State of Tennessee v. William Brian Robinson ( 2020 )

08/13/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
January 15, 2020 Session
STATE OF TENNESSEE v. WILLIAM BRIAN ROBINSON
Appeal from the Criminal Court for Davidson County
No. 2001-A-383 Mark J. Fishburn, Judge
No. M2019-00451-CCA-R3-CD
The Defendant, William Brian Robinson, was convicted by a jury of second degree murder,
for which he received a sentence of seventeen years. See Tenn. Code Ann. § 39-13-210.
On appeal, the Defendant argues that (1) the trial court erred by denying his request to
present evidence that the State had previously pursued two theories of guilt that were
inconsistent with its theory at trial; (2) there was insufficient evidence to support his
conviction, specifically, challenging the mens rea element of knowing; (3) the trial court
erred by allowing a witness to testify about blood spatter evidence when that witness had
not been qualified as an expert; and (4) the cumulative effect of these errors requires a new
trial.1 After a thorough review of the record and applicable authorities, we reverse the
judgment of the trial court and remand the case for a new trial on the charge of second
degree murder, during which the Defendant shall be permitted to present evidence of the
State’s previous theories of guilt.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court
Reversed; Case Remanded
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and J. ROSS DYER, JJ., joined.
Martesha L. Johnson, District Public Defender; Jeffrey A. DeVasher, Assistant District
Public Defender (on appeal); and Jennifer Dusenberry, Brian M. Griffith, and Georgia
Sims, Assistant District Public Defenders (at trial), for the appellant, William Brian
Robinson.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Assistant
Attorney General; Glenn R. Funk, District Attorney General; and J. Wesley King and
1
For the sake of clarity, we have reordered the issues as presented by the Defendant in his appellate brief.
Tammy H. Meade, Assistant District Attorneys General, for the appellee, State of
Tennessee.
OPINION
FACTUAL BACKGROUND
It was undisputed that the Defendant stabbed his girlfriend, Sheila Matlock
Calloway (“the victim”), to death on November 9, 2000. The Defendant was first tried for
first degree premeditated murder in October 2001. See Tenn. Code Ann. § 39-13-202.
During the first trial, the State presented evidence that only the victim’s blood was found
on the murder weapon, a butcher knife, and that a smaller steak knife found in the kitchen
had the Defendant’s blood on it. See State v. William Brian Robinson, No. M2002-00665-
CCA-R3-CD, 2003 WL 21653882, at *6 (Tenn. Crim. App. Jul. 11, 2003), perm. app.
denied (Tenn. Nov. 24, 2003). The State then argued to the jury that the lack of blood on
the butcher knife contradicted the Defendant’s version that the victim stabbed him first
with the butcher knife and submitted that the Defendant used the steak knife to cut himself
in an effort to cover up his crime. Ultimately, a Davidson County Jury convicted the
Defendant of first degree premeditated murder, thereby rejecting the Defendant’s argument
regarding his mental state at the time of the killing or any indication of self-defense.
Following the jury’s guilty verdict, the Defendant was sentenced to automatic life
imprisonment.
The Defendant appealed to this court, “claiming that the evidence was insufficient
as a matter of law to sustain the verdict, and in particular, that the evidence was insufficient
to prove premeditation.” Robinson, 2003 WL 21653882, at *1. This court affirmed the
Defendant’s conviction, determining that the State had established the element of
premeditation beyond a reasonable doubt. See id. at *12. In so concluding, this court noted
that “[a]lthough the Defendant claimed that the victim cut him with the same knife with
which he stabbed her, only the victim’s blood was found on that knife.” Id. Our supreme
court denied the Defendant’s application for permission to appeal.2
In 2015, the Defendant filed a petition for writ of habeas corpus in federal court.
The United States District Court granted the petition in part and ordered a new trial based
on the State’s failure to disclose exculpatory evidence—that only a portion of the murder
weapon had been tested—and improper prosecutorial comment during closing argument
about that evidence. William B. Robinson v. Jim Morrow, Warden, No. 3:08-CV-00235,
2
The Defendant also filed an unsuccessful petition for post-conviction relief. See William B. Robinson v.
State, No. M2005-01122-CCA-R3-PC, 2006 WL 3498140 (Tenn. Crim. App. Nov. 22, 2006), perm. app.
denied (Tenn. Mar. 12, 2007).
-2-
2015 WL 5773422, at *20-29 (M.D. Tenn. Sept. 30, 2015). When the butcher knife was
retested, it was found to contain both the Defendant’s and the victim’s DNA on the tip.
The case was remanded. In April 2018, the Defendant was again tried for first
degree premeditated murder of the victim. At the Defendant’s second trial, the State
adduced the following proof.
Lakisha Green confirmed that her mother, the victim, was romantically involved
with the Defendant and that while her mother had her own separate residence from the
Defendant’s, she stayed with the Defendant and had moved some of her belongings into
his residence. According to Ms. Green, the victim was right-hand dominant.
On November 9, 2000, Metropolitan Nashville Police Department (“MNPD”)
Officer Dan Whitley was dispatched to the Defendant’s one-bedroom apartment on
Murfreesboro Road around 11:30 a.m. According to Officer Whitely, 911 had received an
out-of-state call from the Defendant’s mother, who informed the dispatch operator that she
had spoken with the Defendant and that he had admitted to killing his girlfriend. Officer
Whitley testified that he was the first officer to arrive on the scene, arriving approximately
three minutes after his being dispatched.
Upon his arrival, Officer Whitley knocked on the door of the apartment, and he was
quickly met by the Defendant, who appeared “shocked” and had “a really disturbed look
on his face.” The Defendant, who was upset, held out his hands to Officer Whitley, palms
up, and said, “cuff me.” The Defendant slowly turned around and placed his hands behind
him in order to be handcuffed. Officer Whitley observed “blood everywhere” on the
Defendant’s arms and on his t-shirt.3 Officer Whitley handcuffed the Defendant, who
indicated to Officer Whitley that he had “messed up.” When Officer Whitely asked if
anyone else was inside the apartment, the Defendant told Officer Whitely that his
girlfriend, the victim, was dead inside the apartment; the Defendant further informed him
that no one else was there. Believing it was otherwise safe to enter, Officer Whitley placed
the handcuffed Defendant on some stairs outside the apartment within Officer Whitley’s
peripheral vision. According to Officer Whitley, the Defendant was cooperative and did
not attempt to flee.
Officer Whitley testified that upon entering the apartment, he saw the victim lying
on her back on the floor in the living room area of the open-floor plan apartment. She was
dressed only in her bra and underwear, and her head was propped up on a pillow or blanket.
There was a breathing machine next to her body, as well as a butcher knife. According to
Officer Whitley, there was an ironing board nearby, and it appeared as though someone
3
Officer Whitley stated that the Defendant’s t-shirt was white, but the photograph exhibit showed that the
t-shirt was in fact black.
-3-
had been ironing. Officer Whitley could not detect a pulse and believed that the victim
was dead.
Officer Whitley acknowledged that he was only inside the apartment for a brief
amount of time. He also confirmed that he had previously testified about this case “at a
hearing” in October 2001.
MNPD Officer Michael Sanders was next to arrive on the scene where he
encountered Officer Whitley standing in the doorway of the apartment. Seated on the steps
near Officer Whitley was the Defendant, who was in handcuffs. Officer Sanders remained
outside with the Defendant until he later placed the Defendant in the backseat of his patrol
car. Once inside the car, Officer Sanders began drafting the Defendant’s arrest report.
According to Officer Sanders, while in custody, the Defendant asked whether he would be
charged with murder, as well as proclaiming to Officer Sanders that “[he] did it, [he] loved
[the victim], [he was] wrong for what [he] did to her.” According to Officer Sanders, the
Defendant continued to talk, stating that he and the victim had gotten into a fight, that she
had cut him, and that he had stabbed her. The Defendant further asserted that “he did not
have to strike back like that, that a man [was] supposed to be stronger than that.”
When MNPD Detective Mike Smith approached the patrol car to get the
Defendant’s identification, Officer Sanders informed Detective Smith that the Defendant
had not yet been advised of his Miranda rights,4 to which the Defendant blurted out, “I
waive Miranda.” According to Officer Sanders, the Defendant, who was “visibly upset”
and “emotional,” indicated that he wanted to cooperate, that the investigation “would not
take much,” and that he would “tell the detective anything he want[ed] to know.”
Officer Sanders opined that he spent over one hour with the Defendant that day, also
transporting the Defendant to the Criminal Investigation Division of the police department
for a formal interview with Detective Smith. Officer Sanders’s interactions with the
Defendant were recorded; a portion of the recording was played for the jury.5 Officer
Sanders opined that he did not find most of the recording to be audible, and he did not
recall referring to the Defendant as “boy.” While being cross-examined about his previous
statement that “there was nothing on” the recording, Officer Sanders explained that
“[w]hen they played part of it for [him] prior to the previous trial,” he had not had a chance
to listen to the entire recording.
4
See Miranda v. Arizona, 384 U.S. 436 (1966).
5
However, the recording was never entered as an exhibit, and it is not a part of the record on appeal.
