Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs October 29, 2014
Appeal from the Criminal Court for Overton County No. 2011-CR-45 David A. Patterson, Judge
Michael Savage, Livingston, Tennessee, for the appellant, Kayln Marie Polochak.
Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Randall York, District Attorney General; and Mark E. Gore, Assistant District Attorney General, for the appellee, State of Tennessee.
Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which John Everett Williams and Roger A. Page, JJ., joined.
ROBERT H. MONTGOMERY, JR., JUDGE
This case relates to the strangulation death of seventy-two-year-old Hassie Pearl Breeding on December 10, 2010. At the trial, Teresa Breeding, the victim's daughter, testified that she unsuccessfully attempted to telephone the victim on December 11. Her nephew, Brandon, told her that he and his girlfriend were going to stop by the victim's house for a visit. She told Brandon that she had been unable to reach the victim all day and asked him to text Benjamin Bowers, also her nephew and the codefendant in this case, inquiring about the victim's whereabouts. She explained that the Defendant was Mr. Bowers's girlfriend and that the Defendant and Mr. Bowers had been living with the victim. She met the Defendant at Thanksgiving dinner the previous month.
Ms. Breeding testified that at 10:00 p.m. on December 11, 2010, she and her eight-year-old daughter drove to the victim's house. Her daughter remained in the car while Ms. Breeding entered the house. She noticed the lights were off, and the victim's 2006 silver Toyota Scion was gone. She said that when she entered one of the bedrooms, she saw a cover over something on the floor. When she removed the cover, she saw a pillow over the victim's face. She said the victim was cold and her skin was discolored. At the time she found the victim, Ms. Breeding was on the telephone with her niece, Jennifer Bolo. They each called 9-1-1. While Ms. Breeding was on the telephone with 9-1-1, she saw a cord around the victim's neck.
Ms. Breeding identified a diagram of the victim's house and explained the layout. She identified a photograph of the victim lying on the bedroom floor and identified the pillow she removed from the victim's face. She identified photographs of the victim's car. She last saw the victim two or three days previously.
On cross-examination, Ms. Breeding testified that she was on the telephone with Ms. Bolo when she pulled into the driveway and noticed the lights were off and the victim's car was gone and that she asked her niece to stay on the telephone with her. She denied being afraid. She did not recall finding broken glass near the victim. She agreed she looked in Mr. Bowers's room and saw many holes in the walls. Although she never saw Mr. Bowers create the holes, to her knowledge, Mr. Bowers was responsible for them.
Ms. Breeding testified that the victim pinned money to the inside of her sock. She said she was looking for Mr. Bowers when she first entered the house because she wanted to ask him if he knew the victim's whereabouts. She spoke to the victim several times per week.
Billy Breeding, the victim's son, testified that he was a lienholder on the victim's car and that its value at the time of the victim's death was about $8000. On cross-examination, Mr. Breeding testified that he saw the victim as often as possible and that he interacted with Mr. Bowers very little. He denied knowing Mr. Bowers had a reputation for violence. He recalled, though, an incident when Mr. Bowers was a teenager during which Mr. Bowers shoved the victim. The police were called to the scene and talked to Mr. Bowers, but Mr. Breeding heard nothing else about the incident. Mr. Breeding talked to the victim about the incident.
Mr. Breeding testified that he knew holes existed in the walls of Mr. Bowers's bedroom but denied knowing who caused them. He did not recall telling a deputy investigating the victim's death that Mr. Bowers had a bad temper and was known for breaking things when he was angry.
Patricia Bilbrey, the victim's daughter, testified that she learned about the victim's death from her niece. She identified Mr. Bowers as her nephew and said he lived with the victim. She said the Defendant was Mr. Bowers's girlfriend, who also lived at the victim's house. She said Mr. Bowers was about twenty or twenty-one years old at the time of the victim's death. She said the victim was about 5'4", weighed about ninety-eight pounds, and was in poor health with "crippling arthritis, " a bad knee, and heart problems.
On cross-examination, Ms. Bilbrey testified that the victim had placed her money in her sock to prevent anyone from knowing where she kept it. She agreed Mr. Bowers had previously taken some of the victim's medication. She said the victim generally dreaded going home because the Defendant and Mr. Bowers left dirty dishes in the kitchen and clothes on the floor and because the Defendant yelled at the victim. She denied that the victim claimed Mr. Bowers was violent toward the victim. She admitted, though, the victim claimed Mr. Bowers had pushed the victim. She denied seeing Mr. Bowers act violently or yell at anyone. She was not surprised Mr. Bowers and the Defendant were suspects in the victim's death. She acknowledged she had not told the police that she was not surprised at the Defendant's involvement.
