        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                               September 9, 2014 Session

            STATE OF TENNESSEE v. BILLY JASON HANCOCK

                 Appeal from the Criminal Court for Putnam County
                      No. 11-0125     David Patterson, Judge




              No. M2012-02307-CCA-R3-CD - Filed December 12, 2014


The defendant, Billy Jason Hancock, appeals his Putnam County Criminal Court jury
convictions of first degree murder, especially aggravated kidnapping, and abuse of a corpse,
claiming that the trial court erred by concluding that certain communications with his wife
and his pastor were not protected by any evidentiary privilege and that the trial court’s
instruction regarding jury unanimity during the penalty phase was incorrect. Discerning no
error, we affirm.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which D. K ELLY
T HOMAS, J R., and T IMOTHY L. E ASTER, JJ., joined.

Robert T. Marlow, Shelbyville, Tennessee (on appeal and at trial), and James A. Simmons,
Henderson, Tennessee (on appeal), for the appellant, Billy Jason Hancock.

Robert E. Cooper, Jr., Attorney General and Reporter; Andrew C. Coulam, Assistant
Attorney General; Randall York, District Attorney General; and Mark Gore, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

              A Putnam County Criminal Court jury convicted the defendant of one count
of premeditated murder, one count of felony murder, one count of especially aggravated
kidnapping, and one count of abuse of a corpse for his brutal attack on the victim, Jennifer
Cornell. The trial court merged the jury verdicts of premeditated murder and felony murder
into a single first degree murder conviction, and the jury imposed a sentence of life
imprisonment without the possibility of parole. The trial court imposed a sentence of 20
years’ incarceration for the conviction of especially aggravated kidnapping and ordered that
it be served consecutively to the sentence of life without the possibility of parole. The court
imposed a sentence of two years’ incarceration for the conviction of abuse of a corpse, to be
served consecutively to the sentence of life without the possibility of parole but concurrently
with the 20-year kidnapping sentence.

                The evidence adduced at trial established that in August 2008, the victim
informed the defendant and his wife, Emily Hancock, that the defendant was the father of her
16-year-old daughter. After he initially expressed a desire to establish a relationship with the
child, the defendant denied that he was the child’s father. Shortly thereafter, the victim went
to the district attorney’s office seeking a child support order. Deoxyribonucleic acid
(“DNA”) testing performed in conjunction with that action established that the defendant was
the child’s father. The revelation about the child’s parentage as well as the potential of a
money judgment for child support prompted Ms. Hancock to file for divorce. Ms. Hancock
testified that she and the defendant were experiencing financial difficulties at that time and
that she did not want any part of the defendant’s income to go toward the support of the
daughter he shared with the victim. The defendant’s pastor testified that the defendant and
his wife had been experiencing marital difficulties for sometime and that the child support
action added to that stress.

               The victim went missing on the morning of October 30, 2008. After learning
that the victim had failed to arrive at work as scheduled and after he was unable to contact
the victim, the victim’s husband asked her employer to go to their home and check on her
because it was extremely out of character for her to be late for work or not answer her
telephone. Her employer found the victim’s car sitting near the stop sign at the end of
Vaughn Lane, approximately 150 feet from her driveway. The car’s engine was running, the
driver’s side door was open, and the victim’s purse was in the passenger’s seat.

               The defendant’s cousin, Wayne Hancock, testified that the defendant borrowed
his 1990 Dodge pickup truck on the morning of October 30, 2008, and that the truck was
outfitted at that time with wooden stock racks. Witnesses reported having seen a truck
matching that description on Vaughn Lane near the time of the victim’s disappearance.
Another witness saw the same truck drive down Colson Lane toward the sinkhole where the
victim’s body was later discovered. A coworker of the defendant’s testified that the
defendant once said, “[W]ell if I was going to kill somebody, I know a place I’d put them and
nobody would ever find them. I said that hole over there and he said yeah and just laughed
it off, you know.” That same coworker was among the search party that discovered the
victim’s body in the sinkhole, which was located approximately 1,800 feet from the
defendant’s residence.



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               The defendant admitted to both his pastor and his wife that he had seen the
victim on the morning she disappeared. He told his pastor that he had picked the victim up
so that the two could discuss the child support action and that he had left her, alive, near the
Standing Stone bridge.

