State v. Maraschiello

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
May 2000

STATE OF TENNESSEE v. MICHAEL F. MARASCHIELLO

Direct Appeal from the Circuit Court for Montgomery County
No. 35643 Robert W. Wedemeyer, Judge

No. M1997-00049-CCA-R10-CD - Filed July 28, 2000

The appellant, Michael F. Maraschiello, was convicted by a jury in the Montgomery County Circuit
Court of first degree murder, arson, possession of an explosive weapon, possession of a shotgun with
an altered serial number, and theft. For the offense of first degree murder, a jury imposed a sentence
of life imprisonment in the Tennessee Department of Correction. Additionally, the trial court
imposed a sentence of two years incarceration in the Department for the offense of arson, two years
incarceration in the Department for the offense of possession of an explosive weapon, six months
incarceration in the Montgomery County Workhouse for the offense of possession of a shotgun with
an altered serial number, and six months incarceration in the workhouse for the offense of theft. The
trial court ordered that the appellant serve his sentences consecutively. On appeal, the appellant
presents the following issues for our review: (1) whether the trial court erred in refusing to suppress
the appellant’s confession to the police; (2) whether the trial court committed reversible error in
permitting the State to call the appellant’s accomplice, Timothy Winston, to the witness stand in
light of Mr. Winston’s stated intention to invoke his privilege against self-incrimination; (3) whether
the trial court erred in excluding testimony concerning “Gulf War Syndrome;” and (4) whether the
trial court erred in imposing consecutive sentencing. Following a review of the record and the
parties’ briefs, we affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and JOE
G. RILEY, J., joined.

Clifford K. McGown, Jr., Waverly, Tennessee, and Debra Wall, Clarksville, Tennessee, for the
appellant, Michael F. Maraschiello.

Paul G. Summers, Attorney General and Reporter, Elizabeth T. Ryan, Assistant Attorney General,
and Arthur Bieber, Assistant District Attorney General, for the appellee, State of Tennessee.
 OPINION
I. Factual Background
The appellant’s convictions of premeditated and deliberate first degree murder, arson,
possession of an explosive weapon, possession of a shotgun with an altered serial number, and theft
arose from the planned slaying of his estranged wife, Roxie Maraschiello, on February 16, 1995, at
her home in Clarksville, Tennessee. At the time of the murder, the appellant and Ms. Maraschiello
had been married for approximately ten years and had two daughters, who were eight and four years
old. During the marriage, the appellant served in the United States Army, ultimately attaining the
rank of captain and commanding a company during the Persian Gulf War.1 According to the
appellant, Ms. Maraschiello experienced some difficulty in adjusting to the role of an officer’s wife.
Moreover, the appellant testified at trial that his relationship with his wife was adversely affected
by her claims that she had been raped by a prior husband and her consequent psychological
problems. The appellant explained that he “became obsessed somewhat and upset at Roxie and
pretty much went into a mode that I felt I had married a - - someone who needed more care and help
than I did or had some major problems.” The appellant further stated that he carried “a grudge . .
. against Roxie because what she was doing wasn’t acceptable in terms of a normal relationship . .
. [p]hysical . . . and emotional . . . .”2

In 1992, following the Persian Gulf War, the appellant was assigned to Fort
Campbell, near Clarksville, Tennessee. While at Fort Campbell, the appellant began to receive poor
performance evaluations. Additionally, his relationship with his wife further deteriorated.
According to the appellant, his wife increasingly neglected family activities and responsibilities and
pursued a social life apart from her husband and her children. The record also reflects that, in March
1993, Ms. Maraschiello filed a complaint with the Fort Campbell Family Advocacy Program,
alleging physical and mental abuse by the appellant. Ms. Maraschiello subsequently submitted
affidavits to the Family Advocacy Program, drafted with the appellant’s assistance, recanting the
allegations.

In the summer or fall of 1993, the appellant received an honorable discharge from the
Army. Following his discharge, the appellant continued to serve in the United States Army Reserve
and also obtained employment with the Nashville Metropolitan Police Department. Psychological
evaluations performed in connection with the appellant’s application for employment with the police
department revealed no significant “psychopathologies,” although examining psychologists noted
“a defensive gruffness that bordered on anger” and “some adjustment problems and behavior traits
which cause [the appellant] difficulties in relating to others . . . .” Indeed, while attending the police
academy, the appellant was the subject of several disciplinary actions. Moreover, following the

1
The appellant apparently served with some distinction during the Persian Gulf War, earning
both the Air Medal and the Bronze Star Medal.
2
The appellant testified at trial that, several months prior to the murder, he spoke with Ms.
Maraschiello’s ex-husband and became convinced that his wife had lied about the rape and feigned
psychological problems in order to manipulate him.

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appellant’s graduation from the police academy, his training officers noted that the appellant resisted
following orders and had difficulty drafting objective incident reports. Master Patrol Officer James
Sullivan explained that the appellant was
constantly argumentative about anything that you tried to teach him.
He had his own ideas of how things should be done even though they
might not have been to departmental standards or anybody else’s
standards. . . . He wouldn’t accept any type of criticism or any type
of supervision.
The police department terminated the appellant’s employment in 1994.

Subsequently, the appellant was unable to maintain steady employment, and the
Maraschiellos’ precarious financial circumstances created additional tensions between the appellant
and his wife. Ultimately, on October 28, 1994, Ms. Maraschiello initiated divorce proceedings in
the Davidson County Circuit Court. On October 29, 1994, the appellant in turn filed a petition for
an order of protection in the Davidson County General Sessions Court, alleging that his wife had
previously threatened to kill him and that she owned a .25 caliber pistol. Finally, on November 1,
1994, the appellant’s eldest daughter reported to school authorities that the appellant had been
sexually abusing her. Detective Steve Cleek of the Nashville Metropolitan Police Department
recounted at the appellant’s trial that he investigated the allegations in conjunction with the
Tennessee Department of Human Services3 but discontinued the investigation on January 4, 1995,
due to insufficient evidence.

Following the initiation of divorce proceedings and the child sexual abuse
investigation, Ms. Maraschiello moved with her daughters from the Maraschiellos’ Nashville
residence to a trailer located in Clarksville, in Belle Glade Trailer Park. Ms. Maraschiello refused
to divulge her address to the appellant. Moreover, on December 15, 1994, the Davidson County
Circuit Court ordered that a restraining order “remain in place as to both parties which shall restrain
both parties from in any way harassing each other or from in any way physically assaulting each
other or making threats of violence to each other.” However, due to “insufficient competent proof
. . . of child sexual abuse,” the court granted the appellant unsupervised visitation with his daughters
on alternate weekends.

At his trial, the appellant denied abusing his children. He further stated his belief that
his wife had forced his eldest daughter to accuse him of sexual abuse. According to the appellant,
his wife was herself abusing the children, sexually and otherwise. Additionally, the appellant
believed that his wife was unfaithful to him during their marriage. These beliefs prompted the
appellant’s decision to murder his wife and “rescue the children.”

In January of 1995, the appellant approached an acquaintance, Timothy Winston, and
offered to pay him ten thousand dollars if he would assist the appellant in murdering Ms.

3
In 1996, the Department of Human Services was replaced by the Department of Children's
Services. See Tenn. Code Ann. § 37-5-101 (1996).

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Maraschiello. Mr. Winston agreed, whereupon the appellant paid him five thousand dollars, and the
two conspirators began to formulate a plan.4 On February 1, 1995, the appellant purchased the
murder weapon, a Mossberg “.12 gauge pump shotgun,” removing the serial number with a drill and
“shortening the stock and barrel length.” On February 9, 1995, the appellant stole a “Ford LTD four-
door” vehicle, which he planned to use for transportation during the commission of the murder. He
additionally stole a license plate from another vehicle and affixed the license plate onto the stolen
Ford. Finally, anticipating the need to destroy the stolen Ford following the murder, the appellant
prepared two incendiary devices, consisting of “M80 firecrackers” and fuses attached with duct tape
to bottles of gasoline. The appellant also attached “military heat tablets” to the sides of the bottles.5

On the night of February 16, 1995, the appellant placed the shotgun, ammunition,
binoculars, a “scanner” capable of monitoring Clarksville police radio frequencies, and the
incendiary devices into the stolen Ford and drove to the Queen City Barber College in Clarksville,
where Ms. Maraschiello was employed. The appellant was wearing a “pony tail wig” and a ski
mask. Mr. Winston followed the appellant in a Peugeot station wagon. Mr. Winston was also
carrying a police scanner in his vehicle in addition to a change of clothing for the appellant.

