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Cannon v. State

Court of Criminal Appeals of Tennessee, Nashville

March 21, 2017

KELLEY ELIZABETH CANNON
v.
STATE OF TENNESSEE

          Session Date: October 18, 2016

         Appeal from the Criminal Court for Davidson County No. 2008-C-2809 Mark J. Fishburn, Judge

         A Davidson County jury convicted the Petitioner, Kelley Elizabeth Cannon, of first degree premeditated murder and a life sentence was imposed. On direct appeal, this Court affirmed the Petitioner's conviction and sentence. State v. Kelley Elizabeth Cannon, No. M2010-01553-CCA-R3-CD, 2012 WL 5378088, at *1 (Tenn. Crim. App., at Nashville, Oct. 30, 2012), perm. app. denied (Tenn. May 9, 2013). The Petitioner filed a post-conviction petition alleging ineffective assistance of counsel, and the post-conviction court denied relief following a hearing. On appeal, the Petitioner maintains that she received the ineffective assistance of counsel, asserts that the post-conviction court erred by preventing her use of trial exhibits for a demonstration and challenges the validity of the search warrants in this case. After review, we affirm the post-conviction court's judgment.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

          Drew Justice, Murfreesboro, Tennessee, for the appellant, Kelley Elizabeth Cannon.

          Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Glenn R. Funk, District Attorney General; and Katrin Miller, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert W. Wedemeyer, J., delivered the opinion of the court, in which John Everett Williams and Norma McGee Ogle, JJ., joined.

          OPINION

          ROBERT W. WEDEMEYER, JUDGE

         I. Facts

         A. Trial

          On June 23, 2008, James Cannon, (hereinafter, "the victim") the Petitioner's husband, was found dead in his home in Nashville, Tennessee. The couple had three children, and the victim had filed for divorce in February 2008. At the time of the murder, the victim lived in the marital residence and the Petitioner lived in a nearby apartment. At trial, the jury convicted the Petitioner of the first degree premeditated murder of the victim. On appeal, this Court summarized the facts presented at the Petitioner's trial as follows:

