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State v. McClancy

Court of Criminal Appeals of Tennessee, Knoxville

August 9, 2019

STATE OF TENNESSEE
v.
MARTHA ANN MCCLANCY

          Assigned on Briefs February 26, 2019

          Appeal from the Criminal Court for Monroe County No. 13-307 Andrew M. Freiberg, Judge

         The defendant, Martha Ann McClancy, appeals her Monroe County Criminal Court jury convictions of attempted first degree murder and conspiracy to commit first degree murder, arguing that the trial court erred by denying her motion to suppress photographs of the scene taken by her co-conspirator Charles Kaczmarczyk, her motion in limine to exclude evidence of acts committed following the death of the victim, and her motion for a mistrial; that the trial court erred by admitting photographs of the victim taken during the autopsy; that the trial court's making negative comments to and about her in front of the jury deprived her of the right to a fair trial; that the evidence was insufficient to support her convictions; and that the trial court erred by imposing consecutive sentences. The State concedes, and we agree, that the trial court erred by imposing consecutive sentences in this case. Instead, because Code section 39-12-106 prohibits the imposition of dual convictions for two inchoate offenses designed to achieve the same objective, the trial court should have merged the defendant's convictions. Thus, we affirm the jury verdicts, reverse the imposition of consecutive sentences, and remand the case for the entry of corrected judgment forms reflecting that the convictions are merged.

         Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed in Part; Reversed in Part; Remanded

          Matthew Rogers, Athens, Tennessee, for the appellant, Martha Ann McClancy.

          Herbert H. Slatery III, Attorney General and Reporter; Katherine Redding, Assistant Attorney General; Stephen Bebb, District Attorney General; and Joseph McCoin, Assistant District Attorney General, for the appellee, State of Tennessee.

          James Curwood Witt, Jr., J., delivered the opinion of the court, in which Norma McGee Ogle, and D. Kelly Thomas, Jr., JJ., joined.

          OPINION

          JAMES CURWOOD WITT, JR., JUDGE

         The Monroe County Grand Jury charged the defendant with first degree premeditated murder and the defendant and Charles Kaczmarczyk with conspiracy to commit first degree murder for the May 15, 2006 death of the defendant's husband, Robert J. McClancy.

         Factual Overview

         The evidence adduced at the defendant's November 2015 trial established that Mr. Kaczmarczyk befriended the victim while the two participated in a six-week residential treatment program for veterans with post-traumatic stress disorder ("PTSD"). The two remained close after the program ended, and Mr. Kaczmarczyk began visiting the victim at the home he shared with the defendant. During this time, the defendant and Mr. Kaczmarczyk began a romantic relationship, and the defendant began discussing plans to kill the victim so that they could be together.

         The defendant, who had agreed to be in charge of the victim's medication, indicated to Mr. Kaczmarczyk that she had been mixing medication into the victim's food. She asked Mr. Kaczmarczyk, who had been prescribed the same medication as the victim, to bring more medication to the residence, and she and Mr. Kaczmarczyk secreted the medication around the residence to make it appear as though the victim had been hoarding it. When the victim was hospitalized for a drug overdose, both the defendant and Mr. Kaczmarczyk told treating physicians that the victim had expressed suicidal ideations. After the victim returned home following that hospitalization, the defendant and Mr. Kaczmarczyk put into action a plan to overmedicate the victim and make it appear as though he had committed suicide.

         Mr. Kaczmarczyk telephoned 9-1-1 on May 15, 2006, to report that he had discovered the victim's body. Officers responding to the call found the victim's lifeless body in his recliner, a pill bottle in one hand and a pistol in the other. The area around the victim was in disarray, and pills were strewn about. After officers discovered on a digital camera belonging to Mr. Kaczmarczyk photographs of the victim's body in a variety of poses that indicated that the scene had been staged, Mr. Kaczmarczyk was arrested and eventually charged with evidence tampering and criminally negligent homicide. The photographs were later deemed inadmissible due to the failure to obtain a warrant before searching the contents of the camera, and the charges against Mr. Kaczmarczyk were subsequently dismissed.

