A t t he t i m e o f t he at t ack, t he vi ct i m was K aren C o o k. Sub sequentl y , s he m arri ed her t hen b o y f ri end and 1

b e c a m e K a re n G ra y. W e w ill re fer to the vic tim a s “C o o k ” o r “th e vic tim .” 

### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE

AT JAC KSON O ct obe r 3, 200 6 S es sio n

STA TE OF TEN NES SEE v. OC TAV IA C AR TWRIGH T

Direc t Appeal from the Shelby Cou nty Crim inal Cou rt Nos. 00-04743; 00- 04744; 00-04745; 00-04746; 00- 04747; 00-04748

Art hur T. B ennett, Judge

No. W2005-02316-C CA-R 3-CD - F iled Janu ary 22, 2007

The Def endant, Octavia Cartwrig ht, w as convicted of evading arr est in a motor vehicle with risk of d e a t h o r i n

j u r y, a t t e m p t e d f

i r s td e g r e e m u r d e r , t w o c o u n t s o f e s p e c i a l l y a g g r a v a t e d r o b b e r y, espec ially ag g ravated burg lary , and four counts of espe cially

ag g ravated kidnapping

. The De fenda nt was sente nced to a n eff

ective se ntence of ninety -one y ear s in prison as a R an ge I offe nder. O n appea l, the Def

endant contends that: (1) ther e wa s insufficient evide nce to sustain the c onvictions for attempted murder and espec ially ag g ravated kidnapping ; ( 2) the trial court imprope rly sentenc ed the Def endant; (3) the trial court err ed when it determined the Defenda nt was competent; and (4) her constitutional right to a spe edy trial was violated. A fter thr oug hly revie wi n g the re cord a nd applicable authorities, we a ffirm the D efe ndant’s convic tions and sentence s.
Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Cr im inal Cou rt A ff irm ed

R OB E R T W. W EDEMEYER , J ., delivere d t h e opinion of the court, in which D AVI D G. H A Y ES and T H O M A S T. W O O D A LL , J J ., joined.

Cha rl e s E . Wa ldm a n, Me mph is, Te nn e sse e , f or the Ap pe lla nt, Oc ta via

Cart wrig ht.

Rob e rt E. Coo pe r, Jr., At torne y Ge ne ra l a nd Re po rt e r; Sop hia S. L e e , A ssi sta nt A tto rn e y Ge ne ra l; Willi a m L . Gib bo ns , Dis tr ic t A tto rn e y Ge ne ra l; a ndL e e Cof

fe e , A ssi sta nt D ist

ri c t A tto rn e y

Ge ne ra l, for the A ppellee, State of Tenne ssee.

OP IN ION

I. F acts

This case arises f

rom an attack on, and entry into the home of, Kar en Cook Gray . The re cord 1-2-

re ve a ls the fo llo wi ng fa c ts:

A. Co m pe te nc y He ar ing

On Dec ember

17, 2004, the trial court conducted a competenc y hearing. At that hearing, D r. Lucy Vinturella of the Mem p h is Mental Hea lth I nstitut e testified a nd opined the De fenda nt was competent to st and trial. Specifica lly
, Dr. Vinturella testified that the De fenda nt was admitted to the Memphis Mental Hea lth I nstit u t e for a month-long evaluation. She rece ived re cords f rom the De fe nd a nt, the De fe nd a nt’ s mothe r, He a lth Qu e st, the juv e nil e c ou rt , a ndthe De fe nd a nt’ s sc ho ol. Ad dit ion a lly , r e c or ds we re ob ta ine d co nc e rn ing the De fe nd a nt’ s f a the r andbr oth e r. Dr . V intur e lla also rec eived information about the ar rest and inf

ormation from the ja ilors. Dr. Vint urella stated she spent a minimum of three hours per wee k actively eng ag ed with the Def endant. She a lso confirmed that the Def

endant ha d a h i s tory

of treatment at Hea lth Quest for a n alleg ed ra pe, for which she

rec eived Z oloft, an anti-de pressa nt.

Whil e under

the ca re of the juvenile court, the Defenda nt took intelligenc e tests t hat y ielded

a re su lt o f s ixty -n ine . D r. Vi ntu re lla state d th a t, a lth ou g h the nu mbe r is sim ila r to a n I Q s c or e , it

is not exactly

compar able. Additionally
, score s such as these are subject to be an unde restimate of the
actua l intelligenc e o f t h e t es t t aker , espec ially when, a s in this case, the pa rticipant does not exert ideal ef fort. The doctor admitt ed that one who is on drugs may potentially

rec eive a lower sc ore tha n one who is not. She also stated that the D efe ndant had obtaine d her G ED but ha d a history of drug and alc ohol ab u s e s i nce she was a pproxi mately

nine y ear s old. By

her e ighte enth birthday , the Def endant wa s a fr equent he roin user. The doctor agre ed that a multi tude of fa ctors could lowe r one’s sc ore, inc luding taking drug s and the stre ss of being rape d.

As to the a c tua l di a g no sis , D r. Vi ntu re lla state d th a t th e De fe nd a nt was dia g no se d a s a malinge rer

who uses cannabis and c ocaine . Maling ering is a situation where there is a discre pancy b e t w e e n w h a tar e r e p o r t e d a s s ym p t o m s a n d o b j e c t i v e f i n d i n g s

. In a

t e s tg i v e n t o d e t e r m i n e h o n e s t y, the Def endant sc ored ve ry

low. The Def

endant’ s score showed she intentionally picked the w rong

a ns we rs

. I n tw o dif

fe re nt te sts , the re su lts a lso sh ow e d the De fe nd a nt wa s a ma lin g e re r. B e c a us e of this high pr opensity

to intentionally choose the wrong answe r, the doctor determined it would not be bene ficial to g ive the Def endant an I Q test as her sc ores would show a n undere stimate of her true intelligenc e.

I n th e writt e n r e po rt

to the tr ia l c ou rt , th e do c tor s a t th e Memphi s Me nta l H e a lth I ns titute op ine d th a t th e De fe nd a nt w a s feigni ng me nta l il lne ss andwa s c omp e te nt t o s ta ndtr ia l. Additionally , the doctors f ormed the opinion that the De fenda nt could assi st her attorne y in the defe nse of th e c a s e , a n d th a t s h e w a s c o mp e te n t a n d n o t c o mm it ta b le

. T h e tria l c o u r t a g r e e d and fo un d th e De fe nd a nt c omp e te nt t o s ta ndtr ia l.

B. Trial

At the Def

endant’ s trial, beg inning on J une 6, 2005, the foll owing evidenc e wa s prese nted:-3-

Thomas Westling testified he had lived at his cur rent re sidence for se ventee n y ear s. He ha d known Cook, the victim, for six to eig ht months, and she w as his next-door neig hbor. Westling we nt to bed at 9 p.m. on Aug ust 28, 1999, and he woke to a “hideous scre am” at about 1 a.m. The person wa s

scre ami n g , “ G o d h e lp me ! T h e y ar e try in g to k il l me ! ” H e r a n to th e f r o n t d o o r a n d found a “disheve led, bloody

person” g rabbing his storm door.

Westli ng described t he person as being blood soaked with a bruised, swollen fac e and dirt and lea ves in her hair. He did not re cog nize the person. His w i fe ca lled 9-1-1, a nd his neig hbor from across t he st ree t, Dr. Dinge ldein, came to his front door. Once they g ot the per son to lie down in the fo y e r o f h is h ome , h e no tic e d h e r j a wb on e e xpos e d a ndho le s in he r n e c k. Th e y a tte mpt e d to
g et a pulse but could not beca use of the excessive swe lling. At that point, the 9-1-1 ope rator a sked for he r name , and Westling a sked the pe rson in his foy er. It was not until then that he rea liz ed it was his neig hbor.

I n response to questions from W estling, his wife, and Dr . Ding eldein, Cook stated that she had bee n jumped by

a “bla ck girl” w hile she wa s g etting he r mail. Cook stated that the g irl had a
g un and beat her ove r the he ad with it. Ba sed on his experience in Vietnam, Westling thoug ht Cook
was g oing into shock. Westling’ s wife as k ed if she wa s g oing to die in their house and Westling responde d that it was a g ood possibili ty

.

Coo k c on tin ue d to de sc ri be the inc ide nt to Wes tli ng a ndDr . D ing e lde in, statin g that a wh ite

m al e h ad co m e u p and helped the black f emale. She sa id the two took Cook int o the house a nd retrie ved scissors out of the draw er. The white male then sta bbed her with the scissors. Fina lly , afte r about twenty

minutes, an ambulanc e ar rived at Westl ing’ s house. B y that time, Cook had lost a lot of blood and Westling a nd Dr. Ding eldein had r ealized that Cook had also bee n stabbed in the ha nd. The stab wound w ent completely throug h the hand. The para medics attempted to g et an IV started, and Cook was e ventually flown aw ay

in a helicopter

.

Westli ng described the injuries as if some one had be en torturing C o ok. After the introduction of picture s of Westling’s foy er, he testified t hat he did not see a ny one lea ve in Cook’s Jee p. F ina lly , We stl ing state d th a t Co ok wa s in his ho me fo r a

tot a l of abo ut thirty -m inu te s.