Overton County Sheriff's Deputy Tim Porter testified that he responded to the scene and that he found the victim lying on the floor with a cover over her legs and a red cord around her neck. A pillow was just above her head. She did not have a pulse, and paramedics declared her deceased.
On cross-examination, Deputy Porter testified that Deputy Steve Flowers began the crime scene log. He said a dog was on the back porch and did not know if the dog had been inside the house after the killing. He did not recall seeing a cat. He said the two paramedics were escorted inside the house to the victim's location, and two others came to the bedroom in which the victim was found. He denied those who entered the house wore protective coverings on their shoes. He did not recall Fire Chief Rocky Dial being at the scene. On redirect examination, he denied seeing Chief Dial inside the victim's house.
Tennessee Bureau of Investigation (TBI) Special Agent Steve Huntley testified that he arrived at the scene around 12:35 a.m. He said that Mr. Bowers and the Defendant were considered suspects early in the investigation and noted that they were missing, along with the victim's car. He entered the house after a search warrant was obtained, and the outside of the house was photographed and video recorded.
A recording of the crime scene was played for the jury while Agent Huntley narrated. The recording showed no broken windows or doors and no signs of forced entry. A cat was seen walking around inside the house. Agent Huntley noted that the victim was found inside Mr. Bowers and the Defendant's bedroom and that the victim was still wearing her jewelry. A red "dog cord" was found around the victim's neck. He noted the recording showed holes in the bedroom door and walls. Items were marked with evidence placards, including two hats, a black t-shirt, and a red-brownish spot on the floor. Inside the Defendant and Mr. Bowers's bedroom, evidence placards identified the dog cord and wire cutters. In the entryway to the adjoining bathroom, a black ski mask with the eyes cut out and two black gloves were found. A lens from a pair of eyeglasses was found, and the respective broken eyeglasses were found in the bedroom with the victim. The blanket and the pillow that covered the victim were also identified. Outside the victim's house, a Chevy Blazer was parked in the driveway, and Agent Huntley noted the passenger-side window was broken and a screwdriver was lying nearby on the ground. Inside the Blazer, the victim's TennCare card was found.
Agent Huntley testified that the dog cord found around the victim's neck, the pillow and pillowcase, and the wire cutters were submitted to the TBI Crime Laboratory for analysis. He identified photographs of the victim after the blanket was removed, which showed a $20 bill protruding from the victim's left sock. He learned during the course of his investigation that the victim kept money in the socks she wore.
Agent Huntley testified that he and TBI agents traveled to Indiana where Mr. Bowers and the Defendant were found. The Defendant and Mr. Bowers had the victim's car, which Agent Huntley searched upon arriving in Indiana. The victim's utility bill was found inside the car. Also inside the car was a black purse containing keys, a pink cell phone, and a gold watch. In the front passenger seat, he found a handwritten note signed by the Defendant. The letter stated,
Ben is the only person who has . . . ever had my heart like this[.] I love him so much. If you have found this you obviously know what has happened. I want his last name on my grave & I want to be cremated w[ith] him. Kim Coffel would be my mother. She made me go this way. She's ignored all my signs for years. She isn't a mom & will never be one now.
The letter identified a telephone number for the reader to call and said Natalie "should know I love her & everyone else." The Defendant wrote she loved "Benjamin to[o] much. P/z d[o]n't break us apart." Agent Huntley stated that a black backpack was also found inside the victim's car.
Agent Huntley testified that the victim's car was taken to the local police department, and Mr. Breeding returned the car to Tennessee. Agent Huntley searched the car again after it was returned to Tennessee and found a Food Lion receipt dated December 10, 2010, at 9:13 p.m. and two toboggans. He said the toboggans were seen inside the car when it was searched in Indiana. He did not realize they were connected to the Defendant and Mr. Bowers until he saw video footage of them wearing the toboggans in Overton County. He said, "[T]ake right, go through Glasgow, take 65" was written on the back of the receipt.
Agent Huntley testified that he obtained video recordings from various places in Overton County, including a convenience store and Food Lion. He obtained warrants for the Defendant's and Mr. Bowers's DNA, and the samples were submitted to the crime laboratory for analysis. He said the black gloves and ski mask found inside the victim's house were also submitted to the crime laboratory for analysis. He identified a photograph of a Kentucky Fried Chicken box found on the kitchen counter inside the victim's house and said the purchase receipt was dated December 10, 2010, at 5:07 p.m.
On cross-examination, Agent Huntley testified that he reviewed the log identifying who was allowed to enter the crime scene. He agreed several emergency workers were allowed inside the house after the victim was declared dead, and no legitimate reason existed for their entry. He also agreed the log did "not document" each time someone left the crime scene area. He did not know if everyone inside the crime scene wore gloves and protective coverings over their shoes.