         The defendant and Mr. Kaczmarczyk moved in together and began traveling extensively. The defendant applied for and received survivor's benefits from the United States Department of Veteran's Affairs ("VA") and the United States Social Security Administration ("SSA"). The defendant and Mr. Kaczmarczyk eventually married and began a scheme to defraud the federal government. A federal investigation led to their arrests and subsequent guilty pleas to theft in federal court. During the pendency of the federal investigation, the defendant executed a durable power of attorney giving her son authority to conduct her affairs while she was incarcerated. She also gave her son several computers for him and his children to use. After one of the children discovered a disturbing image on one of the computers, the defendant's son examined the contents of the computers and discovered the photographs of the victim that had originally been taken by Mr. Kaczmarczyk's camera. He contacted the federal authorities, who, in turn, contacted the state authorities. He later turned the computers and some documents over to the state authorities.

         Upon questioning by the Tennessee Bureau of Investigation ("TBI"), Mr. Kaczmarczyk implicated the defendant in the victim's murder and admitted that they had planned the murder together.

         Trial

         Jeffrey Colins, a former Monroe County 9-1-1 operator, testified that on May 15, 2006, he answered a call shortly after 5 p.m. from 215 Unicoi Lake Road ("the Coker Creek residence") in Monroe County. A recording of that call was played for the jury.

         Monroe County Sheriff's Office ("MCSO") Patrol Officer Christopher Logan Day responded to the 9-1-1 call, and when he arrived at the Coker Creek residence, he "encountered Mr. Kaczmarczyk walking from the house up the driveway, approximately halfway between the house and the road." Officer Day patted Mr. Kaczmarczyk down and instructed him to remain outside while Officer Day and his partner conducted a sweep of the house. Upon entering the house, Officer Day observed "white pills laying around in the floor" and "a lifeless body in a recliner" holding a "pistol in his right hand" and "a pill bottle in his left[]hand." The victim had "a cut or abrasion[] on his forehead" that appeared to be recent to the time of death. The house, "particularly around the kitchen, was certainly in disarray." Officer Day observed a number of pills and documents, one of which documents he believed to be a living will, in the kitchen. Officer Day recalled that the defendant arrived "a little bit later," but he had only limited contact with her.

         MCSO Detective Travis Jones also responded to the Coker Creek residence, where he took photographs and gathered information. Detective Jones identified photographs of the victim in the recliner. Detective Jones said that all the rounds were chambered in the pistol they took from the victim's right hand. In the kitchen, pills, a pill holder, and a do not resuscitate ("DNR") order were lying on the counter. He "collected all the pills that were strung about through the house, the pill bottle in the hand and also the pistol." Detective Jones said that the defendant arrived 30 to 40 minutes after he did and provided written consent to search the residence. The defendant also gave Detective Jones "several different pieces of paperwork," including "a journal of what she kept about the events at the VA and different stuff." The journal contained a variety of odd entries written by the defendant.

         Upon cross-examination by the defendant, Detective Jones testified that Mr. Kaczmarczyk was originally charged in 2006 with evidence tampering and criminally negligent homicide in relation to the victim's death. Mr. Kaczmarczyk was arrested at the scene on the day of the offense after Detective Jones viewed photographs on Mr. Kaczmarczyk's digital camera. Those photographs depicted the victim's lifeless body in a variety of staged scenes. Detective Jones acknowledged that another judge had ruled that he should not have examined a digital camera without a search warrant and had, in consequence, suppressed the photographs from the digital camera. All the charges against Mr. Kaczmarczyk were dismissed after the photographs were suppressed.

         Detective Jones also acknowledged that, in an interview conducted before his May 15, 2006 arrest, Mr. Kaczmarczyk did not implicate the defendant in any foul play. Mr. Kaczmarczyk admitted to Detective Jones that he took the photographs with the digital camera and said that he had "staged the scene to make it look like a suicide so Ms. McClancy could benefit more through the VA benefits."

         Charles Kaczmarczyk testified that he had pleaded guilty to a charge of conspiracy to commit first degree murder in exchange for a 25-year sentence for his role in the victim's death. Mr. Kaczmarczyk testified that he met the victim in January 2006 when they both participated in a residential treatment program for PTSD at the VA hospital in Nashville. Mr. Kaczmarczyk recalled that he and the other five program participants, including the victim, "pretty much all . . . mirrored the same prescription [medication] regimen," which included "Clonagin, Mirtazapine and Trazodone." He and the victim became close during the program, and, after the program ended at the end of February, Mr. Kaczmarczyk attended "a sort of reunion-type breakfast" for program participants and their spouses hosted by the victim and the defendant at "their home in Coker Creek." Mr. Kaczmarczyk recalled that as the program participants discussed their medication regimens and ongoing treatment programs on that day, he was struck by the defendant's detailed knowledge of the victim's medication regimen. He said that he "thought she was a pharmacist she knew so much about it." He added, "It appear[ed] that she knew each one of the medications, what the prescribed dosages were, when they should be taken, what the contraindications were, just more information than the average person would have as far as medications."

