State of Tennessee v. Roger Earl England

05/14/2024

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

October 25, 2023 Session

STATE OF TENNESSEE v. ROGER EARL ENGLAND

Appeal from the Criminal Court for Knox County

No. 117643 Kyle A. Hixson, Judge

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No. E2022-01392-CCA-R3-CD

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Defendant, Roger Earl England, appeals as of right from his conviction for first degree

premeditated murder, for which he is serving a life sentence. On appeal, Defendant

contends that (1) the evidence of premeditation is insufficient to support his conviction; (2)

the trial court erred by admitting Defendant’s jail telephone calls and emails, which alerted

the jury to Defendant’s pretrial incarceration; (3) the prosecutor made improper statements

during the State’s closing and rebuttal arguments; (4) the trial court erred by instructing the

jury that destruction of evidence could be considered evidence of guilt only as to the

charged offense of first degree murder and by declining to instruct the jury on voluntary

manslaughter as a lesser-included offense; and (5) the cumulative effect of these errors

entitles him to a new trial. After a thorough review of the evidence and applicable case

law, we affirm.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which TOM

GREENHOLTZ and MATTHEW J. WILSON, JJ., joined.

Eric M. Lutton, District Public Defender; and Jonathan Harwell (on appeal), Christy A.

Murray and Jackson Whetsel (at trial), Assistant District Public Defenders, for the

appellant, Roger Earl England.

Jonathan Skrmetti, Attorney General and Reporter; Abigail H. Rinard, Assistant Attorney

General; Charme P. Allen, District Attorney General; and Rachel S. Lambert and Hector

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

OPINION

I. Factual and Procedural Background

This case arises from the shooting death of twenty-five-year-old Kelsey Polk (the

victim), which occurred in the early morning hours of January 26, 2020. On July 1, 2020,

the Knox County Grand Jury charged Defendant with first degree premeditated murder.

The proof at trial established that Defendant, who was thirty-three years old at the time,

was married with three children and owned a trucking company in Harriman when he met

the victim in December 2019, at a club in Indiana. After a “whirlwind” romance of a few

weeks, Defendant moved with the victim into a rental house on Missoula Way in Knoxville

in mid-January 2020. At trial, Defendant conceded that he shot the victim, and the main

issue was premeditation.

A. Testimony from the victim’s and Defendant’s friends and family

Wendy Polk testified that she was the victim’s mother and that the victim decided

to move to Tennessee around January 17, 2020. Ms. Polk said that, in the early morning

hours of January 26, the victim called her but that she did not pick up the telephone in time.

Ms. Polk tried unsuccessfully to call the victim back. Around 12:25 a.m., the victim called

again and told Ms. Polk that she was sorry for waking her and that “everything was ok

now.” The victim stated that she was fine and that she loved Ms. Polk. Ms. Polk asked

the victim if she was sure that everything was okay, and the victim responded that

everything was fine, that she loved Ms. Polk, and that she would talk to her tomorrow. The

call was the last time the victim and Ms. Polk spoke. Ms. Polk stated that she did not hear

anyone or anything in the background of the call.

On cross-examination, Ms. Polk testified that the victim made friends easily, that

she was friendly to everyone, and that the victim was loved. She agreed that the victim

was a spontaneous “free bird” who loved “completely.” Ms. Polk stated that she and the

victim had a close relationship, that the victim called and texted her often, and that she

knew a lot about the victim’s life. She said that the victim used an application called

“Life360,” which the victim used to share her location with family and friends. Ms. Polk

identified a printout from Life360, which showed the victim’s photograph superimposed

on a map of the Knoxville area.

Ms. Polk testified that the victim was employed as a dancer at the club where the

victim met Defendant. Ms. Polk agreed that the victim was living “a bit of a party

lifestyle.” Ms. Polk said that the victim was living with a boyfriend but that she did not

know the victim and her boyfriend were “unstable” until the victim decided to leave him

for Defendant. According to Ms. Polk, the victim thought Defendant would provide her

with stability, and the victim was happy that Defendant owned a business and was going

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to “get her a home.” She stated that the victim was excited about the prospect of a change

and about the relationship. Ms. Polk said that the victim and Defendant were making plans

for future trips together and that the victim mentioned wanting to take community college

classes. Ms. Polk said that the victim and Defendant spent a lot of time together over a few

weeks and that the victim began going on trucking runs with Defendant. Ms. Polk

identified photographs of the victim and Defendant while they were furniture shopping.

Ms. Polk stated that the victim was excited to meet Defendant’s children and planned to

buy them gifts. Ms. Polk testified that the victim introduced Defendant to her best friend,

Dylan Jack, and that the meeting went well.

On redirect examination, Ms. Polk testified that the victim expressed concerns about

the victim’s relationship with Defendant. She stated that Defendant had told the victim his

name was “Noah” and that the victim had been under the impression that Defendant was

separated from his wife and going through a divorce. During their drive to Tennessee, the

victim found out that Defendant was not separated from his wife and that he had three

children.

Ms. Polk testified that the victim had mixed emotions about the new information.

Ms. Polk stated that she “beg[ged]” the victim to come home; she added, “[W]hen someone

tells you their name is one thing . . . then gets you halfway down, moving away from your

home and your family, and you find out that’s not even his name at all . . . . [W]e were all

telling her to come home, just come back home.”

Mr. Jack testified that he was the victim’s best friend since they were in middle

school. Mr. Jack stated that he met Defendant in Indianapolis shortly before the victim

moved. He said that Defendant was introduced to him as “Noah” and that he knew

Defendant and the victim were in a romantic relationship.

Mr. Jack testified that, on January 25, 2020, shortly before midnight, the victim

called him and “her voice was shaky.” Mr. Jack stated that he was afraid because he had

“never heard her sound like that in all [their] years knowing each other. Just she sounded

very different.” According to Mr. Jack, the victim planned on coming back to Indiana that

night. Mr. Jack offered to drive down and follow the victim to Indiana or meet her halfway

in case her car broke down. Mr. Jack said that the conversation lasted five or six minutes

and that they did not speak again.

Mr. Jack testified that, the next day, Defendant contacted him through Facebook

messenger between 9:00 and 10:00 a.m., and a copy of the messages was entered as an

exhibit and read into the record. The messages reflected the following conversation:

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Sent by Text

Defendant I can’t get ahold of [the victim].

Wondering if you’ve talked to her.

Mr. Jack Does she have her phone?

Defendant She got mad again last night

I’m sure she does

Mr. Jack Whats the address to your guy’s place?

Defendant [] Missoula way Knoxville [TN].

I’m not sure on the actual number

She wanted to stay at the bar, my brother

had to leave and she just went crazy last

night. I tried getting ahold of you last night

She will probably blame it on me

somehow, all I did was listen.

She said she was going back to the bar. I

left cause she wanted me too [sic], and

came to Maynardville TN and stayed.

Mr. Jack Her GPS is showing she’s at home

Since midnight

Defendant I’ve called her and called her. She won’t

answer me.

Mr. Jack So you’re not at home?

Defendant Okay, she’s probably asleep then

She wouldn’t talk last night. I hate

bringing you into things like this.

She gets way to [sic] offensive real quick

for no reason either me.

Mr. Jack I’m sure she’s just passed out and hungover

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Defendant With***

Her car is gone

Door is locked I don’t have a key on me

Car is here. It’s in garage

I got the law coming. Something isn’t

right. I can hear [S]imba but [the victim]

isn’t coming to the door

Does she have any medical issues at all??

Dylan she’s dead

Call me now

Mr. Jack You’d better be f--king lying to me

Mr. Jack noted that Simba was the victim’s dog. Mr. Jack stated that he did not

believe what Defendant was telling him at the beginning of the conversation.

Mr. Jack testified that, during a telephone call with Defendant, Defendant told him

that the police were going to kick down the door. During a second call, Defendant told

Mr. Jack that he did not know what was going on but that he thought the victim hurt herself.

Defendant told Mr. Jack that the victim was lying on the floor in the hallway and that blood

was everywhere and “all over the walls.” Defendant said, “I don’t know what’s happening.

I’m shaking . . . . There’s blood everywhere.” Defendant also told Mr. Jack that he had

been crying all day and was “a mess.” Mr. Jack asked Defendant if he was sure that the

victim was deceased because he was going to call Ms. Polk and did not want to tell her that

the victim was dead if it was “some twisted joke.” During a final telephone call, Defendant

stated that he was in the backseat of a police cruiser. Mr. Jack said that Defendant sounded

like he was in shock and told Mr. Jack that he was “shivering and shaking and [didn’t] even

have a jacket.” Mr. Jack heard an officer in the background ask Defendant to hang up; the

last thing Defendant said to him was that he needed to go because the police wanted to talk

to him.

Mr. Jack testified that he called Knoxville police to verify that the victim was

deceased, that he informed Ms. Polk, and that he drove to Knoxville that day. Mr. Jack left

Knoxville by January 27, 2020. He denied leaving a note on Defendant’s vehicle that read,

“Your [sic] next.” Mr. Jack did not know of anyone who delivered such a message.

Mr. Jack testified that, over the course of their friendship, he had seen the victim

during arguments with others. He stated that she was “the master of the cold shoulder. She

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was usually dismissive of whatever your argument was and she would try and just shut you

down.” Mr. Jack noted that he “[could not] say that [he] ever had an actual argument with

her.”

On cross-examination, Mr. Jack was unsurprised to hear that the victim had been

described as “a free bird” and “impulsive.” He denied that he and the victim had ever been

in a romantic relationship, although he noted that they had discussed the possibility. He

said that they openly discussed their romantic relationships with one another but that he

did not know when the victim met Defendant.

After refreshing his recollection with his police statement, Mr. Jack testified that he

became aware of the victim’s knowing Defendant on January 4, 2020, and that the victim

and Defendant became serious about their relationship around January 10, 2020. Mr. Jack

agreed that the victim had been living with a romantic partner, “Danny,” at the time.

Mr. Jack testified that the victim found out Defendant’s real name during the move

to Tennessee. He stated that Defendant’s not being separated from his wife was a surprise

to the victim and that Defendant had told the victim that he and his wife were in the process

of divorcing. He thought that the victim found out about Defendant’s marriage and

children before she decided to move. Mr. Jack said that he expressed concern to the victim

about her moving and that she responded that she loved Defendant and wanted to try to

make things work. Mr. Jack agreed he told a detective that Defendant was not emotionally

mature enough for the victim.

Mr. Jack agreed that the victim sounded intoxicated when he spoke to her on January

25. He stated that, at the conclusion of the call, the victim said something like, “I just don’t

know. I still have some things to figure out.”

On redirect examination, Mr. Jack clarified the context of the victim’s statement: “I

believe I asked her kind of what the plan was after we had discussed me coming down and

meeting her, and I think that was her response just ‘I don’t know. I still have to figure

some things out.’” Mr. Jack stated that they made plans to talk again later, which never

happened. Mr. Jack stated that, to his recollection, he did not hear anyone or anything else

in the background of the call.

Jesse Hoover testified that he was thirty-three years old and lived in Middlesboro,

Kentucky. Mr. Hoover had been friends with Defendant since they were between eleven

and thirteen years old. Mr. Hoover stated that his nickname, by which Defendant addressed

him, was “Opie.” Mr. Hoover worked for Defendant’s trucking company from 2017 until

2020. Mr. Hoover explained he drove one of the company’s two trucks.

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Mr. Hoover testified that Defendant was married and had three children; Mr. Hoover

estimated that Defendant had been married for about fifteen years. In early January 2020,

Defendant lived with his wife and children in Harrogate. Later in January, Defendant

moved to Knoxville and borrowed Mr. Hoover’s white Chevrolet Silverado truck to assist

with moving. On January 25, 2020, Mr. Hoover drove Defendant’s light blue pickup truck

to Knoxville to retrieve his Silverado. Mr. Hoover estimated that it took him an hour and

a half to drive from Harrogate to Knoxville.

Mr. Hoover testified that he arrived at the Missoula Way house in Knoxville around

8:00 p.m. and that Defendant and the victim were present. Mr. Hoover knew they were

dating but did not know how long they had known each other; it was Mr. Hoover’s first

time meeting the victim. Defendant showed Mr. Hoover around the house, which had

furniture and décor; he noted that one bedroom was “made up” but that the other bedrooms

were not. Mr. Hoover said that Defendant smoked Camel Crush cigarettes frequently. He

stated that everyone was in a good mood when he arrived.

Mr. Hoover testified that he drove Defendant and the victim to Bullfeathers bar, that

they ordered food and drinks, and that the victim sang karaoke, danced, cheered for other

singers, and talked to other people. Mr. Hoover stated that he and Defendant sat at their

table and conversed and that he and the victim got to know each other. He said that they

got along and that no arguments occurred between Defendant and the victim over the few

hours they were inside. He stated that he and Defendant ate, but the victim did not.

Mr. Hoover did not recall seeing the victim kiss Defendant inside Bullfeathers. Mr.

Hoover said that the victim sat beside him at times and took a photograph of them with her

cell phone. He did not recall the victim’s taking any photographs of Defendant.

Mr. Hoover estimated that he and Defendant drank one beer apiece and that, around

11:30 p.m. or 12:00 a.m., he wanted to leave because he had a long drive home. He and

Defendant walked out to the truck, but the victim remained inside. Defendant said that he

“didn’t know what she was doing or what the deal was” and walked inside to get her while

Mr. Hoover remained at the truck. He saw Defendant and the victim walk outside together.

Mr. Hoover testified that, during the fifteen-minute drive back to Missoula Way,

Defendant and the victim did not speak to one another, although they were not arguing.

Mr. Hoover stated that there was “tension” between them and that he did not know the

cause. He said that Defendant was not angry with him and that they talked about “guy

stuff.”

Mr. Hoover testified that the victim told him goodbye and walked inside. Defendant

and Mr. Hoover moved an air compressor that belonged to Mr. Hoover’s father into the

Silverado, then Defendant told him goodbye and entered the house. Mr. Hoover stated that

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no argument was occurring at that time. He said that, when he left, the garage door was

closed, and Defendant’s blue truck was in the driveway.

Mr. Hoover testified that he had reached Party City on Broadway, which was about

twenty-five to thirty minutes from the Missoula Way house, when Defendant called and

asked him to return and pick him up. Mr. Hoover noted that Defendant was “a little

hateful” and said, “Come back and f--king get me”; he noted that Defendant did not

normally curse at him like that. Mr. Hoover assumed that Defendant wanted a ride to his

semi-truck in Harrogate because Defendant was planning on leaving for a trucking run the

next day.

Mr. Hoover testified that, twenty-five to thirty minutes later, he arrived at the

Missoula Way house and pulled up on the street. He stated that the garage door was closed.

Mr. Hoover stated that the garage door opened and Defendant walked out through the

garage wearing the same clothing he had been wearing earlier. Mr. Hoover said that a light

inside the garage came on, and he could see the victim’s dog sitting in the front passenger

seat of her sedan. Mr. Hoover did not hear anything but noted that his truck had

“Flowmasters” on it such that the engine “rumbles pretty good.” According to Mr. Hoover,

Defendant had a beer in his hand and was carrying a “little case” with a handle; he did not

remember whether the door to the house was open. Mr. Hoover stated that he did not think

anything was unusual. Defendant got into the truck and lit a cigarette. Mr. Hoover did not

see the victim in or around the house when he picked up Defendant.

Mr. Hoover testified that Defendant told him that he and the victim had argued and

that she “took off walking.” Mr. Hoover denied that Defendant was crying, shaking, or

that there was any reason for him to be concerned at that time. Mr. Hoover also denied

that they drove around looking for the victim; Mr. Hoover noted that it looked like a “pretty

good neighborhood.”

During the drive, Defendant “acted like he was trying to get ahold of” the victim,

but Mr. Hoover never heard Defendant speak to her or saw him receive a response to text

messages he sent. When they were near the Party City on Broadway, Mr. Hoover told

Defendant to give him the victim’s telephone number in the hope that she might answer

Mr. Hoover’s call even if she did not want to talk to Defendant. Mr. Hoover stopped in

the Party City parking lot and sent the victim a text message, in which he identified himself

as Defendant’s brother and asked if there was anything he could do to help the situation.

