Court of Criminal Appeals of Tennessee, Nashville
December 19, 2014
STATE OF TENNESSEE
KENNETH PAUL COLVETT
September 9, 2014.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed. Appeal from the Circuit Court for Marshall
County. No. 2012-CR-64. F. Lee Russell, Judge.
W. Bussart, Lewisburg, Tennessee (at trial and on appeal);
and Jason Charles Davis, Lewisburg, Tennessee (at trial), for
the appellant, Kenneth Paul Colvett.
E. Cooper, Jr., Attorney General and Reporter; Brent C.
Cherry, Senior Counsel; Robert Carter, District Attorney
General; Weakley E. Barnard and Michael David Randles,
Assistant District Attorneys General, for the appellee, State
KELLY THOMAS, JR., J., delivered the opinion of the court, in
which JAMES CURWOOD WITT, JR., and TIMOTHY L. EASTER, JJ.,
KELLY THOMAS, JR., J.
Following a jury trial, the Defendant, Kenneth Paul Colvett,
was convicted of premeditated first degree murder and
sentenced to life imprisonment with the possibility of
parole. See Tenn. Code Ann. § 39-13-202. In this appeal
as of right, the Defendant contends (1) that the jury erred
by rejecting the defense of insanity; (2) that the trial
court erred by not allowing defense counsel to take home
prior written statements made by a witness and by not
admitting extrinsic evidence of the statements of two
witnesses during trial; (3) that the State failed to disclose
exculpatory evidence as required by Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215
(1963); (4) that the trial court erred by refusing to provide
the Defendant with a transcript of a prior hearing in this
case; (5) that the State committed prosecutorial misconduct
during the cross-examination of the Defendant's expert
witness; (6) that the trial court erred by questioning the
Defendant about his decision not to
testify at trial; (7) that the State committed prosecutorial
misconduct during its closing argument by commenting on the
Defendant's decision not to testify; and (8) that the
Defendant is entitled to a new trial based upon cumulative
error. Following our review, we affirm the
judgment of the trial court.
Evidence Regarding the Offense
case arises from the murder of the Defendant's wife, Kay
Clark Colvett, during the evening of April 7, 2012. At trial,
the victim's daughter, Jennifer Coward, testified that
her mother and the Defendant had been married for
approximately three years and that they both had adult
children from previous relationships. The victim owned
several rental properties and worked as a nurse who "
sat with old people." Ms. Coward testified that she was
close to her mother and spoke to her several times a day.
Coward testified that she went to the victim's house on
April 5, 2012, to visit with her. At some point that morning,
the victim needed to move her car, but her car keys were
missing. The victim then noticed that her cellular telephone
and its charger were missing as well. Ms. Coward testified
that the victim " looked all over the house" and
" started crying." According to Ms. Coward, the
victim " was really hurt" and " didn't
know what to do." The victim was scared that the
Defendant had taken her keys and cell phone. The victim told
Ms. Coward that on April 9, 2012, she " was going to
move in with" Ms. Coward and leave the Defendant. The
victim said that she " didn't want to . . . argue
any more" with the Defendant. Ms. Coward was unsure if
the Defendant knew about the victim's plan to move out.
Coward testified that she next saw the victim on April 7,
2012. The Defendant and the victim dropped off a birthday
card for Ms. Coward's son that afternoon. The two did not
stay long and did not come inside Ms. Coward's house. Ms.
Coward testified that everything seemed " basically
okay" and that there was nothing unusual about the
Defendant that afternoon. Later that afternoon, the victim
called Ms. Coward. Ms. Coward testified that the victim
sounded " real sharp" and " maybe a little bit
scared." The victim told her that the Defendant had said
" that he was going to pen [sic] [the victim] up
underneath a white house." Ms. Coward told the victim
she would call her back and hung up.
victim immediately called Ms. Coward back and repeated what
the Defendant had said. Ms. Coward took the Defendant's
comment to mean " that he was going to kill" the
victim and bury her " underneath the white house."
Ms. Coward testified that she spoke to the victim again later
that afternoon. Ms. Coward called the victim to ask "
how things were going," and the victim said that she and
the Defendant " were fixing to grill out and after [the
Defendant] had got something to eat, she thought he would be
fine." Ms. Coward testified that the next day was Easter
and that she and the victim had made plans for an Easter
dinner at the victim's house.
victim's other daughter, Rhonda Gooch, testified at trial
that she was not as
close to the victim as Ms. Coward but that she spoke to the
victim several times a week. Ms. Gooch testified that on
April 6, 2012, her daughter was playing in a softball
tournament. Ms. Gooch saw the Defendant and the victim at the
tournament. Ms. Gooch testified that they both seemed to be
in " a good mood" and happy. Ms. Gooch described
the Defendant and the victim as " cutting up with each
other" and laughing. Ms. Gooch testified that the victim
did not say anything that day about leaving the Defendant or
moving in with Ms. Coward.
next day, Ms. Gooch and her daughter went to the victim's
house after the second day of the softball tournament had
ended. Ms. Gooch explained that her daughter " wanted to
play a joke" on the victim. Ms. Gooch also wanted to ask
the victim " what [she] needed to bring" for Easter
dinner. Ms. Gooch testified that they arrived at the
victim's house around 5:00 p.m. and knocked on the back
door. According to Ms. Gooch, the victim answered the door in
a towel and said she had been in the bedroom with the
Defendant. Ms. Gooch spoke briefly to the victim and found
out what she needed to bring and when to be at the
victim's house for Easter dinner. Ms. Gooch testified
that when she and her daughter left the victim was in a good
mood and seemed happy.
Colvett testified that he is the
Defendant's cousin and lived in Mount Pleasant,
Tennessee, some thirty to forty minutes away from the
Defendant's home. James testified that he had worked with
the Defendant in the past but that he was not very close to
the Defendant and had never been to the Defendant's
house. James recalled that prior to April 2012, the Defendant
had called and left a message that he " was having
trouble" with the victim and that " it would
probably wind up in a divorce." The Defendant then left
James a message on April 3, wanting to see him. On April 7,
2012, the Defendant called James around 3:00 p.m. but did not
leave a message.
testified that the Defendant showed up at his house around
8:00 p.m. that night. According to James, the Defendant told
him that he was " going to be rich" and asked him
to help remodel " some houses." The Defendant also
told James that the Tennessee Bureau of Investigation (TBI)
" had ran [sic] him up and down the streets of Alabama
all day." The Defendant explained to James that the TBI
wanted " answers, but [he was] not telling them."
The Defendant also told James that his employer was thinking
of promoting him to " plant manager" but that
" some people at work" were trying to prevent the
Defendant then asked James " to help him clean up some
blood" at the Defendant's house. The Defendant told
James that he had killed " a lady he knew that knew a
lot about real estate" and that he had been waiting to
kill her " until he learned what she knew about real
estate." The Defendant said that he had taken " a
knife and started cutting" but that the knife was dull
so " [h]e got another one." James testified that
the Defendant told him that the body " was laying [sic]
close to a door and [they] could move it a little bit."
The Defendant planned to " drive in" and get the
body in his truck. The Defendant wanted James to clean up the
blood while he hauled the body away. The Defendant also told
James that he wanted to lure his
daughter, his son-in-law, and " some other people"
to his house to " show them what he had done."
testified that the Defendant left around 8:20 p.m. According
to James, the Defendant was clean and dressed in t-shirt and
blue jeans. However, James testified that the Defendant
" never stopped" talking while he was there and
that he would go from " one subject to the next, but you
don't know where something is starting and something is
ending." James testified that he thought the Defendant
was " not on his medication" and " [o]ut of
touch with reality." After the Defendant left, James
called some of the Defendant's relatives and told them
about his behavior that night. Eventually, one of the
Defendant's relatives called the Lewisburg Police
Department (LPD) to request a " welfare check" on
Sanders testified that on April 7, 2012, he was a Corporal in
the LPD and received a dispatch to perform a welfare check on
the Defendant around 10:00 p.m. Cpl. Sanders testified that
he was told the Defendant " had reportedly made threats
to harm or kill his psychiatrist." When Cpl. Sanders
arrived at the Defendant's house, he was able to see into
the house through the front windows. Cpl. Sanders saw that
the lights were on inside the house, but he did not see
anyone inside. Cpl. Sanders also did not hear any noise while
he approached the house. When he knocked on the front door,
Cpl. Sanders saw the Defendant walking down a hallway with a
pair of keys in his hand. The Defendant was the only person
Cpl. Sanders saw in the house.
Sanders testified that when the Defendant answered the door,
he was wearing a dress shirt tucked into khaki pants. Cpl.
Sanders further testified that the Defendant was "
groomed" and that he did not see any blood on the
Defendant or his clothes. Cpl. Sanders also testified that he
did not see any blood inside the Defendant's house. Cpl.
Sanders told the Defendant why he was there and asked the
Defendant if he " had harmed anybody." The
Defendant responded, " No." Cpl. Sanders then asked
the Defendant if " he had harmed himself or had any
thoughts of harming himself." The Defendant again
responded, " No." Finally, Cpl. Sanders asked the
Defendant if " he had any intentions of harming
anybody" or if he had made any threats. The Defendant
said, " [N]o, he was just sitting in his chair trying to
relax." Cpl. Sanders testified that the Defendant
answered his questions without hesitation and made eye
contact with him. Cpl. Sanders testified that he was
satisfied with the Defendant's answers and concluded the
approximately 1:30 a.m. on April 8, 2012, the Defendant went
to the Lewisburg Walmart. Surveillance video from the store
was played for the jury during the trial. The Defendant drove
a white pickup truck and parked in the back of the parking
lot. The Defendant was wearing a white t-shirt and black
jeans. The Defendant waited in the checkout line and
purchased sponges, two mops, and bleach. The Defendant then
walked back to his truck and drove away. There was nothing
odd or unusual about the Defendant's behavior on the
Walmart surveillance video.
11:00 a.m. that morning, Ms. Coward, along with her husband
and her son, went to their church for an Easter service. When
they arrived, the Defendant was there, but the victim was
not. Ms. Coward testified that this was unusual because the
victim was " a pretty frequent attender" of the
church. Ms. Coward sat down next to the Defendant and asked
him about the victim. The Defendant told Ms. Coward that she
was " at home, sick." The Defendant then said,
" Oh, yeah, we won't
be having Easter." Ms. Coward testified that the
Defendant was dressed " appropriately for church"
wearing brown slacks, a dress shirt, and a tie. Ms. Coward
also testified that the Defendant slept through most of the
service. When the service was over, the Defendant " left
really quick." Ms. Coward testified that she thought
this was odd because the Defendant and the victim would
typically linger after church to speak to their friends.
church, Ms. Coward tried calling the victim's home and
cell phones, but the victim did not answer. Ms. Coward, her
husband, and her son then went to the victim's house. The
Defendant was already there when they arrived, and the
victim's car was parked in the garage. Ms. Coward went
inside the house and went through the house looking for the
victim. When Ms. Coward asked the Defendant where the victim
was, he said she was at a neighbor's house. Ms. Coward
saw the victim's purse and cigarettes on the kitchen
counter. Ms. Coward testified that this was unusual because
the victim " always had those items with her." As
she went through the house, Ms. Coward noticed in the master
bedroom that only one side of the bed appeared to have been
slept in and that the sheets were missing from the bed in the
Coward's husband, Jon Coward, testified that after Ms.
Coward had gone through the house, the Defendant asked him if
he would " ride . . . around the neighborhood to look
for" the victim. Mr. Coward testified that he and the
Defendant took the Defendant's truck and drove around the
neighborhood for ten to fifteen minutes with the windows down
while the Defendant " call[ed] her name out."
Unable to find the victim, they returned to the victim's
house. Ms. Coward testified that they decided to go out to
eat lunch. The Defendant wrote a note for the victim stating
where they were going and asking her to call them.
Coward testified that the Defendant slept while they drove to
lunch and that he did not eat very much at the restaurant.
Mr. Coward testified that during lunch, the Defendant said
that the TBI and his daughter were " trying to
kill" him and that he " needed to kill [his
daughter] before she had him killed." Ms. Coward asked
the Defendant if he wanted to bring some food back for the
victim and he said no. Ms. Coward testified that the
Defendant slept during the drive back to the victim's
house. Mr. and Ms. Coward testified that the Defendant's
sleeping at church and in the car was not unusual because the
Defendant " slept all the time."
they got back to the victim's house, the Defendant asked
Ms. Coward to " call the TBI." Ms. Coward told the
Defendant that she could not because it was Sunday. The
Defendant then told Ms. Coward he would give her $1,000 if
she would write a statement to the TBI for him. Ms. Coward
testified that she could not recall what she wrote down for
the Defendant. As this was happening, Mr. Coward went to the
kitchen sink to wash his hands. At the sink, Mr. Coward
noticed " a fine mist" of blood spatter on the
kitchen counter. As he looked closer he saw, " it was on
the curtains, the window, [and] the side of the
refrigerator." Mr. Coward showed the blood to Ms.
