State of Tennessee v. Joseph A. Cundiff

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
January 12, 2016 Session

STATE OF TENNESSEE v. JOSEPH A. CUNDIFF

Appeal from the Criminal Court for Sumner County
No. 4272013 Dee David Gay, Judge
___________________________________

No. M2015-00563-CCA-R3-CD – Filed September 6, 2016
___________________________________

Defendant, Joseph A. Cundiff, was indicted by a Sumner County Grand Jury for
premeditated first degree murder of his wife and unlawful possession of a handgun by a
felon. After a jury trial, Defendant was found guilty of second degree murder.
Defendant pled guilty to unlawful possession of a weapon by a felon. The trial court
imposed concurrent sentences of twenty-five years for second degree murder and two
years for unlawful possession of a handgun by a felon. On appeal, Defendant argues that:
1) the trial court erred by denying his motions for judgment of acquittal; 2) the evidence
was not sufficient to support his second degree murder conviction; and 3) the trial court
erred in sentencing him to the maximum sentence for second degree murder. After a
thorough review, we affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and TIMOTHY L. EASTER, JJ., joined.

James J. Ramsey, Gallatin, Tennessee, for the appellant, Joseph Alan Cundiff.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Lawrence Ray Whitley, District Attorney General; and Lytle A. James, Assistant District
Attorney General, for the appellee, State of Tennessee.
 OPINION

Facts

State’s Proof

Officer Stephen Hughes of the Hendersonville Police Department testified that on
February 13, 2013, at approximately 10:00 p.m., he responded to a shooting call at
Defendant‟s home in Hendersonville. As he approached the front door of the residence,
Officer Hughes could hear a “male subject” screaming from inside the house. Officer
Hughes attempted to open the front door, but the screen door was locked. He then
“banged on the front door really loud” and identified himself as a police officer. Officer
Hughes testified that Defendant opened the front door, unlocked the screen door, and the
officer walked into the house. Officer Hughes immediately saw the victim, Ashlee
Miller, and he asked Defendant the whereabouts of the firearm. Defendant indicated that
the weapon was near the victim. Officer Hughes walked over to the victim, who was
lying on the floor in the middle of the room, to assess her condition. He testified that the
victim was “somewhat breathing” and making “gurgling noises.” “Her right hand was
placed up against the right side of her head with a cloth holding her head together. There
was significant damage to both the right and left side of victim‟s head.” She was
unresponsive to Officer Hughes‟ request to squeeze his hand with her left hand.
Officer Hughes again asked Defendant the whereabouts of the weapon, and Defendant
responded, “Somewhere over there.”

EMS personnel arrived at the residence, and Officer Hughes along with Sergeant
Kevin Folsom checked the residence to see if anyone else was there. Defendant indicated
that his children were next door. Officer Hughes and Sergeant Folsom continued looking
for the weapon but did not find it. Defendant had told them that the gun was a “silver
.357” but he did not know the make or model. Defendant also told the officers that he
and the victim were cleaning the gun and that the victim shot herself. Officer Hughes
noted that he saw a holster lying on the floor. Concerning Defendant‟s emotional state
Officer Hughes testified: “He was up and down. One minute, like I said, he could tell
me the firearm was a .357, silver revolver; the next minute he was crying and you
couldn‟t understand what he was saying.” Defendant said that the victim was sitting on
the couch when she was shot.

Sergeant Folsom of the Hendersonville Police Department testified that when he
walked into the residence, Defendant was lying on the floor in a “fetal position,”
screaming and yelling. Sergeant Folsom walked over to Defendant, got Defendant to
stand up, and checked him for wounds. He then walked outside with Defendant so that
EMS personnel could get into the house. Captain David Herrington, a first responder
2
with the Hendersonville Fire Department, testified that he was dispatched to the shooting.
When Captain Herrington arrived, he observed Defendant standing on the porch with a
police officer. He said that Defendant was emotional and distraught. The victim was
breathing when Captain Herrington went into the house to assess her condition.

Robert Watts, a former police officer and reserve officer, testified that he lived
next door to Defendant. On the night of February 13, 2013, sometime after 9:00 p.m.,
Mr. Watts heard a knock on the door. When he opened the door, Defendant was standing
there with his two children. Defendant told Mr. Watts that the victim had fallen and
struck her head. When Mr. Watts asked if Defendant had called for an ambulance,
Defendant replied, “No, not yet.” Mr. Watts told Defendant that he would watch the
children, and Defendant left. Mr. Watts noted that when he opened the door to let the
children inside, Defendant said that the victim‟s injury was bad and that Defendant could
“see her brains.” Mr. Watts also testified that Defendant had blood on him, and he
seemed upset. However, Mr. Watts listened to the 911 call and said that Defendant did
not sound anything like that when he talked to Defendant before the call was made. The
children were crying, and Mr. Watts and his mother attempted to calm them down after
Defendant left. Mr. Watts testified that at some point, he became concerned because the
ambulance had not yet arrived, and he called the police department.

Detective Christopher Gagnon of the Hendersonville Police Department testified
that he and Detective Steffy drove to the scene and spoke with the officers, including
Officer Hughes. Defendant was sitting on the front porch. Defendant told him that he
and the victim had the weapon out and that Defendant was cleaning it and “making it
look pretty, and the double action hammer was cocked back and it went off.” He
indicated that the victim was standing next to him when the weapon discharged.
Defendant gave verbal consent for the detectives to search the residence, but as Detective
Gagnon was completing a form for written consent, it was noticed that Defendant‟s
“mental state was debilitating.” Detective Gagnon stated:

It was apparent that between the first interaction that I had with him and
whenever we had gotten the consent to search form completed and he
was beginning to sign it, that he was - - there was something wrong. He
looked like he was becoming under the influence of something. So we
shut the scene down and stopped processing everything and went and got
a search warrant.

Detective Gagnon testified that he noticed a significant difference in Defendant‟s “motor
functions, as well as his speech.” He said that Defendant‟s “signature got to the point to
where it didn‟t even look like handwriting anymore.” Defendant had previously told

3
Detective Gagnon that he was not under the influence of anything. Detective Gagnon
testified that Defendant never indicated that the victim shot herself.

