The opinion of the court was delivered by: Susan K. Lee United States Magistrate Judge
Before the Court is the motion of Defendants, Lincoln County, Tennessee ("Lincoln County"); the Lincoln County Sheriff's Department ("Sheriff's Department"); and Sheriff Jimmy Mullins ("Mullins") for summary judgment pursuant to Fed. R. Civ. P. 56 [Doc. 55] and a brief in support thereof [Doc. 56]. Plaintiff, Edward Roy Johnson, Executor of the Estate of James Gregory Carter ("Carter"), has filed a response in opposition to Defendant's motion for summary judgment [Doc. 59]. Defendants have filed a reply to Plaintiff's response [Doc. 61].
Consequently, Defendant's motion for summary judgment is now ripe for review. For the reasons which follow, Defendant's motion for a summary judgment [Doc. 55] will be GRANTED and Plaintiff's claims against Defendants under 42 U.S.C. § 1983 and under the Tennessee wrongful death statute, Tenn. Code Ann. § 20-5-113, will be DISMISSED WITH PREJUDICE.
This action arises out of the unfortunate death of Carter, age 36, at the Lincoln County Jail ("Jail") on September 16, 2005 [Doc. 56 at 1; 60 at 1]. This action was commenced on April 20, 2006, by the filing of a verified complaint by the then-named Plaintiff, Gena Sharpe ("Sharpe") [Doc. 1, Complaint]. Sharpe, who was a former wife of Carter, brought this action on behalf of two of Carter's minor children, Laurelyn Carter and Riley Carter [id. at 3]. Sharpe alleged a cause of action for the violation of Carter's rights and his wrongful death beneficiaries' rights under the Fourth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution pursuant to 42 U.S.C. § 1983 and also alleged a cause of action under the Tennessee wrongful death statute, Tenn. Code Ann. § 20-5-113 [id. at 1-4]. Specifically, the complaint challenged the constitutionality of certain policies and/or practices allegedly adopted and/or enforced by the Sheriff's Department and Mullins which allegedly failed to provide supervision and medical treatment necessary to protect Carter's life and health [id. at 1].
On May 25, 2006, Defendants moved for dismissal of the action for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6) [Doc. 10]. On October 10, 2006, the Court granted Defendants' Rule 12(b)(6) motion in part and denied it in part [Doc. 19]. With regard to the § 1983 claims for the alleged constitutional deprivations suffered by Carter prior to his death, the Court found that as neither Sharpe nor his children were alleged to be the personal representative(s) of his estate, the claims would be dismissed [id. at 4-5]. The Court also dismissed the § 1983 claims for the loss of enjoyment of life, loss of companionship and mental anguish suffered by Laurelyn and Riley Carter as the result of the death of their father, finding such claims were not cognizable in a § 1983 action [id. at 5]. On August 31, 2007, the current Plaintiff, the executor of Carter's estate, was substituted in lieu of Sharpe [Doc. 36]. On December 18, 2007, Plaintiff sought reconsideration of the dismissal of the § 1983 claims relating to the alleged violation of Carter's constitutional rights prior to his death, or in the alternative, leave to amend the complaint to add a federal claim on behalf of Carter [Doc. 49]. On February 22, 2008, the Court, under Rule 60(b)(6), reconsidered its dismissal of the § 1983 claims asserting Defendants violated Carter's constitutional rights prior to his death and reinstated only those claims [Doc. 54 at 11-12].
This action arises out of Carter's death at the Jail on September 16, 2005. The complaint alleges Carter was arrested on September 15, 2005, and charged with violating a restraining order*fn1 obtained against him by his estranged wife, Donna Carter [Doc. 1, Complaint at 3, ¶ 11].*fn2 The complaint further alleges that "[w]hile in the custody of the Lincoln County Sheriff's Department on September 16, 2005, the Sheriff's Department told the family that [Carter] committed suicide by hanging himself with a blanket tied to an electrical fixture box located in his cell." [Id. at ¶ 12]. It is undisputed Carter was placed in cell 91 at the Jail, a single capacity cell across the room from the booking desk. A second floor "tower" manned by Correctional Officers ("COs" or "CO" when singular) overlooked the booking area and the door to Carter's cell.
