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08/02/89 STATE TENNESSEE v. KERRY PHILLIP BOWERS

COURT OF CRIMINAL APPEALS OF TENNESSEE, AT KNOXVILLE


August 2, 1989

STATE OF TENNESSEE, APPELLEE
v.
KERRY PHILLIP BOWERS, APPELLANT-DEFENDANT

From Hawkins County, Honorable James E. Beckner, Judge. Second degree murder, unlawful possession of vending machine keys, possession of a controlled substance, and possession of drug paraphernalia

Joe D. Duncan, Presiding Judge, Jerry Scott, Judge, Joe B. Jones, Judge, Concur.

The opinion of the court was delivered by: Duncan

OPINION

Joe D. Duncan, Presiding Judge

The defendant, Kerry Phillip Bowers, was convicted of second degree murder and unlawful possession of vending machine keys and was sentenced to the Department of Correction for thirty-five (35) years and one (1) year respectively. He was also convicted of two misdemeanors, one for simple possession of a controlled substance, the other for possession of drug paraphernalia. He was sentenced to a local jail for eleven (11) months and twenty-nine (29) days and fined $50.00 for each of these misdemeanor convictions. The defendant was sentenced as a Range I standard offender, and the trial court ordered all of his sentences to be served consecutively.

Regarding the defendant's homicide conviction, we note that the victim in that case was Scott (Scotty) Avery Trexler, the twenty-one-month-old child of Tammy Trexler.

Tammy Trexler was also indicted and tried in the homicide case as well as for other offenses. She was convicted of aggravated assault, failure to report child abuse, and simple possession of a controlled substance. Co-defendant Trexler has not appealed her convictions.

In this appeal, the defendant Bowers claims that the trial court erred in failing to charge the jury on the lesser included offense of voluntary manslaughter, overruling his motion for change of venue, admitting evidence of prior bad acts committed by defendant upon Scotty Trexler, and in ordering consecutive sentences. We find no merit to any of these issues.

The defendant does not contest the legal sufficiency of the evidence regarding any of his convictions. However, a summary of some of the evidence is necessary in order to answer some of his issues, particularly his issue that a charge on the offense of voluntary manslaughter was warranted by the evidence.

The State's evidence established that the defendant committed a series of brutal and sadistic assaults over a period of several months against the victim, Scotty Trexler, which ultimately led to the child's death on May 29, 1987. At the time of the child's death, the defendant was living with his girlfriend, Tammy Trexler, and her son, Scotty, in a trailer on Thorpe's Chapel Road in Hawkins County, Tennessee. Tammy Trexler worked at the Orange Bowl in Rogersville. The defendant, who was unemployed, baby-sat with Scotty while his mother was at work.

On May 29, 1987, around 7:00 p.m., as Doris Jean Smith was leaving the trailer park on Thorpe's Chapel Road, the defendant came up to her car and told her somebody down at a trailer could not breathe. Ms. Smith went to the defendant's trailer and found a baby lying on its back. The baby was not moving, but she saw its eyes roll back. Ms. Smith told the defendant to bring the baby and put it in her car. The baby's face was blood red. As the defendant and Ms. Smith were taking the baby to the hospital, the baby made hollow noises from deep in its throat. The defendant kept saying, "Breathe Scotty, breathe."

At the hospital, Dr. Gregory Swabe saw the child. The child was unconscious, had no pulse, and was not breathing. According to Dr. Swabe, the defendant told emergency room personnel that the baby had fallen out of the bed and quit breathing.

Dr. Swabe described the injuries which he saw on the child. The child had "extensive abrasions and burns about his body" and was bruised "from head to toe." Two large hematomas, or blood clots, were "under the skin one in each groin." An area on each buttock had been burned to the point that the skin was removed. A burn extended over most of the right side of the child's face. Bruises were on the child's trunk, abdomen, back, and both legs. Dr. Swabe was of the opinion that the child was brain dead when he arrived at the hospital.

