State of Tennessee v. Hayden Jennings Berkebile

06/07/2024

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

February 27, 2024 Session

STATE OF TENNESSEE v. HAYDEN JENNINGS BERKEBILE

Appeal from the Criminal Court for Knox County

No. 117131 Steven Wayne Sword, Judge

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No. E2022-01700-CCA-R3-CD

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CAMILLE R. MCMULLEN, P.J., concurring in part and dissenting in part.

In this case, the State relied exclusively upon online communications sent between

the Defendant, who resided in Indiana, and the suicide decedent, who resided in Tennessee,

to establish a conviction of criminally negligent homicide. In my view, the State failed to

establish the essential elements of territorial jurisdiction and proximate cause. No matter

how “dark” or “diabolical” the online communications leading up to the decedent’s death

may have been, there is simply no law in Tennessee making it a crime to verbally persuade

or coerce someone to commit suicide.1 Because Tennessee has yet to criminalize

incitement, inducement, or encouragement to commit suicide, words alone cannot serve as

the basis for a criminal conviction.2 Accordingly, I must respectfully dissent.

The Defendant contends there was insufficient evidence to establish proximate

cause as required for criminally negligent homicide. He asserts the State failed to establish

the series of events leading up to the decedent’s death and there was “uncertainty as to

what happened on the video call.” Although he posits alternative scenarios under the

State’s proof, he claims none of them provide sufficient evidence of proximate cause. In

response, the State submits the Defendant’s gross deviation from the standard of care

proximately caused the suicide decedent’s death. The State relies generally on the suicide

role-playing between the Defendant and the decedent, during which the Defendant would

“push” the decedent to kill herself. Specifically, the State relies on messages sent between

1

Tennessee criminally prohibits assisted suicide under certain circumstances not present here. It

is also not a criminal offense “to fail to prevent another from taking their life.” See Tenn. Code Ann. 39-

13-216 (a)(1)-(3), (b)(3).

2

See People v. Campbell, 124 Mich. App. 333, 340, 335 N.W.2d 27, 30 (1983) (listing number of

states that have made, or proposed making, incitement to suicide a crime); Justine L. Newman, Speech and

Suicide-the Line of Legality, 49 Am. J.L. & Med. 436, 441 (2023) (as of 2021, forty-two states had laws

criminalizing suicide coercion).

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the Defendant and the decedent on the day of her death between 2:27 p.m. and 3:39 p.m.

The State theorized that when the decedent asked the Defendant if he wanted to play

Russian roulette, he told her it would not work because she could see the bullet. The

decedent then suggested she could close her eyes or wear a blindfold; the Defendant would

be the only one who would know where the bullet was, and he would have control over

whether she lived or died. Immediately before the video call, the decedent confirmed that

the upcoming sexual suicide role-play would involve her playing Russian roulette

blindfolded. Even though there was no video of the decedent’s death, the State insists “the

jury could readily infer [the Defendant’s] gross deviation from the standard of care []

proximately caused [the decedents’] death from the messages between the two.” The State

submits the jury could reasonably infer from the prior messages that (1) during the call

during which the decedent died, she was playing Russian roulette with her eyes closed,

making it a more dangerous activity than it typically would have been; and (2) based on

the decedent’s statements that the Defendant could decide whether she lived or died but

she trusted him not to allow her to die, the Defendant was responsible for ensuring the

Russian roulette suicide play did not claim the decedent’s life by informing her of the

location of the bullet.

In his reply, the Defendant contends the State has waived the above theory because

it has chosen to present it for the first time on appeal. Waiver notwithstanding, the

Defendant submits that the evidence at trial does not support the State’s theory on appeal.

On the day of the decedent’s death, there was no proof that (a) they did, in fact, play

Russian roulette in this unusual way and (b) it was during that game, and not after, that the

decedent shot herself when (c) the Defendant knew or should have known where the bullet

was but failed to warn the decedent. The Defendant insists that the State’s argument is not

a reasonable inference from the available evidence but sheer speculation. In support of his

position, the Defendant points out that the trial court rejected the State’s appellate theory

and repeatedly expressed his conclusion based on the trial evidence that the Defendant had

not intended or wanted for the decedent to die but instead should “have been aware that

such sexual suicidal role play would lead somebody that close to suicide to actually doing

it for his pleasure.”