-4-
Several MNPD crime scene identification officers, whose duty it was to collect
evidence, photograph the scene, and take measurements as necessary, began to arrive at
the Defendant’s apartment to process the scene. First to arrive was MNPD Officer
Raymond T. Rader, Jr. When Officer Rader entered the apartment, he observed blood on
the front door, the floor, and the walls of the apartment. Officer Rader testified that the
victim’s body was in the prone position lying in the living room near the bedroom door.
He recalled that she was lying in a pool of blood and obviously deceased, that a breathing
apparatus was connected nearby with the mask close to her face, that her head was propped
up on a pillow, and that she was surrounded by some bloody towels. Officer Rader
observed a large butcher knife next to the victim, as well as a smaller steak knife on a small
counter in the kitchen. He also noticed that an iron on the ironing board in the living room,
which was near the front door, was still turned on; there were also some red markings on
the towel covering the ironing board.
Officer Rader took close to eighty photographs of the scene, and he was able to lift
fingerprints from the steak knife. In addition, Officer Rader collected a piece of carpet
from the living room stained with what appeared to be blood.
Another MNPD officer, William Merryman, sketched a diagram of the scene, and
at trial, Officer Rader identified the diagram drawn by Officer Merryman. The diagram
was entered as an exhibit.6 Officer Rader identified on the diagram the location of the
victim’s body, the blood streak on the carpet sample, and the butcher knife. He confirmed
that the butcher knife was taken into evidence and contained a “good amount of blood on
it.” He acknowledged that the steak knife was not originally identified in the diagram
prepared by Officer Merryman despite its being collected from the scene and
photographed.
Officer Merryman’s 2001 trial testimony was read into the record because he had
died before the trial.7 Officer Merryman testified that he responded to the call and assisted
Officer Rader in processing the scene. He confirmed that he drew a diagram of the
apartment while all the evidence was in place. In addition, he collected twelve blood
samples and one substance sample at the scene. Specifically, Officer Merryman collected
blood samples from a kitchen cabinet door, the east wall in the dining room, the wall behind
the microwave in the kitchen, the counter top behind the microwave, the counter top near
the microwave, the north wall in the living room, the kitchen floor, the floor by the front
6
The original diagram was admitted as exhibit; it showed an appellate court stamp from the previous direct
appeal proceedings. The trial court informed the jury that this exhibit had been introduced at a previous
hearing and that a party had appealed an evidentiary ruling requiring the need for the stamp.
7
Prior to the State’s reading the testimony into the record, the trial court informed the jury that the testimony
of Officer Merryman was “from a previous hearing” and that Officer Merryman had since passed away.
-5-
door, and the inside of the front door. He also collected a sample of a red substance from
the bathroom sink. He testified that some of the blood samples were wet but that most of
them were dry; he agreed that dry blood samples tended to be older than wet ones but that
there was no way to tell how long the dry samples had been in the apartment.
MNPD Officer Charles Anglin testified that he assisted with the collection of
evidence from the Defendant’s apartment, including both the steak knife and butcher knife.
He confirmed the location of both knives as depicted in the photographs. Officer Anglin
confirmed that the steak knife was propped up on a white lighter, which was not collected.
Brad Corcoran was a MNPD homicide detective in November 2000. Prior to trial,
it was noted that Detective Corcoran gave blood spatter testimony at the Defendant’s first
trial without being qualified as an expert to do so. Due to the State’s late notice that they
would be seeking to qualify Detective Corcoran as an expert at this trial, the trial court
ruled that Detective Corcoran would not be able to testify as a blood spatter expert or
provide similar testimony for the State.
Detective Corcoran testified that he performed a walk-through of the apartment and
made an evaluation of the crime scene in this case. He observed no proof that any of the
evidence had been tampered with or altered. Detective Corcoran explained that because
the victim in this case could not be resuscitated and was pronounced dead at the scene, her
body remained in the apartment at the time of his examination. Detective Corcoran
confirmed that Officer Merryman’s diagram accurately represented the location of the
items depicted therein. Detective Corcoran also described the contents of multiple
photographs taken from the scene.
After Detective Corcoran identified photographs of blood drops in the foyer at the
front door of the apartment, he was asked whether there was “anything of evidentiary value
on the door[.]” Detective Corcoran replied, “At the very top, it appears to be a transfer
stain of blood.” The defense objected to the statement as being improper expert testimony,
and the trial court sustained the objection to the blood found on the door’s being
categorized as a transfer stain. Detective Corcoran then explained how the blood observed
on the top of the door ran down the length of the door in “drip-trails.”
Detective Corcoran was shown a photograph of the carpeted area “just after you
enter off the foyer area,” and he confirmed that drops of blood were present. The Defendant
lodged another objection when Detective Corcoran viewed a photograph of blood drops on
a wall in the foyer and described them as “cast-off stains.” The trial court sustained this
objection. The State rephrased the question: “Do we appear to be looking at blood in this
photograph?” Detective Corcoran answered in the affirmative and explained that the
photograph depicted the wall in the foyer leading into the living room.
-6-
He also identified a picture of drops of blood next to the sofa in the living room, as
well as the “blood streak that was indicated in the diagram.” Detective Corcoran was then
asked “what did that streak appear to be?” The defense’s objection that the question called
for improper blood spatter expert testimony was overruled, and Detective Corcoran stated,
“It’s some type of object that had blood on it that has been placed on the carpet and
transferred that—that pattern from the object onto the carpet.” When the defense renewed
its objection, the trial court again overruled the objection, reasoning, “It’s just what it
appears, to him, to be.” Detective Corcoran also testified that what appeared to be blood
was observed at the bottom of a kitchen cabinet and two or three different places on the
kitchen floor.
Detective Corcoran stated that the greatest concentration of blood was found in the
foyer near the front door. Except for the evidence surrounding the victim’s stabbing, the
apartment did not appear to be in disarray, and everything appeared to be “normal in place,”
according to Detective Corcoran.
Detective Corcoran acknowledged that he referred to the steak knife as a paring
knife in his report, as well as referring to the butcher knife as a fillet knife, and that his
report incorrectly referenced the location of the butcher knife as being found on the other
side of the sofa from the victim’s body. However, according to Detective Corcoran, the
diagram correctly depicted the butcher knife’s location. Detective Corcoran indicated that
“some of the reports” reflected that the steak knife was found on a kitchen table, while
others indicated that it was found on the dining room table, but he explained that “it was a
combination,” meaning those were the same table. He confirmed that he had previously
testified in this case at a hearing in 2001, and he affirmed that his testimony was consistent
with his earlier testimony.
In November 2000, Mike Smith was a detective in the MNPD homicide division
and was assigned as the lead investigator in this case. After speaking with the Defendant,
who was seated in the back of Officer Sanders’s patrol car, Detective Smith left the scene
to interview the Defendant at the police department. Once at the station, prior to
interviewing the Defendant, Detective Smith advised the Defendant of his constitutional
rights under Miranda, which the Defendant waived, and he agreed to speak with Detective
Smith. The interview, which was recorded, was played for the jury.
The Defendant’s version that he provided to Detective Smith was that he and the
victim, to whom he was engaged to be married, got into an argument over money. He was
ironing her shirt as they were preparing for the work day when the argument escalated.
The Defendant explained that the victim grabbed the “big carving knife” from the kitchen
and “scratched” on his arm. He became “enraged” and “snatched” the knife away from
her and “hit” her twice with it. After he grabbed the knife, he first stabbed her in the back,
then spun her around, and as “she [came] back around,” he stabbed her again.
-7-
Upon further reflection, the Defendant recalled that the victim scratched him as they
struggled. They were “scuffling a little bit.” He also remembered that more than one knife
was present. The Defendant described it as a “pruning knife” that was smaller with a
smooth blade and a dark handle, and he had been using it to scrape the buildup off the
bottom of the iron. He denied using the smaller knife to stab the victim.
The Defendant admitted that he did not immediately seek medical attention for the
victim. After he stabbed her, he kept telling her that he was “sorry” and that he “didn’t
mean to hit [her] that hard.” He tried to carry her to the bedroom, but they did not make it
that far. He got several towels and tried to cover her wound; he propped her head up with
a pillow; and he placed a blanket next to her. When he saw that she was struggling to
breathe, he grabbed his sleep apnea machine in an effort to assist her.
After he tried to render aid, he began crying because he knew she was dying. He
wanted to kill himself with the knife but did not. However, instead of dialing 911, he first
called his mother who lived in Louisville, Kentucky. He then called his friend Brenda
McKinney who lived in Memphis. He admitted to both women that he had stabbed the
victim to death. The Defendant knew that his mother had dialed 911.
During the interview, the Defendant made a number of incriminating statements,
including that the victim had barely “scraped” him and that “she wouldn’t hurt [him] in a
million years.” The Defendant conceded that “it wasn’t her fault” and stated that “she
didn’t do anything to justify what [he] did.” He admitted that he “snapped” and lost control.
Finally, he stated that after he stabbed the victim in the back, he “could have stopped there.”
At trial, the photographs of the Defendant in the interview room, including the
wounds on his arms, were admitted into evidence and shown to the jury. Detective Smith
testified that the Defendant stood five feet six inches and weighed 198 pounds. Detective
Smith said that he observed two scratches or cuts on the Defendant’s right arm and a
puncture-type wound on the Defendant’s left arm. Detective Smith testified that the
wounds were not actively bleeding when he observed them and that the Defendant did not
seek medical assistance, nor did he appear to be in need of medical assistance for his
injuries.