Coward, and she called Ms. Gooch.
Gooch testified that Ms. Coward was " frantic" when
she called and told her about the blood in the victim's
kitchen. Ms. Gooch went immediately to the victim's
house. Ms. Gooch testified that she saw blood spattered
" on the curtains, the window[,] . . . [t]he side
paneling of the cabinet next to the sink, and the cabinets up
underneath the kitchen sink." Ms. Gooch " went
through the house hollering
for" the victim. Ms. Gooch then asked the Defendant
where the victim was and the Defendant " just looked at
[her] and shook his head . . . [a]s if saying he didn't
know." After going through the house, Ms. Gooch called
the police and went outside.
Gooch testified that there was a shed behind the victim's
house where the Defendant and the victim kept yard tools and
other items. Ms. Gooch further testified that she had a key
to the shed because she would do lawn work for the victim and
the Defendant. When Ms. Gooch went to open the shed, she
found that the padlock on the door had been changed and that
her key no longer worked. Ms. Gooch also noticed that there
was a towel hung by duct tape covering the shed's only
window. Ms. Gooch testified that she went back inside the
house and asked the Defendant where the keys to the shed were
but that he did not answer.
John Christmas and Tracy Teal of the LPD were the first
officers to arrive at the victim's house on April 8,
2012. Cpl. Christmas testified that they arrived around 3:30
p.m. Ms. Coward, the Defendant, and Mr. Coward were in the
driveway while Ms. Gooch was by the shed. After speaking to
Ms. and Mr. Coward, Cpl. Christmas asked the Defendant if he
knew where the victim was. The Defendant responded that he
did not know where the victim was and " that he hoped
that [the officers] could find her because they had sure had
some good times together." Cpl. Teal asked the Defendant
if they could enter the house and the Defendant responded,
" Sure, come on in."
Teal testified that in the kitchen he saw " a few knives
in the sink" and " blood spatter on the kitchen
cabinets, curtains, and windows." Cpl. Teal asked the
Defendant if he had " checked with the local emergency
rooms," and the Defendant said that he had not. Cpl.
Teal stepped outside and called the local hospitals to see if
the victim had been admitted at either of them. While Cpl.
Teal did this, Ms. Gooch asked Cpl. Christmas to check the
shed. Cpl. Christmas asked the Defendant where the keys to
the shed were. The Defendant told Cpl. Christmas that the
keys were " in a closet in an office area of the
house." Cpl. Christmas testified that he went with the
Defendant to get the keys and that the Defendant said they
were " in a pair of shorts in the closet on a
same time, Cpl. Teal learned that the victim was not at
either of the local emergency rooms. Cpl. Teal then "
asked everybody to vacate the house." When Cpl. Teal did
this, Cpl. Christmas told the Defendant not to " worry
about the keys" and to exit the house. The victim's
family was upset and started " making accusations"
about the Defendant. Cpl. Teal asked the Defendant to sit in
the back seat of the patrol car, and the Defendant complied.
The Defendant was not handcuffed, and Cpl. Teal rolled the
window down so the Defendant could get out of the car if he
wanted to. Cpl. Teal told the Defendant that he did not want
the Defendant to feel like he was " being
incarcerated." Video from the patrol car was played at
trial. In the video, the Defendant sat calmly in the
backseat, occasionally blinking his eyes and looking around.
Christmas then asked the Defendant to step out of the patrol
car so he could ask him some questions about the victim. The
Defendant was able to give biographical information about
himself, the victim, and their families. The Defendant told
Cpl. Christmas that he last saw the victim at 9:40 a.m. that
morning and that she was still in bed when he left for
church. The Defendant said that the victim complained she had
a stomach virus but that she was planning on having Easter
dinner at 2:00 p.m. When asked if he
and the victim had argued recently, the Defendant responded
that they had the night before. The Defendant said, "
Well, she'd been running through the house chasing me
some and using psychology on me." Cpl. Christmas asked
the Defendant what he meant, and the Defendant responded,
" Trying to mix my thoughts up. Going round from room to
room. She'd do that sometimes and sometimes she'll
sit down." The Defendant explained that they had been in
an argument " concerning that" in the last week.
Christmas asked the Defendant if there had ever been a report
of domestic violence at the house, and the Defendant admitted
that he had " an assault charge on domestic
violence" the previous year but said they were only
" arguing." Cpl. Teal then asked the Defendant if
they could search the shed. The Defendant said they could,
and Cpl. Teal asked where the keys were. The Defendant told
Cpl. Teal that the keys were in the office closet. Then the
Defendant said, " You all might as well go ahead and
handcuff me" and put his hands behind his back. Cpl.
Teal asked, " Why's that, is [the victim] in
there," and the Defendant responded, " She's in
there, go ahead." Cpl. Teal asked, " What's
wrong with her," and the Defendant responded, " She
tried to kill me using psychology and reverse
psychology." The Defendant was asked again what was
wrong with the victim, and he responded, " She works for
the TBI." Cpl. Christmas asked the Defendant, " How
long [had] she been in there," and the Defendant
responded, " A couple of days."
point, Cpl. Teal stopped the Defendant and told him not to
say anything else until he had been read his rights. The
Defendant was handcuffed and placed in the backseat of the
patrol car. The Defendant was asked again where the keys to
the shed were, and he told the officers that they were in the
pocket of a pair of shorts in his office closet. Cpl.
Christmas testified that the Defendant seemed to understand
all of his questions, cooperated with him, answered his
questions appropriately, and made eye contact when speaking
to him. Cpl. Christmas went back into the house and retrieved
the keys to the shed. Cpl. Christmas testified that the keys
were where the Defendant said they would be.
Cpl. Christmas was getting the keys, the Defendant said to
Cpl. Teal, " Now, my wife and me was in bed having sex
and I can tell you the whole thing." Cpl. Teal told the
Defendant not to say anything until a detective could speak
to him. Cpls. Christmas and Teal then unlocked the shed and
saw the victim's body lying " on the floor."
Her body was " partially clothed" and wrapped
" in a blanket or comforter" bound by " rope
or twine." The body was " face up," and "
[t]here was discoloration" of the body. Cpl. Christmas
also testified that " [t]here was blood [and] [a]pparent
stab wounds." The Defendant was then transported to the
local police station by LPD Officer Kevin Clark. Officer
Clark testified that while he was with the Defendant, there
was nothing " peculiar or bizarre" about the
Sergeant David Henley of the LPD testified that he arrived at
the victim's house shortly after the Defendant had been
taken to the police station. Det. Henley testified that he
searched the house as well as the shed and collected several
pieces of evidence. No identifiable finger prints were found
on any of the items collected by Det. Henley. Det. Henley
observed and photographed blood spatter, a pattern of blood
" usually from some type of injury," in the
kitchen. Det. Henley testified that there was blood spatter
on the refrigerator, the stove, the back
splash behind the stove, the dishwasher, the kitchen
cabinets, the window frame and curtain, the door leading from
the kitchen to the garage, the door frame " on the floor
of the garage," and " the door casing that led to
the living room." Det. Henley also found " a small
blood droplet" on " the metal security door"
leading to the back patio.
kitchen sink, Det. Henley found " a large kitchen knife
submerged in water" along with some other dishes.
Subsequent forensic analysis by the TBI revealed the presence
of blood on the knife, but the blood did not belong to either
the Defendant or the victim. Det. Henley testified that he
found a plate of food on the dinning room table and that he
thought it was " odd . . . to find a meal on the
table" after seeing all the blood in the kitchen. Det.
Henley found a " black plastic trash bag" in the
closet of a bedroom used as an office. Inside the trash bag
was a " blood-soaked towel, a mop head[,] . . . some
sponges," and " other pieces of trash and some
empty water bottles." Det. Henley testified that
everything in the bag was " [v]ery wet." Subsequent
forensic analysis by the TBI revealed the presence of blood
on the towel, mop head, five wash cloths, and a Walmart bag
found in the garbage bag. The Walmart bag and two of the wash
cloths tested positive for the victim's DNA.
Henley found a pair of black jeans and a gray t-shirt "
on the office chair in the office." In the bathroom,
Det. Henley found red stains on the faucet handles of the
sink. Subsequent forensic analysis by the TBI revealed that
the handle labeled " hot" had the victim's
blood on it. In the guest bedroom, Det. Henley found that
there were " no comforters, no quilts, no sheets"
on the bed. Det. Henley also found in the guest bedroom a
spinning wheel with a " green fiber rope" on it. In
the living room, Det. Henley found a Walmart receipt for the
purchase of cleaning supplies. Det. Henley testified that he
found a wet towel on the floor of the laundry room and "
a pair of black jeans, t-shirt, and some other clothing"
in the dryer. Det. Henley also observed that the washing
machine appeared to have been recently used.
garage, Det. Henley found a pair of " rubber boots on
top of [a] gun cabinet." Det. Henley testified that the
boots were " very clean" and did not appear to have
" been sitting on top of the gun cabinet for a long
time." Det. Henley also noted that the kitchen floor was
clean and that there was no blood on it. Det. Henley
testified that the concrete steps leading from the door to
the back patio were " exceptionally clean." Det.
Henley further testified that the grass from the patio to the
door of the shed " was bent towards . . . the shed, kind
of like a trail." Det. Henley noted that the bricks used
as steps to the door of the shed appeared to have been
cleaned and that the lock on the shed looked new.
the shed, the victim's body was lying near the door of
the shed with the head pointing toward the door. The
victim's body " was wrapped in bedding" that
was tied " to the body" at the ankles and knees
" with what appeared to be the same green fiber
rope" that was found in the guest bedroom. The
victim's shirt was " rolled up . . . [t]oward her
shoulders," suggesting to Det. Henley that her body was
" drug feet first" from the back patio to the shed.
Det. Henley testified that he also found " a towel and a
pillow case . . . hung above the window" inside the
shed. The victim's body was removed from the shed and
taken to the medical examiner for an autopsy.
Adele Lewis, an expert in forensic pathology, testified that
she performed an autopsy on the victim's body. Dr. Lewis
opined that the victim's cause of death
was " multiple sharp and blunt force injuries." Dr.
Lewis testified that the victim suffered " multiple
blunt force injuries to her head." According to Dr.
Lewis, there was " a large area of bruising over the
left side" of the victim's head, two cuts over her
left eyebrow, and " bleeding into her left eye." On
the right side of the victim's head there were "
multiple line-shaped bruises." Dr. Lewis opined that
these injuries were " consistent with having been struck
in the head . . . with a fist."
Lewis testified that the victim also suffered " numerous
sharp force injuries to her body." There were a total of
fifty-two stab wounds to the victim's torso over her
chest, abdomen, hips, and back. Dr. Lewis testified that some
of these stab wounds were superficial while others were
significant and caused injuries to the victim's lungs,
intestines, right kidney, pancreas, and liver. The victim
also suffered stab wounds to her left arm, left wrist, and
right wrist. Dr. Lewis testified that the victim further
suffered bruises and scrapes to her right and left arms. Dr.
Lewis opined that the injuries to the victims arms and hands
were consistent with having been " defensive-type
wound[s]." The victim also had an injury to her back
consistent with her body having been dragged after death.
Det. Henley searched the victim's house, LPD Detective
Scott Braden interviewed the Defendant at the police station.
Det. Braden's initial interview with the Defendant was
recorded and played for the jury at trial. Det. Braden
advised the Defendant of his constitutional rights and
reviewed a waiver form with the Defendant. The Defendant
waived his rights and signed the waiver form. Det. Braden
asked the Defendant if he was on any medication. The
Defendant responded that he took lithium " for
bipolar" and that he had taken some at 8:00 a.m. that
day. The Defendant was able to answer clearly and concisely
biographical questions about himself, the victim, his family,
and her family.
Braden asked the Defendant if he knew why he had been
arrested. The Defendant responded by telling Det. Braden
about an incident that occurred the previous May when he had
been admitted to a hospital for psychiatric treatment because
the victim had " lied" and said his " medicine
was off." Det. Braden then asked the Defendant about
what happened with the victim. The Defendant told Det. Braden
that the victim was an assassin working with the TBI as part
of a conspiracy to kill him.