On cr oss-examination, W estling te stified that he and his wife w ent to bed ar ound 9 p.m.,

w h i l e h i s e l e v e n y e ar o l d d a u g h t e r w e n t t o s l e e p s l i g h t l y e ar l i e r

. H e o r i g i n a l l y t h o u g h t itwa s h is daug hter scr eaming , but he quickly rea liz ed o therwise. When he g ot to the front porc h, he saw

someone stag g ering out of the dark towards his f ront door. Westli ng said he ne eded r eading g lasses beca use he is fa

r-sig hted, but he could clear ly see someone coming towards him. She was w earing something w hite, but it was cover ed in red blood. At first, Westli ng did not know whether t o let her in o r n ot, bu t a ft e r h e re a lize d s he wa s b a dly inj ur e d, he deci ded to h e lp, a ndhe qu ic kly be c a me fo c us e d o n Co ok ’s we lf

are . Co ok

ne ve r w e nt i nto sh oc k. I n d e sc ri bing t he in cid ent, Co ok tol d Westli ng that she had be en stabbe d by the male, not the f

emale. S h e al s o s ai d that she had be en struck by a g un, never mentioning a rock. Westli ng stated t hat i t was about fif ty fee t from Cook’s driveway to his front door.-4-

On re -direc t, Westl ing sta ted that he ha d not hear d any scre ams thirty

minutes before Cook stag g ere d to his door. A dditionally
, he called Cook’s boy friend and pare nts to let them know what happene d afte r Cook provided him the numbers.

Dr. Patricia

Ding eldein testified that she was a licensed de ntist and lived across the stre et fr o mW es t l i n g. On t h e m o rn i n g o f O ct o b er2 9
, 1 9 9 9
, Dr

. Di n gel d ei n h e a r d s o m eo n e s cr ea m i n g, “Stop, Stop. Please don’t. I will g ive y ou whateve r y ou want. Don’ t do it. S top. I will give y ou the ring . Whatever y ou want. J ust leave me alone.” She snuck outside so as not to be see n, and she

sa w a c ar that sh e ha d a lso pr e vio us ly se e n f ro m he r w ind ow . Sh e we nt ba c k u ps ta ir s a ndg ot i nto bed. She and he r husband de bated c alling 9-1-1 because the scre aming was so seve re. A bout that time, t h e s cr ea m i ng resumed, and she we nt outside. She found Westli ng ’s porc h light on, so she
went over and aske d if he ne eded he lp. He re sponded he did.

Dr. Ding eldein s t at ed that at f irst she did not recog nize the person hunche d over in the doorwa y , beca

use she wa s cover ed in bl ood, her ne ck wa s swollen, and she ha d leave s all over he r. She determined that Cook could be going into hypovolemic s hock, which ha ppens whe n someone loses a lar g e amount of blood. Cook ha d multipl e stab wounds, was ble eding profuse ly , and had a

sever e hematoma on the s ide of her hea d. She beg an to ask Cook questions beca use she e x pecte d Cook to die, and she wa nted to be able to catch the responsible pa rty

.

Cook describe d the couple as a black woman and a white man. Cook ke pt say ing the man

wa s v i ci o u s , and the woma n kept hitting her with a g un. Cook describe d the situation to Dr. Ding eldein explaining that she had bee n to the store to get ciga rettes, and, when she g ot home, she went to g et the mail and wa s assaulted by the black fema le, who kept hitting her in the head w ith the
g un . Co ok

tol d D r. Di ng e lde in that sh e ha d b e e n s ta bb e d w ith kit c he n s c iss or s, bu t sh e wa s a ble to g e t f re e a ft e r s he wa s pla c e d in her Jee p, wh ic h the fe ma le wa s dri vin g . Dr . D ing e lde in s imp ly c ou ld not believe that, c onsidering all the injuries, C ook was not alre ady dead. A t that point, she pray ed for Cook, and the s h er i ff’s deputy arrived. I n her opinion, the De fenda nt did not die because no

art e ry or larg e blo odve sse l w a s h it w ith the sc iss or s.

On cr oss-examination, Dr. Ding eldein stated that, when testifying that “they stabbed he r,” she used “ they ” bec ause that is what Cook tol d her. She c ould not reca ll, however , whether Cook told her spec ifically

that the fe male stabbe d her. Additionally
, Dr. Dinge ldein never saw the gun tha t

wa s a lle g e dly

us e d, bu t Co ok st ated r e pe a te dly that sh e ha d b e e n h it b y a g un . D r. Di ng e lde in testified that she was not w orried about whether Cook’s teeth wer e broken or whethe r W estling’ s dog was ba

rking . Upon questioning about when she met Cook, Dr. Ding eldein wa s confident that she had me t the victim on the previous Hallowe en.

On re -di re ct ex am i n at i o n , Dr

. Di n gel d ei n t es t i fi ed t h at h ert es t i m o n y wa s based upon her own

rec ollections of what happene d the morning of October 29, 1999. I n order to remembe r eve rything that ha pp e ne d th a t ni g ht, sh e ty

pe d u p a ll o f h e r r e c oll e c tio ns a fe w da y s a ft e r the inc ide nt. She did
not r ead the newspa

per article s about the incident. On re- cross examination, Dr. Ding eldein stated that she did not have pe rsonal knowledg e about a ny thing that the Def endant did, and any

testimony-5-

about that ca me from he r questioning of Cook as she wa s ly ing in Westling’ s foy er.

C o ok testified that in 1999 she lived in Cordova a t 1353 Hardw ood Trail and ow ned and
operated the Wild Birdhouse. She t alked to her then fianc é, Alan G ray , on the telephone on the evening of Oc tober 28, 1999, until abou t midnight. She hung up with him in order to g o g et cig are ttes from the g as s t at i o n l o cate d three to four blocks fr om her home. She stay ed at the g as station a couple of

minutes and left to g o back home. Upon arriving at home, she par ked her J eep in the g ara g e and put on the pa rking brake . She went fr om the gar age t o get the mail, and, as she turned back t owar ds the hous e, she saw a g irl running towards her wit h a gun. S he desc ribed it as a blac k g un, which turne d out to be a re volver. She kne w it was a r evolver beca use later, w hen the Def endant wa s repe atedly

hitting her

with the g un, the cy linder fe ll open.

Cook then identified the De fenda nt as the person who attacke d her on O ctober 29, 1999. She stated that she ha d never

met either the Def

endant or J ere my Whit e. I n describing the attack, Cook stated she y elled for

help, but the Def

endant told her

to shut up a nd repe atedly called he r a “ mother f***ing white b***h ‘ho.” Cook and the De fenda nt foug ht over the g un, and t he De fenda nt

r e p e a t e d l y tr i e d t o p u t t h e g u n t o C o o k ’ s t e m p l e

. A c ar t h e n d r o v e u p a n d s t o p p e d a th e r d r i v e w a y. A m a n g o t o u t o f th e c ar a n d ta c k le d Co o k in th e y ar d

. N e xt, Co o k w a s s h o w n a p hotogr aph of J ere my Whit e, and she identified him as the per son w h o ra n u p, tackled he r, and stabbe d her
sevente en times.

At that point, Cook t old the Defendant and White they could havewhateve r they wanted; she expected them to mere ly

want her purse. The Def

endant g ave the g un to Whi te, who place d Cook in s ome so rt

of c ho ke -h old , w a lki ng he r i nto the g ara g e . Wh ite g a ve the g un ba c k to the De fe nd a nt, who used the g un to br eak a window. Then, the g ara g e door was lowere d. The De fenda nt warne d that Cook better not have an alarm, but Cook was only conce rned a bout her twe lve y ear

old ge rman shepar d, Chelsea. The Def endant a nd Whit e then a llowed Cook to put Chelsea into a closet. Afte r Che lse a wa s sa fe ly ins ide the c los e t, the De fe nd a nt be g a n to be a t Coo k re pe a te dly wi th the g un , a ll the while, continuing to call her “mother f ***ing w hite b***h ‘ho.” White restrained Cook during the re peate d beating s. The Def endant asked Cook for

money , and Cook responde d that there was chang e in a g lass bowl on the table. This simply made the Def endant more ang ry . She took the g un by the bar rel a nd hit Cook on t he lef t, then right, then l eft, then right. Cook estimated that she was hit at least six times in thi s manner. Cook de scribed the look on the Defenda nt’s fac e as “ pure hate.” Cook stated, “she had her face rig ht up in my fac e and the g un barr el betwe en my fac e and he r fa ce, the g un barr el in my

mouth rubbing my

tooth and up to my

ey e.”

Cook testified that she somehow mana g ed to g et over to the dresse r, wher e she found jewe lry to gi v e to th e D e f

e n d a n t. A lth o u g h s h e c o u ld n o t s p e c if ic a ll y r e c a ll
, s h e b e li e v e d s h e g a v e the Def endant a couple of ring s and nec klace s. At that point, the Defenda nt said, “Ar e y ou tricking on us? ” Cook had ne ver he ard that phrase, so, she stopped, looked up, and saw herse lf in the mirror. She said she could not re cog nize herself w ith all the blood streaming down her fac e fr om the blows inflicted by

the Def endant.-6-

Next, the Defe ndant left the be droom and be g an sear ching the house while White maintained the choke -hold on Cook. The De fenda nt went throug h draw ers, looked unde r matt re s s es , and throug h the re frig erator and pa ntry . She broke ma ny things including things o f s en t i mental value to Cook, including a c era mic Christmas tree Cook’s g randmother had made. Once Whit e and Cook
g ot into the den, Whit e lifted Cook up by her neck from behind, s trang ling her. Then, he set Cook back on the floor and attempted to break her ne ck. Up to this point, Whit e had not sa id a word; the Def endant made all the threat s

. Next, W hite drug Cook back into the kitchen a nd g ot a pair of scissors out of a dr awe r. He stabbed Cook, then waited a second — stabbed he r ag ain, then wa ited

a se c on d. Whit e didthi s r e pe a te dly , a ndCoo k d e sc ri bed him a s “ g e tti ng of

f o n it .” Th e wo rs t

wo un ds c a me fr om h im s ta bb ing he r at th e ba se of

he r n e c k, whi ch cau se d b loo d to “ sp e w” ou t. Whit e additionally stabbed Cook’s rig ht hand, where the scissors went all the way throug h her ha nd. At that point, Co o k t h oug ht she was g oing to die. D uring the stabbing , the Def endant looked throug h the re frig erator in the kitchen.

