IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs October 16, 2019

KALYN POLOCHAK v. STATE OF TENNESSEE

Appeal from the Criminal Court for Overton County

No. 2011-CR-45 David Patterson, Judge

No. M2018-01524-CCA-R3-PC

The petitioner, Kalyn Polochak, appeals the denial of her petition for post-conviction 

relief, which petition challenged her 2012 Overton County Criminal Court jury 

convictions of first degree premeditated murder, first degree felony murder, conspiracy to 

commit first degree murder, especially aggravated robbery, and theft of property valued 

at $1,000 or more but less than $10,000. Discerning no error, we affirm the denial of 

post-conviction relief.

Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ROBERT L.

HOLLOWAY, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

J. Patrick Hayes, Cookeville, Tennessee, for the appellant, Kalyn Polochak.

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant 

Attorney General; Bryant C. Dunaway, District Attorney General; and Owen Burnette, 

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

An Overton County Criminal Court jury convicted the petitioner of first 

degree premeditated murder, felony murder in the perpetration of aggravated robbery, 

conspiracy to commit first degree murder, especially aggravated robbery, and theft of 

property valued at $1,000 or more but less than $10,000 for her role in the 2010 murder 

of 72-year-old Hassie Pearl Breeding. See State v. Kalyn Marie Polochak, No. M2013-

02712-CCA-R3-CD, slip op. at 1-2 (Tenn. Crim. App., Nashville, Jan. 16, 2015), perm. 

app. denied (Tenn. May 14, 2015).

11/04/2019
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The evidence adduced at the petitioner’s trial established that the victim,

who was the grandmother of the petitioner’s boyfriend, co-defendant Benjamin Bowers, 

died from “asphyxia due to strangulation and smothering.” Id., slip op. at 15. At the time 

of the offenses, the petitioner and Mr. Bowers lived with the victim. See id., slip op. at 2. 

The victim had expressed dissatisfaction with the living arrangement, telling her daughter 

that the petitioner had yelled at her and that Mr. Bowers had pushed her. After she was 

unable to reach her mother over the course of a day, the victim’s daughter, Teresa 

Breeding, drove to the victim’s house. The victim’s 2006 Toyota Scion was not in the 

driveway. Ms. Breeding found the victim’s body on the floor of the bedroom shared by 

the petitioner and Mr. Bowers covered with a blanket. A cord was wrapped around the 

victim’s neck, and a pillow covered her face. A $20 bill was found protruding from the 

victim’s sock, and other evidence established that it was the victim’s custom to carry her 

money inside her sock. See id., slip op. at 2-4.

The petitioner and Mr. Bowers, who were suspects very early in the 

investigation, were eventually located in Indiana. Two days after the murder, paramedics 

in Grant County, Indiana “responded to a possible drug overdose call” and “learned that 

the [petitioner] ‘shot up . . . nicotine water in a syringe.’” Id., slip op. at 10. The 

petitioner “was upset and was wearing soaking wet clothes.” Id. When asked why her 

clothes were wet, the petitioner said “that she had been in the bathtub at her grandparents’

house with her boyfriend and” indicated that she and Mr. Bowers had “put electronic 

devices in the bathtub attempting to electrocute” themselves. Id. She said that she and 

Mr. Bowers had attempted suicide “because ‘they . . . wanted to be together forever.’” 

Id. The petitioner told paramedics “that she lived at her boyfriend’s grandmother’s house 

with her mother’s consent but that . . . . her mother threatened to have her boyfriend 

arrested for statutory rape if the [petitioner] did not return home.” Id., slip op. at 10-11. 

The petitioner then said, “‘[I]t’s never going to be okay, I shouldn’t have done it, I 

shouldn’t have hurt her, I just wish I hadn’t done it.’” Id., slip op. at 11. The petitioner 

added, “‘[W]e killed her, oh my God, I wish I hadn’t done that, oh my God, I wish I 

hadn’t done that.’” Id. The petitioner said Mr. Bowers got behind the victim “‘took a 

dog leash and strangled her and I put a pillow on her face and smothered her, oh my God, 

oh my God, I just wish I hadn’t done it.’” Id. The petitioner admitted that she had “put 

the pillow on the victim’s face and smothered the victim.” Id.

