### IN THE CO URT OF CR IMINAL APPEALS OF T ENN ESSEE AT KNOX VILLE Ass ig ne d o n B rie fs Marc h 2 5, 2 00 9



### STATE OF TE NNE SS EE v. SCOTT LEE MYE RS

Appeal f rom the Cr im inal Cou rt for Bradley County No. 07-216 Car roll L. Ross, Jud ge

No. E2008-00971-CC A-R3- CD - F iled Augu st 17, 2009

A Br adley County jury co n v i ct ed t he defe ndant, Scott L ee My ers, of second deg ree murder. The defe ndant appea ls, arguing that the trial court err ed by improperly qualifying two police office rs as expert witnesses and that t h e ev i d ence was insufficient to sustain his conviction. Discer ning no

err or, we aff

irm the judg ment of the trial c ourt.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

D. K E L L Y T H O M A S , J R ., J
., delivere d the opinion of the court, in which J O S E P H M. T I P T O N , P.J
., and J A M E S C U R W O O D W I T T , J R ., J ., joined.

C. Richard Hug h es , J r. (at trial and on appea l), District Public Def ender ; and L arr

y D. Wright (at trial), Assistant District Public Defe nder, f or the a ppellant, Scott L ee My ers.

Robert E. Cooper, J r., Attorney Gene ral and Reporter ; Renee W. Turner
, Senior Counsel; R. Steven Be bb, District Attorney Gene ral; and Stephen M. Hatche tt, Assistant District Attorney Gene ral, for the appe llee, State of Te nnessee

.

OP INION

At trial Tammy L ane Turner testified that she last spoke with her daug hter, Pamela L ane, the victim in this case , on May 4, 2007. She said that at that time, “ my daug hter

. . . told me if I didn’t hear from her

. . . come to Br adley County and repor t it.” Acc ording ly
, when Turner had not hear d from her daug hter by Mother’s Day (Sunday
, May 13), she decide d to leave her South Carolina home and file a missing person repor t. She filed this repor

t with the Br adley County Sheriff’ s Depa rtment

on Monday
, May 14, 2007. She acknow ledg ed that her daug hter had a history of methamphetamine
use, but she claimed that her daug hter had not used methamphetamine for “at least three y ear s”befor e her death. Turner also acknow ledg ed tha t h er d aug hter had suffe red from bipolar di sorder

and seve re de pression and ha d twice “ made a n attempt with a knife to ha rm herse lf.”

Bobby Singleton testified that she last saw the victim “in the mid-evening ” hours of May 4, 2007. She said that the victim left Singleton’s house with the defe ndant. Singleton acknow ledg ed that she was awa

re that the victim a

nd the defe ndant wer e roma ntically involved and that they had applied for

a mar riag e license

.

Offic er Richard Har

ris with the College dale, Tenne ssee, Police Depa rtment testified that on May 24, 2007, he attempted to stop a black pickup truck reg istered to the defe ndant. Offic er Har ris

saw the defe ndant’s truck run a stop sign, which led him to pull behind the defe ndant’s truck. After Offic er Har

ris pulled behind the defe ndant, the defe ndant’s truck acc eler ated and beg an trave ling at

a high rate of speed. The office r activate d his lights and sirens in an attempt to stop the vehicle, but the defe ndant sped awa

y

. Offic er Har

ris chase d the defe ndant for approximately five minutes befor e his supervisor orde red him to stop the chase

.

Detec tive Ang ie Whit temore with the Br adley County Sheriff’ s Depa rtment testified that she investigated the victim’s disappea ranc e. She said that she tried to contac t the defe ndant “numer ous times,” and that the defe ndant called her on May 23 an d M ay 3 1
, 2 0 07. She lear ned from the sheriff ’s depar tment in Ba

y County
, Florida
, that the defe ndant had been arr ested there
, so she went to Ba y County

. Whil e there
, Detec tive Whit temore took custody of two Ruge r pistols, one a model P90 and the other a model P97, that Ba y County detec tives had found in the defe ndant’s truck. She submitt ed these g uns to the T en n es s ee Bureau of I nvestig ation (TB I ) crime lab for testing.

Detec tive J immy Smit h with the Br adley County Sheriff’ s Depa rtment testified that afte r the victim was repor

ted missing, he went to the defe ndant’s house, wher e the defe ndant’s ex-wife, Susan My ers, was conducting a y ard sale. The detec tive said that he hear d a “thump” in the laundry room and attempted to g o into the house, but Ms. My ers would not let him into the house.

Captain J immy Stanford with the Bay County
, Florida
, S h er i ff ’s Depa rtment testified t hat he spoke w ith the defe ndant while the defe ndant was in custody at the B ay

County police station. After being advised of and waiving his Miranda rig hts, the defe ndant told the police that the victim had shot herse lf under her chin while he was speaking with her. The defe ndant said that he rea ched 1 for the victim’s g un, a .45 caliber pistol, as she held i t, but “[b] y the t ime he gra bbed t he gun, she had alre ady shot herself.” The de fenda nt then told the police that he plac ed the victim’s body in a
g arba g e can, which he taped closed and buried in a g rave y ard. The defe ndant drew a map depicting wher e he had buried the victim; Captain Stanford g ave this map to the Br adley County authorities.

On cross-examination, Captain Stanford ac knowledg ed that the de fenda nt was arrested on “some o l d b ad ch ec k s char g es” unrela ted to the instant case

. He said that as the defe ndant was

arr ested, “he mentioned

. . . [t hat] he worrie d that [t he victim] might have b ee n k i l l ed .” Captain

N o a u d i o r e c o r d i n g o r t r a n s c r i p t o f t h i s i n t e r v i e w w a s s u b m i t t e d a s a n e x h i b i t a t t r i a l

. 1

-2-Stanford said that another office r was prese nt dur ing the interview, and when the office r asked the

defe ndant to be specific about how the victim shot herse lf, the defe ndant said that he focuse d mainly

on the victim’s g un beca

use he saw that it was cocke d. Howeve r, Captain Stanford insisted that he was “absolutely sure [ the defendant] was say ing she was shot under the chin. .

