Court of Criminal Appeals of Tennessee, Nashville
Session November 15, 2018
from the Circuit Court for Montgomery County No.
63CC1-2014-CR-817 William R. Goodman, III, Judge.
Defendant, Kyle Alex Batiz, was convicted of aggravated child
abuse and reckless homicide and was sentenced, respectively,
to concurrent sentences of 21 years at 100% and 3 years at 30
percent. On appeal, he argues that the evidence was
insufficient to sustain the conviction for aggravated child
abuse; the trial court erred by not suppressing his text
messages and statement to police; the trial court erred by
allowing a forensic pathologist to testify regarding matters
not within her expertise; he should have been sentenced as an
especially mitigated offender; and the conviction for
aggravated child abuse should be reversed because of
cumulative errors that occurred during the trial. We have
reviewed the record in this matter and conclude that the
issues raised by the Defendant are without merit.
Accordingly, we affirm the judgments of the trial court.
R. App. P. 3 Appeal as of Right; Judgments of the Circuit
McGee, Nashville, Tennessee, and William D. Massey, Memphis,
Tennessee, for the appellant, Kyle Alex Batiz.
Herbert H. Slatery III, Attorney General and Reporter;
Jeffrey D. Zentner, Assistant Attorney General; John W.
Carney, Jr., District Attorney General; and Kimberly Lund,
Assistant District Attorney General, for the appellee, State
E. Glenn, J., delivered the opinion of the court, in which
John Everett Williams, P.J., and Norma McGee Ogle, J.,
E. GLENN, JUDGE.
15, 2014, while in the sole care of the Defendant, her
stepfather, the one-year-old victim was fatally injured. The
Defendant called 911 and ultimately was charged with the
death of the victim. According to the Defendant, the injuries
resulted from the victim's falling from a two-foot
ottoman onto a toy. The State's witnesses testified that
the injuries to the victim were so devastating that they
could not have resulted from such a fall. We will set out the
proof in this matter.
trial court heard the Defendant's motions to suppress on
February 10, 2016. The Defendant sought to suppress his
statements made to police and text messages obtained from his
phone. He asserted these statements were elicited in
violation of the Fourth and Fifth Amendments, and the text
messages were obtained in violation of the Fourth Amendment.
Arthur Bing, a patrol officer with the Clarksville Police
Department ("CPD"), testified at the hearing that
his supervisor called him to the Defendant's apartment on
May 16, 2014, because there was "an individual who
needed transportation voluntarily down to a different office,
at Special Operations." Officer Bing affirmed that the
Defendant was not restrained "in any way" when he
arrived at the apartment, and it was Officer Bing's
understanding that "this individual was not in police
custody[.]" Officer Bing transported the Defendant to
the Special Operations Unit ("SOU") office, and the
Defendant rode unrestrained in the backseat because Officer
Bing "ha[d] two loaded weapons as part of [his] patrol
unit[, ]" and not allowing individuals to ride in the
front seat "keeps people from getting access to
those." As a matter of general practice, Officer Bing
kept the Defendant's "wallet, phone, and a
vaporizer" in the front seat of the patrol car during
the trip to the SOU. Officer Bing explained that whenever he
transports an individual, he "collect[s] their personal
belongings and hold[s] them until [they] get to the location,
and then [he] will give them back to them[, ] and they agree
to it." The Defendant's personal items were not
placed in an evidence envelope. He stated that he normally
placed personal items "on [his] front patrol bag . . .
right on top of there . . . in the passenger seat area."
Officer Bing and the Defendant arrived at the SOU, the
building had closed for the day. Detective Michael Ulrey had
to open the building because Officer Bing did not have a key.
Officer Bing "had to open the door [of the patrol car]
for [the Defendant]" because there were no handles on
the inside of the backseat. Officer Bing walked behind the
Defendant into the SOU, without touching him or placing him
in restraints. Detective Ulrey took the Defendant to an
interview room, and Officer Bing waited at the SOU because
the Defendant "would need a ride back to his home"
and affirmed that he was "sort of like a
chauffeur[.]" On cross-examination, Officer Bing
explained that a key was not needed to exit the SOU building.
He affirmed that a person in the backseat of a patrol vehicle
could not exit the vehicle unless someone opened the backseat
door from the outside. Officer Bing agreed that the Defendant
had voluntarily gone to the SOU and voluntarily walked from
Officer Bing's patrol car into the building.