Detective Smith stated that he submitted the butcher knife for analysis to the
Tennessee Bureau of Investigation (“TBI”) on April 25, 2001. He did not give the lab
technician instructions on where to test because he believed that “the whole knife” would
be analyzed. Detective Smith became aware in January 2011 that there was additional
DNA testing of the knife performed at the Defendant’s request. However, Detective Smith
did not know the results of the additional testing.
-8-
Margaret Bash testified that in 2000, she was a special agent forensic scientist in the
TBI Crime Laboratory; Agent Bash was introduced as an expert in DNA analysis. Agent
Bash testified that the victim’s blood was found on the breathing machine, the carpet
sample, and a blanket, as well as in the blood samples taken from the front door, the kitchen
cabinet door, the east dining room wall, the counter near the microwave, the living room,
and the kitchen floor. Agent Bash also tested the shirt and pants that the Defendant was
wearing at the time of his arrest. She found blood matching that of the victim’s on the
Defendant’s shirt. She also found human blood on his pants; it contained a mixture of
genetic material from more than one person, of which the victim was the primary
contributor.
In addition, Agent Bash testified that she tested the steak knife found in the
Defendant’s apartment. She “found a blood stain of human origin, and the DNA profile
matched” the Defendant’s; she was able to say this conclusively despite her being unable
to match a locus variant in the Defendant’s profile. Agent Bash affirmed that the
Defendant’s blood was on the tip of the steak knife. In addition, Agent Bash observed a
lighter reddish-brown stain on the reverse side of the steak knife, but she did not test that
stain.
Relative to her examination of the butcher knife found next to the victim’s body,
Agent Bash found human blood which matched the victim’s DNA profile. Agent Bash
tested the dark blood-like stain on the blade near the handle, which she recalled as being
the darkest stain on the butcher knife. She acknowledged that blood was present elsewhere
on the knife but that she did not test those other areas. Agent Bash indicated that had she
been aware that someone else had possibly been cut with the butcher knife besides the
victim, she “might have worked more than one area” on the knife. Agent Bash concluded
her involvement with the scientific testing in the case after she issued her report on July
25, 2001.
Thomas Fedor testified that he was a forensic serologist and DNA analyst at
Serological Research Institute (“SERI”) in 2011, and Mr. Fedor testified as an expert in the
field. Mr. Fedor confirmed that at the request of the Defendant, SERI conducted additional
DNA testing on certain items of evidence in this case in January 2011. According to Mr.
Fedor, SERI received the butcher knife, the steak knife, the Defendant’s pants, and the
DNA profile of the victim and the Defendant; Mr. Brian Wraxall analyzed the evidence
and prepared a report of his findings. Mr. Fedor relayed that Mr. Wraxall, the chief of
SERI and Mr. Fedor’s boss, had died four years before the Defendant’s trial. Mr. Fedor
identified Mr. Wraxall’s report, which was published to the jury. Mr. Fedor confirmed that
he was the technical reviewer on the case, and Mr. Fedor indicated that he agreed with Mr.
Wraxall’s findings in his report.
-9-
Mr. Fedor detailed the information in Mr. Wraxall’s report for the jury. Both the
Defendant’s and the victim’s DNA were found in the bloodstains on the Defendant’s pants.
Relative to the butcher knife, five areas of blood staining were found on the butcher
knife, including stains on the tip and the handle. The victim was “almost certainly” the
major contributor of the blood stain found on the tip of the blade on “side A”; the Defendant
was a “possible . . . minor contributor to that mixture.” A stain from the handle on side A
evidenced a mixture of genetic material from more than one person—the victim was
“almost certainly the major contributor,” the Defendant was “a potential contributor,” and
“there [was] a trace amount of DNA in that sample that did not come from either” the
Defendant or the victim. On the other side of the butcher knife, or side B, the Defendant
was “almost certainly” the major contributor of the blood stain found on the tip of the
butcher knife with the victim’s “possibly” being the minor contributor. On one stain from
the handle of side B, the victim was “almost certainly” the source of the blood. A mixture
of genetic material from at least two people was found on a second stain on the handle of
side B with the victim’s being “a potential major contributor,” but the mixture was too
weak to draw any conclusions about a minor contributor. Mr. Fedor confirmed that he
could offer no opinion on whose DNA or blood was first present on the butcher knife.
Relative to the steak knife, two samples were taken from different sides of the
handle of the steak knife. Both samples tested presumptively positive for blood but were
insufficient for comparison. The tip of the steak knife was not tested by SERI.
Mr. Fedor testified that Mr. Wraxall was an experienced analyst. Mr. Fedor also
stated that other than a negligible difference of opinion in word choice, he did not disagree
with Agent Bash’s original findings. Mr. Fedor indicated that having background
information of the circumstances surrounding the offense was helpful to facilitate adequate
testing of the evidence.
Dr. John E. Gerber was the assistant medical examiner in Davidson County in 2000,
and he performed the victim’s autopsy on November 10, 2000, the day following the
stabbing. Because Dr. Gerber died prior to trial, his testimony from the first trial was read
into the record and his autopsy report was admitted as evidence.
Dr. Gerber reported that the body of the victim was five feet, three inches in height
and weighed 155 pounds. He diagnosed the cause of the victim’s death as “multiple stab
wounds of the torso or the chest, abdominal area,” and he determined the manner of death
to be homicide. Dr. Gerber testified that the body had two stab wounds, one in the front
left upper chest, and the other in the left upper back. He could not tell which wound had
been inflicted first.
- 10 -
Dr. Gerber testified that the front wound evidenced a five to six-inch penetration
depth, was one and nine-sixteenth inches in length, and was one-sixteenth of an inch wide.
The stab resulted in a fractured left second rib, a lacerated upper lobe of the left lung, a
lacerated pericardium, and a superficial penetration of the left side of the heart. According
to Dr. Gerber, a significant amount of force was necessary to penetrate a rib, as was done
to the victim through the frontal wound. In addition, Dr. Gerber reported that the back
wound had a depth of three to four inches but that it was superficial, meaning that it ran
parallel to the surface of the body. This wound measured one and one-half inches in length
and one-sixteenth of an inch wide. Dr. Gerber examined the butcher knife found in the
Defendant’s apartment, and he concluded that the victim’s stab wounds were consistent
with being inflicted by the blade of that knife.
Dr. Gerber opined that the stab wound to the chest was the fatal wound. He
explained that the victim suffered a significant amount of blood loss from the torn lung,
and he agreed that she bled to death. He estimated that with those wounds, the victim could
have lived for as long as twenty or thirty minutes. Dr. Gerber stated that although he could
not testify to a reasonable medical certainty as to how long the victim lived, the fact that
she had a collapsed lung and damage to her heart put her at great risk for a “fairly sudden”
death. He further opined the injuries such as the victim’s were fatal without urgent and
immediate medical attention.
That concluded the State’s proof. After the denial of the Defendant’s motion for
judgment of acquittal, he presented the following proof.
Lorita Marsh, the forensic supervisor of the latent-print section of the MNPD,
testified that she was a fingerprint analyst and received a request to analyze two latent
fingerprint cards that were obtained from the crime scene—one was a print lifted from the
four-and-half-inch blade of the steak knife found in the Defendant’s apartment, and the
other was from the kitchen countertop near a microwave where the steak knife was found.
She also received major case prints from the Defendant for comparison.
Ms. Marsh testified that the print from the kitchen countertop was not of sufficient
quality to make a comparison. Relative to the print on the steak knife, the print was of
sufficient quality, but she was unable to make a complete comparison due to inadequate
“major case prints” from the Defendant. Despite a request, she never received new prints
from the Defendant in order to conduct a follow-up comparison.
Max L. Jarrell, a certified latent print examiner since 1978, testified as an expert in
fingerprint analysis and comparison. Like Ms. Marsh, he requested better major case prints
from the Defendant to make a conclusive comparison to the print found on the blade of the
steak knife. After obtaining additional prints from the Defendant, he generated a report of
- 11 -
his findings on July 7, 2011. Mr. Jarrell determined that the print found on the steak knife
did not match any of the major case prints retrieved from the Defendant.
Dr. Feng Li, the Chief Medical Examiner for Davidson County at the time of trial,
was tendered as an expert in forensic pathology. Dr. Li reviewed the victim’s autopsy case
file at the request of both the State and the defense. Dr. Li agreed in general with Dr.
Gerber’s assessment of the victim’s injuries and cause of death, including that “a
significant amount of force would have been needed” to inflict the victim’s chest injury.
He added that the stab wound to the victim’s chest was a horizontal wound, going from
front to back and slightly downward, and in contrast, the wound to the victim’s back went
vertically from top to bottom, as well as left to right parallel with her body. Dr. Li opined
that the victim’s back wound was consistent with having been inflicted while she was
moving up and down. He also said that it would be consistent for a person who had
sustained a chest injury similar to the victim’s to remain alive for five to seven minutes.
However, Dr. Li classified the stab wound to the back as also life-threatening.
The Defendant testified in his own defense; he denied that he intentionally killed
the victim or ever contemplated killing her, indicating instead that the killing was
accidental. The Defendant relayed a similar version as that he had provided Detective
Smith during the taped interview. He maintained that he and the victim were arguing that
morning about money and that at some point, the argument became physical. The
Defendant conveyed that he was standing in front of the ironing board ironing the victim’s
clothes, which was between the front door and the living room, when she came at him with
a knife.