. . I didn’t see any discrepa ncies in wha

t he was sa

y ing.”

I nvestig ator David Pitt s with the Ba y County Sheriff’ s Depa

rtment testified that he was the other officer who i nt er viewed the defe ndant i n Florida afte r hi s arr est. He said that the defendant told police that he had seen the victim “standing somewher e in the are a wher e the washing machine
was, and that she had a wea pon under her chin.” The defe ndant said that he “starte d to lunge for [t he
g un] and she pulled the trigg er.” I nvestig ator Pitts denied that the def endant sa id “any

thing about the gun m oving .

. . [or] coming highe r up on her face ;” he said that in questioning the defe ndant, he “wa nted to

. . . make sure wher e the point of impact would be i n ca s e i t was neede d at a later point, once they rec overe d her.” On cross-e x amination, I nvestig ator Pitt s acknow ledg ed that when the defe ndant first spoke with the Ba y County office rs, he told the police that he thought the victim

was still alive. He also acknow ledg ed that during the interview, the defe ndant said that his focus was on the victim’s g un, which wa s “locke d and loade d; the hammer w as bac k.”

Detec tive Serg eant J immy Woody with the Bradley County Sheriff’ s Depa rtment testified that the evening of May 31, 2007, he and other officer s went to the cemetery wher e the de fenda

nt said that he had buried the victim’s body

. Whil e the police did not locate any thing at the exact spot indicated by the defe ndant, in the morning hours of J une 1 the police, with the assistance of cada ver dog s, found a g arba g e ca

n containing the victim’s body

.

L i eu t en ant Ba

rry Tharp with the Br adley County Sheriff’ s Depa rtment testified that h e

2 supervised the section of his depar tment that proce ssed crime scene s and administered the crime lab. He said that on the morning of J une 1, 2007
, h e an d t wo other office rs collecte d evidenc e in the defe ndant’s residence
, wher e t h e v i cti m was shot. Specifica lly
, the officers collected evidence in the laundry room, located in the baseme nt of the residenc e. L ieutenant Tharp said that using a 450-
nanometer scope “cr ime scene light,” he found what appea red to be blood on one of the room’s walls. He said that the blood spatter extended “fr om the floor to about three fee t up the wall.” The office rs cut the section of the dry wall containing the blood spatter from the rest of the wall and took it back to the crime lab for fu rther testing; L ieutenant Tharp commented that “the best method of [processing ] evide nce is if the item can be remove d and taken with you, then that’s what y ou do.” He testified that he “put a label on eac h specific blood stain or blood spatter to document the number and whe re the y

wer e on the wa ll.”

L ieutenant Tharp also said that “ther e was no blood on the floors” of the laundry room, which led him to conclude that the floors had been clea ned. He added, “[I ]f somebody had been shot and

T h i s w i t n e s s a n d E m i l y H a m s t r a , a B r a d l e y C o u n t y S h e r i f f ’ s D e p a r t m e n t c r i m e s c e n e i n v e s t i g a t o r , w e r e 2

a c c e p t e d b y t h e t r i a l c o u r t a s e x p e r t w i t n e s s e s

. T h e d e f e n d a n t c h a l l e n g e s t h i s r u l i n g o n a p p e a l

. T h e t e s t i m o n y

r e g a r d i n g t h e w i t n e s s e s ’ q u a l i f i c a t i o n s w i l l b e e x p l o r e d l a t e r i n t h i s o p i n i o n ; a t p r e s e n t , w e w i l l c o n f i n e o u r r e v i e w o f

t h e i r t r i a l t e s t i m o n y t o t h e i r e v i d e n c e c o l l e c t i o n m e t h o d s a n d t h e c o n c l u s i o n s t h e y d r e w t h e r e f r o m

. -3-killed there and laid there for any leng th of time or been moved from there
, there should have been

some transfe r patterns or pools of blood

. . . .” He also said that he found what appea red to be blood

on a paper shredde r and a bottle of bleac h inside the room. The shredde r, t h e b l ea ch b ottle, and

cer tain sections of the w all wer e sent to the TB Icrime la b for testing

.

L ieut e n a n t T h a r p also saw that the car

pet inside the defe ndant’s g ara g e was missing a section, which appea

red to have been cut awa y

. He there fore remove d the car pet from the crime scene

. Whil e removing the car

pet, he saw what appea

red to be a blood stain on the underside of the car pet. L ieutenant Tharp testified that at t h e victim’s autopsy , the medical examiner found a section of

car pet inside the trash can in w hich the victim wa s buried. He se nt the car pet from the g ara g e and the car pet section found in the trash can to the TBI crime lab to deter mine if the two items came from the same sour ce.

Emily Hamstra, a crime scene investigator with the Bradley County Sheriff’ s Depa

rtment, beg an her testimony by explaining her qualifica tions and training and the methodology behind blood spatter a naly sis. As releva

nt to this case , she t estified that she “measure d individually eac h of the blood stains” found on the wall taken from the defe ndant’s laundry room. Ba sed on these

measure ments, she deter

mined the ang le at which eac h of the drops hit the wall. She then “looked
to see what direc tion the drops wer e coming from.” Ba s ed u p o n the ang les of impact and the direc tion from which the blood hit the wall, she deter mined an “ar ea of orig in” from which the blood orig inated. Her analy sis led her to conclude that “[t] he are a of orig in wher e those blood drops came from could have been no highe r than three fee t from the floor.” I nvestig ator Hamstra added that she attended the victim’s autopsy , and the victim’s only noticeable injury was a g unshot wound to her fac e. She added that her testing was not aff ecte d by the fac t that the section of the wall had broken befor e she e x amined it.