On September 2, 2008, the [Petitioner], Kelley Elizabeth Cannon, was indicted for the first degree murder of James Cannon, her husband, in violation of Tennessee Code Annotated section 39-13-202 (2008). Prior to her trial, the [Petitioner] filed a motion to suppress two statements that she had given to police and a motion to suppress evidence seized during three police searches of the crime scene - the [Petitioner]'s former marital residence. The trial court denied these motions following a hearing. The [Petitioner] also filed a motion in limine concerning certain anticipated testimony regarding a prior domestic dispute between the [Petitioner] and the victim, and a motion challenging the admissibility of certain expert testimony. The trial court also denied these motions.
At the [Petitioner]'s trial on April 26-29, 2010, the State presented the following evidence:
The first witness for the State was the son of the [Petitioner] and the victim, who testified that he was born on September 16, 1990, [sic] and was eleven years old at the time of trial. He testified that he had one younger brother and one younger sister. He testified that after his mother had moved out of the former martial home, only he, his two siblings, and his father (the victim) still lived in the residence. He testified that after his mother moved out of the house, he and his brother started sleeping in their parent's former bedroom, and his dad would sleep either in his office or in the boys' former bedroom.
The witness testified that on the night of the incident he had fallen asleep, along with his brother, in his parent's former bedroom. He testified that sometime after he fell asleep that night, his mother woke him up and told him "we just have to go." He testified that he asked his mother if he could get a pillow from his former bedroom, but his mother told him "no." When he was awakened, he realized that his brother and sister were already ready to leave. He believed the time was between 1:00 a.m. and 2:00 a.m. He testified that his mother would normally come before 9:00 p.m. when she wanted to pick up the children.
The victim's son testified that when they were leaving, the [Petitioner] led all of them down the front set of stairs, rather than down the more convenient back set of stairs near his former bedroom where his father had fallen asleep. He testified that he did not enter or retrieve anything from his former bedroom before they left, including any clothes. He testified that the [Petitioner] seemed "nervous and like jumpy" when she woke him, and because of this, he felt scared and was confused as to why she was there. The witness testified that after they left the former marital residence, the [Petitioner] took all three children to the apartment where she had been living. The witness testified that the [Petitioner] did not talk to them at any point during the car ride. He also testified that the [Petitioner] did not make any phone calls or do anything else before she went to sleep after they arrived at her place.
The witness testified that the following morning, they had been watching cartoons for a few hours when the police knocked on the door. He testified that he assumed that his dad had sent the police to find them. He testified that the [Petitioner] talked to the police for a while and that he and his siblings were placed into a patrol car afterward.
The witness testified that before the night of the incident, the [Petitioner] and the victim had gotten into a "big fight, " and the [Petitioner] had chased after the victim with a knife in an effort to prevent him from calling the police. The witness testified that the [Petitioner] eventually caught the victim, knocked him to the ground, and succeeded in taking the battery out of the his cell phone, but the victim had already called the police. The witness clarified that he had seen the victim push the [Petitioner] all the way to the ground on that occasion. The witness testified that following this confrontation, the [Petitioner] went back into the marital residence, retrieved his younger sister, got into her vehicle, smashed into the back of the victim's car, and drove away with the police in pursuit.
On cross-examination, defense counsel questioned the witness concerning a prior statement he had given to police in which he had not mentioned asking to get a pillow on the night of the incident. The witness testified that he remembered that he wanted to retrieve a pillow from his former bedroom because he knew that the [Petitioner]'s pillows did not "give any cushion to your head." The witness also clarified that he could not be entirely sure where his father had slept on the night in question because he had gone to bed before his father, but he testified that his father had told him that he was going to sleep in the boys' former bedroom that evening. The witness testified that he had informed other individuals that his mom "looked nervous and jumpy" prior to his recent testimony and explained to them that she appeared this way "because she was on drugs and stuff." The witness testified that he could not remember watching any television at the [Petitioner]'s apartment before he went to sleep on the night of the incident, and he could not remember precisely where he and his siblings had slept. The witness claimed that his memory of these events was "fuzzy" because he had been really scared at the time.
Ms. Vicky Shams, the victim's housekeeper, testified that she had been hired by the [Petitioner] and that she had been working for the family for approximately six weeks by the time of the incident. She testified that soon after the [Petitioner] hired her, the [Petitioner] moved out of the house and she never saw the [Petitioner] again. She testified that on June 23, 2008, she arrived at the victim's house at 8:30 a.m., as was her usual practice. She testified that when she tried to let herself into the house with her key, she discovered that the front door was unlocked. After entering the residence, she also noticed several other unusual things - including the fact that the back door was open, numerous items in the house were out of place, the children did not appear to be awake, and there was no sign of the victim, even though he normally left for work at 9:00 a.m.
Ms. Shams testified that the victim also employed two nannies, which he had hired after the [Petitioner] moved out. Ms. Shams testified that at least one of these nannies, and sometimes both, would arrive each morning. She testified that soon after she arrived on June 23, 2008, one of those nannies, Ms. Karley Dewey, also arrived. Ms. Shams testified that soon thereafter she went upstairs to check on the victim's youngest child - an eighteen-month-old toddler who should have been awake by that time - and that she discovered that she was not in her crib and that the other children were gone as well. She testified that a number of things upstairs appeared out of place. She testified that she saw a wine glass and an overturned trash can in the master bathroom, a chest of drawers out of place in the children's bedroom, and a bloody towel beside one of the beds. She testified that she took the bloody towel downstairs with the rest of the dirty clothes and started washing it in the washing machine. She testified that she placed the wine glass, which appeared to have once contained red wine, in the kitchen sink. She testified that she informed the nanny that no one was at home, and the two had a discussion after which they eventually decided that one of the children must have gotten hurt and been taken to a hospital.
Ms. Shams testified that she asked the nanny to follow her upstairs to help her return the chest of drawers to its normal location. She testified that the chest of drawers in the boys' bedroom had been placed against the bedroom closet with its drawers facing the closet door. She testified that the two of them moved the chest of drawers, and then she opened the closet door. She saw the victim lying on the floor inside. She testified that his skin was dark and his hands appeared to be the color of charcoal. She testified that she immediately slammed the door and asked for the nanny to call 911. A short time later, she opened up the closet door again to make sure that the victim was not merely unconscious. She confirmed that he was deceased. She testified that she could detect the strong smell of bleach coming from the closet, and there was a bleach bottle lying on the closet floor.