The appellant and Mr. Winston approached the barber college at approximately 10:00
p.m. and observed Ms. Maraschiello driving out of the parking lot. They began to follow her, but
Mr. Winston soon became separated from both the appellant and his wife. The appellant, however,
successfully followed Ms. Maraschiello to the Belle Glade Trailer Park.

Several people, including Ms. Maraschiello’s roommate, Linda Hubenthal, and Ms.
Maraschiello’s boyfriend, Tommy Piper, were inside Ms. Maraschiello’s trailer, awaiting her return
from work. The Maraschiellos’ daughters were asleep in a rear bedroom of the trailer. Ms.
Hubenthal and Mr. Piper heard Ms. Maraschiello arrive home and attempt to open the front door of
the trailer. However, the security chain was fastened. Accordingly, Ms. Hubenthal went to the front
door to unfasten the chain. Mr. Piper testified at trial that, before Ms. Hubenthal could unfasten the
chain, someone outside said, “[W]hat the hell do you want.” Mr. Piper then heard loud noises that
“sounded like fireworks going off.” Several bullets penetrated the front door and the walls of the
trailer, and Mr. Piper observed “some stuff fly past [his] face.” During the shooting, Ms. Hubenthal

4
The appellant confessed to police that he hired Mr. Winston to assist him in murdering his
wife. At trial, in contrast, the appellant denied that Mr. Winston participated in the planning and
execution of the murder. The appellant did admit that, upon his discharge from the Army, he
received a substantial amount of “separation pay.” Moreover, he admitted that, on November 2,
1994, he cashed a check amounting to $2,700 and that, prior to the murder, he used a credit card
issued by Nations Bank of Delaware to obtain large cash advances. However, he explained that he
was paying an attorney to represent him in the pending divorce proceedings. Moreover, he asserted
that, at some point, he was denied access to his bank accounts due to the divorce proceedings.
5
A military heat tablet is a “small compressed block of fuel” that military personnel employ
in the field in order to heat their food.

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and Mr. Piper overheard Ms. Maraschiello screaming for help.

In a statement to the police, the appellant recalled that,
when [my wife] pulled into . . . [her] driveway, I pulled in behind her,
T-style. I got out with the shotgun and followed her to the porch,
aimed the shotgun and pulled the trigger and it delayed for a second
before discharging. The first shot missed and hit the door. I then
shot her three or four more times. I was at a distance of about fifteen
feet.
Ms. Maraschiello died as a result of shotgun wounds to the head, chest, and abdomen. Dr. Charles
Warren Harlan, an expert in forensic pathology, opined at the appellant’s trial that a shotgun wound
to Ms. Maraschiello’s abdomen was inflicted from a distance of ten (10) or twenty (20) feet. A
shotgun wound to Ms. Maraschiello’s chest was inflicted from a distance of six (6) feet or less.
Finally, the shotgun wound to Ms. Maraschiello’s head, involving the removal of the left frontal lobe
of her brain, appeared to be a “contact wound,” inflicted when the muzzle of the shotgun was in
contact with Ms. Maraschiello’s skin.

Following the murder, the appellant drove in the stolen Ford toward the exit of the
trailer park, encountering Mr. Winston in the Peugeot station wagon at an intersection inside the
trailer park. Mr. Winston followed the appellant to Frost Auto Alignment in Clarksville. At Frost
Auto Alignment, the appellant parked the stolen Ford and, positioning the incendiary devices inside
the vehicle, ignited one of the devices. The appellant then got into Mr. Winston’s Peugeot, and the
two began to drive toward Nashville. Inside Mr. Winston’s vehicle, the appellant changed into clean
clothing. Moreover, during their somewhat circuitous trip from Clarksville to Nashville, at various
points along Interstate 24, Highway 12, and Highway 49, the appellant threw out of his window
various incriminating items, including the clothing that he wore during the murder.

At approximately 11:00 p.m., Mr. Winston and the appellant were traveling toward
Nashville on Highway 41-A at an excessive rate of speed, when Trooper Timothy Hale Dover with
the Tennessee Highway Patrol conducted a traffic stop of their vehicle. Deputy Randall Anderson
with the Cheatham County Sheriff’s Department assisted in conducting the stop. The Clarksville
Police Department had not yet issued a “BOLO” or “be on the lookout” for the appellant.
Accordingly, after checking Mr. Winston’s driver’s license with the National Crime Information
Center ("NCIC") and issuing Mr. Winston a traffic ticket, Trooper Dover allowed both him and the
appellant to depart.

After the traffic stop, Mr. Winston and the appellant drove to the Sycamore Creek
Bridge on Highway 49. At the bridge, the appellant removed the barrel from the shotgun that he had
used to murder Ms. Maraschiello. Next, while Mr. Winston waited in the car, the appellant threw
the remaining components into the creek. However, before the appellant could return to the Peugeot,
Deputy Anderson, who was en route to his home in Ashland City, approached the bridge, and Mr.
Winston began to drive away.

Deputy Anderson stopped his vehicle on the bridge and asked the appellant what he

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was doing. The appellant explained that he had asked his friend to stop their vehicle, because he
needed to “relieve himself.” He added that, while he was outside the vehicle, his friend had jokingly
driven away. The appellant asked the deputy to pursue Mr. Winston and instruct him to return to
the Sycamore Creek Bridge. As he initiated pursuit, the deputy radioed Trooper Dover and asked
that he drive to the bridge and further question the appellant.

Upon arriving at the Sycamore Creek Bridge, Trooper Dover observed the appellant
walking alongside the road approximately three hundred feet from the bridge. The trooper stopped
his vehicle, requested the appellant’s identification, and asked the appellant what he was doing. The
appellant gave his driver’s license to Trooper Dover and repeated the story that he had told Deputy
Anderson. Trooper Dover recalled at trial that the appellant was
just kind of . . . joking . . . , like his buddy had ran off and left him
just to be messing around with him. . . . [H]e wasn’t combative or
anything and he cooperated totally at that particular point.

Meanwhile, Deputy Anderson had succeeded in detaining Mr. Winston. In contrast
to the appellant, Mr. Winston informed the deputy that the appellant was a hitchhiker whom he had
picked up in Clarksville and that he had left the appellant on the bridge in order to “get rid of him.”
Subsequently, Mr. Winston admitted that he had in fact known the appellant for several years. The
deputy again radioed Trooper Dover, informed the trooper of his and Mr. Winston’s location, and
asked that the Trooper transport the appellant to their location.

Upon the arrival of Trooper Dover and the appellant, Deputy Anderson checked the
appellant’s driver’s license with the "NCIC." Again, the Clarksville Police Department had not yet
issued a “BOLO” for the appellant. Accordingly, the officers allowed Mr. Winston and the appellant
to depart once more. At the appellant’s trial, Deputy Anderson recalled that, during this second
encounter with Mr. Winston and the appellant, he noticed a .12 gauge shotgun barrel lying in the rear
of the Peugeot.

Soon thereafter, the Clarksville Police Department issued a “BOLO” for the appellant
on the basis of a preliminary investigation of Ms. Maraschiello’s murder. Specifically, Detective
Allan Charvis of the Clarksville Police Department had learned that the appellant and Ms.
Maraschiello had been engaged in a “heated divorce” involving numerous “altercations” and that
Ms. Maraschiello had been “hiding” from the appellant. The detective additionally ascertained that
the appellant had recently been accused of sexually abusing his daughter and had been angered by
the accusation. Finally, immediately following the issuance of the “BOLO,” Trooper Dover and
Deputy Anderson notified Detective Charvis that they had encountered the appellant and Mr.
Winston in Cheatham County, en route from Clarksville to Nashville, soon after the murder.6

6
Later that night, the officers also informed Detective Charvis that they had observed the
barrel of a shotgun inside Mr. Winston’s Peugeot. It is unclear from the record, however, whether
the information concerning the shotgun barrel was conveyed to Detective Charvis prior to the
appellant’s arrest.