Mr. Hoover received no reply and never spoke to the victim. While in the parking lot,

Defendant called his wife and said that he was coming home. Defendant’s wife called Mr.

Hoover and told him not to bring Defendant to their house.

According to Mr. Hoover, after forty to forty-five minutes, they reached Claiborne

County, and Defendant told Mr. Hoover that “she was dead.” Mr. Hoover asked what he

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meant, and Defendant responded “that she was [lying] up there [on] his floor dead.” Mr.

Hoover stated that he did not believe Defendant, and Defendant told him to look inside the

plastic case; he told Mr. Hoover that his 9 mm pistol was inside and that it was missing one

round. Mr. Hoover said that, although he did not open the case, it felt like something was

inside. Mr. Hoover stated that the case was made of blue or black hard plastic, and he

gestured to estimate the case’s size. Mr. Hoover said that he still thought Defendant was

drunk and “talking off the top of his head.”

Mr. Hoover testified that Defendant asked him to pull over at a location named

“Brogan’s” where they fished because he wanted to pray. According to Mr. Hoover,

Defendant left the plastic case in the truck, got out, walked around to the back of the truck,

opened the back driver’s-side door, “used the bathroom,” closed the door, and returned to

the front passenger’s seat. Mr. Hoover said that Defendant tried to get him to pull over “on

the bridge” and throw the case into the water but that he declined. He stated that the case

was still with them when they reached their destination.

Mr. Hoover testified that they stopped for five to ten minutes at the parking lot of

Cowboy’s restaurant in Harrogate, where Mr. Hoover had previously planned to meet two

of his friends. They did not discuss the victim, and Defendant acted “pretty normal.”

Afterward, Mr. Hoover and Defendant traveled a short distance to Forge Ridge Road,

where Defendant customarily kept his semi-truck cab. Mr. Hoover stated that he had given

the gun case back to Defendant, who took it with him when he exited Mr. Hoover’s truck.

Mr. Hoover did not see the gun case again.

Mr. Hoover testified that he was almost home when Defendant called him again and

stated that he could not start the truck Mr. Hoover usually drove. Mr. Hoover did not know

why Defendant was trying to start the truck. Defendant asked him for help, but Mr. Hoover

declined and went home instead. He acknowledged that Defendant’s call log reflected a

call to Mr. Hoover’s telephone number at 4:44 a.m.

When asked why he did not call the police after Defendant disclosed what happened,

Mr. Hoover testified that he did not believe Defendant and “thought he was just drunk and

was talking . . . out of his head . . . . [N]obody would have believed he would have ever

done something like that.” Mr. Hoover stated that Defendant also had a small .25 caliber

derringer in his pocket, that he asked Defendant for the gun, and that Defendant refused.

Mr. Hoover testified that he felt unsafe when Defendant declined to give him the gun.

Mr. Hoover testified that, the following morning, Defendant called him and handed

the telephone to Detective Jeremy McCord, who asked Mr. Hoover to come to the Missoula

Way house. Detective McCord “put [Mr. Hoover] to the side . . . so [he] was a little bit of

distance [away] from” Defendant. Mr. Hoover stated that he stood in the front or side yard

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around the driveway and that he could see Defendant while Detective McCord interviewed

him.

Mr. Hoover agreed that he did not tell Detective McCord that Defendant had

confessed to shooting the victim. When asked for his reasoning, Mr. Hoover explained, “I

answered the questions that he was asking me . . . . I ain’t never talked to . . . somebody

like that before. Especially a case like that, you know . . . . I just was expecting to tell

them what they . . . was asking me[.]” Mr. Hoover denied shooting the victim or handling

a firearm that evening, other than holding Defendant’s gun case. He also denied seeing the

shooting or the victim’s body.

Mr. Hoover testified that Detective McCord told him that he would call at noon the

following day. He said that the police took Defendant’s cell phone with them but that

Defendant continued to communicate with him using his iPad.

A printout of messages exchanged between Mr. Hoover and an email address

associated with Defendant—GMCtruck07@outlook.com—reflected that, on the evening

of January 26, 2020, Defendant asked Mr. Hoover if he was okay and if he had made it

home, commenting that he had not heard from him. The following morning, Defendant

messaged Mr. Hoover again and stated that he was worried about him. Mr. Hoover

responded, and Defendant asked Mr. Hoover to come to a location in Middlesboro.

Defendant stated, “That officer told me to stay with you and he’d call you.” Defendant

asked Mr. Hoover to “hang out” with him until noon, stating that he “need[ed] to talk.”

Mr. Hoover stated that his father needed him to help with a task. Later, Defendant asked

where Mr. Hoover was and stated that he was going to try to get the truck Mr. Hoover

drove running; after some conversation, Mr. Hoover asked Defendant if he was going to

take a load to Chicago, as planned. Defendant responded, “I’m thinking about saying I did

it. Just so I can be in jail. I’m scared for my life right now. I put her in the situation, so

it’s really my fault either way.” The following exchange occurred through text messages:

Author Text

Defendant As long as I’m on the outside, I feel like I’m a target. She

was involved in a lot of stuff, and I don’t want to put

[Defendant’s wife] and the kids through it and if I’m out

here I feel like they could be in danger

Mr. Hoover If I was you I would just tell the truth and be done with it

that’s the best thing to do and the right thing to do.

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Defendant I did tell the truth opie. Had I been there we both would be

dead. She’s into some bad things I don’t know about.

Mr. Hoover testified that Defendant had never mentioned before that the victim was

involved in a dangerous lifestyle. He clarified that his message about the best and right

thing to do meant that, if Defendant killed the victim, the right thing to do was to tell the

truth. Mr. Hoover stated that he spoke with the police again and told them the version of

events to which he had testified.

On cross-examination, Mr. Hoover acknowledged that Defendant’s mother left

when Defendant was five years old, and Defendant’s father died before he was born; Mr.

Hoover lost his mother at a young age too. He stated that, although they were not in the

same grade in school, he and Defendant both took special education classes, spent a lot of

time together, and called one another brother. Mr. Hoover did not know that Defendant

had been abused as a child. He agreed that Defendant spent “every moment” with him

when Defendant was not with his family or on the road.

Mr. Hoover testified that, on January 25, 2020, Defendant was “pretty well-lit” and

was drinking when he arrived. Mr. Hoover stated that the victim drank once they got to

Bullfeathers; he could not recall if she had been drinking before that. When asked if

Defendant drank “20 ounce beers” at Bullfeathers, Mr. Hoover stated that he remembered

Defendant’s drinking “12-ounce bottles.”

Mr. Hoover identified himself, Defendant, and the victim in a surveillance recording

from Bullfeathers. Mr. Hoover agreed that the recording showed a waitress “refresh[ing]”

their beers several times. He further agreed that Defendant was a “big boy” and “put them

down.” Mr. Hoover affirmed that the victim had a “little bit to drink” and that she sang

and danced. Mr. Hoover stated that the atmosphere was “pretty chill” and did not recall

anyone’s getting aggravated. He said that the victim was “hugging on” Defendant that

night and that she was “pretty friendly with folks” and “really active.” Mr. Hoover stated

that the victim met a man and brought him over to meet them. He did not recall the victim’s

photographing a man who was dancing but acknowledged that the surveillance recording

accurately captured the relevant events. Mr. Hoover did not remember anything notable

happening at Bullfeathers, and he did not recall the victim’s getting angry with Defendant.

When asked whether the victim pointed out that Defendant was watching another woman’s

rear end, Mr. Hoover did not recall such an incident. Mr. Hoover agreed that a lot of

smoking and drinking occurred and that the victim wanted to sing karaoke.

The surveillance recording was received as an exhibit and reflected a karaoke stage

on the left side of the frame with a small dance floor in front of it. The stage was surrounded

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by tables. The time-stamp1 on the recording started at 9:07 p.m. Defendant and Mr.

Hoover were seated at a high table at the far side of the empty dance floor beside the stage.

The victim stood and danced for much of the recording, but she predominately stayed

beside Defendant; when she was on the dance floor, she frequently interacted with

Defendant by singing and dancing in his direction. Mr. Hoover looked at his cell phone

often but conversed with Defendant at times and, to a lesser extent, the victim. The victim

was attentive to and affectionate with Defendant; she hugged and kissed him periodically.

The victim walked out of the camera frame several times; on average, she would reappear

between thirty seconds and a minute later and return to the table. At most, she was gone

for two or three minutes. The victim used her cell phone to take “selfies” of herself with

Mr. Hoover and Defendant.

During the course of the evening, the victim conversed briefly with a middle-aged

man with a long beard and brought him over to meet Defendant and Mr. Hoover. The

victim high-fived and encouraged other people who were singing karaoke, and she briefly

interacted with most of the people sitting around the dance floor. At one point, a man with

long hair conversed with Defendant and Mr. Hoover at their table; the victim later sang a

karaoke song with the long-haired man and another woman. The victim also talked to a

blonde woman who was sitting on the opposite side of the dance floor; after they spoke a

couple of times, the victim hugged the woman, and they shook hands.

At one point, Defendant leaned slightly back as though looking around the victim,

who was standing nearer to Mr. Hoover. Two women were conversing at the edge of the

dance floor in the area in which Defendant was looking. The victim subsequently looked

toward the women, said something to Defendant and Mr. Hoover, turned and gestured at

the back of her pants, and turned around and gestured at the back of one of the women’s

pants.

At the conclusion of the victim’s karaoke song with the other woman and long-

haired man, the victim walked out of the camera frame before returning to the table. The

victim leaned toward Defendant such that neither of their faces was visible. After a minute

or two, Defendant stood up, and Mr. Hoover handed the victim her jacket. The victim’s

demeanor became more subdued. The men walked out at 11:21 p.m., but the victim walked

over to the blonde woman and spoke with her instead of leaving. The victim and the blonde

woman looked at the victim’s phone together before the victim walked off camera for the

last time at 11:23 p.m.

1

The time-stamp displayed in military time, and Detective McCord testified that his investigation

reflected that the time-stamp was forty-five minutes fast. For ease of reference, we will use standard time

adjusted to correct the forty-five-minute disparity.

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Mr. Hoover testified that he wanted to leave Bullfeathers because he had plans to

meet with his friends, he had a long drive, and he had church in the morning. He did not

know when Defendant told the victim it was time to go, although he acknowledged that the

victim stayed after he and Defendant walked outside. Mr. Hoover denied that he felt tense

while waiting for the victim to come out. After watching the surveillance recording, Mr.

Hoover stated that, after waiting for the victim, he and Defendant walked back to the front

door and that Defendant went inside to get the victim.

Mr. Hoover agreed that the victim was a little quiet or “sullen” on the drive home.

Mr. Hoover stated that, if the recording of his police interview reflected that he said

Defendant was not acting upset “at all,” it was correct, although he had no independent

recollection of his statement. He stated that he did not think anything was unusual when

he dropped off Defendant and the victim. Mr. Hoover agreed that Defendant was “still

pretty drunk” when he dropped them off.

Mr. Hoover acknowledged that the call log reflected that Defendant called him to

come back at about 11:54 p.m. He stated that he was thirty minutes into his drive, that he

was tired and had consumed one and a half beers, that he had plans to meet his friends, and

that he did not want to pick up Defendant. Although Mr. Hoover declined to describe

Defendant as “insistent,” he agreed that Defendant had never cursed at him before. Mr.

Hoover noted that he assumed Defendant was upset about the argument Defendant had

with the victim. He agreed that Defendant eventually apologized for the language he used.

Mr. Hoover testified that, when he picked up Defendant, Defendant was wearing a

t-shirt, blue jeans, and boots, and that he carried his cell phone and a beer. Mr. Hoover

added that he was also “packing that case out.”

Mr. Hoover agreed that he had previously spoken to defense counsel and Detective

McCord and that he had testified at the preliminary hearing. Relative to his statement to

Detective McCord, Mr. Hoover agreed that he knew the investigation involved a death and

possible murder and that the information Detective McCord needed was important. He

acknowledged that he told Detective McCord that he wanted to tell him the truth. Mr.

Hoover initially stated that he told Detective McCord about the gun case but later said that

he did not remember exactly what he told him. He did not recall Detective McCord’s

asking him if Defendant looked like he had been in a fight. Defense counsel read aloud

from Mr. Hoover’s police statement, in which he stated, “No, he looked fine. All he had

was he, he just came out. He was holding a beer.”

When asked whether he lied to Detective McCord, Mr. Hoover responded that it

had been two and a half years since he made the statement and that he did not remember

verbatim what he said. He averred that he told Detective McCord the truth. When asked

whether the truth was that Defendant only had a beer in his hand, Mr. Hoover said, “Well,

- 13 -

not when he come walking out, no.” After a portion of his recorded police interview was

played, Mr. Hoover acknowledged only having mentioned Defendant’s carrying a beer.

He noted that he also told Detective McCord he would tell him if he thought of anything

else and that he did, in fact, tell Detective McCord what he remembered later.

Mr. Hoover denied changing his story and stated that he added to it. When asked

whether he worried that he would be charged with a crime, Mr. Hoover answered

negatively and commented that he did not hide anything from the police.

Mr. Hoover testified that he “probably” spoke to Detective McCord on January 27,

2020, at noon, although he did not remember the content of the conversation. When asked

whether he remembered “deciding at this point that there might have been” a gun case, Mr.

Hoover responded, “I mean he come walking out carrying it.” Mr. Hoover said that he told

Detective McCord the gun case was black or blue. He did not remember his preliminary

hearing testimony about the case’s color, but he did recall testifying that he took a gun from

Defendant and “put it up under [his] arm.”

Mr. Hoover agreed that he pulled over at Party City because Defendant was “crying

and sobbing.” Mr. Hoover said that Defendant was not crying when he picked him up.

Mr. Hoover agreed again that he pulled over at Party City because Defendant was upset;

however, he immediately stated that Defendant was not upset at that time and that

Defendant only started crying when he was on the telephone with his wife. Mr. Hoover

did not recall testifying at the preliminary hearing that he pulled over because he was

concerned about Defendant, who “was just crying and going on and on.”

Mr. Hoover agreed that he texted the victim because Defendant was upset and that

he was trying to help Defendant “[f]igure it out.” Mr. Hoover noted that he did not know

if Defendant was crying about the victim or his wife; he then agreed that Defendant was

crying about both of them. He agreed that, at that point in the evening, he did not

understand Defendant’s behavior. Mr. Hoover testified that Defendant wanted to go to the

home he shared with his wife when he called her. He agreed that Defendant wanted to go

back to his wife, whom Defendant had just left. Mr. Hoover noted that Defendant’s wife

called Mr. Hoover and said, “He’s too drunk. Take him somewhere else to sleep it off.”

Mr. Hoover testified that, when Defendant confessed to killing the victim, he told

Defendant he was crazy. He said that Defendant was drunk and upset enough that he was

concerned Defendant would hurt himself. Mr. Hoover maintained, though, that he took

the gun2 when Defendant got into the truck, not when Defendant became upset. He did not

2

Defense counsel questioned Mr. Hoover about “the gun” here, not the gun case; it was unclear

whether Mr. Hoover had indicated in previous testimony or police statements that he took Defendant’s gun

instead of the gun case.

- 14 -

recall telling Detective McCord that he took the gun from Defendant because he was afraid

Defendant was depressed and would hurt himself. When read a portion of his police

interview, during which he stated he placed the gun beside him because he did not want

Defendant to “do something crazy” or try to shoot himself, Mr. Hoover testified that he

recalled saying that but that he did not remember taking the gun from Defendant. He noted

that he tried to take the derringer Defendant was also carrying, but that Defendant would

not give it to him. When asked whether he had a reason to take Defendant’s gun if

Defendant was not upset when he entered Mr. Hoover’s truck, he responded, “[A] drunk

man with a gun?” Mr. Hoover stated that, if he had thought something bad was going to

happen when he drove away from the house, he would have tried to stop it.