Ms. Shams testified that emergency medical personnel arrived shortly thereafter. She testified that she asked the nanny to call the victim's mother-in-law (the [Petitioner]'s mother), whom she had met previously. She testified that the nanny did so and handed her the phone. She testified that she informed the victim's mother-in-law that the victim was dead. She testified that she was shocked by the victim's mother-in-law's response. She testified that the victim's mother-in-law's response indicated that she already knew that the victim was dead. Following this testimony, Ms. Shams identified several photographs taken of the crime scene, and these were authenticated and entered into evidence.
On cross-examination, defense counsel questioned Ms. Shams concerning a statement she had given to detectives the day following the murder. In this statement, Ms. Shams told the police that when she arrived on the day of the murder, the house appeared as though it had been completely unattended for the last three days and that she had discovered many alcohol bottles in a brown paper bag downstairs. Ms. Shams testified that finding these alcohol bottles struck her as unusual because there was "already plenty of alcohol" in the home. Ms. Shams testified that she remembered telling the detective that she had thought that the victim might have been highly intoxicated the night before and that he had perhaps been so for the entire weekend. Ms. Shams testified that during the time she worked for the victim she had seen him drink every day, but she had never seen him drink more than one drink per day.
Ms. Shams testified that she put the wine glass she discovered that day in the kitchen sink because she intended to wash it but that she gave it to police before she did so. Ms. Shams testified that she told the police that she initially thought that the victim might have knocked over a dresser upstairs because he had been drinking and had become upset with the children. Ms. Shams testified that she initially told the police that she did not believe that the victim had actually slept in the boys' bedroom the night before because it was his habit to take the lamps off the nearby dresser and put them down on the bunk bed with him when he did so. She testified that when she entered the boy's bedroom, she did not see those lamps in the bunk bed, and consequently she did not believe initially that the [Petitioner] [sic] had slept there the prior evening. Ms. Shams also testified that she stopped the nanny from calling 911 for a brief period of time so she could check on the victim, because she thought that the victim might have been drinking and had just passed out, and she did not want to embarrass the victim if this had occurred. On redirect examination, Ms. Shams testified that she had never seen the victim become intoxicated, and she had never seen him drink more than one drink per day.
Mr. John Hollins, Jr., testified that he was a lawyer who specialized in domestic relations and divorce and that he represented the victim. Mr. Hollins testified that the victim contacted him in February of 2008 concerning getting a divorce from the [Petitioner]. Mr. Hollins testified that on February 29, 2008, the victim met with him in his office and gave him the information that formed the basis of the divorce complaint, which he filed the same day. In conjunction with this divorce action, Mr. Hollins testified that he filed a request to have the victim receive temporary custody of the three children, which was granted. Mr. Hollins also testified that he requested a restraining order against the [Petitioner] preventing her from threatening the victim, harassing him, or harming him in any way, and the judge granted that order as well. Mr. Hollins testified that the judge's order also prevented the [Petitioner] from using or abusing any narcotic medication, alcohol, or drugs in any way.
Mr. Hollins testified that he also requested the judge to issue a restraining order giving the victim exclusive possession of the parties' former marital home, so that the victim and the children could live at the former marital residence by themselves. Mr. Hollins testified that the judge did not grant that request at the time, and it was his belief that the judge had not done so because that type of relief had to be sought through a temporary injunction rather than a restraining order. Mr. Hollins testified that he filed a motion for a temporary injunction for the same purpose on March 3, 2008, which included additional information about the history of events that had occurred between the parties. He testified that the judge granted the victim's request for an injunction on March 4, 2008, giving the victim exclusive possession of the former marital residence and preventing the [Petitioner] from coming to the house or interfering with the victim's possession of the house in any way. Mr. Hollins testified that all these orders were still in effect at the time of the victim's death.
Mr. Hollins testified that he received a phone call from the victim on May 22, 2008, concerning an incident of domestic violence that had occurred the previous evening. Mr. Hollins testified that he advised the victim that he should file a new application for a restraining order, this time in criminal court, stating that he was the victim of domestic violence. He testified that the victim sought and received an ex parte order of protection on May 22, 2008, from the criminal court. He testified that the requisite hearing concerning this ex parte order of protection was delayed on one occasion while the [Petitioner] sought to obtain new representation, and, as a consequence, the ex parte order was still in effect at the time of the victim's death.
Mr. Hollins testified that he received a phone call from the victim's mother-in-law just before lunch on Monday, June 23, 2008, informing him that the victim was dead. He testified that a police officer then got on the phone and asked him to bring any relevant court documents to the crime scene and that he did so.
On cross-examination, Mr. Hollins testified that he was aware that the victim was a lawyer, but he was unaware that the victim had previously done some divorce work. Mr. Hollins testified that he was aware that the victim had transferred all of his interest in the former marital home to the [Petitioner] by quitclaim deed in October of 2005. Mr. Hollins explained that the victim had done so for bankruptcy and estate planning purposes, but he acknowledged that at the time of the victim's death the [Petitioner] was the sole title owner of record of the former marital residence.
Mr. Hollins testified that he was not aware that the [Petitioner] had consulted with a divorce lawyer as early as October of 2007, and he was unaware that the [Petitioner] had made allegations of marital infidelity concerning the victim. Mr. Hollins testified that among the various allegations that he had made when he had requested a temporary injunction from the divorce court were allegations that (1) on March 6, 2008, the [Petitioner] had "collapsed in the lobby of the Loews Vanderbilt Plaza, " (2) on that occasion, she had to be rushed by ambulance to a hospital, where she was given intravenous fluids, and (3) when all this occurred, the [Petitioner] weighed approximately ninety pounds.
Mr. Hollins testified that in the days following the filing of the divorce action there was an informal agreement struck between the [Petitioner] and the victim. Pursuant to this agreement, if the [Petitioner] would enter into drug and alcohol treatment, the victim would consider letting her back into the marital home. Mr. Hollins testified that despite this informal understanding, they did not seek to change any of the court orders because it was his desire to have a sixty-day trial period to determine whether the treatment that the [Petitioner] received was going to be effective. Mr. Hollins testified that had the [Petitioner]'s treatment proven effective, he would have gone to court and sought to have the orders changed, retroactive to the date that the [Petitioner] had entered treatment. However, Mr. Hollins testified that they never got through the informal sixty-day trial period. Mr. Hollins testified that although the [Petitioner] was represented by two lawyers with respect to the divorce action, neither lawyer ever filed an answer to the original divorce complaint or any other responsive pleadings to the victim's requests for ex parte and other forms of injunctive relief.
