Court of Criminal Appeals of Tennessee, Nashville
Session December 13, 2016
from the Circuit Court for Dickson County No.
22CC-2013-CR-234 Larry J. Wallace, Judge
Defendant, Edward Joseph Benesch II, stands convicted by a
Dickson County jury of aggravated child neglect and voluntary
manslaughter, for which the trial court sentenced him to an
effective term of eighteen years' incarceration. In this
appeal as of right, the Defendant raises the following
allegations of error: (1) that the trial court erred by
denying the Defendant's motion to suppress his statement
to police after he first requested an attorney and that
request did not need clarification in the Defendant's
opinion; (2) that the evidence was insufficient to support
the Defendant's convictions because he did not
intentionally neglect the victim and because the element of
adequate provocation was absent; (3) that the trial court
abused its discretion when it admitted photographs of the
victim taken at the crime scene and during the victim's
autopsy given their gruesome nature; (4) that trial court
erred by allowing a paramedic to testify as an expert about
the "significance of the force" that caused the
victim's injuries; (5) that it was improper for the trial
court to allow two witnesses, Shannon Edmonson and Shara
Tisdale, to testify about the Defendant's alleged drug
usage and drugs being found in his home; (6) that the trial
court should not have allowed testimony from the
Defendant's next-door neighbor that bore "no indicia
of reliability and was completely unverifiable"; (7)
that the trial court's refusal to allow the
Defendant's "mitigation expert" to testify
regarding how the Defendant told her he fell on the victim
violated the Defendant's constitutional right to present
a defense; and (8) that the trial court erred when it allowed
the State to play, as a prior inconsistent statement, the
video recording of Judith Lane's interview with law
enforcement. Following our review of the record and the
applicable authorities, we must conclude that the evidence
was insufficient to support the Defendant's conviction
for voluntary manslaughter because the Defendant was not
adequately provoked by the eighteen-month-old victim, and
therefore, that conviction is reversed and vacated. However,
because the proof is sufficient to support the
lesser-included offense of reckless homicide, we remand this
matter to the trial court for entry of an amended judgment
reflecting a reckless homicide conviction and imposition of a
consecutive, four-year sentence for that conviction. The
Defendant's remaining issues do not entitle him to
relief, and his conviction for aggravated child neglect is
affirmed. Accordingly, the trial court's judgments are
affirmed in part and reversed in part.
R. App. P. 3 Appeal as of Right; Judgments of the Circuit
Court Affirmed in Part; Reversed in Part; Case Remanded
J. Baker and William Walker Wade, Charlotte, Tennessee, for
the appellant, Edward Joseph Benesch II.
Herbert H. Slatery III, Attorney General and Reporter; Sophia
S. Lee, Senior Counsel; Wendell Ray Crouch, Jr., District
Attorney General; and Carey J. Thompson, Assistant District
Attorney General, for the appellee, State of Tennessee.
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which Camille R. McMullen and J. Ross Dyer, JJ., joined.
KELLY THOMAS, JR., JUDGE.
case arose following the death of the eighteen-month-old
victim while she was in the exclusive care, custody, and
control of the Defendant. The Defendant was charged with
first degree felony murder in the perpetration of aggravated
child abuse, first degree felony murder in the perpetration
of aggravated child neglect, aggravated child abuse, and
aggravated child neglect. See Tenn. Code Ann.
§§ 39-13-202, -15-402. The Defendant proceeded to a
trial by jury where the following evidence was adduced.
