Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs Date: February 11, 2015
Appeal from the Circuit Court for Rutherford County No. 68966 Mitchell Keith Siskin, Judge
John Drake, Murfreesboro, Tennessee, for the appellant, Candance Carol Bush.
Herbert H. Slatery III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant Attorney General; William Whitesell, District Attorney General; and J. Paul Newman, Assistant District Attorney General, for the appellee. State of Tennessee.
ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the Court, in which THOMAS T. WOODALL, P.J., and TIMOTHY L. EASTER, J., joined.
ROBERT L. HOLLOWAY, JR., JUDGE
I. Facts and Procedural Background
This appeal involves a "cold case" from Rutherford County that went to trial some 26 years after the crime was committed. In 2008, the Petitioner and her husband, Gary W. Bush ("Defendant Bush"), were tried and convicted of first-degree murder in connection with the death of the Petitioner's first husband, Lynn Orrand, in 1982. Both the Petitioner and Defendant Bush were sentenced to life imprisonment.
On direct appeal, this court summarized the facts from trial, as follows:
I. The Murder of Lynn Orrand
In 1981, [the Petitioner] was married to the victim, Lynn Orrand. The Orrands and their two children, Terry and Gary, lived in a house on Peachtree Street in Murfreesboro. Lynn worked at North American Car while [the Petitioner] worked for a company called Gemtop. During this time, [the Petitioner] and Defendant Bush were coworkers at Gemtop. At some point in 1981, [the Petitioner's] younger brother, Kevin Patterson, came to live with the Orrands. Kevin had been kicked out of his parents['] house because his girlfriend was pregnant. Kevin lived with the Orrands until he married his girlfriend and moved in with her parents in December 1981.
On November 18, 1981, Lynn was returning home from work some time around 2:00 a.m. when he entered an unlocked side door to his garage. As Lynn entered the garage, he was struck in the head with "a tire tool" by an unknown assailant who then fled the scene. Gary Orrand later testified that on the night of the attack he woke up to the sound of his father, Lynn, calling for [the Petitioner] "to get the gun." According to Gary, [the Petitioner] went through the hallway crying, but "she wasn't hysterical." [The Petitioner] told Gary to "lay back down, it would be okay." Officer Ricky Keyt responded to the Orrand residence on the night of the attack. Officer Keyt testified that he remembered Lynn was bleeding from a cut under his right eye before he was transported to the emergency room. Officer Keyt did not observe any signs that the intruder had broken into the garage. Officer Keyt testified that witnesses described the assailant as a white male wearing a blue jacket with fur trim. Officer Keyt spoke with [the Petitioner] about the assault, and she told him that she had received two phone calls "from an unidentified person." [The Petitioner] told Officer Keyt that the caller had informed her "that her husband was selling drugs" and that "he had been seen going into a bar with two other women." Lynn was subsequently hospitalized, underwent surgery for his injuries, and missed two months of work.
Prior to the attack, Lynn had been hunting a large buck in the woods near the home of [the Petitioner's] parents. According to [the Petitioner's] mother, Norma Jean Patterson, although Lynn had set up a tree stand in the woods, he would often hunt on a rock near a deer trail where "[h]e could sit ... [and] watch the deer." [The Petitioner] told her mother "not to tell anybody where [Lynn] was hunting at." On January 14, 1982, Lynn spoke with his coworker and friend, A.J. Mullins, about hunting for the buck that weekend. Later that night, Mr. Mullins remembered that deer season had ended and told Lynn he would not go hunting with him. Before they left work, Lynn told Mr. Mullins "that he changed his mind also" and would not go hunting that weekend. In the early morning hours of January 15, 1982, Kevin's girlfriend gave birth to their daughter Kimberly. Kevin spent that night at the Orrand house because there had been a significant winter storm and their house was near the hospital. That night, [the Petitioner] called her mother to tell her that Lynn was coming over to their property "early the next morning" to hunt for the buck. [The Petitioner's] mother overheard Kevin and Lynn talking in the background. According to [the Petitioner's] mother, the only people who knew Lynn would be hunting the next morning were [the Petitioner], Kevin, and herself.