Mr. Hoover disagreed that the first time he mentioned Defendant’s derringer was at

trial; he knew he did not tell the police about it in his first interview, and he could not

remember whether he included the derringer in his telephone conversation with police, at

the preliminary hearing, or during his conversations with defense counsel. He noted that

he told the prosecutors about it “[t]he other day.” Mr. Hoover had seen the derringer before

a “long time ago.” Mr. Hoover denied selling his Silverado truck or that the truck belonged

to his father. When asked whether he “got rid of” guns he owned, Mr. Hoover noted that

he had never owned a gun.

On redirect examination, Mr. Hoover testified that it was an “intense” experience to

learn that his best friend had killed the victim. He stated that he did not know how best to

handle that information. Mr. Hoover remembered “[b]its and pieces” of his interview

outside the Missoula Way house. Mr. Hoover agreed that Detective McCord asked him if

Defendant had “anything on his hands” or looked like he had just been in a fight; Mr.

Hoover had responded, “No, he looked fine. All he had was – he just come out here. He

was, ah, holding a beer.” Mr. Hoover stated that he prided himself on loyalty to his friends.

He agreed that Defendant was his sole source of income and that, after Defendant was

charged, he quit or the job “went away.” Mr. Hoover said that Defendant referred to the

derringer as “a little .25.”

On recross-examination, Mr. Hoover agreed that, after Defendant disclosed having

killed the victim, he did not call 9-1-1 and went to meet his friends.

B. Police/First Responder testimony

Michael Mayes, the record keeper for Knox County Emergency Communications

District 9-1-1, identified a recording and computer aided dispatch (CAD) report related to

this case, which were received as exhibits. The recording began at 11:11 a.m. on January

26, 2020, and reflected that Defendant called the Knoxville Police Department (KPD) non-

emergency dispatcher and reported that he was trying unsuccessfully to get into his house.

He stated that his twenty-five-year-old girlfriend and her dog were inside, that he could

- 15 -

hear the dog, and that she was not coming to the door. He said that he had a key but that it

was inside. The dispatcher asked Defendant what he wanted to do; Defendant responded

that he did not know, and he noted that he thought it was “weird” for the dog to be out

when his girlfriend was not coming to the door. Defendant said that he went to the back

door and front door and that he could hear the dog coming to each door as he did so. He

noted that his girlfriend was usually with the dog when the dog was loose inside the house.

Defendant stated that his girlfriend’s car was in the garage, that he could not see inside the

house, and that he knew she was inside. He said that he initially thought she was just inside

sleeping or “passed out” but that he had banged on all the windows and that, if she was

inside, something was wrong. Defendant stated that he had been there for an hour and that

he needed to do something.

Defendant affirmed that the house was his; he stated that he had tried unsuccessfully

to force entry. He commented that they had only moved in “last night.” When asked

whether his girlfriend had any medical issues, Defendant responded that he did not know

of any but that they had only been dating for a month and a half. He stated that he did not

know her medical history or her mother’s name.

Defendant stated that, the previous evening, they had gone to a bar and returned

about midnight, that he and the victim had argued, that she had “got[ten] crazy” and “ran

[Defendant] off,” that he had called his brother to come get him, and that he had returned

to the house that morning. When asked for his name, Defendant gave it and commented

that “the only thing [he had] ever done” was receive a speeding ticket five years ago.

Defendant said that he called the victim’s best friend that morning and told him

about the argument. Defendant claimed that, a couple weeks prior, the victim had “done

this too” in Indiana; he stated that the victim had been out of contact for twelve hours and

that she had spent all night out at a bar, lost her wallet, and stayed the night with another

woman. Defendant noted that the current situation “feels different.” The operator stated

that he would have an officer respond but would also transfer Defendant to Rural Metro

dispatch so that EMS and firefighters would be called.

Knox County Rural Metro firefighter Ray Bise testified that he responded to

Missoula Way for Defendant’s “EDMS call with a possible forced entry.” He met

Defendant in the house’s driveway where Defendant verified that he lived in the house but

that he did not have a key. Defendant’s semi-truck cab was parked at the curb in front of

the driveway, and a blue pickup truck was parked in the driveway.

Mr. Bise testified that he tried the front door and back door, which was a French

door with glass and blinds. Mr. Bise, Defendant, and the EMS workers tried to look

through the blinds. Mr. Bise stated that he looked through the blind slats on his hands and

knees and saw clothing items in the hallway. Defendant told Mr. Bise that “he could see

- 16 -

blood on the wall and see her.” Mr. Bise used a “car lockout kit” to “trip” the garage door’s

emergency pull and forced open the door from the garage to the house.

Mr. Bise testified that he was the first to enter the house and that he found the

victim’s body in the hallway to his right. He noted that she was cold to the touch and

obviously deceased and that he did not attempt CPR in an effort to preserve the scene. Mr.

Bise stated that Defendant came inside. Mr. Bise briefly verified that no other people were

inside the house, and then deputies with the Knox County Sheriff’s Office (KCSO) arrived

and took over the scene. Mr. Bise said that, although Defendant was still upset or agitated

during this time, he was not screaming or crying.

On cross-examination, Mr. Bise testified that the back blinds were “messed up and

open” and that he asked Defendant if he could see anything abnormal. Mr. Bise stated that

Defendant commented about seeing the victim and blood at the same time Mr. Bise saw

the clothing. Mr. Bise testified that Defendant became upset and “had a reaction” when he

told Mr. Bise that he saw blood. He stated that, after he walked through the house to verify

that no one else needed help, he exited. Mr. Bise did not see a dog.

KCSO Deputy Tyler Gresham testified that he responded to Missoula Way and that

he was a training officer at the time. He stated that a fire truck and EMS were on scene

and that they had already entered the house when he arrived. Deputy Gresham stated that

the house was cleared once it was determined that a death had occurred and that he kept a

log of who went in and out of the crime scene.

Deputy Gresham identified a recording from his body camera, which reflected his

arriving at the house. A fire truck and ambulance were parked on the street, and a semi-

truck cab without a trailer was parked in front of the driveway and blocking it. A blue

pickup truck was on the right side of the driveway. The house had a one-car garage to the

left of the front door, and a tan or gold sedan was parked inside. Defendant, who was

wearing a Lynyrd Skynyrd t-shirt and baseball cap, was standing to the left of the doorway

with the firefighter. He was audible in the background stating that they had just moved a

week and a half ago. Defendant identified himself to Deputy Gresham as the victim’s

boyfriend. Deputy Gresham asked everyone to leave; Defendant asked if he could get a

jacket before he left, and Deputy Gresham responded negatively and told Defendant that

he could sit inside one of the first responders’ vehicles because the house was a crime

scene.

On cross-examination, Deputy Gresham testified that all of the first responders had

entered through the garage. He thought a dog was inside one of the bedrooms but did not

recall how it got there. Deputy Gresham did not recall Defendant’s smelling of alcohol.

- 17 -

Former KCSO forensic technician Megan Stark Queener testified that she

documented the scene with photographs and video. The crime scene photographs were

received as exhibits and reflected that the light blue pickup truck had a Claiborne County

license plate; the sedan inside the garage was a Chevrolet Cavalier with an Indiana license

plate. Inside the house in the hallway, a black wire basket containing toiletry items was on

the floor behind a couch that served as a partition between the living room and the hallway

and entryway to the garage. Just inside the door to the garage, clothing on hangers were

on the floor in a pile, and the victim’s left blue jean leg and tan boot were visible protruding

from underneath the clothing. Some blood spatter was visible on the victim’s boot, the

baseboard at the threshold of the hallway, and the tiled entryway to the garage.

Inside the hallway, the victim, who was wearing blue jeans and a pink tank top, was

lying on her back with her right leg folded back and to the side; her right arm rested on her

torso, and her left arm, which had heavy bloodstains, was extended by her side. The

victim’s head was turned to the left, and no injury was immediately visible on her head.

The pile of clothing covered part of the victim’s lower body beginning at knee level. A

cigarette butt and ash were visible underneath the ends of the victim’s hair in the hallway;

Ms. Queener stated that it was “consistent with the Camel Crush brand with the blue lines.”

An iPhone was protruding from the victim’s left front pocket; a small baggie of

green plant material, which Ms. Queener identified as “assumed” marijuana, was in the

victim’s right front pocket. A large pool of blood was underneath the victim’s head, left

shoulder, and left arm, and the wall beside the victim contained bloodstains as though a

body part had swiped the wall. The wall and baseboards also contained droplets and drips

of blood. The pool of blood at the victim’s head also extended across the floor to the

baseboard, in a shape that appeared as though it may have been created by a swiping

motion.

A single shell casing was photographed close to the victim’s body inside the

threshold of an adjacent bedroom, beside a door on the carpet. Ms. Queener noted that it

was later determined to be a 9 mm Luger round. In the bedroom, a rifle was propped up

beside the closet; Ms. Queener noted that they later identified it as a “pellet gun, an Airsoft

rifle.” Clothing and hangers were strewn about the floor. A pink satin duffle bag was in

front of the open closet doors, and multiple tote bags and a laundry basket were in the

corner of the room diagonally opposite the door. The bedroom closet had no clothes

hanging in it, and a pair of winter boots, a piece of clothing, and a black LG cell phone

were sitting on a shelf. A second bedroom contained a black headset and a duffle bag

containing men’s clothing.

The living room contained a brown sectional sofa and a leather recliner. Two small,

empty bookshelves were located beside a window and the television. A small coffee table

contained open, partially full bottles of Crown Royal and juice; the lids had been placed

- 18 -

nearby on the table. A basket of toiletry and bathroom items was on one side of the sofa

beside the black wire basket; a small zippered pouch in the basket contained a paper with

a copy of the victim’s Indiana identification. Photographs of the front door reflected that

the door and frame did not appear to be damaged.

Photographs of the back porch reflected that the French door blinds had one slat

askew just above the deadbolt. A trash can on the porch contained a Camel Crush cigarette

pack.

In the kitchen, a copy of Defendant’s lease was inside a cabinet, and a drawer

contained multiple packs of Camel Crush menthol cigarettes and another black cell phone.

The lease reflected that the rental period for the Missoula Way house was January 20, 2020,

through January 20, 2021. A cigarette butt on the kitchen floor had one thick blue line with

“Camel” printed below it, and a small blue camel was printed above it. A photograph of

the kitchen trash can reflected several empty beer bottles.

Ms. Queener identified photographs one of her colleagues took, which reflected a

medium-sized brindle dog and another bedroom with a bed; a small plant and beer bottle

were tipped over on the bedspread. Ms. Queener noted that the dog had been found in this

bedroom.

Photographs of Defendant’s semi-truck cab reflected that it contained a sleeping

area with a bed. A small black handgun was located inside a compartment; the barrel had

“Model C8380 CAL 380” inscribed on it. The gun contained two unfired rounds. Two

packs of Camel Crush Menthol Silver cigarettes were in the front passenger seat, and an

empty pack was in the floorboard.

Photographs of the victim’s sedan reflected that a hamper full of clothes and

clothing on hangers were stacked in the backseat to the height of the front seat headrests.

A large plastic grey tote was inside the trunk. A blue tube identified by Ms. Queener as a

smoking pipe and a pack of Camel Crush cigarettes were in the center console. Mail

addressed to the victim was inside the car.

Ms. Queener testified that she took gunshot residue (GSR) swabs from Defendant’s

and the victim’s hands. Ms. Queener identified a photograph of a piece of notebook paper,

which had “Your Next” written in a brown-red substance. She stated that a swab taken

from the paper was sent to the Tennessee Bureau of Investigation (TBI) for testing.3

3

A TBI forensic biology report entered into evidence does not reflect that the swab from the note

was tested.

- 19 -

On cross-examination, Ms. Queener testified that she thought different types of

Camel Crush cigarettes existed, but she was uncertain. She did not know what kind of

Camel Crush cigarettes were at the scene, and she did not document the appearance of the

unused cigarettes at the scene or in Defendant’s possession when he turned himself in. She

agreed that the cigarette butts found underneath the victim’s hair and in the kitchen were

different in appearance. Ms. Queener stated that the beer bottles in the kitchen trash were

not tested. She agreed that Defendant signed a consent form to search the house and

consented to the GSR swab.

KCSO Detective Jeremy McCord testified that he was the lead detective on

Defendant’s case and that he initially interviewed Defendant at the scene inside his police

cruiser because it was cold outside. His body camera recording of the interview was

received as an exhibit and reflected that Detective McCord placed the camera on the

dashboard such that the recording appeared sideways to the viewer. Defendant sat in the

front passenger seat smoking a cigarette, and Detective McCord was in the driver’s seat.

Defendant’s demeanor was subdued, and he blinked often and sniffled occasionally.

Defendant stated that he had signed a rental agreement for the house on Missoula Way one

and a half weeks previously. Defendant commented that the officers would probably find

marijuana inside the house; he stated that the victim smoked marijuana but that he had

never smoked marijuana because he had a commercial driver’s license (CDL). Defendant

stated that he drank “a lot” the previous evening. Detective McCord noted that he could

smell alcohol on Defendant, and Defendant denied that he was still intoxicated. Defendant

noted that he had stopped drinking at midnight.

When asked if the victim had any local family, Defendant responded negatively and

added, “It’s all weird to me.” Detective McCord told Defendant that he could leave the

police cruiser without giving a statement, and Defendant replied that he wanted to

cooperate. Detective McCord advised Defendant of his Miranda rights, and Defendant

stated that he understood them. Defendant said that he completed six months of college

studying to be a “transportation specialist.” Detective McCord informed Defendant that

he could revoke consent to search or choose not to answer questions at any time.

Defendant stated that he had lived at the Missoula Way house for about a week and

was in the process of moving in. Defendant stated that he met the victim at an adult club

in Crawfordsville, Indiana, thirty-five days previously. Defendant stated that the victim

had worked as a dancer at the club but had quit her job for Defendant. Defendant said that

he was self-employed as a truck driver and that he was supposed to haul a load of plastic

pipe from Harrogate that day. Defendant’s telephone rang, and Defendant stated that the

caller was the victim’s best friend, Dylan, in Indiana.

Defendant told Detective McCord that he and the victim had been “seeing each

other” for a month and a half but that they had only been in a defined relationship for a

- 20 -

week and a half. Defendant said that he was in the process of divorcing his wife. He stated

that only his name was on the lease of the Missoula Way house but that the victim was

going to have the utilities registered in her name the following week.

Defendant told Detective McCord that the victim had traveled with him in his truck

to Fort Lauderdale, Florida, the previous Wednesday and Thursday and that the trip had

gone well. Defendant stated that he dropped the victim off at her car on Friday and drove

to Middlesboro to load his truck. He said that he returned to Knoxville around 4:00 or 5:00

p.m., that he and the victim shopped for a television, and that they went to bed early.

Defendant said that he got up at 6:30 a.m. on Saturday and went to the laundromat in Mr.

Hoover’s4 Chevrolet Silverado truck around 7:00 a.m. He had borrowed the truck earlier

in the week to transport the sofa and bedroom furniture he and the victim had purchased.

Defendant said that he finished at the laundromat around 8:20 a.m. and returned home after

buying two coffees at a gas station. The victim texted him at 8:30 a.m. when she woke up

and had made herself breakfast when he arrived. Defendant stated that the victim did not

like the coffee he brought her, but that she was not upset.

Defendant said that he began unpacking, that the victim wanted the master bedroom

closet for her clothing, and that he hung his clothes in the closet in his “office.” Defendant

stated that, after he hung up his clothes, he and the victim “sat around” because she was

tired. He stated that he and the victim had been having “a lot” of sexual intercourse and

that the last time occurred when they got home on Friday morning around 3:30 or 4:00 a.m.

Defendant added that the victim took him back to his truck at about 9:00 a.m., after which

he drove to Middlesboro to load up.

When Detective McCord asked Defendant for his telephone number, Defendant

responded, “Well, that’s strange. I’ve got two phones and I can’t find the other one. It’s

very possible that it was left at that bar, because I had them both there last night.”