         Mr. Kaczmarczyk testified that he and the victim stayed in touch following the reunion breakfast and that, eventually, the victim invited him "to come back to his place to visit him." Mr. Kaczmarczyk said that he agreed to visit the victim because the victim "was having some problems" and "his PTSD was possibly out of control." He said that when he went to visit the victim, the victim, who had been very energetic and active during the residential program, had become "very lethargic." Mr. Kaczmarczyk continued to visit the victim and the defendant at the Coker Creek residence and began attending the victim's medical appointments at the VA. During this time, the victim never expressed any suicidal thoughts to Mr. Kaczmarczyk.

         Mr. Kaczmarczyk testified that the defendant initiated a sexual relationship with him in April 2006. During that same period, the defendant cut her hair and died it blond. The defendant told him that she had cut her hair "out of spite" because the victim "liked long hair." Toward the end of April 2006, the defendant added Mr. Kaczmarczyk "as a card holder to the Discover card account" held by the victim and the defendant and provided Mr. Kaczmarczyk with a card for his use. During their courtship, the defendant "mentioned on several occasions that she would like to get rid of" the victim and said that "if he went away," she and Mr. Kaczmarczyk "could be together."

         At the end of April 2006, the victim was hospitalized at the VA hospital in Johnson City following an apparent drug overdose. While the victim was hospitalized, Mr. Kaczmarczyk attended "a family meeting" with the victim, the defendant, and the victim's treatment providers that "was an ongoing overview of what his continued treatment would be when he was, in fact, released from the hospital." He recalled that at that meeting, the defendant agreed to be in charge of the victim's medication and stated that she would make sure that the victim took his medication as prescribed.

         The victim was released from the hospital on May 13, 2006, and Mr. Kaczmarczyk drove him home to the Coker Creek residence. That night, the defendant prepared the victim's favorite meal, but when the victim "complained that it didn't taste very well," the defendant "put seasoning on it so that he would eat it." Later that evening, the defendant remarked to Mr. Kaczmarczyk "that she had used magic dust on it," which he interpreted to mean that she had put medication into the victim's food. Mr. Kaczmarczyk said that the victim's demeanor changed from "alert and oriented to somewhat lethargic, intoxicated, under the influence of drugs," and Mr. Kaczmarczyk attributed the change in the victim's demeanor to the defendant's tampering "with his food and medications." Mr. Kaczmarczyk maintained that the defendant managed the victim's medications at that time as she had been doing "everyday since he had been released from" the residential treatment program. Mr. Kaczmarczyk spent the night at the Coker Creek residence with the victim and the defendant. The next day, May 14, 2006, the defendant told Mr. Kaczmarczyk that if he should happen to find the victim dead, he should "keep it simple," which Mr. Kaczmarczyk interpreted to mean that the defendant wanted him to "make it look as natural as possible or make it look like a suicide."

         Mr. Kaczmarczyk again spent the night at the Coker Creek residence. He testified that he left the Coker Creek residence at approximately 6:45 a.m. on the following morning to attend some appointments in Knoxville. He said that when he left the residence, both the victim and the defendant were still there. The victim was in his recliner, and "[h]e appeared to be somewhat lethargic." When Mr. Kaczmarczyk returned to the Coker Creek residence later that afternoon, he found the victim "sitting on the floor with his pajamas kind of in a state of disarray." The victim called Mr. Kaczmarczyk by name and asked Mr. Kaczmarczyk "to help him get into his recliner back in the living room." Mr. Kaczmarczyk testified that he helped the victim into his recliner and then went to get the victim a bottle of water. The victim "drank some of the water. And at that point in time, he expired and vomited."

         Although he believed that the victim had died, Mr. Kaczmarczyk did not immediately call 9-1-1. Instead, he "took some photos of the scene from the downstairs area and also from the upstairs area with him lying in his recliner" and then placed a bottle of pills . . . in his hand . . . and also a gun" before taking more photographs. He testified that he put the gun in the victim's hand because, during the residential treatment program, the victim "mentioned on several occasions that if he died due to his previous law enforcement experience, that he would like to die with a gun in his hand." Mr. Kaczmarczyk said that he also "emptied the pill keeper onto the table." He took the DNR order, which "was already on the table and had been since we returned from the hospital on Saturday," and placed it in a more prominent position. He said that he and the defendant had planned for the victim to be found while she was at work "[s]o it would be an alibi." He said that their planning took place the day before the victim's death.