Defendant stated that everything began when he met two or
three TBI agents at a local bar and agreed to work as an
informant. However, a few weeks later, one of the TBI agents
" started stroking [his] penis" and told him "
that's part of law enforcement." The Defendant
claimed that he then refused to help the agents any more and
that they threatened that they were " sending somebody
after" him to kill him. The Defendant also claimed that
he was told by several people that he was going to be killed
because he was " too smart to be in law
Defendant told Det. Braden that he met the victim at his
church and that he knew she was part of the TBI conspiracy to
kill him. The Defendant explained as follows:
I worked with her so hard because I was told that she was
trained better than anybody else in the TBI and they was
going to send her after me. And I kept that thought to
myself, and I thought that if her and me got together that
we'd have the best sex in the world. And as long as she
wouldn't doing them mind games we did. It was something
Defendant claimed that the victim " trained" others
" in law enforcement," including his ex-girlfriend,
Patsy McFarland. The Defendant told Det. Braden that the
victim had told him she was retired from " law
enforcement," but " she'd [still] mess
Defendant explained to Det. Braden how the victim would
" mess with [his] head" :
She would start messing with my head. She's been doing
this for awhile. We'd have sex two or three nights a week
then she wouldn't let me have none for two or three
nights, just messing with my head. And some nights, when I be
really tired, she would try to get me to think about the
white house with a green valley and I'd tell her, "
Don't do that, Kay. I might quit breathing."
That's what the TBI uses with their assassins to try to
kill somebody. If you don't close your eyes, fast, and
blink with your left eye, it will kill you 'cause your
heart will slow down. And she tried that with me for hours.
The Defendant explained further how the victim would "
mess with [his] head" :
[The victim would] start trying to mess with my head, confuse
me on my thoughts. Start yelling, walking up and down the
hall. Sometimes she'd get knives and put them in her bed,
lay down with them in bed. Walk up to me with a knife in her
hand, look at me, and I got to where I'd look her right
in the eyes . . . I reckoned she [was] just playing with me,
but I watched her.
asked how long and how often the victim had " mess[ed]
with [his] head," the Defendant stated that it had
occurred throughout his relationship with the victim. The
Defendant explained further,
Sometimes she would start in two or three nights of being
with me in the bedroom . . . I begged her to stop, she went
wild and crazy. The way we had sex, it was worth more to me
than any amount of money. We could talk thirty or forty
minutes about something and still be having sex. That's
how she'd erase your mind. I had to watch her when she
started that stuff. Sometimes I had to . . . wink right
Defendant also claimed that the victim's " mind
control" was so strong she " could look at your
d--k and make it dance up and down" and that he was
scared of her power.
Defendant told Det. Braden that the victim and his
ex-girlfriend, Ms. McFarland, " worked together"
and that Ms. McFarland would " come running" if the
victim told her to. The Defendant explained that when he was
arrested the previous May, he was afraid that the victim and
Ms. McFarland were " going to gang up" on him. The
Defendant stated to Det. Braden,
Kay told me the night I was arrested . . . " It's
all over for you now, Pat is on the way." And knowing
what Pat can do in psychology and slowing your heart down and
what Kay could do, I was pacing the floor, sweating, wanting
to jump out the window, wanting to just run like crazy down
the street. Next thing I know, I couldn't even hardly
talk. I don't know why they do me like that.
this, the Defendant stated that he " wanted to keep [the
victim] because she was the best lover [he] ever had"
and because he was " a Christian [and] . . . didn't
want to go to Hell for adultery." The Defendant told
Det. Braden that the victim was very smart and knew a lot
about the " business world" and " real
estate" because her parents were millionaires. The
Defendant believed that if he and the victim could join
could make millions of dollars in " real estate"
and rental properties. The Defendant stated that he
repeatedly told the victim that " [r]egardless [of] what
the TBI [had] paid [her] to kill [him], [she] could have more
money with [him]." The Defendant told Det. Braden that
telling the victim this would cause her to stop "
mess[ing] with [his] head" for " two or three days
and then [she would] start right back doing it."
Defendant told Det. Braden that, before the murder, he was
driving with the victim when " she got [him] so relaxed
[he was] trying to keep from falling out of the seat."
The victim asked him to have sex, and he said he could not
because he would die. Then the victim said she was "
gonna give [him] a blowjob" that night, and he knew
" she was trying to set [him] up." The Defendant
told Det. Braden that despite his concerns he got the victim
" to talk to [him], to save [his] life" and that he
liked " her that way, but she [was not] always that
Defendant said that on Thursday, April 5, he got off from
work early and went home to spend time with the victim. The
Defendant told Det. Braden that they " laughed and cut
up and talked and had a good time." The Defendant said
that he " had a lot of sex" with the victim on
Thursday night and that her " eyes [were] glowing and
[he] thought [he had] gotten through to her." The
Defendant said that he and the victim also " had a great
time" on Friday and Saturday. The Defendant told Det.
Braden that he was unsure if the murder happened on Friday or
Saturday because the victim " was messing with [his]
head so much [he could] hardly remember what day it
Defendant told Det. Braden that things changed when he and
the victim were interrupted during sex by a knock on the
door. The Defendant stated that Ms. Gooch and her daughter
came into the house and were " laughing, cutting up, and
talking" even though he told the victim to tell them not
to. After they left, the victim got " in one of her
moods again, walking up and down the hallway, looking back
and forth, and twisting around right quick and fussing
at" him. The Defendant said that the victim was trying
to get " in [his] head using that psychology and reverse
psychology and strategy." The Defendant explained that
she was " trying to mess [him] up, just left and right,
left and right."
Braden asked the Defendant what he meant by " reverse
psychology" and the Defendant responded,
When you stick it to one word and you got your mind on it,
she'll reverse to another word and by the time you get it
here she'll reverse it to another one. Just back and
forth, back and forth, different words. And then she'll
start with the strategy and then she'll start back with
Defendant said that he was naked and that the victim "
was on the floor when she started it," and then she
" got to just stomping." The Defendant continued,
" Then she spins around and starts it, then points her
finger at me, and then raises her head back and yells at me
and then she won't let up." The Defendant said that
the victim " start[ed] talking that crazy talk."
When asked what the victim said, the Defendant stated the
[The victim said,] " Aw, you don't know nothing. You
always think you're smarter than me. You shouldn't
talk to me that way. You're really messing me up in my
head. You always do that to me. I don't understand it and
you keep on and on with it." Then she started throwing
different things and bouncing around that psychology and
strategy and I wouldn't doing nothing she said.
Defendant told Det. Braden that the victim went " on and
on and on." The Defendant continued as follows:
I asked her to stop and she don't have to do that with
me. I said, " Kay, I have heard about you for many years
and knowing law enforcement was going to send you after me, I
thought about what I could do to have you as a wife because
you was such a good lover." I said, " If the TBI
offered you a million dollars to kill me, you could have more
money with me than what they offered you. Don't do that.
Please, please." And I was nearly screaming, begging her
not to do it, shaking, crying, 'cause I was afraid of
what I might could do and I knew I was going to have to do it
if she come at me because she would not have let up if she
had one split second to get in my head, she would have killed
me and I'd of fell to the floor. That's how good she
Defendant said that he begged the victim not to kill him with
" psychology" and that he warned her that he had
learned " psychology, reverse psychology, and
strategy" in " law enforcement," but that he
had never killed anyone with it. The Defendant said he had
only " played mind games on people trying to do the
trance on [him]." The Defendant told the victim that he
did not " want to live with the fact that [he had]
killed [her]." The Defendant told Det. Braden that the
victim started smiling and that he thought she had stopped,
but he knew he had " said the wrong thing because she
was looking around to see if the curtains was closed and [he]
knew what she was doing, [he] knew she was setting [him]
Defendant told Det. Braden that he ran into the kitchen and
got a knife to kill the victim when he saw her " eyes
rolling around in her head and [he knew] she was fixing to
hit [him] with psychology and strategy." The Defendant
further explained to Det. Braden:
I'm a good person. I wouldn't kill nobody for nothing
and I begged, I begged her a long time. But when them eyes
leaned back and she looked at me serious I said, " Kay,
I hate to do this, I'm gonna miss you, but I'm gonna
send you straight to Hell right now."
Defendant said that the victim was near the stove trying to
run away from him. The Defendant told Det. Braden that he was
naked with the knife in his left hand and that he "
jumped up in the air like a wild animal and [he] jumped on
[the victim's] back." The Defendant then " got
to beating her in the face with [his] fists and her head,
cutting on her, beating on her." The Defendant said that
he had the " knife in [his] left hand and [his] right
hand pounding her face and everything and switching back and
forth." The victim was screaming and crying as the
Defendant attacked her. The Defendant said that he " cut
[the victim] bad" all over her body because he was
" afraid that if [he had] let up on her she[ was] going
to kill [him]."
Defendant told Det. Braden that he did not let the victim get
back up and that he knew everything he did " had to be
precise." During the attack, the Defendant said to the
victim, " You're not going to get up and use
psychology on me. I got you where I want you and I begged you
not to let this happen." The Defendant told the victim
that they could of had so much together and that all he
wanted was for her " to cooperate with [him] on that and
[to] give [him] a lot of sex and [not to] use [those] mind
games on [him]." The Defendant told Det. Braden that the
victim responded, " I wish I'd listened to
you," as he stabbed her. The Defendant also repeatedly
stated that he " didn't want to hurt" the
victim " because [he] loved her so
much" and that if there " was any way [he] could
have avoided killing her [he] would not have done it."
Defendant told Det. Braden that when he had finished stabbing
the victim, he drank some water and cleaned the knife off in
the kitchen sink. The Defendant said that he then " sat
down in [his] chair" and cried, shook, and wished he
" hadn't done what [he had] done." The
Defendant said that he " cried for a long time" and
regretted what he " had to do." The Defendant then
moved the body and cleaned the kitchen because he was afraid
Ms. McFarland " might be coming after [him]" to
kill him. The Defendant stated that he wrapped the
victim's body up in " quilts" from one of their
beds. He then went outside to make sure no one was looking
and, because her body was too heavy to lift, he " drug
her out" the back door to the shed. The Defendant told
Det. Braden, " It's hard to move a body." The
Defendant claimed it took him several hours to move the body.
Once the body was inside the shed, the Defendant locked the
Defendant stated that after he moved the body, he started to
clean up in the kitchen. The Defendant said that he took
three showers that night, wore several different items of
clothing while cleaning, wore rubber boots, did laundry, and
went to Walmart to buy cleaning supplies. The Defendant said
that he knew it looked like he was trying to hide what he
did, but he really " was not trying to cover [it]
up." Instead, the Defendant said he was worried that Ms.
McFarland was going to come for him, and he wanted " to
see how fast the [LPD] would come up with the answer."
The Defendant stated that while he was cleaning, a LPD
officer came to his door and asked him if he was " going
after the TBI." Det. Braden asked the Defendant why he
did not just tell the officer what had happened, and the
Defendant said he wanted to see if Ms. McFarland was coming
for him and to " set a trap" for her.
Defendant said that he finished cleaning around 4:30 Sunday
morning, and he cleaned " everything pretty good"
but that he left some " blood stains" in the
kitchen. The Defendant told Det. Braden that when he finished
cleaning, he put the used cleaning supplies in a garbage bag
and put the bag in the office closet. The Defendant said that
he woke up around 7:00 a.m. and started to drive to Alabama
to find someone to " watch [his] back," but that he
decided to turn around and come home. The Defendant told Det.
Braden that he had breakfast and then went to church. When
asked about the victim at church, the Defendant said that she
was at home in bed. The Defendant explained to Det. Braden,
" What I was going to do is tell law enforcement what
I'd done. I was trying to see if [Ms. McFarland] was
going to come after me and I was wanting to call them and let
them come and arrest her."
Det. Braden asked the Defendant what he drove to church, the
Defendant stopped Det. Braden to tell him about something
that had made him " very upset." The Defendant told
Det. Braden that after he had bought his truck, he would hear
people around town say, " This is the new man that's
going to be reinstated in the TBI, he's got thirty-five
years' experience." The Defendant told Det. Braden
that this made him mad and that he was thinking about selling
his truck. The Defendant explained, " If I'm going
to work in law enforcement, somebody don't need to be
blowing my cover, 'cause I ain't going to blow it
myself. Don't make a bit of sense."