According to the Defendant, the victim approached him from his rear left side,
holding the knife in her right hand. She arrived at the ironing board and quickly swung the
knife from upwards to downwards, right to left. He testified that he did not notice that the
victim had a knife until she was approximately “a foot in front” of him. He said that the
victim “struck [him] once to the arm and once across to [his] left arm and once across [his]
arms because [he] crossed them to block it.” The Defendant explained that he crossed his
arms, grabbed her wrist, and took her right wrist behind her right shoulder so that the knife
was pointing downward at her back, presumably inflicting the back wound. He then
grabbed and pulled the knife out of her hand, spun her around, and pushed her while
holding the knife. He testified that the victim was stabbed in the chest when he pushed
her. He estimated that it was two or three seconds from the time the victim hit him on his
arm to when he pushed her away and stabbed her in the chest. He acknowledged that he
pushed the victim “real hard” and that he was angry that she had come at him with a knife.
He indicated that he thought he was only “pushing her away, pushing her down.”
The Defendant said that after he removed the knife from the victim’s chest, he tried
to move her to the bedroom but that she collapsed on the floor in the living room area. He
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placed a pillow and blanket that were on the sofa underneath the victim. He also got some
towels from the bathroom and tried to stop the bleeding. The victim began making a
“gargling sound” as if she were having trouble breathing, and she soon after stopped
breathing. The Defendant attempted to use his sleep apnea machine to revive the victim.
The Defendant estimated that the victim died approximately five to seven minutes after he
stabbed her.
The Defendant admitted that he did not dial 911, but he instead called his mother
and then his friend Ms. McKinney. His mother told him that she would call the authorities.
According to the Defendant, the police arrived approximately twenty to thirty minutes after
the victim had died. He claimed he did not intentionally let the victim die.
The Defendant averred that he did not move or clean anything in the house in an
attempt to cover up his crime. In addition, he denied cutting himself with the steak knife
or using the knife to inflict his wounds.
On cross-examination, the Defendant agreed that he was five-feet, six inches tall,
was “quite fit” at the time, lifted weights at the gym, and was “much stronger” than the
victim. Furthermore, the Defendant indicated that the victim was a decade older than he
and that the victim suffered from some health problems, specifically that she suffered from
seizures.
The Defendant testified that as part of his training for correctional facilities and
security jobs, he was trained in self-defense and pressure point control tactics. He
acknowledged that he also had training in domestic violence issues. In addition, while
serving six years in the United States Army, he had been trained in hand-to-hand combat,
weaponry, and first aid.
The Defendant affirmed that the victim had never previously threatened to harm
him nor had she ever attacked him. The Defendant acknowledged that he told Detective
Smith that he was enraged and angry but not fearful of the victim. He denied ever telling
Officer Whitley that he had “messed up.” He confirmed that he never mentioned to the
police that the stabbing was accidental or claimed that he was acting in self-defense. He
maintained that he was honest in his dealings with the police.
Following the conclusion of the proof, the Defendant was convicted of the lesser-
included offense of second degree murder. See Tenn. Code Ann. § 39-13-210. Thereafter,
the trial court imposed a Range I, standard offender sentence of seventeen years. After
denial of the Defendant’s timely motion for new trial, this appeal followed.
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ANALYSIS
The Defendant presents the following issues on appeal: (1) whether the trial court
erred by denying the Defendant’s request to present evidence that the State had previously
pursued two theories of guilt that were inconsistent with its theory at trial; (2) whether there
was insufficient evidence to support his conviction, specifically, challenging the mens rea
element of knowing; (3) whether the trial court erred by allowing Detective Corcoran to
testify about blood spatter evidence when he had not been qualified as an expert; and (4)
whether the cumulative effect of these errors requires a new trial. We will address each in
turn.
I. Evidence of Inconsistent Theories
A. Habeas Corpus Proceedings. Prior to our analysis of the Defendant’s issue, a
review of the federal habeas corpus proceedings is in order to place the issue in its full
context. In the habeas corpus proceedings, the Defendant claimed that the prosecution
withheld material exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83
(1963), specifically in connection with the DNA testing conducted on the butcher knife
used to kill the victim. Robinson, 2015 WL 5773422, at *20. The Defendant complained
that “the prosecution withheld evidence establishing that ‘the TBI’s test of the butcher knife
was, for all practical purposes, meaningless,’ by failing to reveal that it had only tested a
single spot on the knife, far from the cutting edge and near the handle.” Id. The Defendant
continued that “if that fact had been disclosed, the prosecution would not have been able
to cite the test results as proof that [the Defendant’s] blood was not on the knife and that,
ergo, [the Defendant’s] statement to police and trial testimony that the victim had cut him
with the knife were false.” Id. Moreover, the Defendant asserted that
the true facts about the DNA testing performed by the [S]tate would have led
defense counsel to conduct additional testing, which would have proven that
[the Defendant’s] blood was in fact on the cutting edge of the knife and would
have corroborated his testimony about having been attacked by the victim.
Id.
In analyzing the merits of the Defendant’s issue, the district court summarized the
relevant proof presented during the habeas corpus proceedings as follows:
When the prosecution sent the butcher knife, which was known to be
the weapon with which the victim was stabbed, to the TBI for DNA analysis,
it did not provide any special guidance regarding the need to confirm or rule
out the presence of [the Defendant’s] blood on the knife. The prosecutor was
aware that under normal circumstances, the TBI wants to minimize DNA
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testing and might stop testing once it has identified the victim’s blood on a
piece of evidence[] and that she would need to instruct them to do more
testing if the goal was to find out whether the [D]efendant’s blood was
present. Specifically, she was aware that the TBI might stop after testing a
single spot on a piece of evidence if “they find what they’re looking for,”
which would be determined by the referral paperwork.
In this case, the detective’s TBI Request for Examination of the
butcher knife did not provide any particular instructions, and the prosecutor’s
letter generically requested “DNA analysis.” No one ever informed TBI
Agent Margaret Bash that the purpose of the testing was to determine
whether [the Defendant’s] blood was on the butcher knife. Had she been
informed that that was the purpose of the testing, or even that more than one
person at the scene of the killing was bleeding, she would have tested
multiple areas on the knife. In the absence of that instruction, Agent Bash
assumed that the purpose of the testing was to determine whether the butcher
knife was used to stab the victim. She therefore collected DNA from only
one spot on the knife—away from the cutting edge, near the handle—and
determined that it matched the victim. The Agent recorded her findings in
two documents: an official typewritten report indicating in relevant part that
the blood on the knife matched the victim, and a handwritten analysis that
reflected in pertinent part that the single “area worked” on the butcher knife
was opposite the cutting edge and closer to the handle than the tip of the
knife. The prosecution disclosed to the defense only the official typewritten
report.
The defense was not provided with the handwritten report showing
the limited nature of testing done on the butcher knife, despite a discovery
request from defense counsel expressly asking for any reports of scientific
tests or experiments material to the preparation of a defense; all material
known to the prosecution team that was exculpatory or may lead to
exculpatory material, including the reports of any investigations carried out
by the TBI; any such evidence or information that would tend to lessen the
degree of [the Defendant’s] guilt or mitigate his punishment; any such
evidence that is favorable in that it is exculpatory, would tend to reduce the
degree of offense or punishment, or might be used to impeach the credibility
of any government witness; any memoranda or reports “which might fairly
be said to contradict or be inconsistent with any evidence which the State
intends to adduce in this matter”; and “[a]ny documentary evidence in the
possession of the State which contradicts or is inconsistent with any
testimony the State intends to introduce in this cause.” The [S]tate’s
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discovery response stated that there was no exculpatory material to provide[]
and that “counsel may assume that any specific request which is not
answered is either not discoverable or the information requested is not
available.”
The prosecutor then proceeded to try the case on the theory that [the
Defendant’s] claim that the victim cut him with the butcher knife was false,
and that he had actually cut himself with a smaller knife after stabbing the
victim. In her opening statement, she laid out the theory of the falsity of [the
Defendant’s] defense as follows:
It’s also very important, when you listen to the
statement that he gave the police, to listen to what he says about
the knife that was used. He says the only knife that’s ever used
in this altercation is this big butcher knife.
And you’ll see it. It was there, it was left right next to
her body, was collected by the police; it’s tested by the TBI
Lab. He says that’s the knife that [the victim] pulled on him
and struck him with.
Well, you’ll hear from the serologist, Agent Bash, his
blood’s not on that big, old butcher knife, [the victim’s]
blood’s on that butcher knife. His blood, come to find out, is
on this little bitty old steak knife, that’s in the kitchen.
When you hear the officers testify about the crime
scene, take into consideration where these knives are located.
Compare the evidence at the crime scene with what [the
Defendant] says in his statement to the police.
During trial, the prosecutor had the typewritten TBI report entered
into evidence as Exhibit 24, and elicited the following testimony from TBI
Agent Bash about the DNA testing conducted on the butcher knife:
Q. Okay. And did you test that item for the presence of human
blood?
A. Yes, I did.
Q. Okay. And what were the results of your testing on that
item?