The Victim's Death and the Defendant's
Kimberly Perez was the victim's aunt. Ms. Perez testified
that the victim's mother was in jail in March 2013 and
that, during this time, the Defendant was caring for the
victim and the victim's three-year-old sister. Moreover,
when the victim's mother was arrested, she was pregnant
with her seventh child, and the Defendant was the father of
Thursday morning, March 7, 2013, Ms. Perez was asleep on her
couch when she was awakened by the Defendant, who was telling
her that the victim was "sick" and "need[ed]
to go to the hospital." Ms. Perez instructed the
Defendant to bring the victim inside, and Ms. Perez went to
use the restroom. When Ms. Perez returned to the living room,
the Defendant "was at the door" with the victim
"on his shoulder." Ms. Perez took the victim from
the Defendant and laid her on the floor. At that time, the
victim "was just limp and unresponsive, " according
to Ms. Perez. Ms. Perez tried to arouse the victim by talking
to her and touching her, but Ms. Perez realized that the
victim was not breathing. Ms. Perez explained the
victim's state: "She wasn't moving. Her eyes had
rolled back when I put her down and [were] kind of half
open." When Ms. Perez "knew something was
wrong" with the victim, she phoned 9-1-1 and began
performing CPR on the victim while receiving instructions
from the 9-1-1 operator.
to Ms. Perez, the Defendant immediately left her home after
handing the victim to her. The Defendant had also brought the
victim's three-year-old sister with him, leaving her with
Ms. Perez as well. Ms. Perez opined that the Defendant
"left in a hurry" because she could "hear
gravel spinning everywhere" in her driveway.
Perez testified that she had cared for the victim the weekend
prior to these events. Ms. Perez stated that she did not
notice any bruising on the victim's body during those
several days, noticing only that the victim had a "bite
mark on her" face that was supposedly "from another
child" and "some discolorations on her face."
Ms. Perez also read aloud from a statement she
Perez reiterated [the Defendant's] account that he
tripped and fell on top of [the victim] the night before,
then he noticed she was wheezing late last night. Perez
stated all she knew when [the Defendant] brought her in was
the baby was limp. Perez repeated when she had asked him why
he had not called 9-1-1. [The Defendant] replied, because he
personnel and law enforcement responded to the call from Ms.
Perez's residence of "a child who was not
breathing." Officer Scott Anthony Hull, with the City of
Dickson Police Department, arrived on the scene at
approximately 7:43 a.m. and saw the victim lying on a blanket
in the living room. Officer Hull checked for a pulse and
signs of breathing but found none. He further described the
When I walked in, she was facing-her head was towards the TV,
feet [were] towards the crib. . . . Behind one of her ears
was a large knot, bruising. She had bruises all over her
abdominal cavity, her sides, her back, deep purple bruises,
and she was just-she was lifeless.
Officer Hull took over CPR from Ms. Perez.
Officer Hull saw "red lights pull up to the house,
" he thought it was an ambulance, so he carried the
victim outside. Officer Hull said that he "knelt
down" and "continued CPR on the [victim]" but
that, after observing "the first responders from the
fire department . . . getting their stuff together, " he
"ran back into the house with [the victim] to keep her
warm[.]" According to Officer Hull, he renewed CPR
efforts once back inside until "some lady" replaced
Hull also testified that, when he took the victim outside,
she was "already rigid" and that she
"wasn't limp like a normal child would be."
Moreover, once outside, Officer Hull saw that the
victim's bruises "were more extreme than what [he]
thought they were" initially. On cross-examination,
Officer Hull agreed that "over the course of time as a
body sits and cools, it begins to get a purplish
Bradley testified that she was a paramedic with the Dickson
County Ambulance Service and that she responded to the call
at Ms. Perez's residence that morning. Ms. Bradley stated
that, when she arrived, the victim "was unresponsive,
cold to the touch, apnea, [and] pulseless." Ms. Bradley
also noticed "multiple bruises" on the victim's
head, face, chest, back, legs, and arms. Furthermore, Ms.
Bradley observed Officer Hull and "two first
responders" with the fire department attempting
"some treatment or resuscitation efforts" on the
victim. Ms. Bradley then helped place an automated external
defibrillator device ("AED") on the victim.
However, the AED did not detect a heartbeat, according to Ms.
Bradley, so "[n]o shock was advised" and no further
resuscitation attempts were performed.
Bradley explained that, during this time, her "partner
had been on the phone with the doctor who gives us permission
to stop if [her partner] has painted the picture for [the
doctor] that there [are] no signs consistent with life."
Based upon her partner's representations to this doctor,
the doctor pronounced the victim dead on the scene. Ms.