Agent Huntley testified that the medical examiner gave him the victim's clothes and jewelry. Regarding the reddish-brown spot on the floor of the victim's house, he agreed that the property inventory stated that it was blood, that the substance was not analyzed, and that he did not know what it was. Regarding the red substance found on a door, he said the substance was not analyzed. Although he did not know the cause of death, he said the victim was clearly strangled.
Agent Huntley testified that his theory of the case was Mr. Bowers placed his foot on the victim's back and pulled the dog cord tight around the victim's neck. He said the Defendant's and Mr. Bowers's statements supported the theory. Wire cutters were collected from the Defendant and Mr. Bowers's bedroom and analyzed to determine if the cutters were used to cut the dog cord. He noted one piece of the dog cord was found around the victim's neck and another piece was found inside the Defendant and Mr. Bowers's bedroom. He agreed no evidence showed the Defendant touched the wire cutters, however, Mr. Bowers admitted to using the wire cutters to cut the dog cord.
Agent Huntley testified that he found a broken eyeglass lens on the floor near the victim and that the frames were lying on a pile of clothes in the same room. He did not know how the frames came to be on the pile of clothes. No fingerprints were found on the frames, and the frames were not analyzed for the presence of DNA or fibers. He agreed he did not obtain the Defendant's fingerprints, although he obtained Mr. Bowers's fingerprints. He denied the blanket found covering the victim was analyzed but said the pillow found on the victim's face showed the presence of the Defendant's and Mr. Bowers's DNA profiles. He said he did not know if the Defendant's living in the victim's house might explain the presence of her DNA on the pillow. He agreed the crime laboratory and the medical examiner were told the police suspected the victim was strangled and smothered. He considered the dog cord and the pillow as "instruments of death."
Agent Huntley testified that the Defendant was a suspect even before she gave her confession. He learned during the investigation that the Defendant was in the bedroom when Mr. Bowers began choking the victim with the dog cord. He said the Defendant came out of the bedroom, placed a pillow over the victim's face, and smothered the victim. The Defendant stated that she was not asleep when Mr. Bowers began strangling the victim.
Agent Huntley testified that he believed the scene was staged to look like a "bad burglary" based on the ski mask and gloves found inside the house and the broken car window and screwdriver found outside the house. He denied the screwdriver was analyzed because Mr. Bowers admitted to breaking the car window with the screwdriver and agreed no evidence suggested the Defendant was involved with breaking the window. He did not see signs of a struggle inside the house and did not recall any abrasions to the victim's body.
The victim's clothes were not analyzed because the police knew who killed the victim based on the investigation, the Defendant's and Mr. Bowers's confessions, and the presence of their DNA on the pillow. He noted that the Defendant and Mr. Bowers fled to Indiana in the victim's car and that the Defendant told two paramedics that she and Mr. Bowers killed the victim.
Agent Huntley testified that scrapings from under the victim's fingernails were analyzed for DNA but that none was found. He noted the victim was a frail, elderly woman who, according to the Defendant, could not fight back. Mr. Bowers was 5'9" to 5'10" tall and weighed about 160 pounds.
Agent Huntley testified that the video recording of the scene showed that a cat was inside the victim's house. He placed the cat in the master bathroom after he arrived. He did not know if the gloves found inside the house were for a man, but after examining them, he said they appeared to be for a "small" person. He could not identify an object on the victim's forefinger, but he said the object did not appear to be a fiber. He said the object could have been on the victim all day. He did not know if the ring on her forefinger was backward. He agreed that if the victim's ring was backward, it could have become "turned around" during a struggle or when her body was dragged. He denied having the victim's ring analyzed for DNA.
Agent Huntley testified that two of the holes in the door were created when Mr. Bowers became angry due to the Defendant's mother's threatening to report Mr. Bowers and the Defendant to the police. He identified holes in the wall of the Defendant and Mr. Bowers's bedroom. He said Mr. Bowers possessed the wire cutters before the victim came home.
Agent Huntley testified that the crime scene log failed to show when Detective Steve Hritz left the scene. He said, though, the log correctly reflected who entered the scene. He agreed his request to the crime laboratory stated that the Defendant and Mr. Bowers choked the victim with a dog cord and used a pillow to prevent her from breathing.
On redirect examination, Agent Huntley testified that he provided the statement of facts for the crime laboratory request after investigating the scene, collecting evidence from the medical examiner, and interviewing the Defendant and Mr. Bowers. He said Detective Hritz assisted him at the scene.
