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State v. Irizzary

Court of Criminal Appeals of Tennessee, Nashville

March 31, 2017


          Session Date: December 13, 2016

         Appeal from the Circuit Court for Stewart County No. 2013-CR-10 Larry J. Wallace, Judge

         The defendant, Nicole Irizzary, pled nolo contendere to voluntary manslaughter as a lesser-included offense of second degree murder (Count 1), possession of a Schedule II Drug (Count 2), and child abuse and neglect as a lesser-included offense of aggravated child abuse (Count 3). The trial court sentenced the defendant to concurrent, four-year sentences for Counts 1 and 2, to run consecutively to a four-year sentence for Count 3. The trial court denied the defendant's request for alternative sentencing and ordered the effective eight-year sentence to be served in confinement. On appeal, the defendant argues the trial court abused its discretion by denying her request for alternative sentencing and committed plain error by improperly relying on the defendant's silence at the sentencing hearing. Following our review, we affirm the judgment of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court affirmed.

          Jerred A. Creasy, Dickson, Tennessee, for the appellant, Nicole Leigh Irizzary.

          Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Ray Crouch, District Attorney General; Margaret Sagi, and Sarah Wojnarowski, Assistant District Attorneys General, for the appellee, State of Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and Camille R. McMullen, JJ., joined.


          J. ROSS DYER, JUDGE


         On October 14, 2012, the defendant's sixteen-year-old daughter died from a fatal combination of alcohol and the narcotic oxymorphone. Following the victim's death, the defendant was charged with: second degree murder (Count 1); possession of a Schedule II Drug (Count 2); aggravated child abuse (Count 3); contributing to the delinquency of a minor (Counts 4 and 5); conspiracy to sell a Schedule II drug (Count 6); and criminally negligent homicide (Count 7). The defendant pled nolo contendere to voluntary manslaughter under Count 1, possession of a Schedule II Drug under Count 2, and child abuse under Count 3.[1] Per the terms of the plea agreement, the remaining counts were dismissed. The trial court sentenced the defendant to four years under Count 1, concurrent with, four years under Count 2, and both consecutive to four years under Count 3, for an effective sentence of eight years. On January 5, 2016, the trial court held a sentencing hearing in order to determine whether the defendant would serve her sentence in confinement or through an alternative sentence.

         At the sentencing hearing, Special Agent Shawn Adkins of the Tennessee Bureau of Investigation testified that he was charged with investigating the victim's death. On October 14, 2012, Agent Adkins went to the home where the victim died. James Skelton, [2] the owner of the home, consented to a search of the premises. Inside, Agent Adkins found the victim's body in the bed of Dayzon, the victim's boyfriend. The victim was "on her back and her hands were up near her shoulders" with a pool of blood near her body. There were no signs of trauma or wounds to the victim's body. Crime scene officers found a yellow pill in the pocket of the victim's jeans which were located at the foot of the bed. Technicians with the Tennessee Bureau of Investigations tested the yellow pill and identified it as Opana, a potent form of oxymorphone.

         Upon further investigation, Agent Adkins learned that the victim, Dayzon, Darius, and Evelyn Dollar went to a party in Dover, Tennessee the evening of October 13, 2012. Agent Adkins and another investigator interviewed approximately twenty individuals who were at the same party. Witnesses indicated alcohol was consumed at the party even though there were minors present. A number of witnesses recalled Dayzon, Darius, the victim, and Evelyn Dollar being present at the party, and the victim attempting to sell pills.

         When Agent Adkins asked the defendant about the yellow pill found in the victim's pocket, the defendant denied any knowledge of the same. However, the defendant admitted she was prescribed Opana for back pain. Agent Adkins also learned the defendant filled an Opana prescription for sixty pills on October 4, 2012. According to Agent Adkins, the number of deaths attributed to Opana overdose has increased since 2012.

         In her initial statement to Agent Adkins, the defendant denied giving the victim pills and specifically stated, "I didn't give [the victim] any pills . . . I have never sold my pills or asked anyone to sell my pills." The defendant stated that on the morning of the victim's death, she received a call from Dayzon. He told her the victim was having trouble breathing and he could not wake her up. The defendant went to the Skelton home and found the victim lying in a bed "blue and stiff."

         After taking the defendant's statement, Agent Adkins obtained consent to search the cell phones of the defendant, the victim, and Dayzon. One series of text messages recovered from the victim's phone detailed a conversation from October 12, 2012, between Dayzon and the victim. In the conversation, the two discuss getting pills from the defendant to sell. According to Agent Adkins, the victim wrote, "Hey, my mom said that she was wondering if you could get rid of a few pills for her because her insurance came out and she has none. She told me to ask you." Dayzon replied, "How much money she need?" Agent Adkins stated that the victim responded, "She said maybe 60 to 80 . . . She just didn't know her insurance came out and when she tried to get gas, her card wasn't working because no money. But she has 36 pills left told me to take 10 . . . ."