               The victim’s body was discovered nude from the waist down with sticks
protruding from her vagina and rectum. She had been brutally beaten with what appeared
to be “a large wooden dowel rod or like a handle that you would use in a shovel.” Splinters
from the dowel rod were recovered from the scene and reconstructed by the Tennessee
Bureau of Investigation (“TBI”). Wayne Hancock testified that a dowel rod consistent in
appearance to the one reconstructed by the TBI had been in the bed of the pickup truck he
loaned to the defendant. He was unable to locate the rod after the defendant returned the
truck. Forensic testing revealed the presence of the defendant’s DNA on the dowel rod
reconstructed by the TBI.

                 The medical examiner testified that the victim died from “blunt force injuries
to the head.” The victim suffered a number of significant blunt force injuries to her head,
including some that were “consistent with” the victim’s having been struck with a rod similar
to that reconstructed by the TBI. One blow above the victim’s eye was significant enough
to break her skull, causing the “skull bone” to protrude “through the skin tear.” An “[o]pen
complex skull fracture” to the back of the victim’s head penetrated “all the way through to
the brain.” In fact, her skull was fractured in “multiple places, both in the front and in the
back,” significantly enough to make her brain visible. Due to the trauma of some of the
blows, “a portion of the brain tore off and actually came out one of these open fractures and
lacerations.” Pieces of the victim’s brain were recovered from the crime scene. The medical
examiner noted that the victim’s face had “the appearance of a deflated basketball. And the
reason that’s so is because the facial bones are fractured, her nose, the bone supporting her
eyes, her forehead, the center of her lower jaw bone. . . . [H]er facial bones have been
crushed.” Several of her teeth had been knocked out, and she had bitten nearly all the way
through her tongue. The medical examiner stated that, “to a reasonable degree of medical
certainty . . . all these blows to the head [occurred] when she’s living.”

                The medical examiner also noted a secondary diagnosis of “blunt trauma
injuries to the torso” because the blows to the victim’s anterior abdomen and the back were
also lethal. He observed that the parallel-line pattern of the bruises on the victim’s back and
abdomen indicated that they were caused by blows from “a long hard object, a baseball bat,
a table leg, a branch of a tree, you know, a stick, a pole.” He opined that the blows were
consistent with having been caused by the wooden rod reconstructed by the TBI. The victim
suffered multiple rib fractures, multiple vertebral fractures, and “[m]ultiple small lacerations
of the lower lobe of the right lung.” One vertebra “fractured so significantly” that “it actually

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tore into the space next to it and several of the ribs in that area that attach that area were also
broken. And when the ribs broke, the pieces went forward and they punctured the bottom
of the right lung.” That single blow was so significant, in fact, that it “stretched the adjacent
aorta and there are little lacerations, there were tears that you can see on the inside of the
aorta. We typically see those in car crashes where there’s rapid decelerations.” He indicated
that the most significant fracture “occurred after death,” as indicated by the fact that the
wound produced very little bleeding.

               The victim also suffered “[s]mall abrasions in the vaginal mucosa” that were
“related to” the “foreign bodies protruding, there were dried vine branches that were in the
rectum and that were in the vagina.” The medical examiner retrieved two sticks from the
victim’s vagina and one from her rectum, which stick was placed in her rectum with such
force that it “went through the rectal mucosa” into the victim’s abdomen. He testified that
the insertion of the sticks occurred “peri-mortem or possibly even post-mortem.”

            The medical examiner opined that all of the blows to the victim’s body could
have been administered in as little as five minutes.

               Based upon this evidence, the jury convicted the defendant as charged of
premeditated murder, felony murder, especially aggravated kidnapping, and abuse of a
corpse. Following a sentencing hearing, the jury concluded that the State had proven beyond
a reasonable doubt that the “murder was especially heinous, atrocious or cruel in that it
involved torture or serious physical abuse beyond that necessary to produce death” and that
the “murder was knowingly committed, solicited, directed or aided by the defendant, while
the defendant had a substantial role in committing or attempting to commit or was fleeing
after having a substantial role in the committing or attempting to commit kidnapping.” The
jury imposed a sentence of life without the possibility of parole.

                In this timely appeal, the defendant challenges the trial court’s ruling with
respect to his assertion of the marital communications privilege to exclude certain testimony
from his ex-wife, the trial court’s ruling with respect to his assertion of the clergy-penitent
communications privilege to exclude certain testimony from his pastor, and the penalty-phase
jury instruction regarding unanimity as to sentence.