The child was taken by helicopter to the University of Tennessee Hospital in Knoxville, arriving there around 9:00 p.m. on May 29, 1987. Dr. William Buntain, a pediatric surgeon, examined the child. He observed multiple injuries upon the child. Dr. Buntain took measures to try to save the child's life, but his attempts were not successful. Dr. Buntain pronounced Scotty Trexler dead shortly after 11:00 p.m.

One of the State's witnesses, Matt Drinnon, testified that he lived in the Royston Trailer Park. Drinnon met the defendant and Tammy Trexler for the first time on Thursday, May 8, 1987. When he met the defendant, Drinnon noticed that Scotty's face was "all scabbed over." The defendant stated to Drinnon that Scotty had pulled a pot of hot water off the stove onto his face, and that this accident had happened in North Carolina before they moved to Rogersville.

On the same day, Drinnon was talking to the defendant while the defendant was outside waxing his car. Drinnon heard the baby scream and went inside the trailer to see what was wrong. The child was on the couch and was throwing its arms out, calling for his mother. The defendant told Drinnon that the child always did that, and then the defendant resumed waxing his car.

In the early evening on May 28, Drinnon saw Scotty again. The scabs were gone from the child's face. The defendant told Drinnon that the scabs had washed off when he gave the child a bath, and that he didn't take the child to the doctor because he could take care of it. Also, that evening, Drinnon held the child and noticed that the child's stomach was real hard. Further, Drinnon testified the defendant had not fed the child on that Thursday, May 28, while Tammy Trexler was at work.

While Drinnon and the defendant were watching television that evening, they smoked a joint of marijuana. They heard the baby cry after it was put to bed. The defendant went to check on the child and returned shortly. The child's mother then arrived from work, and the defendant told her the child had fallen out of bed.

Additionally, Drinnon testified that he and the defendant went fishing on the morning of May 29, returning around noon. Drinnon saw the baby sitting on the couch. The child had an ace bandage tied around his legs. When Drinnon asked what was wrong with the child's legs, the defendant replied that the child's ligaments and tendons were torn and bruised, and that he had to keep the child's legs tied together or else they would not stay together. The defendant told Drinnon that he had not taken the child to a doctor for treatment, and that the child had been born with his ligaments torn. Subsequently, the defendant and Drinnon left and were gone for thirty to forty-five minutes to look for a hubcap for the defendant's car. When they returned, the child was still sitting on the couch. The child never spoke, except to say "mama" and "juice." According to Drinnon, the baby was "real calm" and "happy" whenever the defendant left the room, but would shake and make painful faces whenever the defendant came close to him. Additionally, Drinnon said that he and the defendant smoked marijuana again on Friday, May 29.

Other evidence showed that when Scotty was taken to the hospital, Detective Lawrence Smith went there. After observing the numerous wounds, burns and bruises on the child, detective Smith talked to the defendant. The defendant told him that all of the child's injuries had been sustained when the child fell off a bed.

In a later statement given by the defendant to Detective Smith, which was redacted for purposes of this trial, the defendant said he and Tammy Trexler moved to Rogersville from California but that they were really from Florida. They had been living in Rogersville about three weeks. He explained Scotty's injuries by saying he put the child to bed and then heard something go "clunk." He went into the bedroom and saw the child's lips were turning purple. He took the child to the bathroom and held its body up but could not get it to breathe. He shook the child, trying to get it to breathe. The defendant explained that the child had received burns over his face when the child jerked a pot of hot water off the stove. The bruises and blood clots around the child's groin area had been caused by "heat" which turned into an infection. The defendant admitted he tied the child's legs together because the child had torn muscles. The defendant also told the detective that Tammy Trexler had been visited by a social worker in one of the towns where they had lived. The defendant said he never took the child to a doctor because he couldn't afford the expense. The defendant denied to Detective Smith that he had hurt or abused Scotty at any time.

In a statement Tammy Trexler gave to Detective Smith, she likewise claimed that the burns on Scotty's face had been caused by the child turning over a pot of boiling water. She said Scotty had gotten an infection in his penis, and that this caused him to sit with his legs "straight out," resulting in the muscles in his legs to be torn. She and the defendant had lived in North Carolina and they spent a week or two in California before settling in Rogersville. She had been investigated by "Social Services" in North Carolina after she took Scotty to the hospital for a broken arm. She explained that other times she would not take her child to a doctor because she feared the child would be taken away from her. She denied to Detective Smith that she beat the child and claimed she never saw the defendant beat him.