Whit e then dr ag g ed Cook i n t o t h e b edroom whe re he inflicted the last of se ventee n stab wounds by stabbing Cook in the abdomen. The Def endant wa s prese nt in the bedroom also. During the incident, th e De fe n d an t n ever had any mask on, or anything e lse that would conc eal he r fa ce. After the last stabbing , Cook was thrown ove r a ta ble, and White said, “I s she out? ” This was the first time Cook he ard Whit e speak. The Def endant said, “no, that b***h ain’t out,” a nd pushed Cook off the ta ble onto the floor. At that point, Cook was able to stand up, and she saw White’s fac e for the first time. He said to put Cook in the car, which they did. The De fenda nt got into the ca r and
y elled at Cook to be still, repeatedly calling her a

“mother f ***ing w hite b***h ‘ho.”

Cook attempted to play dead so as not to appea r t o be a threa t. When she saw the Def endant

wa s h a vin g tr ou ble op e ra tin g the c ar becau se th e pa rking br ake wa s o n, Coo k s a w h e r c ha nc e to

esca pe. She wa s able to g et t he rear driver’ s side door open. Unfortunately , her ha nd was tang led in her bloody , matted hair, so she had to rip her hair out to use her hand. She went head f irst out the door and “scra

ped both of [ her] knees really bad[ly ].” She was able to cra wl to her ne ighbor ’s house. The Def endant did not assist Cook in any way in g etting out of the car and said nothing similar to, “ma’ am, this man is try ing to kill y ou, y ou rea lly need to lea ve rig ht now.”

Cook testified that she was a ble to g et to her ne igh b o r’ s h o u s e, and she described her condition, “I

was c ompletely

bea ten up. Covere d with blood. Myhead pummele d with a g un. Stabbed in the abdomen. I mean I was in bad sha

pe. I was surprised I made it t o my neig hbor’s, but I did.” She ar

rived at Westling’s house and fell on the floor . Dr. Ding eldein came over and g ave

a id. Dr . D ing e lde in as ke d if she ha d b e e n r ape d o r i f i t w a s Co ok ’s bo y frie ndwh o h urt he r. She sa id no and told them there was a g un involved, but she had be en stabbed with scissors. Cook did not fee l much pain while she w as being hit, but, once she g ot to W estling’ s house she wa s in ag ony

. At some point, the ambulance arrived, and Cook wa s p l ac ed o n a g urney . Her boy friend

arrived shortly

there afte r. S h e wa s co n cerned a bout her dog , Chelsea, but Cook had no pe rsonal kn ow le dg e of

wh a t ha pp e ne d to the do g . O nc e sh e wa s in the he lic op te r, the nu rs e tol d h e r i t w ou ld

on ly take six min ute s to g e t to the ho sp ita l. S heke pt r e pe a tin g : f ou r m inu te s —

thr e e min ute s —-7-

two minutes. Cook was taken to the Med, wher e she rec eived trea tment f or sever e head trauma a nd the stab wounds. She wa s in the hospital for six day s, and she ha d m ed i ca l b i l l s of thirty -five thousand dollars.

After Cook was released from t he hospi tal, she was in a neck brace for t wo weeks, and she had plastic surg ery

for the f acia l stab wound. She also went to a chiroprac tor extensively for ne ck problems caused by

Whit e attempting to break her ne ck . She could not raise he r arm above he r shoulder leve l for more than a month af ter the inc ident.

Cook testified that the Def endant and White stole two rings, one with diamonds in it , two or three g old neckla ces, and a gold bracele t. The Defendant also took Cook’s binoculars and he r purse

. Al l of the se ite ms we re e ve ntu a lly re turne d to he r. Af te r i de nti fying nu me ro us pic tur e s o f the c ri me

sc e ne , Co ok

te sti fi e d th a t th e De fe nd a nt n e ve r atte mpt e d to he lp C oo k, or int e rv e ne on he r be ha lf when she was be ing sta

bbed by Whit e. W hite never

hit Cook wit h the g un: the Def endant wa s entirely responsible for

that portion of the assault.

On c ro ss- e xami natio n, Coo k te sti fi e d th a t sh e liv e s o n a str e e t th a t c ou ld b e de sc ri be d a s a “cut- through

. ” S h e d i d n o t rec all whether she had he r purse with her whe n she we nt to the ga s station. She had been i n the habit of put ting her parking brake on since she was six teen y ear s old. Cook g ot out of her car , walked around the corner , beca use her driveway was on one street while he r front door was on another
, and g ot he r mail. There was virtually no lighting beca

use there wer e no streetlig hts, but Cook’s porch light wa s on. Cook had a door from the g ara g e into the kitchen, whic h
was pa rtly made of g lass. That door was locked beca use Cook had not g one inside bef ore she went t o go get h erm ai l

. S h e d i d n o tu s e t h e f ro n td o o r, s o s h e p l an n ed o n go i n g b ac k t h ro u gh t h e ga ra ge door entrance to he r house. At that point, she saw someone with a g un. Reading from a statement she g ave to a police off

icer , she saw a

“fig ure,” and “kne w re al quick it was a black g irl with a g un.”

Cook stated that her g lasses we re lost during the attack in the y ard. Cook admitted she ha d imp a ir e d v isi on wi tho ut h e r g la sse s, bu t sh e state d th a t sh e had no tr ou ble se e ing the De fe nd a nt, Whit e, the g un, or the scissors. In discussing he r own purses, she testified she did not know which purse the D efe ndant took. When the attack happene d, she dropped her key s in the y ard. A fter the stabbing , the Def

endant we nt back into the y ard to find the ke y s.

Def ense c ounsel then attempted to discr edit Cook’s testimonyby pointing out a potential discrepancy

betwee n what she testified to at trial and a statement she had g iven to a prose cutor one month after the at t ac k

. I n her state ment to the prosec utor, Cook said “she unlocke d the door a nd went in . . . and hit the g ara g e door.” I n her te stimony , she maintained the g ara g e door w as lower ed befor e the door

window was br oken. Additionall y , C o ok told the prosecutor that she bit the Def endant during the strug g le, but appar ently she only thought she had bitten the De fenda nt. Cook al s o t es t i fi ed that, at least onc e, the De fenda nt touched her afte r she wa s bloody . Cook and the defe nse counse l discussed whose hair Cook had in her ha nds once she g ot to W estling’ s, and Cook maintained it was he r own. Cook also denie d tel l i n g t he De fenda nt’s mother that the De fenda nt-8-

saved he r life. Cook ad m i t t ed that the Def endant did not attempt to run over the victim after

she exit ed the ve hicle.

On re -direc t examination, C ook stated the De fenda nt was not invited into her house, a nd she
too k Coo k’ s Jee p wi tho ut he r c on se nt. Coo k ne ve r sa w the De fe nd a nt wi th a rock . S he p os sib ly

c ou ld h a ve ha d tr ou ble se e ing a t tim e s be c a us e of the blo od in he r e y e s, bu t, o n th e wh ole , s he c ou ld
see pe ople and a

g un. Cook stated she wa s not confused a bout anything a nd was not ly ing.

Al a n G ray

te sti fi e d th a t he a ndCoo k ha d be e n da tin g se ri ou sly fo r a bo ut t wo y e ars a t th e tim e of the attack. He and Cook talked on the phone the nig ht of Octobe r 28, 1999, un t i l a l i ttle after midnight. At 1 a.m., he r ece ived a c all from Westling that Cook had be en be at up, and he r ushed over. When he arrived, he a nnounced himself a s her f iancé . He was not a

ble to talk to Cook, and they just exchang ed looks

. He was conce rned that she m ight die, and this concern lasted at lea st two day s. Cook’s pare nts traveled w ith Cook t o the Med in the he licopter.

I n describing Cook’s house, G r ay testified that there wer e five rooms with blood and damag e. The master

bedroom, the kitchen, and the den all had larg e amounts of bl ood in them. Gray testified that Cook had months of pain and phy sical thera py afte r the a ttack.

On cr oss-examinat i o n , Gra y testified that he unde rstood that he wa s the orig inal suspect beca use of his relationship with Cook, but that suspicion quickly passed. I t only took him about ten minutes to ge t from midtown to Cook’s house beca use of the spee d at which he was driving . After h e go tt o C o o k ’s h o u s e, o n e of t h e S h er i ff ’s d ep u t i es t o o k a st at em en t fr o m h i m

. He wa l k ed t h ro u gh the house with one of

the police of

fice rs af ter he made the sta tement but that was not until around 4 a.m. He went brie fly

into the house to g et Cook’s dog , but he did not specifica lly rec all whether the dog was in t he house or i n the y ard. Gra y also did not rec all which door he went throug h to ge t into the house. Gray seeme d to rec all that there wer e people taking pictures a nd looking f or evide nce wh e n h e fi rs t w e nt i nto the ho us e . H e re c a lle d s e e ing a pu rs e on the kit c he n f

loo r w ith its c on te nts spilled out.