Defendant noted that the cell phone he had was his work phone and that he did not have

Mr. Jack’s number on it.

Detective McCord noted that the victim’s car had a lot of stuff in it, and he asked if

the victim was moving out. Defendant responded negatively and stated that the victim was

moving in.

Defendant stated that he and the victim went to Bullfeathers between 8:30 p.m. and

9:00 p.m. on Saturday. He said that the victim had a silver iPhone, but he did not know

whether she had a passcode or what it was. Defendant provided Detective McCord with

the victim’s telephone number.

4

Defendant referred to Mr. Hoover as his brother for the first part of the interview but eventually

identified him by name and clarified that they were not related.

- 21 -

Defendant was unsure how much alcohol the victim consumed at Bullfeathers; he

noted that she usually drank shots, although he did not see if she had any that night. He

said that they left between 11:30 p.m. and 12:00 a.m. When asked what vehicle they drove,

Defendant added that Mr. Hoover had brought Defendant his blue truck and had driven the

trio to Bullfeathers in his white Silverado.

Defendant stated that the victim became angry the previous evening because she

liked to “party,” which he clarified meant staying out late, and that Mr. Hoover needed to

get home to take his grandmother to church on Sunday morning. Defendant said that he

went outside to smoke and that the victim wanted them to leave her at Bullfeathers and

come back to get her later, which he was unwilling to do because she was in an unfamiliar

town. Defendant noted that the victim was “used to going and just finding somebody to

go home with, I mean, it’s--that’s just as simple as I can put it.” He said that the victim

often went to “Broad Ripple,” an area of Indianapolis with a “strip of bars,” and that she

talked about doing “bumps” of “some kind of drug.” Defendant denied that the victim took

any illicit drugs the previous evening or that he knew what kind of drugs the victim used.

Defendant stated that he talked the victim into leaving, that she was upset, and that

he was willing to take the victim back to Bullfeathers in his truck after they were dropped

off because “at this point in our relationship . . . I’m willing to do anything she wants to

do.” He said that Mr. Hoover left without entering the house between 11:30 p.m. and 12:30

a.m.

Using his cell phone’s call history, Defendant determined that he called Mr. Hoover

at 12:11 a.m. to ask him for a ride. Defendant said that the victim “ran [him] off,” that she

told him they would talk about it tomorrow, and that he did not want to drive because he

had been drinking. Defendant stated that, when he left, the victim was in the garage

smoking marijuana with the garage door closed. He denied that he had a house key with

him. When asked why he did not take his key, Defendant responded that he “just left.” He

said that the victim closed the garage door behind him. Defendant stated that he stayed

outside for five to ten minutes smoking cigarettes before Mr. Hoover arrived. He denied

that he and the victim were yelling at each other, and he noted that the argument was not a

“big deal.”

Defendant said that, after Mr. Hoover picked him up, Defendant called his wife and

asked to stay with her, which she did not allow. Defendant stated that he asked Mr. Hoover

to take him to his semi-truck on Forge Ridge Road in Harrogate. Defendant said that he

started the truck and slept there.

Defendant stated that he tried unsuccessfully to call the victim at 1:36 a.m., 1:50

a.m., and 2:20 a.m., and that he messaged her that he was sorry. Defendant denied coming

back to the house that night. When asked whether he was concerned that the victim might

- 22 -

have left the house again, Defendant responded negatively. He said that the victim had

“done this once before,” when she went to Broad Ripple and never texted him goodnight.

He relayed that, on that occasion, the victim called him at 11:00 a.m. the next day and told

him that she had gone home with “some girl.” Defendant volunteered that he did not know

why he fell in love with the victim, he “just did.”

Defendant stated that he sent a Facebook message to the victim at 10:15 a.m. that

he was on his way to the house; the victim never responded. Defendant said he had also

tried unsuccessfully to call her, and he sent other messages asking her to please pick up

and to call him, that he just wanted to talk, and that he was sorry and did not want to argue.

He noted that none of the messages were marked as having been seen by the victim.

Detective McCord asked if he had deleted previous messages with the victim, and

Defendant explained that he had never messaged the victim from his work phone before.

Defendant stated that the victim had her cell phone and had been talking to someone before

he left.

When Detective McCord encouraged Defendant to tell him the truth of what

happened, Defendant denied that he did anything. Defendant said that, before driving back

to the house, he stopped and bought coffee at a Knoxville gas station about ten minutes

from the house. He stated that he was supposed to drive a load to Illinois that day but that

he promised the victim he would not leave until Monday.

Defendant gave consent for officers to search his semi-truck; he noted that a .32 or

.38 caliber derringer was inside. Defendant denied having fired a gun in the past twenty-

four hours. When Detective McCord obtained permission to perform a GSR swab,

Defendant asked him, “Was she, was she shot?” Detective McCord stated that he could

not disclose anything. When asked whether any firearms were in the house, Defendant

responded negatively; he denied that the victim had a gun.

Defendant stated that he began to panic on the drive to the house because he could

not reach the victim. He said that he messaged Mr. Jack at 9:52 a.m. asking Mr. Jack to

call him. Defendant noted that he had called Mr. Jack before when the victim fell out of

contact. Mr. Jack responded that he was at work, and Defendant stated that he told Mr.

Jack that he was “just worried again.”

When asked whether the victim had ever made statements about harming herself,

Defendant said that the victim had pills to which she was allergic and that she had tried to

take them one week previously after an incident in Indianapolis. He stated that, during the

incident, the victim was trying to collect her belongings, that her ex-boyfriend hit her in

the back with a guitar, and that the police were called. Defendant stated that he looked for

a mark and could not see one; he commented that he did not know if she had lied about

being hit.

- 23 -

Defendant stated that, when he arrived at the Missoula Way house on Sunday, the

garage door was closed, and the doors were locked. He opined that the house looked

normal from the outside, and he denied going inside before first responders arrived.

Defendant said, though, that Simba was “roaming the house,” which was “odd, in a way,

because that mean[t] she was home.” He noted that the victim typically shut Simba in a

bedroom if she left. Defendant said that he climbed the back porch to see if the victim left

the back door unlocked. Defendant said that the back door was locked and that he could

not see anything inside from the window. Defendant stated that he beat on the windows

for about thirty minutes, that he “knew something was wrong” because Simba was out, and

that he thought the victim took the pills to which she was allergic and was unconscious.

Defendant said that, after he called the police, he and the firefighters were trying to get in

the back door and that Simba was “tearing the blind[s] up,” at which point Defendant could

see the victim on the hallway floor. He stated that the firefighters forced entry into the

house through the garage. Defendant stated that he shut Simba in the master bedroom at

that point. At the conclusion of the interview, Defendant interjected that the victim had

said she was going to leave the house again but that he did not know if the victim had done

so.

Detective McCord testified that police never recovered Defendant’s “main personal

phone.” Detective McCord stated that he did not see the victim’s body or any blood when

he tried to look through the slanted slat in the back door blinds.

Detective McCord testified that he conducted a second interview with Defendant at

the scene. Detective McCord’s body camera recording of the interview was received as an

exhibit and reflected that Detective McCord and Defendant were again inside the police

cruiser. Detective McCord told Defendant that he needed to be honest with him and stated

that Defendant’s blue truck had been backed into the driveway at an unspecified time.

Defendant stated that Detective McCord was mistaken, and Detective McCord asked if

“the witnesses” were mistaken. Defendant stated that the truck had been there since the

previous evening and that he had not moved it since Mr. Hoover brought it to him.

Detective McCord said that a smear was found on one of the truck’s door handles and asked

if Defendant had touched it or had blood on him. Detective McCord asked to see

Defendant’s hands, and he complied.

Detective McCord commented that Simba did not have blood on him, in spite of

being loose in the house. Detective McCord said that it made no sense for the dog not to

have stepped in blood, but that the dog had not been around the victim’s body. Defendant

repeated that Mr. Hoover had parked the blue truck in the driveway and that it had not been

moved. Detective McCord asked for Defendant to call Mr. Hoover; Defendant placed Mr.

Hoover on speaker phone, and Detective McCord identified himself and asked Mr. Hoover

to come to the scene; Mr. Hoover responded that he was a couple of hours away but agreed

to drive there.

- 24 -

Detective McCord told Defendant that his version of events did not match the

forensic evidence inside the house. Defendant interrupted to tell Detective McCord that

he had just remembered that he bought his coffee that morning at Kay’s Market in

Maynardville. Defendant reiterated that, when he knocked on the front door, he heard

Simba run down the hallway to the door and bark. He stated that when Simba “got [his]

scent,” he stopped barking and began whining. Defendant said that he stood there for about

five minutes knocking on the door, that he looked in the windows and did not see anything,

and that he checked the back door. He stated that Simba continued crying and that, when

the fire department arrived, Simba could smell that strangers had arrived and began

“tearing up” the back door blinds in an effort to get out. Defendant asserted that Simba

had been out “all day.”

Detective McCord repeated that Defendant’s statement did not make sense, and

Defendant responded that he was simply telling him what he saw when he arrived at the

house that morning. Detective McCord noted that, in his experience, dogs would go to

their injured owners and step in blood or lick the person’s face, and Detective McCord

repeated that Simba had no blood on him. Detective McCord encouraged Defendant to tell

him if something happened or Defendant knew additional information.

Defendant said that he did not want to “start anything” but that the victim talked

about her “crazy ex-boyfriend Caleb” who would come home drunk and beat her.

Defendant noted that he did not know Caleb and that Caleb did not know the victim had

moved to Knoxville. Detective McCord stated that the house had not been broken into,

that the victim had not been robbed, and that Defendant had been the last person to leave

the house.

Detective McCord asked Defendant which expenses he paid, and Defendant stated

that he paid the rent, the bar tab at Bullfeathers, and for gas for his vehicle; he did not pay

for the victim’s gas. Detective McCord asked if it bothered Defendant that he was the one

who left the house in the middle of the night, considering that he was paying for it.

Defendant stated that the victim was going to look for jobs the following day and that he

had given the victim $300 a couple of days ago.

Detective McCord stated that he had looked through the blind slat and that he could

not see the victim. Defendant responded that he could see the blood on the wall. Defendant

commented that the victim appeared to have been folding laundry or putting it somewhere.

When asked why the victim was putting clothing in her car, Defendant responded, “She

was moving out--er, moving in.” Detective McCord theorized that the victim was leaving

because she was “done with being told what to do.” Defendant denied that this was the

case and remarked that the victim told him what to do. Defendant stated that he “went

head over heels for this girl.” Defendant said that they had just moved in, that they placed

their clothes in separate closets, and that they slept in the third bedroom. Detective McCord

- 25 -

noted that it seemed like the victim was carrying clothing to her car when something

stopped her inside the house.

Detective McCord mentioned the possibility that something had happened when

Defendant had been “blackout drunk.” Defendant stated, “No, I remember everything,”

and he noted that he had only been blackout drunk one time three years previously. As

Detective McCord discussed that his investigation was for the sake of the victim,

Defendant interrupted and stated that he thought the victim had gone out again that night.

Defendant said that a man at Bullfeathers had wanted the victim to sing karaoke with him

and that the victim wanted to stay there because of him. Defendant denied that it bothered

him and said that the victim was “like that” and that he knew “what [he] got [him]self into.”

Defendant said that he “love[d] her to death.”

When asked if the victim would have driven her car to go out, Defendant responded

affirmatively. Defendant said that the victim carried her marijuana and money in a small

handbag. He noted that her permanent identification card was sent to the house in which

she had lived with Caleb and that she was so afraid of Caleb that she did not retrieve it

before she moved. Defendant stated that the victim’s mother was supposed to mail it to

her.

Defendant stated that the messages he and the victim exchanged were all on his

primary cell phone. Defendant said that the victim’s contact was labeled in his work cell

phone as “Mizz Polk” and in his primary cell phone as “Indiana Starlight.” Defendant

remarked, “Honestly, . . . from meeting her and what she used to do and everything, . . . I

guess, it was silly to pursue a relationship with a woman like that, but I loved her.”

When confronted, Defendant denied that he killed the victim. He stated that, when

he left, the victim was alive, “b--ching,” and smoking marijuana. Defendant said that, in

an effort to make the victim jealous, he told her that he was going to leave for Illinois the

next day. He stated that he wanted to “entice” her to ask him to say. However, the victim

did not “buy it.”

Defendant noted that he had no close friends or family to talk to aside from Mr.

Hoover; he stated that his father had died before he was born, that his mother had passed

away three years ago, and that his grandparents who raised him were deceased. When

asked about Mr. Hoover, Defendant said that he “love[d] him to death” and considered him

his best friend but that Mr. Hoover was not “all there.” Defendant opined that he could not

talk to Mr. Hoover about this. Detective McCord said that he would provide information

about mental health resources. Unprompted, Defendant asked, “Was it a gunshot wound?”

Detective McCord stated that he did not know because they had not been able to move the

victim’s body. Defendant asked, “Did she do it?” Detective McCord repeated that they

did not know.

- 26 -

Defendant denied that he had GPS tracking on his semi-truck. When asked if the

victim would have driven Defendant’s blue truck if she left the house again, he stated that

it was possible, but “it was still pulled in. [Mr. Hoover] won’t back in.” Defendant noted

that the victim loved the blue truck when she saw it. Defendant stated that Mr. Hoover did

not drink or use drugs. Defendant said that Mr. Hoover had two beers while they were at

Bullfeathers; however, Defendant also stated that he had asked Mr. Hoover if he wanted a

second beer and that Mr. Hoover declined because he had to drive back.

Defendant said that he was drinking Blue Moon at Bullfeathers and that the victim

had introduced him to it. He stated that, before they went to Bullfeathers, the victim had

given him a Blue Moon in a glass with an orange slice. Defendant stated that he paid $60

in cash for the tab at Bullfeathers. Defendant remarked that he did not know the victim’s

family and that the only person he and the victim both knew was Mr. Jack. Defendant

stated again that he would call Mr. Jack every time the victim “did this,” which was often.

Defendant commented that he worried about the victim and that, in Indiana, the victim

would send him a photograph from a bar every night.

Detective McCord testified that he had reviewed the Bullfeathers surveillance

recording and that the victim talked to anyone around her and did not spend time with any

group or person in particular. He stated that Defendant said he was trying to make the

victim upset by telling her that he was going to Indiana a day early, but it “fell by the

wayside.” Detective McCord said that Defendant smoked at the crime scene “every

opportunity he could.”

Detective McCord conducted a third interview with Defendant at the crime scene

outside on a cul-de-sac, which was recorded by his body camera. A recording of the

interview was received as an exhibit and reflected that Defendant, Detective McCord, and

two other officers were standing outside a police cruiser. Defendant averred that the victim

was alive when he left the previous evening. Defendant denied that he hurt the victim

during their argument or that she was packing her things to leave. Defendant noted that he

had spoken to Mr. Jack, who told him that the victim called her mother at about 12:33 a.m.

Defendant denied that the victim had any head injuries or that anything happened between

them physically. Defendant denied that they had any guns in the house; he added that he

kept a small pistol in his truck for protection and that he did not carry it. Defendant said

that he left in Mr. Hoover’s white truck and that his primary cell phone might have fallen

out of his pocket inside it. Defendant stated that, when he left, the victim was smoking

marijuana in the garage, that he left through the garage door, and that the victim closed the

door behind him.

Defendant denied that the victim ever told him she was leaving, and he noted that it

was not “that type of argument.” Detective McCord described a message the victim sent

to a friend stating that she was packing up and leaving. Defendant maintained that the

- 27 -

argument was over the victim’s wanting to stay at Bullfeathers or go back there. Defendant

stated that, at Bullfeathers, he was whistling while the victim sang a karaoke song when a

man aggressively “got over in [his] face” and told him to stop whistling. Defendant said

that, later, the same man and the victim sang two songs as “a duo.” Defendant stated that

he did not know if that meant anything. Detective McCord told Defendant that he needed

to be available to talk to him the following day; Defendant asserted that he was “fully”

cooperative.