At approximately 3:00 a.m. on September 16, 2005, Magistrate Jim Davis ("Davis") spoke to Donna Carter's stepfather, Sam Shockley ("Shockley") [Doc. 56-7, Davis Deposition at 23-24]. Shockley told Davis there was an outstanding warrant for Carter's arrest for violating the order of protection [id. at 23]. Davis testified that Shockley told him that Carter was "liable to hurt" Donna Carter [id.]. Davis went to the Lincoln County Sheriff's Department at the Jail to see the warrant for Carter's arrest [id. at 27]. Davis testified that Shockley also went to the Jail [id.]. Davis testified he did not have the authority to tell the deputies who were present at the Jail to arrest Carter, but did notify the deputies about the warrant and told them "you-all may need to see into this right here." [Id.].
Lincoln County Deputy Kevin Troy Wells ("Wells") arrested Carter on September 16, 2005 [Doc. 56-21, Wells Deposition at 6]. Wells testified that at approximately 4:30 or 4:45 a.m. on the morning of September 16, 2005, Shockley came to the Sheriff's Department and informed them there was an outstanding warrant for his son-in-law, Carter [id.]. Wells was present at the Sheriff's Department and his sergeant called him over [id.]. Wells stated that Shockley was under the assumption that Carter was going to be leaving or moving out of town and he wanted the arrest warrant to be served [id.]. Wells' sergeant told him to go and arrest Carter [id.]. Wells testified Carter's arrest was accomplished peacefully [id. at 6]. Carter was initially upset at being awakened at 4:30 or 4:45 in the morning, but Wells stated that once Carter "explained his case," he calmed down [id. at 7]. Carter told Wells: (1) Donna Carter had violated the order of protection first by calling him and (2) he had a home cordless telephone on which Donna Carter's telephone number appeared on caller ID [id. at 7-8]. Wells explained to Carter he would have to arrest him, telling Carter "I have paperwork in hand for you." [Id. at 7]. He told Carter despite his claim that Donna Carter had violated the order of protection first, "I still have to serve this paperwork. I have to, you know, follow due process." [Id.]. Wells told Carter to bring the cordless telephone with him to the Jail and to show it to the magistrate. [Id. at 7-8]. Wells testified he did not even have to handcuff Carter because Carter complied with him [id. at 10]. Wells stated Carter did not indicate to him in any way that he was contemplating suicide [id.]. He stated the only thing Carter was adamant about was that he could not miss work [id.].
Carter was booked at the Jail by COs Patrick Pullen ("Pullen") and Kris Carr ("Carr"). Pullen testified Carter's booking was uneventful [Doc. 56-14, Pullen Deposition at 16]. Pullen testified Carter "was just kind of like anybody else. He wasn't happy to be there, of course . . . But he wasn't, in my opinion, upset or mad, really, . . . he was talkative and joking around a little bit and thing like that." [Id.]. Pullen also testified that as he was being booked, Carter again tried to state his case that Donna Carter had called him on multiple occasions and had also broken the order of protection [Id.]. Pullen testified he told Carter he had nothing to do with whether Donna Carter had also violated the order of protection and he was "just there to book him in." [Id. at 54].*fn3
Carr testified Carter was pretty quiet during his booking [Doc. 56-5, Carr Deposition at 19]. He stated Carter never raised his voice, but was just generally upset at being arrested [id.]. Carr testified Carter "kept saying over and over look at the [cordless] phone, look at the phone." [Id.]. Carr also testified he was supposed to do cell checks once every hour [id. at 18]. Carr did one cell check after Carter was placed in cell 91 [id.]. Carr testified that while he was doing the cell check, Carter again mentioned the cordless phone to him [id. at 7, 18]. Carr testified he told Carter he was not a lawyer or judge and that Carter would have to take the cordless phone to court [id.]. Carr also told Carter the job of the COs at the Jail was not to judge innocence or guilt [id.].