Ulrey testified that he worked as a death investigator in the
CPD's SOU division. He was assigned to investigate the
victim's death and arrived at the Defendant's
apartment shortly after the victim was transported to the
hospital. He encountered the Defendant inside the apartment
and described the Defendant's demeanor as "visibly
upset" but "very cooperative." Detective Ulrey
explained that the Defendant "answered all [his]
questions" and "agreed to assist [Detective Ulrey]
in . . . anything that [he] thought needed to happen."
The Defendant signed a consent form for Detective Ulrey to
bring in a team to search and process the apartment.
Detective Ulrey explained to the Defendant that he would need
to "come back to [Detective Ulrey's] office to sit
down so [Detective Ulrey] could take a formal
statement[.]" The Defendant agreed to do so without
hesitation. When asked why Detective Ulrey did not take the
Defendant's statement in the apartment, he explained that
the team processing the apartment was "very meticulous
on what they do[, ] and his apartment was going to get
crowded[, ] and it's standard practice when documenting
statements from people for [police] to take them back to
our office." He further explained that his office had
audio/video recording capabilities, unlike the
Ulrey affirmed that the Defendant was not in custody while he
was in Officer Bing's patrol car, and he even told other
officers that the Defendant "was going down
voluntarily." Detective Ulrey affirmed that "there
had been no decision at that point to arrest [the
Defendant.]" While driving from the Defendant's
apartment to the SOU, Detective Ulrey received a phone call
from Detective Ewing, who was at the hospital with the
victim. Detective Ewing "explained to [Detective Ulrey]
the bruising and placements of the bruising on [the
arriving at the SOU, Detective Ulrey had to let Officer Bing
and the Defendant into the building because it was locked.
Detective Ulrey explained that during business hours, the SOU
has a receptionist who controls "traffic coming in and
out  via the front door into the lobby[, ]" and he
affirmed that "people can come into [the SOU] lobby from
the outside" during business hours. However, the
receptionist always locked the exterior door when she left at
the end of the work day, and if "investigators have
someone coming in, [they] are responsible for meeting them
and bringing them to the door." Officer Ulrey agreed
that a key was not needed to exit the SOU when the doors were
locked. The Defendant was led to an interview room with two
unlocked doors and remained unrestrained and not in custody.
Detective Ulrey affirmed that if "you are in the
[interview] room and the doors are unlocked," there is
nothing "keeping you from opening the door and going
out[.]" The Defendant "never asked to leave"
and did not "express any reservation about going into
that [interview] room and talking to [Detective Ulrey.]"
The interview was both audio and video recorded.
entering the interview room, Detective Ulrey explained to the
Defendant the requisite forms that needed to be addressed,
specifically the interview sheet, the Miranda
waiver, and the Sudden Unexplained Infant Death Investigation
("SUIDI") form. Detective Ulrey filled out the
interview sheet with the Defendant, which is filled out
"in all cases" and "documents who [police] are
talking to and just general information about" that
person. Although the Defendant was not in custody and
Detective Ulrey had not made the decision to arrest him,
Detective Ulrey read the Defendant his Miranda
rights because "there were enough questions with this
case that I was afraid [the Defendant] may make some
incriminating statement to me during our conversation[, ] and
I wanted him to fully understand his rights that were reduced
to writing." After Detective Ulrey explained his
Miranda rights to the Defendant, the following
[The Defendant]: . . . [i]s there anyway way I could-'cuz
my-my dad's, uh, girlfriend is a lawyer; is there any way
I-I'd be able to talk to her first?
Detective Ulrey: Before you talk to me at all?
[The Defendant]: . . . [A]bout anything.
Detective Ulrey: . . . [If] you are asking to talk to an
attorney, that is absolutely shutting me down.
[The Defendant]: Okay. Then no-
Detective Ulrey: That-
[The Defendant]: No.
Detective Ulrey: . . . I'm just-I want you to understand
I'm trying to figure out what happened.
[The Defendant]: Okay.
Detective Ulrey: If you are telling me that you want to
talk-you-you understand your rights; if you're telling me
you wanna [sic] talk to an attorney before you talk to me,
then I can't talk to you anymore.
[The Defendant]: Okay.
Detective Ulrey: Okay. Um . . .
[The Defendant]: I don't have any problem-
Detective Ulrey: But it-
[The Defendant]: I don't have a problem with you talking
Detective Ulrey: Okay. All right.
[The Defendant]: I don't.
Detective Ulrey: I just don't-wanna [sic] make that
[The Defendant]: Okay.