Detective Gagnon testified that he took Defendant‟s blood stained clothing, and
Defendant rode with him to the police station. On the way there, Defendant passed out in
the passenger seat. Detective Gagnon woke Defendant up when they arrived at the police
station, and Defendant walked into the interview room. Sergeant Vaughn then began
talking to Defendant. Detective Gagnon testified that during the interview:

It had gotten to the point to where at one point he was - - he wasn‟t able
to hold himself up. He was leaning forward or he‟d be in mid-sentence
and he would just stop talking. It was obvious that he was shutting down
- - whatever he was on was shutting down his ability to communicate,
much less hold himself up. He had some odd behavior.

Detective Gagnon testified that once it was realized that Defendant “had taken apparently
an extraordinary amount of medication,” he contacted the poison control center, and
Defendant was eventually taken by EMS personnel to the Hendersonville Emergency
Room (E.R.). Detective Gagnon rode in the ambulance with Defendant to the E.R.

Detective Gagnon testified that a search warrant of Defendant‟s person was
executed at 3:28 a.m. at the E.R. They took blood, pictures of Defendant‟s body, swabs
of his hands due to blood on them, and DNA swabs of Defendant‟s mouth. Defendant‟s
cell phone was also packaged and sent to the Tennessee Bureau of Investigation (TBI)
Crime Lab for analysis. Detective Gagnon testified that once the search was complete,
Defendant was sitting up in the bed, and he seemed to comprehend everything that was
going on around him.

Detective Gagnon spoke with Defendant who “was very clear and concise again
with his comments and very straightforward.” He noted that Defendant lost his
composure a couple of times and began crying. Defendant Gagnon testified that he read
Defendant his Miranda rights, and Defendant agreed to speak with him. Defendant
admitted that he and the victim had been arguing prior to the shooting. Detective
Gagnon stated:

I asked him about the gun itself and tried to have him elaborate on
exactly how things unfolded. He had stated that he was cleaning it;
stated he was cleaning it with a T-shirt. I was trying to figure out what
T-shirt he was cleaning it with. He didn‟t seem to know, but eventually
said that it was probably the T-shirt that he was wearing.

4
 He stated that he was cleaning the inside of the barrel the - - he said it
was open. I tried to have him elaborate on that. I asked him what was
open, and he kept referring to the cylinder. So I asked him if it was the
cylinder. He stated, yes, the cylinder was open; he was cleaning the
inside of the barrel. And he believed the hammer had been pulled back,
and the gun went off.

Detective Gagnon testified that he also attended the victim‟s autopsy. The
medical examiner gave him “samples from blood spotting, some hair, and some bullet
fragments.”

Detective Seneca Smith of the Hendersonville Police Department testified that she
was dispatched to Vanderbilt Hospital to photograph the victim‟s body and collect
evidence, including her clothing and fingernail scrapings.

Dr. Adele Lewis testified that she performed an autopsy on the victim. She
determined that the victim died from a gunshot wound to the left side of her head, and the
manner of death was homicide. She retrieved some bullet fragments from the victim‟s
brain. Dr. Lewis noted that the victim was pronounced dead on February 19, 2013.

Detective Sergeant Jim Vaughn of the Hendersonville Police Department testified
that he spoke with Defendant at the Hendersonville Police Department and that he
collected a gunshot residue kit (GSR) from Defendant because Defendant indicated that
he thought the gun went off in his hand. He noticed that one of Defendant‟s knuckles
appeared to be swelling. Sergeant Vaughn testified that Defendant mentioned something
about grilling hot dogs and that the argument between him and the victim had lasted over
the past two or three days. He saw scratches on Defendant, and one in particular on the
back of Defendant‟s neck. The parties stipulated that the scrapings taken from the
victim‟s fingernails was inconclusive of any DNA other than the victim‟s.

Sergeant Vaughn testified that while they were in the room to collect the GSR kit,
Defendant‟s “condition deteriorated rather rapidly during that time,” and Defendant was
later transported to the hospital. Sergeant Vaughn noted that Defendant‟s condition was
okay when he first walked into the room. He said, “I mean, he walked into the room.
And it deteriorated rapidly. Conversations were very, very hard to have. He would
literally nod off as he - - in mid-sentence.” Sergeant Vaughn asked Defendant about
injuries on his neck, and Defendant indicated that he and the victim had a disagreement.
Sergeant Vaughn testified that he “inferred” from Defendant that Defendant had shot the
victim, but Sergeant Vaughn did not testify what Defendant said that resulted in the
inference. The results of the GSR kit were inconclusive. Sergeant Vaughn testified that
the TBI Crime Lab report (stipulated to by the parties) contained the following: “These
5
results cannot eliminate the possibility that the individual could have fired, handled, or
was near a gun when it was fired.”

Sergeant Vaughn testified that Defendant told him that he had taken his “pill” that
day. Later on in the conversation, Defendant told Sergeant Vaughn that he had taken six
to eight Klonopin pills prior to the shooting, and he had taken approximately ten
Klonopin pills after the shooting. Defendant was then transported by ambulance to the
Hendersonville Medical Center Emergency Room.

Sergeant Vaughn testified that he went to Defendant‟s and the victim‟s home at
approximately 4:00 a.m. and assisted with executing a search warrant. He returned to the
scene on February 22, 2013, to assist the family in collecting some belongings. Sergeant
Vaughn noticed “what appeared to be a copper jacket or something beside the fish tank in
the living room.” He collected the bullet fragment for testing.

Detective David Harrell of the Hendersonville Police Department testified that he
obtained and executed the search warrant at the residence, and he assisted with the
collection of evidence and photographing the scene. Detective Harrell found a lead
fragment inside a towel in the living room. The fragment was sent to the TBI Crime Lab
for testing. He also found a Glock pistol box in the master bedroom. Detective Harrell
testified that at some point during the search, Detective James Garrett notified Detective
Harrell that “he had found a birthday bag with balloons on it with firearms inside”
located in the garage. There was a brown Carhartt garment on top of the bag. The
weapons included: a Ruger .357 Magnum revolver with four live rounds and one fired
shell casing in the cylinder, a loaded two-shot Derringer in a holster, and a Glock Model
22 .40 caliber semiautomatic pistol in a holster with a spare magazine on the holster. The
magazine and the spare magazine of the Glock were both loaded. Other items in the
birthday bag included loose ammunition for a .357 Magnum, a box of Winchester .40
caliber ammunition, a magazine loader for use on semi-automatic pistol magazines, and a
laser light for a pistol. There was also clothing, a camera, and a Motorola phone inside
the bag.