Mr. Hollins testified that the [Petitioner] checked herself into Cumberland Heights Rehabilitation Center on March 6, 2008, for treatment and that she was released in early April of 2008. Mr. Hollins testified that the [Petitioner] was initially welcomed back into the marital home following her release. Mr. Hollins testified that when the [Petitioner] returned to the former marital home, the restraining orders that had been put into place by the divorce court were still in effect. Mr. Hollins testified that on May 21, 2008, the victim complained to him concerning an incident of domestic violence involving the [Petitioner] that had resulted in the [Petitioner]'s arrest. Mr. Hollins testified that he advised the victim to request an ex parte order of protection from the criminal court, which he did, and once this protective order was granted, the [Petitioner] was not allowed to return to the former marital home. Mr. Hollins testified that in the weeks after the [Petitioner] was released from jail, there was an extended period of time when no one - even the [Petitioner]'s lawyers - knew where she could be located. The [Petitioner] did not answer phone calls or text messages during this time period. Mr. Hollins testified that after a few weeks the [Petitioner] was eventually located, and the victim got her an apartment where she could stay.
Mr. Hollins testified that the day after the victim's death, he contacted an individual working for Northwestern Mutual Life Insurance concerning an insurance policy belonging to the victim that named the [Petitioner] as a beneficiary. Mr. Hollins testified that he could not remember if he had asked this individual to change the beneficiary of the victim's life insurance policy. Mr. Hollins testified that shortly following the victim's death, he filed a wrongful death action against the [Petitioner] seeking $40 million in damages, and he would likely be entitled to thirty percent of any recovery.
On redirect examination, Mr. Hollins clarified that he filed the wrongful death action on behalf of the victim's minor children. Mr. Hollins also testified that one allegation contained in his request for a temporary injunction, concerning the [Petitioner]'s weighing ninety pounds, was made prior to her going into drug rehabilitation. Mr. Hollins testified that he was told that the [Petitioner] needed to be treated on an inpatient basis for sixty to ninety days but that the [Petitioner] would not agree to that and wanted to come home and continue her rehabilitation on an outpatient basis. On recross-examination, Mr. Hollins testified that he was not aware that the [Petitioner] had not received follow-up treatment after she was released from rehabilitation because the victim had refused to pay for it. He explained that it was his understanding that the [Petitioner] simply refused to go. On further redirect examination, Mr. Hollins testified that the victim did not balk at paying for hotel bills, a rental car, and for a condominium for the [Petitioner] and that there had never been any dispute between the parties concerning bills.
The [Petitioner]'s mother testified that on June 23, 2008, her daughter was living in an apartment. She testified that this apartment was about a ten minute drive from the former marital home. She testified that she found out that the victim had been murdered when the victim's housekeeper called her at home. She estimated that this call came in around 8:00 a.m. or 8:30 a.m. She testified that the housekeeper told her that she needed to come to the victim's residence quickly, and she did so. She testified that the police were already there when she arrived. She testified that her grandchildren were not at the residence when she arrived. She testified that she gave the police the names and birthdays of the missing children and that she told the police that the children were probably with their mother, the [Petitioner]. She explained that she told the police this because "[i]t was just the most logical place they could be." She testified that she called both her son (who was in the area) and the victim's lawyer and informed them of the murder, but she did not call the [Petitioner] because she did not have the [Petitioner]'s cell phone number and the [Petitioner]'s apartment did not have a landline. When the prosecutor asked her specifically whether the witness had called her daughter the day before the murder and talked to her for an extended period of time, she denied remembering doing so and denied remembering her daughter's phone number. She also testified that she did not go over to the [Petitioner]'s apartment, or ask her son to go over to the [Petitioner]'s apartment, to inform the [Petitioner] of what had happened even though the [Petitioner]'s apartment was only ten minutes away.
On cross-examination, the [Petitioner]'s mother testified that she and her daughter were "somewhat estranged." She also testified that on the day prior to the murder, she had several conversations with the victim concerning the possibility of their getting together for dinner, but nothing ever came of these plans. On redirect examination, the prosecutor observed that the witness seemed to clearly remember various conversations with her son-in-law on the day before the murder, and asked her if she now could recollect talking with the [Petitioner] for nearly an hour on the same day. The witness claimed she still could not remember any such conversation.
. . . .
Officer Jeffrey Biggerstaff testified that he was an officer with the Metropolitan Nashville Police Department with seventeen years experience. He testified that he was a training officer and that on the day of the incident, he and a trainee arrived at the crime scene to assist detectives who were already at the scene. He testified that they arrived at the crime scene at approximately 10 a.m. He testified that the detectives in charge requested that he and his partner go to the [Petitioner]'s apartment in an effort to locate the [Petitioner] and her children. He testified that the [Petitioner]'s apartment was approximately half a mile from the victim's house. He testified that when he knocked on the door, the [Petitioner] answered and allowed them into the premises. The officer testified that the [Petitioner] appeared to be calm and that he could also observe the children calmly playing video games.
Officer Biggerstaff testified that the [Petitioner] never asked why they were there. He testified that he told the [Petitioner] that they were there to check on her welfare and the welfare of the children. He testified that he did not tell the [Petitioner] that her husband was deceased. He testified that he instructed the [Petitioner] to remain where she was until the detectives arrived and that he remained at the [Petitioner]'s apartment until they did so.
On cross-examination, Officer Biggerstaff testified that the scene at the [Petitioner]'s apartment appeared to be normal. He testified that he had been instructed by the detectives to notify them when he made contact with the [Petitioner] and her children, but the detectives never instructed him not to tell the [Petitioner] that her husband was dead. He testified that he made this decision to withhold this information on his own.
Officer William Stokes of the Metropolitan Police Department testified that he was a police detective and that he had responded to a call at the victim's house along with another detective, Officer Brad Putnam. He testified that he and Officer Putnam walked through the house after they arrived. He testified that he and another officer, Lieutenant Nancy Felder (his supervisor), then left the crime scene and went to the [Petitioner]'s address. He testified that when he arrived at that location there were already two uniformed police officers there, one inside and one outside the apartment. He testified that the [Petitioner] and her three children were also there and that the two older boys were watching TV. He testified that the [Petitioner] never asked them why they were there.
Officer Stokes testified that he told the [Petitioner] that they would like to speak with her. He testified that he went to the [Petitioner]'s apartment for the purpose of getting a statement from the [Petitioner] and that after she agreed to speak with them he tape recorded her statement. The witness was shown a CD and transcript of that interview, which he authenticated. They were entered into evidence and the interview was played for the jury. The witness also identified the [Petitioner] in open court.
Officer Stokes testified that he and Lieutenant Felder interviewed the [Petitioner] in the bedroom of the [Petitioner]'s apartment, which was the only room in the apartment where they could have some degree of privacy from the [Petitioner]'s older children. He testified that the [Petitioner]'s toddler was present in the room during the interview. He testified that the tape recorder he used to record the interview was not hidden and in the open.