         Agent Adkins testified that in another text exchange the victim wrote, "[the defendant] just found 6 more, lol. Damn, she yes-no, yes-no all morning but told me to get 6 more so we got 16 now. She said we can have 10 or 12. She just really needs some money for gas. And, she said, NOW, KRISTEN, I SHOULDN'T BE TEXTING YOU THIS." Further, on the evening of October 13, 2012, the victim texted the defendant again. According to Agent Adkins, the text exchange read, "Dayzon didn't even bring the pills so can you bring 10 with you and we get them when we give you the 30? So we can hopefully sell them to get gas money for way home." The defendant responded, "Yes."

         Agent Adkins also discovered text conversations between the defendant and her boyfriend, Billy Williams, in which the two discussed selling pills to another individual, Kendrick Stacker. Agent Adkins recovered additional messages from the defendant's phone from later in the evening on October 13, 2012, between the defendant and the victim in which they discussed the victim and Dayzon selling pills at the defendant's request. The text messages were entered as an exhibit at the sentencing hearing.

         After reviewing all of the text messages, Agent Adkins conducted a second interview with the defendant on November 7, 2012. The defendant admitted to giving Dayzon ten Opana pills earlier in the week of October 13, 2012, but continued to deny having given the victim or Dayzon any pills the night the victim died. She told Agent Adkins that she gave the Opana pills to the victim and Dayzon for them to sell so they could make some money. The defendant also told Agent Adkins she had given Kendrick Stacker two Opana pills to sell for her.

         Agent Adkins also interviewed Dayzon a second time. Dayzon told Agent Adkins that he and the victim met the defendant in Clarksville, TN on October 13, 2012. The victim got out of his car and went to the defendant's car. When the victim returned to his car, she had the Opana pills in her hand.

         Agent Adkins testified that the pill found in the victim's pocket matched the Opana prescription recently filled by the defendant. He searched Dayzon's home and discovered a small tin container with eleven Opana pills inside. Dayzon told Agent Adkins he received the Opana pills from the defendant. The investigation revealed the victim and Dayzon sold a minimum of four Opana pills, though the exact number of pills sold was undetermined.

         Additionally, Agent Adkins learned of two separate occasions during the week of October 13, 2012, in which the defendant provided Opana pills to the victim. On one occasion the defendant gave the victim ten pills, and on another occasion she provided sixteen pills, for a total of twenty-six pills. In addition to Dayzon's testimony, Darius and Evelyn Dollar also provided statements that they witnessed the defendant give pills to the victim. Finally, Kendrick Stacker told Agent Adkins that the victim received the pills from the defendant to sell in order to get gas money.

         On cross-examination, Agent Adkins testified the defendant cooperated with the investigation, consented to a search of her cell phone, and gave statements when requested. Agent Adkins admitted he did not search the defendant's home or verify the number of pills in her possession at the time of the victim's death. However, upon examination by the trial court, Agent Adkins testified that the defendant attempted to conceal and downplay her involvement in the victim's death throughout the investigation.

         Dr. Thomas Deering, a Deputy Chief Medical Examiner, also testified at the sentencing hearing. Dr. Deering reviewed the information provided to him by law enforcement surrounding the victim's death, studied the victim's medical history, and also performed an examination of the victim's body. As part of his examination, Dr. Deering took a sample of the victim's blood, the vitreous fluid behind the victim's eyes, and the victim's urine. The victim's blood sample indicated a blood-alcohol level of .154, a small amount of THC, and the presence of Opana at a concentration of eighty-nine nanograms per milliliter at the time of her death. Dr. Deering also tested the fluid taken from behind the victim's eyes for the presence of narcotics and alcohol. The test indicated a blood-alcohol level of .179 and the presence of Opana at a concentration of eighty-nine nanograms per milliliter.

         Dr. Deering explained that Opana is a very strong form of the narcotic oxymorphone and used to treat chronic pain. A typical dose for someone taking Opana for pain is zero to five nanograms. Ninety nanograms would be a lethal dosage, for someone who does not take Opana on a regular basis, especially when combined with alcohol. Opana related deaths typically occur when individuals take too much, they become drowsy, go to sleep, and never wakeup. This happens because the Opana causes the victim's heart rate to slow so much that their body is unable to recover. Alcohol consumption intensifies this effect. Dr. Deering stated that an individual may appear tired but otherwise fine, go to sleep, and pass away while sleeping. He also testified that he has witnessed an increase in Opana related deaths since 2006-2007.

         Dr. Deering testified that, even without the presence of alcohol, the level of Opana in the victim's body would be potentially lethal. According to Dr. Deering, the victim would not have died but for the Opana in her system. Dr. Deering concluded that the victim's cause of ...

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