Gra y testified that h e tol d a police of fice r that he mig ht have e x pecte d Cook’s g erma n shepar d, Chelsea, to attempt to def end Cook. Ther e wa s blood in m any locations throug hout the ho us e , s ome tim e s sp la tte re d, so me times po ol ed. I n 1 99 8, Coo k a ndhe r f a the r d e c ide d to joi ntl y pu rc h ase the house. Gray and Cook wer e dating seriously then, but Gra y

had no input on the purcha se. Gray

was a cquainted w ith W estling, but he had not met Dr. Ding eldein. Gr ay never discussed the incide nt with any other witnesse s, h o we v er , h e discussed it with Cook and with the
prosec utor from the District Attorney ’s Offic e. Gra y stated that his te stimony was primarily what he saw and obser ved per sonally , except for much of the medical information, which wa s passed fr om Cook’s pare nts to Gray

.

Detec tive David B oddie, cur rentl y a narcotics dete ctive with the Shelby CountySheriff’ s Depa rtment, testified that he w as a patrolman in 1999, when the attack took place

. On the nig ht of October 28, 1999, Detec tive Boddie rec eived a call about an incident, and he ar rived on location at-9-

about 12:40 a.m. When he g ot to the scene , he observe d a white fema le with multiple injuries to her fac e, nec k, and abdome n. Her shirt ha d to be ripped off to de termine the e x tent of the injuries, a nd sh e wa s b le e din g pr of

us e ly

. Ne ig hb or s we re pr e se nt, bu t De te c tiv e B od die didno t sp e c if ic a lly re c a ll whether he ar rived be fore or af

ter t h e p ar am ed i cs . Cook was in no condition to talk, so he g ot information from the ne ighbor s.

Upon re ceiving information, Dete ctive B oddie imm ed iately radioe d that Cook’s J eep w as po ssi bly take n in the a tta c k, a nd of fi c e rs in the are a we re to be on the loo ko ut fo r i t. S ho rtly there afte r, about 1 a .m., the detec tive rec eived information that Cook’s J eep ha d been stoppe d. Ten to fi ft e e n minu te s af

te r De te c tiv e B od die arrive d o n th e sc e ne , Co ok wa s a ir lif te d to the ho sp ita l w ith

c ri tic a l in jurie s. Af te r C oo k w a s ta

ke n f ro m th e sc e ne , D e te c tiv e B od die pr e pa re d a n o ff e ns e re po rt

. He wa s n ot i nv olv e d in the arr e st o f the De fe nd a nt, bu t he didse e the Jee p, wh ic h h a d c ra sh e d in to a fe nce of f of Appling Road. Dete ctive Boddie testified he had ne ver me t the Def endant be fore that nig ht.

On cr oss-examination, Detective B oddie t es t i fi ed he w as on the e leven to seve n shift, and he wa s permitted to patrol any wher e in Shelby County . The de tective g ot a ca ll from the dispatche r, and he be lieved he w as the fir st car on the scene but was not absolutelysure. De tective B oddie g ot information from the two ne ighbor s, Westli ng and Dr . Ding eldein. The scene was ve ry hectic, a nd he tho ug ht h e pr ob ably

g ot s ta te me nts fr om the tw o n e ig hb or s in div idu a lly , b ut h e di d not r e c a ll
sp e c if ic a lly

. He ma de his re po rt a ft e r the inc ide nt. De te c tiv e B od die ne ve r fo un d a g un , a ndto h is knowledg e, no one e lse did either. The detec tive saw the D efe ndant at the sc ene of the cr ash, but he did not rec all what she w as we aring

. Deputy J ere my Finch, of

the Shelby

CountySheri ff’ s Depa

rtment, testified that he w as

work in g o n a te n to s ix s h if t th e n ig h t o f th e a c c id e n t. H e r e s p o n d e d to a c a ll ab o u t awhite J eep Cherokee at about 1 a.m. Over the radio, Deputy Finch w as advised that another of fice r wa s behind the suspect Jeep and intended to pull it ove r, and De puty Finch pulled in be hind this officer’ s car

. J ust as the J eep w as g etting on the ramp from Germantown Parkwa y to Interstate 40, Offic er Clar k and De puty

Finch turned on their e merg ency lights and sire ns and attempted to stop the vehic le. I nitially , the J eep looke d as thoug h it wa s g oing to pull over, but the n it a cce lera ted g oing w estbound

on t he interstate . At that point, a small Mits ubishi pull ed up next to the J eep, w hich Finc h later le arn e d w a s a n a c qu a int a nc e of the De fe nd a nt. Th e Jee p s low e d d ow n a ndsp e d u p a fe w t ime s, trave ling at a maxim um speed of se venty miles per hour.

After about a mile of c hasing the J eep, the driver attempted to exi t the interstate on Appling Road. I t “over shot” the exit ramp and went down a hill, across a de ad e n d s t re et , an d throug h a fenc e. The J eep cam e t o rest on a se cond fe nce. T he off icer s exi ted their ve hicles bec ause of the
terrain and saw the Def

endant exit the J eep and proce ed to a small woode d are a. The office rs cha sed down and subdue d the Def endant. Ac cording to the arr est ticket, all this happ en ed at 1 2:56 a.m., October 29, 1999.

Deputy Finch r emained on the scene , did not searc h the Def endant, but pre pare d an ac cident-10-

re po rt be c a us e the Jee p w a s d a ma g e d. Pho tog ra ph s o f the da ma g ed J eep we re a dmi tte d in to evidenc e, as well as a picture of the Def endant. Deputy

Finch ide ntified the picture of the De fenda nt

as t h e p er s o n wh o wa s arre s t ed t h at m o rn i n g.
Serg eant Scott Wright, of th e Shelby CountySheriff’ s Depa

rtment, testified that he w as

c a lle d to the sc e ne of

a ro bb e ry a ndsta bb ing on the nig ht o f O c tob e r 2 8, 19 99

. Hi s jo b w a s to proce ss the scene for e vidence
, so he looked for any thing that may have been involved in the c rime. P ar t of his duties were to take picture s of the sce ne. The trial court then a dmitted into evidence a number of photog raphs take n by Serg eant Wrig ht and a dia gra m d ra wn b y Serg eant Wrig ht. The
serg eant de scribed a

shoe that wa s found in the y ard, a nd one that wa s found i n the stree t. The jury was shown pictur es of a wallet on the floor of t he gar ag e and cre dit car ds that were also on the floor of the g ara g e. The jury

was t h en s hown a pictur e of the door that led fr om the g ara g e into the kitchen, which ha d a broke n window pane . The jury was then shown pictures of the inside of Cook’s house, and a

picture of

the rug that was in Westling’s f oy er.

On cr oss-examination, S erg eant Wrig ht stated that he could not rec all specific ally whether
a perimeter wa s set up, but the house was secur ed. There was a statement in the re port that mail had been stre wn about on the law n, but it had been p i cked up by the time Serg eant Wrig ht arrive d. Serg eant Wrig ht de scribed finding the cr edit car ds on the left side of the g ara g e, which w ould be the driver’ s side of the ca

r. I n discussing the victim’s shoes, Serg eant Wrig ht stated that one shoe w as found in the middle of Sand Cree k Cove, and one shoe wa s found in the victim’s y ard.

Serg eant Raymond Sides of the Shelby CountySheriff’ s Depa

rtment testif

ie d th at h ew a s part of the pe rsonal crimes division i n October 1999. Serg eant Sides testified that he was pre sent when the Def endant wa s arr ested on the m o rn i n g of Oc tober 29, 1999. He identified the Jeep from previously

admitted photogr aphs, and he stated that he sear ched the Def endant a fter othe r off

icer s ha d de ta ine d he r an d fou nd tw o g oldri ng s, on e wi th s ix cl e ar s ton e s in it, a ndtw o g oldne c kla c e s. He too k th e se ite ms an d pla c e d the m in a n ev ide nc e e nv e lop e , w hic h w a s th e n p la c e d in a pr op e rt y

room. Se r g e a n t S id e s th e n id e n ti f ie d th e e n v e lo p e th a t h e u s e d

. Se r g e a n t S id e s a ls o sear ched Cook’s J eep but wa s unable to loca te a g un, scissors, or a r ock.

On cr oss-examination, S erg eant Sides testified that whe n he ar rived on the scene of the Jeep

a c c ide nt, he fo un d th e De fe nd a nt i n th e c us tod y of Of fi c e r Clark

. Se rg e a nt S ide s d id n ot f inda pu rs e wh e n h e sear ched th e Jee p. Af te r the se arc h, a

wr e c ke r w a s c a lle d, a ndthe ve hic le wa s ta ke n to Arling ton. All four doors on the Jeep we re shut.