After a cut in the video, the recording resumed with Defendant’s stating that the

victim told Mr. Jack “all the time” that Defendant was verbally abusive; Defendant noted,

“[A]ll I do is don’t say anything, like I shut down when she . . . speaks and yells and

screams[.]” Defendant denied that he called the victim names. He added, “I was married

to the same woman fifteen years, I never hit her.” Defendant denied that he had ever had

an order of protection against him. Defendant stated that he had previously received

speeding tickets.

Defendant asked Detective McCord again if the victim had been shot; Detective

McCord repeated that they did not know yet but that evidence in the house indicated there

should be a firearm inside. Defendant stated that the victim had a BB rifle. Defendant

denied that his or the victim’s cars backfired, but he noted that Mr. Hoover’s truck was

loud. Defendant said that Mr. Hoover dropped them off, that Defendant asked him to come

back, and that Mr. Hoover arrived about twenty minutes later.

Defendant stated that, in the interim, he saw a black Ford F150 truck parked near

the house with tinted windows. Defendant said that the truck had its parking lights

illuminated but not its headlights and that, by the time Mr. Hoover arrived, it was gone.

Defendant repeated that the victim was smoking in the garage and added that the last thing

she said to him was, “Have fun.”

Defendant stated that he was “under a load” to transport goods to Chicago on

Monday, although he did not think he could drive under the circumstances. He repeated

that he needed to talk to someone. Defendant said that, one week previously, the victim

had been “beat up” by a man named Danny with whom she had been in a relationship for

six months. He stated that Danny had broken the victim’s television and caused damage

inside their home. The victim called Defendant and told him that she had called the police

and that Danny had left. While they were speaking, she told Defendant that Danny had

pulled into the driveway and hung up abruptly. Defendant called Mr. Jack and told him to

call the police and go to the victim’s residence; Mr. Jack was fifty minutes away, and

Defendant noted that he was panicked for three hours over the victim’s safety. He said that

he was “expecting the worst then.” Defendant stated that Mr. Jack did not think Danny

would have driven to Knoxville. Detective McCord observed that the house had no signs

of a break-in.

- 28 -

When asked what firearms he had purchased previously, Defendant stated that he

bought a .38 caliber pistol from a friend who needed money, that he had three rifles, and

that he had the derringer he kept in his semi-truck. Defendant noted that he had sold a .45

caliber pistol previously.

When asked by one of the other officers why the victim would have wanted to leave,

Defendant responded that it was “news to [him]” and maintained that their argument was

not that serious. Defendant denied that the victim was packing the car when he left. He

stated that, when they moved her to Knoxville, the victim’s car was “jam-packed” with

belongings and that he towed her car because she did not want to drive it. Defendant stated

that some clothing was left in the backseat of the victim’s car and that the victim had

wanted him to wash the clothes because they smelled like smoke or marijuana.

When asked why the victim would have told people she was leaving, Defendant

responded that he did not know. Defendant stated that the victim became “manic” when

she drank too much. Defendant denied again that the victim told him she was leaving.

Defendant said that it was hard to explain but that it was not an argument “like that.”

Defendant stated that the victim wanted to go back to the bar and that he told her to go

ahead. Defendant walked with Detective McCord to the driveway and described that Mr.

Hoover pulled the blue truck onto the left side of the driveway, leaving tire tracks in the

mud to the left of the driveway; the recording showed the blue truck on the right side of

the driveway. Defendant said that Mr. Hoover later pulled up to the curb in his white truck

behind the driveway. Defendant noted that he felt, but did not know, that the victim had

moved the blue truck. Defendant stated that, two weeks previously, the victim had left him

at a hotel between 12:30 and 2:00 a.m. while she went out; she came back at 2:00 a.m. to

ask him to come out to the club with her. He said that he felt sorry for the victim and “put

up with it.”

Defendant noted that Mr. Hoover had arrived at the scene driving his father’s car

instead of the white truck. The recording ended with Detective McCord asking to speak to

Mr. Hoover alone.

Detective McCord testified that he kept within eyeshot of Defendant while he

interviewed Mr. Hoover. Detective McCord stated that he did not have enough evidence

that day to support an arrest.

Relative to the Bullfeathers recording, Detective McCord testified that he was

unsure if the jacket Defendant wore in it was ever located. He could not tell what

Defendant was wearing under the jacket. He stated that officers went to Bullfeathers the

next business day and that Defendant’s cell phone was not found. Detective McCord noted

that the surveillance recording did not show Defendant dropping it or leaving it behind.

- 29 -

Detective McCord stated that, on January 27, 2020, Defendant “presented himself”

at the police station in Knoxville’s City-County Building. Defendant conveyed that he was

afraid for his life and wanted to speak to detectives. Detective McCord stated that

Defendant “came in with some type of note that had the language ‘Your next’ written on

the note.”

Detective McCord conducted a fourth recorded interview, which was received as an

exhibit. Detective McCord stated that another detective accompanied him in the first part

of the interview and that Lieutenant Steven Sanders was present in the latter part of the

interview. The interview took place over three and a half hours. In the recording, Detective

McCord informed Defendant that he was still under advisement of his Miranda rights.

Defendant stated that he had been to the Missoula Way house that morning to let Simba

outside and feed him. He said that he backed into the driveway in a GMC work truck and

that, upon exiting the truck, he saw a note in the truck’s passenger seat reading “Your next.”

He placed the note in a bag and brought it to the police department.

Relative to the note, Detective McCord and, later, Lieutenant Sanders reassured

Defendant that the note would be investigated; Detective McCord discussed that, even if

Mr. Jack or the victim’s family left the note, he did not believe they would “do anything.”

Detective McCord also told Defendant that the note had been written in lipstick and that it

was “not genuine.” Nevertheless, Defendant repeated more than a dozen times that he was

afraid for his life if he was not in jail and that the only way to secure his wife and children’s

safety was to confess to killing the victim. Defendant asserted, however, that he did not,

in fact, kill the victim.

Detective McCord told Defendant that he had just left the victim’s autopsy and that

witnesses in the neighborhood had reported that a white truck was in front of the Missoula

Way house when a loud pop or bang occurred and that the truck left a few minutes later.

Detective McCord opined that the victim had died close to the time Mr. Hoover initially

dropped them off. Detective McCord asked Defendant to help him find the gun, and

Defendant responded, “It was a gun?”

Detective McCord stated that Mr. Hoover was trying to protect Defendant but that

if Detective McCord had to “break” Mr. Hoover, he would charge him with “accessory

after the fact.” Defendant said that Mr. Hoover had “nothing to do with this.” Defendant

stated that Mr. Hoover never exited his truck when picking up Defendant.

Defendant reiterated at least six times during the interview that the victim never said

she was leaving or that he did not know she was leaving. Defendant said that he did not

know who killed the victim, that the victim was on the telephone with her mother, and that

the victim was smoking marijuana when he left.

- 30 -

Defendant stated that, “honest to God,” he had not fired a gun in a long time. He

noted, though, that he recently found a bullet in Indiana, pulled it apart, and lit the powder

on fire to see what happened.

Defendant said that the victim’s last words to him were, “Have fun.” He stated that

the victim was “going back and forth” like she wanted to go back to Bullfeathers.

Defendant said, “I can admit to you and tell you that I did it, but deep down inside I didn’t,

but I want to tell you I did, just so I don’t have to go back out there.”

When discussing the argument he had with the victim, Defendant stated several

times that it “wasn’t that kind of fight” and that the victim simply wanted to go back to the

bar. Defendant stated that he told the victim to stay at Bullfeathers and did not force her

to leave. Defendant stated again that he wanted to admit to the killing but then denied that

he had a gun.

Defendant stated that he stayed in Middlesboro the previous evening because he

was “in fear that somebody, that they know my address” in Harrogate. He noted that he

had sent his wife a text message from his iPad, informing her of his plan to admit to the

killing to “be done with it” for the sake of their safety.

Defendant denied that he had a gun, but later added that he had a small derringer

that evening. Defendant stated that he did not carry the derringer and that it was never

inside the house. When asked whether he tossed the gun off of the Missoula Way house’s

back porch, Defendant answered negatively. Defendant said that he had “never harmed

anybody.” Detective McCord asked Defendant again where the gun was located.

Defendant stated that no gun was ever in the Missoula Way house, that they had only been

there one week, and that any “bang” did not happen when he was at the house. Defendant

claimed that the victim was still alive when he left. He noted that Mr. Jack said the victim

called her mother around 12:30 a.m., and he averred that he and Mr. Hoover had left the

house by 12:00 a.m. Detective McCord interjected that Defendant’s time frame was “off”

and that he was outside the house at 1:00 a.m.

Defendant asked if the police had checked the location data on his cell phone.

Detective McCord asked for the location of Defendant’s other cell phone, and Defendant

stated that it had to be at Bullfeathers. Defendant denied that the phone was in Mr.

Hoover’s truck. Defendant stated that he called Mr. Hoover after being home with the

victim for about ten minutes and that Mr. Hoover was only fifteen minutes away.

Defendant commented that he understood that he was the last person seen with the

victim and that he was “to blame.” He noted that the situation did not “look good” and

stated, “But I promise you, I did not kill her.” Defendant stated that, when he opened the

garage door, the victim was smoking marijuana while sitting on the furniture boxes.

- 31 -

Defendant continued, “I don’t want to leave here. I could just admit to this, but in all

honesty, I didn’t do this.”

When Detective McCord admonished Defendant to honor the victim by telling the

whole truth of what occurred, Defendant asked if Detective McCord thought that Mr. Jack

left the note. Defendant denied ever laying hands on the victim and stated that their

argument consisted of “snarky” comments. Detective McCord stated that the victim had

told people that she was leaving. Defendant replied, “All I know is, she’s into a lot. I don’t

know what she’s into. The way she talks about some of her past, it gets me thinking[.]”

Defendant stated, “There was no accident.5 There was no premeditated . . . . I didn’t kill

anyone.”

Defendant said that the victim was a good person. When asked why the victim was

dead, Defendant stated, “Apparently someone shot her.” He denied killing the victim.

Defendant stated that he had never cursed at the victim, although he called her “something”

one time. He noted that they had only been together for three or four weeks.

Detective McCord stated that the blue truck had probably been moved so that the

victim could leave in her car. Defendant noted that the victim must have moved it herself

because Mr. Hoover had parked the blue truck on the left side of the driveway. Defendant

stated that he did not sleep the previous night. Defendant asserted that he had told

Detective McCord everything he knew. He stated that he had not fired a gun in six months

to a year.

When Detective McCord opined that Defendant was showing little emotion,

Defendant responded that he was in shock. Defendant stated, “All I’ve got to tell you is

the truth. I wouldn’t lie about something.” Defendant noted that he had allowed the victim

to “walk[] out” a couple of times. Defendant did not know why the victim was carrying

clothing. He noted that he was supposed to take the clothes in the victim’s car to the

laundromat and that they smelled like marijuana. Defendant stated that, on Saturday,

January 25, he had taken three loads of laundry that were set out in the house and forgot

the clothes in the car. He denied that an argument occurred because of his error.

When asked why the victim did not stay at Bullfeathers, Defendant stated that he

did not know and that normally she would have stayed. He said that he told her that he

needed to take Mr. Hoover back to the house, that he did not tell her to come with them,

and that he gave her the option to stay. Defendant stated that the victim sang one more

karaoke song and then left. He said that the victim sat behind him in the truck and made it

known that she wanted to go back. According to Defendant, he told her, “That’s fine, you

can go back.”

5

Detective McCord had suggested earlier in the interview that the shooting was accidental.

- 32 -

Defendant said that they returned to the house and argued about “nothing major”

for “a minute.” Defendant averred that the victim stated that she was going back to

Bullfeathers and that there was a man there, which was meant to make Defendant jealous.

Defendant denied that he was the “jealous type.” Defendant stated that he, in order to “fire

back,” started talking about a fictitious girl in a black shirt he had seen at the bar. Defendant

stated again that the last thing the victim said to him was, “Have fun.” He said that she

was smoking in the garage and that he stood outside to wait for Mr. Hoover. Defendant

stated that the garage door was open and that he had walked in and out at one point during

the argument. Defendant stated that he and the victim did not know each other well enough

to know how to antagonize one another. Defendant said that the victim’s previous

occupation did not bother him, and he denied asking her to quit. When Detective McCord

stated that a “rage situation” would have created damage to the Missoula Way house,

Defendant replied, “I don’t know what to tell you.”

Defendant said that he wanted to confess but that he wanted the victim’s parents and

Mr. Jack to know that he did not kill the victim. Defendant repeated twice that he did not

kill the victim. When asked why he wanted to confess, Defendant responded that “they”

knew where he lived. He stated that his wife knew he was involved with another woman

and was getting a house with her. Defendant claimed that his wife was seeing another man

and remarked, “Wouldn’t I kill him if I was going to kill someone?”

When Detective McCord described Defendant as “head over heels” in love with the

victim, Defendant stated that he “wasn’t completely” in love with her. He stated that he

loved the victim and was “trying to learn her” but was not “in love” yet. Defendant asserted

that his story had not changed and that he had not “lawyered up yet” because part of him

wanted to go to jail. He noted that he would “say it” and that it would all be over.

Defendant indicated that he was willing to take a polygraph examination. Defendant noted

that he had “never done this before” and that he worried too much. He stated that he

understood and sympathized with the victim’s family’s and Mr. Jack’s frustration.

Defendant stated that, yesterday, he felt like he knew who killed the victim. He

stated that the victim only had her cell phone for one week and that Danny had taken the

victim’s old cell phone, which had been deactivated. Defendant stated that the phone might

contain messages from a man named David, who was one of the victim’s “regulars” at the

club. Defendant stated that, when the victim told David she was moving, he offered her

$500 to $700 for her to have lunch with him, which she did. During lunch, the victim

became angry and left but did not block David’s telephone number. Defendant stated that

David sent the victim long messages, which may have been threatening, and that the victim

was keeping him “on the side” in case she went back to her job.

When asked what the pop or bang at the Missoula Way house was, Defendant denied

that the sound occurred. He stated that they did not throw or break anything. He

- 33 -

characterized the argument as a verbal confrontation and noted that he “g[o]t over that kind

of stuff quick.” Defendant noted that the victim had his focus all night at Bullfeathers.

Defendant stated again that his wife was seeing someone; he asserted that he “threw

away” his family three years ago when he went to the same adult club in Indiana and

cheated on his wife with an unrelated woman. Defendant acknowledged, though, that he

and his wife had renewed their vows in August 2019 and had not been separated.

Defendant stated that he left his wife one month ago, but he denied that he was really “with”

the victim.

Defendant remarked that he thought Mr. Jack was “making things up” to frame him.

Defendant stated that there was a possibility the victim was taking her clothes to another

closet. Defendant stated that he did not lock the front door when he left but that it was

locked when he returned in the morning. He remarked that the front door handle was

locked but not the deadbolt. When Detective McCord noted that Defendant said that he

had left through the garage, Defendant responded that he went in and out of the garage

several times, that the victim closed it behind him on one occasion, and that he came back

in through the front door.

Detective McCord told Defendant that the victim had sent messages to Mr. Jack

indicating that Defendant had gotten agitated and angry when she had not wanted to have

sex. Defendant denied that the victim ever declined sex.

Detective McCord stated that Defendant was a coward who would not “say it.”

Defendant responded, “I did it. I did it. There you go.” Detective McCord asked for

details and noted that Defendant’s wife had told him “about the guns.” Defendant stated

that he had one gun in the kitchen cabinet in his house in Harrogate; he did not know what

kind of gun it was, and he noted that he bought it from a friend who needed money.

Defendant also stated, for the first time, that he had inherited a .32 caliber pistol from his

grandfather. Defendant claimed to have forgotten about his grandfather’s gun. Detective

McCord and Defendant had an exchange about whether he had a gun; Defendant denied

having had a gun on the night of the shooting, and Detective McCord stated that

Defendant’s wife had said he would “talk circles” and make everyone else out to be the

liar.