Special Agent Steve Scott, a forensic scientist with the TBI crime lab, Firearms
Identification Unit, testified that the copper bullet fragment found on the window sill in
the living room was fired from the Ruger revolver. He determined that a fired cartridge
case was also fired from the revolver. Special Agent Scott testified that three additional
bullet fragments were fired from the revolver. They appeared to all be from the same
bullet. Special Agent Scott testified that the bullet fragment taken from the victim‟s head
was also fired through the Ruger revolver. It was his opinion that only one bullet was
fired in the present case.

6
 Detective Gagnon was recalled as a witness. He testified that the two cell phones
recovered from the residence were sent to the TBI crime lab where their contents were
downloaded to a disc by Special Agent Howard Patterson. Detective Gagnon reviewed
the contents of the disc and said that some of the files alluded to previous “emotional
issues” of Defendant. He recalled some information on the disc regarding suicidal
tendencies of Defendant the week prior to the shooting.

Defendant’s Proof

Dr. Pamela Mary Auble, a psychologist, testified that she performs psychological
and neuropsychological evaluations “that are often used in legal cases.” She was
contacted to evaluate Defendant in this case. Dr. Auble saw Defendant two times and
spent a total of approximately seven hours with him. She reviewed Defendant‟s records
and interviewed him and his grandmother. Dr. Auble also performed some tests on
Defendant. She concluded that Defendant “was suffering from bipolar disorder, which is
a severe mental illness, and that he had had that disorder for many years.” Dr. Auble
testified that Defendant was first diagnosed as bipolar at the age of 14, and he had been in
and out of psychiatric hospitals. He also used illegal substances.

Concerning the present offense, Dr. Auble testified:

At the time that this occurred, that illness was very much present. He
was severely depressed. He had been in a psychiatric hospital less than
a month before that, and his medication had not really been stabilized
since then. He was very depressed; he was suicidal often.

He was considering being readmitted to the hospital for shock
treatments, which if you‟ve seen One Flew Over the Cuckoo’s Nest,
that‟s what‟s going on in those. It‟s a very - - it‟s a last resort treatment
for severe mental illness.

So, at the time of the offense, he was very, very depressed. It‟s my
opinion that that severe depression had a significant impact on him at the
time that this occurred.

It was Dr. Auble‟s opinion that Defendant‟s “mental illness” affected his ability to
“premeditate, to engage in reflection and judgment, to be free from excitement and
passion.” She testified that Defendant “mostly has said” the shooting was accidental and
that the “gun went off,” and the victim was killed. Defendant had also made couple of
statements indicating that there was an argument.

7
 Dr. Auble gave a review of Defendant‟s mental health history and treatment. Her
diagnosis of Defendant was as follows:

Bipolar disorder, bipolar I disorder; most recent episode, depressed,
severe. Anxiety disorder I have said is not otherwise specified, but there
is a reported history of post-traumatic stress disorder. He‟s also been
diagnosed with panic disorder. I felt that a cognitive disorder not
otherwise specified due to head injuries should be considered. And,
actually, given the school records, I think he does have a cognitive
disorder. I didn‟t know that originally, I didn‟t have those school
records until fairly recently.

He also has some substance abuse. He has cannabis abuse, anxiolytic
abuse - - that‟s Klonopin - - alcohol abuse, and opioid abuse - - that‟s
pain medications like Percocet and oxycodone. Those are in remission
at this point. He‟s not doing any of those now. He‟s is jail. They‟re not
available. So they‟re in remission due to incarceration.

Dr. Auble noted that “in 2012 - - late 2012, really 2013” Defendant had been
“awarded social security disability for a severe mental illness and chronic back pain.”
She testified that Defendant and the victim had been married for five years, and “they had
an up and down relationship.” Dr. Auble testified that Defendant was severely depressed
in 2013, and was in a psychiatric hospital. His medication was adjusted, and he was
released. Dr. Auble testified that his condition did not show much improvement, and he
saw Dr. Small on February 8, 2013. Defendant indicated that he was very depressed and
very anxious. Dr. Small increased the frequency of Defendant‟s medication. Defendant
began looking for someone to help with his children while the victim worked in the event
that Defendant was admitted to the hospital for shock treatments.

Dr. Auble testified that on February 13, 2013, Defendant was in a lot of pain, and
he took some narcotic pain medication. She stated that Defendant had previously been
attempting to decrease his pain medication which resulted in more pain. Dr. Auble
testified that Defendant had picked up some medication from Dr. Small on the morning
of February 13, 2013, and he took the medicine as prescribed that morning. She stated
that Defendant “may have taken it more in the afternoon.” Dr. Auble noted that
Klonopin affects memory, and Defendant had been taking it along with the narcotic pain
medication. She stated that Defendant‟s memory about what happened from the time the
victim came home from work until the time of the shooting was “patchy.” She said that
Defendant was not “sure what exactly happened.” Dr. Auble testified that Defendant
indicated that he had been wiping down a gun that he planned to sell because he had been
“suicidal” when it “went off” and a bullet struck the victim in the head.
8
 Dr. Auble‟s conclusion under the theory “espoused in the case of State v. Hall”
was that:

[A]t the time that this happened, he was suffering from mental disease,
bipolar disorder. He was severely depressed. He also had some anxiety.
There was some medication that was going on as well too; but, even
without that, he was severely, severely, depressed. It‟s going to be you-
all‟s decision if this was an accident or if it happened during an
argument.

* * *

Okay. If it happened during an argument, in the heat of an argument,
because of his severe mental disease, in an argument he would have
become very upset very easily. He‟s afraid of being abandoned, he‟s
suicidal, he feels hopeless, he‟s not sure if he‟s going to live or die. So
in the context of an argument, he would quickly have become in the state
of passion, in a very upset, distraught state.