Serg eant James May es, who curr ently works for the I nterstate I nterdiction Division, stated that h e w o rk e d w ith th e h o mi c id e u n it o f th e Sh e lb y Co u n ty Sh e r if f ’ s D e p ar tm e n t in 1999. The morning of Oc tober 29, he was c alled to Cook’s home, and he later visited the sc ene of the J eep

acc ident in order to look for a we apon that was possi bly used i n the attack. The only thing f ound was

a re c e ipt fr om the g a s sta tio n on Ge rm a nto wn Park way , whi c h Cook ha d just re turne d fr om p ri or to being attacke d.-11-

The trial court admitt ed photogra phs of the re ceipt, the outside of Cook’s Jeep, and the inside of C ook’s J eep, which s howed blood stains. The r ece ipt showed that Cook purcha sed the items from the g as station at 12:20 a.m. on Octobe r 29, 1999.

On c ro ss- e xami natio n, Ma y e s state d that he fi rs t me t the De fe nd a nt on Oc tob e r 29
, 19 99 , in h i s o ff i ce , l o ca t ed at 2 0 1 P o p l ar Av en u e, M em p h i s

. W h en h e s aw h er , s h e wa s we ar i n g an o ra n ge ja ilh ou se sh irt a s sh e ha d a lr e a dy c ha ng e d o ut o f the c lothe s she was wearing the pr e vio us nig ht. May es took a stateme nt from Cook on November 1, 1999, but he also thoug ht he spoke with her the night of the attack. May es ex plained that Cook stated she was attacked with a gun, which is why the office rs wer e sea

rching for a

g un.

The Def ense called Norma Cartwrig ht, the Def endant’ s mother. Cartwrig ht te stified that she met the victim, and the victim told her that she had for g iven the De fenda nt, and the De fenda nt saved her life . She had also met Jeremy Whit e, and she described him as her “ worst nig htmare.”

On c ros s-e x ami natio n, Cart wrig ht s ta te d th a t th e De fe nd a nt m e t Whi te wh ile a t Woo da le school, when she was seve nteen. She admitted that the Defenda nt had problems befor e the ag e of
sevente en, including being rape d at six teen, a nd juvenile problems at t hirteen, fifteen, a nd six teen. At thirteen, she w as ar

rested f or theft of

property ; at fiftee n, she wa s arr ested for as sault; and at six teen, she was a

rre sted for a g g ravated assault. Cartwright state d that she did k now about the De fe nd a nt’ s arr e st fo r po int ing a g un a t tw o pe op le a ndthr e a te nin g to kill the m, b ut s he sa id tha t th is behavior was a result of the r ape.

After considering this evidence , the jury found the De fenda nt guilty of eva ding a

rre st in a

m o t o r v e h i c l e w i th r i s k

o f d e a t h
, a t t e m p t e d m u r d e r

i n t h e f i r s td e g r e e , e s p e c i a l l y a g g r a v a t e d r o b b e r y, t wo co u n t s o f e s p ec i al l y aggr av at ed b u rgl ar y , an d fo u r co u n t s o f e s p ec i al l y aggr av at ed k i d n ap p i n g.

C. Se nt e nc ing He ar ing

A pre sentenc e re port was a dmitted into evidence by the trial court, which included a

s t at em en tb y

t h e v i ct i m , wh o i n d i ca t ed t h at s h e w o u l d ra t h ern o tt es t i fyat t h e s en t e n c i n g h ea ri n g. The State c alled Westling, who testified about the emoti onal impact that the attack had on him and his family . Dr. Ding eldein also testified a bout the numerous victims left in the wake of the attack by the Defenda nt. She stated that for months she smelled blood and saw the hole s in Cook’s face

.

The Def endant testified that she was sorry , and if she had the power to chang e anything, she

wo uld . Sh e fu rthe r r e a d f

ro m a pr e pa

re d state me nt, inc lud ing “ the te mpt a tio n is the re , e ve n the wi ll is there, but there is no desire for me to f urther commit a ny of the char g es if I wanted to. I f I

wanted to, it’s right ther e, but I

don’t want to.” The Defendant’s written st atement was enter ed into evidenc e and consisted of

fiftee n handwritten pag es. De fense Counsel questioned the De fenda nt, who stated that she knew that she wa s bipolar. Additionally , she stated that she was ra ped at sixt een by

her sister’s boy friend. She w as in thera py , and at one time doctors told the Def endant’ s mother that she was mildly

reta rded. The Def

endant g ot her diploma and joined the Navy
, which promptly sent her-12-

back home afte r a f

ailed drug test.

The De fenda nt stated that on the nig ht of Octobe r 28, 1 999, she wa s on heroin, coc aine, marijuana , and alc ohol. She and White were able to pay for these things from money obtained out

o f W h i t e’ s p ar en t s ’ ba n k ac co u n t

. T h e De fe n d an t s t at ed s h e ha d co m p l et ed al co h o l
, d ru g, p ar en t i n g, and job re adiness cla sses during the six y ear s that she had a lrea dy spent in jail.

On cr oss-examination, the Defe ndant stated that her prepare d statement took her f rom Marc h to J une to write. To he r, it meant t hat s he had focuse d on the errors of her life, a nd it showed soul

sear ching

. She stated that she took stuff from Cook, hit her a few times with a “pocke t siz ed” r ock, and took her

car . She also said she blac ked out for portions of the evening, b u t s h e re membere d seeing Cook at a g as st ation and following her home. She stated that she did not know White was stabbing Cook, and, when she found out
, she shook her head no. While White was stabbing Cook, she wa s looking throug h the house for money . She did not threaten to kill Cook, she merely told her to shut up and curse d at her . She repe atedly stated she did not beat the victim with a gun.

The State a sked for

enhanc ed sente ncing based on the following : (1) the De fenda nt had a prior criminal hist ory ; (2) the vic t i m wa s treated with exceptional crue lty ; (3) the De fenda nt used
a g un in the commission of the crime; (4) the Def endant wa s convicted as a juvenile of crimes that

wo uldbe fe lon ie s ha d sh e be e n a n a du lt; a nd(5 ) b e c a us e sh e wa s th e le a de r o f the tw o a ssaila nts

. A s t o t h e s p e c i f

i c c r i m e s , t h e S t a t e a s k e d f o r f o u r ye ar s f o r i n t e n t i o n a l l y e v a d i n g a n arr e s t , t w e n t yfi v e y ea rs for attempted first deg ree murder, twe nty -five y ear s for the two me rg ed counts of
espec ially ag g ravated robbe ry , twelve y ear s for e spec ia ll y a g g r a v ate d burg lary , and twenty -five y ear s for the f our merg ed counts of especially ag g ravated ki dnapping

. The State a rg ued that ther e we re no mitigating fac tors and numer ous enhanc ement fa ctors. The State also asked f or conse cutive
sentenc ing in lig ht of the severity of the off enses a nd beca

use the public should be pr otected f rom further serious criminal conduct by the Def endant.

The de fense responde d that many of the Def

endant’ s problems stem from her history of drug abuse a nd her be ing r aped. T h e def ense a lso sugg ested that the D efe ndant’s low I Q should be considere d in miti g ation.

The trial c ourt hear d the arg uments, and st ated that this was the worst set of f acts he had eve r hear d in his forty

y ear s dealing with c riminal case s. When the victim did not have the money that the Def endant wanted, she beat the victim “unmerc ifully .” The court found the jury ’s determination of g uilt on all the charg es wa s proper and that the De fenda nt was a S t an d ar d R ange I Offe nder. Additionally , the court found the Defenda nt had a history of criminal behavior
, the Def endant wa s the le a de r i n th e cri me s, the vic tim wa s tr e a te d w ith e xce pti on a l c ru e lty , th e vic tim us e d a de a dly

wea pon, and th e De fe n d an t was c onvicted of c rimes as a juvenile which would be felonies a s an adult. The court also noted that the De fenda nt had eig ht disciplinary write-ups w hile incar cer ated be fo re tr ia l a ccor di ng to the pr e se nte nc e re po rt . T he tr ia l c ou rt fo un d th a t th e De fe nd a nt t ri e d to manipulate the c ompetency examination bythe doctors be fore t ri al

. T h e court c onsidered the
pr ob le m s t h e D e f

e n d a n th a d g r o w i n g u p , a s s u m i n g s h e w a s r ap e d
, b u tn o t e d t h a tt h e s e p r ob le msT h e two c o u n ts o f esp e c ia lly a g g ra v a te d b u rg la ry w e re m e rg e d , as w e re the fo u r c o u n ts o f esp e c ia lly 2

a g g ra v a te d kid n a p p ing

.
-13- wer e not an e x cuse f

or what she did.

The trial court sentenc ed the Defe ndant to four y ear s for e vading arr est, twenty -five y ear s for

a tte mpt e d mu rd e r, tw e nty -f ivey e ars fo r e sp e c ia lly

a g g ra vate d r ob be ry , tw e lve y e ars fo r e sp e c ia lly

a g g ra vate d b ur g lary , an d tw enty fi ve y e ars fo r e sp e c ia lly

a g g ra vate d kidn app ing

. Th e c ou rt a lso 2 determined that, beca

use of the s everity of t he offenses and the dang erousne ss of the De fenda nt, the
sentenc es should run conse cutively , for a n eff ective se ntence of ninety -one y ear s.