Defendant stated, “I just told you I did it. I’m going to jail.” Detective McCord

gave Defendant a piece of paper and instructed him to write where the gun was. Defendant

denied having had a gun, and Detective McCord took away the paper. When asked how

he killed the victim, Defendant stated, “I did it. You were right, she was leaving, I

panicked, I shot her.” Detective McCord stated, “This is really cute,” and he told

Defendant that he needed to tell the truth. Defendant said that his wife could verify that

two guns were in the kitchen cabinet at the Harrogate house and that he did not have any

- 34 -

others, apart from the derringer. Defendant stated, “I’m admitting to this. Let me admit to

it.” Detective McCord responded negatively, and Defendant stated again that he was

admitting to it. Detective McCord stated that Defendant did not do it, and Defendant

responded, “You know I didn’t.”

Detective McCord again asked for details, and Defendant stated that they did not

argue “like that.” He said that he was angry with the victim for having lunch with David.

When Detective McCord asked what they argued about on the night of the victim’s death,

Defendant repeated that the victim never told him she was leaving. Detective McCord

asked Defendant where he shot the victim, and Defendant responded “in the hallway” and

“in her head.” Defendant said that he did not remember what he did with the gun.

Defendant stated that he did not kill anyone, then remarked that he was “just trying to tell

[Detective McCord that] [he] did it.”

When Detective McCord remarked that Defendant and the victim were not “happy

go lucky” at Bullfeathers, Defendant asked who told him that; he stated that nothing

happened there and that the victim was not upset with him. Detective McCord noted that

Defendant “play[ed] the victim,” and Defendant responded, “I’m about to be.” Defendant

stated that he told his wife last night that he was going to confess. He asked about the

possibility that someone other than Mr. Jack wrote the note.

Detective McCord asked Defendant why he did not have a key to the Missoula Way

house. Defendant stated that the victim had just had keys made, that they had been using

the victim’s keys, and that he did not know where his set of keys were located. He noted

that he could not contact the property manager because he had no cell phone.

Defendant noted that he paid for his parking spot downtown for twenty-four hours

so that someone could pick up his truck after he confessed. He stated he did not care if he

was “taking the fall” for someone else. Detective McCord stated that he would not arrest

the wrong person because that was not justice for the victim. Defendant stated that the

victim knew he loved her and that, if he left the police department, he would “do

something” to be arrested because he was “paranoid as hell.”

Detective McCord discussed that the victim had told others that Defendant would

notice things and “get on her” about them. Defendant stated that he recalled some

arguments about the victim’s hiding messages from him. He opined that it was “typical

twenty-five year old with a thirty-three year old” and that it was nothing to yell or curse

about. When asked if he was emotionally prepared for his relationship with the victim,

Defendant responded negatively, and he added that the victim “brought out something in

[him] that [he] hadn’t felt in a long . . . time.”

- 35 -

Defendant stated that the victim found out he was married with children before he

moved her to Knoxville. He said that the victim was “fine with that” and loved him enough

to look past it. Defendant stated that he asked his wife for a divorce two weeks ago.

Detective McCord stated that, according to Defendant’s wife, the past two years of their

marriage had been great. Defendant replied that he had learned to pick his battles and let

things go and that they did not fight or argue anymore. He stated, though, that three years

ago, his wife slept with their neighbor and that he had also cheated on his wife. Defendant

said that his wife forgave him but that he could not get past her infidelity and did not love

her after that.

Detective McCord asked, “If you didn’t kill her, who did?” Defendant replied that

he killed the victim. Detective McCord asked if Defendant killed the victim. Defendant

responded affirmatively and added that his wife told him only to admit to something he

did. He stated that the only reason to confess was to protect his children. Detective

McCord said that this was not how things worked and that he needed details. Defendant

stated, “I told you, she was leaving. She was in the hallway, and I shot her. In the head. I

didn’t want her to leave.” He added, “Don’t let me leave here. Please don’t.” Defendant

stated that the victim was “the only one that honestly knows what happened.” He repeated

that the victim was involved in “a lot of stuff” that seemed bad to him. Defendant stated

that the victim had a dealer for pills and another for marijuana, which was “stuff [he was]

not accustomed to.” He noted that the marijuana dealer was going to mail marijuana to the

Missoula Way house.

Detective McCord asked Defendant if he recalled drunkenly calling his wife on

Saturday night and why he failed to tell him about it. Defendant stated that he remembered

the call but that he did not think to mention it. He said that he called his wife and asked to

stay on the couch, that she declined because her mother was visiting, and that he dropped

the subject. Defendant stated that he knew Mr. Jack and the victim’s friends would think

that he killed her.

Defendant stated that he told the victim he was leaving and that they would talk

tomorrow; she closed the garage door behind them. Defendant noted that both of them

thought the other one was going back to Bullfeathers, although he did not know if the

victim left the house. Defendant stated that the police would have to check his cell phone

to see when he called for an Uber rideshare driver. Defendant said that he also called Mr.

Hoover, perhaps twice, to ask for a ride. Defendant stated that he went back inside to get

a beer and that, when he left the second time, the victim was smoking marijuana while

sitting on the furniture boxes, and her marijuana-related materials were on the hood of her

car. She told Defendant, “Have fun,” because he had given her the impression he was

going to Bullfeathers. Defendant stated that the victim would usually open the garage door

when she was smoking. He said that, one of the last times he left the house, he used the

front door.

- 36 -

Defendant stated, “I want to admit to this. Nobody’s going to believe me.”

Defendant commented that he thought Mr. Hoover believed he killed the victim because

he had texted Mr. Hoover asking to talk, but Mr. Hoover kept making excuses and avoiding

him. Defendant stated that he had wanted to say goodbye to Mr. Hoover but that he told

Mr. Hoover he was going to admit to the killing and relayed his opinion that he and the

children were in danger. Defendant said that Mr. Hoover told him to tell the truth, and

everything would be okay.

Detectives McCord and the second detective left Defendant alone for a period of

time; Detective McCord returned with Lieutenant Sanders, who asked Defendant for the

whole story from the beginning. Defendant stated that, on Saturday, he and the victim

went to a bar in Turkey Creek beside a beer store; they had a few drinks, then bought two

six-packs of beer at the beer store before returning to the house. Both of them showered

and got ready. Defendant called Mr. Hoover to come down, meet the victim, and get a

drink. While they were at Bullfeathers, Mr. Hoover reminded Defendant that he needed to

get up early the next morning. Defendant said that he told the victim they needed to go,

that she did not want to leave, and that she agreed to leave after she sang one more song.

The trio left, and Mr. Hoover dropped them off at the house. Defendant stated that he

called Mr. Hoover to come back and get him. Defendant stated that he and the victim

argued, that she wanted to go back to the bar, that she brought up a man at the bar, and that

Defendant told the victim he was going back to a different bar to make her jealous.

Defendant said, “She said she was leaving, and I didn’t want her to leave so I shot her.”

When asked to describe the argument, Defendant stated that they were “enticing”

and “p---ing each other off” with words. Defendant said that the victim was “walking

toward the door, and I pulled out a pistol, and I shot her.” He said that he shot the victim

in the “head area” while she was between the “first bedroom” and the laundry room and

that he stood behind the couch. Defendant did not remember the kind of pistol he used.

When asked from where he got the gun, Defendant responded, “You mean where did I hide

it?” Lieutenant Sanders clarified that he was asking where Defendant kept the gun, and he

responded that he kept it under the bed.

Defendant stated that he threw the gun “in the lake,” which “might be a river.”

Defendant said that he could not take officers to the location because he was drunk at the

time he threw it away. Defendant stated that he took a beer and the gun with him when he

left the house and that Mr. Hoover did not know about the gun. Defendant said that, after

Mr. Hoover dropped him off at his semi-truck, he drove “down the valley” on Interstate 75

South and threw the gun out of the window. Defendant stated that he also drove on

Highway 63, Interstate 640, and Highway 33. He said that he parked at Kay’s Market in

Maynardville at about 5:30 or 6:00 a.m. and slept. Defendant stated that he woke up and

returned to the Missoula Way house and described calling the police and the first

responders’ entry into the house.

- 37 -

When Lieutenant Sanders discussed the “Your next” note, Defendant stated, “But I

feel like I deserve it. In a sense.” He said that he brought the victim “down here” and that,

if he had not “gone to this club this wouldn’t have happened.” He stated, “[I]t’s my fault

anyway.” Lieutenant Sanders stated that a false confession was not justice for the victim,

and Defendant responded, “But I’ll end up dead.” Defendant noted that he believed, and

that he had told Mr. Hoover, that he would also be dead if he had not left the Missoula Way

house. When asked what he was carrying in his hands when Mr. Hoover picked him up,

Defendant said nothing.

In response to further reassurances regarding his safety, Defendant stated that there

was “no help” for him, that he did not have enemies before, and that he was unsure why

the victim had enemies because the victim did not let him “too much inside.” Defendant

acknowledged that the threat to his family could be “in [his] head.” Defendant noted that

the victim’s friends and mother knew his address because Mr. Jack had run a background

check on him. Detective McCord asked what Mr. Hoover took from Defendant because

he was intoxicated and upset, and which he returned to Defendant once they arrived at his

semi-truck. Defendant said that Mr. Hoover did not take anything from him.

Defendant subsequently signed a consent form to search his GMC truck; Defendant

noted that Mr. Hoover usually drove it because he did not have a CDL. Defendant told the

officers that his iPad was inside underneath a mattress in the truck, and he gave them its

passcode. The officers placed Defendant under arrest.

Detective McCord testified that Defendant’s “back and forth” between admitting

guilt and stating that he did not kill the victim was frustrating. He stated that Defendant

mentioned “very regularly” that the victim used marijuana and that Defendant consistently

said the victim’s last words to him were, “Have fun.” Defendant never provided a more

specific description or took police to a location where he disposed of the gun. Detective

McCord stated that they attempted unsuccessfully to pinpoint a location using Defendant’s

statements in order to deploy the “underwater recovery team.” He noted that there was

also an indication that the gun could have been thrown out along the interstate.

Detective McCord stated that, aside from the victim’s leaving him, Defendant never

provided an inciting action on the victim’s part to provoke the shooting. Detective McCord

did not think Defendant described the quarrel as sudden.

A TBI forensic biology report was received as an exhibit, and Detective McCord

testified that the cigarette butt under the victim’s hair contained Defendant’s and the

victim’s DNA and that Mr. Hoover was excluded as a contributor. The report also reflected

that swabs taken from between the victim’s leg and the wall and on the wall beside the

victim tested as the victim’s blood. The cigarette butt collected from the kitchen floor

contained Defendant’s DNA.

- 38 -

Detective McCord stated that Defendant consented to have the derringer seized and

that the police collected firearms belonging to Mr. Hoover’s father to which Mr. Hoover

had access. Detective McCord said that fingerprint testing did not yield any useful results.

Detective McCord testified that photographs from the victim’s phone taken on

January 25, 2020, showed items on shelves in the living room that had been removed by

the time the crime scene was secured; he noted that one shelf had contained a case

purported to contain a firearm, which was never located. He said, however, that items on

the coffee table and the clothing in the recliner remained the same as in the photographs

from the victim’s phone. Additional photographs showed the victim’s outfit that evening,

Defendant and Mr. Hoover, and the dancing man at Bullfeathers.

Detective McCord testified that the victim’s call log reflected a call at 11:55 p.m. to

a contact labeled “Dylan,” which lasted six minutes and forty-five seconds, and that the

final incoming call the victim answered was from a contact labeled “Mommy” at 12:26

a.m., which lasted nineteen seconds. At 1:45 a.m., the victim’s phone received an

unanswered call from a contact labeled “Babes Other Phone,” which was later identified

as the phone number corresponding to Defendant’s work cell phone, and the phone

received unanswered calls and texts from Defendant and Mr. Hoover.

Detective McCord testified that Defendant’s internet searches on his cell phone

were as follows: the address of the Missoula Way house at 11:26 p.m. and 1:23 a.m.;

“Feather Bar” at 1:25 a.m. and 2:37 a.m.; and “Police near me” at 11:11 a.m.

On cross-examination, Detective McCord testified that a swab from Defendant’s

blue pickup truck was negative for bodily fluids, including blood. Detective McCord did

not recall specifically looking for the jacket Defendant wore to Bullfeathers, but he did not

think they found one. Detective McCord said that, according to Defendant, he came in for

a beer after making two telephone calls to Mr. Hoover to pick him up, and the victim told

him, “Have fun.” Defendant also told Detective McCord that the victim’s last words were

to “indicate[]” she was leaving, that he panicked, and that he shot her.

Detective McCord stated that he did not compare the cigarette butts with the unused

cigarettes in the various packs at the scene. He agreed that cigarettes were also found in

the victim’s car. He stated that it was common for peoples’ DNA to be present on items in

their home. Detective McCord acknowledged the possibility that the victim had

Defendant’s DNA on her, and he stated that he did not know how the DNA came to be on

the cigarette butt underneath her hair. He said that DNA could last on a surface for hours

or days.

Detective McCord testified that he met Defendant hours after the victim’s estimated

time of death and that Defendant had no injuries or torn clothing suggesting he had been

- 39 -

in a fight. He said that Defendant’s eyes were bloodshot, which was consistent with

drinking alcohol or not having slept. Detective McCord testified that Defendant had

difficulty focusing and that, throughout the multiple interviews, Defendant’s answers to

questions were not responsive and sometimes irrelevant. Detective McCord did not know

if Defendant was in shock, although he acknowledged Mr. Jack’s testimony that Defendant

sounded as though he was in shock. Detective McCord stated that Defendant said, “I don’t

know if I can do this,” and that Defendant needed someone with whom to talk. He noted

that he had intended to provide Defendant with information on psychological resources.

Detective McCord testified that Defendant initially denied knowing how the victim

was shot, that Mr. Hoover confirmed his story of being picked up, and that no evidence

indicated Defendant was the shooter at that time. He agreed that Defendant came to the

police unprompted to confess. Detective McCord testified that Defendant offered “lame”

and unbelievable explanations of what happened, and he agreed that he “worked through

those issues” and “got [his] confession.” Detective McCord said that he could not explain

why Defendant confessed in the manner in which he did. Detective McCord did not ask

Defendant, Defendant’s wife, or Mr. Hoover about Defendant’s mental health. He did not

know at the time of the interviews whether Defendant had past trauma or post-traumatic

stress disorder. He did not recall discussing that Defendant was in special education classes

in school, and he did not ask anyone if Defendant had a learning disability. He stated that,

although “it was a difficult series of interviews,” Defendant “spoke normally” to him and

that he had no difficulty understanding Defendant.

Detective McCord did not recall if he or other officers spoke with Defendant on the

telephone. He stated that, in each interview, Defendant wanted to talk, declined an

attorney, and cooperated with searches of the house, his trucks, and his electronic devices.

Detective McCord had no reason to believe that Defendant deleted data from the cell phone

he gave to police. Detective McCord agreed that they knew of Mr. Hoover because

Defendant identified him and called him for Detective McCord. Detective McCord agreed

that Defendant did not have to return to the Missoula Way house and that he had a planned

trucking run to Chicago. Detective McCord also agreed that Defendant chose to remain in

the area and that Defendant was the first one to call the police, unlike Mr. Hoover.

Detective McCord testified that Defendant’s call log reflected that he called Mr. Hoover at

11:54 p.m. on January 25, which was after they left Bullfeathers but before the victim

called Mr. Jack.

On redirect examination, Detective McCord testified that Defendant’s call log

reflected a thirty-two-second call to Mr. Hoover at 12:11 a.m. on January 26. Detective

McCord testified that the last text message sent from the victim’s cell phone was sent at

12:39 a.m. on January 26.

- 40 -

C. Expert testimony

Knox County Chief Deputy Medical Examiner Dr. Christopher Lochmuller, an

expert in forensic and anatomic pathology, testified that he performed the victim’s autopsy.

He stated that the cause of death was a gunshot wound to the head, and the manner of death

was homicide. Dr. Lochmuller removed one bullet from the victim’s body. Dr.