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 Detective Charvis relayed the above information and details concerning Ms.
Maraschiello’s murder to Detectives Mason and West of the Nashville Metropolitan Police
Department, who additionally discovered that the appellant had previously been employed by their
department as a police officer. Detectives Mason and West then proceeded to the appellant’s
Nashville residence in order to determine whether the appellant was present. Their first visit was
unsuccessful. However, they returned to the appellant’s residence at approximately 1:00 a.m. At
this time, Detective Mason understood, erroneously, that a warrant was currently being issued for
the appellant’s arrest.

When the detectives approached the appellant’s residence a second time, they
observed a light inside the house, indicating the possible presence of the appellant. Accordingly, the
detectives requested additional assistance. Three uniformed officers quickly arrived at the
appellant’s residence and positioned themselves strategically around the house. The detectives then
approached the appellant’s front door and knocked on the door. The appellant eventually responded
to the detectives’ knock, asking the detectives through the closed door to identify themselves.
Detective Mason responded that they were police, and the appellant “need[ed] to open the door and
talk to [them].” When the appellant opened the door, Detective Mason ordered the appellant at
gunpoint to step onto the porch and lie down on the ground. The appellant complied with the
detective’s order, and the detective handcuffed the appellant’s hands behind his back. Upon inquiry,
the appellant indicated that he was alone and refused the detectives permission to search his home
for Mr. Winston. Nevertheless, several officers briefly and unsuccessfully searched the appellant’s
residence for the second suspect.

At the time of the appellant’s arrest, the temperature outside was “sub-zero” or “sub-
freezing.” Accordingly, the officers brought the appellant into his living room and seated him on
the couch. Approximately twelve minutes after the appellant’s arrest, Detective E.J. Bernard of the
Nashville Metropolitan Police Department arrived at the appellant’s residence.7 Detective Bernard
advised the appellant that his wife had been killed and also advised the appellant of his Miranda
rights. The appellant refused to provide a statement and expressed his desire to consult with an
attorney.

Following the appellant’s invocation of his Miranda rights, Clarksville Detective
Charvis arrived at the residence, accompanied by Sergeant Michael Lee Parr, also an officer with
the Clarksville Police Department. The Clarksville officers briefly conferred with the Nashville
officers, whereupon Detectives Charvis and Mason left the residence in order to obtain a warrant to
search the appellant’s house. Detective Bernard and Sergeant Parr also left the residence in order
to search for Mr. Winston.

Meanwhile, the appellant, his hands still handcuffed behind his back, remained under
guard on the couch in his living room. The heating system inside the house was apparently

7
Detective Bernard apparently knew the appellant, having met him during the appellant’s
brief tenure with the police department.

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malfunctioning, and the temperature inside was approximately forty degrees (40°) Fahrenheit. The
appellant was wearing dark blue pants and a t-shirt. At the appellant’s request, the police
additionally provided the appellant with a button-down shirt. Moreover, the police offered the
appellant a blanket, which the appellant initially refused but later accepted. The appellant did not
otherwise request additional clothing or ask that he be moved to a warmer location. In fact, during
much of his wait, the appellant slept. His dog, a large, black Labrador Retriever, lay on the couch
beside him.

At approximately 2:00 a.m. or 2:30 a.m., Trooper Dover arrived at the appellant’s
residence and identified the appellant as one of two men he had encountered earlier in Cheatham
County. At approximately 5:00 a.m., Detectives Charvis and Mason returned to the residence,
having successfully obtained a search warrant. At the same time, Detective Bernard and Sergeant
Parr also returned, accompanied by Mr. Winston. The officers brought Mr. Winston inside the
house, but Mr. Winston quickly indicated that he preferred to wait outside. Accordingly, the officers
placed Mr. Winston inside a patrol car. The police, including Detective Bernard, then began to
execute the search warrant.

At this time, the appellant asked to speak with Detective Bernard. According to
Sergeant Daniel L. Ogren with the Nashville Metropolitan Police Department, the officer primarily
responsible for guarding the appellant in the early morning hours of February 17, the appellant’s
request was entirely unsolicited. Sergeant Ogren immediately notified Detective Bernard of the
request.

Detective Bernard approached the appellant and, at the appellant’s suggestion,
accompanied him to one of the bedrooms. In the bedroom, the appellant asked that the detective re-
handcuff him with his hands in front and also requested cigarettes. The detective acceded to these
requests and also reiterated that the appellant did not have to speak with the police and that the
appellant was entitled to an attorney. The detective then inquired whether the appellant still wished
to make a statement. The appellant asserted that he wished to make a statement and then asked,
“[W]hat should I do?” When the detective indicated that the appellant should tell the truth, the
appellant agreed but asked that he first be allowed to look at his Army uniform, which was hanging
on the door of a closet located in the basement. Detective Bernard agreed and proceeded with the
appellant to the basement, where the appellant gazed at his uniform for several moments. When the
detective inquired whether the appellant had intended to kill himself, the appellant did not respond
and merely “held his head down.” The appellant additionally looked at a flag belonging to his
former Army unit and a picture of his children. Finally, Detective Bernard and the appellant
returned to the bedroom.

In the bedroom, the detective again inquired whether the appellant wished to provide
a statement. The appellant responded, “Yes, sir, . . . I did it.” When the detective requested
clarification of the appellant’s statement, the appellant responded, “I killed her.” The detective then
asked the appellant questions concerning his commission of the murder. The detective recalled:
[E]verytime I would ask him something, [the appellant’s] reactions
were very, very slow. Sometimes when I would ask him a question,

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 he would stand there and he was smoking because I was giving him
cigarettes and I had no problem in doing that, it was his house. He
would look up at me and he would look down and he would continue
smoking his cigarette and would look up and it was sometimes as
long as ten minutes before I would get an answer, and I do mean ten
minutes because I looked at my watch. It was as if he was thinking
very, very carefully about what he was saying.
The detective observed that the appellant exhibited no remorse during the interview.

At approximately 6:00 a.m., the police left the appellant’s house with both the
appellant and Mr. Winston.8 The appellant informed the police that he had disposed of several
incriminating items in Cheatham County. Accordingly, they proceeded to the Cheatham County
Sheriff’s Department. While waiting for the Sheriff’s Department to disperse traffic from areas
within the scope of their search, the police provided the appellant with a cup of coffee. The police
and the detainees then drove to the Sycamore Creek Bridge on Highway 49 and recovered the
murder weapon from the creek. The appellant attempted to recall other locations, where he might
have thrown additional items of evidence. However, due to the appellant’s unfamiliarity with the
area, the ensuing search was largely unsuccessful. Afterwards, the appellant directed the police to
Frost Auto Alignment in Clarksville, where he had disposed of the stolen Ford. Finally, the police
drove the appellant and Mr. Winston to the Clarksville Police Department, stopping briefly along
the way to purchase food for the detainees. At the police department, the appellant provided a
written confession, which he signed at approximately 2:00 p.m. The police finally obtained a
warrant for the appellant’s arrest later on the same day.

On April 3, 1995, the appellant was indicted by a Montgomery County Grand Jury
for first degree murder, arson, possession of an explosive weapon, possession of a shotgun with an
altered serial number, and theft. Additionally, on September 28, 1995, the State notified the
appellant of its intent to seek a punishment of life imprisonment without parole for the offense of
first degree murder on the basis of the aggravating circumstance set forth in Tenn. Code Ann. § 39-
13-204(i)(3) (1994), that “[t]he defendant knowingly created a great risk of death to two (2) or more
persons, other than the victim murdered, during the act of murder.” The appellant’s case proceeded
to trial on March 17, 1997, concluding on March 21, 1997.

At trial, the State relied heavily upon the appellant’s statements to the police
following the murder. The appellant testified on his own behalf, again confessing that he killed his
wife. In defense, however, the appellant adduced testimony in support of the proposition that, prior
to the shooting and at the time of the shooting, he did not possess the capacity to form the requisite
mental state for first degree murder.