Bradley informed that, had she been the one on the phone with
the doctor instead of her partner, she would have reported
that the victim "was not breathing" and "there
was no pulse" and would have described "the
bruising and discoloration that appeared to be on [the
victim's] body." Ms. Bradley characterized this
bruising as "significant."
same morning, Officer Jerry Booker, with the Dickson County
Sheriff's Office, went looking for the Defendant at the
Defendant's home on Rocky Road. Officer Booker arrived at
11:33 a.m. and knocked on the door, but no one answered.
According to Officer Booker, while he was standing at the
Defendant's front door, he could smell "a typical
household cleaner smell" that "was a little
stronger . . . than you would expect[.]"
the Defendant was found at the home of Judith Lane on Dowdy
Road, and he was arrested without incident by Dickson County
Sherriff's Officer Michael Richard Eggiman at 11:36 a.m.
that morning. The Defendant's vehicle, however, was found
"quite a ways" away from the Dowdy Road residence
unattended in a K-Mart store parking lot. According to
Officer Eggiman, the Defendant, upon his arrest, asked
"is the girl okay?" and said, "I was just
about to call you."
Rocky Road Residence.
Tisdale, the Defendant's sister, testified that the
Defendant, the victim, and the victim's three-year-old
sister were living with her in a mobile home on Rocky Road in
March 2013. Ms. Tisdale's boyfriend, Shannon Edmonson,
also stayed with her "off and on." According to Ms.
Tisdale, the mobile home was "a pretty good ways out of
town, " and it took at least ten to fifteen minutes to
get from her residence "back to Dickson."
evening of March 6, 2013, Ms. Tisdale had some girlfriends
over to spend the night; Mr. Edmonson, the Defendant, the two
children were also there. Ms. Tisdale testified that she got
the children ready for bed that evening, which usually
included giving them a bath and putting their pajamas on
them. Ms. Tisdale stated that she did not observe any
bruising or other injuries to the victim at that time,
although the victim did have a "bite above her ear"
from "the week prior."
one of Ms. Tisdale's friends "got a phone call from
her niece saying she needed her to baby sit, " the group
decided not to have a "sleepover" at Ms.
Tisdale's but to return to Dickson and "stay over at
the niece's house." Ms. Tisdale, along with her two
friends and Mr. Edmonson, got in Ms. Tisdale's car and
left the residence "close to dark." Ms. Tisdale
dropped Mr. Edmonson off at his mother's house, and the
women proceeded to "the niece's house, " which
left the Defendant alone with the victim and the victim's
sister at the Rocky Road residence. According to Ms. Tisdale,
when she left, the Defendant was awake and playing with the
two girls. Ms. Tisdale affirmed that she had not seen the
Defendant drinking or using drugs that evening.
the morning hours on the following day, March 7, 2013, Ms.
Tisdale received several text messages from the Defendant-(1)
"Call me now."; (2) "The baby is hurt.";
and (3) "[P]ick up the phone, the baby is hurt
bad." According to Ms. Tisdale, the Defendant's last
message was sent at 8:14 a.m. while she was at work and said,
"If anybody asks, I've not had the kids in two days,
I've been with you." In addition, Ms. Tisdale spoke
with the Defendant that morning, and she said "[h]e was
scared" and crying. He did not sound intoxicated, in Ms.
Tisdale also averred that the Defendant had not done drugs in
her presence "in a month" before this incident. Ms.
Tisdale had no knowledge of "any illegal drugs or drug
paraphernalia" in her home and asserted that she did not
have any there. Furthermore, according to Ms. Tisdale, the
Defendant "loved [the two girls] very much[, ]" and
she had never noticed abusive behavior by the Defendant. Ms.
Tisdale testified that the Defendant had kept her daughter,
Judith Lane's children, and "several of [their]
other friends' kids" without any problems. Ms.
