        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                 August 21, 2012 Session

               STATE OF TENNESSEE v. DALE KEITH LARKIN

                Appeal from the Criminal Court of Washington County
                         No. 35150   Robert E. Cupp, Judge


                 No. E2011-01288-CCA-R3-CD - Filed March 28, 2013


Dale Keith Larkin (“the Defendant”) was convicted by a jury of first degree premeditated
murder and one count of insurance fraud. The trial court sentenced the Defendant to life
imprisonment for the murder conviction and to a concurrent term of eight years for the fraud
conviction. In this direct appeal, the Defendant raises the following issues: (1) the trial court
erred in refusing to sequester the jury; (2) the trial court erred in allowing the Defendant’s
expert witness to testify for the State; (3) the trial court erred in admitting autopsy
photographs and some of the victim’s bones into evidence (4) the trial court improperly
limited the Defendant’s right to cross-examine a State’s witness; (5) the prosecutor engaged
in misconduct during closing argument; (6) the evidence is not sufficient to support his
convictions; (7) the trial court failed to discharge its duty as thirteenth juror; and (8) the
cumulative effect of these errors violated the Defendant’s rights to a fair trial. Upon our
thorough review of the record, we have determined that (1) the trial court failed to satisfy its
mandatory duty to act as thirteenth juror; (2) the trial court committed reversible error in
allowing the Defendant’s expert witness to testify for the State; (3) the State failed to adduce
sufficient proof to support the Defendant’s conviction of first degree premeditated murder;
and (4) the State failed to adduce sufficient proof to support the Defendant’s conviction of
insurance fraud. Therefore, we must reverse the Defendant’s convictions and remand this
matter for a new trial on the charge of second degree murder and any appropriate lesser-
included offenses. The charge of insurance fraud is dismissed.

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

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON, P. J.,
and A LAN E. G LENN, J., joined.

Mark D. Slagle (on appeal and at trial); Penny J. White (on appeal); and Johnathan A. Minga
(at trial), Johnson City, Tennessee, for the appellant, Dale Keith Larkin.
Robert E. Cooper, Jr., Attorney General & Reporter; Renee W. Turner, Senior Counsel; Tony
Clark, District Attorney General; and Dennis D. Brooks, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                                OPINION

                                Factual and Procedural Background

       The victim in this case, Teresa Larkin, died on November 18, 2003. She was survived
by her eleven-year-old daughter, Tia Gentry, and her husband, Dale Keith Larkin, the
Defendant. The victim’s life was insured under several life insurance policies. Tia Gentry’s
biological father, Tony Garland Gentry,1 filed a civil lawsuit on Tia’s behalf against the
Defendant alleging that the Defendant had caused the victim’s death, either by negligence
or by homicide. Gentry also sued the insurers of the victim’s life. The impacted life
insurance proceeds were paid into court and, at the time the lawsuit was settled, exceeded 1.2
million dollars. The lawsuit eventually was settled through mediation.2 According to the
Order of Compromise and Dismissal, Order to Enforce Mediated Agreement and Order
Approving Minor’s Settlement, filed in August 2006, Tia received $500,000 and the
Defendant received the remaining sum, less court and mediation costs and the guardian ad
litem fee.3

       In July 2009, almost three years after the conclusion of the civil action and almost six
years after the victim’s death, the Defendant was indicted on one count of first degree
premeditated murder for the death of the victim. The Defendant simultaneously was indicted
on three counts of insurance fraud, one count of which was dismissed later by the State. The
Defendant was tried before a jury in late January and early February 2011. The following
proof was adduced at trial:

      Tia testified that she was eighteen years old and a student at East Tennessee State
University (“ETSU”). On Tuesday, November 18, 2003, when she was eleven years old, Tia
came home from school and walked into the garage where the Defendant was standing by
his workbench. Tia asked the Defendant where the victim was, and the Defendant told her


        1
        For ease of identification, we will refer to Tia Gentry as Tia and Tony Garland Gentry as Gentry.
We intend no disrespect by referring to Ms. Gentry by her first name.
        2
         The parties entered into a written mediation agreement on June 21, 2006. Gentry subsequently tried
to withdraw from the agreement. The Defendant filed a motion to enforce the agreement, which the trial
court granted by a written order filed on August 23, 2006.
        3
            The referenced Order was admitted as an exhibit at the Defendant’s criminal trial.