Specifically, the appellant presented testimony by Kevin Wilkinson, a pastor of the
First Christian Church in Hendersonville, Tennessee, and a captain in the Tennessee Army National

8
The appellant and Mr. Winston traveled in separate police vehicles.

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Guard. According to Mr. Wilkinson, he is also a dilettante or an amateur in the field of psychology.
Mr. Wilkinson testified that, at the request of the appellant’s parents, he visited the appellant in the
Montgomery County Jail on March 2, 1995, and spoke with the appellant for approximately two
hours. Mr. Wilkinson recalled that, during their interview, the appellant’s speech was “flighty,” i.e.,
the appellant “frequently departed from the stream of thought.” Additionally, the appellant appeared
to possess a “very, very tenuous, a very fragile connection with reality.” Mr. Wilkinson concluded
that the appellant was experiencing the “residual effects of a psychotic episode.” Moreover, Mr.
Wilkinson opined that the appellant was suffering “post battle phase.” Mr. Wilkinson described
“post battle phase” as
the time after battle has occurred when troops are given time to
intentionally reconstitute mentally, emotionally, physically,
psychically and to stabilize. . . . The symptomologies of people who
are not properly reconstituting . . . would be erratic behavior, manic
types of behavior, blood thirstiness, a desire to get back out on the
line. Sometimes it is indicated by fighting, sometimes it is indicated
by people who are simply withdrawn, what they called in World War
I, shell-shock, battle fatigue is what the term is now.

The appellant also presented the testimony of Dr. Pamela Auble, a clinical
psychologist. Dr. Auble examined the appellant on February 6, 1996, and on September 18, 1996,
and reviewed various records pertaining to the appellant, including records from the Middle
Tennessee Mental Health Institute, the Harriet Cohn Mental Health Center, the Veterans
Administration, the Army, the Nashville Metropolitan Police Department, and the Louisville,
Kentucky Police Department. According to Dr. Auble, the appellant was suffering from a delusional
disorder, post-traumatic stress disorder, and depression. She also noted “elements of a paranoid
personality structure.” She concluded that, due to the appellant’s delusional disorder, his
intent to commit . . . [the murder of his wife] was really on a false
data base. He - - what he believed and what was true were two
different things. So that Mr. Maraschiello was like living in a
nightmare. He thought that he could see how evil this other person
was and nobody else could see it. He acted as if - - he believes that
his beliefs were true. His beliefs were that his wife was someone who
was abusing and neglecting their children, sexually, physically, and
emotionally and that she was in essence, a prostitute. So his actions
were based on his belief that all that was true. As part of his
delusional disorder.
Dr. Auble conceded, however, that the appellant was not insane at the time of the instant offenses.
Moreover, Dr. Auble testified that, at the time of her interview with the appellant, he was competent
to stand trial.

Dr. William D. Kenner, a psychiatrist, also testified on behalf of the appellant. Dr.
Kenner testified that he interviewed the appellant on February 17 and 25, 1996, and reviewed
numerous records concerning the appellant, including Dr. Auble’s report. He concurred in Dr.
Auble’s conclusion that the appellant was suffering a delusional disorder. Specifically, he opined

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that the appellant was suffering from “conjugal delusions” or an “Othello syndrome.” The doctor
explained:
...Shakespeare’splay,Othello,inwhichhehasthisfellownamedDiago,whoisarottenappleinthebunchandDiagoistelling
Othello all these bad things about his wife and Othello believes him and ends up killing his wife.
In delusional disorder, the Diago is a part of the individual himself.
Dr. Kenner further described the appellant’s delusions and their impact upon his capacity to form
the requisite mental state for first degree murder:
[The appellant believed] that his wife was out to kill him, that she
was trying to abuse his children, sexually abusing his children. That
she was the devil herself. She was - - all involved in pornography in
terms of being photographed or something along those lines and that
she was involved in various affairs.
***
[On February 16, 1995,] . . . what happened was a sort of tragic
convergence if you will of his mental illness on the one hand and on
the other hand, the fact that he and his wife were having problems
probably in a large part as a result of his mental illness because
someone who develops this disorder is no fun to be with. I mean,
they are - - they are picky. They go for very small details, they are
accusatory. They have this tremendous amount of anger focused on
the other person and so it is really burdensome to have a relationship
with someone like this, so I would imagine that she was trying to get
away from him and his disordered way of thinking and interacting
with her so that she was trying to leave him at a time when he was
looking for evidence to prove his case that she was evil, that she was
killing, damaging him in that he actually committed this crime, not
with the ability to think logically about it. Even though so many of
the actions may have looked logical. The thinking process that was
the foundation for that action was severely distorted.
***
[I]t impacted on his ability to form intent in that his basis for his
action was defective and he was operating not with a full deck. It was
like he was playing poker and there were some jokers in the deck and
he was dealing with those jokers as if they were real face cards or
something. As though his wife was definitely out to kill him and she
was sexually abusing the children and all these horrible things.
Finally, noting the incidence of mental illness in the appellant’s family, Dr. Kenner opined that the
appellant likely possessed a genetic predisposition to develop a delusional disorder. Moreover, Dr.
Kenner observed that a delusional disorder is “more likely to occur in people who have gone through
some kind of stressor” and opined that the appellant’s military service in the Persian Gulf War could
have triggered his disorder.

In rebuttal, the State presented the testimony of Dr. Sam Craddock, a psychologist
employed by the Forensic Services Division of the Middle Tennessee Mental Health Institute.

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According to Dr. Craddock, the appellant was admitted to the institute at the beginning of July 1995
and was evaluated by the institute for approximately one month. On the basis of this evaluation and
on the basis of a social history compiled by Rebecca Smith,9 a psychiatric social worker employed
by the Forensic Services Division, Dr. Craddock diagnosed the appellant with a narcissistic
personality disorder. He conceded that psychological testing did not support his diagnosis but
further noted that the appellant’s responses to testing were inconsistent with his observations of the
appellant during the appellant’s stay at the institute. Dr. Craddock also opined that the appellant was
not insane at the time of the instant offenses, was competent to stand trial, and did not qualify for
commitment to a psychiatric hospital. He concluded that, at the time of the murder, the appellant
was capable of forming the requisite mental state for first degree murder. Rokeya Farooque, a
psychiatrist employed by the Forensic Services Division, concurred in Dr. Craddock’s opinion.
Moreover, she rejected Dr. Auble’s and Dr. Kenner’s diagnoses of a delusional disorder. She
explained that interviews with the appellant’s friends and family had revealed that the appellant’s
beliefs concerning his wife, as described by the appellant to the doctor, were based in reality.

At the conclusion of the trial, the jury convicted the appellant of the offenses charged
in the indictment.10 Immediately following the jury’s verdicts of guilt, the trial court conducted a
separate sentencing hearing in accordance with Tenn. Code Ann. § 39-13-204. At the conclusion
of the hearing, the jury imposed a sentence of life imprisonment for the offense of first degree
murder. Moreover, following a sentencing hearing on May 13, 1997, the trial court imposed a
sentence of two years incarceration in the Department for the offense of arson, two years
incarceration in the Department for the offense of possession of an explosive weapon, six months
incarceration in the Montgomery County Workhouse for the offense of possession of a shotgun with
an altered serial number, and six months incarceration in the workhouse for the offense of theft. The
trial court ordered consecutive service of the appellant’s sentences.

II. Analysis
a. The Appellant’s Confession
On appeal, the appellant first challenges the trial court’s denial of his motion to
suppress the State’s use at trial of his confession to the police. Specifically, the appellant challenges
the voluntariness of his confession and, in any event, contends that his confession was the fruit of
his unlawful arrest. The State, in turn, concedes that the appellant’s arrest violated the Fourth and
Fourteenth Amendments to the United States Constitution and Article I, Section 7 of the Tennessee
Constitution. However, the State asserts that the appellant voluntarily confessed to the murder of
his wife and that the connection between the unlawful arrest and the appellant’s confession was

9
Ms. Smith conceded at trial that, in compiling the appellant’s social history, she was not able
to review the appellant’s Army records.
10
A minor exception relates to the appellant’s theft of the Ford vehicle. Although the
indictment originally charged the appellant with theft of property worth more than one thousand
dollars ($1,000), the jury convicted the appellant of theft of property worth less than five hundred
dollars ($500).

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sufficiently attenuated to dissipate the primary taint of the unlawful invasion. Wong Sun v. United
States, 371 U.S. 471, 486, 83 S.Ct. 407, 416 (1963).

The trial court conducted a suppression hearing on March 14 and 15, 1996.
Following the hearing, the trial court concluded that the police had unlawfully arrested the appellant.
However, the court further noted that,
even though the arrest was illegal at that point, the statement made by
the defendant need not be suppressed if it is voluntary, under the Fifth
Amendment and there were sufficient intervening circumstances to
break the causal connection between the illegal arrest and a
confession, so that the confession is on its own sufficiently an act of
free will and thus, because it is an act of free will on its own, it purges
the taint created by the initial illegal arrest.
***
In other words, is the violation of the Fourth Amendment and the
illegal arrest resulting therefrom, so egregious that it affects the
otherwise voluntary statement under the Fifth Amendment given by
the Defendant.
The court concluded that the appellant’s confession was, indeed, voluntary and that the confession’s
connection with the unlawful arrest was sufficiently attenuated.