Tisdale stated that, if the Defendant was "around
children, he wouldn't drink to excess."
addition, Ms. Tisdale was asked about her neighbor John
Rayburn. Ms. Tisdale stated that she "honestly
recall[ed] seeing him maybe twice the whole entire time"
she lived in the mobile home and that she was unsure if he
lived next-door. When asked if Mr. Rayburn ever came over to
their house, Ms. Tisdale replied, "He stood in the yard
Edmonson also testified, providing similar testimony to Ms.
Tisdale's. Mr. Edmonson said that he did not see the
Defendant use cocaine on the evening of March 6, 2013, and
that he was unaware of cocaine in the trailer that evening.
Mr. Edmonson also averred that he would be surprised to learn
that a straw with cocaine residue on it was found inside the
house. Mr. Edmonson acknowledged that he gave a statement to
law enforcement that the Defendant appeared to have been
drinking or was "messed up" earlier in the day.
Chantel Gilbert, one of Ms. Tisdale's girlfriends present
on the evening of March 6, 2013, relayed her version of the
events, which was again similar to Ms. Tisdale's. Ms.
Gilbert likewise did not see any visible bruises or marks on
the victim when they gave her a bath that evening nor did she
observe the Defendant do cocaine that evening. Ms. Gilbert
estimated that they left the Rocky Road residence around 9:45
or 10:00 p.m., and she stated that the Defendant "was
fine when [they] left him." Furthermore, according to
Ms. Gilbert, Ms. Tisdale kept two air mattresses in the
trailer, and Ms. Gilbert saw those mattresses inside the
mobile home that evening because they were going to have a
Rayburn testified that he lived next door to the Defendant.
Mr. Rayburn said that he visited the Defendant on the evening
of March 6, 2013, and that the victim and the victim's
sister were there along with "a white man and a black
man[.]" According to Mr. Rayburn, while he was inside
the Defendant's home, he observed the Defendant drinking
beer and snorting cocaine.
Mr. Rayburn stated that "[t]he oldest girl took [the
victim's] sock off and the little girl lost the
sock." The Defendant was angered by the victim's
losing her sock, so the Defendant "hit [the victim] like
a man, " striking her three times in the ribs and
punching her in the head. Mr. Rayburn said that the victim
cried after the Defendant hit her, and when asked how long
she cried, Mr. Rayburn replied that the victim "cried
all the time [he] was there." The Defendant threw the
victim into a closet after striking her, according to Mr.
Rayburn. Additionally, the Defendant said to Mr. Rayburn that
he was tired of caring for the two girls while their mother
was incarcerated and could not wait until she was released.
Mr. Rayburn left the residence after witnessing the violence.
Mr. Rayburn estimated that he was only inside the
Defendant's home for about five to ten minutes that
Rayburn agreed that he did not immediately report what he saw
to law enforcement, only doing so the following morning after
speaking with both his mother and his wife. Additionally, Mr.
Rayburn was shown two photographs and identified Shannon
Edmonson and Jonathan Lane as the two people he saw inside
the Defendant's home on the evening of March 6, 2013. Mr.
Rayburn claimed that he had seen these two men
Additional Witnesses' Testimony.
Lane testified that the Defendant was a life-long friend of
her brother's and that she and the Defendant spoke on a
regular basis. Ms. Lane testified that, on the morning of
March 7, 2013, "[b]etween 7:00 and 7:30, like 7:20
something maybe, " the Defendant called her while she
was dropping her kids off at school. The Defendant asked her
for a ride because his car had broken down. Ms. Lane told him
that he had to first get permission from her mother, Tammy
Conner, because Ms. Lane was driving her mother's car.
After Ms. Conner gave her permission, the Defendant called
Ms. Lane back to tell Ms. Lane to pick him up at a local
Lane testified that, after she picked the Defendant up at the
Kroger, he said to her that there "was something wrong
with" the victim. Specifically, the details of that
conversation were as follows:
He told me that he had fell [sic] down the steps and fell on
[the victim] and that-the night before and that he thought
that she was okay because she cried for a little bit but then
she was fine, and he said she went to bed and that everything
was okay. And then the next morning, he felt like something
was wrong with [the victim]. . . . He took [the victim] and
[the victim's sister] to [Ms. Perez's house].