Agent Huntley testified that he attempted to corroborate the Defendant's confession with the physical evidence from the scene and Mr. Bowers's confession. The Defendant's confession was consistent with the evidence found at the scene, and Agent Huntley said the
Defendant's and Mr. Bowers's confessions "pretty much matched." He agreed the Defendant's statement that she and Mr. Bowers attempted suicide corroborated her statement to the police that they wanted to go out with a bang.
Agent Huntley read to the jury the written statement Mr. Bowers provided to the police. In the statement, Mr. Bowers stated that his grandmother allowed him and the Defendant to live with her and that the victim treated them well. They used the bedroom across from the bathroom, which had the holes in the walls. He admitted stealing from the victim previously and knew the victim kept her money in a black pouch tucked in her sock. Mr. Bowers's only concerns in life, though, were his drug addiction and the Defendant.
On the day of the killing, Mr. Bowers said he and the Defendant stayed home, and they talked about how they "could be together." He said, "We figured we would kill my Grandmother and take her money." They packed their belongings before the victim arrived home, and he said the Defendant thought of choking the victim with a dog leash. He said the plan was for Mr. Bowers to approach the victim from behind and place the leash around her neck. He said he practiced on the Defendant to determine how best to do it. He cut the leash with the wire cutters and left them in their bedroom. He stated, "I guess . . . me and [the Defendant] planned this out even premeditated what we did." When the victim arrived home at 5:30 p.m., Mr. Bowers approached her from behind, placed the leash around her neck, and choked her. He said he wore the black gloves during the attack. He yelled for the Defendant's assistance. The Defendant came from their bedroom with a pillow and placed it over the victim's face. The victim fell to the floor as Mr. Bowers applied pressure. As he pulled the leash as tight as possible, the Defendant held the pillow over the victim's face. The victim attempted to fight, and Mr. Bowers heard "a little sigh and gurgle." The Defendant laid her entire body on the victim and applied pressure on the pillow. After the victim was dead, Mr. Bowers took money from the victim's purse. He removed $420 from the victim's right sock. Mr. Bowers and the Defendant placed their belongings in the victim's car and left. Mr. Bowers and the Defendant bought gas, drove to Sparta to buy $200 worth of drugs, and drove to Indiana.
Mr. Bowers noted the Defendant spoke with her mother earlier that day. The Defendant's mother threatened to call the police "to get Kalyn home." Mr. Bowers threw the wire cutters into the bedroom door. He admitted breaking the window in the Blazer when he attempted to remove the window to unlock the door and take the battery. He wanted to put the battery in his car, which would not start. He concluded his statement by saying "this was the only way me and Kalyn could think of being together." He claimed he would have done anything for the Defendant.
Agent Huntley testified that he considered the Defendant's and Mr. Bowers's statements to be consistent. He said the statements each referenced the same date and time of the killing, Mr. Bowers's placing the dog cord around the victim's neck, the Defendant's placing a pillow over the victim's face, and the motive for obtaining money and a car to get out of town. He said each statement also claimed that the killing occurred because the Defendant's mother threatened to report Mr. Bowers to the police. He agreed the evidence he submitted for analysis to the crime laboratory was based, in part, on the two confessions. On recross-examination, he stated that the Defendant admitted to attempting suicide three times within the twenty-four-hour period before her arrest.
TBI Special Agent Darrin Shockey testified that he assisted in the collection of evidence. He previously worked as a latent fingerprint examiner at the crime laboratory and said he and Agent Huntley discussed which items, if any, at the scene should have been examined for fingerprints. Agent Huntley asked his opinion regarding which items should have been analyzed. Agent Shockey said none of the items needed analysis, and his conclusion was based on the fact that the people involved in the killing most likely lived in the victim's house.
On cross-examination, Agent Shockey testified that he was not surprised that the eyeglasses were not analyzed for fingerprints. He agreed the agent in charge decided which items to analyze.
Overton County Sheriff's Detective Steve Hritz testified that emergency personnel and four deputies were at the scene when he arrived. He marked the evidence at the scene with placards and assisted in the collection of evidence. He said that on January 19, 2011, he and Agent Huntley searched the victim's car and collected the Food Lion receipt. He also assisted in the collection of surveillance videos from the Raceway Market in Livingston. On cross-examination, he stated that about ten people were inside the victim's house when he arrived and that many of them were in the bedroom where the victim was found.
Raceway Market Store Manager Ashley Ogletree testified that on December 10, 2010, she worked from 2:00 p.m. to 12:00 a.m. Although she did not know Mr. Bowers personally, she knew who he was and recognized him when he entered the store on December 10. Although she said Mr. Bowers was with a woman, she could not identify the woman in the courtroom. She said later, though, that she identified the Defendant as the woman at the juvenile court transfer hearing. She said Mr. Bowers entered the restroom, and the woman asked a few customers for directions to Indiana, asked to look at a map, and wrote down directions. The woman mentioned she was pregnant and was going to name her son Maverick.
