Court of Criminal Appeals of Tennessee, Knoxville
Session July 26, 2016
from the Circuit Court for Blount County No. C18506 David
Reed Duggan, Judge
Jeffrey Scott Long, was indicted by the Blount County Grand
Jury for first degree murder, felony murder during the
perpetration of a burglary, aggravated burglary, and
aggravated assault. Following a jury trial, Defendant was
convicted as charged, and the trial court merged the two
murder convictions. The trial court imposed a life sentence
for the murder conviction and concurrent six-year sentences
for the remaining two convictions. In this appeal as of
right, Defendant raises the following issues for our review:
1) Defendant's statement to police should have been
suppressed because he made an unequivocal request for
counsel, and he did not knowingly and voluntarily waive his
Miranda rights; 2) the trial court erred by
admitting into evidence an order of protection granted to the
victim against Defendant; 3) the trial court erred by
admitting into evidence autopsy photos; 4) the trial court
should have suppressed evidence seized as a result of a
warrantless search of Defendant's apartment; 5) the trial
court erred by allowing expert testimony outside the scope of
the forensic pathologist's expertise; 6) the trial court
erred by denying Defendant's request for a special jury
instruction; 7) the trial court erred by allowing evidence
that was not properly authenticated; 8) Defendant was denied
a fair trial because a portion of trial testimony was not
transcribed; 9) the evidence was insufficient to sustain
Defendant's convictions; 10) the State exceeded the scope
of its closing argument on rebuttal; and 11) the cumulative
effect of the errors requires reversal of Defendant's
convictions. Having carefully reviewed the entire record and
briefs of the parties, we conclude that there is no error.
Accordingly, we affirm Defendant's convictions.
R. App. P. 3 Appeal as of Right; Judgments of the Circuit
R. Maifair, Nashville, Tennessee, for the appellant, Jeffrey
Herbert H. Slatery III, Attorney General and Reporter;
Nicholas W. Spangler, Assistant Attorney General; Michael L.
Flynn, District Attorney General; and Betsy Smith and Shari
Tayloe, Assistant District Attorneys General, for the
appellee, State of Tennessee.
T. Woodall, P.J., delivered the opinion of the court, in
which Camille R. McMullen, and Robert H. Montgomery, Jr.,
T. WOODALL, PRESIDING JUDGE.
15, 2010 hearing on motion to suppress Defendant's
Kris Sanders, of the Alcoa Police Department, was the lead
investigator in the September 10, 2009 death of the victim,
Janice Long. On September 12, 2009, Detective Sanders
interviewed Defendant at the Alcoa Police Department.
Defendant's handcuffs were removed, and he was given a
soda to drink. A video recording was made of the interview.
Detective Sanders reviewed a Miranda rights waiver
form with Defendant, and Defendant signed it. Before signing
the waiver, Defendant stated, "I am gonna have to get an
attorney, but I mean I was gonna talk to y'all without
one for a little bit here. So, I still have to sign this even
though I'm gonna get an attorney?" In response,
Detective Sanders stated, "If you are requesting an
attorney then I have to stop right now, and that's what
you're doing." Defendant stated, Well I'm gonna
have to have an attorney in court." Detective Susan
Burcham, who was also in the interview room, stated,
"Well, this isn't regarding court . . . ."
Defendant interrupted, stating, "I know. Y'all are
wanting a statement on what happened. I know exactly what
y'all are wanting. Y'all want to know my side of the
story cause there's not a story until I tell y'all
something." Defendant continued, "What I was
reading right here, I mean, it says up here that I can stop
answering questions at any time. ... So, I can still sign
this and if I want to answer a question I can, and if I
don't, I don't have to. I mean, I basically wanted to
tell y'all what happened. I mean, I don't mind doing
Detective Sanders then gave the following explanation:
Let me explain it to you this way. You have two rights, ok.
