IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JANUARY 1998 SESSION
March 18, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 01C01-9703-CC-00082
Appellee, )
) LEWIS COUNTY
VS. )
) HON. DONALD P. HARRIS,
GENE GRUZELLA, ) JUDGE
)
Appellant. ) (Mistreating a corpse)
FOR THE APPELLANT: FOR THE APPELLEE:
D. STUART CAULKINS JOHN KNOX WALKUP
212 E. Main St. Attorney General & Reporter
Franklin, TN 37064
ELIZABETH B. MARNEY
Asst. Attorney General
425 Fifth Ave., N.
Nashville, TN 37243-0493
JOSEPH D. BAUGH
District Attorney General
RONALD L. DAVIS
Asst. District Attorney General
P.O. Box 937
Franklin, TN 37065-0937
OPINION FILED:____________________
REVERSED AND DISMISSED
JOHN H. PEAY,
Judge
OPINION
The defendant was charged with unlawfully disposing of a corpse and with
mistreating a corpse. A jury acquitted him of the first offense but convicted him of the
latter. The defendant was subsequently sentenced to six years incarceration. In this
appeal as of right, the defendant challenges the sufficiency of the evidence and the
constitutionality of the statute which he was convicted of violating. Upon our review of
the record, we reverse the defendant's conviction and dismiss the charge against him.
The State's proof in this case was very limited. Larry Hensley, the Lewis
County Sheriff, testified that in January 1993 he had received a report that the
defendant's mother, Thora Foster, “had been missing sometime around November
[1992].” He and Don Schwendimann, an assistant district attorney, subsequently
interviewed the defendant about the whereabouts of his mother. Hensley testified that,
“first thing [the defendant] told us, he said she's in an illegal nursing home in Alabama.”
The defendant would not, however, tell the men where in Alabama. Hensley then
extended his investigation but found no trace of the missing woman.
Hensley testified that, some weeks later, the defendant had told him “that
she was real sick, she died, and he kept her a few days and he said he chopped her up
and burnt her, just a little at a time. . . . He piled up brush out in the front yard and set
it afire, poured gas on it, and that's the way he told us he did it.” Hensley further testified
that the defendant had shown him “two or three different spots, but we never did find any
bones or anything. . . . We found where he had piled up brush, and we found just black
places where he burnt a lot of brush. He probably had ten or twelve acres of ground that
he'd been clearing, and he piled up a bunch of brush.” On cross-examination, Hensley
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admitted that the TBI had been involved in the investigation of the burned areas, and that
they had found no trace of any human remains having been burned there. He also
admitted that the search of the trailers in which the defendant and his mother had lived
had yielded nothing that substantiated the defendant's statement.
Vanessa Bryan, an attorney with the public defender's office, testified that
she had been representing the defendant during the time that the investigation about his
mother's whereabouts was proceeding. She testified that he had told her to tell
Schwendimann “that his mother had died of natural causes and that he had burned her
body in the compost pile.” On cross-examination, she testified that the defendant had
not told her anything about having chopped up his mother's body.
Don Schwendimann also testified that, on his initial visit with the defendant,
the defendant had stated that his mother was “in an illegal nursing home in Alabama.
That was his word,