Preliminarily, we note that the appellant made more than one incriminating statement
to the police. The appellant’s argument on appeal focuses exclusively upon the circumstances of his
initial statement to Detective Bernard at the appellant’s residence. Our discussion will similarly
focus upon the appellant’s initial statement. On the one hand, if the initial statement was involuntary
or the fruit of an unlawful arrest, the ensuing statements were likely the result and the fruit of the
first. “[H]aving ‘let the cat out of the bag’ does not automatically vitiate [the voluntariness]” of a
subsequent confession nor, under the “fruit of the poisonous tree” doctrine, preclude the admission
of the subsequent confession. State v. Crump, 834 S.W.2d 265, 271-272 (Tenn. 1992)(citing State
v. Smith, 834 S.W.2d 915, 919 (Tenn. 1992)). However, the provision of one incriminating
statement does bolster the pressures to provide a second or “at least vitiate any incentive . . . to avoid
self-incrimination.” Brown v. Illinois, 422 U.S. 590, 605 n.12, 95 S.Ct. 2254, 2262 n.12 (1975).
See Crump, 834 S.W.2d at 272 (under the Tennessee Constitution, there is a rebuttable presumption
that an illegally obtained confession will taint any subsequent confession). On the other hand, if the
initial statement was admissible at the appellant’s trial, the appellant does not argue that the
subsequent statements were otherwise inadmissible. Moreover, if the initial statement was
admissible, any error by the trial court in admitting the ensuing statements was harmless beyond a
reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828 (1967). See also
Arizona v. Fulminante, 499 U.S. 279, 310-312, 111 S.Ct. 1246, 1265-1266 (1991).

With respect to the appellant’s initial statement, a determination of whether a
confession satisfies the Fifth and Fourteenth Amendments to the United States Constitution and
Article I, Section 9 of the Tennessee Constitution logically precedes any attenuation analysis under
the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 7

-13-
of the Tennessee Constitution. Obviously, if a confession is inadmissible pursuant to the former
constitutional provisions, a court need not determine whether the confession is additionally the fruit
of some other illegality.

The Fifth and Fourteenth Amendments to the United States Constitution and Article
I, Section 9 of the Tennessee Constitution protect an accused’s right against compelled
self-incrimination. State v. Blackstock, No. E1994-00004-SCR-11-CD, 2000 WL 358624, at *6
(Tenn. at Knoxville, April 10, 2000)(citing State v. Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994)).
Moreover, in Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612 (1966), the United States
Supreme Court held that the Fifth and Fourteenth Amendments’ proscription against compelled self-
incrimination requires that any interrogation of a suspect in custody be preceded by advice that he
has the right to remain silent, that any statement that he makes may be used against him in court, and
that he has the right to consult with an attorney, whether retained or appointed, and have the attorney
present during any questioning. In other words, a constitutional waiver of the right against
compelled self-incrimination requires the accused to make a knowing, intelligent, and voluntary
waiver of the rights afforded by Miranda. State v. Ashworth, 3 S.W.3d 25, 31 (Tenn.Crim.App.
1999).

At a suppression hearing, the State has the burden of proving a valid waiver of
Miranda rights by a preponderance of the evidence. State v. Bush, 942 S.W.2d 489, 500
(Tenn.1997). In other words, the State must establish that a defendant’s waiver of Miranda rights
was
voluntary in the sense that it . . . [was] the product of a free and
deliberate choice rather than the product of intimidation, coercion or
deception. Moreover, the waiver must . . . [have been] made with full
awareness of both the nature of the right being abandoned and the
consequences of the decision to abandon it.
Stephenson, 878 S.W.2d at 544. See also Blackstock, No. E1994-00004-SCR-11-CD, 2000 WL
358624, at *6. Courts look to the totality of the circumstances when determining whether an accused
has made a knowing, intelligent, and voluntary waiver. State v. Callahan, 979 S.W.2d 577, 581-582
(Tenn. 1998). On appeal, the determination by a trial court that a defendant executed a valid waiver
is binding upon this court unless the appellant can demonstrate that the evidence preponderates
otherwise. State v. Carter, 988 S.W.2d 145, 149 (Tenn. 1999); State v. Odom, 928 S.W.2d 18, 22-23
(Tenn. 1996). See also Blackstock, No. E1994-00004-SCR-11-CD, 2000 WL 358624, at *8.

If an accused declines to waive the rights afforded by Miranda and “expresse[s] his
desire to deal with the police only through counsel, [he may not be] . . . subject[ed] to further
interrogation by the authorities until counsel has been made available to him, unless the accused
himself initiates further communication, exchanges, or conversations with police.” Edwards v.
Arizona, 451 U.S. 477, 484, 101 S.Ct. 1880, 1884-1885 (1981). See also Stephenson, 878 S.W.2d
at 545. “Interrogation” encompasses any “practice that the police should know is reasonably likely
to evoke an incriminating response from a suspect . . . .” Rhode Island v. Innis, 446 U.S. 291, 301,
100 S.Ct. 1682, 1690 (1980). A trial court’s determination of whether an accused was subjected to
police interrogation involves questions of both fact and law and is reviewed de novo by the appellate

-14-
courts. See, e.g., State v. Land, No. M1999-01023-CCA-R3-CD, 2000 WL 678787, at *4 (Tenn.
Crim. App. at Nashville, April 28, 2000).

In the absence of interrogation, the Fifth and Fourteenth Amendments do not prohibit
police from “merely listening to a defendant’s voluntary, volunteered statements and using them
against him at trial.” Edwards, 451 U.S. at 485, 101 S.Ct. at 1885. This is true even when the
statement is volunteered by an accused who is in custody and has previously asserted his right to
remain silent or his right to counsel. 2 WAYNE R. LA FAVE, ET AL., CRIMINAL PROCEDURE § 6.7(d),
at 566 (West Group ed., 2d ed. 1999). Of course,
[i]f, as frequently would occur in the course of a meeting initiated by
the accused, the conversation is not wholly one-sided, it is likely that
the officers will say or do something that clearly would be
“interrogation.” In that event, the question would be whether a valid
waiver of the right to counsel and the right to silence had occurred,
that is, whether the purported waiver was knowing and intelligent and
found to be so under the totality of circumstances, including the
necessary fact that the accused, not the police, reopened the dialogue
with the authorities.
Edwards, 451 U.S. at 486 n. 9, 101 S.Ct. at 1885 n.9. See also Oregon v. Bradshaw, 462 U.S. 1039,
1044-1045, 103 S.Ct. 2830, 2834 (1983)(plurality opinion).

As previously noted, the appellant in this case was advised concerning his Miranda
rights approximately twelve minutes following his arrest and immediately invoked his rights,
declining to provide a statement to the police and requesting an attorney. Four hours later, the
appellant asked to speak with Detective Bernard and confessed to the murder of his wife.
Significantly, the appellant does not explicitly argue in his brief that he was subjected to
“interrogation” during the interval between his invocation of Miranda rights and his request to speak
with Detective Bernard, nor do we believe that the record reflects any activity by the police during
this interval that the police should have known was likely to evoke an incriminating response from
the appellant. Innis, 446 U.S. at 301, 100 S.Ct. at 1690.

Thus, we reject any implication in the appellant’s brief that the police placed the
appellant in uncomfortable circumstances in order to elicit a confession or should otherwise have
anticipated a confession due to the circumstances of the appellant’s detention. Again, following his
arrest and invocation of his Miranda rights and prior to his request to speak with Detective Bernard,
the appellant was detained in his home for approximately four hours while the police procured a
warrant to search his home and sought the appellant’s accomplice. During this four-hour interval,
the appellant slept on a couch in his living room. Although the temperature in the house was
approximately forty degrees Fahrenheit (40°), the appellant never asked that he be moved to a
different location. Sergeant Ogren testified that he would have moved the appellant to a warmer
location had the appellant indicated any discomfort. The appellant did request and was provided a
button down shirt. Moreover, the police offered and the appellant ultimately accepted a blanket.
The police also permitted the appellant’s Labrador Retriever to lie on the couch with the appellant.
We do note that the appellant’s hands were handcuffed behind his back during his lengthy sojourn

-15-
on his couch, but apparently the handcuffs did not cause the appellant sufficient discomfort to
prevent him from sleeping. Indeed, the appellant did not request that the police change the position
of his hands until immediately prior to his confession.