Carr testified there was a second or back-up log book which was kept in the booking room of the jail [Doc. 60-9, Carr Deposition at 29]. Carr examined pages from the back-up log book and noted that there were no entries in the back-up log book from about 11:43 p.m. on September 15 to 4:25 p.m. on September 16 [id. at 29]. Carr testified he knew of no specific reason for the approximately 16 hour gap in the back-up log book "other than a lot of times the book in the booking room is -- we call it a backup book. . . it should have been logged down. . . . generally, the same thing that should be logged down in the tower should be in this one, but this one gets . . . the one in the booking room gets neglected a lot." [Id. at 30]. Carr said entries should normally have been placed in the log for the 16-hour period and that "[w]hoever was on that day shift . . . wasn't doing their job correctly if they didn't put that in there." [Id. at 30-31]. Carr further testified, "[a]s far as logging everything down in the book . . . they didn't do it right. Which I was one of them too. I neglected the book a few times myself." [Id. at 31]. A copy of the relevant page from the back-up log book is attached to Plaintiff's response to Defendant's motion as Exhibit S [Doc. 60-20].
Davis testified that after Carter had been arrested, he received a call on his cellular telephone informing him of Carter's arrest [Doc. 56-7, Davis Deposition at 29-30]. Davis told the caller that no bond was going to be set for Carter [Id.].*fn4
CO Gerald Robinson ("Robinson") testified Carter was the only inmate in cell 91 [Doc. 56-15, Robinson Deposition at 58, 59]. CO Timothy Jones ("Jones") testified that no inmates had access to Carter, except for trustees, and that at that time COs Ruby Jean Dunivan ("Dunivan") and Billy Wurtzinger ("Wurtzinger") would have been present [Doc. 56-10, Jones Deposition at 37-38].
The Jail Population Checklist for September 16, 2005, is attached to the deposition of Wurtzinger [Doc. 56-22 at 6]. The population checklist shows CO Gail Sanders ("Sanders") checked all cells at 7:30 a.m., Wurtzinger checked all cells at 8:05 a.m., Wurtzinger checked the cells in the booking area at 9:35 a.m., Robinson checked all cells at 10:25 a.m., and Dunivan and Wurtzinger checked all cells, including booking, at 11:10 a.m. [id.].
Jones testified that if an inmate is on suicide watch, his cell is checked more often, every 15 minutes [Doc. 56-10 at 30]. Jones stated Carter was never on suicide watch [id.]. He stated when Carter was booked into the Jail, there were a series of questions that were asked relating to suicide, such as whether the inmate felt he wanted to hurt himself [id.]. Jones stated, "[n]othing that I saw or nothing that anyone told me about [Carter] seemed suicidal." [Id.]. Jones also testified that if he had seen anything out of the ordinary relating to Carter he would have reported it to the TBI during their investigation [id. at 38].
Sanders spoke with Carter at approximately 8:15 a.m. on September 16, 2005 [Doc. 56-16, Sanders Deposition at 11]. Sanders stated that Carter wanted to know when Davis would arrive [id.]. Sanders told Carter that Davis would probably be in later in the morning [id.]. Carter also wanted to know if bond had been set [id.]. Sanders told Carter he did not have a bond at that time, but that Davis might give him one after he had an opportunity to talk with Carter [id.]. Sanders also stated there was no indication Carter had any suicidal tendencies when Sanders talked with him [id.].
Sanders testified he did not speak with Carter face-to-face any other time that day, but that while he was working in the "tower," he observed Carter looking into the booking area [Doc. 60-8, Sanders Deposition at 12].
Jones testified he did a head count at approximately 6:00 a.m. on the morning of September 16, 2005 [Doc. 56-10, Jones Deposition at 9]. Jones stated Carter was asleep on his bunk facing the wall [id. at 9-10]. Jones stated he beat on the cell door and Carter looked up [id. at 10]. Jones states during a head count he asks an inmate what his name is and if the inmate does not answer, he opens the cell door and goes in, but if the inmate responds, he proceeds to the next cell [id.]. Jones asked Carter what his name was and Carter responded, "James Carter". [Id.].
Jones testified he worked the second floor tower at the Jail most of that morning [id.]. He testified sometime between 9:00 a.m. and 9:30 a.m., he was looking out the tower windows, which overlook the booking area of the Jail, and saw Carter "standing at the window at the cell just looking around." [Id.]. Wurtzinger also testified he saw Carter between roll call and lunch on September 16, 2005, standing by the door to his cell [Doc. 60-14, Wurtzinger Deposition at 20]. Wurtzinger stated many inmates often stand by the door to their cell [id.].
Robinson said shortly after 10:25 a.m. on September 16, 2005, he let the inmate in cell 90 out to use the phone, the inmate used the phone and returned to his cell [Doc. 56-15, Robinson Deposition at 47]. Robinson stated when he let the inmate in cell 90 out, he saw Carter standing at the window of cell 91 looking out [id.].