                            I. Marital Communications Privilege

              The defendant first asserts that the trial court erred by concluding that the
marital communications privilege did not apply to statements made by the defendant to his
wife concerning the victim both before and after the victim’s disappearance. The State
contends that the trial court’s ruling was correct.

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            Tennessee Code Annotated section 24-1-201 governs the application of the
marital communications privilege:

                    (a) In either a civil or criminal proceeding, no married
              person has privilege to refuse to take the witness stand solely
              because that person’s spouse is a party to the proceeding.

                     ....

                   (c) (1) In a criminal proceeding a marital confidential
              communication shall be privileged if:

                    (A) The communications originated in a confidence that
              they will not be disclosed;

                     (B) The element of confidentiality is essential to the full
              and satisfactory maintenance of the relation between the parties;

                   (C) The relation must be one which, in the opinion of the
              community, ought to be sedulously fostered; and

                     (D) The injury to the relation by disclosure of the
              communications outweighs the benefit gained for the correct
              disposal of litigation.

T.C.A. § 24-1-201(a), (c).

               At the hearing on the defendant’s pretrial motion to exclude Ms. Hancock’s
testimony, Ms. Hancock testified that at the time of the victim’s murder, she had obtained
divorce papers but “hadn’t signed them.” She said that when the victim revealed in August
2008 that the defendant was the father of her daughter, the defendant and Ms. Hancock were
experiencing financial difficulties that would have been exacerbated by a child support
payment. On October 30, after the victim was reported missing and after the defendant had
been questioned and released by the police, Ms. Hancock implored the defendant to tell her
anything he knew about the victim’s disappearance “and he said that he hadn’t seen her, that
he hadn’t been with her.” On the following morning, the defendant told Ms. Hancock that
“he didn’t want to talk about it, he’d done answered my question, to leave it.” After his
arrest, the defendant told her over the telephone that “he didn’t know where she was at, . .
. that he didn’t see her, that he didn’t know.”



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             Ms. Hancock acknowledged that she had an affair in 2007, and the defendant
found out about the relationship in May 2008. As a result, she and the defendant were no
longer intimate. Regarding the state of her marriage at the time of the victim’s
disappearance, she said, “My marriage was over, but I was trying to save it for my children.”
Ms. Hancock filed for divorce on January 11, 2011, and the divorce was granted on May 16,
2011. Ms. Hancock testified that she did not file for divorce sooner because she did not have
the money to do so.

                Amy Leigh Sells testified that she and the defendant commenced a romantic
relationship while they were both incarcerated in the Overton County Jail. The two wrote
letters to one another and communicated via “the minimum [security] yard, which the
windows would face into the cell where” the defendant was housed. The defendant wrote
50 to 75 letters to Ms. Sells during her 14-month confinement, espousing his love for her and
making a number of sexual references. Ms. Sells said that at the time she believed they
would have a relationship, explaining,

              [I]t’s hard to explain to people that’s never been in jail. It’s a
              totally different world in there. And like I said, I’ve known him
              for a long time and I really didn’t want to believe that he could
              do something like that. So you know, forgive my foolish female
              heart is all I can say.

                The trial court concluded that the marital communications privilege did not
apply to the defendant’s communications with his wife regarding the victim. The court noted
that “[a]t the time of the murder, the marriage to Emily Hancock was at best unstable” and
found “that the [d]efendant had been given divorce papers by his wife shortly before the
murder; that the parties are now divorced; that this is not a relationship that needs to be
sed[ul]ously fostered; and none of the conversations were given in a confidential
relationship.”

               By the time of the victim’s disappearance, Ms. Hancock had already had
divorce papers prepared. She testified that the marriage “was over” at that time, having
collapsed under the weight of financial difficulty, infidelity, and the victim’s pursuit of child
support. By the time of the trial, the couple was divorced. Under these circumstances, the
record establishes that the element of confidentiality was not “essential to the full and
satisfactory maintenance of the relation between the parties”and that the relationship was not
one that “ought to be sedulously fostered.” See T.C.A. § 24-1-201(c)(B)-(C); see also State
v. Mitchell, 137 S.W.3d 630, 639 (Tenn. Crim. App. 2003) (holding that “the trial court must
conduct its inquiry relative to factors (B), (C), and (D) [of Code section 24-1-201(c)] by
assessing the present status of the marital relationship at the time it is called upon to do so,

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rather than at the time of the communication in question”). Consequently, the trial court did
not err by concluding that the marital communications privilege did not apply to the
challenged statements.