A. I found human blood, and the DNA profile matched [the
victim].
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And finally, much of her final closing argument was devoted to
highlighting evidence supporting the theory that [the Defendant] had
inflicted his own wounds with a small steak knife[] and that his claim that
the victim had attacked him with the butcher knife did not “make sense.”
Robinson, 2015 WL 5773422, at *20-22 (footnote omitted).
After detailing these facts, the district court observed that “[t]he prosecutor’s theory
was effective and was clearly significant to the state court proceedings following [the
Defendant’s] conviction.” Robinson, 2015 WL 5773422, at *22. The district court first
noted that, “[i]n denying [the Defendant’s] motion for new trial, the trial court relied in part
on the fact that his testimony was ‘vastly’ ‘inconsistent with what was found at the scene’
with respect to blood evidence and which knife was involved.” Id. The district court then
noted that this court, in denying the Defendant relief on direct appeal, found sufficient
evidence of premeditation based in part on its belief that “[a]lthough the Defendant claimed
that the victim cut him with the same knife with which he stabbed her, only the victim’s
blood that [sic] was found on the knife.” Id. (citing Robinson, 2003 WL 21653882, at *12).
The district court then indicated that during discovery permitted in the course of the
habeas corpus action, the Defendant “for the first time was able to review the TBI
documentation underlying the official report used at trial, and discovered that the only spot
tested was near the handle far from the cutting edge.” Robinson, 2015 WL 5773422, at
*22. The district court observed that the additional DNA testing it authorized “confirmed
that [the Defendant’s] blood is on the tip of the butcher knife on both sides, mixed with the
victim’s blood, and that it was in fact the ‘major contributor’ of DNA on one side of the
knife tip.” Id.
After determining that the evidence had been suppressed for Brady purposes, the
district court further found “that the evidence of the limited nature of the testing on the
butcher knife was clearly favorable to the defense.” Robinson, 2015 WL 5773422, at *24.
The district court reasoned that the suppressed evidence would have both impeached the
testimony of a key prosecution witness, as well as undermined the prosecution’s theory of
the case. The district court noted the following in support of that conclusion:
On cross-examination, the limitations of the DNA testing on the butcher
knife would have minimized the impact of Agent Bash’s official report and
testimony about the knife and called into question the thoroughness of her
analysis and value of her result, given that it was undisputed that the victim
had been stabbed with the butcher knife. It also would have undercut the
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prosecution’s theory that [the Defendant] had to be lying about being
attacked by the victim.
Id.
The district court observed that the State’s “primary argument against finding this
evidence favorable to [the Defendant] is that the presence of [the Defendant’s] blood on
the tip of the butcher knife actually proves that he used the knife to cut himself after he
stabbed the victim.” Robinson, 2015 WL 5773422, at *24. Specifically, the State asserted
that “had he been stabbed by the tip of the murder knife prior to his using it to stab his
fiancée, it is unlikely his blood would still be on it, particularly as the major contributor on
one side of the tip.” Id. The district court surmised, “This novel speculation is unsupported
by any scientific evidence and contrary to the prosecution’s argument at trial. Moreover,
the possibility that a piece of evidence might have a hypothetical weakness, or that the
prosecution might have a response to it, does not change the favorable nature of the
evidence.” Id. (footnote omitted).
Addressing the final Brady element, the district court concluded that the suppressed
evidence was material and its suppression was prejudicial to the Defendant. Robinson,
2015 WL 5773422, at *25. In so concluding, the district court reasoned,
“[E]vidence that directly undermines the prosecution’s theory of the
charged crime is ‘plainly material’ under Brady.” Comstock v. Humphries,
786 F.3d 701, 713 (9th Cir. 2015). As discussed above, the erroneous
construction of the TBI report as proof that [the Defendant’s] blood was not
on the butcher knife—which would have been disproved by the suppressed
evidence—was one of the lynchpins of the prosecutor’s premeditation theory
at trial and was an important factor in the state court decisions that followed.
This court, in ruling on the extent of discovery to be permitted, has already
observed that “[t]he testing of the blood on the knife’s cutting edge used in
the stabbing appears to be significant and material proof on a first degree
murder charge.” Disclosure of the true facts of the butcher knife testing
would have rebutted or entirely prevented the prosecution’s theory that [the
Defendant’s] statements and testimony about killing the victim in a sudden
rage after she attacked him were false. Moreover, that disclosure would
likely have prompted the more thorough testing finally conducted during the
course of this case, which establishes that [the Defendant’s] blood is on the
tip of the knife and corroborates his version of events. Although the
prosecutor might still have pointed to the [Defendant’s] blood on the steak
knife and his failure to call 911 as the victim was dying in support of her case
for premeditation, suppressed evidence need not undercut “every item of the
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State’s case” in order to be material. Bies[ v. Sheldon], 775 F.3d [386,] 399
[(6th Cir. 2014)] (quoting Kyles[ v. Whitley], 514 U.S. [419,] 451 [(1995)]).
While it is undisputed that [the Defendant] killed the victim, the
evidence of premeditation needed to support his conviction for first degree
premeditated murder was far from overwhelming. [The State] argues that
evidence of his blood on the knife is not material because it would have been
redundant to the evidence admitted at trial about the cuts on his arms. [The
State] would have the court disregard the likelihood that the jury convicted
[the Defendant] of first degree premeditated murder because it accepted the
prosecutor’s theory—based largely on an inaccurate and misleading
representation of the blood evidence—that [the Defendant’s] version of
events was fabricated and that the victim had not attacked him with the
butcher knife. Given the obvious significance, as indicated above, of the
butcher-knife-blood evidence to the prosecution, the trial court and the state
court of appeals, the court finds that it was reasonably likely to have had a
similar impact on the jury. There is thus at least a reasonable probability that
disclosure of the fact that the presence of [the Defendant’s] blood on the
butcher knife had not been ruled out—particularly if it had prompted the
further testing that establishes that his blood was on the knife—would have
altered the outcome of [the Defendant’s] trial.
Id.
B. Pretrial Proceedings Following Remand. On March 20, 2018, the Defendant
filed a “Motion for Pretrial Ruling Regarding Admissibility of Evidence,” requesting that
the trial court permit “him to introduce prior inconsistent theories of guilt presented by the
prosecution during the prosecution of [the Defendant] for first degree murder.”
Specifically, the Defendant cited to the original trial prosecutor’s opening statement in the
2001 trial and argued for admission of the trial transcript. The Defendant noted the State’s
theory from the first trial was that the Defendant lied about the circumstances surrounding
the murder, including his allegation that the victim first cut him with the butcher knife, and
that he inflicted his own wounds with the smaller steak knife in an attempt to conceal his
crime. In addition, the Defendant sought admission of the original trial prosecutor’s
deposition testimony during the federal habeas corpus proceedings. The Defendant cited
to the State’s theory of guilt during the federal habeas corpus proceedings after it was
revealed that the Defendant’s DNA was in fact present on the tip of the butcher knife, that
being “that the presence of [the Defendant’s] blood on the tip of the butcher knife actually
proves that he used the knife to cut himself after he stabbed the victim.” Robinson, 2015
WL 5773422, at *24. According to the Defendant, during the deposition, the original
prosecutor was asked about this new evidence, and she answered as follows:
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Q: So—so your—your theory at trial was that he used the steak knife
to cut himself and that he didn’t use the butcher knife to cut himself?
A: Yes.
Q: Right.
A: Yes.
Q: Now your theory is that he used the butcher knife to cut himself?
A: Obviously. Since his blood is on the tip of the knife, it just makes
sense to me that there’s no way his blood would be on the tip of that knife if
he had stabbed her twice, the second one going that deep, I don’t know how
in the world his blood could be there unless he had used that butcher knife
after he stabbed her to inflict those wounds he had on his arms.
Q: So you think his blood would be totally removed by her blood
getting on it.
A: I do, yeah.
Q: Do you have any basis for that opinion.
A: Just common sense.
The Defendant then referenced an August 1, 2011 analytical report issued by the SERI,
“stating that it was not aware of any scientific studies to support the validity of [the original
prosecutor’s] new theory that if [the Defendant] were cut first that his blood would be
removed by the action of stabbing [the victim].”
In support of his argument for introduction of the trial transcript and the original
prosecutor’s deposition testimony, the Defendant, quoting State v. Daniel Nesbit,
submitted “that allowing the prosecution to continue to change theories of guilt, without
allowing defense counsel to ‘bring the conflict to the fact finder’s attention’ violate[d the
Defendant’s] due process rights.” See No. W2016-00492-CCA-R3-CD, 2017 WL
6210860, at *6 (Tenn. Crim. App. Dec. 8, 2017)). Citing State v. Gregory Robinson, the
Defendant also contended “that allowing the [S]tate to proceed at multiple trials with
different theories of guilt should trigger due process considerations.” See No. W2001-
01299-CCA-R3-DD, 2003 WL 21946735, at *15-16 (Tenn. Crim. App. Aug. 13, 2003),
rev’d, 146 S.W.3d 469 (Tenn. 2004)). Relative to a potential hearsay objection, the
Defendant submitted that such evidence was admissible as a business record exception
pursuant to Tennessee Rule of Evidence 803(6), as the trial transcript and deposition were
both records of regularly conducted activity and were self-authenticating under Tennessee
Rule of Evidence 902(11) when accompanied by the appropriate affidavit from the
custodian of records.