Ms. Ogletree testified that the police obtained a video recording from the store, which was played for the jury. Ms. Ogletree narrated as the recording was played. She identified the Defendant, who reached for a map. The Defendant wore a pink and black toboggan. The Defendant realized she was looking at the wrong map and grabbed the correct map. Ms. Ogletree gave the Defendant paper and pen to write directions. Ms. Ogletree's son was behind the counter, and the Defendant mentioned she was pregnant. The Defendant acted "just normal" and was happy she was traveling to Indiana to visit relatives. Mr. Bowers walked into the store wearing a black toboggan. The Defendant and Mr. Bowers discussed paying for gas and whether Mr. Bowers wanted food or drink. Mr. Bowers left to pump gas, and the Defendant paid for it and left. Ms. Ogletree saw them leaving in a "silver hatchback."
Livingston Food Lion Store Manager Nathaniel Kennard testified that he was responsible for maintaining the store surveillance system. He described the locations of the cameras and said he retrieved the recording from December 10, 2010, which was played for the jury. Mr. Kennard stated that the recording was time stamped at 9:05 p.m. and showed a person leaving the store. He said the recording also showed a couple checking out at register three at 9:12 p.m. Mr Kennard maintained an electronic journal of customer transactions and identified a $25.26 entry from the 9:12 p.m. transaction. He identified the Food Lion receipt previously entered into evidence and said it corresponded to the journal entry.
Rebecca Kinder testified that she was a paramedic in Grant County, Indiana and that she was working with fellow paramedics Yolande Bailey and Justin Black on December 12, 2012. She, Ms. Bailey, and Mr. Black responded to a possible drug overdose call at the Gas City Police Department. She learned that the Defendant "shot up . . . nicotine water in a syringe." She examined the Defendant, and Ms. Bailey and Mr. Black examined Mr. Bowers. Ms. Kinder said the Defendant was upset and was wearing soaking wet clothes. The Defendant's vital signs were normal. She asked about the Defendant's clothes, and the Defendant told her that she had been in the bathtub at her grandparents' house with her boyfriend and that the "stuff on TV you see doesn't work." When Ms. Kinder asked the Defendant what she meant, the Defendant said "we" put electronic devices in the bathtub attempting to electrocute "ourselves."
Ms. Kinder testified that the Defendant claimed she felt nauseous and might have been pregnant. She said one of the officers asked the Defendant for her mother's contact information, but the Defendant refused and claimed her mother was a drunk who did not care about her. Ms. Kinder convinced the Defendant to provide the contact information, and she began to talk about the killing. The Defendant stated that she lived at her boyfriend's grandmother's house with her mother's consent but that her mother was going to force her to return home because her mother stopped receiving "finances of some type." The Defendant claimed her mother threatened to have her boyfriend arrested for statutory rape if the Defendant did not return home.
Ms. Kinder testified that the Defendant continued to cry and stated, "[I]t's never going to be okay, I shouldn't have done it, I shouldn't have hurt her, I just wish I hadn't done it." Ms. Kinder asked if someone needed medical assistance, and the Defendant said nobody could help because "she" was in Tennessee. The Defendant said, "[Y]ou can't help her, we killed her, oh my God, I wish I hadn't done that, oh my God, I wish I hadn't done that." The Defendant told Ms. Kinder that her boyfriend "got behind her, took a dog leash and strangled her and I put a pillow on her face and smothered her, oh my God, oh my God, I just wish I hadn't done it."
Ms. Kinder testified that although the Defendant was upset, her vital signs were normal, and Ms. Kinder found no medical problems to warrant treatment. The Defendant complained of an upset stomach, lay on the floor, and slept.
On cross-examination, Ms. Kinder testified that Mr. Bowers was in an adjacent room while she talked to the Defendant and that Mr. Bowers stared at the two of them while they talked. She agreed Mr. Bowers watched them closely. She also agreed the Defendant admitted to using drugs and to attempting suicide because "they . . . wanted to be together forever." She said the Defendant looked liked she had not slept.
Ms. Kinder testified that the Defendant definitely said "we" killed the victim, not "he" killed her. She was positive the Defendant said she put the pillow on the victim's face and smothered the victim.