The record does reflect that, during the four-hour interval, Trooper Dover identified
the appellant. Moreover, during the interval, the police apprehended the appellant’s accomplice, Mr.
Winston, and brought Mr. Winston to the appellant’s home. The disclosure of incriminating
evidence to a suspect, however, does not necessarily constitute interrogation within the meaning of
Innis. See, e.g., Shedelbower v. Estelle, 885 F.2d 570, 573 (9th Cir. 1989)(police officer’s comments
to a rape and murder suspect that his accomplice was in custody and that the surviving victim had
identified his photograph did not constitute interrogation); United States v. Vazquez, 857 F.2d 857,
938 (1st Cir. 1988)(“the disclosure of the fact that a suspected accomplice has been questioned is
[not] of sufficient moment to implicate Innis’ standard of ‘acts reasonably likely to elicit an
incriminating response’”). Compare Nelson v. Fulcomer, 911 F.2d 928, 935 (3rd Cir.
1990)(confronting a suspect with his or her alleged partner in crime and claiming that the partner has
confessed constitute “interrogation”). Moreover, while not determinative, there is no indication in
the record that the police engaged in these activities in anticipation of any response by the appellant.
Rather, the record reflects that the police were “engaged in activity calculated to produce evidence
against the defendant by other means . . . .” 2 LA FAVE, supra § 6.7(c), at 562. We conclude that the
police did not subject the appellant to interrogation during the four-hour interval between his
invocation of Miranda rights and his request to speak with Detective Bernard.

Indeed, the record is devoid of any evidence of coercive activity by the police prior
to the appellant’s confession. Absent coercive police activity, we must conclude that the appellant
voluntarily initiated a dialogue with Detective Bernard and confessed to the murder of his wife.
State v. Brimmer, 876 S.W.2d 75, 79 (Tenn. 1994); State v. Kelly, 603 S.W.2d 726, 728 (Tenn.
1980). See also State v. Phillips, No. E1999-01104-CCA-R3-CD, 2000 WL 336960, at *5 (Tenn.
Crim. App. at Knoxville, March 31, 2000).11 Moreover, even assuming that Detective Bernard,
following the appellant’s initiation of a dialogue, engaged in interrogation, the totality of
circumstances reflect the appellant’s knowing and intelligent waiver of his Miranda rights. The
appellant in this case possesses a college education and is a former captain in the United States
Army. Moreover, at the time of his arrest, the appellant had recently undergone training as a police
officer. Finally, as noted previously, the appellant was advised of his Miranda rights soon after his
arrest and was again advised of his right to remain silent and his right to counsel immediately

11
The appellant indicates in his brief that, prior to his arrest, he had been preparing to commit
suicide. Thus, the appellant hints that his mental condition rendered him more susceptible to police
coercion. Again, the record simply does not reflect any coercive police activity. Moreover, other
than Detective Bernard’s purely speculative testimony, the record does not indicate that the appellant
was suicidal. The appellant’s elaborate efforts to conceal his commission of the murder and the
absence of any weapons in his home suggest a contrary conclusion. Finally, testimony at trial
indicated that, to the extent the appellant was suffering from a mental disorder, the disorder rendered
him inflexible and resistant to any form of authority.

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following his request to speak with Detective Bernard.12

In sum, the admission into evidence of the appellant’s initial confession was
consistent with the Fifth and Fourteenth Amendments to the United States Constitution and Article
I, Section 9 of the Tennessee Constitution. We turn, then, to the question of whether the appellant’s
confession was the fruit of his unlawful arrest.

In Wong Sun, 371 U.S. at 488, 83 S.Ct. at 417 (citation omitted), the Supreme Court
noted that, in determining whether a confession is the fruit of a prior illegality, the “apt question .
. . is ‘whether, granting establishment of the primary illegality, the evidence to which instant
objection is made has been come at by exploitation of that illegality or instead by means sufficiently
distinguishable to be purged of the primary taint.’” Stated in another way, a court must determine
whether the confession was “sufficiently an act of free will to purge the primary taint of the unlawful
invasion.” Id. at 486, 416-417. At a suppression hearing, the State carries the burden of establishing
sufficient attenuation. Brown, 422 U.S. at 604, 95 S.Ct. at 2262; State v. Carter, 16 S.W.3d 762, 766
(Tenn. 2000); State v. Huddleston, 924 S.W.2d 666, 675 (Tenn. 1996).

In Brown, 422 U.S. at 603-604, 95 S.Ct. at 2261-2262, the Supreme Court listed
several factors pertinent to a trial court’s determination of whether the connection between an
unlawful arrest and a confession is sufficiently attenuated, including (1) the provision of Miranda
warnings; (2) the temporal proximity of the arrest and the confession; (3) the presence of intervening
circumstances; and (4) the purpose and flagrancy of official misconduct. See also Carter, 16 S.W.3d
at 766; Huddleston, 924 S.W.2d at 674-675; State v. Burtis, 664 S.W.2d 305, 308-309 (Tenn. Crim.
App. 1983). The Supreme Court emphasized that “[n]o single fact is dispositive . . . .” Brown, 422
U.S. at 603, 95 S.Ct. at 2261. On appeal, this court reviews de novo the trial court’s determination.
State v. Ford, No. M1999-01078-CCA-R3-CD, 2000 WL 502825, at *2 (Tenn. Crim. App. at
Nashville, April 27, 2000).

It is undisputed in this case that the appellant was advised of his Miranda rights
following his arrest and was again advised of his right to remain silent and his right to counsel
immediately prior to his confession. Of course, “Miranda warnings, alone and per se, cannot always

12
Interestingly, the appellant does not appear to argue in his brief that any mental ailment
impaired his ability to comprehend his Miranda rights and the consequences of his decision to waive
those rights. Moreover, we note that, although the record contains some evidence that the appellant
was suffering from a delusional disorder at the time of his arrest, Dr. Kenner’s testimony indicates
that the disorder would not have precluded the appellant’s knowing and intelligent waiver of his
Miranda rights. Specifically, Dr. Kenner testified that a delusional disorder only impairs a person’s
“thinking within that particular area . . . that has to do with their delusion.” In this case, to the extent
that the appellant was suffering a delusional disorder, his delusions related solely to his wife’s
behavior during their marriage. Indeed, the psychologists and psychiatrists who examined the
appellant unanimously observed that, notwithstanding any mental disease or defect, the appellant
was competent to stand trial.

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make the . . . [confession] sufficiently a product of free will to break, for Fourth Amendment
purposes, the causal connection between the illegality and the confession.” Brown, 422 U.S. at 603,
95 S.Ct. at 2261. Nevertheless, this factor weighs against suppression.

As to the temporal proximity of the arrest to the appellant’s confession, one noted
authority has observed that “temporal proximity is the ‘least determinative factor involved’ in the
Brown formula.” 3 LA FAVE, supra § 9.4(a), at 361 (footnote omitted). In any event, the four-hour
interval in this case between the arrest and the confession was insufficient to purge the confession
of the primary taint. See, e.g., Taylor v. Alabama, 457 U.S. 687, 690, 102 S.Ct. 2664, 2667
(1982)(an interval of six hours between an unlawful arrest and a confession will not purge the
primary taint). Accordingly, this factor weighs in favor of suppression.