On cross-examination, Officer Stokes testified that the first interview with the [Petitioner] lasted for about an hour. He testified that the [Petitioner] answered all of the questions she was asked during this interview, and even directed officers to the location of her rental car in the apartment's parking lot. Officer Stokes also testified that at the end of the interview, when he asked the [Petitioner] if she would be willing to come to the police station for another interview, the [Petitioner] replied "absolutely." Officer Stokes testified that he had been prepared to inform the [Petitioner] that her husband was dead at several points during the interview, but was cut off by his supervisor, Lieutenant Nancy Fielder. At one point during the interview, the [Petitioner] asked the detectives "where is he, " referring to her husband, at which point Officer Stokes replied to her: "He's at home." Officer Stokes testified that when the [Petitioner] was finally informed that her husband was dead (fifty minutes into the interview), the [Petitioner] was very emotional and started hyperventilating.
Officer Stokes also testified that on an occasion following the interview he returned to the [Petitioner]'s apartment complex for purposes of serving a warrant. He testified that the [Petitioner] was not home when they arrived, and they waited for her to return. He testified that when the [Petitioner] returned, her vehicle was being followed by a Dodge pickup truck that was being driven by a man. He testified that he saw this man get out of his pickup truck, walk over to the [Petitioner]'s vehicle, and lean into the window. He testified that he never obtained the license tag number of this truck and never interviewed its driver. After the individual left, the officers executed the search warrants and seized several items. Officer Stokes testified that as they were leaving, the [Petitioner] indicated to them that she was concerned for her safety, and he advised her to call the police if she felt threatened.
On redirect examination, Officer Stokes clarified that the [Petitioner] had indicated to him that she was concerned for her safety because she was nervous staying by herself. He testified that he advised her to call the police if she thought anyone was prowling around outside her apartment. On cross-examination, Officer Stokes testified that the man in the truck was still within earshot when they approached the [Petitioner]'s vehicle, identified themselves as police officers, and indicated that they had a search warrant. Officer Stokes testified that the individual got into his truck and left after hearing this information.
Officer Johnny Lawrence of the Metropolitan Nashville Police Department testified that his unit specialized in photographs, fingerprints, collecting evidence, crime scene reconstruction, and bloodstain interpretation. He testified that he investigated the crime scene at the victim's residence on June 23, 2008. Officer Lawrence testified that he created a number of diagrams and took a number of photographs of the crime scene, and he authenticated these items, which were then entered into evidence. Officer Lawrence testified that the tip of a latex glove was discovered in the children's bedroom, with the remainder of that latex glove being found inside the closet door of that same bedroom. Officer Lawrence also explained that he discovered a cell phone charger whose cord was missing and which appeared to have blood on it. He testified that he cut out several pieces of the carpeting in that bedroom because they appeared to have possible bloodstains.
Officer Lawrence testified that there was a strong odor of bleach when he went into the closet of the children's bedroom. He discovered a bleach bottle inside. He testified that further investigation revealed that bleach had been poured and splattered onto the victim's body. Officer Lawrence testified that in the children's bedroom he also discovered a closed water bottle, a pair of eyeglasses, a briefcase, and a man's watch near the bed. The briefcase contained a cell phone and some other items. Officer Lawrence testified that they searched the house but could not find the victim's wallet or his identification, and he testified that to his knowledge those items had never been found. He testified that when he searched the house he came across a partially open window, which he photographed. He testified that he processed the window to see if he could locate any fingerprints, and he was able to lift several fingerprints from the outside of the windowpane.
Officer Lawrence testified that he was given a wine glass, which he processed for fingerprints and DNA. He testified that he collected a box of latex gloves from the laundry supply room of the victim's house. Officer Lawrence also testified in detail concerning the procedures he used to collect and secure the evidence that he collected in the case.
On cross-examination, Officer Lawrence testified that by the time he arrived at the crime scene, numerous police officers, emergency personnel and family members had been in the house. He also testified that he did not see any of the officers at the crime scene wearing the protective booties on their shoes that were designed to protect against biohazards and prevent items of evidence from being tracked from one room to another. Officer Lawrence testified that if the [Petitioner] had lived in the house for three years, he would have expected to find a significant amount of her DNA inside.
Ms. Alicia Mahoney, a crime scene investigator for the Metropolitan Nashville Police Department, testified concerning photographs she took of the crime scene on the morning of June 23, 2008, and additional investigation that she performed. Ms. Mahoney testified that she found two white latex gloves in the backyard behind the victim's residence, one of which was hung on a tree branch. She also testified that she found an empty beer can in the driveway area in the back of the victim's house and an empty beer bottle in a planter in the front yard, which she took into evidence.
Ms. Rhonda Evans, a crime scene technician with the Metropolitan Nashville Police Department, testified that she assisted Officer Lawrence with his investigation of the crime scene on June 23, 2008, by taking a bag of clothing to the property room. She testified that afterward she assisted Officer Putnam with collecting items from the [Petitioner]'s house, including a white tank top, a pair of blue jeans, a pair of white high-heeled shoes, and a box of latex gloves that was labeled "Walgreen's." She also testified that she took latent prints from the crime scene and that she took photographs and lifted fingerprints from the [Petitioner]'s vehicle. She testified that she took a photograph of what appeared to be a piece of a box of latex gloves from inside the [Petitioner]'s vehicle and collected that item. She also testified in detail concerning the procedures that she used to collect and store the evidence that she collected. On cross-examination, Ms. Evans testified that the jeans she took into evidence were a size one and that the T-shirt she received was a size "small."
Ms. Linda Wilson, an analyst in the identification section of the Metropolitan Nashville Police Department, testified that she had fifteen years of experience in analyzing fingerprints and was qualified by the court as an expert in latent print examination. Ms. Wilson testified that nine different sets of prints were discovered at the crime scene and given to her for analysis. She testified that most of the prints she received from the crime scene had no value because they did not have sufficient detail for her to make a valid comparison. She testified that a pair of prints recovered from the front door and from the bathroom sink were of sufficient quality to make a comparison, but did not match either the victim or the [Petitioner].
She testified that she was able to identify fingerprints found on the doorframe of the baby's bedroom, as well as prints from a water bottle found in the children's bedroom, as matching the victim. She testified that she was able to identify a print taken from the children's bedroom closet door frame as matching the [Petitioner]. She testified that there were no unidentified prints on the doorframe of that closet door that might have come from someone else. She testified that she had also identified fingerprints that were found on the outside of the partially open window to the victim's house, as well as on the driver's side door of the [Petitioner]'s rental car, as matching the [Petitioner].