One of those rights is the right to remain silent, not to
tell us anything, ok. You also have the right to have an
attorney present, ok. Those two rights can be invoked at any
time during this process. What you're doing by signing
this waiver is you are waiving those rights, and you're
agreeing to talk to us. But what you've got to remember
is if we ask you a question you don't want to answer, you
don't have to answer, ok. If we start getting in our
discussion to where you are feeling uncomfortable, you can
stop this interview at any time, ok. You can request an
attorney at any time. Now once you request the attorney or
tell us you don't want to answer a question, then we are
done. You can invoke your rights at any time.
responded, "From what I understand they're not gonna
give me an attorney until I go to court anyway."
Detective Sanders responded, "That's true."
Detective Burcham added, "Right, that doesn't mean
[an attorney] is gonna appear, here now." Defendant then
stated, "I don't mind signing [the waiver]. I mean,
I wanna talk to y'all a little bit anyway. I been [sic]
wanting to." Detective Sanders stated,
Before you start, I want to make sure you understand that you
can at any point during this invoke your rights and we will
stop, ok. So you understood everything I read to you? And you
understand that you have the power to say, I'm done
talking, I would like to get an attorney? And you understand
that? Is there any question you have about that?
Defendant indicated that he understood and had no questions.
The trial court denied Defendant's motion and concluded,
There is no question, absolutely none, that [Defendant] was
fully advised of his right to have an attorney for advice
before we ask you any questions and to have an attorney with
you during questioning. That was clearly read to him. We not
only heard it, it's in the Miranda form that we
have here today. I'll come back to when it was signed
here in a moment. So, there is no question that he was told.
Absolutely no question that he was told he had the right to
have the attorney - to talk to an attorney before he was
asked any questions and to have the attorney present during
* * * *
The only thing that even gives me pause in this case is
because at one point [Defendant] said, from what I understand
they're not going to give me an attorney until I go to
court anyway and Detective Sanders said that's true.
Obviously the Defendant could say, well, I was given bad
advice at that point. And in essence that's what you are.
I was given bad advice, because that says I can't have a
lawyer until I get to court. If that were all that was said I
would rule in the Defendant's favor. If that were all
that was said and then the questioning proceeded, I would
rule in the Defendant's favor. But that's not all
that was said. It did not stop there. ... I counted nine
times where the Detective said to the effect of you can
invoke your rights any time.
trial court concluded, "looking at the totality of the
circumstances and what was said after that, I think it was
made very clear to [Defendant] that he did not have to talk
to these detectives. He could have stopped at any time and
had an attorney appointed.
16, 2012, hearing regarding warrantless search of
Defendant's apartment and admissibility of autopsy
photographs and crime scene video
Aycocke, Assistant Commander of the Blount County Sheriffs
Office SWAT team, testified that he responded to the Shamrock
Motel on September 11, 2009, at approximately 3:00 a.m. The
SWAT team began to evacuate apartments that were not
"the target location." As the SWAT team waited
outside the apartment, Defendant opened the door "on his
own free will" and without request. Deputy Aycocke saw
Defendant sitting in a chair just inside the doorway.
Defendant appeared to be covered in blood and had a
"serious wound on his left arm." Defendant was
"in distress" and in need of medical attention.
Deputy Aycocke and others entered the apartment "to
render aid." The police found a framed photograph of the
victim and an apparent suicide note in Defendant's lap.
Sanders testified that he responded to a homicide call at
Cerritos Way apartments. The maintenance man for the
apartments, James Ezell, had reported that he saw Defendant
walking towards the apartments. Mr. Ezell knew that the
victim had obtained an order of protection against Defendant.
He contacted the apartment owner, who then requested a
welfare check on the victim. Responding officers entered the
victim's apartment using a key provided by Mr.
Ezell's girlfriend. A table had been pushed against the
door. Officers found the deceased victim inside the
apartment. Detective Sanders testified that the victim was
lying on her back between the refrigerator and the stove.