Defendant said that he did not tell Ms. Coward or Ms. Gooch
what had happened because he wanted to see how they reacted.
The Defendant said that he knew
he " could make money with them" because "
they acted that out like they was in a movie." The
Defendant explained that they " put a lot of emotion
into it . . . they got in to it." The Defendant was
especially interested in Ms. Gooch because he thought he
" could make millions with her" based on how she
reacted to the blood spatter. The Defendant said that
everyone at his house that day " was acting."
Defendant explained to Det. Braden why he waited until the
police were about to enter the shed to tell them what had
I was going to tell law enforcement where I put the body
before they left, down at the house, but they was looking and
I was going to see what they'd find down there and I was
going to tell them what I'd done. I cleaned up the body
and put it out in the shed to see if anybody else would come
after me and I was going to be ready on the phone to dial the
[LPD] and tell them what was going on.
Defendant concluded the interview by telling Det. Braden that
everything he had told him was the truth and that he had
enjoyed their conversation. The Defendant then said, "
I'm a non-violent person, but it was a life or death
situation that I was in and that's why I went crazy. Just
scared to death. Didn't know if somebody was coming
behind me or not, that's why I went so fast."
Braden testified that after he finished his initial interview
with the Defendant, he turned off the audio recorder and
conducted a second interview in order to produce a written
statement. Det. Braden testified that he wrote the statement
out for the Defendant, that he had the Defendant review the
statement, and that the Defendant initialed changes to and
signed the statement. The written statement presented a more
condensed version of what the Defendant had told Det. Braden
during their recorded interview. The Defendant said that he
had killed the victim after she started " using
psychology and reverse psychology and strategy on" him
and that he knew " the TBI was putting [her] up to
Defendant stated that he jumped on the victim " like a
horse," beat her, and " rode her to the
floor." After he finished beating her he started
stabbing her. The Defendant said that he " cut her
several times, probably [1,000] times." The Defendant
said that the victim " was smiling" while he
stabbed her and that " [a]fter about 100 stabs she said,
'I didn't know you was this good.'" The
Defendant stated that over ninety percent of his body was
covered in blood when he finished. The Defendant said that he
" sat down and cried about what [he] had done" and
that then he started to clean up and move the body. Unlike
his earlier statement, the Defendant said that the
victim's body was still in the house when the LPD officer
came to his door.
Defendant said that he left some blood in the kitchen because
he " wanted to see the expression on [Ms. Gooch's]
face when she [saw] it." The Defendant stated that after
he finished cleaning, he ate dinner and " sat in the
recliner and watched TV for a while" before going to
bed. The Defendant said that when the victim's family was
at his house the next afternoon, he " just smiled"
when Ms. Gooch said the victim was in the shed. The Defendant
stated that he then told Ms. Gooch to call the police. The
Defendant concluded his written statement by stating, "
I did what I did to get y'all's attention. I'm
going to miss her." Det. Braden testified that the
Defendant did not have any apparent injuries from the attack.
Evidence Regarding the Defendant's Mental State
Evidence from the Defendant's Family
Johns testified that she was the Defendant's daughter and
that Ms. McFarland was her mother. Ms. Johns testified that
there was nothing unusual about the Defendant's behavior
when she was growing up. According to Ms. Johns, the
Defendant told her " a couple of years ago" that he
was bipolar. Ms. Johns testified that approximately a year
before the murder, the Defendant started " talking
crazy," " talking really, really fast," and
" just saying stuff that didn't make any sense at
all." According to Ms. Johns, the Defendant was "
very, very focused on" church and finding " ways to
get the youth in church." Ms. Johns testified that in
the spring of 2011, the Defendant was hospitalized for nine
days and then spent nine days living with her and her
Johns described the Defendant as being " very
nervous" during that time in the spring of 2011, but
that afterwards, his relationship with the victim went "
back to normal" and was very good. Ms. Johns testified
that the Defendant stayed " back to normal" until a
few weeks before the murder. Ms. Johns said she received a
letter from the Defendant accusing her of threatening to kill
him the previous Christmas. The letter claimed that she was
upset because the Defendant had " tried to keep [her]
from being in law enforcement." Ms. Johns testified that
the Defendant started " talking crazy" again and
stopped taking his medication. The Defendant said he wanted
to start a comedy club in his garage. Ms. Johns admitted that
the Defendant had been steadily employed her entire life and
had served as the executor of her grandmother's estate in
early 2012. Ms. Johns also testified that the Defendant never
said anything to her about the TBI.
Johns's husband, Bryan Johns, testified that in the
spring of 2011, the Defendant was arrested on a domestic
violence charge and released on the condition that he check
himself into a hospital for mental health treatment. Mr.
Johns testified that he had to force the Defendant to go to
the hospital. Mr. Johns also testified that while they were
in the waiting room at the hospital, the Defendant told him
that he had " talked telepathically" to another
person in the waiting room. Mr. Johns testified that after
the Defendant's hospital stay and a few days staying at
his house, the Defendant started to act more normal. However,
a few weeks before the murder, the Defendant started to call
Mr. Johns a lot and wanted to talk about church. Mr. Johns
testified that he talked to the Defendant about the letter he
had sent Ms. Johns and that the Defendant was " very
adamant that those things had happened."
Colvett testified that he was the Defendant's son and
that Ms. McFarland was his mother. Chris testified that
" in the last couple [of] years" he had noticed the
Defendant acting strangely. According to Chris, the Defendant
started talking about God a lot and " threatening to
kick [his] butt over stuff that made sense to [the Defendant]
but not [him]." Chris recalled one occasion when the
Defendant " talked to [him] about God for over
[forty-five] minutes," and when Chris tried to
interrupt, the Defendant said he could either listen or they
could " go outside to the front yard." Chris
described the Defendant during this encounter as being "
[r]eal loud and erratic" and constantly moving.
testified that a week before the murder, the Defendant wanted
him to drive around town and look at real estate. Chris
testified that nothing that the Defendant " was saying
was making any bit of sense at all." The Defendant also
that Ms. Johns and Ms. McFarland were part of the TBI and
that they were " out to get him." Chris also
testified that he called the police on the night of the
murder and told them that the Defendant had a " hit
list" and that he was afraid the Defendant had killed
his psychologist. Chris admitted that the Defendant had
mentioned to him the possibility of getting a divorce from
the victim to him a year before the murder.
Colvett testified that he knew the Defendant had "
mental issues" for " [a]s long as [he could]
remember." James testified that the Defendant would talk
about ghosts and said that a ghost had told him to kill some
children with a knife. Ms. Coward testified that the
Defendant had told her that he " used to work for the
TBI." Ms. Coward also testified that she knew the
Defendant had been hospitalized for " mental
problems" and took medication. Ms. Gooch testified that
in 2011, the victim told her that the Defendant " was
having mental problems" and had been hospitalized. Ms.
Gooch also testified that the Defendant told her " that
his boss had a machine that controlled [his] thoughts,"
that the TBI had " bugged" his house, and that the
victim, Ms. Johns, and Mr. Johns were involved with the TBI
in a conspiracy to kill him. Ms. Gooch testified that, after
his hospitalization, the Defendant stopped talking about
these things and started behaving normally again.
The Defendant's Expert Evidence
Stephen A. Montgomery, an expert in forensic psychiatry,
testified that he evaluated the Defendant at defense
counsel's request. Dr. Montgomery testified that, in
evaluating the Defendant, he reviewed the Defendant's
medical and employment records; the discovery materials
provided by the State, including the Defendant's
statements to the police; and the Defendant's jail
records from the time of his arrest to trial. Dr. Montgomery
testified that he also did " some brief testing"
with the Defendant and interviewed the Defendant for
approximately three hours.
Montgomery testified that the Defendant suffered from "
longstanding" " paranoid-type delusions." Dr.
Montgomery explained that a delusion is a fixed false belief
and that the Defendant's delusions centered around his
belief that several people, including the victim and Ms.
McFarland, " had been trained by the TBI" to use
" supernatural powers" in a conspiracy to kill the
Defendant. These delusions also included the Defendant's
belief that the victim and Ms. McFarland " could stop
his heart and kill a person just by looking at him, or they
could shoot eye rays that would kill him." The Defendant
also believed that " he could communicate with people by
just looking at them" and that people could change the
color of their eyes to reflect their mood.
Montgomery testified that the Defendant told him during their
interview that the victim posed an immediate threat to his
life and that he had to kill her because " she was going
to kill him . . . right then and there with [her] eye
rays." Dr. Montgomery admitted that the Defendant had
not made any claims about the victim's using " eye
rays" on him in his statements to the police.
Nonetheless, Dr. Montgomery testified that what was "
most striking" to him about the Defendant's recorded
interview with Det. Braden was that the Defendant " was
very emotional, very excited, and very delusional." Dr.
Montgomery further testified that the Defendant's focus
on religion and sex immediately before and after the murder
was consistent with someone " in a manic state."
Montgomery testified that the Defendant's delusions
continued to persist despite
the passage of time and treatment with medication while he
was incarcerated. Dr. Montgomery found that the Defendant
" really didn't have insight into" his illness.
Dr. Montgomery testified that the Defendant " was
cooperative" during his interview " but kind of
just had a blank stare and really didn't show a whole lot
of emotion . . . just kind of flat." Dr. Montgomery
testified that the Defendant also made sense except when
discussing his delusions.
Montgomery testified that there was " no question [the
Defendant had] a severe mental disorder and [that it was] a
psychotic disorder." Dr. Montgomery noted that the
Defendant had been diagnosed with " bipolar disorder,
with a history of psychosis" in 2007. Dr. Montgomery
testified that he originally diagnosed the Defendant as
suffering from bipolar disorder. However, the persistent
nature of the Defendant's delusions, even when treated
with medication, and his consistent " flat
expressionless behavior" suggested to Dr. Montgomery
that the Defendant " may fit somewhere in between
schizophrenia and bipolar disorder." Dr. Montgomery
subsequently diagnosed the Defendant as having
schizoaffective disorder. Dr. Montgomery explained that this
meant the Defendant suffered from a combination of symptoms
from schizophrenia and bipolar disorder.
Montgomery opined that, at the time of the murder, the
Defendant was not able to appreciate the nature of his acts.
Dr. Montgomery testified that he believed the Defendant was
" acutely psychotic" when he murdered the victim,
that his delusions " were very intense," and that
the Defendant " felt that he was under duress or a
threat of being killed as a result of what he believed were
the powers that the victim had that she could kill . . . him
with her eyes, with rays." Dr. Montgomery concluded that
the Defendant could not " appreciate that he was killing
a regular human being." Instead, the Defendant, in Dr.
Montgomery's opinion, believed " that he was
defending himself against this person who had these
supernatural abilities that could kill him in an
instant." However, Dr. Montgomery admitted that the
Defendant, during their interview, stated that he knew "
he was killing somebody" when he stabbed the victim.
Montgomery also opined that, at the time of the murder, the
Defendant could not appreciate the wrongfulness of his
actions. Dr. Montgomery explained as follows:
. . . [A]t that moment . . . in [the Defendant's] mind he
[was] being attacked by someone he's felt persecuted by,
trained by law enforcement, has these other worldly
supernatural abilities to kill him, that he [was] striking
back to defend himself and that, in his mind, if someone is
about to kill you, that that would not be wrong because you
are just protecting yourself from being killed.
Montgomery further explained that he did not believe the
Defendant's attempt to clean the crime scene and hide the
victim's body demonstrated that the Defendant appreciated
the wrongfulness of his actions. Rather, Dr. Montgomery
opined that the Defendant was not thinking "
logically" but " realize[d] on some level that,
yeah, a lot of people [were] not going to believe
[him]." However, Dr. Montgomery admitted that the
Defendant, during their interview, had stated that he "
knew it was wrong to kill."
Montgomery further opined that the Defendant was unable to
form the requisite intent and premeditation needed to commit
premeditated first degree murder. In an attempt to give
context to his opinion, Dr. Montgomery explained that "
mostall mental disorders [are thought of] as having some
[connection to] problems with
the functioning of the brain." However, Dr. Montgomery
admitted that the technology did not exist to " take an
individual person and do a brain scan and then  make a
diagnosis." Dr. Montgomery concluded that the Defendant
was unable to form the requisite mental state because "
it was his very brain that [was] not working properly."