Lochmuller said that the bullet entered the left back side of the victim’s head, traveled

through the brain, causing significant injury, hit the first cervical vertebra, and bruised the

spinal cord before coming to rest inside the victim’s mouth adjacent to the right side of the

jaw. Dr. Lochmuller stated that the range of the gunshot was indeterminate, that no soot

or stippling was present, and that the victim’s thick hair could have acted as an intermediary

target.

Dr. Lochmuller testified that he would have expected the victim to have collapsed

or fallen to the ground because the injury would have “stunned [the spinal] cord where she

couldn’t . . . perform any voluntary movements.” He stated that the injury was “highly

unlikely” to be survivable. Dr. Lochmuller testified that, as documented by the autopsy

photographs, the victim’s hands were uninjured.

On cross-examination, Dr. Lochmuller testified that there were no signs of a

struggle on the victim’s body. He stated that the victim’s toxicology reflected that she had

alcohol, marijuana, and two marijuana metabolites in her blood. Dr. Lochmuller testified

that the victim’s blood alcohol content was .081 and that the legal limit to drive in

Tennessee is .08.

Former TBI Special Agent forensic scientist Kyle Osborne, an expert in

microanalysis and GSR testing, testified that Defendant’s swabs tested positive for GSR.

Mr. Osborne stated that GSR remained on a person’s hands for six to eight hours, although

washing one’s hands could remove it. He stated that GSR was deposited on the skin by

firing a gun or handling a gun or spent ammunition. Mr. Osborne noted that it was standard

procedure not to test swabs from the victim of a gunshot wound because GSR particles

could travel “down range.”

On cross-examination, Mr. Osborne stated that, if Defendant admitted to shooting

the victim, it was unsurprising that he had GSR on his hands. He agreed that the presence

of GSR gave no other insight into the case.

KPD Sergeant Brian Dalton, an expert in forensic firearms and tool mark

examination, testified that he examined the shell casing recovered from the crime scene.

Sergeant Dalton stated that the shell casing was a 9 mm Luger Remington Peters brand.

He noted that a teardrop-shaped mark “created by the breech face aperture” and a “faint

line going through the center of the firing pin impression” led him to conclude that the

- 41 -

casing was fired by a Smith & Wesson M & P series firearm. Sergeant Dalton’s report

listed six possible Smith & Wesson models. Sergeant Dalton testified that a newer Smith

& Wesson firearm would have a plastic case; he stated that he had seen solid black and

gray boxes as well as blue with a gray hinge. He agreed that a blue box in a photograph

from the victim’s cell phone was consistent with a Smith & Wesson case, and he noted that

one of the boxes in his “reference collection” had the same colors. Sergeant Dalton detailed

the steps to load and fire a gun. Sergeant Dalton stated that there was nothing to indicate

that the shell casing was fired in the wrong size of gun. He stated that, relative to the M &

P series, only some models had a manual safety; he noted, though, that all would have

internal safeties, trigger safeties, and firing pin blocks built in to prevent accidental firing.

D. Electronic evidence

KCSO cyber technician Stephanie Van Winkle testified that she performed data

extractions on two iPhones belonging to Defendant and the victim, respectively, as well as

Defendant’s iPad. Ms. Van Winkle stated that another agent analyzed the victim’s phone

because it had a passcode. Ms. Van Winkle identified Facebook Messenger chats and text

messages between the victim and Defendant, text messages between the victim and a

person named “Cher,” photographs from the victim’s phone dated January 25, 2020; the

internet search history and call log from Defendant’s phone; and messages from

Defendant’s iPad using an email address, GMCtruck07@outlook.com, sent to a telephone

number with the last four digits of 1681.6

The victim’s call log reflected the following calls on January 25 and 26, 2020:

outgoing calls to Ms. Polk at 11:45 p.m. and 12:25 a.m.; an unanswered incoming call from

Ms. Polk at 11:54 p.m.; an outgoing call to Mr. Jack at 11:55 p.m.; an answered incoming

call from Ms. Polk at 12:26 a.m.; unanswered incoming calls from Defendant’s work cell

phone at 1:34 a.m., 1:35 a.m., 1:36 a.m., 1:50 a.m., 2:20 a.m., 2:21 a.m., 2:23 a.m., 9:48

a.m., 9:58 a.m., and 10:16 a.m.; unanswered incoming calls from Mr. Hoover7 at 1:37 a.m.,

1:44 a.m., and 1:49 a.m.; and four unanswered incoming calls from Mr. Jack beginning at

midmorning on January 26.

The victim’s cell phone extraction report reflected the messages exchanged between

the victim and Defendant’s work cell phone. Defendant sent picture messages of a cartoon

man at 9:50 a.m. and 9:51 a.m. on January 26, 2020; one of the cartoons had a message

bubble reading “u there?” Defendant also sent messages reading, “Kelsey,” “I’m sorry,

please call me,” and “I don’t wanna argue,” at 9:59 a.m.

6

She stated that the timestamps on the reports were in Coordinated Universal Time (UTC), which

was five hours ahead of Eastern Standard Time.

7

Although the telephone number corresponding to these calls was not labeled as a contact in the

victim’s cell phone, it matches the number labeled in Defendant’s cell phone as “Opie,” as reflected in his

call log.

- 42 -

Photographs from the victim’s cell phone extraction report were received as an

exhibit and reflected the following photographs taken on January 25, 2020:

 10:14 p.m.: Defendant at Bullfeathers with a caption reading, “My f--kin

MANNNNN,” followed by several drooling emojis;

 10:04 p.m.: A “selfie” of the victim and Mr. Hoover at Bullfeathers;

 9:24 p.m.: A selfie of the victim, Mr. Hoover, and Defendant at Bullfeathers;

 8:41 p.m.: The victim hugging Defendant and sitting in Defendant’s lap on

the living room recliner;

 7:05 p.m.: The living room from the perspective of the sofa, which showed

the bottles of crown royal and juice on the coffee table, as well as décor items

and a blue rectangular case with a black handle on one of the shelving units

near the television;

 6:02 p.m.: The victim in a lingerie top; and

 2:11 and 2:12 p.m.: Selfies of the victim and Defendant, one of which

showed a mug of beer.

The victim’s cell phone extraction report also reflected the following text

messages with a contact labeled “Cher”:

Time sent Sent by Text

1/25/20 The victim Hi it’s Kelsey. Just givin u my

11:37 p.m. number. Thanks for being a friend.

1/26/20 Cher If you need anything please reach out to

12:23 a.m. me

12:39 a.m. The victim I’m packing up and leaving.

12:53 a.m. Cher Oh gosh!!! :( I am sorry!

- 43 -

Facebook messages between the victim and Defendant reflected that he sent the

victim several messages on January 26, 2020, at 1:07 a.m., 1:11 a.m., 1:15 a.m., 1:16 a.m.,

and 1:17 a.m.; any text in the messages was not displayed in the report. Defendant also

sent the victim messages at 10:15 a.m. on January 26, which read, “I’m on my way to the

house,” “Please pick up,” and “I just wanna talk.” A message Defendant sent at 10:24 a.m.

read, “Kelsey.”

Defendant’s work phone call log reflected the following relevant calls on January

25 and 26, 2020:

Time Incoming call Outgoing call

8:07 p.m. [Mr. Hoover]

11:54 p.m. [Mr. Hoover]

12:02 a.m. [Mr. Hoover]

12:11 a.m. [Mr. Hoover]

12:19 a.m. [Mr. Hoover]

12:19 a.m. [Mr. Hoover]

12:19 a.m. [Mr. Hoover]

12:21 a.m. [Mr. Hoover]

12:24 a.m. [Mr. Hoover]

12:25 a.m. [Mr. Hoover]

1:34 a.m. “Mizz Polk”8

1:35 a.m. “Mizz Polk”

1:36 a.m. “Mizz Polk”

1:37 a.m. [Defendant’s wife]

1:50 a.m. “Mizz Polk”

8

The contact labeled “Mizz Polk” had the same telephone number as the victim.

- 44 -

2:20 a.m. “Mizz Polk”

2:21 a.m. “Mizz Polk”

2:23 a.m. “Mizz Polk”

4:40 a.m. [Mr. Hoover]

4:44 a.m. [Mr. Hoover]

4:56 a.m. “Mizz Polk”

9:48 a.m. “Mizz Polk”

9:48 a.m. “Mizz Polk”

9:58 a.m. “Mizz Polk”

10:16 a.m. “Mizz Polk”

10:16 a.m. [Mr. Hoover]

11:11 a.m. Knox County non-

emergency dispatch

11:24 a.m. [Mr. Hoover]

A printout of messages between GMCtruck07@outlook.com and a telephone

number corresponding to the contact labeled as Defendant’s wife’s first name in

Defendant’s cell phone reflected the following messages on January 27, 2020:

Sent by Text

Defendant I’m going down there and telling them I did

it. I’m scared for my life and I’d rather take

blame and be in jail than to live like this. I

don’t know what happened to her all I

know is she’s into a lot of stuff and if I’m

on the outside I’m a target and I don’t want

you all involved. I’d rather be in jail and

know you guys are alright. I love you and

I always have.

- 45 -

Defendant’s wife If you didn’t do it, then you don’t need to

be confessing to anything. There will still

be a murderer out there to kill other people

Defendant I know that. Your [sic] not understanding.

I don’t know the situation she was in or

anything. They may be after me. And I

can’t live like that. You know I worry to

death over anything anyway. I’d rather be

in jail where I’m safe.

Defendant They may have killed both of us had I been

there. I’m freaking out.

Defendant’s wife You’ve got kids. Try to think about them

for once

Defendant That’s what I’m thinking about. If I’m out

here they may still look for me. I’d never

be around the kids in fear they may be in

danger

KCSO Lieutenant Emily Ayers testified that she was the Intake-Release

Coordinator at the Knox County jail, which involved reviewing inmate communications.

She stated that each inmate logged in to the electronic system using an assigned

identification number and “a PIN number.” She identified two emails sent from

Defendant’s account. The first email was sent on August 22, 2021, and read in part “thet

[sic] charged me with 1st degree murder BUT its not first.” The second email was sent on

December 19, 2021, and read in part, “First degree murder. At worse its manslaughter.”

Excerpts from a May 5, 2020 recorded telephone call and an April 19, 2022 video

call were also received as exhibits. The telephone call with an unidentified woman was as

follows:

Defendant: No, I’ve never – I’ve never said anything to Dustin about you.

Nobody says, nobody said anything, you know, if I was to talk to Dustin

about you, then there would have been other things that I would’ve said to

Dustin. You know, I would’ve mentioned the fact of, you know, of the gun

that Opie has, I would’ve mentioned other things that I know that have been

said, you know what I mean? I’ve not said anything to Dustin, Dustin doesn’t

know that I talk to you, because you know if he knows I talk to you, then he

- 46 -

would tell Jesse, and if he tells Jesse, then Jesse’s going to put two and two

together, so I’ve never mentioned your name around Dustin.

Unidentified woman [“UW”]: Yeah, nobody knows I talk to you.

Defendant: That’s what I’m saying. So.

UW: Well, he got a new gun, so good luck.

Defendant: He what?

UW: He got a new gun yesterday, so good luck.

Defendant: Do what now?

UW: He got a new gun.

Defendant: When?

UW: Like yesterday. He got a 45.

Defendant: How’d he do that?

UW: He showed—he showed us all pictures of it yesterday. I don’t know.

Defendant: Showed pictures of it?

UW: Yeah, his 45 he got.

Defendant: Why would he have a picture of it? What, did he take a picture

of it on his phone?

UW: Yeah, and he [unintelligible] look at this new present I got, and he was

showing us.

Defendant: Why in the world would you take a picture of a gun?

UW: I don’t know.

Defendant: That’s stupid.

UW: Yeah.

- 47 -

Defendant: You ask him what he done with the old one?

UW: Nope, that’s the only gun he’s got, apparently.

Defendant: Dang.

UW: Yeah.

Defendant: I’m telling you, you need to find out what happened to it.

UW: There’s no way. I don’t even know where to begin.

Defendant: If there’s a way you can find out what happened to it . . . . I

mean, I just need to test it, that’s all I need. Like who he sold it to, or traded

it to, or whatever. That’s – that’s all I need. That’s odd.

UW: Yeah.

Defendant: Who told him we was after it?

UW: Huh?

Defendant: Did anyone tell him we was after it? Or wanting it?

UW: No, not that I know of. Who would’ve knew?

Defendant: I don’t know.

In the video call, Defendant was speaking to an unidentified woman; the video

showed his face and chest to his collarbone. Defendant stated, “Every case is different,

and my case is not a gang related case, it’s not a dispute where I was robbing or anything

like that . . . . [I]t was a sudden quarrel which is manslaughter in the State of Tennessee.”

The video had some background noise, which sounded like other voices, but none of the

words from the background voices were intelligible.

After the close of the State’s evidence, Defendant chose not to testify. Defendant’s

proof consisted of two exhibits, which were Defendant’s one-year lease for the Missoula

Way house and a receipt for the furniture he purchased for the house, including a financing

application.

- 48 -

The jury convicted Defendant as charged, and the trial court imposed a mandatory

life sentence. After the trial court denied the motion for new trial, Defendant timely

appealed.

II. Analysis

On appeal, Defendant contends that (1) the evidence of premeditation is insufficient;

(2) the trial court erred by admitting Defendant’s jail telephone calls and emails, which

alerted the jury to Defendant’s pretrial incarceration; (3) the prosecutor made improper

statements during the State’s closing and rebuttal arguments; (4) the trial court erred by

instructing the jury that destruction of evidence could be considered evidence of guilt only

as to the charged offense of first degree murder and by declining to instruct the jury on

voluntary manslaughter as a lesser-included offense; and (5) the cumulative effect of these

errors entitles him to a new trial.

A. Sufficiency of the Evidence

Defendant contends that the evidence is insufficient to support his conviction,

arguing that the State failed to establish premeditation. Specifically, he asserts that the

State failed to meet its burden of proving beyond a reasonable doubt that he was

“sufficiently free from excitement and passion so as to be capable of premeditation.”

Defendant notes that no evidence was presented of “what actually happened leading up to

the shooting” and submits that “the most anyone could possibl[y] conclude would be that

he might have been sufficiently free from excitement or he might not have been.” The

State responds that the evidence is sufficient. We agree with the State.

Our standard of review for a sufficiency of the evidence challenge is “whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); see also Tenn. R.

App. P. 13(e). Questions of fact, the credibility of witnesses, and weight of the evidence

are resolved by the fact finder. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This

court will not reweigh the evidence. Id. Our 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))

(internal quotation marks omitted).

A guilty verdict removes the presumption of innocence, replacing it with a

presumption of guilt. Bland, 958 S.W.2d at 659; State v. Tuggle, 639 S.W.2d 913, 914

(Tenn. 1982). The defendant bears the burden of proving why the evidence was

insufficient to support the conviction. Bland, 958 S.W.2d at 659; Tuggle, 639 S.W.2d at

914. On appeal, the “State must be afforded the strongest legitimate view of the evidence

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and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221 S.W.3d

514, 521 (Tenn. 2007).

First degree murder is the premeditated and intentional killing of another person.

Tenn. Code Ann. § 39-13-202(a)(1) (2020). A person acts intentionally “when it is the

person’s conscious objective or desire to engage in the conduct or cause the result.” Tenn.

Code Ann. § 39-11-302(a) (2020). Premeditation “is an act done after the exercise of

reflection and judgment. ‘Premeditation’ means that the intent to kill must have been

formed prior to the act itself. It is not necessary that the purpose to kill preexist in the mind

of the accused for any definite period of time.” Tenn. Code Ann. § 39-13-202(d) (2020).

Additionally, “[t]he mental state of the accused at the time the accused allegedly decided

to kill must be carefully considered in order to determine whether the accused was

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

Premeditation “may be established by proof of the circumstances surrounding the

killing.” State v. Suttles, 30 S.W.3d 252, 261 (Tenn. 2000). These circumstances include,

but are not limited to:

the use of a deadly weapon upon an unarmed victim; the particular cruelty of

a killing; the defendant’s threats or declarations of intent to kill; the

defendant’s procurement of a weapon; any preparations to conceal the crime

undertaken before the crime is committed; destruction or secretion of

evidence of the killing; and a defendant’s calmness immediately after a

killing.