Detective Sanders testified that "[a] lot of blood
spatter was in the area where the victim's body
was." It was "obvious to [him] that a struggle had
taken place." The window in the back bedroom was open,
and there were "reddish-brown stains" on the
window, and it appeared as though "someone had left in a
hurry through that window." Detective Sanders observed
several items in disarray, and the refrigerator appeared to
have been pushed out of place.
police located Defendant's vehicle in the parking lot of
the Shamrock Motel. Police entered Defendant's room at
approximately 3:48 a.m. Defendant was transported to Blount
Memorial Hospital and admitted at 4:07 a.m. Defendant was
discharged from the hospital at 4:02 p.m. and transported to
the local jail. Detective Sanders testified that
Defendant was arrested without a warrant because, "I
knew a crime had been committed and ... I had reasonable
cause to believe that [Defendant] committed that
September 11, 2009, Detective Sanders executed a search
warrant for Defendant's apartment. On the following day,
he executed a search warrant for Defendant's van.
Detective Sanders began his interview with Defendant at
approximately 7:19 p.m. on September 12, 2009. Defendant was
47-years-old at the time of the interview. Detective Sanders
testified that the interview lasted approximately four hours.
Defendant did not appear to be intoxicated. Defendant was
transported back to the jail from the police department at
approximately 11:34 p.m. Detective Sanders testified that
Defendant told him at the beginning of the interview
"that he thought we would have come to get him sooner,
that he was wanting to talk to us."
the interview, Detective Sanders prepared warrants charging
Defendant with homicide and burglary. He took the warrants to
the magistrate at approximately 2:00 a.m. on September 13,
2009. Defendant appeared before the magistrate at
approximately 3:15 a.m., approximately 48 hours after his
redirect examination, Detective Sanders testified that when
he entered the victim's apartment, his "immediate
attention and focus was to the interior of the apartment,
where the victim's body was and everything inside that
scene." He testified that he "walked to the rear of
the apartment, [but he] did not search that area." He
testified that he "walked back there to visually observe
what was there."
David Henderson, of the Blount County Sheriffs Office,
testified that when police entered Defendant's apartment,
he saw "a major amount of blood around the apartment, on
the Defendant. [He] [h]ad a major laceration to his arm and,
plus, very groggy, out of it." Detective Henderson
testified that he did not search the apartment, and the only
purpose for entering the apartment was "[t]o take
pictures of - the investigation of attempted suicide, of
blood. Investigation process."
trial court denied Defendant's motion to suppress the
warrantless search of Defendant's apartment. The trial
court accredited the testimony of "both officers"
Aycocke and Sanders. The trial court found that
Defendant" opened the door of his own free will, . . .
[and] it was apparent that he was in distress, that there was
blood and a serious wound, that he needed medical
attention[.]" The court concluded as follows:
[T]here were clearly exigent circumstances in the serious
wound to the Defendant, which justified the officers'
entry for the limited purpose of securing the scene and
rendering aid to the Defendant, and securing and making the
scene safe for the emergency medical personnel, and
preserving photographic evidence of the attempted suicide,
such exigent circumstances and indeed even a duty to enter
and render aid.
Darinka Mileusnic-Polchan, a forensic pathologist, performed
an autopsy of the victim on September 11, 2009. She
determined that the cause of death was "isolated
multiple stab and incised wounds, which is in the category of
sharp force trauma." She also listed "blunt force
injuries and strangulation" as contributing causes. Dr.
Mileusnic-Polchan noted "fine petechiae" in the
eyes and lips, bruising of the neck muscles, and a fracture
of the hyoid bone, which all indicate strangulation. She
noted facial bruises and lacerations on the victim's
head, which indicate blunt force trauma. Dr.