On cross-e x amination, I nvestig ator Hamstra said that she cut “thre e or four” blood-stained sections from the wall and sent them to the TBI lab for testing. When asked whether she tested those

are as of the wall wher e no blood was found to deter mine whether they had been clea ned, she replied, “I ’m not sure that we can test to see if it had been clea ned.” She said that the blood drops on the lower part of the wall hit the wall at a 90 deg ree ang le, while the ang les of those drops that hit far ther
up the wall varie d; “we had some in the 40’s and 30’s and 20’s, all the way on [unt il] I believe there

was one that was about a 10-deg ree ang le.” She added that when she tested the wall, it was leaning
ag ainst the door to the lab’s g ara g e. Howeve r, she “did tak e t h e leaning of the wall into consideration whe n [she] formed [her] opinion.” She also noted that L ieutenant Tha rp “a lso [ did]

some measure ments of the blood dr ops, and we compar ed to see that we wer e g etting

. . . the same

measure ments. And also when I did the math, Itriple che cked my fig ures.”

Dr. Da rinka Mileusnic-Polcha

n, a for ensic pa thologist, testified without objection that she conducte d the victim’s autopsy

. She said that the victim wa s still inside the g arba g e can when she

was broug ht to the medical examiner’s office

. Dr. Mileusnic-Polchan said that the top of the g arba g e

can w as cove red w ith a g arba g e bag and “sec ured” with duct tape, whic h was wr apped a round the top of the can in a “ver

y order ly

. . . methodical way .” She said that she had to cut awa y the tape atop the can to open the can, and that “it took me and two of my assistants a couple of hours to open the

-4-can a

nd g o lay er by

lay er to the body .”

Dr. Mileusnic-Polchan testified that the victim’s cause of death was a g unshot w ound, and she charac terized the m anner of death as a homici d e. She said that the bul let enter ed the left si de of her fac e, near the left nostril, then trave led “fr ont to back, left to rig ht

. . . either direc tly or slightly downwar d.” She noted the pr esenc e of g unpowder staining near the entra

nce w ound, but beca

use of the decomposition of the victim’s body
, “some of the features of the g unshot wound of entra nce

wer e altere d.” The bullet lodge d inside the back of the victim’s head, near her neck. Dr. MileusnicPolchan noted that the jac ket of the bullet wa s retaine d in the brain tissue.

Dr. Mileusnic-Polchan said that her deter mination that the victim’s death was not a suicide

was based “not only on the autopsy , but also the scene investiga tion and history
, social and medical.” As rele vant to the autopsy finding s, she said that there was no evidenc e of “hesitation marks,” which she descr ibed as “fr esh or heale d injuries indicating the cutting of the wri s ts.” She said, “I f there

wer e rea l hesitation marks, rea l cuts,” the victim’s decomposition would not aff ect her ability to find these injuries beca

use in suc h case s, “the subcutane ous tissue would still show the scar .” She also noted t hat t he victim ’s bl ood alcohol conte nt was 0.05%, but she w arne d that “as the body deca y s

. . . [i t] produce s alcohol.” She added that the victim’s blood alcohol content was the “norma l level of alc ohol for the body

that is deca

y ing.”

On cross-examination, Dr. Mileusnic-Polchan said that while four police office rs wer e p resent at the autopsy , and while they talked about the defe ndant being suspected in th e v i ct i m ’s death, the police did not talk about the evidenc e that had been collecte d at the defe ndant’s house. She noted that in her repor

t, she identified the prese nce of g unpowder residue near the entra nce wound, which indicate d that the g un was close to the victim’s f ace at the time the g un fired. H oweve r, Dr. Mileusnic-Polch an s aid that beca use of the vi ctim’s decomposition, she could not deter mine how close the g un was to the vi ctim’s fac e at the t ime it fired. She also admitt ed that if the vi ctim had inflicted some “ver

y superf icial” cuts to he r wrists, there would be no evidenc e of those injuries at the time of the autopsy

. Reg arding the results of the victim’s blood alcohol test, Dr. Mil eu snicPolchan said that if the victim had been drinking alcohol the night of her death, that blood would not have metabolized beca

use “the liver m etaboliz es alcohol

. . . the liver is not functioning if one is dead.” She acknow ledg ed that beca use the manner of testing for other drug s is differ ent from testing for alcohol content, there would be “no way of deter mining

. . . what ty

pe of medication or narc otic [could have bee n] i n her sy stem at the time of the shooting .”

Three ag ents with the TBI Crime L ab testified reg arding their testing of cer tain evidentiar

y items. Ag ent Charles Har dy testified that the DNA prese nt in the blood found on three items in the defe ndant’s laundry room—the wa ll, a bleac h bottle, and a paper shredder —matched the victim’s DNA profile. Ag ent L inda L ittlejohn testified that she tested the car pet taken from the defe ndant’s
g ara g e and the section of car pet found in the trash can in which the victim was buried. She said that the two sec tions of carpet we re joined at one point before they wer e cut a

part. Ag ent Shelly

Be tts testified t hat s he tested the bullet and jacket t hat were removed from the vi ctim’s body during the autopsy

. She said that the bullet and jacke t wer e consistent with being fired from one of the Ruge r pistols found in the defe ndant’s truck when he was arr ested in Florida

. On cross-e x amination, she

-5-acknow ledg ed that she was not asked to test the victim’s clothing for g unshot residue. She said that

if the Ruge r wer e cocke d, four pounds of pressure per square inch would be require d t o fire the

wea pon. On redire ct examination, she said that the defe ndant’s Ruge r pistol d id not have a “hair trig g er.”

Detec tive Dea

n Be v er ly with the C leveland Poli ce Depar tment testified t hat at the t ime of the victim’s death, his depar tment was investigating the defe ndant for embezzlement involving the defe ndant’s employ er. The detec tive said that the defe ndant was suspected of submitt ing invoices bear ing the victim’s name. The employ er then wrote chec ks based upon the invoices; these chec ks

wer e cashe d. Detec tive Be verly suspected the defe ndant was forg ing the victim’s e ndorsement on these chec ks. The detec tive said that the victim had been subpoenae d to testify ag ainst the defe ndant in front of the B radle y

County Gra nd J ury , althoug h she had not testified at the time of her de ath.