The petitioner provided a statement to the police, and it was read to the jury 

and summarized on appeal:

When asked for identifying information, the 

[petitioner] said she had “been [giving] it all day long.” She 

asked if her mother knew what was happening. Sergeant 

Collins told the [petitioner] that her mother had been told it 
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was important for the authorities to speak to the [petitioner].

The [petitioner] had been living with Mr. Bowers at his 

grandmother’s house. On December 10, 2010, her mother 

called and was upset after receiving a notification she would 

not receive food stamp benefits if the [petitioner] did not live 

with her. The [petitioner]’s mother said that she would have 

Mr. Bowers arrested for statutory rape and that the 

[petitioner] would be in trouble with the authorities. The 

[petitioner] might have been pregnant. After the call, the 

[petitioner] and Mr. Bowers got high by injecting Dilaudid. 

They discussed going “out with a bang.” Mr. Bowers 

mentioned killing his grandmother. The [petitioner] did not 

want to see blood and recommended they use a dog leash as a 

weapon. When the victim came home from work, Mr. 

Bowers choked her with the leash, and the [petitioner] pushed 

a pillow on the victim’s face. The victim made unusual 

noises and died after about two minutes. They dragged the 

victim’s body into a bedroom and covered it with bed linens 

and a pillow. Mr. Bowers took $200 from the victim’s body, 

and they took the victim’s car to Indiana to visit the 

[petitioner]’s relatives. The [petitioner] said she was sorry 

she had damaged the lives of Mr. Bowers, herself, and her 

unborn child. On the day she was taken into custody, she had 

tried to commit suicide three times. She and Mr. Bowers sat 

in a bathtub and put appliances in the water. They also tried 

to kill themselves in a car through carbon monoxide 

inhalation and by injecting nicotine water. She wished she 

were dead. Near the end of the interview, she asked if she 

could still have a lawyer.

Id., slip op. at 12.

The petitioner and Mr. Bowers had been driving the victim’s Toyota Scion. 

Inside the vehicle, authorities discovered a black backpack, “a black purse containing 

keys, a pink cell phone, and a gold watch” along with “a handwritten note signed by” the

petitioner in which she declared that Mr. Bowers “is the only person who has . . . ever 

had my heart like this[.] I love him so much. If you have found this you obviously know 

what has happened. I want his last name on my grave & I want to be cremated w[ith] 

him.” Id., slip op. at 5 (alterations in original).
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The police “theory of the case” was that “Mr. Bowers placed his foot on the 

victim’s back and pulled the dog cord tight around the victim’s neck,” and statements 

provided by both the petitioner and Mr. Bowers “supported the theory” as did the 

discovery of wire cutters and a length of the same “dog cord” used to strangle the victim 

inside the bedroom shared by the petitioner and Mr. Bowers. See id., slip op. at 6. 

Forensic testing established the presence of DNA belonging to both the petitioner and 

Mr. Bowers on the pillow used to suffocate the victim. Mr. Bowers’ statement to the 

police was admitted into evidence and read to the jury:

In the statement, Mr. Bowers stated that his grandmother 

allowed him and the [petitioner] to live with her and that the 

victim treated them well. They used the bedroom across from 

the bathroom, which had the holes in the walls. He admitted 

stealing from the victim previously and knew the victim kept 

her money in a black pouch tucked in her sock. Mr. Bowers’

only concerns in life, though, were his drug addiction and the 

[petitioner].

On the day of the killing, Mr. Bowers said he and the 

[petitioner] stayed home, and they talked about how they 

“could be together.” He said, “We figured we would kill my

Grandmother and take her money.” They packed their 

belongings before the victim arrived home, and he said the 

[petitioner] thought of choking the victim with a dog leash. 

He said the plan was for Mr. Bowers to approach the victim 

from behind and place the leash around her neck. He said he 

practiced on the [petitioner] to determine how best to do it. 

