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State v. Burlison

Court of Criminal Appeals of Tennessee, Nashville

December 6, 2019

STATE OF TENNESSEE
v.
BECKY JO BURLISON

          October 15, 2019 Session

          Appeal from the Criminal Court for Davidson County No. 2014-D-3015 Monte Watkins, Judge

         In June 2015, a Davidson County Criminal Court jury convicted the Defendant, Becky Jo Burlison, of two counts of aggravated rape of a child, one count of aggravated child abuse, and one count of aggravated child neglect. Later, the trial court granted the Defendant's motion for new trial on grounds that she had been deprived of the effective assistance of counsel. Prior to the new trial, the Defendant provided notice that she intended to offer expert testimony of her diminished capacity at the time of the offenses. The State moved to exclude the testimony, arguing that the testimony was not admissible because it did not satisfy the requirements established in State v. Hall, 958 S.W.2d 679 (Tenn. 1997). Following a hearing, the trial court denied the State's motion and deemed the testimony admissible. The trial court and this court granted the State's application for permission to appeal pursuant to Tennessee Rule of Appellate Procedure 9. In this interlocutory appeal, the State challenges the trial court's denial of its motion to exclude expert testimony regarding the Defendant's mental state at the time of the alleged offenses, reiterating the claim that the evidence does not satisfy the requirements for admission. Because we agree that the proffered evidence does not satisfy the requirements for admission established by Hall and its progeny, we reverse the ruling of the trial court and remand the case for further proceedings consistent with this opinion.

         Tenn. R. App. P. 9; Judgment of the Criminal Court Reversed; Case Remanded

          Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Glenn R. Funk, District Attorney General; and Pamela Anderson, Assistant District Attorney General, for the appellant, State of Tennessee.

          Mark C. Scruggs, Nashville, Tennessee, for the appellee, Becky Jo Burlison.

          John Everett Williams, P.J., delivered the opinion of the court, in which Robert L. Holloway, Jr., and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          JOHN EVERETT WILLIAMS, PRESIDING JUDGE.

         FACTUAL AND PROCEDURAL HISTORY

         In 2014, the Davidson County Grand Jury charged the Defendant with two counts of aggravated rape of a child, one count of aggravated child abuse, and one count of aggravated child neglect based upon acts committed against the two-year-old victim on April 13, 2012. The case first went to trial in June 2015. The evidence adduced at that trial established that the Defendant, a family friend, was babysitting the victim when she noticed that he was behaving as though he was constipated. The Defendant claimed that she treated the victim with a laxative and with a children's enema. When neither treatment produced a bowel movement, the Defendant inserted the rubber handle of a hairbrush into the victim's rectum, ostensibly to provide the victim relief from impacted stool. When the Defendant inserted the hairbrush a second time, the handle came off inside the victim's rectum, and the Defendant was unable to retrieve it. Instead of telephoning an ambulance or driving the victim to the hospital herself, the Defendant telephoned her husband and waited until her husband arrived to take the victim to the hospital. At the conclusion of the trial, the jury convicted the Defendant as charged.

         The Defendant filed a timely motion for new trial, alleging, among other things, that she was deprived of the effective assistance of counsel at trial by her counsel's failure to request a pretrial forensic evaluation and by his failure to timely notify the court of the Defendant's intent to offer the testimony of a mental health expert. The trial court granted the Defendant's motion for new trial based upon its conclusions that counsel had performed deficiently and that the Defendant was prejudiced by the deficient performance. Specifically, the trial court concluded that counsel "delayed in securing a mental health expert evaluation," "failed to file a timely notice of intention to introduce a medical expert," failed to provide the Defendant's previous mental health records to the doctor who eventually conducted the evaluation, and failed to ask that doctor to "evaluate the Defendant for diminished mental capacity or insanity at the time of the event." The State asked permission to seek interlocutory review of the court's order granting the new trial via Tennessee Rule of Appellate Procedure 9, but the trial court denied the motion.

         In January 2018, the Defendant moved the trial court to provide a jury instruction on the defense of "medical necessity." The trial court denied the motion but granted the Defendant's application for permission to pursue an interlocutory appeal to this court. This court, however, denied the Defendant's application, finding that the Defendant had failed to satisfy the requirements for interlocutory appeal. See State v. Becky Jo Burlison, No. M2018-00356-CCA-R9-CD (Tenn. Crim. App., Nashville, Apr. 9, 2018) (Order), perm. app. denied (Tenn. July 18, 2018).

         In September 2018, the Defendant filed notice that she intended to rely on the testimony of Dr. Keith Caruso to establish that, at the time of the offense, she "lacked the capacity because of her mental disease or defect to either intentionally, knowingly[, ] or recklessly distinguish between lawful versus unlawful sexual penetration as prohibited by T.C.A. § 39-13-522(a) and 39-13-501(7)" and "lacked the capacity because of her mental disease or defect to either intentionally, knowingly[, ] or recklessly determine what was immediately necessary to avoid imminent harm and apply necessary medical treatment to the child victim in accordance with ordinary standards of reasonableness." The Defendant exhibited to her notice a letter from Dr. Caruso to defense counsel and a copy of a report prepared by Dr. Caruso in September of 2018.

         In the letter, Dr. Caruso stated, "[I]t is my opinion to a reasonable degree of medical certainty that [the Defendant's] actions could best be described as negligent." In his report, Dr. Caruso stated that, at the time of the alleged offenses, the Defendant suffered from "Schizoaffective Disorder, Bipolar Type, multiple episodes" and "acute episode Opioid Intoxication." He opined that the Defendant was competent to stand trial and that she did not meet the criteria for an insanity defense because "[h]er severe mental disease did not prevent her from appreciating the nature of her actions, as she acknowledged seeking to disimpact [the victim's] stool from his rectum by inserting a hairbrush handle." He explained, "She did not believe that she was acting wrongfully, but instead believed that her actions were necessary in order to treat [the victim's] constipation. This belief, however misinformed, was not the product of psychosis." Dr. Caruso found that the Defendant "was suffering from manic symptoms at the time of the alleged offenses, including distractibility, impulsivity, heightened activity and irritability" and that she "was intoxicated at the time of the alleged offenses." He concluded that, "[a]s a result, she was impatient and acted impulsively, pursuing a very ill advised course of action with" the victim. Dr. Caruso also concluded, however, that "although [the Defendant] suffered from a severe mental disease at the time of the alleged offenses . . . and was suffering from manic symptoms in her account, this did not prevent her from knowingly or recklessly penetrating [the victim's] rectum with a hairbrush handle . . . in accordance with criteria in State v Hall." He did conclude that "her severe mental disease and intoxication prevented her from recognizing ordinary standards of reasonableness at the time of the alleged offenses."

         The State moved the trial court to exclude Dr. Caruso's testimony on grounds that he had concluded that an insanity defense could not be supported and that the Defendant's severe mental disease did not prevent her from acting knowingly or recklessly. The State also argued that Dr. Caruso should not be permitted to testify that it was his ...


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