Lane described the Defendant's demeanor as he conveyed
these details to her: "He looked scared and really
quiet. I mean, he was really quiet anyway. He was direct and
to the point. He didn't say a whole lot of extra
stuff." She said that they did not talk about whether
the Defendant should have sought medical care for the victim
before she picked him up. Ultimately, Ms. Lane dropped the
Defendant off at her house on Dowdy Road, and she left.
cross-examination, Ms. Lane stated that she "[w]ould not
have any problem leaving [her] children with [the
Defendant]" and that the Defendant had in fact cared for
her children before. She later clarified,
Oh, I'm sorry. This says that I concluded that [the
Defendant] had never had the kids, not for five seconds. And
it also says that not because I didn't think he could
take care of them, but-and not that I didn't think he was
incapable of showing compassion and love for them, but just
because it was a bad situation and you don't take care of
kids that are not yours.
Lane confirmed that she gave a statement to Tennessee Bureau
of Investigation ("TBI") Agent Mike Breedlove and
Dickson County Sheriff's Detective Stacey Patterson
following the victim's death. The statement was played
for the jury. After watching the recording of her interview,
Ms. Lane recalled having spoken with the Defendant about
taking the victim to the emergency room prior to picking him
up at the Kroger. Ms. Lane also summarized the
Defendant's version that he relayed to her: "[The
Defendant] was coming down the steps to go to the store. He
had [the victim] on his arms, the cat r[a]n underneath his
foot, tripped, fell down the steps onto [the victim], and he
thought that she was okay." Additionally, Ms. Lane
stated that she was still scared at the time of trial that
she was "going to be charged" with something due to
her giving the Defendant a ride.
Nicole Sylvis testified that the Defendant visited her home
during the day on March 6, 2013, to see her boyfriend. Ms.
Sylvis stated that she returned home from work at
approximately 12:30 p.m., and when she saw the Defendant, she
thought "he might have been messed up on drugs[, ]"
Iselin rented the Rocky Road mobile home to Ms. Tisdale. On
one occasion, Ms. Iselin went inside the residence and saw
two air mattresses on the floor.
Investigation by Law Enforcement.
footage covering the evening hours of March 6, 2013, was
obtained from the Love's Travel Center off of I-40 at
exit 163. On the recording, the Defendant could be seen
inside the travel center purchasing a six-pack of beer and a
pack of cigarettes at 10:48 p.m.
Breedlove testified that he was in his fifth month as Sheriff
of Cheatham County and that, prior to that, he was a special
agent criminal investigator with the TBI for thirty
years. Agent Breedlove was tasked with
investigating the victim's death.
Breedlove went to Ms. Perez's residence on March 7, 2013,
where he saw "two dug out areas of" Ms. Perez's
gravel driveway. Once inside the residence, Agent Breedlove
saw the victim lying on the floor covered by a blanket. He
removed the blanket and saw a reddish brown stain or
substance inside the victim's ear and a number of bruises
and marks all over the victim's body. Agent Breedlove
explained that the victim had "quite a few
injuries" "all over her body." According to
Agent Breedlove, this was "one of the wors[t] blunt
force injury deaths that [he had] worked in [his] career,
" and he "was very sure that given the injuries to
the child that it wasn't accidental." He also opined
that the victim's injuries were not consistent "with
[someone] just falling on a child." Furthermore, Agent
Breedlove testified that he was familiar with lividity and
livor mortis, which involves the settling of blood
post-mortem, and while some of that was present here, the
settling of blood did not account for the victim's
multiple bruises, in Agent Breedlove's opinion.
