.

On appeal, the defendant argues that the 9-1-1 calls do not fall within the

Smith rule because the State failed to present clear and convincing evidence that the

defendant had committed any prior “violent acts” against the victim. Noting Officer

Cooper’s testimony that it was unclear that the defendant had actually assaulted the victim

and that the calls were more in the nature of “verbal disorders,” the defendant asserts that

the trial court erred by admitting them. The defendant’s assertion that the calls did not

constitute evidence of other bad acts arguably cuts against his assertion that evidence rule

404(b) barred their admission. In the calls, the victim claimed that the defendant wanted

to hit her and kill her, that he had hit her before, and that she was afraid of him. Officer

Cooper testified, however, that he saw no evidence from which he could conclude that the

defendant had struck the victim and that the incidents were arguments. In our view, even

if the evidence did not clearly and convincingly establish that the defendant committed a

“violent act” against the victim, it was probative of the querulous and pugnacious nature

of their relationship and of the defendant’s hostility toward the victim, and, accordingly,

relevant to establish his motive for harming the victim and, by extension, his identity as

the perpetrator. Consequently, the trial court did not err by admitting this evidence.

Additionally, the trial court specifically instructed the jury that if it concluded “that the

defendant has committed one or more bad acts other than those for which he is on trial, you

may not consider that evidence to prove his disposition to commit crimes such as those for

which he is on trial” but could consider such evidence only for the limited purpose of “the

nature of the relationship, identity, motive, intent.” Moreover, we easily conclude that,

considering the record as a whole, any error occasioned by the admission of this evidence

was harmless.

II. Jail Calls

The defendant next asserts that the trial court erred by admitting into

evidence the recording of the defendant’s conversations with his employer following his

arrest, arguing only that the probative value of the evidence was substantially outweighed

by the danger of unfair prejudice occasioned by its admission.

Prior to trial, the defendant moved the trial court to exclude the recordings

on grounds that the statements made by the defendant’s employer constituted inadmissible

hearsay and that the defendant’s statements, though admissible, were substantially more

prejudicial than probative. The trial court found that the employer’s statements were not

offered for their truth and, thus, not hearsay and that the probative value of the recordings

outweighed the danger of unfair prejudice.

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The trial court may exclude even relevant evidence “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. We review the trial court’s

decision to admit or exclude evidence pursuant to evidence rule 403 for an abuse of

discretion.

In the calls, the defendant discussed the charges against him related to the

victim’s death. It would be difficult to fathom a situation when a homicide defendant’s

discussion of the charges against him and his relationship with the victim would not be at

least marginally relevant at a subsequent homicide trial. That being said, the defendant’s

statements at issue are not particularly probative in that he did not actually describe the

circumstances of the offense. In the same way, they are not particularly prejudicial.

Indeed, the defendant’s assertions in the call that the victim had been having “a lot of

problem with somebody else” tended to support his defense that someone else had killed

the victim. Additionally, the defendant’s employer testified on behalf of the defendant that

the references to domestic violence were actually meant to be a joke. Under these

circumstances, we cannot say that the trial court erred by admitting the jail calls.

III. Excited Delirium

Finally, the defendant claims that the trial court erred by permitting the

medical examiner to provide an expert opinion on the issue whether the defendant was

suffering from excited delirium at the time of the stabbing. He argues that the trial court

should have excluded the testimony because the State failed to comply with Tennessee

Rule of Criminal Procedure 12.2, which requires pretrial disclosure of expert testimony

about the defendant’s mental disease, defect, or condition “bearing on the issue of . . .

guilt.” The State asserts that it is not bound by the pretrial notice provision of Rule 12.2

and that the defendant opened the door to the evidence by questioning the medical

examiner about the effects of cocaine in general and about cocaine induced excited

delirium specifically.

The State did not ask a single question about the effects occasioned by the

ingestion of certain drugs or about excited delirium during the direct examination of the

medical examiner, Doctor Steven Cogswell. During cross-examination, the defendant

asked Doctor Cogswell how cocaine would affect the human body generally, and he replied

that both cocaine and methamphetamine were central nervous system stimulants while

alcohol was a depressant. Doctor Cogswell agreed that both cocaine and

methamphetamine “have a very individualized response” and that, for that reason, “we

can’t take a particular dose and say this is what this person would have done.” Doctor

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Cogswell agreed that cocaine could cause “delirium,” and, when prompted, explained,

“[D]elirium, technically, is an altered mental state. So there is such a thing as an excited

delirium that [is] frequently associated with cocaine and stimulant abuse . . . .” He said

that any person who ingested cocaine would “get an altered mental state” and would “by

definition . . . have achieved a state of delirium.” He added, “Now, they do not get an

excited delirium because an excited delirium has nearly a hundred percent mortality rate,

so obviously most folks who do cocaine don’t die from it.” Doctor Cogswell testified that

a person suffering from delirium due to stimulant use “might become irritable, you might

become delusional to the point of seeing things that aren’t there, and there’s a fairly broad

spectrum.” He added, “Physiologically, that is, with the body itself, stimulant drugs tend

to increase the heart rate, they cause sweating, they may cause blood pressure to go up,

respiration to go up or become more rapid.” Doctor Cogswell agreed that two different

people could have disparate reactions “from the same quantity of drugs or the same amount,

the actual same specimen of drugs.” He also agreed that, because cocaine is an unregulated

street drug, “you don’t really know what’s in it.”