He cut the leash with the wire cutters and left them in their 

bedroom. He stated, “I guess . . . me and [the petitioner] 

planned this out even premeditated what we did.” When the 

victim arrived home at 5:30 p.m., Mr. Bowers approached her 

from behind, placed the leash around her neck, and choked 

her. He said he wore the black gloves during the attack. He 

yelled for the [petitioner]’s assistance. The [petitioner] came 

from their bedroom with a pillow and placed it over the 

victim’s face. The victim fell to the floor as Mr. Bowers 

applied pressure. As he pulled the leash as tight as possible, 

the [petitioner] held the pillow over the victim’s face. The 

victim attempted to fight, and Mr. Bowers heard “a little sigh 

and gurgle.” The [petitioner] laid her entire body on the 

victim and applied pressure on the pillow. After the victim 
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was dead, Mr. Bowers took money from the victim’s purse. 

He removed $420 from the victim’s right sock. Mr. Bowers 

and the [petitioner] placed their belongings in the victim’s car 

and left. Mr. Bowers and the [petitioner] bought gas, drove to 

Sparta to buy $200 worth of drugs, and drove to Indiana.

Mr. Bowers noted the [petitioner] spoke with her 

mother earlier that day. The [petitioner]’s mother threatened 

to call the police “to get Kalyn home.” Mr. Bowers threw the 

wire cutters into the bedroom door. He admitted breaking the 

window in the Blazer when he attempted to remove the 

window to unlock the door and take the battery. He wanted 

to put the battery in his car, which would not start. He 

concluded his statement by saying “this was the only way me

and Kalyn could think of being together.” He claimed he 

would have done anything for the [petitioner].

Id., slip op. at 8. A statement provided by the petitioner “referenced the same date and 

time of the killing, Mr. Bowers’ placing the dog cord around the victim’s neck, the 

[petitioner]’s placing a pillow over the victim’s face, and the motive for obtaining money 

and a car to get out of town.” Id. The petitioner’s statement also indicated that she and 

Mr. Bowers had murdered the victim “because the [petitioner]’s mother threatened to 

report Mr. Bowers to the police.” Id.

Other evidence established that the petitioner, who was 17 years old at the 

time of the offense, suffered from attention deficit and hyperactivity disorder, substance 

abuse disorder, and post-traumatic stress disorder that was related to the abuse she 

suffered at the hands of her father. The petitioner reported that Mr. Bowers abused and 

threatened her and that she was afraid of him. Witnesses testified that the victim was also 

afraid of Mr. Bowers. Id., slip op. at 16-24.

This court affirmed the petitioner’s convictions and accompanying total 

effective sentence of life imprisonment. See id., slip op. at 55. The petitioner filed a 

timely petition for post-conviction relief, alleging that she was deprived of the effective 

assistance of counsel at trial. Among her challenges to trial counsel’s performance, she 

complained “that written statements by Mr. Bowers should not have been read as 

evidence as it violated her Sixth Amendment Right to cross-examination.”

Although the petitioner raised myriad instances of allegedly deficient 

performance, she indicated at the June 2018 evidentiary hearing that she intended to 

focus on claims that counsel did not allow her to testify at the suppression hearing, that 
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counsel failed to procure the testimony of an expert in abusive relationships, that counsel 

failed to request DNA analysis of certain evidence, that counsel did not object to the 

State’s violating evidence rule 615, that counsel failed to offer evidence of the 

petitioner’s intoxication during her interrogation, that Mr. Bowers’ statement should not 

have been read to the jury, and that counsel should have requested an independent 

autopsy. Because the sole issue on appeal is the admission of Mr. Bowers’ statement, we 

will confine our recitation of the evidence offered at the hearing to this issue.