Charlotte Fields testified she saw Tammy Trexler at the Hawkins County Sheriff's Department on the night of Scotty's death. Ms. Fields heard Tammy say she couldn't understand what was wrong with Scotty, as there had been nothing wrong with him when she went to work. When an officer told Tammy that Scotty had died, Tammy said, "you mean he died this time."

Dr. Cleland Blake, a forensic pathologist, testified that he performed the autopsy on Scotty Trexler on May 30, 1987. Dr. Blake described in detail the multiple injuries on the child's body. There were extensive burn injuries on the child's face, numerous injuries on the front of the chest and back of the child. There were large bulging bruises on the upper inside thigh areas, the upper front of the thighs beside the scrotum, and there was hemorrhage under the skin.

Dr. Blake, after examining microscopic samples of skin from the child's face, concluded that the burns on the child's face were between one and two weeks old. He stated that the burns were absolutely not consistent with a child knocking a pot of boiling water off a stove. He said that it was more likely that the child had been lying on its back looking up when the burns were inflicted. Dr. Blake testified that water would have to be 160 degrees Fahrenheit or possibly 200 degrees Fahrenheit to inflict burns as severe as those on Scotty's face. (Other testimony in the case established that the thermostat on the hot water heater in the Trexler trailer was set at 140 degrees.)

Further, Dr. Blake testified that the burns on the child's buttocks were between one and two weeks old, and that those burns were caused by contact with a hot object. He opined these burns were not the result of accidental injuries, such as the child sitting on a hot surface. From the position of these burns, Dr. Blake stated that the child's legs had been pulled apart and something hot had been touched to the bottom of the child. He stated that the adductor muscles which pull the legs together had been torn apart. The injury to the adductor muscles was approximately two weeks old. This injury was caused by each hip joint being pulled out of the socket. Dr. Blake stated this was not an accidental injury, but resulted from the legs having been pulled apart symmetrically at the same time. Dr. Blake said the legs had been literally "pulley-boned apart." He did not think it was likely that a woman of average strength could inflict this type of injury.

According to Dr. Blake, the major abdominal injuries which he found on the child were between twenty-four and thirty-six hours old. The most serious and ultimately lethal injuries were those inflicted to the child's head. The child developed subdural and subarachnoidal hemotomas inside the skull. These injuries resulted in the loss of blood from the brain and the gradual compression of the brain toward the base of the brain stem. Ultimately, the head injuries caused the child to stop breathing. Dr. Blake found evidence of old hemorrhages in the brain which were in various stages of healing. He stated that the head injuries could not have been caused by a fall from a bed onto a carpeted floor. Rather, the injuries were consistent with deceleration trauma, which occurs when a moving head hits a fixed object, or from violent shaking. The head injuries occurred within ten to twelve hours of death. The cause of death was the increase of pressure inside the head which caused the compression of the brain into the spinal cord, cutting off the blood supply to the respiratory organs. The multiple debilitating injuries to the other parts of the child's body also contributed to the child's death.

Several witnesses testified concerning the manner in which Scotty behaved and the injuries which they observed upon his body during the three weeks prior to his death. Jackie Routh, in early May, 1987, saw bruises and belt marks on Scotty's bottom. The defendant told Routh that he would not whip the child with a belt anymore. The defendant told another witness, Cecil Matthews, that the kid gave him problems, and that he would try not to beat him anymore.

Other witnesses from North Carolina furnished testimony about injuries sustained by Scotty when the child, the defendant, and Tammy lived there. Representatives from social service agencies related the difficulties they had in trying to locate the child's mother to investigate child abuse reports concerning Scotty.

One witness from North Carolina, Mark Trexler, Tammy's brother, testified that he had seen the defendant abuse Scotty by poking his finger in the child's rectum. Another witness, Robert Brown, stated that the defendant told him he was jealous about Scotty and Tammy because Tammy was spending a lot of time with the child.