During redirect examination by the State, Doctor Cogswell testified without

objection that excited delirium syndrome was “initially called acute exhaustive mania, and

it was seen in mental institutions with schizophrenic patients.” He said that, following the

development of drugs to treat such patients, the syndrome “basically went away.” Excited

delirium experienced a resurgence among cocaine users in Miami in the 1980’s who had

“a very different kind of reaction to the drug than the norm.” Doctor Cogswell explained

that such “people become extremely paranoid and extremely violent,” adding,

These are the ones you read about or see on TV where they

take off all their clothes, they run out in the street, they’re

smashing windows, attacking cars, basically behaving out of

control. So, of course, police are called and they attempt to

restrain this person and then they die.

In “excited delirium cases, their brain is driving that, because the brain is constantly being

bombarded with this aberrant pathway thing that’s going on that results in their heart

having [t]his potassium that’s way too low to keep it beating regularly and their hearts just

quit.” Doctor Cogswell estimated that “the fatality rate for excited delirium syndrome is

somewhere over 90 percent. These people are very very hard to save.” Doctor Cogswell

distinguished excited delirium from delirium in general, explaining that “[e]xcited delirium

is a medical emergency that has a very very high mortality. Delirium is just something that

we’ve all experienced” maybe due to alcohol consumption or high fever. Doctor Cogswell

said that those suffering from excited delirium “tend to have a really high body core

temperature . . . that may be the reason for tearing off their clothes,” that they also tend to

be “aggressive towards glass and mirrors,” and that “[t]hey’re a lot stronger than you would

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expect.” He reiterated that “a regular delirium is something that is just an altered mental

state of either perception or the amount of stimulation . . . your level of being obtunded or

essentially semi-comatose or very agitated” and emphasized that “you can have an agitated

delirium, but that’s not the same thing as an excited delirium. That’s just an agitation.”

Doctor Cogswell said that delirium has “a pretty broad spectrum” with excited delirium on

the high end. To determine the degree of delirium along that spectrum, “[y]ou’d have to

look at the clinical picture, what the patient is doing” at the time. Doctor Cogswell testified

that, in preparation for trial, he had reviewed the defendant’s medical records and had

listened to a recording of the 9-1-1 calls from September 26, 2016.

At that point, the defendant objected, arguing that he had not opened the door

to Doctor Cogswell’s giving an opinion about the defendant’s degree of delirium by asking

questions about the effects of cocaine. Defense counsel said that she had intentionally

limited her questioning of Doctor Cogswell to those “along the lines of what the effects

might have been on [the victim]” and that she had asked those questions “so that the jury

would realize that just because I’m putting on later evidence about him, she didn’t

necessarily have cocaine delirium. The purpose of me asking those questions was in

relation to her, not to him.” The court pointed out that the defendant had specifically asked

Doctor Cogswell about the potential effects of both the defendant’s and the victim’s using

“the same source of cocaine.” Counsel replied that she had done so because she wanted to

“put in front of the jury evidence that somebody who has cocaine in their system may not

necessarily have cocaine delirium.” She also claimed that she was “caught off guard about

this because I had absolutely no idea that Dr. Cogswell was looking at [the defendant’s]

medical records” and claimed that it would be unfair to ask Doctor Cogswell “to elicit an

opinion based on partial evidence that was selected by the D.A.” The trial court found that

the defense had “notice that he’s a witness” and

that the defense has opened the door to this delirium line of

questioning because [the State] did not ask a single question

about delirium in the direct examination. The defense began

to ask about delirium, what delirium was, led the doctor’s

testimony on cross-examination into that “delirium” means an

altered mental status and that all drugs cause an altered mental

status, that there is an excited delirium that can be caused by

cocaine, that it is a different thing from just a delirium caused

by taking drugs in general, the symptoms of an excited

delirium, that cocaine can cause delirium, the physical

symptoms of excited delirium, a heart rate increase, sweating,

respiratory issues, that the vast majority of cocaine on the street

is not pure. And the doctor answered in response to your

questioning that you really don’t know what’s in cocaine. I do

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believe that that opens the door . . . .

The court also ruled “that the defense has opened the door such that Doctor Cogswell can

testify about things that he observed from the medical records related to [the defendant’s]

medical condition, about his behavior that was documented.” The court also allowed the

defendant “to have the benefit of a jury-out hearing” to hear Doctor Cogswell’s testimony

and “make any further objection that you might have.”