In every homicide prosecution, the State must establish causation beyond a

reasonable doubt. Causation is a hybrid concept, consisting of two constituent parts: actual

cause and legal cause. Burrage v. United States, 571 U.S. 204, 210 (2014) (citing H. Hart

& A. Honore, Causation in the Law 104 (1959)). Proximate cause is a limiting principle

to liability, recognizing that “the legal eye cannot, and should not see [too] far.” Nicholas

LaPalme, Michelle Carter and the Curious Case of Causation: How to Respond to A Newly

Emerging Class of Suicide-Related Proceedings, 98 B.U. L. Rev. 1443, 1447 (2018) (citing

Rollin M. Perkins & Ronald N. Boyce, Criminal Law 774 (3d ed. 1982)).

In Tennessee, “[p]roximate cause,” within the law of homicide, means nearness in

point of causal relation, and not necessarily nearest act to injury. Letner v. State, 299 S.W.

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1049, 1052 (Tenn. 1927). “‘[It] is that which, in a natural and continual sequence,

unbroken by any new, independent cause produces the injury, and without which the injury

would not have occurred.’” State v. Pack, 421 S.W.3d 629, 639 (Tenn. Crim. App. 2013)

(quoting Gray v. Brown, 217 S.W.2d 769, 771 (Tenn. 1948)). The victim’s death must be

the natural and probable result of the defendant’s unlawful conduct. State v. Goodwin, 143

S.W.3d 771, 779 (Tenn. 2004). However, the defendant’s actions “need not be the sole or

immediate cause of the victim’s death.” State v. Farner, 66 S.W.3d 188, 203 (Tenn. 2001)

(citing Letner, 299 S.W. at 1051). Rather, “a wrongdoer cannot escape liability for a

criminal act just because the criminal act of another contributed to produce the prohibited

consequence.” State v. Baggett, 836 S.W.2d 593, 595 (Tenn. Crim. App. 1992). Therefore,

“one whose wrongdoing is a concurrent proximate cause of an injury may be criminally

liable the same as if his wrongdoing [was] the sole proximate cause of the injury.” Id. The

defendant “‘is responsible if the direct cause results naturally from his conduct. The same

is true if the direct cause is an act of the deceased himself reasonably due to defendant’s

unlawful conduct.’” Farner, 66 S.W.3d at 203 (quoting Letner, 299 S.W. at 1051). “‘[T]he

act of the deceased, resulting in his death (not being corporally injured by the defendant),

must have been the natural and probable consequence of the unlawful conduct of [the

defendant].’” Id. (quoting Fine v. State, 246 S.W.2d 70, 73 (Tenn. 1952)). The

determination of causation in a criminal case is a question of fact to be determined by the

trier of fact based on the evidence at trial. Id. at 204; State v. Randolph, 676 S.W.2d 943,

948 (Tenn. 1984).

“The concept of proximate causation is applicable in both criminal and tort law, and

the analysis is parallel in many instances.” Paroline v. United States, 572 U.S. 434, 444

(2014). In the civil context, “[c]ourts have long been rather reluctant to recognize suicide

as a proximate consequence of a defendant’s wrongful act.” Cotten v. Wilson, 576 S.W.3d

626, 639-40 (Tenn. 2019) (quoting Watters v. TSR, Inc., 904 F.2d 378, 383 (6th Cir.

1990)). In cases in which the intervening event is the decedent’s suicide, courts in

Tennessee and elsewhere have generally held that suicide will be deemed a superseding

cause of death if it was a willful, calculated, and deliberate act of one who has the power

of choice. Id. (internal citations and quotations omitted). This is referred to as the suicide

rule and is based on the notion that suicide committed by a person who has the power of

choice “is an abnormal thing” and that no reasonable person could foresee that a rational

person would intentionally choose to commit suicide. Id. There are exceptions to the

suicide rule; however, “[t]he crucial inquiry is whether the defendant’s negligent conduct

led to or made it reasonably foreseeable that the deceased would commit suicide. If so, the

suicide is not an independent intervening cause breaking the chain of legal causation.”