If the shooting occurred while he‟s in the argument, it‟s going to be in a
state of passion. He would not have been capable of premeditation, of
reflection and judgment, of deliberation.

On cross-examination, Dr. Auble testified that she reviewed a summary of a
statement by Jennifer Bond, who indicated that the victim had told her in the months
preceding the shooting that Defendant told the victim that he would kill the victim if she
ever left him. Dr. Auble acknowledged that Defendant‟s version of events indicated that
he took three additional Klonopin pills after the victim picked up their son from school
and arrived home. Defendant said that he was in a lot of pain because he had been
decreasing his narcotic pain medication. Defendant also indicated to Dr. Auble that he
did not remember much about what happened from 4:00 p.m. until the victim was shot.
He did not recall arguing or fighting with the victim. Dr. Auble admitted that what
Defendant told her contradicted what he told law enforcement officers after the shooting.
Defendant told law enforcement that he and the victim had an argument over dinner, and
he remembered that his children were in the bedroom watching a Harry Potter movie.
Dr. Auble admitted that Defendant did not call 911 before taking his children to the
neighbor‟s house. Defendant also moved the victim‟s body to the floor and began
pouring water over her head. Dr. Auble was aware that all of the weapons were found in
a “Happy Birthday” bag in the garage. She admitted that Defendant had a chronic
problem with misusing pain medication.
9
 Dr. Keith Caruso, a forensic psychiatrist, testified that he interviewed Defendant
for three hours on August 1, 2014, and he reviewed medical and psychiatric records from
various providers. Dr. Caruso also reviewed evaluations by Drs. Auble and Phillips, text
messages, and “discovery provided by local law enforcement.” Dr. Caruso further
testified:

There were some civil matters where there were restraining orders
between the defendant and his wife filed against each other; witness
statements. There were reports from TBI labs, notes from investigators,
the crime scene video and photos, autopsy photos, toxicology reports, x-
rays, other hospital records, social security evaluations on the defendant.

And subsequent to preparing the report, I believe I‟ve also seen both the
discharge summary from his hospitalization of January 9th through 14th
of 2013 at Parthenon Pavilion, and I saw a progress notes from February
8 of 2013, by Dr. Small, who was a psychiatrist who had seen him both
on the inpatient service at Parthenon Pavilion and then saw him
subsequently in his office. I believe also there was another report from
Dr. Phillips that I saw.

It was Dr. Caruso‟s opinion that at the time of the offenses in this case, Defendant
“was unable to form the requisite mens rea for premeditated murder due to a severe
mental disease, bipolar I disorder, which led him to be in a major depressive episode at
that time.” Dr. Caruso testified that there was also “data” which indicated that Defendant
may have been “intoxicated on a drug called Klonopin” at the time of the shooting which
in his opinion would have impacted Defendant‟s mental state and rendered Defendant
unable to form the requisite mens rea for premeditated murder. Dr. Caruso noted that the
toxicology screen on Defendant after the shooting was positive for marijuana metabolites
and Klonopin and its metabolites. Defendant also had oxycodone levels that were at the
“maximal limit of the therapeutic range.” Dr. Caruso also noted that Defendant had
“time distortion,” which was often seen in someone who was intoxicated on marijuana.
Dr. Caruso‟s report contains the following concerning the shooting:

On February 13, 2013, at approximately 10:00 p.m., [Defendant] had
called 911 and tearfully reported that he had accidently shot his wife in
the head with a .357 Magnum.

His account at that time was they had been putting away their firearms
and he had not known that that one was loaded. She was unconscious at
that time, but could not be aroused, although she was still breathing.
10
 Dr. Caruso testified that Defendant had attempted suicide several times, and he
thought that Defendant had at least “12 psychiatric admissions.” He said that Defendant
also had panic disorder in addition to his bipolar disorder. Dr. Caruso testified that
Defendant had an addiction to marijuana, alcohol, opioid pain medications, and
medicines to treat anxiety. Defendant had also been treated with Ritalin as a child for
attention deficit hyperactivity disorder. Dr. Caruso testified that Defendant had been
given several different medications to treat his bipolar disorder, and he had also been
given several different medications to treat depression. Dr. Caruso also added that
Defendant may have had post-traumatic stress disorder previously “from abuse doled out
by his biological father when he was young.”

On cross-examination, Dr. Caruso testified that Defendant told him that he had
previously loaded the gun used to kill the victim because he planned to commit suicide
that day. However, he said that the victim and his children came home while he was
doing that, and he decided to “abort the attempt and that that led to him having the gun
loaded at the time the incident occurred.” It was Dr. Caruso‟s opinion that Defendant
was capable of formulating a plan to commit suicide on the day of the shooting because
he was severely depressed. He also agreed that Defendant was capable of making the
decision not to shoot himself once the victim and his children arrived home. Dr. Caruso
agreed that on the day of the shooting, Defendant got his prescriptions filled, and he
purchased Valentine‟s Day gifts for the victim and his children. Defendant indicated that
he had sold a firearm to a former co-worker that day. He also told Dr. Caruso that he had
been buffing the gun used in the shooting with a towel because someone else had
expressed interest in buying it. Defendant said that he forgot the gun was loaded from his
earlier suicide crisis and that it discharged striking the victim in the head.

Dr. Caruso agreed that after the shooting, Defendant took his children to the house
of a neighbor who was a police officer. He told the neighbor that the victim had fallen
and struck her head and that her brains were visible. Defendant then was able to form the
intent to dial 911. Defendant also formed intent to take the Klonopin. Dr. Caruso felt
that Defendant was suffering from a “major depressive episode almost continuously from
January all the way through the offense.”

Dr. William Watson, an expert forensic DNA analyst, testified that he reviewed
the TBI case report and any related notes, the document, the testing, and the data
generated in the present case concerning DNA. He did not examine the gun or perform
any independent testing. Dr. Watson testified that presumptive testing on the Ruger
revolver recovered from Defendant‟s house indicated the possible presence of blood.
The TBI report stated that the “partial DNA profile is consistent with a mixture. The
source is inconclusive.” The report further read: “The partial mix DNA profile
11
generated from the top of the frame [of the gun] is consistent with a mixture of [the
victim] and an inconclusive contributor.”