The defe ndant testified that he met the victim in 2005 and that they m o v ed i n t o get h er in eit h er Fe b ru ary or Marc h 2006. He said that they wer e both awa re of eac h other’s problems; she knew about the defe ndant’s criminal rec ord, which included convictions for burg lary
, theft, and vandalism, and he knew about her drug usag e. He said that when he first met the victim, she used “ice ,” or methamphetamine, and took presc ription medication such as Xana x and Oxy contin without

a presc ription. He also knew that the victim had mental health problems such as depre ssion and bipolar disorder. He encour ag ed the victim to see a counselor, which she did for a while befor e stopping. He claimed that on the counselor’ s advice
, he kept knives and g uns awa y from the victim.

The defe ndant said that in January 2007, he and the victim moved into the home wher e the victim died. He testified that althoug h he never hit her and she never soug ht an order of protec tion
ag ainst him, sh e m o v ed out of the house around April 1 and moved in with Bobby Singleton. Ho we v er , he said that he and the vi ctim continued to see eac h other, with the vi ctim occa sional l y spending the night at his house. He said that on May 2, the couple applied for a marria g e license in Br adley County

.

The defe ndant said that he had set up another company for his former employ er and that the victim was one of the persons whom he hired. He said that al t h o ug h the victim was a g ood employ ee, his e mploy er made hi m fire her because they lived toge ther. Rega rding the alleg ations that he stole from his former employ er, he acknow ledg ed that the criminal co m p l ai n t was filed
ag ainst him on Marc h 15, 2007, and that a preliminary hear ing was scheduled on M ay 1. He said that the hear ing was continued beca use “[n] obody showed up to hear the case ” and “[n] obody on the
prosec ution side showed up.” He denied stealing from hi s em p l o y er and said that he “knew ” he would win the case if it went to trial. Reg arding the victim’s potential g rand jury testimony
, the defe ndant said, “As fa r as I k n ew, she had ref used to do any

thing ag ainst me. She said that she would never

g o ag ainst me, bec ause I ’d bee n too good to he r and he r kids.”

The de fenda

nt testified that on May

4, 2007, he picke d up the victim at B obby Singleton’s house. The two eventua lly went to a Veter an s o f Fo re i g n Wars (VF W) Post, wher e they drank alcohol. The victim called her friend, Tere sa Cochran, who, along with a male companion, met the

-6-victim and the defe ndant on the route home from the VFW and followed them to the defe ndant’s

home. The four met at the defe ndant’s home around midnight and spent some time singing kara oke, drinking
, and smoking marijuana

. The defe ndant said that the victim also took pills that night. The defe ndant said that later that night, he saw the victim and Cochran eng ag ed in oral sex, which upset him. He was also upset with the vi cti m beca use when he had announce d to someone at the VFW Post that he and the victim wer e g etting marrie d, the victim scolded the defe ndant, telling him to be

m ore secr etive about their plans. Despite his ang er with the victim, the defe ndant al l o we d h er , Cochran, a

nd Cochran’ s companion to spend the nig ht at his residenc e.

The defenda

nt testified that at s ome t ime betwee n 3:00 and 4:00 that morning
, he and the victim beg an to argue. After the arg ument, the vi ctim beg an y elling that the defendant had called the police a

nd that Cochran a

nd her c ompanion neede d to “g et t he marijuana out of the house a nd leave .” The defe ndant’s g uests then left ang rily

. The victim and the defe ndant continued their
argument in the h o use’s baseme nt. At one point, the defe ndant called his ex-wife and told her to

come by the house and pick him up. The defe ndant packe d a bag with some belong ings; as he was walking toward the back door of the house, near the g ara g e, he saw the victim in the laundry room. The defenda

nt said that the vi ctim held a .45 caliber pistol under her c hin. The defenda nt and the victim got into another

argument, during which the de fenda nt approa ched the victim, intending to take the g un from her. The defe ndant claimed that as he approa ched the victim, he noticed that “the hammer was back, which led me to believe that there was a round in that wea pon.” The defe ndant

rea ched for the wea

pon, but the g un went off just befor e he g rabbe d it and threw it behind him. He said that the victim was “standing uprig ht” when she shot herse lf, adding
, “Pam would never g et on her kne es for

[any ]body .”

The defe ndant admitted that he did not call the police afte r the shooting; instead, he put the victim’s body

in a trash c an, burie d it in a ceme tery , and tried to c lean the victim’s blood from the laundry room. The de fenda

nt said that he found blood on the room’s walls, shelves, a washe r and dry er, a door, and the ceiling

. He initially attributed these decisions to “ very bad judgme nt” rathe r than an attempt to c oncea l a cr ime, but la ter during direc t e x amination, when asked if his c leaning the victim’s blood from the laundry room was an attempt “to conce al t h e crime,” the defe ndant replied, “A littl e bit.” Howeve r, he later testified that he in fac t was not “try ing to cover up a crime

scene ;” rather, he “wa s try ing to g et t he house rea dy t o b e moved out of.” He added that the y ard sale he held shortly afte r the victim’s death was in response to his ex-wife’s threa ts to “have [hi m] thrown in jail for not pay ing c hild support since Marc h.”