         Mr. Kaczmarczyk said that after the police found the photographs of the victim on his digital camera, he was arrested and charged with obstruction of justice. Mr. Kaczmarczyk acknowledged that he provided a statement to Detective Jones on the day of the murder wherein he claimed that the victim was dead when he found him and that he did not touch the victim, the pills, or the gun. In a second statement given that same day, Mr. Kaczmarczyk admitted that the victim was just barely alive when he arrived and that he had helped the victim to the recliner. He admitted that he "put the gun and the pills in his hand to make the scene look worse. I thought it might increase his VA claim," explaining that the victim had been previously declared 30 percent disabled. Mr. Kaczmarczyk said that the defendant paid an attorney $50, 000 to represent him. The charges were eventually dismissed after a judge ruled that the photographs on the camera were not admissible.

         Following the victim's death, the defendant applied for "a benefit called DIC, which means dependent indemnity compensation through the VA. That was also known as the widow's pension." Additionally, "based on the information that he possibly had accidently overdosed, that it was the VA's fault for them not managing his medication better" the victim was retroactively declared 100 percent disabled, which resulted in an award to the defendant of "one hundred percent what they call widow's pension." He thought the amount was $3, 000 per month. The defendant paid off a $50, 000 loan for Mr. Kaczmarczyk, and he moved into the Coker Creek residence with the defendant. The defendant told him "that she had cut and pasted the will, [the victim's] original will, so that his sister . . . and his daughter . . . could not derive anything financially from him." On June 15, 2006, Mr. Kaczmarczyk and the defendant opened a joint bank account. They were married on October 7, 2006, in Las Vegas, Nevada, and then again on October 7, 2009, in Blue Ridge, Georgia. Mr. Kaczmarczyk said that the defendant insisted upon the second ceremony, telling him it was "a woman thing."

         The defendant and Mr. Kaczmarczyk traveled extensively after the victim's death, beginning with a June 2, 2006 trip to Atlanta for a Jimmy Buffett concert. Mr. Kaczmarczyk identified the log of their travels kept by the defendant; the log included 27 separate entries. Mr. Kaczmarczyk testified that the defendant and the victim had never traveled very much because the victim was "pretty much a recluse." The defendant was laid off from her job in September 2006, and Mr. Kaczmarczyk's only sources of income were disability benefits from the VA and the SSA. Despite this, the couple continued to travel and even purchased a large motor coach in 2007. Sometime in 2010 or 2011, the defendant spontaneously said to Mr. Kaczmarczyk, "If anybody finds out whatever really happened to Bob, I will never see the light of day."

         Mr. Kaczmarczyk testified that, prior to the victim's death, Mr. Kaczmarczyk had placed a bag of pills into the victim's gun safe after he and the defendant decided that, if they "planted pills around the property, it would give more credence to the fact that [the victim] had been misusing drugs, possibly committing suicide." He and the defendant invited the defendant's son, Brian McGavic, [1] to stay with them in 2007, and they had arranged for Brian McGavic to discover the bag of pills in the gun safe. Mr. Kaczmarczyk recalled that they told Brian McGavic "that there were pills in there, possibly pills that [the victim] may have used during his time of overdose," and Brian McGavic reported it to the police. Mr. Kaczmarczyk said that the pills discovered in the safe had actually belonged to him and that he and the defendant hoped that the discovery of the pills would operate in Mr. Kaczmarczyk's favor with regard to the charges that were pending against him at that time.

         Mr. Kaczmarczyk, an Air Force veteran who served from 1972 until 2001, testified that despite having served only "a single day in Southeast Asia in Vietnam, which was the 29th and 30th of April in 1975 during the evacuation of Saigon," he portrayed himself as a war hero with a higher rank as part of "a hustle" to get "benefits and make money" without having to work. He said that he worked the "hustle" from 2005 to 2012 and that the defendant not only knew about his hustle but began one of her own during their time together. The defendant claimed to be a retired colonel from the United States Marine Corp and a former employee of the United States Department of State. Mr. Kaczmarczyk acknowledged falsifying his service record in order to increase the amount of benefits he received from the federal government and that he had pleaded guilty to federal offenses for that action. He said that he had been ordered to pay $659, 000 in restitution to the various agencies from which he had obtained unearned benefits.