On the morning of January 16, 1982, Gary Orrand woke up to hear [the Petitioner] and Lynn "[t]alking about going and killing a deer and them kind of joking." At approximately 6:00 a.m., [the Petitioner's] mother awoke to the sound of a truck pulling into her driveway. [The Petitioner's] mother looked out her window and saw Lynn's white pickup truck. [The Petitioner's] mother then heard the truck door slam and went back to sleep. Approximately 10 to 15 minutes later, [the Petitioner's] mother woke up again because her husband was getting out of bed. He told her that he had heard two gunshots and figured "Lynn has shot him a deer" so he would fix some coffee and wait for Lynn to come down to the house. [The Petitioner's] mother and father waited for Lynn until approximately 10:00 a.m. At that time, [the Petitioner's] mother became worried about Lynn and sent her husband and her youngest son, John Patterson, to the woods to check on Lynn. John saw one set of footprints in the snow leading from Lynn's truck and into the woods. John and his father followed these footprints until they found Lynn's body. John's father "rolled [Lynn's body] over" and attempted to resuscitate him. John told his father to stop because it was too late, Lynn was already dead. John then went back to the house to tell his mother to call the police.
[The Petitioner's] mother went with several police officers to [the Petitioner's] house in order to tell her that Lynn had been killed. When told, [the Petitioner] "just went, awwww" and grabbed her mother by the shoulder and shook her saying, "If you had called the ambulance he might not would have died." [The Petitioner's] mother thought this was odd because [the Petitioner] had no reason to know that Lynn "had been laying out there in the snow . . . dead for several hours." [The Petitioner's] mother testified that [the Petitioner] "was acting a little weird, " seemed "nervous, " and "was and wasn't" upset when told about Lynn's death. [The Petitioner's] neighbor and friend, Lorraine Perry, testified that [the Petitioner] seemed "very calm" and "[n]ervous more than upset" that day. Ms. Perry did not remember [the Petitioner] crying that day and testified that she "cried more" than [the Petitioner] did. The next day, [the Petitioner] went to view Lynn's body at the funeral home with Lynn's twin brother, Glenn Orrand. According to Glenn, [the Petitioner] began crying and said "I want him back now" repeatedly. Shortly after the funeral, Kevin, his wife, and their child moved in with [the Petitioner] and her children for approximately two or three months.
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II. The Police Investigation and Forensic Evidence
Chief Deputy Virgil Gammon of the Rutherford County Sheriff's Department was the lead investigator on the case in 1982. He received a call from the dispatcher about a shooting at approximately 10:30 a.m. on January 16, 1982. When he arrived, Chief Gammon saw Lynn's body lying on the ground next to a rock that "looked to have had some damage" to it. Lynn had been shot in the back near "the upper left shoulder." There were no footprints around the body but a search of the area revealed two sets of footprints near a tree approximately eight to ten yards from Lynn's body. There were no footprints between the body and the tree. Both sets of footprints appeared to be from the same person and "appeared to be comings and goings." Chief Gammon "believed that someone had been standing or sitting or waiting" for Lynn by the tree. Chief Gammon followed the footprints as they "circled around up [a] hill and back down the hill." The footprints continued on across Richland Road and back into the woods behind "three or four houses and came out" at an old, abandoned church down the street. Chief Gammon believed that the footprints leaving the scene were "at a faster pace or running" because of the stride and "distance between the steps." At one point along the footprints, the police discovered an area where the snow was disturbed. Chief Gammon believed that the assailant had fallen and dropped his gun. There were indentations in the snow that appeared to be where the assailant's knee touched the ground and where he placed his hand "trying to get up." There was also an indentation Chief Gammon believed was of a "double barrel shotgun." At the abandoned church, police found "tire marks" in the snow showing "where a vehicle had been at one point." The police were able to determine that the footprints came from "a hunting style boot."
Michael Cawthorn, then the deputy coroner for Rutherford County, examined Lynn's body on January 16, 1982. Mr. Cawthorn observed "perforations" around the left elbow and a "one inch hole in the mid back." Mr. Cawthorn also observed "what appeared to be the outline of . . . something metallic under the left pectoral muscle." Mr. Cawthorn removed "a shotgun slug" from Lynn's body along with some "wadding" behind the slug. Mr. Cawthorn opined that the murder weapon was either a 12 gauge or 16 gauge shotgun and leaned "more toward a 12 gauge based on the amount of slug that was there." No autopsy was performed on the body in 1982. In 1982, Tennessee Bureau of Investigation (TBI) Assistant Director Lanny Wilder examined the shotgun slug recovered from Lynn's body. Assistant Director Wilder concluded that the slug was fired from a 12 or 16 gauge shotgun, but the slug's weight "was closer to a 12." Assistant Director Wilder concluded that the slug was a "rifled slug, " which allowed the weapon to be fired with more accuracy. Assistant Director Wilder also opined that it would not be unusual for shotgun wadding to penetrate a body if the shot was fired from eight to ten yards away, especially if the wadding followed behind the slug.