D. Mot ion f

or a Ne w T rial

Th e De fe nd a nt m a de a

mot ion fo r a

ne w tri al argui ng the De fe nd a nt w a s in c omp e te nt t o sta ndtr ia l du e to h e r l ow I Q. Ad dit ion a lly , th e De fe nd a nt r a ise d the is su e of th e le ng th o f t ime it took for her case to come to trial — roug hly six y ear s. The De fenda nt also claimed that ther e wa s insufficient e vidence to support the att em p ted murder and espe cially

ag g ravated kidnapping convictions. Fina lly , the Def endant c laimed th at t h e t ri al court failed to miti g ate the D efe ndant’s

se nte nc e du e to h e r l ow I Q a ndhis tory of me nta l he a lth pr ob le ms.

The trial c ourt determined that the Defenda nt was competent, as opi ned by Dr. Vinture lla and reinfor ced by

the Def endant’ s statement to the court at her sentencing , and that ther e we re “over whelming ” fa cts to support the Def endant’ s convictions for bot h at t empted murde r and
espec ial l y aggr av ated kidnapping . The trial c ourt found that the De fenda nt was maling ering , and she showed littl e or no rea son to mitig ate her sentenc e. Finally
, the trial court found t h at the Def endant ne ver a sked for

her tria l, and any

delay s were cause d either by the Def endant or by her co-de fenda nt, and that the De fenda nt showed no pre judice bec ause of

the delay

.

I t is fr om the abo ve me nti on e d ju dg me nts that th e De fe nd a nt n ow app e a ls

II. Ana lys is

On appe al, the De fenda nt contends that : (1 ) t h ere was insuffic ient evidenc e to sustain her convictions for attempted murder an d es p ec i ally ag g ravated kidnapping ; (2) the tria l court er red wh e n it sen ten cedthe De fe nd a nt; (3 ) the tr ia l c ou rt e rr e d w he n it

re lie d o n c e rt a in t e sti mon y in determining whe ther the Def endant was competent; and (4) he r Constitut ional rig ht to a speedy trial was violated.

A. Suf fi ciency of the Evidence

The De fenda nt challeng es the suff iciency of the evidenc e for he r convic tions of attempted murder and espec ially

ag g ravated kidnapping . When an accuse d challeng es the suff iciency of the

e vid e nc e , th is C ou rt ’s sta nd ardof re vie w i s w he the r, a ft e r c on sid e ri ng the e vid e nc e in the lig ht m os t-14-

fa vo ra ble to the Sta te , “ a ny ratio na l tr ie r of fa c t c ou ld ha ve fo un d th e e sse nti a l e le me nts of the c ri me bey ond a re asonable doubt.” J ackson v. V irg inia, 443 U.S. 307, 319 (1979); see Te nn . R. Ap p. P. 13(e) ; State v. Goodwin, 143 S.W .3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W .3d 247, 276 (Tenn. 2002) ). This rule applies to finding s of guilt based upon direc t evidence , circ umstantial evidenc e, or a

combination of both direc t and circ umstant i al ev idence . State v. Penderg rass, 13 S.W .3d 389, 392-93 (Te nn. Crim. App. 1999).

I n d e te rm ini ng the su ff

ic ie nc y of the e vid e nc e , th is C ou rt

sh ou ld n ot r e -w e ig h o r r e -e va luate the e vid e nc e . St a te v. Ma tth e ws, 8 05 S.W. 2d77 6, 77 9 ( Te nn . Crim. Ap p. 19 90 ). No r m a y thi s Cou rt su bs titute its inf

e re nc e s f or tho se dr a wn by

the tr ie r o f f

a c t f ro m th e e vid e nc e . Stat e v. B ug g s, 995 S.W .2d 102, 105 (Tenn. 1999); L iakas v. State, 286 S.W .2d 856, 859 (Tenn. 1956) . “Que stions

c on c e rn ing the c re dib ili ty of the wi tne sse s, the we ig ht andva lue of the evi den ce, as w e ll a s a ll fac tual issues raised by

the evidenc e ar e re solved by the trier of fac t.” State v. Bla nd, 958 S.W .2d 651, 659 (Tenn. 1997); L iakas, 286 S.W.2d at 859. “A g uiltyverdic t by the jury , approve d by

the trial judg e, ac cre dits the testimony of the witnesses for the State and r esolves all conf licts in favor of the theory

of the State.” State v. Cabbag e, 571 S.W .2d 832, 835 (Tenn. 1978) ; State v. Grac e, 493 S.W .2d 474, 476 (Tenn. 1973) . The Te nnessee Supreme Court stated the r ationale f or this rule:

This well-settled rule rests on a sound f oundation. The trial judg e and the jury see the witnesses fa ce to f

ace , hear their testimony

and observe their de meanor on the
sta nd . T hu s th e tr ia l ju dg e a ndjury are the prima

ry ins trume nta lit y

of jus tic e to determine the weight and cre dibilit y to be given to the testimony of witnesses. In the trial forum a lone is there human atmosphere and the totality of the e vidence cannot be re produce d with a written re cord in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Te nn. 1966) (c iting Carr oll v. St ate, 370 S.W.2d 523 (Tenn. 1963)). This Court m ust aff ord t he S tate of Tenne ssee the stronge st leg itimate view of the e vidence contained in the rec ord, as well as all rea sonable infere nces which may be dra wn from the e vidence

. Go od wi n, 14 3 S. W.3 d at 77 5 ( c iti ng Sta te v. Smith, 24 S.W. 3d27 4, 27 9 ( Te nn . 2 00 0) ). B e c a us e

a ver dict of g uilt against a defe ndant remove s the presumption of innocenc e and raises a pre sumption of g uil t, the c on vic te d c ri min a l de fe nd a nt be ars the bu rd e n of sh ow ing that th e e vid e nc e wa s le g a lly insufficient to sustain a g uilty verdic t. State v. Carruthe rs, 35 S.W.3d 516, 557-58 (Tenn. 2000).

1. Atte m pted Murder

One is g uiltyof criminal attempt when that per son,
acting with the kind of culpability require d for the of

fense : (1) Intentionally eng ag es i n action or cause s a re sult that would constitut e an offe nse if the c ircumstance s surroundi n g t h e conduc t were as the pe rson believe s them to be;

(2) Ac ts with intent to cause a result that is an ele ment of the off ense, a nd-15-

believes the conduct will cause the result without further conduc t on the person’ s part; or

(3 ) A c ts w ith int e nt to co mpl e te a c ou rs e of a c tio n or ca us e a re su lt that w ou ld constitute the offe nse, under the circ umstances surr ounding the conduct as the person believes the m to be, and the c onduct constitutes a su b stantial step towards the commission of the offe nse.

Tenn. Code Ann. § 39- 12-101(a )(1) -(3) (2003). F irst deg ree murder is the pr emed i t at ed and intentional killi n g o f an o t her. Te nn. Code Ann. § 39-13- 202(a) (1) ( 2003). Tenne ssee Code Annotated section 39-13-202( d) defines preme ditation as “an a ct done a fter the exercise of ref lection and judgme nt.” Premeditation is thinking about the killing bef ore it happe ns. State v. Br own, 836 S.W .2d 530, 540-41 (Tenn. 1992). This is a question of fa ct for the jury to determine, a nd it can be inferr ed fr om a number of circumstance s, including: “the us e of a deadly wea pon upon an unarmed victim; the particular crue lty of the killing; decla rations by the def endant of an intent to kill; evidence

o f p r o c u r e me n t o f a w e ap o n ; p r e p ar a ti o n s b e f o r e th e k il li n g f

o r c o n c e a lm e n t o f th e c r im e ; and calmness immediately

afte r the killing.” State v. Bla nd, 958 S.W .2d 651, 660 (Tenn. 1997)

.

The De fenda nt contends that, bec ause the victim’s testimony was “uncertain as to details,” he r te sti mon y sh ou ld no t be be lie ve d. Th e De fe nd a nt c la ims that, be c a us e thi s was t he o nly
te sti mon y in w hic h s ome on e pe rs on a lly wi tne ssed th e De fe nd a nt r e pe a te dly be a tin g the vic tim , if it w a s d isc ou nte d, the re wo uld be ins uf fi c ie nt ev ide nc e to c on vic t th e de fe nd a nt. Ho we ve r, we no te tha t i t i s w e l l

- e s t ab l i s h e d l a w i n T e n n e s s e e t h a t t h e t e s t i m o n y o f a v i c t i m , s t a n d i n g a l o n e , is sufficie nt to support a conviction. State v. Strickland, 885 S.W .2d 85, 87 (Tenn. Crim. App. 1993) ; State v. Wil liams, 623 S.W .2d 118, 120 (Tenn. Crim. App. 1981) . Additionally , this Court cannot

re -w e ig h th e e vid e nc e pr e se nte d at tria l. We mus t vie w the e vid e nc e in the lig ht m os t f a vo ra ble to the State, and that pr ovides ample e vidence upon which to convict the D efe ndant.

The De fenda nt has stated that she di d not fee l responsible for the stabbing beca

use White was the one who a ctually

stabbed the vic tim. However , “A pe rson is crim i n ally responsible for

an offe nse committed by

the conduc t of another

if . . . [a] cting with intent to promote or assist the

c omm iss ion of

the of fe ns e , o r t o be ne fi t in the pr oc e e ds or re su lts of the of fe ns e , th e pe rs on so lic its
, direc ts, aids, or attempts to aid another person to commit the offe nse

. . . .” Tenn. Code Ann. § 39- 11-402(2) (2003). “Eac h party to an offe nse may be cha rg ed with commission of the offe nse.” I d. § 39-11-401( b) (2003) . Be cause the Def endan t and White were attempting to r ob the victim, and both profit from the r obbery , they are responsible for

eac h other’s a ctions.