that evening, Agent Breedlove went to the Defendant's
residence on Rocky Road to conduct a search. Agent Breedlove
observed a reddish-brown stain or substance on the front
steps, "a scuff mark or something" on one of the
steps, and fibers of hair on the "floor mat on the
porch." A plastic drinking straw with powdery residue
was discovered in the Defendant's bedroom. Subsequent
testing by the TBI revealed the presence of cocaine and human
DNA on the straw that matched the Defendant's DNA
profile. Also, Agent Breedlove observed a pair of matching
children's socks inside the home-one sock was seen in the
laundry area and the other behind a white rocker in the
to Agent Breedlove, the mobile home was in general disarray
but "also there was evidence that there was some
cleaning done." Agent Breedlove smelled "some kind
of cleaning agents, " and he saw a bucket with a mop and
a cleaning agent inside. While Agent Breedlove did not see
any trash inside the trash can, he did observe a reddish
brown stain or substance therein. Moreover, there were no
beer bottles or cigarettes found anywhere inside the
residence despite evidence that the Defendant had purchased
such items the night before. Agent Breedlove had also learned
that the victim may have, on occasion, slept on an air
mattress; this fact being corroborated by testimony from Ms.
Gilbert and Ms. Iselin that they saw two air mattresses
inside the home. However, Agent Breedlove did not find any
air mattresses in the trailer.
Breedlove confirmed that the Defendant's home was in the
southern part of Dickson County and that Ms. Perez's was
at least fifteen to twenty minutes away. He further verified
that TriStar Horizon Hospital was located only 1.66 miles
from Ms. Perez's residence.
addition, Agent Breedlove, along with Detective Kelly Owen of
the Dickson Police Department, interviewed the Defendant
about the circumstances surrounding the victim's death. A
video recording of that interview was played for the jury.
During the interview, the Defendant revealed that he knew the
victim "was messed up bad" when she was injured;
that he believed she needed to go to the hospital at that
time, although he did not take her that evening due to his
level of intoxication; and that, after the fall, he still
went to the gas station to get cigarettes despite his claim
that he "was too drunk to drive." The Defendant
also said, "[A] little girl is dead, man, it's my
fault . . . all my fault man . . . motherf--king fault . . .
I wish I had been good, man, I was trying to keep them
safe." Agent Breedlove agreed that the Defendant
"was under quite a bit of distress" during the
Breedlove also photographed the Defendant following the
Defendant's interview, taking pictures of the
Defendant's forehead, right elbow, and right knee.
Although Agent Breedlove saw some redness on the
Defendant's knee and elbow, he did not observe any
lacerations or cuts. Agent Breedlove asked the Defendant
several times during the interview if he needed medical
attention, and the Defendant always responded in the
Agent Breedlove testified that the Defendant's truck was
discovered abandoned in a K-Mart parking lot. Agent Breedlove
did not see if the truck would start before having it towed.
However, he did not recall the keys being in the truck, and
"most importantly, " he did not want anyone inside
the truck until it was "processed."
Thomas Deering testified as an expert in forensic pathology.
Dr. Deering performed the victim's autopsy on March 8,
2013, and prepared a report, which included a diagram of the
victim's injuries. Dr. Deering determined that the
victim's cause of death was homicide due to multiple
blunt force injuries to the torso. He also found that
multiple blunt force injuries to the victim's head were a
contributing cause of death, noting that there "were way
too many" to be the "result of a kid running around
just doing normal things like falling."
the injuries to the victim's head, Dr. Deering stated
that the victim had sustained multiple contusions or bruises
to the left side of her forehead and face, and a small
abrasion to her left nostril. She also had multiple large
contusions on the back of her head. Dr. Deering described the
bruises on the back of the victim's head as
"confluent, " which meant that they "kind of
grew together." Additionally, the victim had bruises
"over each ear, " multiple contusions to the right
side of her face and head, multiple "superficial
subgaleal hemorrhages, " and some swelling on her brain.
to the injuries to the victim's torso area, Dr. Deering
explained that she had multiple bruises to her chest and
back. There was a large bruise beginning on the left side of
the victim's chest and going onto her back, and this
"large area of bruising" was not a typical bruise,
according to Dr. Deering. The victim's left posterior
tenth rib was fractured, which was unusual for a child this
age because children's ribs are "more elastic"
than adults. The location of this rib fracture indicated
inflicted trauma. The victim sustained "multiple deep
lacerations" to her liver, and there was "a big
collection of blood sitting on top of it." The victim
had tears to her spleen and kidney. Dr. Deering found that
two milliliters of blood had pooled in the victim's
belly, which was "a lot" for a child the
Deering testified about the "blunt traumas to [the
victim's] extremities." He noted that she had
bruises on the left knee, the right upper arm, and the left
forearm. However, he did not "really make much out of
Deering explained that lividity was "the settling of
blood after death." He stated that the deep purple
caused by lividity was different than a bruise.
asked if "[t]hese type of injuries in an infant at this
age" would be painful, Dr. Deering responded, "Yes.