Robinson also testified about the plastic sheets which covered the bottom pane of glass in the cells [Doc. 60-22, Robinson Deposition at 21]. Robinson stated the plastic sheets were "more clear than tan." [Id. at 21]. He also testified the bottom panes of glass had been blocked by the plastic sheets to protect the privacy of the inmates housed in the cells [id. at 21-22]. Robinson testified that if one of the sheets had been removed from the bottom pane of glass he would have reported it to his sergeant [id. at 22]. Robinson stated he did not know if the plastic sheet would have been replaced if it had been removed because he never had to report the bottom glass pane had been uncovered because, as far as he could remember, the bottom pane had always been covered [id.].
CO Rhonda Wilkerson ("Wilkerson") testified she was working in the tower when Carter was discovered dead [Doc. 60-15, Wilkerson Deposition at 10]. Wilkerson testified that she could see part of cell 91 from the tower [id. at 11]. Wilkerson stated parts of all of the cells can be seen from the tower, but the toilets were placed in the cell so that the toilets could not be seen [id. at 11]. Wilkerson said a CO could look through the front door of a cell to see if an inmate was standing by the door and also could see a little further back into the cell [id. at 12]. Wilkerson also said she saw Carter at about 6:00 a.m. in the morning, standing at the door of his cell and looking out [id.].
Pullen also stated there is always someone on duty in the tower without exception [Doc. 60-16, Pullen Deposition at 42]. Pullen stated someone is not always on duty in booking because he or she may be needed elsewhere or may be responding to problems in the Jail [id. at 43]. Pullen stated you can see part of cell 91 from the "tower," but not all of it [id.]. Pullen also stated that from the booking area you would be able to see "[a] little bit more [of cell 91] than possibly the tower." [Id. at 44]. Pullen further stated that if a CO was walking past cell 91, the CO would be able to see what the inmate in the cell was doing if the CO looked [id.].
At approximately 11:00 a.m., Dunivan, Wurtzinger, and two trustees, Franklin and Braden, began serving lunch at the Jail [Doc. 56-22, Wurtzinger Deposition at 10-11, Doc. 56-8, Dunivan Deposition at 7]. Wurtzinger testified that at approximately 11:10 a.m., after handing lunch to the inmate in Cell 90, one of the inmates opened the door to hand Carter his lunch and said something was wrong [Doc. 56-22, Wurtzinger Deposition at 11]. Dunivan said she heard one of the trustees ask Carter, "Man, do you want something to eat?" [Doc. 56-8, Dunivan Deposition at 7]. Dunivan said there was no answer and the other trustee said, "Well, that man's hung himself." [Id.]. Wurtzinger said after opening the door, the trustees never entered cell 91, they moved back and he was the first person to enter cell 91 [Doc. 56-22, Wurtzinger Deposition at 11]. Wurtzinger stated that he did not know if Dunivan entered the cell -- she went to call for Jones and Robinson to come down from the tower and help [id. at 11-12].
Wurtzinger stated Carter was hanging, using a knotted white sheet as a rope, in a seated L-position with his back against the cell wall and his legs stretched straight out in front of him [Doc. 56-22, Wurtzinger Deposition at 12-14]. Carter was hanging a "little off the floor." [Id. at 12]. Wurtzinger testified he could not remember how many knots were in the sheet, but he was the first to try and untie it, it was very tight, and he could not get it down [id. at 12, 14]. The sheet had been pushed into an old electrical outlet in the wall and had been tucked in or twisted into the outlet [id. at 12; Doc. 56-15, Robinson Deposition at 38; Doc. 56-20, Thornton Deposition at 83].
Jail Administrator Chris Thornton ("Thornton") testified the sheet was in what "used to be an electrical outlet for turning on and off the lights." [Doc. 56-20, Thornton Deposition at 83]. Thornton stated the "switch stopped working and we put . . . something like concrete into it and the inmates pick it out. Then you put it back in there and the inmates pick it back out." [Id.]. Thornton stated the light switches had been repaired, and he inspected the repairs when they were done [id. at 84]. Thornton stated all the light switches in the cells were removed [id. at 84]. Thornton also testified that if someone at the Jail had knowledge of a hole in the wall, it should have been reported to him so it could have been fixed [Doc. 60-5, Thornton Deposition at 89].