The e vidence at trial prove d that the Defenda nt and W hite followed the vic tim home from
a g as station and tac kled her on her la wn, outside of her home. The vic tim was drag g ed inside her house whe re the Def

endant beat her repe atedly with a g un, and White stabbed her sevente en times wi th a pair of sc iss or s. Th e se fa c ts s ho w the us e of a de a dly we apo n o n a n u na

rm e d v ic tim
, particula r cr u e lty , and pre paration. Thus, there wa s clea r evide nce upon w hich to find preme ditation. Additionally , the beating a nd stabbing of the victim in this case wer e substantial ste ps towards he r-16-

be ing kil le d. Th e jury ha d amp le e vid e nc e up on wh ic h to con vic t the De fe nd a nt of a tte mpt e d f

ir st deg ree murder of

Cook. The Def

endant is not entitled to relief on this iss ue.

2. Espe c ial ly A gg r av at e d K idna pping

One is g uilty of espec ially ag g ravated kidnapping when that person “knowing ly remove s or

c onfi nes a no the r u nla wf

ull y so a s to int e rf

e re su bs ta nti a lly

wi th the oth e r’ s li be rt y ” a ndthe c ri me is “(1) a ccomplished with a de adly wea pon . .

. or wher e the victim suffer s serious bodily injury .” Te nn . Co de An n. §§ 39 -1 3- 30 2( a ), -3 05 (2 00 3) . Se ri ou s b od ily inj ury inv olv e s, a mon g oth e r thin g s, “a substantial risk of death” or “ex treme phy sical pain.” Tenn. Code Ann. § 39- 11-106(a )(34) (2003).

Ag ain, we mu s t v i ew the e vidence in the light most favor able to the State, a s a convic tion

remove s the presumption of innoce nce and imposes a pre sumption of g uilt. Cook te stified that she was take n ag ainst her will into her home. She was c onfined inside of he r home while she was be aten with a g un and stabbe d with a pair of scissors. She was th en p l ac ed in t he bac k of her car . The De fe nd a nt b e g a n to ba c k o ut o f the drive way , at wh ic h poin t Cook e sc ape d fr om the c ar. Th e re is ample evide nce f

or a jury t o d et ermine she was c onfined or r emoved, a nd the conf inement and

remova l substantiallyinterfe red with her liberty

. The jury also hear d evidenc e that a g un and scissors

wer e used to hurt the vi ctim, and that the victim suffe red se rious bodily injury . A re asonable jury could conc lude, from the evidenc e prese nted, that the Def endant c ommitt ed espe cially ag g ravated kid na pp ing . T his iss ue is w ith ou t me ri t.

B. Se nt e nc ing

When a def

endant c halleng es the length, rang e or ma nner of service of a se ntence , it is t he du t y of this Court to conduct a de novo r eview on the rec ord with a pre sumption t hat “the determinations made by

the court from which the a ppeal is t aken a

re c orre ct.” Te nn. Code Ann. § 40 -3 5- 40 1( d) (2 00 3) . A s th e Se nte nc ing Com mis sio n Com me nts to thi s se c tio n n ote , th e bu rd e n is now on the appe aling party to show that the sentenc ing is improper . Tenn. Code Ann. § 40- 35-401, Sen te n c in g Co mm ’ s Cm ts

. T h is me a n s th a t i f th e tria l c o u r t f

o ll o w e d th e s tatu to r y

s e n te n c ing
proce dure, ma de finding s of fa cts which a re a dequate ly

supported in the re cord a nd g ave due consideration and proper weig ht to the factors and principles that are rele vant to sentenc ing unde r the 1989 Sentencing Act, Te nn. Code An n

. § 4 0 -35-103 (2003), we may not disturb the sentence even if a diffe rent re sult was pref err ed. State v. Ross, 49 S.W .3d 833, 847 (Tenn. 2 0 0 1 ). The
p re s u m p t i o n d o es n o tap p l y t o t h e l ega l co n cl u s i o n s re ac h ed b y t h e t r i a l c o u rt i n s en t en ci n g a defe ndant or to the de terminations made by the t rial court which are predicate d upon uncontrove rted fac ts. St ate v. De an, 76 S.W.3d 352, 377 (Tenn. Crim. App. 2001); State v. Butler , 900 S.W .2d 305, 311 (Tenn. Crim. App. 1994) ; State v. Smi th, 891 S.W .2d 922, 929 (Tenn. Crim. App. 1994)

.

I n conducting a de novo r eview of a sente nce, w e must consider ( 1) any evidenc e re ceive d at the trial a n d s en t encing hearing, ( 2) the pre sentenc e re port, (3) the principles of se ntencing , (4) the ar g uments of counse l relative to sentencing alternatives, (5) the nature a nd char acte ristics of the-17-

of fe nc e , ( 6) a ny

mit ig a tin g or e nh a nc e me nt fa c tor s, (7 ) a ny state me nts ma de by

the de fe nd a nt o n h is

or he r o wn be ha lf

a nd(8 ) thede fe nd a nt’ s p ote nti a l or la c k o f p ote nti a l f

or re ha bil itatio n o r t

re a tme nt. See Tenn. Code Ann. § 40-35-210 (2003); State v. Tay lor, 63 S.W .2d 400, 411 (Tenn. Crim. App. 2001).

1. Consecutive Sente nces

Th e tr ia l c ou rt

ma de the de te rm inatio n th a t th e De fe nd a nt’ s fi ve se pa rate se nte nc e s sh ou ld

run conse cutively

. Tenne ssee Code Annotated section 40-35- 115 (2003) r equire s that a trial court consider se vera l fac tors when de termining wh ether sentenc es should be run c oncurr ently or

consec utively . Among other thing s, if a trial c ourt finds, by a pre pondera nce of the evidenc e, that “[t] he def endant is a da ng erous of

fende r whose behavior indicates l ittle or no reg ard f or human life, and no hesitation about co m m i t t ing a crime in whic h the risk to human life is hig h” it may order
sentenc es to be run c onsecutively . Tenn. Code Ann. § 40- 35-115(b) (4) (2 0 0 3 ). The Te nnessee Supreme Court has state d that, with reg ard to f inding someone is a “da ng erous of fende r,” the trial court must find that “a n extended sentenc e is nec essary to protect the public a g ainst further criminal

c on du c t by

the de fe nd a nt and that the c on se c uti ve se nte nc e s mus t r e a so na bly re la te to the se ve ri ty of the off enses c ommitt ed.” State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).

At the sentenc ing he aring to consider whe ther the statutory and Wilkerson requi r e me n ts w ere prese nt, the trial judg e stated that this wa s one of the w orst case s he had he ard in a lmost forty y ear s in criminal law. The court stated it wa s hard to imag ine how the victim lived through the attack a fter the De fe nd a nt “ be a t he r un me rc if ull y .” Th e De fe nd a nt wa s the re , watc hin g , wh ile Whit e re pe a te dly
sta bb e d th e vic tim . T he c ou rt fo un d th e De fe nd a nt wa s the “ ma jor a c tor ” a ndtr e a te d th e vic tim wi th exceptional crue lty . The De fenda nt planned for the vi ctim not to live throug h the i ncident, as shown by he r b e ing pu t int o he r ow n c ar to be drive n a way . T he vic tim wa s so ba dly

be a te n th a t he r n e xtdoor neig hbors of ove r a y ear did not recog nize her. The D efe ndant showed little reg ard f or human life and did not hesitate in c ommitt ing a crime in whic h the risk to life wa s high.

Be cause the t ri al court made suff icient finding s on the issue to support consec utive
sentenc ing pur suant to Tennesse e Code Annota ted sec tion 40-35-115 and Wilkerson, we ma y not disturb the sentenc e. The Def endant is not entitled to relief on this iss ue.
2. Mitigating and E nhan cem ent F actor s

The Def endant also challeng es the impositi on of the maximum sentenc e within eac h rang e, supported by

the finding of four

enhanc ement fa ctors and n o mitigating fac tors. Specifica lly , the Def endant a rg ues t hat t he trial court failed t o g ive any weig ht to the Defenda nt’s low I Q s core and drug addiction. Additionally
, she contends too much we ight wa s g iven to the finding s that: (1) the De fe nd a nt w a s th e le a de r i n th e c omm iss ion of the of fe ns e s; ( 2) the vic tim wa s tr e a te d w ith exceptional crue lty ; (3) a f irea rm or other

deadly wea pon was used in the commi ssion of the c rime;

a nd(4 ) the De fe nd a nt c omm itt e d a c ts a s a juv e nil e that w ou ld b e fe lon ie s if c omm itt e d a s a n a du lt.-18-

The trial c ourt stated at the sentenc ing hearing that it ha d considere d all the ar g uments made by c ou ns e l, i nc lud ing arg ume nts c on c e rn ing the De fe nd a nt’ s I Q a nddr ug us e

. Th e c ou rt

sp e c if ic a lly addre ssed the I Q issue and noted that the D efe ndant was de termined to be a malinge rer , or one w ho int e nti on a lly

a ns we rs inc or

re c tly in o rd e r t o a

pp e ar i g no rant. Th e tr ial c ou rt wa s w e ll w ith in i ts discretion to discount arg ument by counsel that the Defenda nt was mi ldly reta rded, w hen in fa ct the

c ou rt ’s e xpe rt

de te rm ine d s he wa s n ot. Ad dit ion a lly , th e De fe nd a nt h a s p oin te d to no le g a l auth or ity that would indicate that the trial court erre d in not giving mitigating weig ht to the drug use on the day of the attack.