Following the jury-out hearing, the trial court confirmed its ruling that the

defendant had opened the door to Doctor Cogswell’s testimony on this issue. During

further redirect examination, Doctor Cogswell testified that one could be in a state of

delirium and still understand the nature and consequences of one’s actions, saying that the

level of understanding would depend “on how deep or wide your delirium is. It could be

anywhere from a little delirious to extremely delirious, so in that state, yeah, you could be

fairly cognizant.” He said that

there is no laboratory test for the degree of delirium. You have

to look at the person and see what they’re doing, how they’re

acting, how they respond to questions, how they respond to

what you’re attempting to do. You have to basically interview

them and see what their connection with reality is, because,

after all, that’s what the mind-altering drugs are for is to kind

of take you a little bit away from reality.

Doctor Cogswell reiterated that he had reviewed the 9-1-1 call from September 26, 2016,

the defendant’s medical records from his treatment at the emergency room that day, and “a

video.”3 Based upon his review, he concluded that the defendant was not in a state of

excited delirium on the day of the offense, explaining that the defendant had “multiple

episodes of acting out behavior . . . on a baseline of fairly lucid actions, . . . basically doing

what he’s told to do, go here, sit here, stay here, . . . and responding relatively appropriately

to questions, but then having a break where there would be very inappropriate responses.”

During further cross-examination by the defendant, Doctor Cogswell

conceded that he could have been “a lot more specific and definitive” about the defendant’s

level of delirium “had I actually interviewed and interacted with him. You know, what

you could do secondhand and thirdhand is somewhat limited, but still, in this case, I think

there’s sufficient data.” Doctor Cogswell agreed that the defendant had been diagnosed

with “intoxication delirium” and that he had not reviewed the entire case file or interviewed

3

The video reviewed by the doctor was appartently body camera footage of the defendant shortly

after his arrest. By agreement of the parties, the video was not introduced into evidence and not more

explicitly described by any witness at trial.

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any of the witnesses who observed the defendant’s behavior. Nevertheless, he maintained

that he could not say whether that information would cause him to change his opinion

“[w]ithout knowing what that information was.” He allowed that “[g]enerally speaking,”

he would have preferred to have access to all of the potentially relevant material but said

that “the relevant information is frequently buried among a thousand pages of unhelpful

information, so it becomes a matter of practicality.” He explained, “I’m sure that the

nuggets of the important information are in there, but I don’t know how much unimportant

information is with it” and that, for that reason, “I’m sure I probably really don’t” need to

review all of the information. Doctor Cogswell said that most people die from excited

delirium without treatment with “a sedating antipsychotic.”

Tennessee Rule of Criminal Procedure 12.2 provides in pertinent part:

(b) Expert Testimony of Defendant’s Mental Condition.

(1) Notice of Expert Testimony. A defendant who intends to

introduce expert testimony relating to a mental disease or

defect or any other mental condition of the defendant bearing

on the issue of his or her guilt shall so notify the district

attorney general in writing and file a copy of the notice with

the clerk.

(2) Timing. Notice described in Rule 12.2(b)(1) shall be filed

within the time provided for the filing of pretrial motions or at

such later time as the court may direct. The court may, for

cause shown, allow the defendant to file the notice late, grant

additional trial-preparation time, or make other appropriate

orders.

....

(d) Failure to Provide Notice of Expert Testimony or to Submit

to Mental Examination. If a defendant fails to give notice

under Rule 12.2(b) or does not submit to an examination

ordered under Rule 12.2(c), the court may exclude the

testimony of any expert witness offered by the defendant on

the issue of the defendant’s mental condition. . . .

Tenn. R. Crim. P. 12.2(b), (d). By their terms, the notice provisions in Rule 12.2 apply

only to the defendant. Indeed, the Advisory Commission Comment to the rule specifies

that “Rule 12.2(b) imposes a notice requirement on the defendant when expert witnesses

are to testify as to the defendant’s mental state.” Tenn. R. Crim. P. 12.2, Advisory Comm’n

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Comment (emphasis added). Accordingly, Rule 12.2 does not avail the defendant of any

relief.

Moreover, we agree with the State and the trial court that the defendant

opened the door to Doctor Cogswell’s testimony. The State did not ask any questions about

delirium during direct examination. Instead, the defendant broached the subject first on

cross-examination by asking questions about the effects of cocaine, whether the use of

cocaine could cause delirium, and about the symptoms of excited delirium. The defendant

also asked specifically whether it would have been possible for the defendant and the

victim to react differently after having used cocaine from the same source. The defendant

did not, at any point, object to Doctor Cogswell’s qualification to render an opinion on

whether the defendant was suffering from excited delirium at the time of the stabbing but

argued only that the doctor had reviewed insufficient information to render such an

opinion. In our view, the nature of the information reviewed by the doctor would go to the

weight of his opinion and not its admissibility. See generally Payne v. CSX Transp., Inc.,

467 S.W.3d 413, 457 (Tenn. 2015) (“So long as a qualified expert can offer an opinion,

based upon reliable data, that will substantially assist the trier of fact, the expert’s testimony

should be permitted.”) (citations omitted). Under these circumstances, the trial court did

not err by admitting Doctor Cogswell’s testimony.

Conclusion

Accordingly, we affirm the judgment of the trial court.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

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