With regard to the hole in the wall in cell 91, Thornton testified the Jail had made efforts to repair the hole during the time he was employed as administrator [Doc. 65-6, Thornton Deposition at 101-02]. Thornton stated the hole had been filled with concrete and the inmates had dug it out [id. at 102]. Thornton also stated the Jail had put a metal plate over the hole and the inmates had pulled it out [id.]. Thornton stated the hole had been concreted or plastered over twice and covered by the metal plate once [id.]. Regarding the metal plate, Thornton also stated there was a security risk created by an inmate having a flat piece of metal inside the Jail because the inmates would pull and/or use anything metal [id.].
Thornton also testified about the plastic which covered the bottom pane of glass in the door to cell 91. A picture of the door to cell 91 is attached as Exhibit F to Plaintiff's response to Defendants' motion [Doc. 60-7]. Thornton testified that if the bottom pane of glass had not been covered, someone seated in the booking area would have been able to see through the bottom pane of glass [Doc. 60-5, Thornton Deposition at 89-90]. Thornton denied, however, that someone seated in the booking area and looking through the bottom pane of glass would have been able to see Carter's feet and legs through the bottom pane [id. at 89]. Thornton stated that a CO seated in the booking area and looking into the bottom pane of glass, would be able to see into the bottom right portion of the bottom pane, but not able to see into the bottom left portion of the bottom pane [id. at 90]. Thornton stated the reason the bottom pane on the door to cell 91 had been covered up was that there was an "[i]nmate in there previously showing his privates or a female trying to show privates." [Doc. 65-2, Thornton Deposition at 78]. Thornton testified there is a toilet in cell 91 and that both male and female inmates were housed in cell 91 [Doc. 65-3, Thornton Deposition at 100]. Thornton testified that privacy consideration were one of the reasons the bottom pane of glass in the door to Cell 91 had been covered up because the privacy of the inmate is compromised if the bottom pane is not covered [id.]. Thornton testified the Jail constantly had to balance security considerations and privacy considerations [id.]. Thornton testified that because the bottom pane of glass was covered, COs were supposed to go to the window of the cell 91, through which they could see the entire cell, to check on an inmate during a head count [Doc. 65-5, Thornton Deposition at 101].
There is confusion among the COs as to which CO took what action in the attempt to save Carter. As noted, Wurtzinger testified that when he and Dunivan discovered Carter at approximately 11:10 a.m., Dunivan went for help and he attempted to untie the knot in the sheet, but that "it was so tight, I couldn't get it. By that time, that's when Thornton come down and relieved me." [Doc. 56-22, Wurtzinger Deposition at 12]. Thornton testified he went to cell 91 when Carter was discovered, the door was open and Carter was propped up with his back against the wall in a seated L-shape position with what appeared to be a white sheet around his neck [Doc. 56-20, Thornton Deposition at 50-51]. Thornton stated Wurtzinger was in the cell trying to untie the knot, but he pushed Wurtzinger away because he knew that at one point in time Wurtzinger and Carter had been related by marriage and he did not want Wurtzinger to have to deal with it because he was concerned about Wurtzinger's emotional state [id. at 52-53]. Robinson testified when he arrived at cell 91, Carter was hanging in a seated position and he pulled Carter's weight up off the rope/sheet and tried to start untying the sheet from around Carter's neck [Doc. 56-15, Robinson Deposition at 32-33]. Robinson testified he had been trying to untie the sheet/rope from around Carter's neck for a matter of five or ten seconds when Thornton arrived and began helping him untie the sheet [id. at 33]. Robinson stated when Thornton began to untie the knot, he went to the medical room along with Deputy Tull Malone to get an automated external defribrillator ("AED") [id. at 33].
Thornton testified that when he first arrived at cell 91, Carter had no pulse and did not appear to be alive [Doc. 56-20, Thornton Deposition at 50]. Thornton testified he got the sheet off and checked for a pulse, but there was none [id. at 53-54]. Thornton testified he then ran for a phone and called Brenda Burns ("Burns") -- the Jail nurse -- and told her to "get down here now." [Id. at 54]. Thornton testified Burns arrived and began assessing Carter and that someone said to get the AED. [id.]. Thornton stated he and Burns placed Carter in a "laying position" and she began to check for a pulse. [id. at 54]. Thornton testified the AED arrived and Burns put the pads on Carter and turned the machine on and the machine said "no shock." [Id.]. Thornton stated that while all this had been going on, an ambulance had been called and the ambulance/EMT's arrived [id.]. Thornton stated he could not recall if the AED registered "no shock" prior to the arrival of the ambulance/EMTs [id.].