Montgomery testified that he did not believe the Defendant
was malingering, exaggerating his symptoms to avoid
punishment, because the Defendant performed well on a test
designed to detect malingering. Dr. Montgomery also asked the
Defendant about " other symptoms," and the
Defendant only answered " yes" to symptoms
consistent with Dr. Montgomery's diagnosis. As an
example, Dr. Montgomery testified that the Defendant said he
believed that the victim was " worshiping the
devil." When Dr. Montgomery asked if the Defendant heard
the voice of God telling him to kill the victim, the
Defendant said he did not. Dr. Montgomery noted that the
Defendant did poorly on some " tests of the memory and
concentration" and that he was " not really sure
why" because the Defendant showed no other signs of
The State's Rebuttal Evidence
Beth Wortham testified that she was a human resources
representative at the factory where the Defendant worked
prior to the victim's murder. Ms. Wortham testified that
the Defendant worked there for approximately twenty years as
a production technician. Ms. Wortham testified that on April
5, 2012, she had a meeting with the Defendant because he had
made " some disruptive comments on the [factory]
floor." The Defendant told Ms. Wortham that " his
wife wouldn't leave him alone; she always wanted to talk
to him and always wanted to kiss him. And he just wanted to
go to work and go home and relax." The Defendant
apologized, said " it wouldn't happen again,"
and that he had taken care of the problem the night before
" for about an hour and a half using psychology."
Ms. Wortham testified that the Defendant behaved normally
during the meeting, that she sent the Defendant back to work
after the meeting was over, and that she would not if she had
felt he was a threat to himself or to his coworkers.
Engum, Ph.D., a clincal psychologist and expert in forensic
psychology, testified that he examined the Defendant at the
State's request. Dr. Engum testified that, in evaluating
the Defendant, he reviewed the Defendant's medical and
psychiatric records; the police investigation file; the
Defendant's statements to the police; the Defendant's
employment records; and the Defendant's jail records as
well as recordings of the Defendant's telephone calls
made from jail. Dr. Engum also met with the Defendant for
sixteen hours to conduct an interview and psychological
Engum began his testimony by giving the jury an overview of
the Defendant's " psychiatric history." Dr.
Engum noted that the Defendant's medical records went
back to 2007 and that the " primary diagnosis for the
first few years" was bipolar disorder and "
routinely defined as mild." In the spring of 2011, the
Defendant was admitted to the hospital, and his diagnosis
changed to bipolar disorder, " severe with psychotic
features." However, the treating psychiatrist said
" in her discharge . . . that there was concern that the
real diagnosis was schizophrenia instead of a bipolar
disorder." Once the Defendant had been discharged from
the hospital, his primary care physician again diagnosed him
with bipolar disorder but " started considering an
alternate diagnosis of schizophrenia."
Dr. Engum testified that the Defendant's last diagnosis
before the murder was of bipolar disorder, " mild."
All but one of the bipolar diagnoses listed the " most
recent episode" as being " depressed."
Engum agreed with Dr. Montgomery's opinion that the
Defendant suffered from " a severe mental disease or
defect." Dr. Engum diagnosed the Defendant as suffering
from schizophrenia, noting that the Defendant's
statements to the police showed " undeniable"
" signs of delusions, misperceptions of reality."
However, Dr. Engum opined that the severity of the
Defendant's condition at the time of the offense was
" mild" and that the Defendant " firmly [had]
one foot in reality." Dr. Engum testified that while the
Defendant was delusional, he was not " so overwhelmed by
his mental illness that he [was] not aware of, in touch with,
his environment." Dr. Engum opined that the Defendant,
at the time of the murder, was able to appreciate the nature
of his acts and the wrongfulness of his conduct.
Engum testified that the Defendant was able to maintain
stable, long-term employment throughout his life. Dr. Engum
testified that this showed that the Defendant had suffered no
major manic or depressed phases that caused him to become
" dysfunctional." Dr. Engum noted that the week
before the murder the Defendant had said " some things
that were disturbing, troubling to his fellow
co-workers." The Defendant talked about the TBI being
" after him" and that the victim " was driving
him crazy and using reverse psychology on him." Dr.
Engum noted that while the Defendant's statements
evidenced his delusions, when the Defendant met with Ms.
Wortham " he appeared to have some awareness that he was
being disruptive, [and] was able to understand what he was
doing and appeared stable to them and they returned him to
the work place."
Engum testified that, after the murder, the Defendant went to
see his cousin James and was " speaking rapidly"
with " disjointed thoughts[,] . . . jumping from one
topic to the next" and appeared " anxious."
Again this reflected the Defendant's mental disease, but
Dr. Engum noted that the Defendant asked James to help him
dispose of the body without telling him who it was he had
killed. Dr. Engum further noted that the Defendant also did
not tell James that he had acted in self-defense. Dr. Engum
testified that this caused him to question whether the
Defendant " was really operating within the context of
[a] delusional state." Additionally, Dr. Engum testified
that the Defendant's statement that he made sure no one
was watching when he moved the body was an " indication
that he knew what he was doing was wrong."
Engum likewise noted that the Defendant said nothing to Cpl.
Sanders about his delusions when Cpl. Sanders performed a
welfare check at the Defendant's house. Dr. Engum took
special note of this because the LPD " were not included
in [the Defendant's] delusional mindset." Put
another way, the Defendant did not believe that the LPD were
part of the conspiracy to kill him. Dr. Engum concluded from
this that the Defendant was " not operating within a
delusional [mind]set that [was] so overwhelming [to] his
judgment, his awareness, that he [was] incapable of knowing
right from wrong." Rather, this suggested to Dr. Engum
that the Defendant was attempting to conceal his crime
because he understood the wrongfulness of his actions.
Engum noted that early Sunday morning, the Defendant was able
to drive to Walmart to buy cleaning supplies and stood "
very calmly at the checkout." Dr.
Engum also noted that later that day, the Defendant "
played games" with the victim's family by pretending
not to know what had happened to the victim and "
misleading those around him." Dr. Engum testified that
during the Defendant's interactions with the police that
day, " there [was] evidence of a severe delusional
disorder." Dr. Engum pointed out, however, that while
the Defendant was in the back of Cpl. Teal's patrol car,
he was " sitting up, responsive, attentive, looking,
[and] inspecting." Dr. Engum further noted that the
Defendant " was responsive" to Det. Braden's
interview questions and gave " reasonably appropriate
answer[s]." This led Dr. Engum to conclude that "
the symptoms [of the Defendant's mental disease at the
time] were at best mild" and that " he was not so
disturbed that he was unable to appreciate the wrongful[ness
of his] actions."
Engum testified that during his interview with the Defendant,
he asked the Defendant on three separate occasions if the
Defendant knew, at the time of the murder, that killing the
victim was wrong. Dr. Engum testified that the Defendant
answered " yes" every time and that his answer was
the same when asked by Dr. Montgomery. Dr. Engum testified
that he gave the Defendant several psychological and
cognitive tests. According to Dr. Engum, the results were
consistent with the Defendant's schizophrenia being
" in that mild level" that had been previously
reported in the Defendant's medical records. Dr. Engum
further testified that his testing showed the Defendant's
manic " scale" was " not elevated." Dr.
Engum added that the Defendant's jail records showed that
the Defendant was " presenting no behavioral problems
[and] no sign of psychosis" during his incarceration.
Dr. Engum testified that he believed that the Defendant had
malingered on the cognitive testing because the results
showed him " in the mildly retarded range" when
there was no other evidence to suggest those results.
Engum disagreed with Dr. Montgomery's characterization of
the Defendant's behavior around the time of the murder as
a manic episode. Dr. Engum explained that manic meant "
this hyperactive, excited, agitated, disorganized, mind
racing a thousand miles an hour, [an] individual who is just
scattered all over the place." Dr. Engum testified that
people " who are acutely and severely manic . . . will
go for days without sleep." Dr. Engum testified that the
fact the Defendant slept so much that Sunday " totally
contradicts" the notion he was in a manic state. Dr.
Engum further testified that manic phases do not turn "
on and off like a light switch" and that the Defendant
would have been symptomatic " for days if not
weeks" if he had been in a manic state. Dr. Engum "
disagreed very strongly" with Dr. Montgomery's
assertions that the Defendant could have been in a manic
state " in his mind" without any outward signs.
upon the foregoing, the jury rejected the Defendant's
defense of insanity and convicted him of premeditated first
degree murder. The trial court sentenced the Defendant to
life imprisonment with the possibility of parole. The
Defendant filed a timely motion for new trial, which the
trial court denied. This appeal followed.
Defendant contends that the jury erred by rejecting his
defense of insanity. The Defendant's argument is,
essentially, that the State failed to rebut Dr.
Montgomery's testimony that the Defendant did not
appreciate the nature and the
wrongfulness of his conduct at the time of the murder. The
Defendant argues that Dr. Engum was not qualified to give an
opinion as to those issues. The Defendant further
argues that only medical doctors can opine as to whether a
person can appreciate the nature and wrongfulness of his
conduct because " brain functions  can actually be
seen and quantified by medical doctors." The State
responds that Dr. Engum was a qualified expert in forensic
psychology and that his opinions, along with other evidence
given at trial, were sufficient to rebut the Defendant's
Code Annotated section 39-11-501 provides as follows:
(a) It is an affirmative defense to prosecution that, at the
time of the commission of the acts constituting the offense,
the defendant, as a result of a severe mental disease or
defect, was unable to appreciate the nature or wrongfulness
of the defendant's acts. Mental disease or defect does
not otherwise constitute a defense. The defendant has the
burden of proving the defense of insanity by clear and
(b) As used in this section, mental disease or defect does
not include any abnormality manifested only by repeated
criminal or otherwise antisocial conduct.
(c) No expert witness may testify as to whether the defendant
was or was not insane as set forth in section (a). Such
ultimate issue is a matter for the trier of fact alone.
appeal, this court will " reverse a jury verdict
rejecting the insanity defense only if, considering the
evidence in the light most favorable to the prosecution, no
reasonable trier of fact could have failed to find that the
defendant's insanity at the time of the offense was
established by clear and convincing evidence."
State v. Flake, 88 S.W.3d 540, 554 (Tenn. 2002). As
such, " [w]here the proof is contested, appellate courts
should rarely reverse a jury's rejection of the insanity
defense under this deferential standard of review."
Id. at 556. This standard is similar " to the
familiar sufficiency standard which appellate courts"
apply when reviewing the sufficiency of the convicting
evidence. Id. at 554.
the State " is required to prove all essential elements
of a crime beyond a reasonable doubt, sanity is not an
element of a crime." State v. Holder, 15 S.W.3d
905, 911 (Tenn.Crim.App. 1999). Section 39-11-501 "
places the burden of establishing this affirmative defense
squarely on the defendant." Flake, 88 S.W.3d at 554. To
that end, our supreme court has " explicitly reject[ed]
the notion that the State must rebut defense proof of
insanity with substantial evidence." Id. The
State may counter the defendant's proof " by
contrary expert testimony, lay witnesses, or vigorous
cross-examination designed to undermine the credibility of
the defense expert." Id.
In determining whether a defendant is insane, a jury is
entitled to consider all the evidence offered, including
the facts surrounding the crime, the testimony of lay
witnesses, and expert testimony." Flake, 88 S.W.3d at
556. The jury is to determine the weight and value to be
given to expert testimony regarding the defendant's claim
of insanity. Id. at 554. " Where there is a
conflict in the evidence, the trier of fact is not required
to accept expert testimony over other evidence and must
determine the weight and credibility of each in light of all
the facts and circumstances of the case." Id.
The jury " may not arbitrarily ignore [expert]
evidence," but it is " not bound to accept the
testimony of experts where the evidence is contested."
Id. at 556.
example, in State v. Holder, this court upheld a
trial court's rejection of the insanity defense despite
the fact that both of the experts who testified at trial
opined that the defendant was unable to appreciate the
wrongfulness of his conduct. 15 S.W.3d at 910, 912. Instead,
the trial court " relied primarily, upon the actions and
words of the defendant before, at and after the commission of
the offense." Id. at 912. The trial court
" relied heavily on [the] defendant's
statement" to the police in which he " acknowledged
that he knew killing 'was wrong.'" Id.
at 910. The trial court also relied upon the defendant's
later attempts to provide " some justification" or
excuse for his having killed the victim. Id.
Additionally, the trial court relied on the defendant's
refusal to drive on a suspended license " as indicative
of his appreciation for the difference between lawful and
in State v. Flake, our supreme court upheld a
jury's rejection of the insanity defense despite the fact
that four expert witnesses testified at the trial that the
defendant was unable to appreciate the wrongfulness of his
conduct. 88 S.W.3d at 544-48, 556-57. Another expert opined
that the defendant was able to appreciate the wrongfulness of
his conduct but felt morally justified in his actions.