         Mr. Kaczmarczyk testified that the defendant filed to divorce him in 2012, telling him "that if we got divorced and she was single, that it would be financially beneficial for tax purposes and some reason." Mr. Kaczmarczyk said that he "was incarcerated at the time," so her request "didn't really bother [him] one way or the other."

         Mr. Kaczmarczyk testified that he provided a written statement to the TBI on December 20, 2012, while he was serving a federal prison sentence. In the statement, he said that the defendant had asked him "to bring over medication . . . and to mix the prescription medications up so that it would look like [the victim] was stealing them from me and saving them up." He did as she asked. He said that he knew that the defendant gave the victim "the drugs to overdose him, but . . . did not see her do this." He explained,

My first understanding is that she was overdosing him by putting the medication in his food. Martha Ann told me that she was going to overdose Bob so that we could be together, and with his history of drug overdoses when she, quote, made him go away, end of quote, it would look like just another overdose that he had.

         The defendant began putting large quantities of medication in the victim's food after the victim returned home from the hospital on May 13, 2006. Mr. Kaczmarczyk said that he knew that the defendant "was going to start medicating [the victim] heavily when we got back to the house from the hospital and he would probably die soon." He recalled that the defendant "was specific about how and when she wanted" Mr. Kaczmarczyk to check on the victim, asking him to check on the victim "at a specific time on the day that he died" so that Mr. Kaczmarczyk "would find him dead and she would be at work with an alibi." Mr. Kaczmarczyk said that when the defendant told him when to check on the victim on May 15, 2006, he "was pretty sure that she was going to give him a lethal dose of the drugs because he was so close to dying anyway, and she was so specific about me being there at a certain period of the day on that date." He acknowledged that he staged the scene with the pill keeper, the gun, and the DNR order. He said, "I thought it would look better and more like he had committed suicide."

         Mr. Kaczmarczyk said that he was aware that the defendant had forged the victim's will by "manipulat[ing] the signature page of the will" and that she had done so "because she didn't want Bob's sister who lived in Florida to get any of Bob's assets." After the victim's death, the defendant "was able to remove Bob's name off of stocks that were in both of their names" and that were worth "around a hundred thousand dollars or more."

         Mr. Kaczmarczyk said that, as far as he knew, the defendant planned to kill the victim so that they could be together and not for "financial reasons." He added that he "threw gas on the fire about that and told Martha Ann about now that Bob was dead she needed to apply to get Bob's Veterans Affairs benefits and his Social Security benefits."

         Mr. Kaczmarczyk testified that, at some point, he had downloaded the photographs of the victim onto his computer and then later deleted them.

         During cross-examination, Mr. Kaczmarczyk admitted that the defendant's desire to be rid of the victim was initially "emotional" because they wanted to be together. He acknowledged that, following the victim's death, he came up with ways that the defendant could benefit financially from the victim's death. Mr. Kaczmarczyk conceded that the victim "was very difficult with taking medications" as prescribed and that, as far as he knew, the defendant "was administering all [the victim's] medications because he had a tough time doing it himself."

         Brian McGavic testified that he visited the defendant and Mr. Kaczmarczyk in July 2007 and that he "was back and forth between [Mr. Kaczmarczyk's] house in Knoxville and Coker Creek" until he returned to Florida in September 2007. At that time, the defendant and Mr. Kaczmarczyk spent "[t]he majority of their time . . . in Coker Creek." Brian McGavic recalled a particular day when the defendant and Mr. Kaczmarczyk asked him to locate a lost tool and told him where the tool might be located. When Brian McGavic found the tool, he also found "a set of keys that would unlock the spin combination on the" large gun vault in the garage. The defendant and Mr. Kaczmarczyk gave Brian McGavic permission to open the vault and provided him with the combination. The vault contained only "a grocery store bag full of loose medications, mixed medications all out of their containers." Brian McGavic testified that the defendant and Mr. Kaczmarczyk reacted to the discovery with "shock and exasperation" and asked Brian McGavic to contact the sheriff's office. Although he thought it was odd that they should ask him to telephone the police rather than place the call themselves, he did as they asked. While waiting for the police to arrive, the defendant and Mr. Kaczmarczyk set up "a card table and a couple of chairs . . . in the middle of the driveway in front of the garage." Mr. Kaczmarczyk "had a digital camera and wanted to place himself . . . where he could take photographs of [Brian McGavic] and this deputy together as the deputy was separating, identifying and inventorying the medications that were found." Brian McGavic testified that he found the behavior of the defendant and Mr. Kaczmarczyk very unusual. When he inquired about their behavior, they "explained that they had planned on filing a lawsuit against Monroe County and that they were also planning on filing a lawsuit against" the VA and "that they were going to use this in their cases against both." Mr. McGavic said that "[w]ithout a doubt," he had come to believe that the defendant and Mr. Kaczmarczyk had manipulated him into "accidentally" finding the medications.