Detective Ulrey: All right. All right. Um if you would, just
[The Defendant]: Okay.
on this exchange, Detective Ulrey did not believe that the
Defendant was asking for an attorney. If the Defendant had,
Detective Ulrey testified that he would have "shut down
the interview and walked out." After this exchange,
Detective Ulrey started going over the SUIDI form, which
"is a standard form given to [police] by the State
[that] . . . the medical examiner uses . . . in their
investigation, during the autopsy." Detective Ulrey
acknowledged that the Defendant did not finish filling out
the SUIDI form but explained that Ms. Denny, as the
victim's primary caretaker, completed a SUIDI form with
Defendant was given water and a restroom break during the
interview at the SOU. Detective Ulrey walked the Defendant to
the restroom because it was "a secure area . . . they
require us to just escort [the public] at least to the
bathroom." He did not enter the restroom with the
Defendant but waited outside. Detective Ulrey agreed that he
"had a fair amount of information about the death of the
[victim]" even prior to the Defendant's restroom
break, and Detective Ulrey did not "think there had been
any other adults present" at the Defendant's
apartment based on the information he had. After Detective
Ulrey walked the Defendant back to the interview room, he
went and spoke with Detective Ewing, who had just returned to
the SOU from the hospital. Detective Ewing showed Detective
Ulrey photographs of the victim at the hospital, including
the bruising on her body. Detective Ulrey returned to the
interview room after speaking with Detective Ewing. The
Defendant "was still being very cooperative, so . . . we
just still had [a] conversation during the course of the
Ulrey affirmed that "at some point" during the
interview, the Defendant explained that he had sent Ms. Denny
test messages "to explain what had happened." The
Defendant gave his consent for Detective Ulrey to look at the
text messages on his cell phone, and the Defendant "even
gave [Detective Ulrey] his unlock code for the phone."
Detective Ulrey stated that he was also able to view the text
messages on Ms. Denny's cell phone.
speaking with the Defendant, Detective Ulrey "made the
decision that [he] had enough probable cause to arrest [the
Defendant.]" Detective Ulrey stated that he made the
decision to arrest the Defendant after he "demonstrated
striking his child and the force that he hit [the interview
room] table and then also the way he described squeezing his
child and the relevance of the bruises . . . from his hands
onto that child[.]" Detective Ulrey testified that the
entire length of his interview with the Defendant was
"maybe an hour, an hour and a half," including the
restroom break and the discussion about the Miranda
waiver and other forms. Following the interview, Detective
Ulrey spoke with the Defendant's wife, Rebecca Denny, who
had been speaking with Detective Ewing. Detective Ulrey
allowed Ms. Denny to go into the interview room to speak with
cross-examination, Detective Ulrey affirmed that when he
arrived at the Defendant's apartment, he did not have
"reasonable suspicion to detain" the Defendant and
"would have had no reason to stop him" if he
decided to leave his apartment. Detective Ulrey acknowledged
that he was carrying his weapon and that the Defendant knew
that he was an investigator when the Defendant agreed to go
to the SOU to give a statement. He also thought that the
Defendant learned of the victim's death before Detective
Ulrey arrived at his apartment. Detective Ulrey testified
that after receiving the call from Detective Ewing regarding
the victim's bruises, he had "reasonable suspicion
to detain [the Defendant, ]" and the Defendant was
therefore not free to leave during the minutes between the
Defendant sitting in the interview room alone and the start
of the interview. Detective Ulrey rejected the assertion that
he interviewed the Defendant "with the intention of
getting a confession[.]"
the discussion about the Miranda waiver, Detective
Ulrey testified on cross-examination that he "wanted to
clarify whether [the Defendant] was actually asking for an
attorney" after the Defendant mentioned his father's
girlfriend. He further explained that "as [he] was
trying to clarify with [the Defendant], [the Defendant]
actually interrupt[ed] [Detective Ulrey] and sa[id] no, no,
no, I want to continue." Detective Ulrey testified that
after hearing the Defendant's first explanation of what
had happened, he did not believe the Defendant's
assertion that the bruising on the victim's body had
occurred when she fell on her toys, and he agreed that he did
not have probable cause to arrest the Defendant at that
point. The decision that there was probable cause to arrest
the Defendant came from "a conglomeration" of the
Defendant "slam[ing] [the interview room] table
demonstrating he hit her or hitting [her] twice in the
abdomen," or when the Defendant "did some type of
crazy Heimlich maneuver by compressing her insides or when we
figured out that bruis[es] on her back were consistent with
where his fingers would be while he was squeezing her."