Additionally, there was considerable evidence to indicate that the defendant smoked marijuana on a regular basis. Marijuana was found in his trailer after his arrest. Also, it was shown that a set of vending machine keys were found in his trailer. These keys had been stolen from a business establishment in Rogersville on May 15, 1987.

Tammy Trexler testified in her own defense. She denied that she had abused her son or that she had ever seen the defendant abuse him. She admitted that when she had taken Scotty for medical treatment in North Carolina, she had given false information about her name, Scotty's last name, the defendant's name, and her address. She stated that the defendant had told her to give some of this false information. A clinical psychologist testified that Tammy has a passive dependent personality and, thus, was capable of denying the reality of things which happened in her presence.

The defendant did not testify, but presented proof through his mother and a psychologist that primarily dealt with the defendant taking Scotty to the hospital before he died, that the defendant had had a difficult and deprived childhood, and that his problems were caused mostly from drug abuse.

The evidence, as we view this record, is overwhelming to show the defendant's guilt beyond a reasonable doubt. The defendant, as previously indicated, does not dispute the legal sufficiency of the evidence. Rather, he claims that the evidence merited a charge on voluntary manslaughter, and therefore he argues that the trial court erred by failing to charge the jury on this lesser included offense. We do not agree.

The trial court instructed the jury on the offenses of first degree murder, second degree murder and involuntary manslaughter.

Manslaughter is defined as "the unlawful killing of another without malice, either express or implied, which may be voluntary upon a sudden heat, or involuntary, but in the commission of some unlawful act." T.C.A. § 39-2-221 (1982). Before a defendant can be culpable for voluntary manslaughter, there must be evidence that the defendant acted in a state of passion sufficient to obscure his reason, and that the passion was produced by reasonable and adequate provocation. Freddo v. State, 127 Tenn. 376, 155 S.W. 170 (1912); Howard v. State, 506 S.W.2d 951 (Tenn. Cr. App. 1973).

Quite clearly, the evidence, as we have summarized above, fails to establish the legal requirements of voluntary manslaughter.

The evidence shows that the killing of Scotty Trexler was done with malice and without adequate provocation. To us, it would appear to be a legal impossibility for a twenty-one-month-old baby to commit an act which could raise the necessary adequate provocation to create a sudden heat of passion on the part of an adult, who then kills the child.

It is not reversible error for a trial court to fail to give an instruction on a lesser included offense of which there is no evidence in the record. State v. Mellons, 557 S.W.2d 497 (Tenn. 1977); Owen v. State, 188 Tenn. 459, 221 S.W.2d 515 (1949). In fact, the giving of instructions on offenses for which there is no evidence in the record is not favored and is to be avoided. Whitwell v. State, 520 S.W.2d 338 (Tenn. 1975); State v. Atkins, 681 S.W.2d 571 (Tenn. Cr. App. 1984).

Since the evidence failed to satisfy the legal requirements of voluntary manslaughter, there was no duty on the trial court to charge the jury on that offense. This issue is not meritorious.

Next, the defendant says that the trial court erred by overruling his motion for a change of venue. The defendant's motion was predicated upon his claim that widespread pretrial publicity had been given to this case.

Whether to grant a change of venue is within the sound discretion of the trial Judge, and his decision will be respected absent an affirmative and clear abuse of that discretion. Rippy v. State, 550 S.W.2d 636 (Tenn. 1977).

At the hearing on the motion for a change of venue, the trial Judge stated that he would take the motion under advisement until the jury selection process was conducted. He stated that he was going to try to get a jury in Hawkins County. He commented that one hundred jurors on the jury panel had been protected by him from the first day of the term from hearing, seeing, or reading anything about the case. He mentioned that the same situation that existed in Hawkins County would likely be present in any community to which the case might be transferred. He pointed out that the defendants and the victim had no particular connection to Hawkins County, except for the fact hat the crime occurred there.