Lynn's body was exhumed in 2007 and an autopsy was performed by Dr. Adele Lewis. The autopsy revealed a "large roundish shaped wound" and "multiple smaller wounds surrounding that" on Lynn's back. The slug traveled "through the ribs" and injured the spleen, left lung, and heart. Dr. Lewis opined that these injuries "would almost certainly be fatal within a matter of 30 seconds to a minute." Dr. Lewis also found "several small shotgun wounds" on the left arm, "right above [the] elbow." Dr. Lewis recovered several fragments from the body which she submitted to the TBI for testing. Dr. Lewis opined that the victim's wounds were consistent with having been "shot once with a slug . . . in the back" and having been struck by fragments from a second shot that struck a nearby rock. TBI Special Agent Robert Royse examined the fragments recovered from Lynn's body in 2007. Special Agent Royse concluded that one of the fragments was a piece of rock but that the other fragments were consistent with being from a deer slug.
III. Kevin Patterson's Confession
In March 2007, police received information from Lonnie Butcher, an inmate at the Rutherford County jail, which implicated Kevin Patterson in Lynn's death. On March 17, 2008, Kevin pled guilty to one count of second degree murder for shooting Lynn and is currently serving a 25-year sentence. At [the Petitioner's] trial, Kevin testified that in the autumn of 1981, he moved in with [the Petitioner] and Lynn because he "wasn't getting along very good" with his father. Kevin was 17 at the time and a senior in high school. After moving in with the Orrands, Kevin learned that [the Petitioner] and Defendant Bush were "lovers" and were having an affair together. Kevin never told Lynn about the affair because he "didn't want to get [his] sister in trouble." [The Petitioner] wanted Kevin to meet Defendant Bush and "see what [he] thought about [Defendant Bush]." [The Petitioner] arranged for the two to meet at a local store. Kevin rode to the store on his bicycle and found Defendant Bush at a pay phone talking to [the Petitioner]. Defendant Bush introduced himself to Kevin and shook his hand. Kevin and Defendant Bush talked for "[m]aybe two minutes" before Kevin left. After Kevin learned about the affair and met with Defendant Bush, [the Petitioner] began to ask Kevin to kill Lynn. Kevin testified that [the Petitioner] asked him on "several occasions" to kill Lynn and that she would often do it while she was on the phone with Defendant Bush. However, Kevin testified that he could not remember the first time [the Petitioner] asked him to kill Lynn because he "put a lot of this stuff out of [his] mind because of what [he] did." [The Petitioner] told Kevin that she wanted Lynn killed because "she couldn't divorce him because he wouldn't leave her alone."
After being asked to kill Lynn, Kevin approached his friend Jason Riley and "asked him if he'd be interested in killing somebody for $5, 000." Kevin had previously asked Jackie Young if he would kill someone for money, but Mr. Young had refused. Kevin decided to ask Mr. Riley because he was "a roughneck" and "was known to go out to . . . [construction sites] and steal[ ] shingles and supplies." Kevin told [the Petitioner], while she was on the phone with Defendant Bush, that Mr. Riley had agreed. A meeting was setup between Defendant Bush, Mr. Riley, and Kevin. Kevin testified that he could not remember where the meeting took place but that he picked up Mr. Riley. Defendant Bush was waiting for them in his black Ford pickup truck. All three men got into the truck, and Defendant Bush showed Mr. Riley an envelope that had money in it. Kevin testified that he got out of the truck while Mr. Riley and Defendant Bush discussed the details of the plan to kill Lynn. On November 18, 1981, Kevin picked up Mr. Riley and drove him to Lynn's house. Kevin testified that Mr. Riley waited in the garage for Lynn and that when Lynn came home, Mr. Riley struck him over the head with "a bat or something another." [The Petitioner] told Kevin that the plan was for Mr. Riley to hit Lynn over the head and then drag his body to the road, but Mr. Riley "didn't knock [Lynn] out and [Mr. Riley] got scared and took off running." Kevin testified that he had been "riding around the neighborhood" for ...