On cross-examination, the witness testified that if someone had lived in a house for an extended period of time, their fingerprints would probably be found throughout the residence. In addition, she testified that there is no way to determine how long fingerprints have been on a surface. She testified that she had also examined all of the fingerprints from the crime scene to determine if any matched a man named James Dean Baker (who had an arrest record in the county) and that none did.
Ms. Amy Huston, a mutual friend of the victim and the [Petitioner] and the godmother of the [Petitioner]'s youngest child, testified that sometime in April, following the [Petitioner]'s release from rehabilitation, the [Petitioner] had called her and asked her what the victim knew about her (the [Petitioner]) having affairs. Ms. Huston testified that she told the [Petitioner] that she had no information on the subject. Ms. Huston testified that she had no further contact with the [Petitioner] until Sunday, June 22, 2008. She testified that she received a call from the [Petitioner] around 8:00 p.m. that evening. She testified that the [Petitioner] sounded very upset and asked her if she would call some additional girlfriends and come out and meet her. She testified that she got dressed and went to meet the [Petitioner] by herself at around 9:00 p.m. at an establishment named "Bricktops." She testified that when she arrived, the [Petitioner] was not there. She testified that soon thereafter, the [Petitioner] called her and told her that she had "cut herself shaving, " and needed to "run by the drugstore and get a Band-Aid." When the [Petitioner] arrived at approximately 9:30 p.m., she had a Band-Aid on her thumb covering a cut that appeared to have been caused by a straight razor.
Ms. Huston testified that the [Petitioner] ordered a glass of wine and started talking. She testified that the [Petitioner] was making comments such as "how dare he divorce me, " and "he can't do this . . . I'm the primary caregiver." She testified that their conversation was not genial.
Ms. Huston testified that in the entire time she had known the [Petitioner], she had never known the [Petitioner] to work outside the home. She testified that she advised the [Petitioner] to get a job so that she could support herself, but the [Petitioner] did not receive this suggestion well. There was some further discussion about jobs requiring a drug test. She testified that she stayed with the [Petitioner] until around 11:00 p.m., and the [Petitioner] had three glasses of wine during this time. She testified that the [Petitioner] received a cell phone call during their conversation, and the [Petitioner]'s cell phone appeared to be working normally. She testified that she could only hear one side of the phone conversation, which sounded like a "marital fight" from her perspective. She testified that during this conversation she heard the [Petitioner] say that "they were her kids and that he could not have them, that they were hers." She testified that she and the [Petitioner] both left the establishment at the same time and that she could see the [Petitioner] sitting in her car, possibly still talking on the phone, as she drove away. Ms. Huston testified that she had known both the victim and the [Petitioner] for a long time and that while the [Petitioner] was "not a large woman, " the [Petitioner] [sic] was "not a big man."
On cross-examination, Ms. Huston testified that she considered the [Petitioner] to be a friend, which was why she had gotten out of bed and dressed to go meet her that evening. She also testified that if the [Petitioner] had been in trouble, she would have wanted to help her out and that she had hoped that the [Petitioner] would "address her drug issues and get better." The witness testified that when the [Petitioner] arrived at Bricktops that evening, she had an enormous handbag with her, and she testified that the [Petitioner] may have made some comment to the effect that she was "sort of living out of that bag." The witness testified that the victim was a regular drinker in social settings.
. . . .
Officer George Ward of the Metropolitan Nashville Police Department testified that he was a patrol officer and that he responded to a domestic disturbance that was reported on May 21, 2008. Officer Ward testified that he was informed by dispatch that the [Petitioner] was taking one of the children and had pushed a vehicle out of the way with her vehicle. When he arrived at the victim's house, he saw a black GMC Yukon at the end of the driveway with the [Petitioner] in the driver's seat. He testified that he saw the [Petitioner] look right at him and make eye contact with him before proceeding to turn left out of the driveway and go in the other direction. Officer Ward testified that he had his lights on but his siren off at this time. He testified that when he saw the [Petitioner] pulling away, he turned his siren on and drove right behind the [Petitioner]. He testified that the [Petitioner] kept accelerating. He testified that when the [Petitioner] had finally reached a speed of 70 mph while still in a 30 mph residential zone, he backed off in order to avoid an accident. He testified that he chased the [Petitioner] for approximately a quarter-mile before he discontinued pursuit.
Officer Ward testified that when he returned to the victim's house, the victim was present. He testified that the victim's shirt was ripped and had a grass stain on it and that the victim's right bicep was bruised. He testified that the victim's vehicle was still at the residence and that there was some damage to the vehicle's rear bumper. Officer Ward took photographs of the victim, his vehicle, and the residence, and he authenticated these items, which were entered into evidence. Officer Ward testified that the [Petitioner]'s vehicle was equipped with OnStar, which he used with the victim's consent to locate the [Petitioner]. He testified that he and a fellow officer assisted the victim in securing an order of protection and in taking out criminal warrants against the [Petitioner].
On cross-examination, Officer Ward testified that he had been to the victim's residence previously, when the [Petitioner] had accused the victim of kidnapping after he had picked the elder boys up from school on the day he filed for divorce. Following Officer Ward's testimony, another officer also testified concerning this earlier domestic disturbance call and its aftermath.
Mr. Aaron Bagley testified that he worked at the Hickory Falls Bar and Grill in Smyrna, Tennessee. Mr. Bagley testified that on May 29, 2008, he was working as a bartender when the [Petitioner] came into the establishment to pick up a "to go" order. He testified that the [Petitioner] stayed for about forty-five minutes and that during that time, she started telling him all about the fact that she was going through a divorce. He testified that she stated that she had discovered her husband was cheating on her and had caught him flying women to come in and see him from other states. He testified that the [Petitioner] told him that if her husband "tried to take the babies" away from her, she would kill him. He testified that she appeared to be very distraught, bitter, and emotionally unstable during this conversation. He testified that the [Petitioner] ate her dinner at the bar and drank several glasses of white wine while she was there. He testified that the [Petitioner] repeated her claim that she would kill her husband a number of different times and in a number of different contexts. He testified that this conversation was unusual and memorable, even for a bartender. He testified that he had never seen the [Petitioner] before that evening and that he never saw her again until he saw her picture on the evening news. Following this testimony, he was shown a restaurant receipt from that evening, which listed his name as the server, and he read the signature at the bottom of that receipt, "Kelley."
On cross-examination, the witness acknowledged that he never called the police concerning this conversation, even though he took it seriously and had access to enough information to identify the [Petitioner]. He also agreed that in his initial statement to police, he indicated that the [Petitioner] looked very skinny and that he had underlined the word "very."
. . . .
Mr. Rick Greene, who had been in treatment with the [Petitioner] at Cumberland Heights, testified that the day following the murder the [Petitioner] called him over and told him that she had been to the former marital residence the night before, had entered it through the already-open front door, and had removed her children when she could not find her husband. Mr. Green further testified that she stated "I can't tell you anything because I don't want to have to lie to you" when he had asked her if she knew that her husband was in the closet that evening.