A pretrial hearing was held on the motion. Defense counsel argued that the evidence
was relevant because it went “to the credibility of the police’s investigation” and “to the
credibility of the prosecutor’s office” who had tried “for seventeen years, . . . to shape these
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facts to fit it back into the box of first degree murder.” Defense counsel further commented
on the potential credibility issues, “[W]hen they stand in front of the [j]ury and we’re sure,
this time, we’ve got it right. Believe us. We know what happened. Well, this is your third
bite at the apple with the same facts to try to fit it into first degree murder.”
The State responded that the issue was “very, very novel.” The State indicated that
the cases cited by the Defendant were distinguishable on their facts, those cases either
dealing with co-defendants in separate trials (Robinson) or separate trials of the same
defendant for two different acts (Nesbit). The State asserted that there was a lack of
authority in support of admission of this type of evidence. Regarding relevance, the State
indicated that the original prosecutor’s theory at the 2010 deposition was “totally
irrelevant” and that admission of the prosecutor’s arguments at the 2001 trial was untenable
and would confuse the issues.
The trial court noted that both sides had “additional information or evidence” to
present in this trial; that “new evidence” would “in and of itself likely” impact “the theory
of the case”; that it would not “put the prosecutors back on trial for actions that were done
back in 2001”; that generally the jury should not be informed about a prior trial; that
prosecutors often change strategy “in mid-stream” and “certainly” after all the evidence
had been presented; and that a different prosecutor was now trying the case. The trial court
indicated, “I’m having a hard time understanding how their prior theory becomes relevant
under any circumstances.” Defense counsel responded to these comments, noting that this
case involved a retrial due to the State’s misconduct and not merely because an evidentiary
ruling was reversed. Defense counsel averred that it was fundamentally unfair to deny the
Defendant the opportunity to present proof of the State’s “single narrow-minded tunnel
vision” of the Defendant’s guilt regardless of how the evidence had changed over time.
Stating the relevance another way, defense counsel said, “[O]ur argument might be that no
facts would have made a difference, that they were always determined to prosecute [the
Defendant] for . . . first degree murder, and they’re going to shift their theory no matter
what to try to prosecute him for that—that offense.” The trial court took the issue under
advisement.
At a subsequent hearing, the trial court ruled from the bench, and that ruling was
memorialized in a written order filed the next day. In the order, the trial court concluded
that “[t]here was no compelling due process reason either side should be allowed to tell the
jury about prior theories that may have been presented in this case.” The trial court further
determined that “[t]here [was] no authority that would permit” introduction of this kind of
evidence. The trial court also observed in its oral ruling that “[t]heories are not evidence.”
C. Appeal. On appeal, the Defendant insists that the trial court erred in denying his
motion to admit evidence that the State previously pursued two theories of guilt that were
inconsistent with its theory of guilt at his second trial. Specifically, he submits
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that preventing him from showing that different theories had been advanced
in the first trial and in the habeas proceedings—one of which stemmed from
the prosecution’s suppression of evidence, and both of which were later
proven to be factually and scientifically inaccurate—violated his right to due
process of law and a fair trial.
In addition to citing similar precedent as he did in his motion, the Defendant also cites to a
case from the United States Court of Appeals for the Second Circuit, United States v. GAF
Corp., 928 F.2d 1253 (2d Cir. 1991), in support of his argument. The Defendant requests
a new trial. The State responds that that Defendant is not entitled to a new trial because
his right to a fair trial was not violated by the trial court’s decision, and it attempts to
distinguish GAF Corp. on its facts.
Generally, the admission of evidence at trial is entrusted to the broad discretion of
the trial court, and as such, a trial court’s ruling on the admission of evidence may only be
disturbed upon a showing of an abuse of discretion. State v. Robinson, 146 S.W.3d 469,
490 (Tenn. 2004) (citing State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997)). The trial
court’s exercise of discretion may not be reversed unless the court “applied an incorrect
legal standard, or reached a decision which is against logic or reasoning that caused an
injustice to the party complaining.” State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997).
For evidence to be admissible, it must be relevant. Tenn. R. Evid. 402. Relevant evidence
is “evidence having any tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable than it would be without
the evidence.” Tenn. R. Evid. 401. Relevant evidence may be excluded by the trial court
if its probative value is substantially outweighed by the danger of unfair prejudice. Tenn.
R. Evid. 403.
In addition, Tennessee Rule of Evidence 802 states that hearsay statements are not
admissible “except as provided by these rules or otherwise by law.” Tenn. R. Evid. 802.
A party-opponent admission is not excluded by the rule against hearsay. Tenn. R. Evid.
803(1.2). A party-opponent admission is “[a] statement offered against a party that is . . .
the party’s own statement in either an individual or a representative capacity[.]” Id.
Though the Defendant cited to the business records exception in his motion, we
observe that attorneys’ statements in related cases have been admitted as party-opponent
admissions in a number of cases in the federal courts. See United States v. Branham, 97
F.3d 835, 851 (6th Cir. 1996); United States v. DeLoach, 34 F.3d 1001, 1005 (11th Cir.
1994); United States v. McKeon, 738 F.2d 26, 33 (2d Cir. 1984); United States v. Orena,
32 F.3d 704, 716; United States v. Salerno, 937 F.2d 797, 811-12 (2d Cir. 1991); United
States v. GAF Corp., 928 F.2d 1253, 1262 (2d Cir. 1991); United States v. Ganadonegro,
854 F. Supp. 2d 1088, 1092 (D.N.M. 2012); United States v. Bakshinian, 65 F. Supp. 2d
1104, 1105-06 (C.D. Cal. 1999). State courts also have recognized the applicability of the
- 22 -
party-opponent admissions doctrine in criminal cases under similar facts. See State v.
Cardenas-Hernandez, 579 N.W.2d 678, 685-86 (Wis. 1998); People v. Cruz, 643 N.E.2d
636, 664-65 (Ill. 1994); Hoover v. State, 552 So. 2d 834, 840 (Miss. 1989).
For example, in GAF Corp., the case cited by the Defendant, the Second Circuit
held that the Government’s prior bill of particulars in the case, which was inconsistent with
the Government’s amended bill of particulars in a later trial of the same case, could be
admitted into evidence. 928 F.2d at 1262. The court observed that “if the government
chooses to change its strategy at successive trials, and contradict its previous theories of
the case and version of the historical facts, the jury is entitled to be aware of what the
government has previously claimed, and accord whatever weight it deems appropriate to
such information.” Id. The court articulated the reasons for allowing a defendant to
introduce this type of evidence:
[T]he jury is at least entitled to know that the government at one time
believed, and stated, that its proof established something different from what
it currently claims. Confidence in the justice system cannot be affirmed if
any party is free, wholly without explanation, to make a fundamental change
in its version of the facts between trials, and then conceal this change from
the final trier of the facts.
928 F.2d at 1260.
Similar to the case under consideration, in Ganadonegro, the United States’ initial
first degree murder prosecution ended in a mistrial. 854 F. Supp. 2d at 1092. It then
superseded the initial indictment, charging second-degree murder, voluntary manslaughter,
and negligent child abuse. Id. at 1093. The defendant sought to admit statements from the
United States’ closing argument at the first trial that he shook a child “knowingly,
intentionally and willfully” to “illustrate that the United States has admitted that it was
wrong in terms of the theory on which it proceeded at the first trial and that it could be
wrong again.” Id. at 1126-27. The court agreed that the “statement has a tendency to make
the fact that he did not have a culpable mental state more probable than it would be without
the evidence, or at least permits an inference to that effect.” Id. It thus allowed the
defendant to introduce the statement into evidence in the second trial. Id.
In accordance with this jurisprudence, we likewise conclude that admissions made
in one legal proceeding by a party’s lawyer, through pleadings or in-court statements, can
be admitted as evidence in a subsequent proceeding. Nonetheless, though the evidence
falls within the scope of party admissions doctrine, the court must still consider whether it
is relevant under Rule 401 and whether it should be excluded pursuant to Rule 403. In this
context, it has been observed that “the admission of a statement by the government in a
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prior case would raise substantial dangers of confusing the jury and wasting time.”
Bakshinian, 65 F. Supp. 2d at 1110.
Assessing the relevance of this evidence, we observe that the theory of defense in
this case was that the killing was accidental, occurring during an argument and after the
victim first came at the Defendant with the butcher knife; that the Defendant had been
forthcoming and cooperative with the authorities; and that the inadequacy of the police
investigation led to the steadfast prosecution of the Defendant for first degree murder.
During closing argument, defense counsel made statements such as: (1) “Mike Smith and
his team were only concerned with finding proof that [the Defendant] committed first
degree murder.”; (2) “[W]hen the State was asking Mike Smith questions, his memory was
okay, but when it was [defense counsel’s] asking him questions that got to the heart of the
sloppy investigation, that’s when his memory started getting bad.”; (3) “I submit it’s
because they’re hoping you’ll forget how sloppy this investigation was.”; and (4) “[D]ue
to Mike Smith’s sloppy way of doing things, no one knew for a decade that [the
Defendant’s] DNA was on the butcher knife that he told police on November the 9th he
was cut with because Margaret Bash didn’t know and tested a completely irrelevant spot.”