The petitioner did not testify at the evidentiary hearing. Trial counsel 

testified that he had “a vague remembrance of” the admission of Mr. Bowers’ statement 

but that he could not recall “exactly what those statements said.” He also could not recall 

whether he had objected to the statement’s admission. He explained that “the main intent 

of our strategy” was to blame Mr. Bowers for the murder and that the more evidence

counsel could present to “show that he was responsible, the better for our case.” In 

consequence, he said, “I would have to review the exact statement, see exactly what it 

was to say why I objected or why I didn’t object. I don’t know the answer to that right 

now.” During cross-examination by the State, trial counsel added:

I would assume, without now remembering what the 

statement said, that he basically admitted to the crime. If he 

did inculpate her, I think one thing we tried to bring up was 

that he wanted to take her down with him and he would have 

every reason to do that.

After being allowed to review the portions of Mr. Bowers’ statement that had been read 

to the jury, trial counsel said that he believed the statement supported the theory of the 

defense, explaining,

It also supported the fact that [the petitioner] had made the 

statement . . . that Mr. Bowers and she had gone over what to 

say when he was threatening to kill her and those kinds of 

things. So what, what she said he told her to say was in the 

statement as to what happened. It corroborated it from that 

extent.

He said there were “[m]ultiple reasons” for allowing the statement into evidence.

The post-conviction court denied relief, finding that the petitioner had 

failed to prove by clear and convincing evidence facts to support her claims of ineffective 

assistance of counsel. Relevant to this appeal, the post-conviction court found that trial 

counsel “did not object to the use of [Mr. Bowers’] statement to law enforcement during 
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trial. It was a defense strategy to shift blame to [Mr. Bowers] and the use of [his] 

statement served that purpose.”

In this timely appeal, the petitioner asserts that the admission of Mr. 

Bowers’ statement violated her Sixth Amendment right to confront the witnesses against 

her. The State argues that this claim qualifies as waived under the terms of the PostConviction Procedure Act and that the petitioner further waived this issue by failing to 

present it to the post-conviction court.

Post-conviction relief is available only “when the conviction or sentence is 

void or voidable because of the abridgment of any right guaranteed by the Constitution of 

Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. A postconviction petitioner bears the burden of proving his or her factual allegations by clear 

and convincing evidence. Id. § 40-30-110(f). On appeal, the appellate court accords to 

the post-conviction court’s findings of fact the weight of a jury verdict, and these findings 

are conclusive on appeal unless the evidence preponderates against them. Henley v. 

State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. 

Crim. App. 1997). By contrast, the post-conviction court’s conclusions of law receive no 

deference or presumption of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453 

(Tenn. 2001).

“A ground for relief is waived if the petitioner personally or through an 

attorney failed to present it for determination in any proceeding before a court of 

competent jurisdiction in which the ground could have been presented.” T.C.A. § 40-30-

106(g). As the State correctly points out, the petitioner did not challenge the admission 

of Mr. Bowers’ statement on Sixth Amendment grounds either at trial or on direct appeal, 

and, in consequence, it is waived. The State also correctly asserts that the petitioner 

waived this court’s consideration of her claim by failing to present the freestanding Sixth 

Amendment claim to the post-conviction court. See Cauthern v. State, 145 S.W.3d 571, 

599 (Tenn. Crim. App. 2004) (“[A]n issue raised for the first time on appeal is waived.”). 

Finally, we observe that the petitioner’s appellate brief contains only a single page of 

argument that is supported by only a citation of the Sixth Amendment to the United 

States Constitution. This hardly satisfies the requirements of Tennessee Rule of 

Appellate Procedure 27, see Tenn. R. App. P. 27(a)(7) (stating that the appellant’s brief 

must contain an argument “setting forth . . . the contentions of the appellant with respect 

to the issues presented, and the reasons therefor . . . with citations to the authorities . . . 

relied on”), or Rule 10 of the Rules of this court, see Tenn. R. Ct. Crim. App. 10(b) 

(“Issues which are not supported by argument, citation to authorities, or appropriate 

references to the record will be treated as waived in this court.”), resulting in a waiver of 

the issue on appeal.
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Because the single issue presented for review has been waived, we affirm 

the judgment of the post-conviction court.

_________________________________ 

JAMES CURWOOD WITT, JR., JUDGE