Detective Ulrey reiterated that he did not believe that the
Defendant was asking for a lawyer.
the suppression hearing, the trial court denied the
Defendant's motions to suppress. The trial court found
that police placing the Defendant in the backseat of Officer
Bing's patrol car constituted a detention. However, the
trial court went on to explain it was "appropriate that
there be a brief investigatory detention, which would be
supported by reasonable suspicion[, ]" given that
"the Defendant was the only other individual present in
the apartment at the time that the [victim] sustained a fatal
injury." The trial court further found that even if the
detention was not justified, "the taint of the unlawful
seizure had been sufficiently attenuated from the subsequent
voluntary consent of the Defendant." The trial court
additionally noted that Ms. Denny had also given consent to
search the apartment. With respect to the Miranda
waiver, the trial court reviewed the exchange between
Detective Ulrey and the Defendant and found that the
Defendant's signing the Miranda waiver form
"serve[d] as a knowing voluntary waiver of the
Defendant's right to counsel for purposes of the
Givens, Deputy Director of Montgomery County 911, testified
that two 911 telephone calls were received on May 15, 2014,
from the address where the Defendant and the victim were
located. A recording of these telephone calls was played for
Crist testified that she was a paramedic employed by
Montgomery County Emergency Medical Services. On May 15,
2014, she responded to a "CPR in Progress" call at
the address where the victim and the Defendant were located.
At the scene, she observed a "one-year-old female on the
floor with a male subject doing CPR on her." Paramedic
Crist immediately picked up the victim and began chest
compressions while carrying her to the ambulance. The victim
did not have a pulse and was "very pail [sic]" with
"dark bruising on her abdomen." Paramedic Crist
continued to try to resuscitate the victim during transport
to the hospital, but she was not breathing and did not have
"any sort of electrical activity."
McKee testified that he was employed by Clarksville Fire and
Rescue and had responded to the call regarding the victim.
The rescue truck he was riding in arrived after the police
officers and the ambulance. He stated that "[e]verybody
was just getting supplies to the upstairs" when he
arrived. Upon seeing Paramedic Crist carrying the victim to
the ambulance, Mr. McKee followed her to the ambulance and
eventually took over chest compressions. He noticed that the
victim did not have a pulse and had bruising on "the top
of her forehead and her torso."
Officer Michael Hackney testified that he and his partner
answered a call to the Defendant's apartment on May 15,
2014. After the Defendant answered Officer Hackney's
knock on the door, he followed the Defendant into a bedroom,
where he saw the Defendant performing CPR on the victim. The
victim was not breathing, and she "was pale, almost a
yellowish jaundice color. [S]he had thrown up[, ] and it was
still on her face." The Defendant was performing
"very fast and very shallow" CPR, like "he
wasn't really doing anything for the child." Officer
Hackney observed multiple bruises on the victim's chest
and abdomen. After Paramedic Crist carried the victim to the
ambulance, Officer Hackney began "to log everyone that
came" to the scene.
apartment, the Defendant told Officer Hackney that the victim
had fallen off an ottoman and hit her head on some toys,
despite the Defendant's "grabb[ing] her by the
ankle" as she fell. The Defendant said he put her to bed
with a bottle and soon saw that she had not drunk from it.
When she subsequently vomited, he called 911. When the
Defendant was told that the victim had died, he vomited and
became upset, yelling profanities and tearing a towel rack
from the wall. This behavior lasted "roughly
tenminutes[.]" Officer Hackney recalled that the
Defendant called his father and asked him to come to
Clarksville because "something had happened." The
Defendant next telephoned Ms. Denny and told her he had
"failed her." The Defendant also called the
hospital, which informed him that the victim had died, and
his mother. At one point, Officer Hackney "had to like
pull [the Defendant] off the balcony" because he was
afraid that the Defendant "was going to try and jump or
do something crazy."
Officer Jeffrey Derico testified that he was part of the
crime scene team that was called to the Defendant's
apartment on May 15, 2014. Officer Derico identified
photographs that he had taken at the Defendant's
apartment, including photographs of the ottoman that the
Defendant said the victim fell from and the toys that were
beside it. CPD Detective Scott Beaubien testified that he was
also part of the crime scene team that was called to the
Defendant's apartment on May 15, 2014. He collected
multiple pieces of evidence from the apartment, including one
of the toys that were beside the ottoman. CPD Sergeant Terry
Minton testified that he was the CPD evidence department
coordinator. He affirmed that the toy collected from the
Defendant's apartment had remained in the evidence room
from the time Detective Beaubien collected it until it was
brought in to the trial court.