Presumptive testing on the bottom frame of the gun also indicated the possible
presence of blood. Further analysis generated a DNA partial profile consistent with a
mixture. Both Defendant and the victim “were not excluded.” Dr. Watson testified that
the TBI report indicated that the grip and hammer of the gun were also swabbed for
DNA. No further examination on those areas was performed. Dr. Watson testified that
the report reflected that the trigger of the gun was not swabbed. He concluded:

So we don‟t know who was handling, holding the grip, who might have
cocked the trigger - - cocked the hammer, excuse me. And then there
would be no way to determine whose finger was on the trigger at the
time the gun was - - at any point.

Dr. Watson testified that the report stated that DNA swabs from the living room
contained DNA profiles not belonging to Defendant or the victim.

On cross-examination, Dr. Watson testified that he was unaware that Defendant
had told Dr. Auble and Dr. Caruso that the gun discharged as he was wiping it off, killing
the victim.

State’s Rebuttal

On rebuttal, Dr. Sandra Phillips, a clinical psychologist with Volunteer Behavioral
Health and an expert in forensic psychology, testified that she began evaluating
Defendant on March 25, 2013, while Defendant‟s case was at the general sessions level.
She spent a total of four hours with Defendant over the course of three visits to determine
his competency to stand trial. She reviewed the affidavit of complaint and any
information received from both the defense and the prosecution. Dr. Phillips also
reviewed Defendant‟s social history. There was a court-ordered evaluation of Defendant
again in August of 2014. Dr. Phillips spent approximately “an hour and a quarter” with
Defendant during that visit.
During their first interview, Defendant told Dr. Phillips that life had been
“wonderful” prior to the shooting and that he and the victim had been communicating
better with each other and attending church together. He said that he had been receiving
disability payments for the previous eight months. Dr. Phillips testified that Defendant
told her that he still felt stressed, and he talked about his depression. Defendant
described himself as not often leaving the house, and he mostly lay in the bed all day and
all night. Defendant said that he did not sleep well, was not shaving much, and he had
not had a bath in approximately five weeks. Defendant told Dr. Phillips that the victim
12
had attempted to get him to go to the hospital to correct the dosage of his medication.
However, Defendant described the victim as very understanding. He said that he did not
feel well, and his appetite was poor. “He said he felt hopeless, lethargic, and just said it
was physically hard for him to get out of bed at all.”

Defendant told Dr. Phillips that the shooting took place on February 13, 2013, at
approximately 4:00 p.m. He indicated that there had been nothing unusual about the
night before. Defendant told Dr. Phillips that the victim left for work that morning, and
he drove their son to school. Defendant and his daughter then went to Target to pick up
his “mental health medication” that he had been without for a couple of days. Defendant
told Dr. Phillips that while he waited at the pharmacy, he purchased some candy and a
card for the victim for Valentine‟s Day. He and his daughter then went home and
watched cartoons. Defendant told Dr. Phillips that his anxiety level felt higher, and he
took his medication in the proper amount. He also stated that a friend stopped by his
house and purchased one of Defendant‟s guns for $250.00.

Defendant told Dr. Phillips that he took an OxyContin pill and another Klonopin
pill at the time the victim arrived home from work. He had also smoked a marijuana joint
earlier that morning. Defendant told Dr. Phillips that at some point he and the victim
took a bath and that he walked into the living room while the victim was sitting on the
couch. He said that he had a bath towel and was wiping off a gun. He told Dr. Phillips
that he could still hear the bath water draining from the tub. Defendant said that he felt
depressed and hopeless at that time but he was not angry. He told Dr. Phillips that the
gun discharged while the victim was sitting on the couch. Defendant claimed that the
gun was not supposed to be loaded. He had also told Dr. Phillips that he was not
supposed to own any guns, and he indicated that he was wiping his fingerprints off of the
weapon in the event that he sold it. Defendant said that he took the children to the
neighbor‟s house before calling 911 because he did not want them to be there when he
called, and he did not want them to see the police and ambulance there. Defendant told
Dr. Phillips that the children had been watching Harry Potter in the bedroom, and they
did not come out when the gun discharged. After taking the children to the neighbor‟s
house, Defendant said that he wrapped the victim in a towel and splashed water on her
face to wake her up but she did not respond.

Dr. Phillips reviewed Defendant‟s medication and noted that he reported smoking
marijuana for the past eight years, and he did not consider it to have any ill effects on
him. He thought that it was helpful to him. Defendant denied telling officers that he had
taken eight Klonopin pills prior to the shooting. He also denied that he had any alcohol
or any other intoxicant in his system at the time of the shooting. Defendant said that he
had no recollection of being at the Hendersonville Hospital after the shooting. During

13
their next interview, Defendant told Dr. Phillips that he had taken ten Klonopin pills and
two or three additional Oxycodone pills after the shooting.

Dr. Phillips testified that she diagnosed Defendant with bipolar disorder at the
time of the offense. She concluded that he was competent to stand trial. Dr. Phillips
further testified:

And my opinion was that at the time of the alleged offense he did suffer
from severe mental disease, but I did not believe that it had rendered him
unable to appreciate either the nature of the alleged act or its
wrongfulness.

In considering the issue of diminished capacity, Dr. Phillips testified:

I was looking at the whole issue of - - diminished capacity was the new
thing. My conclusion at the end of that, to a reasonable degree of
psychological certainty, was that [Defendant] did have the capacity to
commit the crime with which he is charged; in other words, that he was -
- he had the capacity to commit an intentional and premeditated act.

Analysis

I. Denial of Motions for a Judgment of Acquittal and the Challenge to the
Sufficiency of the Evidence

Defendant argues that the trial court erred by denying his motions for a judgment
of acquittal because the law on diminished capacity, as outlined in State v. Hall, 958
S.W.2d 679 (Tenn. 1997), unfairly shifted the burden of proof to the defense. Defendant
further challenges the sufficiency of the evidence for his second degree murder
conviction. He argues that “there was no reasonable basis in fact that he was in sole or
unencumbered possession of the firearm (or for that matter possession of any kind).”