Mileusnic-Polchan testified that the shape and pattern of the
victim's injuries were consistent with a hammer found
beside the victim's body. She photographed blunt and
sharp force injuries to the victim's head that were
consistent with the hammer and claw end of the hammer. She
described the blunt force injuries on the victim's hands
as "defense injuries." Dr. Mileusnic-Polchan
believed that the photographs of the victim's injuries
would be helpful to a jury's understanding of her
testimony. She testified:
I would say yes, because it's a very complex case. It has
a combination of different types of injuries. And in any
forensic pathology involvement, the photographs are evidence
and the - of course, for the jury we have to kind of keep a
good balance between what's acceptable to them and what
is not. But as a pathologist, I would have a hard time
describing the different types of injuries, comparing the
pattern with the weapon just by describing them. And I
don't think just my description and talking would give
them an accurate photograph - or mental image, so to speak,
of the complexity of the case.
trial court weighed the probative value against the
prejudicial effect of each autopsy photograph and concluded
that certain photographs would be allowed into evidence
because they would assist the jury in understanding testimony
about the victim's injuries. Specifically, the trial
court allowed the following photos: 1) a photo of the
victim's eye, which showed petechiae as evidence of
strangulation; 2) a photo of the extracted neck organs to
show hemorrhaging, bruising, and fracturing in those areas;
3) a photo of the face and neck to show the various traumas
to those areas; 4) photos of the left side of the
victim's face and the victim's forehead to show the
pattern and shape of the injuries; 5) a photo of a large
laceration on the right side of the victim's skull and
two close-up photographs of the back of the victim's head
as evidence of multiple blows and to show patterned injury;
6) photos of the defensive wounds on the victim's right
and left hands; 7) a photo of an incised wound on the right
side of the victim's neck; 8) a photo of the victim's
back and head to show the variety of trauma to those areas;
9) a photo of the body as it was found at the crime scene to
show evidence of a struggle; and 10) a closer photo of the
body at the crime scene to show blood flow and to aid the
jury in understanding testimony about the victim's
movements. The court ordered the State to crop or redact
facial and vaginal portions of the photo showing the
defensive injuries on the victim's right hand. The court
excluded certain photos that the court found were
"gruesome" or unnecessary to explain testimony, and
of which the court found the prejudicial effect outweighed
the probative value. Finally, the court allowed a video of
the crime scene to show the size of the victim's
apartment, but the court ordered the State to redact any
portions of the video that show the victim's face and
12, 2012 hearing regarding admissibility of order of
McClure, Chief Deputy Clerk in Blount County, testified that
she typed an order of protection for the victim in 2009. She
testified that the victim was "[e]xcited, nervous, [and]
scared." She testified that the victim gave her a
handwritten statement that Ms. McClure used to type the order
of protection. The victim wrote at the end of her statement,
The trial court made the following findings and conclusions:
With respect to the 2009 order of protection, the Court notes
first, as the State has argued, that the order of protection
itself- and then I'm going to come back to, in a few
minutes, the statement within the order of protection - is
relevant and that they need to use it to carry their burden
of proof because there is a fourth count in this criminal
proceeding of aggravated assault, alleging that the Defendant
committed bodily injury after a prior restraint by, in this
case, an order of protection. So, in part, the order of
protection is necessary just for the State to be able to
carry its burden of proof with respect to Count 4.
I also think it's relevant with respect to Count 3,
aggravated burglary. Because I think the fact that
there's an order of protection saying that there was to
be no contact is relevant to the issue of whether the
Defendant entered the habitation without consent. So, I think
it's relevant also to the third count.
Now, in addition, the Court finds that at issue in this
first-degree murder case - and here we have alternative
theories - first[-]degree murder and first-degree murder
based upon felony murder. Motive is at issue; intent is at
issue; premeditation is at issue. And I find that the order
of protection is relevant to the relationship between the
parties at the time of this alleged crime. I think it's
also relevant to motive. I think it's relative to intent.
I think it's relevant to the issue of premeditation. And
I think it's relevant to the complete picture of the
events that transpired.
So, I think based upon that, that there are material issues
that exist other than conduct conforming with a character
trait for the use of the order of protection. And I find that
the order of protection is clear and convincing evidence
related to those various issues.