As to the presence of intervening circumstances, a spontaneous, volunteered
statement can itself be a significant intervening circumstance. See, e.g., United States v. Houle, 620
F.2d 164, 166 (8th Cir. 1980); United States v. McQuagge, 787 F.Supp. 637, 663 (E.D. Texas 1992);
State v. Gonzales, 731 P.2d 1101, 1108 (Wash. App. 1986). In other words,
[w]hen a suspect volunteers a statement absent the pressures of
interrogation, . . . it is far . . . [from] clear that the law enforcement
officers have actively exploited the illegal arrest. In such a case, ‘the
illegal arrest merely provides the occasion of initial contact between
the police and the accused,’ and the deterrent effect of excluding such
a statement is doubtful.
McQuagge, 787 F.Supp. at 663 (citation omitted). We have already concluded that the appellant was
not subjected to interrogation prior to his initiation of a dialogue with Detective Bernard. We
likewise conclude that the appellant’s statement to the detective that, “I killed her,” was not the
product of interrogation and, therefore, was not “‘come at by exploitation of th[e] [primary]
illegality.’” Wong Sun, 371 U.S. at 488, 83 S.Ct. at 417 (citation omitted).13

Finally, the police conduct in arresting the appellant was neither purposeful nor
flagrant. In this regard, we note that it was at least arguable that the police possessed probable cause
to believe that the appellant had murdered his wife, and, indeed, the record reflects Detective
Mason’s belief that an arrest warrant was currently being issued.14 In other words, the appellant’s

13
In reaching this conclusion, we note that “a question which would clarify a prior ambiguous
statement (e.g., ‘did what?’ in response to ‘I did it’)” does not constitute interrogation. 2 LA FAVE,
supra § 6.7(d), at 567. Moreover, under the circumstances of this case, Detective Bernard’s
indication to the appellant that, if he intended to make a statement, he should tell the truth did not
constitute interrogation. See, e.g., State v. Clark, 377 S.E.2d 54, 60 (N.C. 1989)(“[e]ncouraging a
defendant to tell the truth, even after she has asked for a lawyer, does not constitute interrogation nor
its ‘functional equivalent’”).
14
Detective Mason correctly noted that he was not required to have the warrant in his
possession at the time of the arrest. Tenn. R. Crim. P. 4(d)(3).

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illegal arrest was more the result of miscommunication between the Clarksville Police Department
and the Nashville Police Department than the result of any “purposeful” misconduct. That having
been said, at the time of his arrest, the proof implicating the appellant in his wife’s murder was
purely circumstantial. Thus, while the police in this case did not merely arrest the appellant “in the
hope that something would turn up,” Taylor, 457 U.S. at 693, 102 S.Ct. at 2668, the appellant’s
arrest was clearly one component of a continuing investigation, Carter, 16 S.W.3d at 768.
Nevertheless, having considered all of the above factors, we conclude that the appellant’s confession
was not the fruit of his arrest and was admissible at his trial. This issue is without merit.

b. Testimony of Timothy Winston
Citing State v. Dicks, 615 S.W.2d 126 (Tenn. 1981), the appellant next contends that
the trial court committed reversible error in permitting the State to call the appellant’s accomplice,
Timothy Winston, to the witness stand in light of Mr. Winston’s stated intention to invoke his
privilege against self-incrimination. The State responds, in essence, that the appellant has failed to
demonstrate prejudice.

During the appellant’s trial, the State announced that it intended to call Mr. Winston
to the witness stand. Defense counsel immediately objected, stating that Mr. Winston had informed
her that he intended to invoke his privilege against self-incrimination. The prosecutor responded that
he was unaware of any authority prohibiting him from calling Mr. Winston to the witness stand
regardless of Mr. Winston’s intention. The prosecutor also noted that Mr. Winston had not indicated
to him that he intended to invoke the privilege.

Due to defense counsel’s objection, the trial court permitted the prosecutor to
question Mr. Winston outside the jury’s presence in order to determine his intention, whereupon Mr.
Winston confirmed that he intended to invoke his privilege against self-incrimination. Nevertheless,
the trial court permitted the State to examine Mr. Winston in the jury’s presence. The following
colloquy ensued:
Prosecutor: Please state your full name, sir.
Mr. Winston: Timothy Glenn Winston.
Prosecutor: Mr. Winston, where do you live?
Mr. Winston: 3104 River Drive.
Prosecutor: Is that in Nashville?
Mr. Winston: Yes.
Prosecutor: Where are you currently employed?
Mr. Winston: I am supposed to start work Monday
at United Stationary.
Prosecutor: Is that in Nashville too?
Mr. Winston: Yes.
Prosecutor: To my left, I think is seated, Michael
Maraschiello, wearing a gray suit; do
you know Mr. Maraschiello?
Mr. Winston: Yes.
Prosecutor: How long have you known Mr.

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 Maraschiello?
Mr. Winston: Based on counsel, I am going to take
the Fifth.
The Court: Mr. Winston, on advice of your
attorney, you are asserting your Fifth
Amendment privilege against self-
incrimination, is that correct?
Mr. Winston: Once again, Your Honor, based on
information that I was given from both
sides, and the information then
conflicting, yes.
The Court: And you wish to assert that privilege
with regard to any questions . . . that
either attorney might ask pertaining to
this case, is that correct, sir?
Mr. Winston: That’s correct.
At the time of his testimony, Mr. Winston was wearing “orange jailhouse clothes with Montgomery
County Jail on the back of his shirt and on the sides of his pants.”

In Dicks, 615 S.W.2d at 129, our supreme court noted the general principle that
neither a defendant nor the prosecution possesses the right to benefit from any inferences a jury may
draw from a witness’ assertion of his privilege against self-incrimination. Dicks, 615 S.W.2d at 129
(citing United States v. Johnson, 488 F.2d 1206, 1211 (1st Cir. 1973)); State v. Butler, 880 S.W.2d
395, 399 (Tenn. Crim. App. 1994). Consistent with this general principle, the prosecution “‘may
not deliberately call a witness closely identified with the defendant, knowing that the witness will
assert his right to remain silent.’” Busby v. Holt, 781 F.2d 1475, 1477 (11th Cir. 1986). The United
States Court of Appeals for the District of Columbia explained that, while a jury may believe that
a witness’ invocation of the privilege is of probative significance,
the probative value of the event is almost entirely undercut by the
absence of any requirement that the witness justify his fear of
incrimination and by the fact that it is a form of evidence not subject
to cross-examination.
Bowles v. United States, 439 F.2d 536, 541-542 (D.C. Cir. 1970).

Nevertheless, in Namet v. United States, 373 U.S. 179, 186-187, 83 S.Ct. 1151, 1154-
1155 (1963), the United States Supreme Court observed that “[n]one of the several decisions dealing
with this question suggests that reversible error is invariably committed whenever a witness claims
his privilege . . . [in the jury’s presence].” Rather, the Supreme Court noted that lower courts
consider several factors. Id. First, courts consider the presence of prosecutorial misconduct, i.e.,
whether the prosecutor made a conscious and flagrant attempt to build his case out of inferences
arising from invocation of the privilege. Id. Second, courts consider whether the witness’ refusal
to answer “added critical weight to the prosecutor’s case in a form not subject to cross-examination,
and thus unfairly prejudiced the defendant.” Id. See also Douglas v. State of Alabama, 380 U.S.
415, 418-420, 85 S.Ct. 1074, 1076-1077 (1965)(under the latter circumstances, the witness’ refusal

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to answer will violate the Confrontation Clause of the Sixth Amendment to the United States
Constitution, applicable to the states through the Fourteenth Amendment).

The two factors articulated above have subsequently been referred to as the “Namet
test.” See, e.g., United States v. Victor, 973 F.2d 975, 979 (1st Cir. 1992). In applying this “test,”
courts more specifically consider (1) the prosecutor’s intent in calling the witness; (2) the number
of questions which elicit an assertion of the privilege; (3) whether either side attempted to draw
adverse inferences, in closing argument or at any time during trial, from the witness’ refusal to
testify; (4) whether the inferences relate to central issues or collateral matters; (5) whether the
inferences constitute the only evidence bearing upon the issue or are cumulative of other evidence;
and (6) whether the trial court provided curative instructions. Id.; United States v. Crozier, 987 F.2d
893, 901 (2nd Cir. 1993).

Having considered the above guidelines, we conclude that the trial court erred in
permitting Mr. Winston to testify before the jury, but the error does not mandate reversal of the
appellant’s convictions. In reaching this conclusion, we acknowledge that, with the possible
exception of establishing Mr. Winston’s acquaintance with the appellant, the prosecution’s motive
in calling Mr. Winston to the witness stand was clearly the creation of an impermissible inference
that Mr. Winston’s testimony would be unfavorable to the appellant and would further establish the
appellant’s guilt of the charged offenses. This inference was underscored by Mr. Winston’s
appearance before the jury in a jail uniform. However, the inference was cumulative of other,
overwhelming evidence of the appellant’s guilt, including the appellant’s own statements to the
police and his testimony at trial. Moreover, the prosecutor in this case only asked a few, purely
preliminary questions prior to Mr. Winston’s invocation of his privilege against self-incrimination.
Finally, during the trial, including closing argument, the prosecutor otherwise refrained from
mentioning to the jury Mr. Winston’s invocation of the privilege. This issue is without merit.

c. Gulf War Syndrome
The appellant next contends that the trial court erred in excluding testimony
concerning “Gulf War Syndrome,” thereby “significantly impair[ing] the jury’s ability to accurately
assess his mental state and . . . [his] ability to form the intent necessary to commit first degree
murder.” The State responds that the disputed testimony was neither relevant nor admissible
pursuant to evidentiary rules governing the admission of expert testimony.