A motion for judgment of acquittal raises a question of law for the trial court‟s
determination. State v. Hall, 656 S.W.2d 60, 61 (Tenn. Crim. App. 1983). When the trial
court is presented with a motion for judgment of acquittal, the only concern is the legal
sufficiency, as opposed to the weight, of the evidence. State v. Blanton, 926 S.W.2d 953,
957 (Tenn. Crim. App. 1996). Appellate courts are ill-suited to assess whether the
verdict is supported by the weight and credibility of the evidence. State v. Moats, 906
S.W.2d 431, 435 (Tenn. 1995). Thus, appellate review is limited to sufficiency of the
evidence pursuant to Rule 13(e) of the Rules of Appellate Procedure. State v. Burlison,
868 S.W.2d 713, 718-19 (Tenn. Crim. App. 1993). Accordingly, the standard by which
14
the trial court determines a motion for a judgment of acquittal is, in essence, the same
standard that applies on appeal in determining the sufficiency of the evidence after a
conviction. State v. Little, 402 S.W.3d 202, 211 (Tenn. 2013).

When an accused challenges the sufficiency of the convicting evidence, our
standard of review is whether, after reviewing the evidence in a light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781,
2789, 61 L.Ed.2d 560 (1979). The trier of fact, not this Court, resolves questions
concerning the credibility of the witnesses, and the weight and value to be given the
evidence as well as all factual issues raised by the evidence. State v. Tuttle, 914 S.W.2d
926, 932 (Tenn. Crim. App. 1995). Nor may this Court reweigh or re-evaluate the
evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). On appeal, the State is
entitled to the strongest legitimate view of the evidence and all inferences drawn
therefrom. Id. Because a verdict of guilt removes the presumption of innocence and
replaces it with a presumption of guilt, the accused has the burden in this Court of
illustrating why the evidence is insufficient to support the verdict returned by the trier of
fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). “[D]irect and circumstantial
evidence should be treated the same when weighing the sufficiency of [the] evidence.”
State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011).

A. Denial of Motions for a Judgment of Acquittal

Rule 29 of the Tennessee Rules of Criminal Procedure provides as follows:

Grounds for Judgment of Acquittal – On defendant‟s motion or its own
initiative, the court shall order the entry of judgment of acquittal of one
or more offenses charged in the indictment, presentment, or information
after the evidence on either side is closed if the evidence is insufficient to
sustain a conviction of such offense or offenses.

Tenn. R. Crim. P. 29(b). “This rule empowers the trial judge to direct a judgment of
acquittal when the evidence is insufficient to warrant a conviction either at the time the
[S]tate rests or at the conclusion of all the evidence.” State v. James, 315 S.W.3d 440,
455 (Tenn. 2010) (citing Overturf v. State, 571 S.W.2d 837, 839 & n.2 (Tenn. 1978)).
The trial court in this case denied Defendant‟s motions for judgment of acquittal after the
close of the State‟s proof, at the conclusion of Defendant‟s case-in-chief, and at the close
of the State‟s rebuttal proof. In denying the motion for judgment of acquittal at the close
of Defendant‟s case-in-chief, the trial court made the following findings:

15
 I will state that I will deny the Rule 29 motion. There is sufficient
evidence to sustain a conviction right now. As I said the other day, in
looking at Rule 29 you take all the evidence most favorable to the state
and look at it in that way.

You do not look at the weight of the evidence. You look at the
sufficiency of the evidence to the best light of the state.

Second, the due process violation of shifting the burden, that is a very
interesting argument. It‟s an argument that [defense counsel] has
pursued on occasion before. However, as you stated, [defense counsel],
the rule in Hall is a rule of evidence. Should you desire to call
witnesses, it‟s like a hearsay rule or any other rule of evidence; the rule
must be satisfied before the evidence can be admitted, and that had been
done.

I will note against that argument that the jury will be instructed on
diminished capacity, and the jury will be instructed that the state has the
burden of proof beyond a reasonable doubt as to the elements of the
crime.

Diminished capacity will help explain the elements and the reasonable
doubt, but the burden never, ever, shifts to the defense, and that will be
clear in these instructions. So that request, again, it respectfully denied.

Under Tennessee law, evidence of a mental disease or defect that does not rise to
the level of an insanity defense is nevertheless admissible to negate elements of specific
intent. State v. Phipps, 883 S.W.2d 138, 149 (Tenn. Crim. App. 1994). In Hall, our
supreme court explained:

[D]iminished capacity is not considered a justification or excuse for a
crime, but rather an attempt to prove that the defendant, incapable of the
requisite intent of the crime charged, is innocent of that crime but most
likely guilty of a lesser included offense. Thus, a defendant claiming
diminished capacity contemplates full responsibility, but only for the
crime actually committed. In other words, “diminished capacity” is
actually a defendant‟s presentation of expert, psychiatric evidence aimed
at negating the requisite culpable mental state.

958 S.W.2d at 688 (citations omitted). However, “such evidence should not be proffered
as proof of „diminished capacity.‟ Instead, such evidence should be presented to the trial
16
court as relevant to negate the existence of the culpable mental state required to establish
the criminal offense for which the defendant is being tried.” Id. at 690. Put another way,
for expert testimony regarding a defendant‟s mental state to be admissible, the expert
must testify that (1) the defendant has a mental disease or defect and that (2) because of
the mental disease or defect, the defendant lacks the capacity to form the requisite mens
rea. See id. at 689-91.

In State v. Ferrell, 277 S.W.3d 372 (Tenn. 2009), our supreme court discussed the
ruling in Hall. The Ferrell court clarified that the “decision in Hall established that the
[mental health] testimony is properly admissible if it satisfies the relevancy and expert
testimony provisions in the Tennessee Rules of Evidence and its content indicates that a
defendant lacked the capacity to form the required mental state for an offense . . . .” Id. at
379. Our supreme court explained that the Hall holding “was based upon the broader
legal principle that „expert testimony relevant to negating intent is admissible in
Tennessee even though diminished capacity is not a defense.‟” Id. (quoting Hall, 958
S.W.2d at 691). The court further explained that “Hall recognized that a defendant may
negate an element of the offense as a defense to the prosecution.” Id. at 380.