                                 II. Clergy-Penitent Privilege

                The defendant next contends that the trial court erred by concluding that the
clergy-penitent communications privilege did not apply to statements made by the defendant
to his pastor concerning the victim after the victim’s disappearance. The State contends that
the trial court’s ruling was correct.

               Code section 24-1-206 provides, in pertinent part, as follows:

               No minister of the gospel, priest of the Catholic Church, rector
               of the Episcopal Church, ordained rabbi, or regular minister of
               religion of any religious organization or denomination usually
               referred to as a church, over eighteen (18) years of age, shall be
               allowed or required in giving testimony as a witness in any
               litigation, to disclose any information communicated to that
               person in a confidential manner, properly entrusted to that
               person in that person’s professional capacity, and necessary to
               enable that person to discharge the functions of such office
               according to the usual course of that person’s practice or
               discipline, wherein such person so communicating such
               information about such person or another is seeking spiritual
               counsel and advice relative to and growing out of the
               information so imparted.

T.C.A. § 24-1-206(a)(1).

                At the hearing on the defendant’s motion, George Turke, pastor of Cornersville
United Methodist Church and Lewisburg Chapel United Methodist Church, testified that
prior to the victim’s disappearance, he had counseled the defendant for four to six months
on his relationships “[w]ith the Lord and with his wife.” The defendant relayed to the pastor
the difficulties in his marriage, particularly those arising from the victim’s revelation that the
defendant was the father of her daughter and the pending child support action. Following
the victim’s disappearance, Mr. Turke met with the defendant in the parking lot of Martin’s
Chapel in Allons to discuss the victim’s disappearance. At that point, Mr. Turke asked the
defendant if he knew where the victim was, and the defendant “got agitated” and said, “I’m
getting sick and tired of her messing up my life and trying to mess my marriage up.” Mr.

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Turke told the defendant that he had informed the police about their location and that law
enforcement officers were on their way to the church to talk to him. Mr. Turke said that no
spiritual counseling took place during that conversation, explaining, “I felt that was my
paramount duty, not just as a citizen, but even as a pastor was to find the location [of the
victim].”

              The defendant was taken to the Overton County Justice Center, and Mr. Turke
followed. While at the justice center, the two had a private conversation during which the
defendant admitted “that, yes, he did talk with [the victim] that morning, she was with him,
they went to the park and . . . she wanted to get out.” The defendant told Mr. Turke that
“they had gotten in an argument, and he left her off at a bridge, turned around and came back
and he looked in his rear view mirror and she was walking back towards town, I guess.” Mr.
Turke acknowledged that during that conversation, he did encourage the defendant to open
up so that he could ask for forgiveness, but he stated that the primary purpose of that
conversation was to locate the victim. Mr. Turke said that he told the defendant that he
would share any relevant information with the police, explaining,“I let him know that if he
gave me any information pertaining to the whereabouts of [the victim], I was going to inform
them and let them know.”

              Mr. Turke said that he had another conversation with the defendant on the
following morning and that he asked the defendant to be specific about where he had left the
victim. At that point, the defendant provided Mr. Turke with more detail. Mr. Turke said
that he made it clear at that time that his primary concern remained locating the victim.

              A fourth conversation took place after the defendant had been arrested and
included the defendant’s wife and children. Mr. Turke described that conversation as “more
Christian counseling than anything.” During that conversation, Ms. Hancock asked the
defendant if he was with the victim on the morning of her disappearance, and the defendant
said that he was.

              The trial court concluded that Mr. Turke possessed the qualifications necessary
for the application of the privilege but that the conversations he had with the defendant
following the victim’s disappearance were not confidential communications. The court
observed that Mr. Turke made it clear to the defendant during these conversations that his
paramount concern was locating the victim and that he intended to share with the police
anything the defendant revealed regarding the victim’s disappearance. With regard to the
fourth conversation, the court observed that the defendant’s wife and children were present
and that the challenged statement was made by the defendant to his wife and not to Mr.
Turke.