Yolande Bailey testified that on December 12, 2010, she worked as a part-time paramedic in Grant County, Indiana. She received an attempted suicide call and responded to the police department with Ms. Kinder and Mr. Black. She said the Defendant and Mr. Bowers were examined but not transported to the hospital. She said the Defendant did not receive medical treatment. She heard the Defendant tell Ms. Kinder about attempting suicide and killing Mr. Bowers's grandmother in Tennessee. The Defendant said Mr. Bowers "got behind the grandmother . . . with a leash and then [the Defendant] got on top of her with a pillow." The Defendant said they killed the grandmother for money. On cross-examination, Ms. Bailey stated that the Defendant's clothes were soaking wet.
Indiana State Police (ISP) Sergeant Matthew Collins testified that on December 12, 2010, he was asked to help locate the Defendant and Mr. Bowers, who were wanted for questioning relative to a homicide in Overton County, Tennessee. He was provided information about the victim's vehicle because it was believed the Defendant and Mr. Bowers were traveling in the car. Overton County Sheriff's Deputy John Mackie asked him to investigate a house owned by Charles and Helen Vaunce,  the Defendant's grandparents. He said the victim's car was found at the Vaunce's house. He said that Gas City Police took the Defendant and Mr. Bowers into custody and that they were at the police station when he arrived. He was advised that the Defendant stated she was involved in the murder of Mr. Bowers's grandmother. Sergeant Collins drove to the Vaunce home to examine the victim's car, which was secured and towed to the Fort Wayne ISP Post. He spoke to Mrs. Vaunce and returned to the Gas City Police Department to interview the Defendant.
Sergeant Collins testified that he read the Defendant her Miranda rights, that the Defendant read the form herself, that the Defendant said she understood her rights, and that she did not have any questions. The Defendant signed the waiver of rights form and provided a statement.
The Defendant's recorded statement was played for the jury. When asked for identifying information, the Defendant said she had "been [giving] it all day long." She asked if her mother knew what was happening. Sergeant Collins told the Defendant that her mother had been told it was important for the authorities to speak to the Defendant. The Defendant had been living with Mr. Bowers at his grandmother's house. On December 10, 2010, her mother called and was upset after receiving a notification she would not receive food stamp benefits if the Defendant did not live with her. The Defendant's mother said that she would have Mr. Bowers arrested for statutory rape and that the Defendant would be in trouble with the authorities. The Defendant might have been pregnant. After the call, the Defendant and Mr. Bowers got high by injecting Dilaudid. They discussed going "out with a bang." Mr. Bowers mentioned killing his grandmother. The Defendant did not want to see blood and recommended they use a dog leash as a weapon. When the victim came home from work, Mr. Bowers choked her with the leash, and the Defendant pushed a pillow on the victim's face. The victim made unusual noises and died after about two minutes. They dragged the victim's body into a bedroom and covered it with bed linens and a pillow. Mr. Bowers took $200 from the victim's body, and they took the victim's car to Indiana to visit the Defendant's relatives. The Defendant said she was sorry she had damaged the lives of Mr. Bowers, herself, and her unborn child. On the day she was taken into custody, she had tried to commit suicide three times. She and Mr. Bowers sat in a bathtub and put appliances in the water. They also tried to kill themselves in a car through carbon monoxide inhalation and by injecting nicotine water. She wished she were dead. Near the end of the interview, she asked if she could still have a lawyer.
On cross-examination, Sergeant Collins testified that the Defendant was taken into custody around 11:20 a.m. and that he did not recall if her clothes were wet. His interview of the Defendant began at 7:13 p.m. He did not know if the Defendant had eaten, had anything to drink, or used the restroom between her arrest and the interview. The Defendant did not appear sleepy or disoriented, and Sergeant Collins did not recall if she wore handcuffs during the interview. He agreed he thought it was important to talk to her when he did because she was a person of interest in a homicide.
TBI Special Agent Chuck Hardy, an expert in DNA analysis, testified that he analyzed various items found at the crime scene for the presence of DNA, including the ski mask, a pair of gloves, the pillow and pillowcase, the dog cord found around the victim's neck, and nail clippings from the victim. He was provided samples of the victim's blood and the Defendant's and Mr. Bowers's DNA. Relative to the right glove, Agent Hardy found the presence of the Defendant's and Mr. Bowers's DNA. He said the probability of randomly selecting an unrelated individual who would have been a contributor to the DNA found on the glove was approximately one in 1.9 million for the African-American population, one in 38.5 million for the Caucasian population, one in 78.2 million for the Southeastern Hispanic population, and one in 40.6 million for the Southwestern Hispanic population. He concluded that the victim's DNA was not on the glove.
Agent Hardy testified that he found the presence of Mr. Bowers's and the Defendant's DNA on the ski mask. Regarding the Defendant's DNA, he concluded that the probability of an unrelated individual having the same DNA profile was approximately one in 946 for the African-American population, one in 231 for the Caucasian population, one in 327 for the Southeastern Hispanic population, and one in 352 for the Southwestern Hispanic population. Relative to the left glove, he found the presence of the Defendant's and Mr. Bowers's DNA.
