Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs October 16, 2019
from the Criminal Court for Overton County No. 2011-CR-45
David Patterson, Judge
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.
R. App. P. 3; Judgment of the Criminal Court
Patrick Hayes, Cookeville, Tennessee, for the appellant,
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
Curwood Witt, Jr., J., delivered the opinion of the court, in
which Robert L. Holloway, Jr., and Robert H. Montgomery, Jr.,
CURWOOD WITT, JR., JUDGE
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).
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.
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.
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 ...