Id. at 547. However, our supreme court noted that
" the facts surrounding the offense suggest[ed] the
defendant realized his conduct was wrongful."
Id. at 556. These facts included that the defendant
shot only the victim, fled after the shooting, "
appeared to realize he had committed a crime," and
exhibited " no bizarre behavior." Id.
there is no doubt that the Defendant suffered from a severe
mental disease. However, Dr. Montgomery and Dr. Engum were in
conflict as to whether the Defendant could appreciate the
nature and wrongfulness of his conduct. Dr. Engum pointed to
several facts regarding the Defendant's actions before
and after the murder to support his opinion that the
Defendant did appreciate the nature and wrongfulness of his
conduct. Dr. Engum noted that the Defendant's illness had
been consistently classified as " mild" both before
and after the murder, and that the Defendant was able to hold
long-term, steady employment throughout his life suggesting
that the Defendant had suffered no major manic or depressive
phases. Additionally, when the Defendant met with Ms. Wortham
" he appeared to have some awareness that he was being
disruptive, [and] was able to understand what he was
Engum also focused on the fact that the Defendant attempted
to conceal the victim's body and clean up the crime scene
as evidence that he understood what he had done was wrong.
Specifically, Dr. Engum noted that the Defendant concealed
the identity of his victim when he asked his cousin James to
help him dispose of the body and said nothing to Cpl. Sanders
during the welfare check the night of the murder about the
victim's alleged attack on him. Dr. Engum found the
Defendant's actions towards Cpl. Sanders particularly
persuasive because the Defendant repeatedly asserted that the
LPD was not a part of the conspiracy to kill him and that he
was planning to report the victim's death to the LPD. Dr.
Engum also noted that, the next day, the Defendant "
played games" with Ms. Coward, Ms. Gooch, and Cpls. Teal
and Christmas by telling them that the victim was alive that
morning and that he did not know where she was.
Defendant repeatedly stated during his interview with Det.
Braden that he regretted killing the victim and was upset
about her death. More importantly, the Defendant told both
Dr. Montgomery and Dr. Engum that he understood that he had
killed the victim and that doing so was wrong. Dr. Engum
disagreed with Dr. Montgomery's assessment that the
Defendant was in a manic state during the murder, noting that
video from both early Sunday morning and Sunday afternoon
showed the Defendant behaving " very calmly."
Likewise, Dr. Engum found that the Defendant's excessive
sleeping on Sunday was in direct conflict with the
Defendant's being in a manic state. Accordingly, we
conclude that Dr. Engum's testimony, along with the
evidence regarding the Defendant's behavior before and
after the murder, was sufficient to rebut Dr.
Montgomery's opinion that the Defendant did not
understand the nature and wrongfulness of his conduct.
Defendant's argument that only medical doctors can opine
as to whether a person can appreciate the nature and
wrongfulness of his conduct and that Dr. Engum was not
qualified to give an opinion on those issues misinterprets
Dr. Montgomery's testimony at trial. Dr. Montgomery did
not testify, as the Defendant argues, that " brain
functions  can actually be seen and quantified by medical
doctors." Rather, Dr. Montgomery testified that there
was a general consensus that " most all mental disorders
[are thought of] as having some [connection to] problems with
the functioning of the brain" but that the technology
did not exist to " take an individual person and do a
brain scan and then  make a diagnosis." As such, there
was no testimony that any tests were performed on the
Defendant's brain or that any of his " brain
functions" had been " seen and quantified" by
Dr. Montgomery and Dr. Engum were well-qualified experts in
their respective fields of forensic psychiatry and forensic
psychology, and both were qualified to give their opinions as
to whether the Defendant could appreciate the nature and
wrongfulness of his conduct. There being a conflict in the
evidence between Dr. Montgomery and Dr. Engum's expert
opinions, we will not disturb the jury's verdict.
Accordingly, we conclude that the record supports the
jury's rejection of the Defendant's insanity defense.
Witnesses' Prior Statements
Defendant contends that the trial court erred by not allowing
defense counsel to take home, during the trial, written
statements made by Ms. Gooch and by not admitting extrinsic
evidence of prior written statements made by Mr. Coward and
Ms. Gooch. The Defendant argues that the trial court's
refusal to allow defense counsel to take home Ms. Gooch's
statements " demonstrates the unbalanced field that
existed the entire trial." The Defendant also argues
that Mr. Coward and Ms. Gooch's statements were
admissible because they " were written by the witnesses
and identified by them" and " would have impeached
and embellished their testimony." The State responds
that the Defendant has waived these issues by failing to cite
in his brief to any legal authority to support his argument.
trial, the State provided to the Defendant prior written
statements made by Mr. Coward and Ms. Gooch pursuant to
Tennessee Rule of Criminal Procedure 26.2, commonly referred
to as the Jencks rule. Both Mr. Coward and Ms. Gooch
identified their statements and admitted to making them. The
Defendant sought admission of the statements, which the trial
court denied. Instead, the statements were marked for
identification only. Ms. Gooch was called as a witness late
in the afternoon, and the trial court adjourned for the day
during the Defendant's cross-examination of Ms. Gooch.
After the jury left the courtroom, the Defendant was allowed
to extensively voir dire Ms. Gooch about her prior written
statements. Then the following exchange occurred:
[Defense counsel]: . . . I want to take [Ms. Gooch's
statements] with me tonight.
. . . .
[Trial court]: I have already ruled on that. So you and [the
prosecutor] are going to stay here until midnight for you to
read any Jencks material you want to read. They won't be
copied at this point in time.
[Defense counsel]: I'd take it to prepare for
[Trial court]: I am not going to allow it.
[Defense counsel]: Thank you.
[Trial court]: You had indicated you had asked the questions
you were going to ask her.
[Defense counsel]: About this.
[Trial court]: Yeah, about what you are trying to take home,
[Defense counsel]: I may not be finished.
[Trial court]: You can take it back up. When you get here in
the morning, we will hand it to you and you can just ask all
the questions you want . . . .
next morning, the Defendant concluded his cross-examination
of Ms. Gooch and questioned her extensively about her prior
agree with the State that the Defendant has waived full
appellate review of these issues. The Defendant failed to
include these issues in his motion for new trial. See Tenn.
R. App. P. 3(e) (stating that " no issue presented for
review shall be predicated upon error in the admission or
exclusion of evidence. . . or [a] ground upon which a new
trial is sought, unless the same was specifically stated in a
motion for new trial" ). Additionally, the Defendant has
failed to supply any citations to legal authorities to
support his contentions. See Tenn. Ct. Crim. App. R. 10(b)
(" Issues which are not supported by argument, citation
to authorities, or appropriate references to the record will
be treated as waived in this court." ). Due to the
Defendant's waiver of these issues, we examine the issues
solely to determine whether plain error review is
doctrine of plain error only applies when all five of the
following factors have been established:
(a) the record must clearly establish what occurred in the
(b) a clear and unequivocal rule of law must have been
(c) a substantial right of the accused must have been
(d) the accused must not have waived the issue for tactical
(e) consideration of the error must be " necessary to do
State v. Page, 184 S.W.3d 223, 230-31 (Tenn. 2006)
(quoting State v. Terry, 118 S.W.3d 355, 360 (Tenn.
2003)) (internal brackets omitted). " An error would
have to [be] especially egregious in nature, striking at the
very heart of the fairness of
the judicial proceeding, to rise to the level of plain
error." Id. at 231.
error review is not appropriate regarding the trial
court's refusal to allow defense counsel, during trial,
to take home Ms. Gooch's statements because the Defendant
has failed to establish that a substantial right of his was
adversely affected. Defense counsel was given Ms. Gooch's
statements pursuant to Tennessee Rule of Criminal Procedure
26.2, reviewed the statements, and was allowed to extensively
voir dire her about the statements. The next morning, Ms.
Gooch was extensively cross-examined about her statements.
Additionally, the trial court allowed defense counsel to
remain in the courtroom to review the statements for as long
as he needed after it had adjourned for the day.
error review is also not appropriate regarding the trial
court's refusal to admit extrinsic evidence of Mr. Coward
and Ms. Gooch's prior written statements because the
Defendant has failed to establish that a clear and
unequivocal rule of law has been breached. It is well
established that while a witness may be impeached with a
prior inconsistent statement, " [e]xtrinsic evidence of
a prior inconsistent statement remains inadmissible when a
witness unequivocally admits to having made the prior
statement." State v. Martin, 964 S.W.2d 564,
567 (Tenn. 1998). Here, both Mr. Coward and Ms. Gooch
unequivocally admitted to making their statements.
Accordingly, we conclude that plain error review is not
warranted and that these issues are without merit.
Defendant contends that the State failed to disclose
exculpatory evidence as required by Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215
(1963). The Defendant argues that the State " hid"
a human resources report and statements from several of the
Defendant's co-workers regarding " work
incidents" that demonstrated the Defendant's "
severe mental problems" two days before the murder. The
State responds that the evidence in question was not Brady
material and that the Defendant was not prejudiced by its
failure to disclose the evidence prior to trial.
close of the State's proof, the Defendant moved for a
mistrial arguing that the reports of the State's expert
witnesses, Dr. Engum and Bruce Seidner, Ph.D., both
referenced a human resources report from the Defendant's
employer regarding an " incident," but that the
State had failed to disclose this report to the Defendant.
The State responded that " several employees" from
the Defendant's employer were included on a witness list
provided a year before trial and that Ms. Wortham's name
was disclosed on a supplemental discovery response. The State
further responded that Dr. Engum's report was provided to
the Defendant six months before trial and that it referred to
the human resources report and the workplace incidents.
Additionally, the State noted that Dr. Seidner's report
was provided to the Defendant several weeks before trial and
contained the same references as Dr. Engum's report.
trial court ordered the State to provide the human resources
report, which had attached to it statements from several of
the Defendant's co-workers, to the Defendant. Defense
counsel and Dr. Montgomery then reviewed the report and the
statements. After they finished reviewing the report, the
State noted that all of the employees at issue were under
subpoena. The trial court allowed defense counsel to meet
with and interview those employees that night to decide if he
wanted to call them as witnesses. Dr. Montgomery testified
the next day that he had used the report and statements in
forming his expert opinion. The Defendant did not call as
witnesses any of the employees named in the report or the
statements. Ms. Wortham testified during rebuttal for the
State and was cross-examined regarding the Defendant's
statements contained in the report and other employees'
order to ensure a defendant's constitutional right to a
fair trial, the State must provide the defendant with
exculpatory evidence that is either material to guilt or
relevant to punishment. State v. Ferguson, 2 S.W.3d
912, 915 (Tenn. 1999). This also includes evidence which
could be used to impeach the State's witnesses.
Johnson v. State, 38 S.W.3d 52, 56 (Tenn. 2001).
However, the State is not required to disclose "
information that the accused already possesses or is able to
obtain, or information which is not possessed by or under the
control of the prosecution or another governmental
agency." State v. Marshall, 845 S.W.2d 228, 233
(Tenn.Crim.App. 1992) (internal citations omitted). "
When exculpatory evidence is equally available to the
prosecution and the accused, the accused 'must bear the
responsibility of [his] failure to seek its
discovery.'" Id. (quoting United States
v. McKenzie, 768 F.2d 602, 608 (5th Cir. 1985))
(brackets in original).
court has recently noted as follows:
Brady obviously does not apply to information that is not
wholly within the control of the prosecution. There is no
Brady violation where a defendant knew or should have known
the essential facts permitting him to take advantage of any
exculpatory information, or where the evidence is available .
. . from another source, because in such cases there is
really nothing for the government to disclose.
Berry v. State, 366 S.W.3d 160, 179-80
(Tenn.Crim.App. 2011) (quoting Owens v. Guida, 549
F.3d 399, 415 (6th Cir. 2008)) (ellipsis in original).
the report and statements at issue were created by the
Defendant's employer and not the State or an entity of
the State. As such, the evidence was obtainable
from another source. Furthermore, the State included the
names of several of the Defendant's co-workers in a
witness list provided to the Defendant a year before trial,
and the report and incident were referenced in both Dr. Engum
and Dr. Seidner's expert reports. Defense counsel was
able to review the report and employees' statements,
interview the employees, and was given the option to call
them as witnesses. Dr. Montgomery reviewed the report and
statements and testified that he used the evidence in forming
his expert opinion. Lastly, Ms. Wortham was cross-examined by
the Defendant about the incident and the employees'
statements. Accordingly, we concluded that there was no Brady
violation and that this issue is without merit.