Agent Hardy testified that he did not examine the pillow but that he examined the pillowcase. He found a stain on the pillowcase, and his testing failed to show the presence of blood. He found the Defendant's and Mr. Bowers's DNA on the pillowcase. Regarding the Defendant's DNA, he concluded that the probability of an unrelated individual having the same DNA profile was the same as the statistics regarding the right glove. He said that he swabbed the outer perimeter of the pillowcase and that he excluded the presence of the victim's DNA. Regarding the dog cord, an insufficient amount of DNA was found, preventing his excluding the presence of the Defendant's, Mr. Bowers's, and the victim's DNA profiles. His findings were inconclusive.
On cross-examination, Agent Hardy testified that if a cat had walked on the evidence, it were possible but unlikely that the analyses could have been affected. He said that if a cat walked through the scene multiple times, it would increase the chances of contamination but that casual walking from one place to another would not be enough to be detected in the analyses.
Agent Hardy testified that he found a mixture of DNA on the edges of the pillowcase and that based on his analysis, the mixture included DNA from the Defendant and Mr. Bowers. He excluded the victim as a contributor to the DNA mixture. He agreed that if someone had a bleeding cut or wound, it would increase the likelihood of transferring DNA onto a foreign object. He said, too, that the likelihood of transfer increased when the foreign object had a rough surface.
Agent Hardy testified that he analyzed the ski mask at the eye and mouth openings because that was the most likely location of DNA. He agreed that if someone were gasping for breath or trying to scream for help, the likelihood of transferring DNA from the mouth would increase. Relative to the pillowcase, he said he analyzed the edges because of the State's theory that the victim was strangled and smothered with a pillowcase. He agreed he did not find the victim's DNA on the areas analyzed. Regarding his decision not to analyze the center of the pillowcase, he said the probative evidence was not the location of the victim's DNA because the pillow was found on the victim. He said the probative evidence was identifying the DNA of who might have held the pillow over the victim's face.
Agent Hardy testified that the presence of the Defendant's and Mr. Bowers's DNA on the pillowcase might be explained by their living in the house. When asked if his analyses proved the Defendant used the pillow to smother the victim, he said that his analyses only showed the presence of the Defendant's and Mr. Bowers's DNA and that he could not determine how the DNA was deposited on the pillowcase.
On redirect examination, Agent Hardy testified that his examination of the pillowcase probably would not have changed had he known the Defendant stated she had smothered the victim with the pillow. He agreed the Defendant's confession might explain why the Defendant's DNA was on the pillowcase.
Dr. Adele Lewis, an expert in forensic pathology, testified that she performed the victim's autopsy. She said generally, medical examiners needed investigative information from the police in order to determine a cause and manner of death. She said that certain causes of death could not be determined by an autopsy and that the only way to make a diagnosis was to use the history provided by law enforcement. Regarding strangulation, she said ligature marks in the muscles of the neck and breaking of the hyoid bone in the front of the neck were findings consistent with strangulation. She said "a fair" amount of force was needed to break the hyoid bone. Regarding smothering, she said information from investigating police officers was critical because medical examiners were prohibited from determining a cause of death if a plastic bag were removed from a person's head prior to notifying the police. She said petechial bleeding was also an indication of strangulation and might indicate smothering.
Dr. Lewis testified that before she performed the autopsy, the police told her the victim was found on the floor with a red cord around her neck and a pillow on her face. She concluded to a reasonable degree of medical certainty that the cause of death was asphyxia due to strangulation and smothering and that the manner of death was a homicide. She said usually no physical evidence of smothering was found but noted the victim had petechial hemorrhaging in the eyes, which could have been caused by strangulation or smothering. She identified photographs of the victim's hyoid bone and of the ligature mark on her neck caused by a rope-like object. She concluded that the hyoid bone was broken and noted that she found antemortem bleeding in the bone. She identified a photograph of petechial hemorrhages in the victim's right eye and a photograph of the victim's face, which showed petechiae of the skin around the eyes and an abrasion to the forehead between the eyes. Dr. Lewis noted that the victim's nose was clearly crooked but could not determine whether the nose was injured at the time of death. The victim was 64.5" tall, weighed 102 pounds, and was in fairly good health at the time of her death. No drugs were found in the victim's system.
On cross-examination, Dr. Lewis testified that she would not have concluded the victim was smothered had the police not told her about the pillow covering the victim's face and that the evidence she found indicated strangulation as the cause of death, including the ligature marks around the victim's neck and the broken hyoid bone. She noted the hyoid bone was broken in two places. She agreed "quite a bit of force" was needed to break the hyoid bone and said someone with "a little bit of strength or somebody with a rope or a rope-like object" could have broken the bone.