During his trial, the appellant proffered the testimony of Joyce Riley, a nurse,
“medical legal consultant,” and the Spokesperson for the American Gulf War Veteran’s Association.
The trial court conducted a hearing outside the presence of the jury, wherein Ms. Riley informed the
court that she had previously testified as an expert on Gulf War Syndrome and had also testified
concerning chemical and biological warfare before President Clinton’s Presidential Advisory
Commission. With respect to the instant case, she stated that she could not testify that the appellant
was suffering from Gulf War Syndrome but could testify generally concerning problems suffered
by veterans who had fought in the Persian Gulf War. Specifically, Ms. Riley stated that she had
interviewed “hundreds” of veterans of the Persian Gulf War and had examined reports issued by the
United States Senate and other evidence obtained from the federal government, including some

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documents pertaining to “scientifically controlled medical stud[ies],” which were the subject of “peer
review.” On the basis of the interviews and the government documents, she asserted:
[W]e are seeing chronic fatigue, muscle pain, joint pain, night sweats,
chest pain, headaches, extreme emotional ability - - they are not at all
having the same thought processes that they did prior to the Gulf
War. Many of them are divorcing, marital problems, and primarily
we are concerned - - I am concerned about the violent outbursts in
Gulf War Veterans since the Gulf War.
She noted that more than fifty percent (50%) of the veterans that she had interviewed and veterans
whose complaints of “concentration loss and memory loss and problems in thinking processes” are
recorded in government documents “have problems with emotional outbursts, violent behavior and
violent actions, that they are committing, that they never did prior to the Gulf War.”

At the conclusion of the hearing, the trial court declined to admit Ms. Riley’s
testimony pursuant to Tenn. R. Evid. 702, because Ms. Riley was unable “to relate her expertise to
the facts of this case.” The trial court additionally found that Ms. Riley’s testimony relied primarily
upon hearsay statements by veterans allegedly suffering from Gulf War Syndrome and was,
therefore, inadmissible under Tenn. R. Evid. 703.

Expert testimony regarding a defendant’s capacity or lack of capacity to form the
mental state required for the commission of an offense is admissible if it satisfies “general relevancy
standards as well as . . . evidentiary rules which specifically govern expert testimony.” State v. Hall,
958 S.W.2d 679, 689 (Tenn. 1997). In this regard, Tenn. R. Evid. 401 broadly provides that
“‘[r]elevant evidence’ means 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.” Even relevant evidence may be excluded, however, if its probative value
is “outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury .
. . .” Tenn. R. Evid. 403. Moreover, Tenn. R. Evid. 702 (emphasis added) requires that expert
testimony “substantially assist the trier of fact to understand the evidence or to determine a fact in
issue . . . ,” and the facts or data underlying the expert’s opinion must be “trustworthy,” Tenn. R.
Evid. 703. A trial court’s application of these rules to exclude expert testimony will not be reversed
on appeal absent an abuse of discretion. State v. Edison, 9 S.W.3d 75, 77 (Tenn. 1999).

We conclude that the trial court acted well within its discretion in excluding Ms.
Riley’s testimony. Despite her avowed expertise, Ms. Riley apparently did not interview the
appellant and did not propose to testify that symptoms described by the appellant were consistent
overall with “categorized” symptoms of Gulf War Syndrome. In order to be admissible, an expert’s
testimony must relate to the particular defendant on trial. See Meeks v. State, No. 01C01-9807-CC-
00295, 1999 WL 173972, at *4 (Tenn. Crim. App. at Nashville, March 30, 1999)(interpreting Hall,
958 S.W.2d at 691). Moreover, Ms. Riley did not indicate that, if the appellant were suffering from
Gulf War Syndrome, the syndrome would preclude his formation of the requisite mental state. Our
supreme court emphasized in Hall, 958 S.W.2d at 690, that “[i]t is the showing of a lack of capacity
to form the requisite culpable mental intent [due to a mental disease or defect] that is central to
evaluating the admissibility of expert psychiatric testimony on the issue.” (Emphasis in original).

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Accordingly, Ms. Riley’s testimony was, indeed, irrelevant, raised a significant danger of confusion
of the issues or misleading the jury, and did not satisfy the standard for admissibility of expert
testimony set forth in Tenn. R. Evid. 702.15 This issue is without merit.

d. Consecutive Sentencing
Finally, the appellant argues that the trial court erred in imposing consecutive
sentencing. The State once again disagrees with the appellant. This court’s review of the manner
of service of a sentence is de novo. Tenn. Code. Ann. § 40-35-401(d) (1997). In conducting its de
novo review, this court considers the following factors: (1) the evidence, if any, received at the trial
and the sentencing hearing; (2) the pre-sentence report; (3) the principles of sentencing and
arguments as to sentencing alternatives; (4) the nature and characteristics of the criminal conduct
involved; (5) evidence and information offered by the parties on enhancement and mitigating factors;
(6) any statement by the defendant in his own behalf; and (7) the defendant’s potential for
rehabilitation or treatment. Tenn. Code. Ann. § 40-35-102, -103 (1997), -210 (1994). See also State
v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The burden is upon the appellant to demonstrate the
impropriety of his sentence. Tenn. Code. Ann. § 40-35-401, Sentencing Commission Comments.
See also State v. Wilkerson, 905 S.W.2d 933, 934 (Tenn. 1995). Moreover, if the record reveals that
the trial court adequately considered sentencing principles and all relevant facts and circumstances,
this court will accord the trial court’s determination a presumption of correctness. Tenn. Code. Ann.
§ 40-35-401(d); Ashby, 823 S.W.2d at 169.

Tenn. Code Ann. § 40-35-115(a) (1997) provides that a trial court may impose
consecutive sentencing upon the determination that a defendant meets one of the criteria listed
therein. Moreover, if the trial court classifies a defendant as a dangerous offender pursuant to Tenn.
Code Ann. § 40-35-115(b)(4), the court must also find that the defendant’s sentence reasonably
relates to the severity of his offenses and is necessary in order to protect the public from further
criminal conduct by the defendant. Wilkerson 905 S.W.2d at 938. See also State v. Lane, 3 S.W.3d
456, 460-61 (Tenn. 1999).

In this case, the trial court found that the appellant is a dangerous offender. Tenn.
Code Ann. § 40-35-115(b)(4). However, the trial court failed to make the additional findings
required by Wilkerson, and its determination will not be accorded a presumption of correctness.
Nevertheless, pursuant to our de novo review, we conclude that the trial court properly imposed
consecutive sentencing.

First, we agree with the trial court that the circumstances of this offense amply
demonstrate that the defendant has little or no regard for human life and no hesitation about
committing a crime in which the risk to human life is high. Tenn. Code Ann. § 40-35-115(b)(4).
Indeed, the record reflects that, in murdering his wife, the appellant shot repeatedly through the front
door and walls of his wife’s trailer notwithstanding his certain knowledge of the possibility that his

15
Accordingly, we need not address whether the facts or data underlying Ms. Riley’s
testimony “indicate lack of trustworthiness” under Tenn. R. Evid. 703.

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two daughters were inside. Second, the aggregate length of the appellant’s sentences is without
question commensurate with the gravity of his offenses. Finally, although we have noted the need
for caution when relying totally upon the circumstances of the offenses in applying the public
protection requirement of Wilkerson, we conclude that the requirement has been satisfied in this
case. State v. Shipp, No. 03C01-9907-CR-00312, 2000 WL 290964, at **2-4 (Tenn. Crim. App.
at Knoxville, March 21, 2000). This issue is without merit.

III. Conclusion
For the foregoing reasons, we affirm the judgment of the trial court.

Norma McGee Ogle, Judge

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