According to defense counsel, the subsequent DNA testing of the butcher knife
corroborated the Defendant’s version of events. Defense counsel surmised for the jury that
the Defendant was guilty of reckless homicide.
The State responded in its rebuttal argument by asserting that finding the
Defendant’s DNA on the butcher knife was not “the ah-ha proof for the defense” it claimed,
parsing the nuances of Mr. Fedor’s testimony about blood and DNA in blood stains. The
State noted that the Defendant’s behavior following the stabbing was “very strange,” and
observed, “What in the world is going on in this house after he stabs her?” The State
posited that the Defendant might have “doctored the evidence.” The State theorized,
Could the Defendant have gotten a butcher knife during an argument,
stabbed his fiancée in the back, spun her around, stabbed her in the front,
watched her bleed out, not call the police, not call for help, then stage a scene,
cut himself and then lie to the police and manipulate the system over eighteen
years because that narrative, obviously not one spun by [the Defendant], but
could be accepted by you in light of everything you know in this case?”
The State’s change in theories of prosecution from the Defendant’s first trial to his
second trial was not the result of innocent explanation, but it was instead due to a Brady
violation. As noted by the federal district court, the prosecution did not provide any special
guidance to the TBI regarding the need to confirm or rule out the presence of the
Defendant’s blood on the butcher knife; the prosecution was aware that the TBI might stop
testing once it had identified the victim’s blood on the butcher knife absent additional
instructions; and despite a discovery request from the defense, the prosecution did not
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disclose Agent Bash’s handwritten analysis reflecting that she only “worked” a single area
of the butcher knife that was opposite the cutting edge and closer to the handle than the tip
of the knife. The federal district court observed that had the State provided Agent Bash’s
handwritten document to the defense, it likely would have prompted additional testing,
which would have led to the discovery of the Defendant’s blood on the knife. The federal
district court surmised that the evidence of the limited nature of the testing on the butcher
knife was clearly favorable to the defense because it would have both impeached the
testimony of a key prosecution witness, as well as undermined the prosecution’s theory of
the case. The State’s change in theory was not simply because of the discovery of new
evidence as the trial court indicated in its finding from the bench.
What is more, the jury had already been presented with much of the same evidence
from the first trial, as well as most of the evidence related to the subsequent testing in 2011.
The jury was also aware that prior proceedings had taken place in the case given the
multiple references to such proceedings and the reading of prior testimony from witnesses
who had since died; thus, allowing this evidence would have led to little confusion or waste
of time.
The evidence which the Defendant sought to admit would have illustrated that the
State was wrong in terms of the theories on which it proceeded at the first trial and during
the habeas corpus proceedings, and that it could be wrong again about the Defendant’s
guilt. We are constrained to agree with the Defendant that this evidence had a tendency to
make the fact that he did not have the requisite culpable mental state more probable than it
would be without the evidence, or at least permitted an inference to that effect.
Accordingly, we conclude that the probative value of admission of this evidence was not
substantially outweighed by the danger of unfair prejudice and that the trial court abused
its discretion by failing to allow it.
Furthermore, despite the trial court’s best efforts, the jury had also been told from
Officer Sanders that the Defendant had been previously tried. This led to two curative
instructions from the trial court. First, the trial court instructed,
Members of the Jury, the [c]ourt has made every effort to prevent you
from knowing the history of this case. The [c]ourt was and remains
concerned that the knowledge of this case’s history would improperly
influence your objectivity as the judges of the facts and the law in the trial of
this case in favor of one party or the other. Unfortunately, my efforts were
undermined when a reference was made to a prior trial during yesterday’s
proceedings. Subsequent to that trial, new evidence was discovered that may
be relevant to the issue of guilt or innocence and which served as a basis for
the retrial of this case. However, what weight, if any, you give this evidence
is solely for your determination to make. You are not to speculate on what
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the verdict was in the prior trial. It is irrelevant to you fulfilling your oath as
Jurors in this case. You are also not to speculate why the newly discovered
evidence failed to be presented at the prior trial. Again, the reasons are
irrelevant to you fulfilling your oath as Jurors in this case.
And, in its final instructions to the jury, the trial court stated,
As you have been apprised, new evidence was discovered at the
original trial that may be relevant to the issue of guilt or innocence and which
served as a basis for the retrial of this case. However, what weight if any you
give to this evidence is solely for your determination to make. You are not
to speculate on what the verdict was in the prior trial. It is irrelevant to you
fulfilling your oath as Jurors in this case. You are also not to speculate on
why the newly discovered evidence failed to be presented at the prior trial.
Again, the reasons are irrelevant to you fulfilling your oath as Jurors in this
case.
These instructions in effect dismantled the defense which the Defendant sought to
present—that being, the State’s unwavering belief that the Defendant committed first
degree murder regardless of how the forensic evidence had changed over time. We cannot
say that the guilty verdict rendered in this trial was surely unattributable to the error
touching on the Defendant’s due process right to present a defense. Accordingly, the
Defendant’s case is remanded for a new trial.
II. Sufficiency
In the event of further appellate review, we will address the Defendant’s remaining
issues so that they not be pretermitted. The Defendant contends that the evidence adduced
at trial was insufficient to support his conviction for second degree murder. Specifically,
the Defendant challenges the knowing mens rea element required for conviction,
maintaining that the State failed to prove beyond a reasonable doubt that “he was aware
that his conduct—pushing the vicim away while holding the knife he had just wrested from
her—was reasonably certain to cause her death.” According to the Defendant, the proof
established, instead, that the Defendant “consciously disregarded the risk that his conduct
would cause [the victim’s] death,” thus, being consistent with a conviction for reckless
homicide rather than second degree murder. The State responds that the proof, in the light
most favorable to the State, supports a knowing killing and that therefore, the Defendant’s
conviction should be affirmed.
An appellate court’s standard of review when a defendant questions the sufficiency
of the evidence on appeal is “whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
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crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). This
court does not reweigh the evidence; rather, it presumes that the jury has resolved all
conflicts in the testimony and drawn all reasonable inferences from the evidence in favor
of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness credibility, conflicts in
testimony, and the weight and value to be given to evidence were resolved by the jury. See
State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).
A guilty verdict “removes the presumption of innocence and replaces it with a
presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the
evidence is insufficient to support the jury’s verdict.” Id.; see State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982). The standard of proof is the same whether the evidence is direct
or circumstantial. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). Likewise,
appellate review of the convicting evidence “is the same whether the conviction is based
upon direct or circumstantial evidence.” Id. (quoting State v. Hanson, 279 S.W.3d 265,
275 (Tenn. 2009)). The duty of this court “on appeal of a conviction is not to contemplate
all plausible inferences in the [d]efendant’s favor, but to draw all reasonable inferences
from the evidence in favor of the State.” State v. Sisk, 343 S.W.3d 60, 67 (Tenn. 2011).
Second degree murder is statutorily defined as the “knowing killing of another.”
Tenn. Code Ann. § 39-13-210(a)(1). Our supreme court has determined that second degree
murder is a “result of conduct” offense, meaning that the statute focuses “on the result and
punishes an actor who knowingly causes another’s death.” State v. Ducker, 27 S.W.3d
889, 896 (Tenn. 2000); see also State v. Brown, 311 S.W.3d 422, 431-32 (Tenn. 2010).
Here, a person acts knowingly “when the person is aware that the conduct is reasonably
certain to cause the result.” Tenn. Code Ann. § 39-11-302(b). Whether a defendant acts
knowingly is a question of fact for the jury. See State v. Inlow, 52 S.W.3d 101, 104-05
(Tenn. Crim. App. 2000). The jury may infer a defendant’s mental state from “the
character of the assault, the nature of the act and from all the circumstances of the case in
evidence.” Id. at 105; see also Brown, 311 S.W.3d at 431.
The Defendant contends that the evidence is sufficient for reckless homicide, not
second degree murder. Our criminal code defines reckless homicide as the “reckless killing
of another.” Tenn. Code Ann. § 39-13-215(a). It further provides,
“[r]eckless” refers to a person who acts recklessly with respect to . . . the
result of the conduct when the person is aware of but consciously disregards
a substantial and unjustifiable risk that . . . the result will occur. The risk
must be of such a nature and degree that its disregard constitutes a gross
deviation from the standard of care that an ordinary person would exercise
under all the circumstances as viewed from the accused person’s standpoint.
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Tenn. Code Ann. § 39-11-302(c). Like second degree murder, reckless homicide is a
“result of conduct offense.” State v. Parker, 350 S.W.3d 883, 910 n.16 (Tenn. 2011) (citing
Ducker, 27 S.W.3d at 896). Evidence sufficient to support a second degree murder
conviction is also sufficient to support a conviction for reckless homicide because proof
that a person acted knowingly “simultaneously establishes, as a matter of law, that the
person acted recklessly.” State v. Davis, 466 S.W.3d 49, 70 (Tenn. 2015).
Here, we agree with the State that evidence, it the light most favorable to it,
established a knowing killing. The Defendant was younger, taller, and stronger than the
victim, who suffered from seizures. Moreover, the Defendant had been trained in self-
defense, pressure point control tactics, and hand-to-hand combat.
The Defendant stabbed the victim twice—once in her back, and once in her chest.