State v. Davidson, 121 S.W.3d 600, 615 (Tenn. 2003) (first citing Bland, 958 S.W.2d at

660; and then citing State v. Pike, 978 S.W.2d 904, 914-15 (Tenn. 1998)). This court has

also noted that the jury may infer premeditation from any planning activity by the

defendant before the killing, evidence concerning the defendant’s motive, and the nature

of the killing. State v. Bordis, 905 S.W.2d 214, 222 (Tenn. Crim. App. 1995) (citation

omitted). In addition, a jury may infer premeditation from a lack of provocation by the

victim and the defendant’s failure to render aid to the victim. State v. Lewis, 36 S.W.3d

88, 96 (Tenn. Crim. App. 2000). Whether premeditation is present in a given case is a

question of fact to be determined by the jury from all of the circumstances surrounding the

killing. Davidson, 121 S.W.3d at 614 (citing Suttles, 30 S.W.3d at 261; Pike, 978 S.W.2d

at 914).

Viewed in the light most favorable to the State, a rational jury could find from the

proof presented that Defendant was sufficiently free from passion as to be capable of

premeditation when he shot and killed the victim based upon Defendant’s procurement of

the weapon; his use of the deadly weapon on an unarmed victim; a lack of provocation by

the victim; the nature of the killing; Defendant’s failure to render aid to the victim;

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Defendant’s calmness immediately after the killing; and the destruction or secretion of

evidence after the killing. See Davidson, 121 S.W.3d at 615; Bordis, 905 S.W.2d at 222;

Lewis, 36 S.W.3d at 96.

The evidence at trial established that, after an interaction between the victim and

Defendant at Bullfeathers in which the otherwise effusive victim became subdued,

Defendant and the victim argued when they arrived home. Defendant consistently

described the argument as not having been physical in nature; Defendant had no injuries

when he was photographed by the police; and the house and the victim’s body showed no

signs of a struggle. Mr. Jack testified that, when he spoke to the victim before midnight,

her voice was shaky in a way he had never heard before and that her tone made him afraid.

Mr. Jack and the victim discussed her intention to leave Defendant and come back to

Indiana that night. The victim also sent a text message to her new friend Cher at 12:39

a.m. that she was packing up and leaving. Mr. Hoover saw the victim’s dog Simba in the

front seat of her car inside the garage when he picked up Defendant, and police found a

large quantity of clothing and plastic totes in the victim’s car the following day, as well as

baskets of personal items inside the house near the door to the garage. Clothing on hangers

on top of the victim’s body and her close proximity to the door to the garage indicated that

she was carrying clothing to her car when she was shot. Dr. Lochmuller stated that the

nature of the victim’s injury was such that she would have fallen to the ground immediately

and that she would have been unable to move.

Relative to Defendant’s procuring a weapon and the nature of the killing, Defendant

told the police that he kept the gun under the bed, although a photograph of the living room

taken on January 25 showed a case consistent in appearance with a gun case on one of the

living room bookshelves. In either scenario, Defendant had to retrieve the gun from its

case, prepare it to fire, and shoot the unarmed victim in the back of the head from a far

enough distance that no soot or stippling was present on her body. The victim’s arms were

full of clothing, and it appeared that she was walking toward her car when she died.

Relative to Defendant’s demeanor immediately after the killing, Defendant called

Mr. Hoover to return to Missoula Way. Mr. Hoover testified that, when he arrived,

Defendant came out through the garage and entered Mr. Hoover’s truck carrying a beer

and the gun case; Mr. Hoover did not think anything was wrong based upon Defendant’s

demeanor. Defendant eventually became upset twenty-five or thirty minutes later in the

Party City parking lot while speaking to his wife. Based upon the testimony, a jury could

reasonably conclude that Defendant was calm immediately after the killing. In addition,

Defendant left the house after the shooting and, rather than seeking help for the victim,

waited until the following morning to call the police.

Relative to the destruction or secretion of evidence, Mr. Hoover testified that

Defendant handed him a gun case and that, although he declined to open it, it felt as though

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something was inside. Defendant told Mr. Hoover that the gun was loaded and missing

one bullet. After Mr. Hoover refused to pull his truck over so that Defendant could throw

the gun case off a bridge, Defendant took the gun case with him. After initially denying

that he had any guns in the Missoula Way house, Defendant eventually admitted he had

one under the bed, and he disclosed to Detective McCord that he threw the pistol into a

body of water or out of his truck while driving on the interstate. Defendant claimed to have

been too intoxicated to remember details of the location at which he disposed of the pistol,

and it was never recovered. Sergeant Dalton testified that the shell casing at the crime

scene and the bullet recovered from the victim had marks consistent with a Smith &

Wesson M&P series firearm, and he identified the gun case in the victim’s photographs of

the living room as being the kind and color associated with Smith & Wesson firearms. The

jury could reasonably have found that Defendant’s destroying or hiding the gun he used to

shoot the victim was circumstantial evidence of premeditation.

The only evidence of provocation cited by Defendant during any of his police

interviews was that the victim was leaving. As discussed further below, we agree with the

trial court that the mere act of stating an intention to leave a romantic relationship and

beginning the steps to physically leave the premises does not constitute legally adequate

provocation to mitigate culpability for a killing, and the jury could also have appropriately

considered the lack of provocation as a factor in favor of premeditation.

Although Defendant was likely intoxicated to some degree, we note that the trial

court instructed the jury on intoxication and that the jury’s verdict reflects that it found

beyond a reasonable doubt that Defendant was sober enough to be capable of

premeditation.

Several of Defendant’s complaints involve the weight given to various pieces of

evidence; however, this court will not reweigh the evidence. Bland, 958 S.W.2d at 659.

Relative to the State’s closing, the jury was instructed that the arguments of counsel were

not evidence, and the jury is presumed to have followed the trial court’s instructions. See

State v. Banks, 271 S.W.3d 90, 137 (Tenn. 2008). Second, an absence of prior planning

does not foreclose a finding of premeditation—as stated above, premeditation does not

require that the intent to kill preexist in the mind of the accused for any established amount

of time. Tenn. Code Ann. § 39-13-202(d) (2020). The evidence was sufficient to support

the jury’s verdict relative to premeditation, and Defendant is not entitled to relief on this

basis.

B. Jail Communications

Defendant contends that the trial court erred by admitting portions of the two jail

emails, the audio-only recording of the telephone call in which Defendant questioned an

unidentified woman about Mr. Hoover’s gun, and the video chat with an unidentified

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woman in which Defendant asserted that he was guilty only of voluntary manslaughter.

Defendant argues that, by having the jail custodian authenticate the documents and

recordings, the evidence improperly revealed to the jury that he was in custody pending

trial such that the jury’s verdict was affected. The State responds that the trial court did

not abuse its discretion by admitting the evidence.

Before trial, Defendant filed a motion to exclude evidence of his jail calls and emails

pursuant to Tennessee Rules of Evidence 401 and 403, arguing that “[t]hese call recordings

and copies of emails in their entirety are irrelevant, prejudicial, and cumulative.”

Defendant argued that the telephone recordings were not relevant and that any probative

value would be substantially outweighed by the danger of unfair prejudice, confusion of

the issues, and misleading the jury.

At a pretrial hearing, the parties discussed the specific evidence the State intended

to introduce. Relevant to this appeal, the trial court determined that a December 19, 2021

email should be redacted except for a passage reading, “First degree murder. At worst it’s

manslaughter.”

When defense counsel requested that the source of the email from “the jail pod” also

be redacted, the trial court asked the parties to consider how the emails would be

authenticated. The trial court commented, “[A]s I sit here now in order for them to

authenticate that and the jail phone calls, it’s going to be very clear that he was in custody

during this time and that doesn’t necessarily deprive the State of the opportunity to put

forth that evidence.” The prosecutor offered to stipulate to the authenticity of the

communications and noted that she did not yet have Defendant’s agreement to do so. The

trial court asked the parties to discuss it and noted that it was willing to take up the matter

again at the parties’ request at trial.

Relative to a second email, the trial court found that the following statements were

admissible: “Th[ey] charge[d] me with first degree murder, but it’s not first. My lawyers

are going to fight for manslaughter which is what it is.”

The trial court found relative to the video chat showing Defendant and an

unidentified woman that the recording should be limited to the following statements:

“Every case is different and my case is not a gang-related case. It’s not a dispute where I

was robbing or anything like that, so. It was a sudden quarrel, which is manslaughter in

the State of Tennessee.” Defendant requested that the recording be redacted so that it was

audio only. Relative to the prejudicial effect of the video portion of the recording, the trial

court found,

I don’t find this to be overly prejudicial. The video shows him, shows

basically the top of his shoulder. It appears as though he’s not wearing a

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shirt. It’s not very will lit. It’s not immediately evident that he’s in a jail

cell. You can’t see bars or other inmates or anything like that. For all we

know he could be sitting in a bedroom somewhere. So I don’t think it’s

prejudicial from that perspective. I will allow that portion of the video to be

played.

Relative to the telephone call in which Defendant discussed Mr. Hoover’s new gun

with an unidentified woman, the trial court found,

[W]hen you boil it down, I think what the substantive portions of this

phone call demonstrate, number one, is the defendant admitting his past

possession of a firearm? That is relevant in a homicide case.

It could indicate if the jury views it this way, that the defendant had

secreted this evidence away with a trusted friend. That is something else that

would be relevant if someone was hiding evidence following a homicide,

demonstrate consciousness of guilt.

So I think it is relevant for those reasons. Now, again, I don’t think

the whole call is relevant. And as I listened to it, I think it needs to start at

the sentence, “He got a new gun yesterday,” referring to [Mr. Hoover].

The trial court stated that Defendant’s desire to find this particular gun “could cause a juror

to conclude that it had some relevance to the homicide . . . . You don’t get the feeling from

listening to the call that they’re just talking about some random gun that has nothing to do

with what they’re talking about here.” The trial court found that the redacted recording

contained no prejudicial information.

On the first morning of trial, defense counsel noted that the defense team and the

State had not had time to determine whether the jail communications could come in without

disclosing to the jury that Defendant was in custody. Defense counsel noted that “there’s

some big concerns if that information comes before the jury as far as things like [the]

presumption of innocence and things like that[.]” The trial court stated that the parties

could address the issue when it came up at trial.

Defense counsel sought to renew the objection on the record because “it will be

obvious that he has been in custody during this period of time, and it’s probably something

we should have to address in voir dire.” The trial court noted that “the objection was based

upon relevancy” and that “anything regarding the fact that he was in custody when the jail

calls were made, that is really outside the scope of the original motion.” Defense counsel

asserted that it had been raised in the prior hearing and stated that “it’s inescapable and

prejudicial” that Defendant was in custody at the time the calls were made.

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The State noted that, if the defense were willing to stipulate to the authenticity of

the communications, they could avoid “introducing excessive information about

[Defendant’s] being in custody or redacting portions of the written messages that make it

clear that he’s in custody.”

The trial court found that it had considered Defendant’s “403 concerns” in its

previous ruling, that a juror would not be shocked to learn that a defendant charged with

first degree murder had “spent some time” in pretrial detention, and that Defendant would

be “dressed-out” for trial. The court concluded that “the prejudicial concerns under these

circumstances are very minimal.”

During trial at a jury-out hearing, the parties discussed the telephone call recording

again. Defendant stated that he had agreed to stipulate that he was referring to Mr. Hoover

in the call. He asserted that the recording was irrelevant and confusing to the jury.

The trial court stated that the recording’s having multiple possible inferences did

not mean it was confusing or misleading. The trial court found that the call was “extremely

probative” because it showed that Defendant knew Mr. Hoover had a gun. The court

further found that the recording provided context for Defendant’s trying to determine

where the gun was and procure it for testing. The court noted that the recording contained

no reference to an amorous relationship between the caller and Defendant, which greatly

lessened the potential prejudicial effect. The court concluded that the probative value of

the recording was not outweighed by its prejudicial effect.

When a trial court makes an evidentiary ruling, the appropriate standard of review

on direct appeal is “whether the record clearly demonstrates that the trial court abused its

discretion in ruling the evidence inadmissible.” State v. McCaleb, 582 S.W.3d 179, 186

(Tenn. 2019) (first citing Regions Bank v. Thomas, 532 S.W.3d 330, 336 (Tenn. 2017); and

then citing State v. Davis, 466 S.W.3d 49, 61 (Tenn. 2015)). In McCaleb, our supreme

court explained:

We emphasize that the abuse of discretion standard of review does not permit

an appellate court to substitute its judgment for that of the trial court. State

v. Harbison, 539 S.W.3d 149, 159 (Tenn. 2018). Rather, “[b]ecause, by their

very nature, discretionary decisions involve a choice among acceptable

alternatives, reviewing courts will not second-guess a trial court’s exercise

of its discretion simply because the trial court chose an alternative that the

appellate courts would not have chosen.” White v. Vanderbilt Univ., 21

S.W.3d 215, 223 (Tenn. Ct. App. 1999). Accordingly, if the reviewing court

determines that “reasonable minds can disagree with the propriety of the

decision,” the decision should be affirmed. Harbison, 539 S.W.3d at 159.

Id.

Tennessee Rule of Evidence 401 states that evidence is relevant when it has “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. “Our Rules of Evidence provide that relevant evidence is generally

admissible while irrelevant evidence is not.” State v. Kiser, 284 S.W.3d 227, 262 (Tenn.

2009); see Tenn. R. Evid. 402. However, even if the evidence is relevant, it “may be

excluded if its probative value is substantially outweighed by the danger of unfair

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

As a preliminary matter, on appeal, Defendant argues that his case involves the

constitutional question of whether the jury’s seeing evidence of his having been in pretrial

custody “create[d] a subtle prejudice undermining the presumption of innocence,” like

cases in which a defendant is forced to appear at trial in jail garb. See, e.g., Estelle v.

Williams, 425 U.S. 501, 504-05 (1976). At the discussion on the first day of trial, the trial

court noted that it had considered Defendant’s being in custody as part of Defendant’s

argument that the evidence was unfairly prejudicial pursuant to Tennessee Rule of

Evidence 403, not as a freestanding constitutional claim. Although defense counsel briefly

argued that Defendant had raised the issue of the pretrial confinement in the previous

hearing, the trial court made no findings on the constitutional issue and continued to

analyze it as an evidentiary issue, and defense counsel did not request further findings on

the matter. Likewise, in the motion for new trial and at the corresponding hearing,

Defendant framed the issue as evidentiary, not constitutional. As a result, Defendant’s

constitutional argument was waived for failure to clarify the basis for his issue on the first

day of trial and raise it in the motion for new trial. See State v. Alder, 71 S.W.3d 299, 303

(Tenn. Crim. App. 2001) (“It is well-settled that an appellant is bound by the evidentiary

theory set forth at trial, and may not change theories on appeal.”) (citation omitted).

However, his argument bears on the prejudicial effect of the complained-of evidence, and

we will consider it in the limited context of the evidentiary question preserved for appeal.

Defendant draws our attention to State v. Wilson, No. W2014-01054-CCA-R3-CD,

2015 WL 8555599, at *18 (Tenn. Crim. App. Dec. 11, 2015), perm. app. denied (Tenn.

Mar. 23, 2016), in which this court concluded that a mistrial was not merited when the

prosecutor asked a witness questions in a manner that revealed the co-defendants were in

jail pending trial. This court noted,

[W]hile the State erred by mentioning [the] incarceration, all three

defendants were on trial for first degree murder, attempted first degree

murder, and employing a firearm during the commission of a dangerous

felony; therefore, given the severity of appellant’s offenses, logic dictates

that the jury “must know a person on trial is either on bail or in confinement

during the course of a trial.” State v. Baker, 751 S.W.2d 154, 164 (Tenn.

Crim. App. 1987). Furthermore, “[t]his court has held that a prosecut

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