         James Timothy Bridges, Adjunct Pharmacy Programs Manager at the VA Mountain Home Healthcare Center in Johnson City, testified that on February 23, 2006, the victim received 15 30-milligram tablets of Mirtazapine. Mr. Kaczmarczyk received 30 45-milligram tablets of Mirtazapine on March 13, March 28, and May 9, 2006. Mr. Kaczmarczyk filled prescriptions for Trazodone during this same period.

         Martin Edward Smith, a pharmacist at the VA hospital in Murfreesboro, testified that the victim received 45 15-milligram tablets of Mirtazapine on March 1 and May 10, 2006, and that he was instructed to take one half pill each day. The victim received 30 50-milligram Trazodone tablets on January 6, 2006, and 15 50-milligram Trazodone tablets on January 13, January 23, and February 14, 2006. Mr. Kaczmarczyk received 30 30-milligram tablets of Mirtazapine on January 24, January 30, March 7, April 10, and May 5, 2006. Mr. Kaczmarczyk received 90 100-milligram tablets of Trazodone on January 12, February 2, February 24, March 20, and April 24, 2006.

         Doctor Darinka Mileusnic-Polchan, Chief Medical Examiner for Knox and Anderson Counties and Medical Director of the Regional Forensic Center, testified that the victim's autopsy was performed by Doctor Ronald Toolsie, who provided autopsies in Monroe County at the time of the victim's death. Doctor Mileusnic-Polchan testified that she had reviewed not only Doctor Toolsie's written autopsy report but had also examined the photographs taken during the autopsy and at the scene, the "ancillary studies, such as toxicology," and the "cystologic slides, such as samples of tissue that was taken at the time of the autopsy." Based upon her review, Doctor Mileusnic-Polchan concluded that the victim was in fairly good health aside from "a mild hypertension" observable by looking at slides from his heart, kidney, and brain. She noted edema in the victim's lungs and brain, which could have been attributed to "hypoxia or a lack of oxygen in the blood."

         The toxicology report indicated that Trazodone and Mirtazapine were present in the victim's system "in the toxic ranges." Trazodone, which has a relatively short half-life of three to seven hours, was present in the victim's blood at 4200 nanograms per milliliter, which "was almost four times the maximum therapeutic range." Doctor Mileusnic-Polchan testified that it was her opinion that the Trazodone alone, even in that amount, would not have caused the victim's death. Mirtazapine, which has a very long half-life of 20 to 40 hours, was present in the victim's blood at 750 nanograms per milliliter, more than seven times the maximum therapeutic range of 100 nanograms per milliliter. She noted that Mirtazapine's long half-life made it "easier to overdose with a higher or more frequent dose." She said that Mirtazapine was, in this instance, the deadlier of the two drugs, explaining,

The Mirtazapine in this level I would be more comfortable stating it as the only cause of death because it is definitely more toxic as far as causing some side effects, side effects being like a serotonergic syndrome or one of those, like stimulus neurologic syndrome that individuals can overreact because of chemical changes in the brain.

         She added, "[T]he concentration of these particular drugs in this combination is definitely deadly because of all the side effects that they can cause."

         Doctor Mileusnic-Polchan testified that the victim had no gastric contents, which indicated that he had not eaten within a "minimum of six hours." The absence of pill fragments in the victim's stomach indicated to Doctor Mileusnic-Polchan that the victim had not ingested the Trazodone and Mirtazapine as whole or half tablets. She observed that "a lot of these medications are in the tablet form that is designed for slow release" and that crushing the tablet would defeat the slow release mechanism, which, in turn, "might elicit sudden increase in the level of concentration." Doctor Mileusnic-Polchan said that, in a typical case of suicide by overdose, she would expect to "see a lot of granular substance in the gastric content[s]" as well as "a lot of fluids to help all those drugs push down." Neither was present in the victim's autopsy. She added that she would have expected "much larger levels [of drugs] because when there is intent and there is an oral intake of the drugs, that elicits sudden surge of these mediations in the blood stream, then the layers are much higher." It was Doctor Mileusnic-Polchan's opinion that the victim "died of combination of the Trazodone and Mirtazapine, which is the main cause of death."

