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Polochak v. State

Court of Criminal Appeals of Tennessee, Nashville

November 4, 2019

KALYN POLOCHAK
v.
STATE OF TENNESSEE

          Assigned on Briefs October 16, 2019

          Appeal from the Criminal Court for Overton County No. 2011-CR-45 David Patterson, Judge

         The petitioner, Kalyn Polochak, appeals the denial of her petition for post-conviction relief, which petition challenged her 2012 Overton County Criminal Court jury convictions of first degree premeditated murder, first degree felony murder, conspiracy to commit first degree murder, especially aggravated robbery, and theft of property valued at $1, 000 or more but less than $10, 000. Discerning no error, we affirm the denial of post-conviction relief.

         Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

          J. Patrick Hayes, Cookeville, Tennessee, for the appellant, Kalyn Polochak.

          Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant Attorney General; Bryant C. Dunaway, District Attorney General; and Owen Burnette, Assistant District Attorney General, for the appellee, State of Tennessee.

          James Curwood Witt, Jr., J., delivered the opinion of the court, in which Robert L. Holloway, Jr., and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          JAMES CURWOOD WITT, JR., JUDGE

         An Overton County Criminal Court jury convicted the petitioner of first degree premeditated murder, felony murder in the perpetration of aggravated robbery, conspiracy to commit first degree murder, especially aggravated robbery, and theft of property valued at $1, 000 or more but less than $10, 000 for her role in the 2010 murder of 72-year-old Hassie Pearl Breeding. See State v. Kalyn Marie Polochak, No. M2013-02712-CCA-R3-CD, slip op. at 1-2 (Tenn. Crim. App., Nashville, Jan. 16, 2015), perm. app. denied (Tenn. May 14, 2015).

         The evidence adduced at the petitioner's trial established that the victim, who was the grandmother of the petitioner's boyfriend, co-defendant Benjamin Bowers, died from "asphyxia due to strangulation and smothering." Id., slip op. at 15. At the time of the offenses, the petitioner and Mr. Bowers lived with the victim. See id., slip op. at 2. The victim had expressed dissatisfaction with the living arrangement, telling her daughter that the petitioner had yelled at her and that Mr. Bowers had pushed her. After she was unable to reach her mother over the course of a day, the victim's daughter, Teresa Breeding, drove to the victim's house. The victim's 2006 Toyota Scion was not in the driveway. Ms. Breeding found the victim's body on the floor of the bedroom shared by the petitioner and Mr. Bowers covered with a blanket. A cord was wrapped around the victim's neck, and a pillow covered her face. A $20 bill was found protruding from the victim's sock, and other evidence established that it was the victim's custom to carry her money inside her sock. See id., slip op. at 2-4.

         The petitioner and Mr. Bowers, who were suspects very early in the investigation, were eventually located in Indiana. Two days after the murder, paramedics in Grant County, Indiana "responded to a possible drug overdose call" and "learned that the [petitioner] 'shot up . . . nicotine water in a syringe.'" Id., slip op. at 10. The petitioner "was upset and was wearing soaking wet clothes." Id. When asked why her clothes were wet, the petitioner said "that she had been in the bathtub at her grandparents' house with her boyfriend and" indicated that she and Mr. Bowers had "put electronic devices in the bathtub attempting to electrocute" themselves. Id. She said that she and Mr. Bowers had attempted suicide "because 'they . . . wanted to be together forever.'" Id. The petitioner told paramedics "that she lived at her boyfriend's grandmother's house with her mother's consent but that . . . . her mother threatened to have her boyfriend arrested for statutory rape if the [petitioner] did not return home." Id., slip op. at 10-11. The petitioner then said, "'[I]t's never going to be okay, I shouldn't have done it, I shouldn't have hurt her, I just wish I hadn't done it.'" Id., slip op. at 11. The petitioner added, "'[W]e killed her, oh my God, I wish I hadn't done that, oh my God, I wish I hadn't done that.'" Id. The petitioner said Mr. Bowers got behind the victim "'took a dog leash and strangled her and I put a pillow on her face and smothered her, oh my God, oh my God, I just wish I hadn't done it.'" Id. The petitioner admitted that she had "put the pillow on the victim's face and smothered the victim." Id.

         The petitioner provided a statement to the police, and it was read to the jury and summarized on appeal:

When asked for identifying information, the [petitioner] said she had "been [giving] it all day long." She asked if her mother knew what was happening. Sergeant Collins told the [petitioner] that her mother had been told it was important for the authorities to speak to the [petitioner]. The [petitioner] had been living with Mr. Bowers at his grandmother's house. On December 10, 2010, her mother called and was upset after receiving a notification she would not receive food stamp benefits if the [petitioner] did not live with her. The [petitioner]'s mother said that she would have Mr. Bowers arrested for statutory rape and that the [petitioner] would be in trouble with the authorities. The [petitioner] might have been pregnant. After the call, the [petitioner] and Mr. Bowers got high by injecting Dilaudid. They discussed going "out with a bang." Mr. Bowers mentioned killing his grandmother. The [petitioner] did not want to see blood and recommended they use a dog leash as a weapon. When the victim came home from work, Mr. Bowers choked her with the leash, and the [petitioner] pushed a pillow on the victim's face. The victim made unusual noises and died after about two minutes. They dragged the victim's body into a bedroom and covered it with bed linens and a pillow. Mr. Bowers took $200 from the victim's body, and they took the victim's car to Indiana to visit the [petitioner]'s relatives. The [petitioner] said she was sorry she had damaged the lives of Mr. Bowers, herself, and her unborn ...

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