The chest wound was five to six inches deep; and it resulted in a fractured rib, a lacerated
lung, a lacerated pericardium, and penetrated the heart. The back wound was three to four
inches deep. The medical examiners agreed that the chest wound required significant force
to inflict. Though the Defendant was trained in first aid, he failed to seek immediate
medical assistance for the victim, who bled profusely, and she lived for possibly twenty to
thirty minutes after she was stabbed.
In addition, the Defendant made multiple statements to the officers indicating his
consciousness of guilt—such as he did not have to strike her, he was wrong for what he
did, and the victim did not do anything to justify what he did to her. He told Officer Whitley
that he had “messed up” and to handcuff him, and he told Officer Sanders that the
investigation “would not take much.” The Defendant admitted to Detective Smith that he
was angry at the victim for coming at him with the butcher knife and that he could have
deescalated the situation once he disarmed her.
As stated above, whether the Defendant acted “knowingly” when he stabbed the
victim was a question of fact for the jury, and a Defendant’s mental state may be inferred
from the surrounding facts and circumstances. Here, we find the evidence sufficient to
support the jury’s verdict of second degree murder, i.e., that the Defendant’s conduct was
reasonably certain to cause the victim’s death—based upon the use of the “big carving
knife” to stab the victim twice, once in the chest, and also in the back; the depth of those
wounds, as well as the significant force needed to inflict the frontal wound; and the
Defendant’s behavior and statements after he stabbed the victim, noting summoning help
and indicating that he could have deescalated the situation. See, e.g., State v. Elder, 982
S.W.2d 871, 876 (Tenn. Crim. App. 1998) (“[i]ntent . . . may be deduced or inferred by the
trier of fact from the character of the assault, the nature of the act and from all the
circumstances of the case . . . [including] the use of a deadly weapon, the number of wounds
inflicted, the seriousness of the wounds”).
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In addition, the jury had the liberty to consider testimony about the Defendant’s
injuries and his assertion that the stabbing was accidental. The jury, as was their
prerogative, was free to reject the Defendant’s claim of accident or any inference of self-
defense and accredited the evidence, in whole or in a part, offered by the State.
Accordingly, we conclude that the evidence is sufficient to support the Defendant’s
conviction for second degree murder.
III. Blood Spatter Testimony
The Defendant argues that the trial court erred when it allowed Detective Corcoran,
though he had not been qualified as an expert, “to give an opinion on the subject of blood
spatter.” According to the Defendant, Detective Corcoran’s testimony that “the crime
scene included a blood streak that had been transferred from an object onto the carpet”
amounted to “an expert opinion by a witness who was not qualified as an expert, in
violation of Tennessee Rule of Evidence 702.” The State responds that “[b]ecause
Detective Corcoran did not engage in complicated blood spatter analysis to give his opinion
on the appearance of a blood drops at the crime scene, the trial court did not abuse its
discretion in overruling the [D]efendant’s objection.” The State continues that any error
in this regard was harmless “where Detective Corcoran’s testimony had no substantial and
injurious impact on the jury’s decision to convict the [D]efendant.”
Unless qualified as experts, witnesses may only offer opinions or inferences which
are both “rationally based on the perception of the witness” and “helpful to a clear
understanding of the witness’s testimony or the determination of a fact in issue.” Tenn. R.
Evid. 701(a). Tennessee Rule of Evidence 702 provides that “[i]f scientific, technical, or
other specialized knowledge will substantially assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training, or education may testify in the form of an opinion or otherwise.”
This court has held that “lay opinion testimony under Rule 701 is limited to those
observations of a lay witness that are not based on scientific, technical, or other specialized
knowledge which would qualify the witness as an expert under Rule 702.” State v.
Timothy Murrell, No. W2001-02279-CCA-R3-CD, 2003 WL 21644591, at *6 (Tenn.
Crim. App. July 2, 2003) (citing United States v. Conn, 297 F.3d 548, 553 (7th Cir. 2002)).
The Tennessee Supreme Court has recognized “blood stain analysis” and the
analysis of blood spatters as a field of expertise. See State v. Melson, 638 S.W.2d 342
(Tenn. 1982). Furthermore, this court has observed that, generally, testimony regarding
blood spatter evidence requires an expert due to its complex nature and the opinion being
predicated upon specialized knowledge unfamiliar to most lay persons. See State v.
Halake, 102 S.W.3d. 661, 670-71 (Tenn. Crim. App. 2001). In so concluding, this court
observed, “Blood spatter analysis is a complicated subject, as the analyst studies the blood
spatter and determines what blow created the spatter, thereby recreating the events of the
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crime.” Id. at 672 (citing Melson, 638 S.W.2d 342). The panel further elaborated that
“[o]ther states have also recognized the complexity of blood spatter analysis and the
necessity of having a well-qualified expert testify regarding his or her analysis of the blood
spatters.” Id. (citations omitted).
On appeal, the Defendant cites to Halake in support of his argument that Detective
Corcoran’s testimony was erroneous and prejudicial, thus requiring a new trial. See 102
S.W.3d 661. In Halake, the police discovered two small round spots of the victim’s blood
on the defendant’s pants legs. Id. at 669. Defense counsel objected when the prosecution
asked a police detective to testify about the similarity between the blood spots on the
defendant’s pants and other blood spatter that the officer had observed from other gunshot
wounds in other cases. Id. The officer, who had observed 100 crimes scenes and various
forms of blood spatter, was not trained as an expert in identifying blood spatter. Id. After
defense counsel’s objection, the State attempted to lay a foundation to establish the
officer’s qualifications to answer the question. Id. at 670. The trial court then held a jury-
out hearing and ruled that while the officer was not qualified to testify as an expert based
on his training, he could qualify as an expert based upon his observations of numerous
blood spatters at other crime scenes. Id. The trial court also noted that his qualification as
an expert was for the limited purpose of answering the prosecution’s one question. Id.
Following this ruling, the officer testified as permitted: The spots of the victim’s blood
found on the defendant’s pants were consistent with other gunshot blood spatter based upon
the officer’s experience. Id. at 669. On appeal, a panel of this court held that the trial court
erred by qualifying the officer as an expert, there not appearing to have been a sufficient
basis to do so. Id. at 672. The court went on to hold that the defendant was prejudiced by
the officer’s testimony concerning the blood spatters. Id.
The State responds that Halake is not applicable. The State first notes that Detective
Corcoran was not testifying as an expert witness when he said that “the blood droplets
appeared to have been ‘transferred’ onto the carpet by ‘some object.’” The State then
surmises that Detective Corcoran’s testimony as a lay witness was admissible because he
“was not engaging in blood spatter analysis to answer the question nor was he recreating
the events of the crime.”
We are constrained to agree with the State. Prior to trial, the trial court determined
that Detective Corcoran could not testify as an expert witness due to the State’s late notice
that they would be seeking to qualify him as such. The trial court sustained several
objections by the Defendant in this regard at trial when Detective Corcoran referenced
transfer stains and cast-off stains. With regard to the specific question at issue, Detctive
Corcoran was asked “what did that streak” next to the sofa “appear to be?” Detective
Corcoran replied, “It’s some type of object that had blood on it that has been placed on the
carpet and transferred that—that pattern from the object onto the carpet.” The trial court
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concluded that the question did not solicit improper blood spatter expert testimony but was
merely seeking Detective Corcoran’s personal observations based upon his experience.
We cannot say that the trial court abused its discretion in this regard. See, e.g., State v.
James Williams, No. 88-175-III, 1988 WL 138843, at *2 (Tenn. Crim. App. Dec. 30, 1988)
(finding no error concerning the opinion testimony from a lay witness because the officer’s
conclusion was based on simple observation of the bullets, without further testing, and
could have been made by anyone familiar with weapons); see also State v. Edward Joseph
Benesch II, No. M2015-02124-CCA-R3-CD, 2017 WL 3670196, at *24 (Tenn. Crim. App.
Aug. 25, 2017). Moreover, any error in this regard would be harmless given that there was
little dispute that the Defendant stabbed the victim, that it was the victim’s blood on the
carpet, and that Detective Corcoran’s testimony about the blood streak was short and
minimal. In sum, the Defendant is not entitled to any relief from this issue.
IV. Cumulative Error
The Defendant contends that even if no single error requires a new trial, the
cumulative effect of these errors—permitting Detective Corcoran to offer blood spatter
testimony when he was not qualified as an expert to do so, as well as prohibiting the defense
from presenting evidence that the State had presented inconsistent theories of the
Defendant’s guilt—mandates such action. The State responds that there can be no
cumulative error because there was not more than one actual error committed in these
proceedings.
The cumulative error doctrine applies to circumstances in which there have been
“multiple errors committed in trial proceedings, each of which in isolation constitutes mere
harmless error, but when aggregated, have a cumulative effect on the proceedings so great
as to require reversal in order to preserve a defendant’s right to a fair trial.” State v. Hester,
324 S.W.3d 1, 76 (Tenn. 2010). Because we have only found one error in this case, the
cumulative error doctrine is inapplicable. Nonetheless, we have determined that the single
error entitles to the Defendant to reversal of his conviction for second degree murder and
remand for a new trial.
CONCLUSION
For the foregoing reasons, the judgment of the trial court is reversed. The case is
remanded for a new trial.
______________________________
D. KELLY THOMAS, JR., JUDGE
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