And I also find for all of the reasons I've stated,
including the fact just very simply that any prejudicial
effect of the proof is outweighed by the probative value of
the evidence and is necessary to support the State's
burden of proof.
trial court ordered the redaction of certain statements in
the order of protection. However, the trial court found that
the probative value of the statements contained in the order
of protection outweighed their prejudicial effect.
16, 2012, hearing regarding admissibility of evidence
pursuant to inevitable discovery doctrine
Guy, the rental agent for Defendant's apartment,
testified that she reviewed a rental application with
Defendant before his tenancy. She testified that rentals at
the Shamrock Motel were "by the week" and subject
to a two-day eviction procedure. Defendant completed a rental
application on August 28, 2009. Ms. Guy testified that she
spoke to Defendant on the night of the incident. Defendant
told Ms. Guy that he did not have his rental payment, but
that he would pay on the following morning. Ms. Guy never
received payment. Defendant was evicted after his arrest. Ms.
Guy was responsible for cleaning apartments after they were
vacated. She testified that she found a knife with blood on
it under the mattress in Defendant's former apartment,
and she called Detective Sanders. She called Detective
Sanders again when she found drug paraphernalia in
Defendant's former apartment.
testified that he did not invite police into his apartment at
the Shamrock Motel. Defendant testified that he had allowed a
person named Jessica Dunbar to borrow his van before the
incident. He testified that he did not give permission to
police to search his van.
trial court denied Defendant's motion to suppress items
recovered from his apartment. Although the trial court found
that the search warrants obtained in this case were invalid,
the trial court stated, "[t]here is not a doubt in my
mind that the evidence that was seized at the apartment would
have been discovered based upon the evidentiary hearing that
we've conducted here today and what I've heard."
The court found Ms. Guy to be "a very credible
witness." The court found,
I think clearly had she found these handwritten notes and a
picture of the victim taken from a couch in the apartment,
had she found a bag containing clothing with what appeared to
be blood on it, a picture of the victim on the bed, a black
purse in the closet, a knife on the dresser, I don't
think there's any question that she would have called the
police and that they would have found these items pursuant to
the very fact that she did call the police with respect to
presented at trial
trial, a certified copy of the August 10, 2009 order of
protection obtained by the victim against Defendant was
admitted into evidence through the testimony of Chief Deputy
Clerk Dorothy McClure. The petition for order of protection
stated in part: "In 2009 [Defendant] hit [the victim]
and toled [sic] her he would kill her and put her somewhere
no one would find her. [Defendant] told her not be take an
order of protection out on him, or she'd be sorry. Help
me!!!" The victim was granted an ex parte order of
protection prohibiting Defendant from contacting the victim
and inflicting physical injury on her.
McClure testified that, while at the clerk's office, the
victim "was sitting against the wall, hiding." She
testified that the victim "was afraid that somebody
would come by and see her in there." Ms. McClure
described the victim as "scared, nervous, [and]
Lee Smith Myers worked with the victim at Rockford
Manufacturing. She testified that when the victim spoke to
her about Defendant, "[s]he'd be shaking and about
in tears and she was scared. You could tell she was
Morgan owned the apartment complex where the victim and
Defendant rented an apartment in "Building Two."
Ms. Morgan evicted them for failing to pay rent. She
subsequently allowed the victim to rent a different apartment
in "Building One." Ms. Morgan testified that the
victim did not want Defendant to know that she was living
there, and she "acted nervous and worried." Ms.
Morgan was aware that the victim had an order of protection
against Defendant, and she instructed her employees to call
911 if they saw Defendant on the property.
Eisele was the maintenance man at the apartment complex where
the victim lived. On the night of September 10, 2009, Mr.
Eisele saw Defendant at the complex. Defendant was walking
towards the grass. Mr. Eisele called Ms. Morgan and told her
that he had seen Defendant because Mr. Eisele knew that
Defendant "wasn't supposed to be there." Mr.