The defe ndant testified that the police chase involving his truck and the College dale police office r occur

red afte r he had retrie ved his g uns from a storag e unit. Whil e the office r testified that the chase lasted no more than five minutes, the defe ndant said that the chase lasted “appr ox imately three hours.” He said that he initially went to Atlanta “[b] eca use people had been shooting at me,” then he went to For

t Be nning, Georg ia, i n an attempt to s ee some friends. He said that he left the
army base beca

use his friends “we re deploy ed.” After leaving For t Be nning, the defe ndant went to Panama City
, Florida

. He claimed that he was at a marina s ell ing first aid kits when “[a]bout six
g uy s c[a]me out of nowher e [and] st arte d chasing me. I don’t know who they [were], why they ’re chasing me.” Eventually
, Ba y Cou n ty sheriff

’s deputies arr ived and arr ested him

. The defenda nt

-7-cl aim ed that he was arr ested on “some bad chec k char g es from 15 y ear s ag o.” He also t o l d t h e

deputies abou t t h e t wo g uns in his truck, including t he .45 caliber pistol that had been us ed in the shooting. He said that he “knew at some point that [t he] wea pon had to be turned over” and that he did not ge t rid of the g un beca use he did not kill the victim.

The d ef en d ant said that he ini tially told the officers that the vi ctim had left his house wit h Cochran a

nd was still alive, but he said he lied to the police be cause he “didn’ t trust them at first .

. . I was fee ling them o u t

. ” Ul t i m ately
, he told the office rs that the victim shot herse lf afte r an argument about drug s. He testified that he told the office rs that he believed the victim shot herse lf in the chin beca

use when he first saw the victim afte r t he shoot ing, “[t] here wer e no big holes” i n her f ace . He a lso drew a

map depicting wher e he ha d buried the vic tim.

On cross-e x amination, the defe ndant said t h at he cut the section of his g ara g e car pet and place d it in the trash can in which the victim was place d as “padding .” He also said that he clea ned
up blood off the floor with ceda r shaving s and rag s; he put the rag s in the g arba g e can. He said that he tried to make the g arba g e can i nto a “caske t” and tried t o “kee p the animals from being able t o g et into the container .” He also admitted that he did not talk to any law enfor ceme nt officia ls about the vi ctim’s death until he was arr ested in Florida

. The defenda nt d enied that he would be facing signific ant jail time if he wer e convicted in the forg ery and theft case involving his former employ er and denied that he had lear ned that the victim wa s planning to te stify ag ainst him before the g rand jury

.

Tere sa Cochran testified that she saw sever al arguments betwee n th e d ef endant and the victim befor e the victim died, but that the arguments never involved “hitting, punching
, or any thing like that.” She said that she and her companion arr ived at the defe ndant’s house betwee n 11:30 and 11:45 the evening of May 4. Cochran and her companion intended to spe nd the night but the y left when the victim beg an y elling at them, claiming that the defe ndant did not want them to stay at the house. As Cochran left, she asked the victim if she neede d to come with her. The victim replied that she did not need to leave

. Cochran testified that the defe ndant added, “I ain’t g onna f—ing hurt her. L eave .” On cross-e x amination, Cochran said that the victim said nothing about killing herse lf that night a nd talked about g oing to he r son’s birthday party the next morning.

The jury found the defe ndant not g uilty of the indicted offe nse of preme ditated first deg ree murder but found him g uilty of the lesser included offe nse of second deg ree murder. The trial court later sentenc ed the defe ndant to twenty -three y ear s in the Depa rtment of Correc tion. The defe ndant subsequently

filed a timely

notice of a

ppeal.

ANAL YSI S

I . Ex pert Te stimony

The defe ndant first contends that the trial court err ed by all o wi n g L i eu tenant Tharp and I nvestig ator Hamstra to offe r expert testimony reg arding blood spatter analy sis. The defe ndant contends that “the wi t n esses lacke d qualifica tion and [t hat] the measure ments upon which the

-8-analy sis finding s [were] based [ wer e] not sufficie ntly reliable and trustworthy to as s i s t the j ury to

interpre t this evidenc e.” T h e S tate contends that the trial court proper ly found that I nvestig ator Hamstra was qualified to g ive expert testimony reg arding blood spatter analy s i s an d that the data upon which she ba sed her conclusion we re r eliable.

Lieutenant Tharp’s T

estimony Re

garding His Qualifi cations and Analysis in this Case

The defe ndant filed a pretria l mo t ion in limine seeking to preve nt L ieutenant Tharp and I nvestigat o r Ha m s tra from testify ing as experts in blood spatter analy sis. At the hear ing on the motion, L ieutenant Tharp testified that he first rec eived training in blood spatter analy sis in the mid1980s, when he “attende d a homicide school that discussed the matter of blood spatter.” He said that he had attended sev era l “adva nced crime scene schools since then” and that “[b] lood has alway s been dealt with, either about collection, ap p ea ra n ce, [or] patterns.” L ieutenant Tharp said that he had approximately eig hty hours of advanc ed law enf orce ment training , althoug h he had never testified

as an e x pert in blood spatter a naly sis before this trial.

L ieutenant Tharp t es t i fi ed that in 2003, he took an advanc ed blood spatter course at the National For ensics Aca demy

. He said that the course “we nt throug h all the aspec ts of the blood. We looked at dry

ing time; we looked at s u rface tension; we looked at various ang les.” He further descr ibed the tra ining he rec eived at the class as f ollows:

They , they

g o throug h - - a

nd they simpli fy it. The training . . . teac hes y ou basica lly how to measure , and y ou do hundreds of measure m en ts in class on both patterns that are in a bo o k

. . . an d from other scene s, and patterns they repr oduce there

. I t’s pretty simple. They simpli fy it so that y ou can put it in a calculator and

come up with the, the fig ure for the blood spatter. You g et

. . . an ang le, and then y ou

can come off from the ang le and find a point o f co n v erg ence that g oes back to the

source of the blood.

He said that i n this case , “the opinion is that [t he victim] would have been probably about knee heig ht, about three f[eet] from the floor” at the time she wa s shot.

On cross-e x amination, L ieutenant Tharp said that while h i s underg raduate and g raduate deg ree s wer e in psy cholog y and counseling
, respe ctively
, he had “g one back and done a y ear and-a

half in chemistry
, and that has a lot of mathematics in it.” He also said that the course he took at the National Forensics Acade my “wa s a solid 40 hours of nothing but blood spatter.” He insi sted that his qualifica tions included not only his training at the For ensics Aca demy but also his attendanc e at

sever al homicide course s since the mid-1980s; he said that these other course s “spent quite a bit of time dealing with blood spatter” and that the course s lasted “much [l ong er]” than “an hour or two.” He also said that this case did not repr esent the first time wher e he had actua lly used this training in his work.