Dr. Lewis testified that the victim had abrasions on her elbows, shoulder, and hip. She said that although it was possible a struggle occurred at the time of the victim's death, she was unable to date the abrasions. She noted a subgaleal hemorrhage to the top of the victim's head and said it could have been caused by blunt injury. No brain swelling was found, which might indicate the victim died quickly, and no obstructions were found in the victim's throat. She did not find fibers in the trachea or lungs. She found fluid in the victim's lungs and said although it was common to see fluid in the lungs, fluid alone did not necessarily mean the victim died quickly.
On redirect examination, Dr. Lewis testified that her findings were consistent with the victim's dying two minutes after the strangulation began. On recross-examination, she stated that the blood vessels located in the neck flowing to and from the brain were cut off during the strangulation. She agreed the victim could have been unconscious in a matter of seconds.
In the interest of judicial efficiency, the Defendant was permitted to call a witness during the State's proof. Dr. James Walker, an expert in forensic psychology, testified that he evaluated the Defendant after reviewing mental health and medical treatment records and information regarding the present case. He said her previous treatment records showed that she underwent a psychological exam at the Volunteer Behavioral Health Center, underwent a neurological examination in November 2010, and received psychotherapy and psychiatric services at the Personal Growth and Learning Center. He was provided the "suicide note" previously written by the Defendant, her police statement, and the police reports.
Dr. Walker interviewed the Defendant on May 21, 2012, administered several psychological tests, and obtained a personal history. Mr. Walker concluded that the Defendant had multiple "serious" mental health disorders. He concluded the Defendant had major depression in which she experienced frequent "spells of low mood" lasting for more than two weeks. He said other symptoms included low energy, difficulty sleeping, guilty thoughts, preoccupations, loss of appetite, and suicidal thoughts.
Dr. Walker also diagnosed the Defendant with post-traumatic stress disorder as a result of the Defendant's suffering serious trauma and abuse from her father. She claimed she was beaten by her father, sexually abused "over the years, " and involved in abusive romantic relationships. Dr. Walker, likewise, concluded that the Defendant suffered from attention deficit hyperactivity disorder in which she had difficulty controlling her behavior. He said the symptoms included impulsivity, difficulty paying attention, and being overly distracted. He noted the Defendant's neurologist concluded that she had the disorder one year before the killing. Dr. Walker noted that the Defendant had chemical dependence disorders associated with pain medication, methamphetamine, benzodiazipine, and alcohol. He further concluded that the Defendant had dependent personality characteristics. The Defendant formed very dependent attachments with others who were stronger willed than she and who she perceived as smarter, brighter, older, and more attractive. He said the Defendant tended to do what others wanted.
Dr. Walker testified that the Defendant complained of a significant degree of introversion and expressed difficulty making friends. Based on a suggestibility test, he concluded that the Defendant was very susceptible to being led or misled and that she had a propensity for being overly suggestible. He said her relationship with Mr. Bowers was "a very disturbed . . . sick relationship." He described the Defendant's multiple motivations for being with Mr. Bowers. He said that the Defendant did not have a good relationship with her mother and felt like an outcast among her family and that Mr. Bowers provided her a place to live. Dr. Walker believed the Defendant developed a very strong emotional attachment to Mr. Bowers, although he physically abused, raped, and controlled her.
Dr. Walker testified that although he did not form an opinion about whether the Defendant was capable of premeditation on the day of the killing, he concluded that her ability to premeditate was significantly impaired. He said the Defendant was abusing Dilaudid, which caused "gross intoxication in most people." The Defendant was also taking Suboxone, a medication designed to help people stop abusing pain medication. He said these drugs affected the ability to reason, think, and make good decisions. He concluded to a reasonable degree of medical certainty that the Defendant was not "in a state where she could exercise good reasoning or . . . judgment" based on the drug abuse, mental disorders, and abusive relationship with Mr. Bowers.
Dr. Walker testified regarding the Defendant's confession that the Defendant's emotional state and her willingness to take responsibility for the killing were factors consistent with her providing a truthful statement. He said, though, that other factors raised concerns about the truthfulness of her statement. The Defendant told Dr. Walker that she and Mr. Bowers discussed what they would tell the police if they were caught. The Defendant claimed that Mr. Bowers said he would not "go down" for the killing alone and would "take her with him." The Defendant admitted to Dr. Walker that she and Mr. Bowers conspired about what "they" would admit and what she would admit. He noted the Defendant feared Mr. Bowers ...