                                             -8-
                In our view, the record supports the findings of the trial court. The plain
language of the statute protects only those communications made when the penitent was
“seeking spiritual counsel or advice” related to the information communicated. That was
clearly not the case here. Mr. Turke made it clear during each of the first three challenged
conversations that his paramount concern was finding the victim. No spiritual counseling
took place. Although the stated purpose of the fourth conversation was spiritual counseling,
that conversation took place in the presence of the defendant’s wife and children, and the
challenged statement was actually made to the defendant’s wife. Under these circumstances,
the trial court did not err by refusing to apply the clergy-penitent privilege.

                                    III. Jury Instruction

               Finally, the defendant avers that the trial court’s penalty-phase instruction on
unanimity was incorrect because it did not communicate the requirement that the jury must
unanimously agree that the aggravating circumstances outweigh the mitigating circumstances
beyond a reasonable doubt. He also complains that the instruction “did not make it clear that
jurors’ decisions on mitigation evidence need not be unanimous.” The State asserts that the
instruction adequately conveyed the requirements of the statute.

               An accused’s constitutional right to trial by jury, see U.S. Const. amend VI;
Tenn. Const. art. 1, § 6, encompasses a right to a correct and complete charge of the law, see
State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). The trial court has a duty “to give a
complete charge of the law applicable to the facts of a case.” State v. Harbison, 704 S.W.2d
314, 319 (Tenn. 1986); see Teel, 793 S.W.2d at 249; see also Tenn. R. Crim. P. 30.

              The legal accuracy of the trial court’s instructions is a question of law subject
to de novo review. See Troup v. Fischer Steel Corp., 236 S.W.3d 143, 149 (Tenn. 2007).
The propriety of a given instruction is a mixed question of law and fact to be reviewed de
novo with no presumption of correctness. Carpenter v. State, 126 S.W.3d 879, 892 (Tenn.
2004); State v. Smiley, 38 S.W.3d 521, 524 (Tenn. 2001).

              The trial court instructed the jury as follows:

                     If you unanimously determine that a statutory aggravating
              circumstance or circumstances have been proven by the state
              beyond a reasonable doubt, you shall, in your considered
              discretion, sentence the defendant either to imprisonment for life
              without the possibility of parole or to imprisonment for life.

The court also instructed the jury that, in making its determination, it could “weigh and

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consider any of the statutory aggravating circumstances proved beyond a reasonable doubt
and any mitigating circumstances which may have been raised by the evidence throughout
the entire course of this trial, including the guilt finding phase or sentence phase or both.”
Additionally, the court instructed the jury that “in arriving at the punishment the jury shall
consider, as previously indicated, any mitigating circumstance raised by the evidence.” Most
importantly, the trial court stated that “[t]he defendant does not have the burden of proving
a mitigating circumstance” and that “[t]here is no requirement of jury unanimity as to any
particular mitigating circumstance or that you agree on the same mitigating circumstance.”

               In our view, the trial court’s instructions provided a correct statement of the
law. The trial court clearly and repeatedly instructed the jury that it could consider any
mitigating circumstance “raised by the evidence” but only those aggravating circumstances
proven beyond a reasonable doubt. Additionally, the court made it clear that jury unanimity
was not required with regard to the mitigating circumstances. Finally, the defendant is
incorrect in his assertion that the aggravating circumstances must outweigh the mitigating
circumstances before the jury can impose a sentence of life without the possibility of parole.
Code section 39-13-204(f)(2) provides that the jury may impose a sentence of life without
the possibility of parole if it “unanimously determines that a statutory aggravating
circumstance or circumstances have been proven by the state beyond a reasonable doubt.”
T.C.A. § 39-13-204(f)(2) (“If the jury unanimously determines that a statutory aggravating
circumstance or circumstances have been proven by the state beyond a reasonable doubt, but
that such circumstance or circumstances have not been proven by the state to outweigh any
mitigating circumstance or circumstances beyond a reasonable doubt, the jury shall, in its
considered discretion, sentence the defendant either to imprisonment for life without
possibility of parole or to imprisonment for life.”). Only for a sentence of death does the
Code require that the jury find that the aggravating circumstances outweigh the mitigating
circumstances beyond a reasonable doubt. Id. § 39-13-204(g)(1)(B).

                                         Conclusion

              Because the trial court did not err by refusing to apply either the marital
communications privilege or the clergy-penitent privilege and because the penalty-phase
instructions provided by the trial court were correct, we affirm the judgments of the trial
court.

                                                    _________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




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