L ieutenant Tharp acknow ledg ed that the wall on which the victim’s blood was found was

remov ed fr om the crime scene

. He said that while t he wall was photogra phed at the crime scene ,
-9-the measure ments of the individual blood stains and the analy sis reg arding the orig in and direc tion

of blood spa

tter wer e conducte d at the Br adley County Sheriff’ s Depa rtment crime lab. He added, “dea ling with time and controls, if we can bring the scene to us and keep it, then we’ re much better off.” He said that the wall broke in transit betwee n the defe ndant’s house and the crime lab but that the damag e to the wall did not aff ect the analy sis. L ieutenant Tharp said that I nvestig ator Hamstra did most of the measure ments in this case , althoug h he chec ked some of her work. At the end of this testimony
, the trial court ruled that L ieutenant Tharp could g ive expert testimony at trial reg arding blood spatter ana ly sis.

At trial, L ieutenant Tharp was qu es t i oned outside the jury ’s prese nce reg arding his qualifica tions, and he was also asked questions about blood spatter analy sis g ener ally

. He said that blood “has a consistent reoc curr ing pattern that can be repr oduced scientifica lly
, and others can take
y our work and come to the same conclusions, which makes it a scientific pattern of fac t.” He said that “blood spat t er i s taug ht both in some of y our basic training
, some of y our homicide schools, specia l classes just in blood spatter; also in . . . crime sc ene r econstruc tion.”

On cross-e x amination, L ieutenant Tharp acknowledg ed that the eig hty hours of advanc ed training he ref

ere nced at the hear ing on the motion in limine was eig hty hours of training on blood spatter, not just g ener al fore nsics. He also said that he “just went back and took another y ear and-a

half of ch em i s t ry , s o I probably have enoug h cre dits there
, but I ’ve not applied for the deg ree .” Reg arding the testing methods of blood spatter an al y sis, he said, “Somebody else could take our

measure ments, our photos, and they could g o and rec reate and come to the same conclusion that we d i d

. ” Fur

thermore
, he added, “The re is no err or rate in blood spatter.

. . . There is alway s a possibili ty

of mistake with an a

naly st, but the science is infallible.”

Most of L ieutenant Tharp’ s testimony in front of the jury concer n ed his collection of the evidenc e at the crime scene ; that testi m o n y i s s u m m arized above. Most of the questions he was asked in front of the jury reg arding the methodology of blood spatter analy sis wer e also asked in the jury -out hea

ring s; as such, we will not sum marize his answer s to these re peate d questions here

.

Inve stigator Hamstra’s T

estimony Re

garding Her Qualifications and Analysis in t his Case

At the pretria l motion in limine hear ing, I nvestig ator Ha m s t ra testified that she held a master’ s deg ree in fore nsic scienc e from the University of Alabama at Birming ham (UAB ), and that she had also taken the wee k-long course on blood spatter analy sis at the National For ensic Aca demy

. She said that a “lar g e portion” o f her fore nsic biology course at UAB addre ssed blood spatter analy sis, althoug h on cross-e x ami n at i o n she acknowledg ed that “we didn’t do the entire semester

on blood spatter. That was just on e p o rt ion of the class.” At the end of I nvestig ator Hamstra’ s testimony
, which occur

red afte r L ieutenant Tharp’ s testimony and during which she was not asked

as many questions as was he, the trial court ruled that she would be able to g ive expert testimony
reg arding blood spatter ana ly sis.

All of I nvestig ator Hamstra’ s testimony at trial occur red in front of the jury

. She explained that t o b ec o m e a crime scene investiga tor, she underw ent “pra ctical training
, training under an

-10-experience d crime scene investigator, lear ning from them, observing them on scene s

. . . .” She also

rec ounted her education and t raining
, outlined above, adding that the blood spatter training at the National F orensic A cade my was one wee k in a ten-w eek c ourse on c rime sce ne investig ation.

I nvestig ator Hamstra then explained the principles behind blood spatter analy sis, which she descr ibed as “re ally just taking well established principles in mathematics and phy sics that have been develope d over .

. . thousands of y ear s.” She explained that patterns r esulting f rom blood striking

a flat surfa ce differ depending on the ang le at which the blood h i t s t h e surfa ce; blood striking a surfa ce at a ninety -deg ree ang l e results in a “round, sy mmetrical drop,” while blood hitting the surfa ce at sharper

ang les results i n a “longe r oval drop.” She said that in examini ng blood spatter, she measure d both the width and leng th of eac h drop, divided the width by the leng th, and then using
g eometric and trig onometric functions, she deter mined the ang le at which eac h drop s t ru ck t he surfa ce. I nvestig ator Hamstra said that the smoothness of the surfa ce the blood strikes only aff ects the shape of the blood drop somewhat and does not aff ect the ang le of impact. She also said that the fac t that the wall from the defe ndant’s house had be en broke n when she tested it did not a ffe ct her results.

Investig ator Hamstra also explained that the s ize of t he blood drop i ndicates t h e v el o city
at which the blood strikes the surfa ce; drops of one milli meter or less indicate “hig h velocity blood spatter,” drops betwee n one and three milli meters indicate “medium velocity ” spatter, while drops of three milli meters or g reater indicate “low velocity ” spatter. She said that g un s h o t wounds
g ener ally resulted in high velocity spatter, althoug h s u ch wounds could also result in medium velocity spatter. She also said that the velocity at which blood strike s a surfa ce does not a ffe ct her calc ulations reg arding the ang le of impac t.