White v. Lawrence, 975 S.W.2d 525, 530 (Tenn. 1998). In cases where Tennessee courts

have recognized an exception to the suicide rule, they have required solid evidence in the

record that the decedent’s suicide was a reasonably foreseeable probability resulting from

the defendant’s conduct. Cotton, 576 S.W.3d at 648.

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As an initial matter, I believe the majority misapprehends State v. Farner, 66 S.W.3d

188, 203 (Tenn. 2001), a drag racing case that involved a car race between the defendant

and the victim, Landon Baker. The race ended when Baker lost control of his car and

collided with two other vehicles. Baker and his passenger died as a result of the collision.

The persons driving the other vehicles, Teresa Gilliam and Priscilla Redwine, sustained

serious injuries. The defendant’s car was not physically involved in the collision. The

defendant was later convicted of criminally negligent homicide of Baker and other offenses

in connection with the drag racing. 66 S.W.3d at 192.

The Tennessee Supreme Court granted certiorari to resolve “whether Tennessee law

recognizes a co-perpetrator rule which bars the defendant’s convictions for criminally

negligent homicide on the basis that the victims were co-participants in the drag race.”

Farner, 66 S.W.3d at 191. The Court rejected various arguments of the defendant

challenging his convictions of criminally negligent homicide including (1) that they were

precluded “because the victims were co-perpetrators in the underlying crime of drag

racing;” (2) they were in violation of the felony murder rule that the killing must be “in

pursuance of” the underlying felony offense; and (3) that the negligence of a victim co-

participant in a drag race was a complete defense if the victim’s negligent conduct is a

proximate cause of the victim’s death. Id. at 200. In rejecting these arguments, the Court

relied on several drag racing cases from other states and reasoned as follows:

The defendant’s unlawful act or omission need not be the sole or immediate

cause of the victim’s death. Letner, 156 Tenn. at 76, 299 S.W. at 1051.

“[H]e is responsible if the direct cause results naturally from his conduct.

The same is true if the direct cause is an act of the deceased himself

reasonably due to defendant’s unlawful conduct.” Id. (emphasis in

original). This concept was reaffirmed in Fine:

the act of the deceased, resulting in his death (not being

corporally injured by the defendant), must have been the

natural and probable consequence of the unlawful conduct of

[the defendant].

193 Tenn. at 429, 246 S.W.2d at 73. Finally, a victim’s contributory

negligence does not relieve a defendant of criminal liability for his or her

own criminally negligent conduct. See, e.g., Gentry v. State, 184 Tenn. 299,

305, 198 S.W.2d 643, 646 (Tenn. 1947) (holding that the trial court did not

err in charging the jury that the victim’s contributory negligence in driving

while intoxicated did not relieve the defendant of his guilt of involuntary

manslaughter where the defendant’s automobile caused the collision that

killed the victim). However, a victim’s contributory negligence may be

considered in determining whether, under the circumstances, the defendant’s

criminally negligent conduct was a proximate cause of death, or whether the

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victim’s conduct was an independent, intervening cause of death. See

Copeland [v. State], 154 Tenn. [7,] 11, 285 S.W. [565,] 566 [(Tenn. 1926)].

Farner, 66 S.W.3d at 203.

The Farner Court declined “to adopt a broad co-perpetrator rule which precludes

imposition of criminal liability upon a defendant for the death of a co-participant in a drag

race.” The Court held that “causation in criminal cases generally is a question of fact for

a properly instructed jury, that a victim’s contributory negligence is not a complete defense

but may be considered in determining whether or not the defendant’s conduct was a

proximate cause of death,” and that a jury’s determination of the causation issue will be

reviewed on appeal under the familiar sufficiency of the evidence standard and not

disturbed so long as the evidence is sufficient to support the jury’s determination. Id. at

204. The defendant’s convictions were reversed because the trial court failed to instruct

the jury on proximate causation, an essential element of the offense. Id. at 192.