Defendant argues that the law on diminished capacity as set forth in Hall unfairly
shifts the burden of proof to the defense. In this case, the State presented sufficient proof
to support a conviction for first degree premeditated murder. There was proof that
Defendant and the victim had some type of argument before the shooting. Defendant
shot the unarmed victim in the head, and after the shooting he did not immediately call
911 for assistance. Before police arrived at the house, Defendant hid the gun in a bag in
his garage, along with other weapons, with clothing on top of the bag.

Despite proof of the mens rea of first degree murder presented by the State in its
case-in-chief, Defendant was convicted of the lesser-included offense of second degree
murder. At no time did the burden of proof shift to Defendant. As pointed out by the
State, Hall simply outlines the evidentiary rules for admitting expert proof of diminished
capacity. “While diminished capacity is not an excuse or justification for committing the
offense, it contemplates an acquittal of the indicted offense and a conviction for a lesser-
included offense.” State v. Perry, 13 S.W.3d 724, 733-34 (Tenn. Crim. App. 1999).
Moreover, we point out that although the jury instructions are not included in the record,
the trial court stated at trial that the jury would be “instructed that the state has the burden
of proof beyond a reasonable doubt as to the elements of the crime.” Defendant is not
entitled to relief on this issue.

17
 B. Sufficiency of the Evidence

Second degree murder is defined as “[a] knowing killing of another.” T.C.A. §
39-13-210(a)(1). It is also a “result-of-conduct offense,” and “[t]he statute focuses purely
on the result and punishes an actor who knowingly causes another‟s death.” State v.
Ducker, 27 S.W.3d 889, 896 (Tenn. 2000). Thus, as pertinent here, a person acts
“knowingly” with respect to the result of the person‟s conduct when the person is aware
that the conduct is reasonably certain to cause the result. T.C.A. § 39-13-302(b).
Furthermore, “[a] person can act knowingly irrespective of his or her desire that the
conduct or result will occur.” State v. Gray, 960 S.W.2d 598, 604 (Tenn. Crim. App.
1997); State v. Rutherford, 876 S.W.2d 118, 120 (Tenn. Crim. App. 1993).

Defendant, relying on the testimony of Dr. Watson, contends that because the grip
and trigger of the Ruger revolver were not tested, it is not clear who fired the weapon
killing the victim. In the light most favorable to the State, the proof shows that after the
shooting, Defendant took his children next door to Mr. Watts‟ house, and he told Mr.
Watts that the victim had fallen and hit her head and that he could see her brains. At that
time, Defendant had not called 911 to assist the victim. After police arrived, Defendant
told Detectives that the victim had the weapon out and that Defendant was cleaning it and
“making it look pretty, and the double action hammer was cocked back and it went off.”
Defendant told them that the victim was standing next to him when the weapon
discharged. Defendant had initially told the officers who first arrived on the scene that
the victim was sitting on the couch and shot herself while cleaning the gun. Detective
Sergeant Jim Vaughn testified he spoke with Defendant at the Hendersonville Police
Department, and Defendant mentioned something about grilling hot dogs and that the
argument between him and the victim had lasted over the past two or three days.
Detective Vaughn noticed scratches on Defendant and one in particular on the back of
Defendant‟s neck. Defendant‟s knuckle was also swollen. When asked about the scratch
on his neck, Defendant indicated that he and the victim had a disagreement. Defendant
indicated that he thought the gun went off in his hand. The gun used in the shooting,
along with other weapons, was eventually found hidden in Defendant‟s garage in a
birthday gift bag with a Carhartt garment on top of it. Defendant told Dr. Auble, Dr.
Caruso, and Dr. Phillips that he was holding the weapon and wiping it off when the
victim was shot.

The evidence was sufficient to show that Defendant knowingly shot the unarmed
victim in the head causing her death and was sufficient to support Defendant‟s second
degree murder conviction. The fact that the trigger and grip of the revolver were not
tested for DNA is irrelevant since Defendant admitted to several individuals, including
his own expert witnesses, that he was holding the weapon when the victim was shot.
Furthermore, Dr. Watson testified that a DNA profile, from which Defendant could not
18
be excluded, was found on the bottom frame of the gun. Although Defendant claimed
that he was cleaning the revolver when it accidently discharged, the jury was free to
disbelieve his testimony, especially in light of testimony that there had been an argument
and Defendant‟s actions after the shooting which consisted of taking his children to the
neighbor‟s house before calling 911 and hiding the weapon. Defendant is not entitled to
relief as to this issue.

II. Sentencing

Defendant contends that the trial court erred by imposing the maximum sentence
for his second degree murder conviction. More specifically, he contends that: 1) the trial
court did not properly consider statistical information provided by the administrative
office of the courts as to sentencing practices for similar offenses in Tennessee; and 2)
the trial court made an erroneous assessment of the evidence. The State responds that the
sentence is “within the appropriate range and the record demonstrates that the sentence is
otherwise in compliance with the purposes and principles listed by statute[.]” We agree
with the State.

When the record establishes that the trial court imposed a sentence within the
appropriate range that reflects a “proper application of the purposes and principles of our
Sentencing Act,” this court reviews the trial court‟s sentencing decision under an abuse of
discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682,
707 (Tenn. 2012). A finding of abuse of discretion “„reflects that the trial court‟s logic
and reasoning were improper when viewed in light of the factual circumstances and
relevant legal principles involved in a particular case.‟” State v. Shaffer, 45 S.W.3d 553,
555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)).

Although the trial court should consider enhancement and mitigating factors, the
statutory enhancement and mitigating factors are advisory only. See T.C.A. § 40-35-114;
see also Bise, 380 S.W.3d at 701; State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008).
Our supreme court has stated that “a trial court‟s weighing of various mitigating and
enhancement factors [is] left to the trial court‟s sound discretion.” Carter, 254 S.W.3d at
345. In other words, “the trial court is free to select any sentence within the applicable
range so long as the length of the sentence is „consistent with the purposes and principles
of [the Sentencing Act].” Id. at 343 (emphasis added). Appellate courts are “bound by a
trial court‟s decision as to the length of the sentence imposed so long as it is imposed in a
manner consistent with the purposes and principles set out in sections -102 and -103 of
the Sentencing Act.” Id. at 346.