On cross-e x amination, I nvestig ator Hamstra said that she had been employ ed by the Br adley County Sheriff’ s Depa

rtment for two y ear s. She said that while she had worke d part-time in the depar tment’s fore nsic lab since she beg an working for the depar tment, and while she had her master’ s deg ree at the time she beg an working there
, she had only been a full-time crime s ce ne investigator since Dec ember 2007. She added that this case was the first homicide investigation on which she ha d worke d. Standard of Review

Questions reg arding the admi s s i b ility
, qualifica tions, rele vancy and competenc y of expert testimo n y ar e l eft to the discretion of the trial court. McDa niel v. CSX Transp., I nc. , 955 S.W .2d 257, 263-64 (Tenn. 1997). Pursuant to Rule 702 of the Tenne ssee Rules of Evidence
, an expert may testify “in the form of an opinion or otherwise” when the “scie ntific, technica l, or other specia liz ed knowledg e” offe red by the witness will substantially assi s t t h e trier of fac t. Rule 703 of the Tenne ssee Rules Evidence require s the expert’s opinion to be supported by trustworthy fac ts or data “of a ty pe rea sonably relied upon by experts in the particula r field in forming opinions or infere nces upon the subject.” A trial court’s ruling on the admissibili ty of such evidenc e may be overturne d on appea l only if the discretion is exercised arbitra rily or abused. State v. Stevens, 78 S.W .3d 817, 832 (Tenn. 2002). “A trial court abuses its discretion if it applies an incorre ct leg al standard or rea ches an illogic al or unre asonable decision that ca uses an injustice to the complaining par ty .” B rown v.

-11-Crown Equip. Corp., 181 S.W .3d 268, 273 (Tenn. 2005) (citing Stevens, 78 S.W .3d at 832).

Expe rt Qualifi cation of Inve stigator Hamstra

The defe ndant first argues that I nvestig ator Ham s t ra was not qualified to offe r expert testimony in the field of blood spatter analy sis. “When assessing the admissib i l i ty of expert 3 testimony
, the trial court must first deter mine whether the witness is qualified by knowledg e, skill, experience
, training
, or education to express an opinion within the l imits of hi s or her expertise.” State v. Scott, 275 S.W .3d 395, 402 (Tenn. 2009) (citin g S t ev en s , 7 8 S.W .3d at 834). “This deter mination hinge s upon whether the proposed expert’s testimony authorizes him or her to g ive

an informed opinion upon the fac t or issue for which his or her testimony is being proff ere d.” Scott, 275 S.W .3d at 402 (citing Stevens, 78 S.W .3d at 834). “The witness may acquir e th e nece ssary expertise throug h formal education or life experience s.” State v. Reid, 91 S.W .3d 247, 302 (Tenn. 2002) (citation omitted). “Howe ver, the witness must have such superior skill, experience
, training
, education, or knowledg e within the particula r are a that his or her deg ree of expertise is be y ond the scope of common knowledg e and e x perie nce of the ave rag e per son.” I d.

The defe ndant asser

ts that I nvestig ator Hamstra had “zero applied competenc e or experience

as a profe ssional law enfor ceme nt office r in this are a of expertise.” The defe ndant also argues that I nvestig ator Hamstra was not qualified beca use “she had no prior experience testify ing as an expert” and beca use “this case was her first homicide investigation as a trained investiga tor.” Howeve r, the trial court qualified I nvesti g ator Hamstra as an expert based upon her aca demic and profe ssional training
, as was within its discretion. Despite her rela tive lack of work experience at the time of trial, the witness was able to offe r testimony reg arding the “scie nce” and methodology behind blood spatter analy sis which established that she possessed “super ior

. . . training
, education, or knowledg e within” the are a of blood spatter analy sis such that “her deg ree of expertise [was] bey ond the scope of common kno wl ed ge an d ex perie nce of the aver ag e person.” Reid, 91 S.W .3d at 302. We there fore conclude that the trial court did not abuse its discretion in qualify ing I nvestig ator Hamstra

as an e x pert in the fie ld of blood spatter a naly sis.

Reliability of Blood Spatt er Evide nce

The defenda

nt also argues t hat “the basis for [ I nvestig ator Hamstr a’ s ] o p i n ion in this case

was flawe d beca

use of the method [i n which] the blood splat t er [ s i c] evidenc e was collecte d and tested by ” the Br adley County Sheriff’ s Depa rtment. The defenda

nt arg ues t hat t he evidence was unreliable beca

use the wall on which the victim’s blood was found was not tested at the crime scene but was rathe r remove d from the defe ndant’s home and tested at the sheriff ’s depar tment crime lab. Specifica lly
, the defe ndant argues that the testing at the lab was unreliable beca use: (1) “the section of t he wall remove d contained a baseboard which was about two and one half inches and was not

remove d”; (2) the wall broke apart in transit from the defe ndant’s house to the crime lab; and (3) the wall lea

ned slig htly

ag ainst the crime la

b’s g ara g e door w hen it was tested.

T h e d e f e n d a n t d o e s n o t c h a l l e n g e L i e u t e n a n t T h a r p ’ s q u a l i f i c a t i o n a s a n e x p e r t w i t n e s s

. 3

-12-Tenne ssee Rule of Evidence 703 states that “[t] he court shall disallow testimony in the form

of an opinion or infere nce if the underly ing fac ts or data indicate lack of trustworthiness.” Howeve r, in this case the defe ndant has not established that the manner in which the police collecte d and tested the blood spatter e vidence rende red it unre liable and inadmissible. On appea l, the defe ndant cites
to no authority sug g esting that blood spatter analy sis of blood stains found on a wall are reliable only if the wall is tested at the scene

. Fur thermore
, in our view the circ umstances s u rr o u n d i ng the collection, transporta tion, and testing of t h e wall conce rned the weig ht of the experts’ testimony rathe r than the testimony ’s admi ssibili ty

. The defe ndant thoroug hly cross-e x amined both expert witnesses re gar ding their collection and testing methods, thus bring ing to light any defic iencies associate d with the data collection and testing methods in this case

. We there fore conclude that the trial court proper ly allowed L ieutenant Tharp and I nvestig ator Hamstra to offe r expert testimony in this case.