Request for Transcripts
Defendant contends that the trial court erred by refusing to
him with a transcript of a prior hearing in this case. The
Defendant argues that, due to his indigence, he was entitled
to " a partial transcript of a previous hearing wherein
experts for both the State and Defendant testified about his
mental condition." The Defendant further argues that he
needed the transcript " to prepare for upcoming expert
testimony" and to prepare for cross-examination of the
State's expert, Dr. Engum. The State responds that the
Defendant has " not state[d] a proper basis for
before trial, the Defendant filed a motion to be declared
indigent along with affidavits to support the motion, in
order to pay for Dr. Montgomery's services as an expert
witness. The State opposed the motion and requested a hearing
on the Defendant's indigence, suggesting that the
Defendant had access to greater assets than alleged in the
affidavits. The Defendant then withdrew his motion and agreed
to pay Dr. Montgomery's fee " privately."
During a break in the trial, defense counsel stated that he
had " asked the wonderful court reporter to do some work
over the weekend" and that she had asked if he "
was going to pay her for that." Defense counsel stated
that it was his view " that the [D]efendant is
indigent[; ] . . . therefore, he is entitled to that
transcript." Defense counsel added that he was "
making that request before the [c]ourt. [The Defendant]
doesn't have any money with which to pay" for the
trial court responded to defense counsel's request saying
that it would not order the court reporter " to work for
nothing on that over the weekend. If you want something
expedited, you will have to pay for it. Then we can fuss over
who ultimately is going to pay for it." Later, defense
counsel objected that the State was using a transcript of Dr.
Montgomery's testimony from a pretrial hearing during its
cross-examination of Dr. Montgomery when the Defendant was
" denied" a transcript of the hearing. Defense
counsel stated that he " wanted the transcript of Dr.
Seidner['s testimony]" and was " denied."
The trial court pointed out that " no one has kept you
from purchasing one" and that defense counsel raised the
issue " in the middle of a trial" when he had
" ample opportunity to ask for that before" the
trial. The trial court also pointed out that Dr. Seidner had
not testified at trial.
counsel argued with the trial court that " it is not
incumbent upon defense counsel to pay for expenses of
litigation when the defendant is indigent." The trial
court asked if there was " an adjudication that [the
Defendant] was indigent? He has hired counsel." Defense
counsel responded that " there are affidavits in the
record of his indigency." The State responded that a
request was made before " the prior judge" and that
the Defendant had withdrawn the request. The trial court
responded, " That was before I was in it, so I don't
think I have been asked to resolve that. I don't feel I
am being asked to provide any relief today, so let's get
the jury back in." The Defendant did not raise the issue
Tennessee, " an indigent defendant in a criminal
prosecution must be provided with the tools of an adequate
defense or appeal when those tools are available for a price
to other defendants." State v. Elliott, 524
S.W.2d 473, 475 (Tenn. 1975). Generally included in these
basic tools is " a free transcript of prior proceedings
in the indigent defendant's own case, where the
transcript [is] needed to vindicate a legal right."
Id. at 476; see also Tenn. Code Ann. § §
40-14-309, -312. However, the decision to provide a
transcript is within the discretion of the trial court and
" there is no positive duty to
furnish transcripts of prior proceedings." Bowers v.
State, 512 S.W.2d 592, 594 (Tenn.Crim.App. 1974). In
determining need, courts should look to " (1) the value
of the transcript to the defendant in connection with the . .
. trial for which it is sought, and (2) the availability of
alternative devices that would fulfill the same functions as
a transcript." Elliott, 524 S.W.2d at 476 (quoting
Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct.
431, 30 L.Ed.2d 400 (1971)).
court has previously acknowledged that a defendant who is not
indigent at the outset of trial may later find himself
indigent, for example on appeal. See State v.
Draper, 800 S.W.2d 489 (Tenn.Crim.App. 1990). In such
cases, the defendant may " file a motion with the clerk
of the trial court seeking the entry of an order declaring
him indigent, appointing counsel to represent him, and
providing for the transcription of the evidence and
proceedings relevant to the issues which will be presented to
the appellate court for review." Id. at 495.
Here, the Defendant was not indigent at the start of the
proceedings, but he filed a motion to be declared indigent a
year before trial. The Defendant withdrew the motion when it
was challenged by the State. When the Defendant requested a
transcript of Dr. Seidner's pretrial testimony, he did
not file a new motion to be declared indigent with updated
financial information, choosing instead to rely on the
challenged, year-old affidavits which the trial court had not
reviewed. As such, the Defendant was not indigent and not
entitled to the transcript of Dr. Seidner's testimony for
even if the Defendant had been indigent at the time of his
request, he has failed to show that the trial court abused
its discretion in denying the request. The Defendant "
has the burden in this [c]ourt of showing that the transcript
was needed to vindicate a legal right." State v.
West, 767 S.W.2d 387, 402 (Tenn. 1989). Dr. Seidner did
not testify at trial, and the Defendant has failed to
demonstrate how he would have used the transcript at trial,
beyond his conclusory statements that he needed it " to
prepare for upcoming expert testimony" and to prepare
for cross-examination of the State's expert, Dr. Engum.
Further, the Defendant has made no attempt " to
articulate how he could have used" Dr. Seidner's
pretrial testimony " for impeachment purposes at trial
if the transcript had been available." Id.
Accordingly, we conclude that this issue is devoid of merit.
Prosecutorial Misconduct During Cross-Examination
Defendant contends that the State committed prosecutorial
misconduct during the cross-examination of Dr. Montgomery.
The Defendant alleges that Dr. Montgomery " choked-up,
broke down, hid his face, could not speak, and began to cry
uncontrollably" when the prosecutor " pressed him
about his father's last days and death from cancer."
The Defendant argues that there " was no purpose for
this improper and insensitive questioning" and that
" it was highly prejudicial" to him. The State
responds that the Defendant has waived this issue by failing
to cite in his brief any legal authority to support his
argument. The Defendant replies that the " issue was
sufficiently briefed and argued" in his original brief.
the cross-examination of Dr. Montgomery, the following
[Prosecutor]: You have told the ladies and gentlemen of the
jury that you teach at Vanderbilt.
[Dr. Montgomery]: Yes
[Prosecutor]: Is that correct?
[Dr. Montgomery]: Correct.
[Prosecutor]: When you left the two hospitals - - I guess
Washington state, Tacoma, Washington - - is that right?
[Dr. Montgomery]: Correct.
[Prosecutor]: - - is the last hospital you left. You went
from there to where?
[Dr. Montgomery]: Well, I came back home to Clarksville to
take care of my father, who was dying with cancer.
[Prosecutor]: I'm sorry. But you came back home. You
handled that situation appropriately, I am sure. And I
apologize for bringing that up to you. But I am talking about
where did you go to work next?
[Dr. Montgomery]: (no audio response.)
[Prosecutor]: I know exactly how you feel. I just recently
lost my mother, so I know what you are saying.
[Trial court]: Would you like a break?
[Dr. Montgomery]: (Indicates in the affirmative.)
[Trial court]: Why don't you just step directly back
there. There is a way out into the hall.
(Dr. Montgomery stepped out of the courtroom. [Defense
counsel] went to check on him.)
(Witness resumed the stand.)
[Trial court]: All right, General.
[Prosecutor]: Thank you, Judge. What I was getting to,
Doctor, is that your next employment after Tacoma,
Washington, was where?
[Dr. Montgomery]: At Vanderbilt University.
agree with the State that the Defendant has waived full
appellate review of this issue. The Defendant failed to raise
a contemporaneous objection during the State's
cross-examination of Dr. Montgomery. See Tenn. R. App. P.
36(a) (stating that " [n]othing in this rule shall be
construed as requiring relief to be granted to a party
responsible for an error or who failed to take whatever
action was reasonably available to prevent or nullify the
harmful effect of an error" ). Likewise, the Defendant
failed to include this issue in his motion for new trial. See
Tenn. R. App. P. 3(e) (stating that " no issue presented
for review shall be predicated [on] . . . [a] ground upon
which a new trial is sought, unless the same was specifically
stated in a motion for new trial" ). Additionally, the
Defendant has failed to supply any citations to legal
authorities to support his argument. See Tenn. Ct. Crim. App.
R. 10(b) (" Issues which are not supported by argument,
citation to authorities, or appropriate references to the
record will be treated as waived in this court." ). Due
to the Defendant's waiver of this issue, we examine the
issue solely to determine whether plain error review is
error review of this issue is not appropriate here because
the Defendant has failed to establish that " a clear and
unequivocal rule of law" has been breached. Page, 184
S.W.3d at 230. " The interrogation of all witnesses
should be conducted fairly, objectively, and with due regard
for the dignity and legitimate privacy of the witness, and
without seeking to intimidate or humiliate the witness
unnecessarily." ABA Standards for Criminal Justice,
Prosecution Function std. 3-5.7(a) (3d ed. 1993). The record
belies the Defendant's assertion that the prosecutor
" pressed [Dr. Montgomery] about his father's last
days and death from cancer." Rather, the prosecutor
simply asked Dr. Montgomery where he went after he left his
job in Tacoma, Washington, and Dr. Montgomery responded that
he moved back to Tennessee to take care of his father and was
overcome with emotion. There is simply nothing in the record
to suggest that the prosecutor's actions were
intended to harass, intimidate, or degrade Dr. Montgomery.
See State v. Salamon, 287 Conn. 509, 949 A.2d 1092,
1131 (Conn. 2008) (finding prosecutorial misconduct where
" gratuitous use of sarcasm" was used by the
prosecutor to " mock and belittle" a witness);
State v. Adams, 335 N.C. 401, 439 S.E.2d 760, 766-67
(N.C. 1994) (finding prosecutorial misconduct where the
prosecutor repeatedly tapped a stick on the side of the
witness stand " for the purpose of irritating or
provoking a witness" ). Accordingly, we conclude that
this issue lacks any merit.
Waiver of Right to Testify
Defendant contends that the trial court erred by questioning
him about his decision not to testify at trial. The Defendant
argues that this questioning, out of the presence of the
jury, " required him to 'testify'" against
his will. The State responds that the Defendant has waived
this issue by failing to cite in his brief any legal
authority to support his argument. The Defendant replies that
the " issue was sufficiently briefed and argued" in
his original brief.
the trial, defense counsel asserted that the Defendant was
not competent " to assist counsel in any regard with
regard to defending himself" despite the fact that Dr.
Montgomery and Dr. Seidner both found the Defendant competent
to stand trial. As a result, the trial court had a lengthy
discussion with the prosecutors and defense counsel about
questioning the Defendant regarding his decision whether to
testify at trial. At the close of the Defendant's proof,
the trial court questioned the Defendant about his right to
testify, if he had consulted his attorney about the decision,
and whether he wanted to testify at trial. The Defendant
responded that he did not and that it was a " free and
voluntary decision." At no point did the Defendant
object to this procedure.
agree with the State that the Defendant has waived full
appellate review of this issue. The Defendant failed to raise
a contemporaneous objection during the trial court's
questioning. See Tenn. R. App. P. 36(a) (stating that "
[n]othing in this rule shall be construed as requiring relief
to be granted to a party responsible for an error or who
failed to take whatever action was reasonably available to
prevent or nullify the harmful effect of an error" ).
Likewise, the Defendant failed to include this issue in his
motion for new trial. See Tenn. R. App. P. 3(e) (stating that
" no issue presented for review shall be predicated [on]
. . . [a] ground upon which a new trial is sought, unless the
same was specifically stated in a motion for new trial"
). Additionally, the Defendant has failed to supply any
citations to legal authorities to support his argument. See
Tenn. Ct. Crim. App. R. 10(b) (" Issues which are not
supported by argument, citation to authorities, or
appropriate references to the record will be treated as
waived in this court." ). Due to the Defendant's
waiver of this issue, we examine the issue solely to
determine whether plain error review is appropriate.
error review of this issue is not appropriate here because
the Defendant has failed to establish that " a clear and
unequivocal rule of law" has been breached. Page, 184
S.W.3d at 230. Typically, defense counsel should question the
defendant in a jury out hearing " to establish on the
record that the defendant has personally made a knowing,
intelligent, and voluntary waiver" of the right to
testify and " the trial judge should play no role in
this procedure." State v. Rimmer, 250 S.W.3d
12, 27-28 (Tenn. 2008) (citing Momon v. State, 18
S.W.3d 152, 162 (Tenn. 1999)). However, " when defense
counsel fails to adequately obtain a waiver  the
trial judge should intervene." Id. at 28 n.4
(citing Momon, 18 S.W.3d at 162). Here, defense counsel
repeatedly stated his concerns that the Defendant could not
participate in his defense and made no request for a Momon
hearing. As such, the trial court's questioning of the
Defendant was not error. Furthermore, the Defendant has
failed to establish that a substantial right of his was
adversely affected. Page, 184 S.W.3d at 230. The Defendant
argues that the trial court's questioning " required
him to 'testify'" ; however, the Defendant
ultimately did not testify at trial. Accordingly, we conclude
that this issue is without merit.