Eisele testified that he saw Defendant's van parked at
Rose's Piano Shop, a short distance from the entrance to
the apartment complex. A security video, showing images of
Defendant at the apartment complex that night, was admitted
into evidence. Defendant was carrying "a bag of some
kind in his hand."
Anderson, a patrol sergeant with the Alcoa Police Department,
responded to a call for a "welfare check" at the
victim's apartment at 10:20 p.m. on September 10, 2009.
Officer Anderson knocked on the victim's door, and there
was no response. He obtained a key to the victim's
apartment from Mr. Eisele's girlfriend, Elizabeth Casper.
The apartment door was obstructed by a table, and
"[they] had to force the kitchen table back to get the
door open." Officer Anderson found the victim's body
on the kitchen floor, and there was "[a] lot of
blood" around the victim. In the back bedroom, Officer
Anderson observed an open window and blood on the windowsill
and window blinds. Officer Anderson "had to step over
[the victim's body] to finish clearing [the
apartment]." Officer Anderson found a hammer on the
floor in front of the refrigerator, and he moved it to the
couch because he "was concerned about [paramedics]
coming in [and] stepping on the hammer." Officer
Anderson testified, "I figured it was going to be a
piece of evidence that was used in the crime." Officer
Anderson also observed a flashlight on the floor beside the
victim's foot. Officer Anderson testified that the claw
end of the hammer appeared to have blood on it, and the
injuries to the victim's face appeared to have been
caused by a sharp object. Police also found a chisel outside
the bedroom window of the victim's apartment.
Paul Gilbert, of the Alcoa Police Department, was also
dispatched to the area of the victim's apartment. He
responded to the parking lot at Rose's Piano Shop, where
Defendant's van was parked. The vehicle was registered to
the victim. Lieutenant Gilbert then responded to the
victim's apartment and made entry with Officer Anderson.
Officer Hank Morris also assisted in making entry into the
victim's apartment. A video of the crime scene was
admitted into evidence through Officer Morris's
Clyde Ingle, of the Blount County Sheriffs Office, arrived at
the Shamrock Motel in response to a "BOLO" for
Defendant's van at approximately 1:30 a.m. on September
11, 2009. When Deputy Ingle drove up, he saw "a male
subject[, ]" who "took off running" into an
apartment. Deputy Ingle found Defendant's van parked
beside a dumpster at the apartment complex. He confirmed that
the vehicle was the same vehicle in the BOLO. Deputy Ingle
secured the premises until the SWAT team arrived at the
Aycocke, the Assistant Commander of the Blount County SWAT
team, arrived at the Shamrock Motel at 2:40 a.m. on September
11, 2009. The SWAT team secured the perimeter of the scene
and evacuated the apartments in the same building as
Defendant's apartment building. While the SWAT team
waited outside Defendant's apartment, "[f]he door to
the apartment . . . opened up wide and [Defendant] himself
opened the door." After the door opened, Aycocke saw
Defendant sitting in a recliner chair inside the doorway, and
he had blood on his arm, shirt, and pants. Aycocke testified
that "it was clear that [Defendant] . . . was in
distress and in need of medical attention." The SWAT
team entered the apartment "to render aid to him and to
check the apartment to make sure the apartment was safe for
EMS to come and give care to [Defendant]."
team member Matthew Gilmore testified that Defendant
"had a severe wound to his left harm, he had blood all
over." Police found a photograph of the victim and a
handwritten note in Defendant's lap. The note read,
"I loved Jan I could not live without her I'm sorry
I did not deserve the order of protection." The second
page of the note read, "I took 25 hydros to overdose. We
both can see the end from here. She will go to heaven, I will
go to hell. I love my mom. You should not let [sic] the order
of protection when I did nothing wrong. It's not fair to
keep someone away." Police later collected the following
items from Defendant's apartment: a ...