Jones testified he arrived at cell 91 with Robinson [Doc. 56-10, Jones Deposition at 15]. He stated he was trying to hold up Carter while Robinson was trying to unloosen or untie the sheet [id.]. Jones stated the knot was at the back of Carter's neck and he could not remember the number of knots, but "it was about two or three knots." [id. at 15]. Jones stated when he arrived at the booking area, Wurtzinger was outside the cell and he did not see Wurtzinger enter the cell and untie the knot [id. at 16]. Jones stated it was Thornton who eventually untied the sheet [id. at 20]. Jones also stated he saw the knot that had been slid down into the wall through the empty electrical outlet and that it was able to stay in the wall because it was a big knot -- baseball to softball sized [id. at 20].
Burns was in her office when she received a call from Thornton telling her she was needed in booking [Doc. 56-4, Burns Deposition at 20]. Burns stated she looked at the clock on the wall in her office when Thornton called her and it read 11:08 [id.]. Thornton did not tell Burns the nature of the emergency, so she grabbed a pair or gloves, ammonia capsules and a blood pressure cuff as she always does [id. at 21]. Burns stated when she arrived at cell 91, Carter was sitting up against the wall in an L-position [id. at 22]. Burns said she and Thornton "took" Carter to the floor and she put an AED on Carter [id. at 31]. Burns stated the AED can be used to either establish a heart rhythm or to bring back someone who did not have a heart rate [id.]. Burns stated the AED indicated "no shock" which means that there was no rhythm for the machine to shock [id.]. Burns stated she only used the machine once on Carter because "[y]ou can only do what the machine tells you to do. You're not supposed to exceed what it tells you." [Id. at 31-32]. Burns stated she personally applied the AED to Carter and she heard the words "no shock" from the voice that comes out of the AED. [id. at 32]. Burns stated she was not surprised when the AED said "no shock" because she thought Carter was already dead [id.]. Burns stated by the time the AED said "no shock," the ambulance had already arrived and Dr. Norman arrived shortly thereafter [id.]. Burns testified she could not tell how Carter had died [Doc. 65-8, Burns Deposition at 58]. She also testified she had no idea how long Carter had been dead [id.].
In addition, Burns was asked about repairs that had been made to the Jail by the new Lincoln County Sheriff, Murray Blackwelder ("Blackwelder")[id. at 57]. Burns testified Blackwelder had made substantial repairs to the Jail since he became sheriff [id.]. She testified that the Jail was much safer than it was in September 2005 [id. at 58].
The log for the tower at the Jail, which is attached to Pullen's deposition, shows that an ambulance was called at 11:13 a.m. on September 16, 2005, and the ambulance arrived at the Jail at 11:17 a.m. [Doc. 56-14 at 5]. The log shows that at 11:27 a.m. the phones were turned off, the doors were shut, and the area was secured [id.]. Although partially obliterated, the log shows Dr. Norman, the Lincoln County Medical Examiner, arrived at the Jail sometime between 11:27 a.m. and 11:53 a.m. and an agent from the Tennessee Bureau of Investigation ("TBI") arrived at 11:57 a.m. [id.].
Mullins testified an investigation into the circumstances surrounding Carter's death was performed by the TBI [Doc. 56-13, Mullins Deposition at 12]. Mullins stated he could not recollect the exact time he notified the TBI of Carter's death, "but it was more than likely within a few minutes from the time I heard it." [Id.]. Mullins stated he did not know if the only investigation of Carter's death was performed by the TBI, but his procedure was to notify the TBI and have them perform an investigation after he had gotten authority from the District Attorney for the TBI to take over a case [id.]. Mullins testified he learned of Carter's death from an employee of the Jail, but he did not recollect from whom [id.]. Mullins stated it was more than likely he was at the Jail when he learned of Carter's death, but he could not definitely remember [id.]. Mullins stated ...