. . . .

Dr. Thomas Deering, the State's forensic pathologist, testified that the victim weighted [sic] 163 pounds when he died and that he died as a result of strangulation - most likely by ligature. Dr. Deering also testified that there were signs that the victim had suffered multiple blunt force trauma to his head. The victim's body showed signs of post-mortem abrasions consistent with its having been dragged along the carpet. Finally, Dr. Deering testified that while great force had been used to strangle the victim, this force could have been generated by someone who was not overly strong if the assailant had used a ligature and the victim was struggling.
Agent Linda Littlejohn of the Tennessee Bureau of investigation, the State's expert in micro-analysis, testified that she had analyzed a piece of a Walgreen's latex glove box that had been found in the [Petitioner]'s car and determined that it matched a torn Walgreen's latex glove box found in the [Petitioner]'s home. She further testified that she had made a physical comparison of the latex gloves found at the crime scene and determined that the three gloves discovered there were inconsistent with gloves coming from a box found at the victim's residence but were consistent with the gloves coming from the Walgreen's box found at the [Petitioner]'s apartment.
Agent Jennifer Shipman, a forensic scientist for the Tennessee Bureau of Investigation and the State's expert in DNA analysis, testified that a DNA test performed on a blood stain found on the [Petitioner]'s jeans revealed DNA from both the [Petitioner] and the victim. She testified that she found the [Petitioner]'s DNA on the inside of the latex glove discovered in the children's bedroom and a mixture of the [Petitioner]'s and possibly the victim's DNA on the outside of that glove. Finally, she testified that blood and DNA belonging to the victim were found on the base of the Motorola phone charger at the crime scene.
Mr. Elliot Webb, Walgreen's loss prevention supervisor, identified and authenticated store surveillance footage taken from a Walgreen's location on Charlotte Pike at 11:17 p.m. This footage, which was played for the jury, appeared to show the [Petitioner] removing a box of latex gloves from a shelf and then exiting the store without paying for it.
Following all of this testimony, the State rested. During a jury-out hearing, the [Petitioner] moved for a judgment of acquittal. The trial court denied this motion, and the [Petitioner] was advised of and waived her right to testify in her own defense pursuant to the procedures established in Momon v. State, 18 S.W.3d 152, 162-64 (Tenn.1999). The defense then presented the following testimony:
Officer Freddie Stromatt of the Metropolitan Nashville Police Department testified that he was a detective who had assisted in the homicide investigation involving the victim on June 23, 2008. He testified that he arrived at the crime scene at 9:00 a.m. or 10:00 a .m. and stayed there until 10:00 p.m. or 11:00 p.m. He testified that while he was at the crime scene, arrangements were made for the [Petitioner] to pick up a vehicle from the former marital residence. He testified that he was a part of the discussions arranging for the [Petitioner] to be provided with a vehicle. He testified that at approximately 9:15 p.m. that night, an individual named James Dean Baker arrived at the crime scene and stated that he was there to pick up a vehicle for the [Petitioner]. Officer Stromatt testified that he allowed Mr. Baker to pick up a vehicle for the [Petitioner]'s use. While he was talking with Mr. Baker, he learned that Mr. Baker had met the [Petitioner] at Cumberland Heights Rehabilitation Center. Officer Stromatt testified that he checked Mr. Baker's identification when he picked up the vehicle to see if he had any outstanding warrants and that he determined that Mr. Baker had a criminal record.
On cross-examination, Officer Stromatt testified that his encounter with Mr. Baker occurred as the result of his and other officers' attempts to accommodate the [Petitioner] by affording her a vehicle to drive while her rental vehicle was under investigation. Officer Stromatt testified that he asked Mr. Baker whether Mr. Baker had any knowledge of the events that had occurred in the house the previous evening and that Mr. Baker replied to him that he did not. On redirect-examination, Officer Stromatt testified that he would not just take someone's word that they were not involved in a crime but that to his knowledge neither he nor any of the other officers had ever interviewed Mr. Baker.
Ms. Pamela Jo Brady testified that she was a former administrative assistant for the Marshall Space Flight Center in Huntsville, Alabama, and had known the [Petitioner] since 1989, when the [Petitioner] was hired for a position there. Ms. Brady testified that she and the [Petitioner] developed a friendship outside the office. Ms. Brady testified that she was the maid of honor at the [Petitioner]'s wedding to the victim. Ms. Brady testified that when the [Petitioner] was arrested on May 21, 2008, following a domestic dispute, the [Petitioner] called her, and she made some phone calls on the [Petitioner]'s behalf. She also traveled to Nashville to assist the [Petitioner] following her arrest, and she spent a couple days with her while the [Petitioner] was staying at a hotel. Ms. Brady described the [Petitioner]'s physical appearance in May of 2008 as "visibly shaken, and she had night sweats." Ms. Brady also described the [Petitioner] as "very nervous, " "pale and sick, " and "seem[ing] to have pneumonia." Ms. Brady testified that the [Petitioner] looked the smallest that she had ever seen her during this time period and appeared to weigh somewhere in the range of ninety pounds. She testified that it was very difficult for the [Petitioner] to talk or communicate during the time she stayed with her at the hotel.
Ms. Brady testified that at one point during her stay with the [Petitioner] at the hotel, she witnessed the [Petitioner] receive a phone call from the victim. When she received the phone call, the [Petitioner] appeared to be visibly shaken, and she stated to Ms. Brady that she did not want to answer the phone because she was afraid that she might be breaching an order of protection. Ms. Brady stated that the [Petitioner] told her "he's called so many times . . . I'm going to see what he wants." Ms. Brady said she listened to the [Petitioner]'s side of the ensuing conversation, and the [Petitioner] stated, "Do not come and get me, no, do not come and get me." She stated that the [Petitioner] started crying and asked, "Jim, why are you doing this, why are you putting me through this, why are you doing this?"
Ms. Brady testified that the following month, in June of 2008, the [Petitioner] came to visit her in Huntsville for the weekend. She testified that the [Petitioner] arrived on Saturday, June 14, 2008, and left on Monday, June 16, 2008. She testified that the [Petitioner] had been scheduled to arrive between 7:00 p.m. and 9:00 p.m. on Friday the 13th, but did not arrive until 2:00 a.m. on Saturday morning. When the [Petitioner] arrived, she appeared dazed and confused. Ms. Brady testified that the [Petitioner] appeared worse physically than when she had seen her in May. She testified that the [Petitioner] was nervous, could not sleep, and had night sweats. Ms. Brady testified that during her weekend visit, the [Petitioner] never expressed any animosity towards the victim. The witness also testified that during the time she knew her, the [Petitioner] was always a loving mother. Ms. Brady testified that she had met the victim on a handful occasions and that the victim always had a drink in his hand.