         During cross-examination, Doctor Mileusnic-Polchan testified that brain edema like that present in the victim "is going to be the result of a protracted death, meaning that that is not sudden." Her review of the victim's hospital records from the last hospitalization before his death showed that "the Mirtazapine and Trazodone were not the drug that he was released with to go home."

         The defendant's son, Sean Michael McGavic, testified that the defendant initially told him that the victim had died as a result of several mini strokes:

[S]he said that he -- he was acting strange at the house and he was starting to have mini strokes. And she loaded him -- put him in her truck and took him to the hospital. And on the way to the hospital, he had another several mini strokes and she thought he died on the way to the hospital. And she had to pull the truck over and resuscitate him. And she, I guess, got him back and then got him to the hospital. And once he got in the hospital, he passed away sometime at the hospital.

         When Mr. McGavic later visited the defendant at the Coker Creek residence, the defendant told him that the victim "had died of a heart attack at home." Finally, in 2008, the defendant told Mr. McGavic that the victim had died of a drug overdose.

         Mr. McGavic testified that his relationship with the defendant had always been tumultuous and that, at some point in 2008, he and the defendant stopped speaking. In 2012, Mr. McGavic learned that the defendant and Mr. Kaczmarczyk were under investigation for federal benefits fraud. He said that he contacted the defendant in August or September 2012 after she was released on house arrest so that he could recover property from her that had originally belonged to his father and paternal grandparents. They began talking, and he went to help her clean out the Coker Creek residence. Mr. McGavic testified that, at that time, the defendant, anticipating a stint in federal prison, executed a durable power of attorney to allow him to conduct affairs on her behalf and provided him with the deeds to the Coker Creek residence and the Knoxville residence that she shared with Mr. Kaczmarczyk. She also gave him full control of all her belongings, including three computers. When Mr. McGavic examined the contents of the computers, he "found some photos on" one of the computers given to him by the defendant "that . . . appeared to be [the victim] dead in different ways." He contacted the federal agents who were investigating the defendant at that time to alert them about the photographs.

         In January 2013, the defendant contacted Mr. McGavic and said that she had been questioned about the victim's death and "wanted [him] to come over right away." When he arrived, the defendant was in the downstairs bathroom with the radio on "because she was afraid that . . . somebody [was] listening in." She told Mr. McGavic "that the TBI had come and questioned her about" the victim's death and, referring to the computers she had given him, said,

I don't know if, you know, somebody is going to come to your house to get anything. But if you could, you may want to take those computers to . . . an IT person, to delete the information, have him go through these computers that I gave you and delete whatever is on them. And that way your kids can use them . . . .

         During cross-examination, Mr. McGavic testified that Mr. Kaczmarczyk had signed the Knoxville residence over to the defendant and that the defendant had added Mr. McGavic's name to the deeds for both the Knoxville and the Coker Creek residences before she began her federal prison sentence. Mr. McGavic clarified that he had discovered the photographs of the victim on the computer before he had the conversation wherein the defendant told him to delete the information on the computers. Mr. McGavic maintained that the defendant and the victim had purchased the Coker Creek residence using money awarded to Mr. McGavic "from a car accident" and money that Mr. McGavic "had inherited from the time [he] was born." He acknowledged that the defendant had executed a quit claim deed to him for the Coker Creek residence, insisting that it had been purchased with his money and that no one was living in it.

         TBI Agent Josh Melton testified that he was contacted by federal agents, who informed him "that there was information, intelligence information that might pertain to a death." He later received a written request for investigation from the Monroe County District Attorney's Office. After a brief conversation with Detective Jones, Agent Melton "made the independent decision as TBI that we were not going to view" the MCSO case file for the investigation of Mr. Kaczmarczyk.

         Agent Melton spoke to Mr. McGavic, who indicated that he had computers, electronic storage devices, and documents that had been given to him by the defendant and that pertained to the death of the victim. Mr. McGavic surrendered to ...


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