In Bise, our supreme court held:

19
 We hold, therefore, that a trial court‟s misapplication of an enhancement
or mitigating factor does not invalidate the sentence imposed unless the
trial court wholly departed from the 1989 Act, as amended in 2005. So
long as there are other reasons consistent with the purposes and
principles of sentencing, as provided by statute, a sentence imposed by
the trial court within the appropriate range should be upheld.

Bise, 380 S.W.3d at 706 (emphasis added). In its conclusion, the supreme court pointed
out that in sentences involving misapplication of enhancement factors (even in those
cases where no enhancement factor actually applies) the sentences must still be affirmed
if the sentences imposed are within the appropriate range, and the sentences are in
compliance with statutory sentencing purposes and principles. Id. at 710.

Our General Assembly has enacted twenty-five (25) statutory sentencing
enhancement factors; however, they are not binding upon the trial courts. T.C.A. § 40-
35-114 (Supp. 2015). As previously noted, the weighing of mitigating and enhancement
factors is left to the trial court‟s discretion, Carter, 254 S.W.3d at 345, and in fact the trial
court‟s weighing of enhancement or mitigating factors is not a ground for appellate relief.
Id.; T.C.A. § 40-35-401(b). The standard of review established in Bise provides that the
minimum sentence can be imposed even if the trial court correctly applies all twenty-five
enhancement factors, or conversely the maximum sentence can be imposed even if no
statutory enhancement factors are applicable, so long as the sentence is within the correct
range and the sentence complies with the sentencing purposes and principles.

In determining the proper sentence, the trial court must consider: (1) the evidence,
if any, received at the trial and the sentencing hearing; (2) the presentence 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 the mitigating and enhancement factors set out in Tennessee Code
Annotated sections 40-35-113 and -114; (6) any statistical information provided by the
administrative office of the courts as to sentencing practices for similar offenses in
Tennessee; and (7) any statement the defendant made in the defendant‟s own behalf
about sentencing. See T.C.A. § 40-35-210; State v. Taylor, 63 S.W.3d 400, 411 (Tenn.
Crim. App. 2001). The trial court must also consider the potential or lack of potential for
rehabilitation or treatment of the defendant in determining the sentence alternative or
length of a term to be imposed. T.C.A. § 40-35-103.

To facilitate meaningful appellate review, the trial court must state on the record
the factors it considered and the reasons for imposing the sentence chosen. T.C.A. § 40-
35-210(e); Bise, 380 S.W.3d at 706. However, “[m]ere inadequacy in the articulation of
the reasons for imposing a particular sentence . . . should not negate the presumption [of
20
reasonableness].” Bise, 380 S.W.3d at 705-06. The party challenging the sentence on
appeal bears the burden of establishing that the sentence was improper. T.C.A. § 40-35-
401, Sentencing Comm‟n Cmts.

The applicable sentencing range for a Range I offender convicted of a Class A
felony is 15 to 25 years. T.C.A. §§ 39-13-210(c); 40-35-112(b)(1). The trial court
explained in detail the factors that it considered in sentencing Defendant. The court
found as enhancement factors: (1) Defendant has a previous history of criminal
convictions or criminal behavior, in addition to those necessary to establish the
appropriate range; (9) Defendant employed a firearm during the commission of the
offense; and (13) at the time the felony was committed, Defendant was released on
probation in the Davidson County General Sessions Court. T.C.A. § 40-35-114(1), (9),
and (13). The record supports the application of these factors, and Defendant does not
challenge their application.

The trial court found one mitigating factor, that Defendant was suffering from a
mental or physical condition that significantly reduced Defendant‟s culpability for the
offense; however, the voluntary use of intoxicants does not fall within the purview of this
factor. T.C.A. § 40-35-113(8).

First, Defendant argues that the trial court did not properly consider statistical
information provided by the administrative office of the courts as to sentencing practices
for similar offenses in Tennessee. At the sentencing hearing, the trial court stated:

Now, in determining the appropriate sentence for this offense, I have
considered the evidence presented at the trial. I‟ve reviewed all of that.
I‟ve considered all the evidence at the sentenc[ing] hearing. I‟ve
considered the testimony of everyone here. I‟ve considered the
principles of sentencing and arguments made as to sentencing range here
and the number to be imposed. I‟ve considered the nature and
characteristics of the criminal conduct involved, the evidence and
information offered by the parties on the mitigating and enhancement
factors, any statistical information provided by the Administrative Office
of the Courts as to sentencing practices, and the allocution that the
defendant made own behalf about sentencing, and the defendant‟s
potential for rehabilitation and treatment. That‟s straight from the
Tennessee Code. Those are the things that I must consider, and nothing
else.

21
At the hearing on Defendant‟s motion for new trial, the trial court stated that “the
statistics are a part of what a judge considers in 40-35-210. And, generally, before I
make a ruling, I go through all that and state what I‟ve relied on [.]”

The trial court in this case clearly stated that it had considered all of the relevant
sentencing information, and we have no reason to doubt the trial court‟s statement. State
v. Darrel Dean Hochhalter, No. M2014-01106-CCA-R3-CD, 2015 WL 4556917, at *17
(Tenn. Crim. App. July 29, 2015).

Next, Defendant argues that the trial court made an erroneous assessment of the
evidence at the sentencing hearing by stating: “What happened is the defendant took one
of three guns that he illegally possessed as a convicted felon and he took a .357 Magnum
and he pointed it at the head of his wife and he pulled the trigger.” In his brief,
Defendant contends that “there was no evidence presented at trial that as to the forensic
evidence preserved and reported by the government, no evidence supported any theory of
who might have pulled, pushed, or contacted the grip or the trigger.” However, as
pointed out by the State, the trial court‟s finding is supported by the evidence at trial and
the jury‟s verdict. This included Defendant‟s own admissions that he illegally owned
three weapons and that he shot the victim in the head.

Because the trial court properly considered the evidence offered by the parties,
stated on the record what enhancement and mitigating factors were considered, complied
with the purposes and principles of sentencing, and imposed a within range sentence, the
trial court did not abuse its discretion in enhancing Defendant‟s sentence. Defendant is
not entitled to relief.

Accordingly, the judgments of the trial court are affirmed.

____________________________________________
THOMAS T. WOODALL, PRESIDING JUDGE

22