Prosecutorial Misconduct During Closing Argument
Defendant contends that the State committed prosecutorial
misconduct during its closing argument by commenting on his
decision not to testify. The Defendant argues that the
prosecutor's statement, " I don't know because
we don't have any proof; nobody to talk to" was an
improper comment on his decision not to testify. The
Defendant asserts that the prosecutor " walked
deliberately to the defense table, very close to [the
Defendant] and directly in front of him and stared directly
at him" when making the statement. The State responds
that the prosecutor's comment did not refer to the
Defendant's silence, " but to the lack of
his closing argument, the prosecutor was discussing Cpl.
Sanders's welfare check at the Defendant's home on
the night of the murder. The prosecutor stated as follows:
[Cpl. Sanders] remembered that [the Defendant] had a set of
keys in his hand.
Now, I don't know because we don't have any proof;
nobody to talk to; I don't know how long because what you
didn't know when [Cpl. Sanders] was standing there or
sitting there in front of you is that the [D]efendant had
been to Mount Pleasant, Tennessee to see his cousin James
Colvett sometime between 8:00 and 8:30 p.m. We know it is a
[thirty-five] to [forty-five] minute roughly minute drive at
least from where he lives in Mount Pleasant to the
I don't know how long he had been back from there. I
don't know what else he was getting ready to do. But we
know he had keys in his hand when he was going down [to
answer the door] . . . .
prosecutor then went on to continue his discussion of Cpl.
Sanders's interaction with the Defendant.
conclusion of the prosecutor's closing argument, the
Defendant moved for a mistrial arguing that the
prosecutor's statement, " I don't know because
we don't have any proof; nobody to talk to" was an
improper comment on his decision not to testify. The trial
court reviewed the transcript of the argument and found
" there [was] no reference to his failure to
testify" and that it " could not find anything that
was commenting on the failure of this defendant to
testify" in the remainder of the State's argument.
The trial court made the same findings at the motion for new
trial hearing. When defense counsel raised the issue of the
prosecutor's making the comment " right in front of
the [D]efendant," the trial court noted that he "
was right in front of the jury" and that it was a small
courtroom. The trial court further noted that " [t]here
were no hand gesture[s]. He wasn't pointing at the
[D]efendant or anything."
outset, we note that the Defendant included only a small
excerpt of the State's closing argument in the appellate
record. The appellant bears the burden of having a transcript
prepared such " as is necessary to convey a fair,
accurate and complete account of what transpired with respect
to those issues that are the bases of appeal." Tenn. R.
App. P. 24(b). Failure to include the necessary transcripts
for our review forces this court to " conclusively
presume that the ruling of the trial judge was correct."
State v. Draper, 800 S.W.2d 489, 493 (Tenn.Crim.App.
1990). As such, we must presume that the trial court's
statements in ruling on the Defendant's motion for a
mistrial and at the motion for new trial hearing were correct
and that there were no other references made by the
prosecutor regarding the Defendant's decision not to
testify at trial.
the Defendant has not included any affidavits or other
evidence in the record to support his assertion that the
prosecutor " walked deliberately to the defense table,
very close to [the Defendant] and directly in front of him
and stared directly at him" when making the statement at
issue. " Mere statements of counsel, which are not
appropriate proffers or not effectively taken as true by the
parties, cannot establish what occurred in the trial court
unless supported by evidence in the record." State
v. Thompson, 832 S.W.2d 577, 579 (Tenn.Crim.App. 1991);
see also State v. Noura Jackson, 444 S.W.3d 554,
588, 2014 WL 4161966, at *27 (Tenn. 2014) (considering "
defense counsel's contemporaneous comments and subsequent
affidavit describing the lead prosecutor's body language
and the tone and volume of her voice when making the
remark" in analyzing whether the prosecutor's remark
was improper). As such, we must presume that the trial
court's statements concerning the size of the courtroom
and that the prosecutor made no gestures toward the Defendant
when making the remark were also correct.
the United States and the Tennessee Constitutions "
guarantee criminal defendants the right to remain silent and
the right not to testify at trial." Jackson, 444 S.W.3d
at 585, 2014 WL 4161966, at *24. " While closing
argument is a valuable privilege that should not be unduly
restricted, . . . comment upon a defendant's exercise of
the state and federal constitutional right not to testify
should be considered off limits to any conscientious
prosecutor." Id. at 590 (internal citations and
quotation marks omitted). In addition to direct comments on a
defendant's decision not to testify, " indirect
references on the failure to testify also can violate the
Fifth Amendment privilege." Id. at 587 (quoting
Byrd v. Collins, 209 F.3d 486, 533 (6th Cir. 2000))
(internal quotation marks omitted).
supreme court recently adopted " a two-part test for
ascertaining whether a prosecutor's remarks amount to an
improper comment on a defendant's exercise of the
constitutional right to remain silent and not testify."
Jackson, 444 S.W.3d at 587-88, 2014 WL 4161966, at *2688 The
test examines: " (1) whether the prosecutor's
manifest intent was to comment on the defendant's right
not to testify; or (2) whether the prosecutor's remark
was of such a character that the jury would necessarily have
taken it to be a comment on the defendant's failure to
testify." Id. We review claims of an
impermissible prosecutorial comment on a defendant's
decision not to testify de novo. Id
court has long cautioned that " [r]emarks which skirt
the edges of impermissible comment are neither desirable nor
worth the risk of reversal of what may well be a thoroughly
deserved conviction." Taylor v. State, 582
S.W.2d 98, 101 (Tenn.Crim.App. 1979) (quoting State v.
Dent, 51 N.J. 428, 241 A.2d 833, 840-41 (N.J. 1968)).
Our supreme court recently overturned a second degree murder
the prosecutor, during closing rebuttal argument, "
walked across the court room, stood in front of [the
d]efendant, gestured toward her, and demanded in a loud
voice, 'Just tell us where you were! That's all we
are asking, Noura!'" Jackson, 444 S.W.3d at
589, 2014 WL 4161966, at *27.
there is no evidence that the prosecutor's manifest
intent was to comment on the Defendant's right not to
testify when he stated there was " nobody to talk
to." Nor were the prosecutor's statement and actions
as direct or animated as those of the prosecutor in Jackson.
The State argues that the prosecutor's statement was
merely an assertion regarding the " lack of
evidence" about the timing of the Defendant's
actions after the murder. However, " a prosecutor's
comments on the absence of any contradicting evidence may be
viewed as an improper comment on a defendant's exercise
of the right not to testify when the defendant is the only
person who could offer the contradictory proof."
Jackson, 444 S.W.3d at 586, 2014 WL 4161966, at *25
n.45. The only other person " to talk to" about how
long the Defendant had been home prior to the welfare check
was the Defendant. Given the context of the prosecutor's
statement, that the prosecutor did not know how long the
Defendant had been back at his house or what the Defendant
was planning to do when Cpl. Sanders arrived, we conclude
that it was of such a character that the jury would
necessarily have taken it to be a comment on the
Defendant's failure to testify despite its indirect
however, does not end our inquiry. We must next examine
whether this non-structural constitutional error was
harmless. Jackson, 444 S.W.3d at 590-92, 2014 WL
4161966, at *28-29. In making such a harmless error analysis,
our supreme court has considered such factors as (1) whether
the remarks were isolated or extensive; (2) whether the
remarks " came at a critically important juncture in the
trial" ; (3) the prosecutor's verbal and physical
delivery of the remarks; (4) what curative instructions were
given and when; and (5) whether the evidence of the
defendant's guilt was otherwise overwhelming.
Id. at 592; see also United States v.
Wells, 623 F.3d 332, 338 (6th Cir. 2010) (applying a
four-factor test to claims of improper indirect comments on a
defendant's silence which includes several of the factors
considered by our supreme court in Jackson).
the prosecutor's remark was isolated. The Defendant has
not pointed to any other remarks during the State's
closing argument that commented upon the Defendant's
decision not to testify, and the trial court, in overruling
the Defendant's motions for a mistrial and new trial,
found that there were no other instances. Unlike the comment
in Jackson, the comment at issue here came during the
State's initial closing argument, giving the Defendant
the " opportunity to respond to the argument."
Jackson, 444 S.W.3d at 592, 2014 WL 4161966, at *29.
Additionally, there is nothing in the record to suggest that
there was anything forceful or remarkable about the
prosecutor's verbal and physical delivery of the remark.
The prosecutor was standing in front of the Defendant, but as
the trial court noted, he was arguing to the jury and did not
gesture toward the Defendant.
Defendant did not request any curative instructions and none
were given. However, the trial court did instruct the jury
during its charge that the statements and arguments of
counsel were not evidence and that the jury was to "
place no significance on" the fact that the Defendant
did not testify. Here, the instructions given during the
normal course of the trial court's jury charge did not
highlight the prosecutor's comment or the Defendant's
decision not to testify as the curative instructions given in
Jackson, 444 S.W.3d at 592, 2014 WL 4161966, at *29
(stating that the trial court's curative instructions
" likely served to emphasize further Defendant's
exercise of her constitutional right not to testify" ).
Finally, the evidence of the Defendant's guilt was
otherwise overwhelming, unlike the " entirely
circumstantial" case against the defendant in Jackson.
Id. Accordingly, we conclude that the error was
harmless beyond a reasonable doubt.
Defendant contends that, even if no single error requires a
new trial, the cumulative effect of multiple errors mandates
such action. The Defendant argues that there were several
errors during the course of his trial and that " when
considered in combination it is clear that a new trial is
mandated." The State responds that there can be no
cumulative error because the Defendant " has failed to
establish any error."
cumulative error doctrine applies to circumstances in which
there have been " multiple errors committed in trial
proceedings, each of which in isolation constitutes mere
harmless error, but when aggregated, have a cumulative effect
on the proceedings so great as to require reversal in order
to preserve a defendant's right to a fair trial."
State v. Hester, 324 S.W.3d 1, 76 (Tenn. 2010).
However, circumstances which would warrant reversal of a
conviction under the cumulative error doctrine " remain
rare." Id. Having discerned only one error
during the Defendant's trial, and it being deemed
harmless, there can be no cumulative error. Accordingly, we
conclude that this issue is without merit.
consideration of the foregoing and the record as a whole, the
judgment of the trial court is affirmed.
For the purpose of clarity, we have
renumbered and reordered the issues as stated by the
Defendant in his brief.
This section will discuss only the factual
background regarding the Defendant's conviction. The
factual background of the Defendant's procedural issues
will be discussed in other portions of this opinion.
Because the victim, the Defendant, and
several of the witnesses share the same last name, we will
refer to some of the witnesses by their first names. No
disrespect is intended.
To support his argument, the Defendant
asserts that Dr. Engum testified that he did not know if the
Defendant was delusional at the time of the murder.
However, the testimony the Defendant cites to is from a
different witness given at a preliminary hearing. Dr. Engum
testified at length about the Defendant's mental disease
and the evidence of the Defendant's delusions around the
time of the murder.
Clear and convincing evidence is evidence
" in which there is no serious or substantial doubt
about the correctness of the conclusions drawn from the
evidence." Hodges v. S.C. Toof & Co., 833
S.W.2d 896, 901 n.3 (Tenn. 1992).
Dr. Seidner examined the Defendant for the
limited purpose of determining his competency to stand
trial and to waive his rights when interviewed by Det.
Braden. Dr. Seidner testified in a pretrial hearing but did
not testify at trial.
In a " supplemental reply" brief,
the Defendant cites State v. Noura Jackson, 444
S.W.3d 554, 593-98, 2014 WL 4161966, at *30-34 (Tenn. 2014),
to support his argument that the State's failure to
disclose the evidence was a Brady violation. However, this
case is distinguishable from Jacksonbecause the statement at
issue there was given by a witness to the police.