While Farner provides guidance generally concerning principles of causation, it did

not hold the evidence was sufficient because the defendant “convinced them to engage in

a highly dangerous activity,” as stated by the majority. Farner was limited to determining

whether the other race car driver/victim’s participation in the crime of drag racing

precluded the survivor/driver defendant’s criminal liability. Far from what the majority

implies, the causation principles espoused in Farner do not lend themselves to easy

application here. First, the decedent’s act of suicide, unlike drag racing, is not a criminal

offense in Tennessee. Next, under Farner, the suicide must have been the natural and

probable consequence of the unlawful conduct of the Defendant. However, neither the

decedent’s tragic act of suicide nor the Defendant’s online communications with her were

prohibited by law.

As a general rule, a crime is composed of actus reus (the physical act) and mens rea

(mental intent), both of which are necessary to constitute a crime. Here, the criminally

negligent homicide statute and the definition of criminal negligence follow the general rule

and require a person to engage in an unlawful act or unlawful conduct to justify criminal

liability. See 1Wayne R. LaFave, Subst. Crim. L. § 6.1(a) (3d ed. 2023) (defining the

meaning of “act” or “action” as external bodily movements, noting the Model Penal Code

§ 1.13 defines “act” or “action” as a “bodily movement whether voluntary or involuntary,”

and noting Section 2 of the Restatement (Second) of Torts defines the term “act” as “an

external manifestation of the actor’s will and does not include any of its results, even the

most direct, immediate, and intended”). At a minimum, this means some physical act is

required to establish a criminally negligent homicide conviction. I do not believe that

online communications can serve as a substitute for an unlawful physical act. While

morally reprehensible, the online communications in this case do not satisfy the actus reus

requirement. I would have concluded that the evidence was insufficient as a matter of law

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to support the criminally negligent homicide conviction because it was based on speech

alone, not criminal conduct.

Based on much of the same above reasoning, I would have concluded that the trial

court did not have territorial jurisdiction in this case. See State v. Johnson, No. M2005-

02855-CCA-R3-CD, 2006 WL 3498046, at *5 (Tenn. Crim. App. Nov. 21, 2006) (noting

that the statute requires an affirmative action on the part of the foreign state defendant to

effectuate a crime in Tennessee). Because no crime was commenced in Indiana when the

Defendant engaged in online communication with the decedent, there was no

consummation of a crime with the death of the decedent in Tennessee. Moreover, because

suicide is not a criminal offense, there was no crime to consummate. Finally, to equate

“other means proceeding directly from the person” with electronic or online

communication would render superfluous the “electronic means” requirement in most

Tennessee laws criminalizing the same or similar conduct. See e.g. Tenn. Code Ann. § 39-

13-529 (a) (“It is an offense for a person eighteen (18) years of age or older, by means of

oral, written or electronic communication, electronic mail or internet service, including

webcam communications, directly or through another, to intentionally command, hire,

persuade, induce or cause a minor to engage in simulated sexual activity that is patently

offensive or in sexual activity, where such simulated sexual activity or sexual activity is

observed by that person or by another.”).

The majority also erroneously adopts the State’s position that, based on Farner, the

Tennessee Supreme Court “tacitly endorsed the notion that participating in a game of

Russian roulette that claims the life of another is a gross deviation from the standard of

care that naturally and probably leads to the others death.” However, People v. Hansen,

68 Cal. Rptr. 2d 897 (Cal. Ct. App. 1997), and Commonwealth v. Atencio, 189 N.E.2d 223

(Mass. 1963), the two cases cited in Farner and relied upon by the majority, are factually

distinct from the instant case. While Hanson and Atencio are seemingly on point because

they involve the game of Russian roulette, the defendants in these cases were physically

present and participated in the game of Russian roulette with the decedent. These homicide

convictions were based on the defendant’s physical assistance in the suicide. See e.g., State

v. Marti, 290 N.W.2d 570, 583 (Iowa 1980) (holding that “preparing and providing a

weapon for one who is unable to do so and is known to be intoxicated and probably

suicidal” constitute actions that support the defendant’s conviction of involuntary

manslaughter); State v. Bier, 591 P.2d 1115, 1120 (Mont. 1979) (affirming a judgment of

negligent homicide for a defendant’s wife’s suicide, where the defendant “threw [a]

cocked, loaded firearm within reach of his intoxicated wife, challenged her to use it, and

allowed her to take the gun off the bed”). The courts reasoned that the defendant’s