I mean, they would be painful. The lacerations, the bleeding
into the belly, certainly the rib fracture would be
painful." Dr. Deering was also asked for his medical
opinion about whether the victim could have survived had she
received prompt medical treatment after being injured, and he
agreed that it would have been the victim's "only
opportunity to survive."
Deering explained that injuries of the kind sustained by the
victim were most often accounted for by inflicted trauma,
such as car wrecks or falls from one- or two-story buildings,
because it took "a significant amount of force" to
cause the victim's injuries. In Dr. Deering's
opinion, the Defendant's version of events-that the
Defendant was holding the victim in his arms when he tripped
over a cat and fell down some stairs, falling on top of the
victim-was "very unlikely." Furthermore, Dr.
Deering stated, "This is non-accidental trauma or child
abuse, particularly when you bring in the head trauma that
can't be accounted for at all by a single fall."
Edmonson was recalled and testified that he was not present
with Mr. Rayburn at the Defendant's residence on the
evening of March 6, 2013. According to Mr. Edmonson, the only
time he was with Mr. Rayburn at the Defendant's residence
that year was in January or February to watch the college
football national championship game. He did not see the
Defendant hit the victim at any time while they watched the
Lane was called to the stand and denied ever being present at
the Defendant's residence on the evening of March 6,
2013. Mr. Lane likewise testified that, earlier that year, he
watched the college football national championship with Mr.
Rayburn at the Defendant's residence and that he did not
observe the Defendant strike the victim on that occasion.
Verdict and Sentencing.
the conclusion of proof, the jury acquitted the Defendant of
felony murder in the perpetration of aggravated child abuse
and of aggravated child abuse. He was found guilty of
voluntary manslaughter as a lesser-included offense of felony
murder during the perpetration of aggravated child neglect
and guilty as charged of aggravated child neglect. The trial
court sentenced the Defendant as a Range I, standard offender
to consecutive terms of twelve years for the aggravated child
neglect conviction and six years for the voluntary
manslaughter, resulting in an effective eighteen-year
sentence. The Defendant appealed, and the case is now
properly before this court.
appeal, the Defendant presents the following issues for our
review: (1) whether the trial court erred by refusing to
grant the Defendant's motion to suppress; (2) whether the
evidence was sufficient to support the Defendant's
convictions; (3) whether the trial court abused its
discretion when it admitted photographs taken at the crime
scene and during the victim's autopsy; (4) whether the
trial court erred by allowing a paramedic to testify as an
expert about the "significance of the force" that
caused the victim's injuries; (5) whether the trial court
erred by allowing two witnesses to testify about the
Defendant's alleged drug usage and drugs being found in
his home; (6) whether John Rayburn's testimony should
have been excluded because it bore "no indicia of
reliability and was completely unverifiable"; (7)
whether the trial court should have allowed the
Defendant's "mitigation expert" to testify; and
(8) whether the trial court erred when it allowed the State
to play, as a prior inconsistent statement, the video
recording of Judith Lane's police interview. We will
address each in turn.
Motion to Suppress
Defendant filed a motion to suppress on July 2, 2013, arguing
that any statements made by him after he asserted his right
to counsel were taken in violation of his constitutional
rights and, therefore, inadmissible. The trial court agreed
and entered an order to that effect. However, the Defendant
later sought clarification regarding the admissibility of the
following exchange that took place at 11:38 a.m. while the
Defendant was alone with Detective Owen, Agent
Breedlove's having stepped out of the room:
[The Defendant]: "Talk to a lawyer man."