Denny, the victim's grandmother and the Defendant's
mother-in-law, testified that the Defendant called her on May
15, 2014. Kathy said that the Defendant said,
"I'm so sorry" during the call and sounded
"[r]eally very calm." The Defendant told Kathy that
the victim "fell off the ottoman; she hit her stomach on
a toy, and [he] tried to grab her[, ] and her head hit the
floor." Kathy did not know that the victim had died at
the time of the telephone call.
Rachel Root testified as an expert in emergency medicine and
stated that she was an emergency room physician at the
hospital where the victim was taken on May 15, 2014. The
victim was not breathing and her heart had stopped when she
arrived at the emergency room. Electrical activity never
restarted in the victim's heart, and Dr. Root eventually
decided to terminate the resuscitation efforts when "her
pupils were fixed and dilated," which indicated
significant brain damage, and it was clear that electrical
activity was not going to restart. Dr. Root testified that
the victim was pale and had numerous bruises on her chest,
abdomen, back, hairline, and left temple, and her abdomen was
distended. These markings were not caused by resuscitation
attempts in the emergency room.
victim's mother, Rebecca Denny, testified that she
married the Defendant when the victim was five months old.
Although he seemed genuinely to care for the victim, he was
stricter with her than was Ms. Denny. On May 15, 2014, Ms.
Denny gave the victim a bath before leaving for work, and she
testified that the victim did not have any bruises or
markings at that time. Ms. Denny stated that the victim
"had fallen on some [toy] blocks" earlier in the
day, and the blocks left small nonvisible bumps on the
victim's lower back but no bruising. The victim had also
hit her head on the bathtub faucet the day before, leaving
"a small bump in the center of her forehead." Ms.
Denny affirmed that the victim was learning to walk and had
previously "bumped her head on the wall." She also
affirmed that several weeks prior, she heard the victim
"grasp [sic] for air[, ] and her face went blank."
The victim "bruised like a peach" but was otherwise
healthy. The aforementioned markings were not visible in the
victim's postmortem photographs. After giving the victim
a bath, Ms. Denny arranged for a friend to drive the victim
to her babysitter's house because Ms. Denny's car was
not working, and the Defendant later picked the victim up
from the babysitter's house.
Denny testified that she received a text message at work from
the Defendant several hours after she had arrived, stating
that the Defendant "snapped on [the victim] accidentally
for moving around on the ottoman and knocking over" the
Defendant's electronic cigarette. He specifically told
Ms. Denny that he "snapped and hit her stomach[, ] and
it left a mark." Ms. Denny asked "how bad it [was,
]" and the Defendant told her it was "[n]ot bad[, ]
you can just see a lil [sic] print[.]" The Defendant
then sent Ms. Denny another text message, explaining that the
victim's "toys were on the ground[, ] she fell right
on them[.] And I had her dressed[, ] she threw up[.]"
Ms. Denny asked if the victim had bruises from the incident,
and the Defendant told her that the victim's "face
[wa]s fine[, ]" but she had bruises on "[h]er
sternum and her stomach." At this time, Ms. Denny did
not leave work to return to their residence because she
"didn't think [the Defendant] was capable of
anything close to this."
Defendant thereafter called Ms. Denny and told her that the
victim was not breathing and asked what he should do. Ms.
Denny told him to call an ambulance, and a friend drove her
back to the apartment. She arrived at their apartment as the
ambulance was leaving with the victim, and Ms. Denny followed
behind in "an EMT first responder truck" but did
not know any details about the victim's condition. When
she arrived at the hospital, hospital staff had Ms. Denny sit
outside the exam room while they tried to resuscitate the
cross-examination, Ms. Denny rejected the assertion that the
victim was anemic. She explained that although anemia
"was suspected when [the victim] was a newborn, [they]
had her hematocrit under control." Ms. Denny explained
the details of the victim's "gasping for air"
several weeks earlier, stating that the Defendant
"picked [the victim] up by her shoulders and patted her
on the stomach[, ]" causing her to "cough really
hard" and "spit up" before breathing normally
again. On redirect examination, Ms. Denny affirmed that she
had "minimized things" in her police statement
immediately after the ...