“concerted action and cooperation” helped to bring about the death of the decedent and that

there was “a mutual encouragement in a joint enterprise.” Hansen, 68 Cal. Rptr. 2d at 900.

Here, the Defendant was not physically present at the time of the victim’s suicide;

there was no in-person mutual or joint enterprise to engage in Russian roulette (i.e.

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defendant did not provide the means for decedent’s death); and the above cases do not

apply. See Lewis v. State, 474 So. 2d 766, 771 (Ala. Crim. App. 1985) (noting that the

key to determining cause in fact and proximate cause in cases involving defendant criminal

liability for suicide decedent is whether defendant was present at the time the suicide

decedent shot himself and holding that suicide decedent’s act of “free will” in shooting

himself with a gun previously used by the defendant while coaching the victim on how to

play Russian roulette superseded the defendant’s act); see also Guyora Binder & Luis

Chiesa, The Puzzle of Inciting Suicide, 56 Am. Crim. L. Rev. 65, 66 (2019) (noting that

homicide liability for the suicide of another is extremely rare and almost always involves

a tangible contribution to the killing).

Alternatively, assuming actus reus was demonstrated, and the physical act was

unlawful, I would have concluded that the Defendant’s online conduct in communicating

with the decedent was not the proximate cause of the decedent’s death. As to this issue,

the presentment in this case does not identify the alleged criminally negligent conduct. As

noted by the majority, thousands of online communications between the Defendant and the

decedent over a two-and-a-half-year period were admitted into evidence at trial via media

thumb-drive. The record shows the State had a witness read excerpts from these online

communications during the trial; however, none were transcribed for the appellate record.

I agree with the Defendant that the State’s theory of liability at trial was unclear. While

this has led to some confusion, I do not believe it constitutes a waiver of the State’s theory

advanced on appeal that the Defendant intentionally let the decedent die by not telling her

where the bullet was in the gun.

Taking the evidence in the light most favorable to the State, however, I would have

concluded that there was no basis for the trier of fact to have found that the decedent’s

suicide was the foreseeable result of the Defendant’s conduct. It is undisputed that there

is no direct evidence concerning the circumstances surrounding the decedent’s death. The

State insists the jury could reasonably infer from the prior online messages between the

Defendant and the decedent that (1) during the call during which the decedent died, she

was playing Russian roulette with her eyes closed; (2) based on the decedent’s statements

that the Defendant could decide whether she lived or died and she trusted him not to allow

her to die; and (3) that the Defendant was responsible for ensuring the Russian roulette

suicide role play did not claim the decedent’s life and he failed to inform her of the location

of the bullet. I believe this is far too speculative, especially given the fact that their prior

suicidal role-play games never involved these circumstances. State v. Jenkins, 733 S.W.2d

528, 531 (Tenn. Crim. App.1987) (noting that a conviction for a criminal offense may not

be based upon conjecture, guess, speculation or mere possibility). As such, there was

nothing in the record to demonstrate the Defendant knew his conduct would result in the

decedent ultimately taking her own life. Because the proof failed to establish that the

victim’s death was a reasonably foreseeable result of the Defendant’s unlawful conduct, I

would have concluded that the decedent’s suicide was “an independent, intervening cause”

that insulated the Defendant from criminal liability.

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I agree with the resolution reached by the majority with respect to the remaining

evidentiary and sentencing issues. However, in my view, affirming this conviction expands

the reach of the criminally negligent homicide statute beyond its intended scope and sets a

dangerous legal precedent that words alone can result in criminal liability. Accordingly, I

dissent.

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CAMILLE R. MCMULLEN, PRESIDING JUDGE

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