On cross-examination, Ms. Brady acknowledged that she had not seen the victim in at least six years. She also testified that she was not aware that the [Petitioner] had a drug problem. When the prosecutor asked her if the [Petitioner]'s appearance - including her being nervous and having night sweats - could have been a natural result of the [Petitioner]'s drug addiction, the witness responded, "I'm not medically qualified to answer that question."
Following Ms. Brady's testimony, Dr. Amanda Sparks-Bushnell, the [Petitioner]'s psychiatrist, took the stand. Dr. Bushnell testified that she began treating the [Petitioner] in the spring of 2008 for anxiety, depression, panic disorder, and Post Traumatic Stress Disorder. She testified that she saw the [Petitioner] on an approximately weekly basis between April and June of 2008. She testified that she gave the [Petitioner] her cell phone number and that the [Petitioner] called her frequently. She testified that the [Petitioner] was "quite small" and that with respect to the [Petitioner]'s appearance, "the term waif like is what keeps coming to mind." Dr. Bushnell stated that when the [Petitioner] wore a sleeveless shirt, she noticed that the [Petitioner] had loose skin on the back of her triceps that was indicative of rapid weight loss and that the [Petitioner] had "no definition between the biceps muscle, the triceps muscle."
Dr. Bushnell stated that she was treating the [Petitioner] with Adderall, Zoloft, Provigil, and Clonazepam. Dr. Bushnell testified that she also prescribed Pristiq later during the [Petitioner]'s treatment when "[h]er anxiety was going beyond what the Zoloft could handle." Dr. Bushnell testified that the [Petitioner] was not psychotic and that she could find no evidence that the [Petitioner] had ever had a psychotic episode.
On cross-examination, Dr. Bushnell clarified that prior to being incarcerated for the victim's murder, the [Petitioner] "was quite gaunt and emaciated" and that she only started to look healthier and put on more weight after her incarceration. Dr. Bushnell testified that if the [Petitioner] had been mixing all the different medications that she had been prescribed with alcohol and/or pain medications, this could have led to some of the behaviors that she had described in her direct testimony.
Dr. Jonathan Arden, the [Petitioner]'s expert in the field [of] forensic pathology, testified that he had reviewed various documents that he had received from the State, including the victim's autopsy report, toxicology report, the medical examiner's investigation report, and photographs of the crime scene and the autopsy. Dr. Arden testified that in his expert opinion, the victim's death was caused by strangulation by ligature. Dr. Arden testified that a substantial amount of force was used over an extended period of time to strangle the victim. Dr. Arden testified that the amount of force that had been used to strangle the victim was far more than was necessary to accomplish the strangulation, and in his opinion the victim was probably strangled in a minute or less but certainly no more than three or four minutes. Dr. Arden testified that in his opinion, it would have taken a strong person to accomplish this strangulation because the ligature had been pulled very tightly and held with a large amount of force. Dr. Arden also testified that the victim had superficial injuries to his face that he believed were probably caused by some kind of altercation. Marks on the victim's neck indicated that the victim was probably moving against the ligature during this altercation.
Dr. Arden testified that he had reviewed the victim's toxicology report and found that the victim had a blood alcohol content of 0.15. Dr. Arden testified that a 0.15 blood alcohol content was almost double the amount necessary to qualify for driving under the influence in most states. Dr. Arden testified that an experienced drinker would be able to stand up and have a conversation with a blood alcohol content at that level but would have diminished reflexes and reaction times.
On cross-examination, Dr. Arden testified that he had never interviewed the [Petitioner] and that he was not testifying that it was physically impossible for the [Petitioner] to have strangled the victim. Dr. Arden testified that he was aware that the [Petitioner] had previously worked for a medical examiner's office in Nashville, but he was not aware that she had assisted with autopsies. Dr. Arden agreed with the prosecutor that strength and force were not the same thing. Dr. Arden also agreed that it was possible for the victim to have lost consciousness within ten seconds after the application of the ligature, and he agreed that once the victim lost consciousness it would not take a huge amount of pressure to complete the strangulation. Following this testimony, the [Petitioner] rested.
In rebuttal, the State presented the testimony of Mr. James Dean Baker. Mr. Baker testified that he knew the [Petitioner] because they were in rehabilitation together. He testified that after the [Petitioner] was released from Cumberland Heights, he assisted her with moving and things of that nature. He testified that he spoke with the [Petitioner] on the morning after the victim was killed and that she asked him to help her get her vehicle from her house. He testified that when he arrived at the crime scene, he talked to Sergeant Freddy Stromatt, with whom he was somewhat familiar because he worked with one of the officer's relatives at the fire department. Mr. Baker testified that he retrieved the vehicle and that afterward, he and the [Petitioner] went to an establishment and got something to eat.
Mr. Baker testified that he had never met the victim and that he did not know anything about - or have any personal knowledge of - how the victim came to be murdered. Mr. Baker testified that after he and the [Petitioner] had dinner on the night after the murder, the [Petitioner] spoke with him on the phone and told him that it "wasn't her on the Walgreens video." The [Petitioner] also asked him to pray for her and write her letters.
On cross-examination, Mr. Baker testified that he did "not really" use Cumberland Heights as a way to meet women and that he was unaware that he had a reputation there for being a "flirt." Mr. Baker also acknowledged on the stand that he was involved in a divorce from his wife in 1997 and 1998 and acknowledged that his wife was represented by the victim during that divorce. The witness explained that he had learned this for the first time when his brother had told him that morning, and he explained that his memory from that time period was "blurry" because he was "using crack cocaine pretty bad."
Mr. Baker also denied remembering anything about a restraining order that the victim had obtained for his (Mr. Baker's) wife during their divorce. He denied remembering anything about his going out to his former wife's house with a hack saw and trying to saw through a "club" that was securing the steering wheel of a Mustang, and he claimed that he was not arrested on that occasion. The witness acknowledged that he was terminated from his job at the fire department because of arrests for attempted burglary, stalking, trespassing, and doing drugs. The witness acknowledged frequently calling the cell phones and pagers of members of the 20th Judicial Drug Task Force following his arrest on drug charges. The witness concluded by testifying that police officers had not ...

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