As to the four enhanc ement fa ctors, the tria l court made specific finding s of fa ct as to ea ch

on e . With r e g ard s to be in g t he lea der , th e c ou rt de te rm ine d th e De fe nd a nt w a s th e fi rs t pe rs on to attack Cook; she w as the one who ver bally assaulted Cook, asking for money and sea rching the house; she re peate dly

beat Cook with the handle of a r evolver ; she drove the J eep in whic h Cook was pla c e d. On the iss ue of

tr e a tme nt w ith e xce pti on a l c ru e lty
, the De fe nd a nt be a t the vic tim re pe a te dly over the head and neck and stood by while White repeatedly

stabbed the vic tim. I n addre ssing the third enhanc ement fa ctor, the c ourt found that a g un was us ed t o re p ea t edly beat the vic tim. The Def endant a dmitted she used a r ock to beat Cook. Additi onally , a pair of scissors wer e used to stab Cook. Finally , as a juve nile, the Def endant was found g uiltyof ag g ravated assault af ter she threatened to kill her sister with a g un. This would clearly be a felony had the Def

endant be en an

a du lt.

I f t he finding s of the trial c ourt are supported by the re cord, the amount of we ight to g ive

e a c h f a c tor is l e ft to the tr ia l c ou rt

. Ros s, 49 S.W. 3da t 84 7. Th e re are mor e than a de qu a te fa c ts i n the re cord to support the tria l court’s findings a nd decision. As such, w e will not re-w eig h the fac tors. The De fenda nt is not entit led to relief on this iss ue.

C. Com petency

The De fenda nt has asserted as e rror the t ri al co u rt ’s re liance on the testimonyof Dr. Vinturella a s a basis for

finding the Def

endant c ompetent to stand trial. Specific ally , the Def endant claims that the trial court e rre d beca use Dr. Vinturella knew “that the [Defenda nt] had bee n tested as a juve nile and scor ed an I .Q. below 70.”

I n d e te rm ini ng wh e the r a defend ant is c omp e te nt t o s ta ndtr ia l, the princ ipl e qu e sti on is whether the def

endant “ has mind and discre tion which would enable him to apprec iate the c harg es ag ainst him, the proce eding s there on, and enable him to make a prope r def ense.” State v. Bla ck, 815 S.W .2d 166, 174 (Tenn. 1991) (quoting State v. Stacy , 556 S.W .2d 552, 553 (Tenn. Cri m

. App. 19 77 )) . A dd iti on a lly , w e a sk “ wh e the r [the de fe nd a nt] ha s su ff ic ie nt pr e se nt a

bil ity to c on su lt w ith his la wy e r w ith a re a so na

ble de g re e of ratio na l un de rs ta nd ing -and wh e the r he ha s a ratio na l a s w e ll as fa ctual under standing of the proc eeding s ag ainst him.” Dusky v. United States, 362 U.S. 402, 402 (1960). The purpose of

the competen cy h ea ri n g is not to determine whethe r the de fenda nt was competent at the time of the crime, but whether the def endant is competent to stand trial. B lack, 815 S.W .2d at 175. The de fenda nt is required to show incompe tence by a preponde ranc e of the evidenc e,-19-

a ndwe wi ll not dis tur

b th e tr ia l c ou rt ’s de c isi on un le ss the e vid e nc e pr e po nd e rate s o the rw ise . St a te v. Oody , 823 S.W .2d 554, 559 (Tenn. Crim. App. 1991)

.

The fa cts in this case do not support the De fenda nt’s contention. I n h er t es t imony , Dr. Vi ntu re lla did no t sta te that the De fe nd a nt h a d b e e n te ste d a ndwa s g ive n a sc or e of 69 on a n I Q t e st. I nstead, the doc tor stated that a c ompara ble test had been per formed and the conc lusion was rea ched that, beca use of the D efe ndant’s re fusal to answe r truthfully on the tests, no I Q test would be g iven. The doc tor was que stioned about the ef fec ts that the use of drug s and a rape would have on a score such as this, and she r esponded that such incidents could have some eff ect.

Dr . V intur e lla

c on du c te d n o f

e we r tha n th re e te sts to d e te rm ine if the D e fe nd a nt w a s a

ma lin g e re r. Th e tr ia l c ou rt a c c e pte d th is t e sti mon y a ndthe e vid e nc e do e s n ot p re po nd e rate a g a ins t t h a t f i n d i n g

. A d d i t i o n a l l y , e v e n i f D r

. V i n t u r e l l a o b t a i n e d r e c o r d s t h a ti n d i c a t e d t h e D e f e n d a n t ’ s IQ was be low 70, the Def

endant ha s not presente d an y l aw t o support the proposition that the doctor should be disqualified as a witness. The De fenda nt is not entit led to relief on this iss ue.
D. Speedy Trial

The De fenda nt also contends that her Constit utional rig ht to a speedy trial was viol ated. See U.S. Const. amend. VI ; Tenn. C o n s t

. art. I , § 9; Tenn. Code Ann. § 40- 14-101 (2003) . When determining whe ther a

Def endant’ s rig ht to a speedy

trial has bee n violated, we look to the ba lancing test set forth in B arke r v. Wingo, 407 U.S. 514 (1972) . See State v. W o o d
, 924 S.W .2d 342, 346 (Tenn. 1996) ; State v. Baker, 614 S.W.2d 352, 353 (Tenn. 1981). We e x amine the l en gt h o f t he delay , the re asons for the delay , whether prejudice resulted f

rom the dela y , and whe ther the Def endant a sserted he r rig ht to a speedy trial. See Barke r, 407 U.S . at 530; Wood, 924 S .W.2d at 346; State v. Bishop, 493 S.W .2d 81, 83-85 (Te nn. 1973); State v. J eff erson, 938 S.W.2d 1, 12-13 (Tenn. Crim. App. 1996) . This balancing test “nec essarily compels courts to approac h speedy trial

c a se s o n a n a d hoc bas is .” Ba rk e r, 40 7 U .S. a t 53 0. I f a c ou rt de te rm ine s a ft e r a

pp ly ing thi s balanc ing te st that a defe ndant has be en de n ied a spe edy trial, the re medy

is rever sal of the conviction and dismissal of the criminal charg es. I d. at 522; Bishop, 493 S.W.2d at 83-85.

I n this case, the c rime took place in 1999 while the trial did not be g in until 2005. A span of six y ear s is indeed substantial. Howe ver, the rea sons for the de lay occur red primarily

beca use the Def endant’ s co-de fenda nt, Whi te, had i s s u es wi th his counsel. The re cord shows that Whi te’s counsel wa s a pr o s ec u t o r i n Colli erville, a n adjoining town to the a rea wher e the attack occ urre d. The State raised the issue of whether there was a conflict of interest, and that case went t o the Tenne ssee Supre me Court, causing a substantial delay

. See State v. Whit e, 114 S.W .3d 469 (Tenn. 2003); Advisory

Eth i cs Op i n ion No.2001-A-742. A fter that issue was re solved, the De fenda nt

e n t e r e d i n t o c o n v e r s a t i o n s w i t h t h e S t a t e , a t t e m p t i n g t o d e t e r m i n e i f s h e w a n t e d t o p l e a d g u i l t y. Ev e ntu a lly , th e tr ia l wa s c on du c te d a ft e r the De fe nd a nt de te rm ine d sh e didno t w a nt t o p le a d g uil ty to the char g es. These two rea sons for delay both weig h ag ainst finding the rig ht to a speedy trial was violated. See State v. Simm ons, 54 S.W .3d 755, 760 (Tenn. 2001) (possible rea sons for dela y being “[1] delay

nece ssary

to the fair and eff

ective pr osecution of the c ase, suc h as l o cating a missing-20-

wi tne ss; a nd[2] de la y

c a us e d, or acquie sc e d, in b y the de fe ns e , in c lud ing g oo d f a ith a tte mpt s to plea- barg ain or re peate d defe nse re quests for c ontinuances” ).

The most important fac tor in this analy sis is w h ether the Def endant wa s prejudice d by the de la y , th e re by

imp a ir ing he r de fe ns e

. I d. a t 76 0; s e e a lso B ark e r, 40 7 U .S. a t 53 2. A d e la y in e xce ss of one y ear

is presumpt ively

prejudicia l. Dog g ett v. United States, 505 U.S. 647, 652 n.1 (1992). We conclude that the presumption is overcome in this case. Af ter the issue of Whit e’s c ounsel was

re so lve d, the tr ia l cou rt a c tua lly c on tin ue d the tr ia l on mul tip le oc c a sio ns a t th e De fe nd a nt’ s r e qu e st. Additionally , the Def

endant ne ver r equeste d that she be g iven a tria l. T here was no c laim that the Def endant c ould not present witnesses or evidenc e bec ause of

the delay

. I n light of the rea sons for the delay , the lack of

prejudice , and the lac k of any demand f

or a tria l, t h e Def

endant’ s rig ht to a speedy trial was not violated.

III. Conclusi on

Ba sed upon the a fore mentioned re asoning and authorities, we af firm the De fenda nt’s convictions and sente nces.

___________________________________ ROBERT W. WEDEMEYER, J UDGE