The ultimate test on the question of a venue change is whether the jurors who actually sat and rendered a verdict in the case were prejudiced by the pretrial publicity. State v. Garland, 617 S.W.2d 176 (Tenn. Cr. App. 1981). It is the defendant's responsibility to show that pretrial publicity prejudiced the jurors who sat on the case. Adams v. State, 563 S.W.2d 804 (Tenn. Cr. App. 1978). Prejudice will not be presumed on a mere showing that there was considerable pretrial publicity about a case. Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977).

When the present case came to trial, the trial Judge granted individual voir dire and the jury was selected. The voir dire has not been included in the record. *fn1 Thus, in the absence of the voir dire, it will be presumed that nothing developed during the voir dire to show that any juror who was elected would be an unfair or prejudiced juror. Also, it must be presumed that each juror selected was willing to decide the case solely on the evidence presented and that each had no fixed opinion about the case that could not be laid aside.

Moreover, the record is quite clear that the defendant was tried by a fair and impartial jury. Under the evidence here, a verdict of first degree murder could have been returned against the defendant by the jury; yet, the jury returned a verdict of second degree murder. This action by the jury, as well as their verdict in Tammy Trexler's case affirmatively demonstrates that the jury was a fair, impartial, and unprejudiced jury.

We see no abuse of discretion on the part of the trial Judge. This issue is overruled.

In another issue, the defendant claims error regarding the admission of evidence of prior bad acts and other crimes committed by the defendant against the victim.

Generally, evidence of prior crimes or bad acts are not admissible into evidence, but there are exceptions where such crimes and bad acts are relevant to issues that are involved in the case on trial, such as motive and intent of the defendant, the absence of mistake or accident if that be a defense, or to show a continuing plan or scheme of which the crime on trial is a part. See, Bunch v. State, 605 S.W.2d 227 (Tenn. 1980).

The jury was entitled to find from the evidence in this case that the prior injuries sustained by this child both in Hawkins County as well as in North Carolina were inflicted by the defendant. All of this child abuse was part and parcel of the crime that finally resulted in Scotty's death in Hawkins County. The defendants claimed that all of Scotty's injuries had resulted from mere accidents. The evidence relating to the prior mistreatment of and crimes committed on Scotty were admissible to refute this claim. The evidence was also admissible to show the defendant's motive and intent, and it also demonstrated a general scheme and plan to commit the ultimate murder which took place in Hawkins County and which was on trial. We find no merit to this issue.

Finally, the defendant contends that the trial court erred in ordering consecutive sentencing. We disagree.

The trial court found the defendant to be eligible for consecutive sentencing as a multiple and dangerous offender, as those terms are defined in Gray v. State, 538 S.W.2d 391 (Tenn. 1976). In sentencing the defendant, the trial Judge, among other things, said:

Now, I don't rely strictly upon the facts that you have three prior charges and one prior conviction for stealing offenses. I rely upon the fact that there is a history of many, many, many offenses against this child over a period of many months. So, I think without any question, you qualify as a multiple offender, and I think you also qualify as a dangerous offender as indicated by crimes convicted of and crimes testified about in this record, that you have little or no regard for human life, and have no hesitation about committing a crime in which the risk to human life is high.

The record in this case well supports the trial Judge's Conclusions. The record is replete with evidence that this defendant abused and brutalized this child over a period of many months. It would be difficult to visualize a crime accompanied by more aggravating circumstances than those that accompanied the defendant's killing of this defenseless baby.

The maximum sentences, as imposed by the trial court for each of the defendant's convictions, were well justified. As noted by the trial court, practically all of the enhancement factors listed in T.C.A. § 40-35-111 (1982) are present in this case. We find, as the trial court did, no significant mitigating factors.

Also, as such would relate to all of the defendant's sentences for all of his convictions, it is significant to point out that the record indicates that the defendant had a history of criminal conduct, including, but not limited to, the fact that he had an extensive history of drug abuse and was using marijuana on a regular basis leading right up to the date of Scotty's death. Additionally, the defendant apparently supported himself by burglarizing vending machines and living off the wages of Tammy Trexler.

From our de novo review of the record, we conclude that consecutive sentencing was unquestionably appropriate and warranted for this defendant.

The judgments are affirmed.


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