I I . Sufficienc y of Evidenc e

The d ef en d an t al so arg

ues that the evidenc e was insufficient to support his conviction for second deg ree murder. An appellate court’s standard of revie w when the defendant questions the

s u fficie ncy of the evidenc e on appea l is “whe ther, afte r viewing the evidenc e in the light most favor able to the prosec ution, any rational trier of fac t could have found the essential elements of the crime bey ond a rea sonab le doubt.” J ackson v. Virg inia

, 443 U.S. 307, 319 (1979). The appellate
court does not rew eig h the evidenc e; rathe r, it presumes that the jury has resolved all conflicts in the testimony and draw n all rea sonable infere nces from the evidenc e in favor of the State. See State v. Sheffield, 676 S.W .2d 542, 547 (Tenn. 1984); State v. Cabbag e, 571 S.W .2d 832, 835 (Tenn. 1978). Questions reg arding witness cre dibilit y , conflicts in testimony
, and the weig ht and value to be g iven
to evidenc e wer e resolved by the jury

. State v. Bla nd, 958 S.W .2d 651, 659 (Tenn. 1997). A g uilty verdic t remove s the p re sumption of i nnocenc e and repla ces it with a presumption of guilt, and on
appea l t h e defe ndant has the burden of illust rating why the evidenc e is insufficient to support the jury ’s verdic t. I d.; State v. Tug g le, 639 S.W .2d 913, 914 (Tenn. 1982). This standard applies to finding s of g uilt based upon direc t evidenc e, circ umstantial evidenc e, or a combination of both direc t and circ umstantial evidenc e. State v. Penderg rass, 13 S.W .3d 389, 392-93 (Tenn. Crim. App. 1999).

The defe ndant was convicted of second deg ree murder, which Tenne ssee’ s criminal code define s as “[ a] knowing killing of an o t h er .” Tenn. Code Ann. § 39-13-210( a)( 1) (2006). Second deg ree murder is a result of conduct offe nse. State v. Fa ulkner, 154 S.W .3d 48 (Tenn. 2005); State v. Pag e, 81 S .W.3d 781 (Tenn. 2002); State v. Ducke r, 27 S.W.3d 889 (Tenn. 2000) The ref ore, a knowing act of second deg ree murder require s one to be“a war e that the conduct is rea sonably cer tain
to cause the re sult.” I d. § 39-11-302( b).

I n this case , the evidenc e produce d at trial, viewed in a light most favor ab l e to the State, showed that the defe ndant and the victim, who we re ro mantically involved, had a history of
arguments, including one that occur red the night the victim died. The victim died after being shot

once in the fac e with a g un later found in the defe ndant’s truck. Cleveland Police Depa rtment Detec tive Dea

n Be verly testified that the victim was subpoena ed to g ive g rand jury testimony

in a criminal case ag ainst the defe ndan t , o n e which could have led to signific ant prison time for the

-13-defe ndant, g iven his prior criminal history

. T wo fo rensic investiga tors from the Br adley County Sheriff’ s Depa

rtment, who wer e qualified as expert witnesses, testified that g iven the location and
ang le of the blood spatter patterns on the wall near which the victim was located when she was shot, the victim’s head was at most three fee t above the g round when she was shot. Fur thermore
, despite the victim’s history

of drugabuse a

nd mental illness, the medical e x aminer ruled that the victim’s death was a homicide, rathe r than a suicide. The medical examiner found no evidenc e of “hesitation marks,” or self-inflicte d knife wounds on the victim’s wrists, an d T e r e sa Cochran, the victim’s friend who was prese nt w ith he r shortly befor e her death, said that the victim did not mention w anting to take her o wn life and looked forwa rd to attending her son’s birthday party the next day

. The defe ndant contende d that the victim took her own life, was standing ag ainst the wall when she shot herse lf, and had no inten t i o n s of testify ing ag ainst him in the investigation involving his former employ er, but the jury

chose to disre g ard this evidenc e, as w as its prerog ative.

Additionally
, the evidenc e showed that afte r t h e v i ct i m died, the defe ndant clea ned the victim’s blood from the scene befor e p l ac i n g the victim’s body in a trash can and burying it in a

ceme tery

. The defe ndant admitted sealing the trash can tightly so that no smell would emana te from it, thus keeping animals from finding the victim’s body ; the medical examiner testified that it took her “about two hours” to remove the duct tape sealing the trash can. Additionally
, when a police office r in a near

by county attempted to stop the defe ndant for a traff ic violation near ly three wee ks afte r the victim died, the defe ndant eluded the office r, eventua lly fleei n g to Ba y County
, Florida
, wher e he was arr ested. “A defe ndant’s flig ht and attemp t s t o ev ad e arr est are rele vant as circ umstances f

rom which, when considere d with the other fa cts and c ircumstance s in evidence , a jury can proper ly draw an infere nce of g uilt.” State v. Z ag orski, 701 S.W .2d 808, 813 (Tenn. 1985);

see State v. Caldwell, 80 S.W .3d 31, 40 (Tenn. Crim. App. 2002)

. Simi larly
, “Any attempt by an

acc used to co n ce al o r destroy evidenc e

. . . is rele vant as a circ umstance from which g uilt of the

acc used may be inferr ed.” Tillery v. State, 565 S.W .2d 509, 511 (Tenn. Crim. App. 1978); see also State v. Maddox, 957 S.W .2d 547, 552 (Tenn. Crim. App. 1997)

. We there fore conclude that the evidenc e produced at trial was sufficient for the jury to find the defe ndant g uilty of sec ond deg ree murder.

CONCL USI ON

Upon consideration of the fore g oing and the rec ord as a whole, the judgme nt of the trial court is affirme d.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ D. KEL L Y THOMAS, JR ., J UDGE

-14-