                                                     -2-
that she was upstairs. Tia went upstairs and found the victim’s jacket and shoes in Tia’s
room near Tia’s computer. She continued to look for the victim and eventually found her in
the victim’s bathroom. The victim was sitting in the bathtub, with her legs outstretched and
her back against the back of the tub. The victim’s head was tilted to the side. Tia spoke to
her, but the victim did not respond. Tia went to her and shook her, but the victim remained
unresponsive.

       Tia stated that there was water in the bathtub, reaching to about the victim’s chest.
The water temperature was “like room temperature, maybe warm.” Tia described this as
unusual because her mother liked “really hot baths.” When the victim failed to respond, Tia
panicked and yelled at the Defendant that the victim “won’t wake up.” The Defendant
walked upstairs and pulled the victim out of the bathtub by her arms. He told Tia to get Dr.
Wiles, a neighboring physician. Tia called 9-1-1 and went to get Dr. Wiles. The victim
subsequently was taken to the hospital.

       Tia testified that, after her mother’s death and before she moved in with Gentry, she
asked the Defendant “if he thought maybe somebody had poisoned [her mother] or
something.” According to Tia, the Defendant “kind of like got very defensive about it and
kept asking [her] who put that in [her] head.”

       On cross-examination, Tia acknowledged having given a video statement to law
enforcement not long after the victim’s death.4 In her statement, she described her mother
as “stressed out” on the morning of her death. She also told the police that she heard her
mother call her name as she was looking for her. When describing the Defendant’s actions,
she told the police that, when he pulled the victim out of the bathtub, “he just like jerked her
out and it hit her head into the tub.”

       Tia testified that the victim had worked as a pharmaceutical representative for Merck,
and one of the drugs her mother sold was Fosamax. Her job required her to be on her feet
a lot. On redirect, the prosecutor asked if Tia had overheard conversations between her
mother and the Defendant about “money issues.” Tia responded, “I know that he had quit
getting money [from his employer] and that created some money problems for them and they
would argue about me and [the Defendant’s daughter] and money.”

        Dr. David Allen Wiles, a neurosurgeon, testified that he lived near the residence of
the victim and the Defendant. On the day in question, he and his wife had just returned home
from shopping. They passed the Defendant sitting on the curb, who told them he was waiting


        4
          She also gave a later video statement at which Gentry was present. The record on appeal does not
contain these statements but does include excerpts played for the jury and transcribed.

                                                   -3-
for Tia to come home. Shortly thereafter, Tia “came running across the street screaming.”
Dr. Wiles and his wife accompanied Tia to the victim’s home, and he went inside while his
wife stayed outside with Tia. As he entered the house, he yelled for the Defendant, and the
Defendant directed him to the bathroom. He testified to what he saw in the bathroom:

               [The victim] was in the bathtub, she was bluish, did not appear to be
       breathing and I did a quick kind of scan of what was going on and checked her
       pulse and couldn’t tell whether she had a pulse or not, I thought hopefully that
       she did, and told [the Defendant] we needed to start CPR. We couldn’t do that
       in the bathtub.

Dr. Wiles clarified that he checked the carotid pulse and “thought maybe there was a very
weak pulse.” He, however, was not sure whether she had a pulse. He described the victim’s
position in the bathtub as “a typical position for being in a bathtub,” that her head was above
water, and that the water level was about at her chin. The victim’s head was back against the
back of the tub.

        Dr. Wiles asked the Defendant to assist him in getting the victim out of the tub. He
testified:

       [W]e pulled her out over the edge head first, face-up so she was kind of
       dragging over the edge on her back. As I recall, [the Defendant] was at the
       head, and as she came out over, I kind of grabbed her under her arms around
       her chest and we lifted her over. I remember her being – she was not a big
       woman but I remember her being heavy and it wasn’t an easy job to get her out
       of the tub. We got her out and put her on the floor next to the tub and there
       was not a lot of room there. We then moved her down the hallway to an area
       where there was more room and started CPR at that point.

Dr. Wiles did not remember the victim striking her feet or her knees as they dragged her out
of the tub.

      The two men began performing CPR on the victim with Dr. Wiles doing the chest
compressions and the Defendant doing the breathing. They performed CPR until emergency
medical personnel arrived in less than ten minutes.

       Dr. Wiles testified that he noticed “a little bit of vomitous” in the corner of the
victim’s mouth. There was also some water in the victim’s mouth, but he did not recall it
being “a large volume.” Dr. Wiles explained that, in the past, he had broken the sternum of
an individual on whom he was performing chest compressions during CPR. He did not recall
hearing the sound of the victim’s sternum breaking.

                                              -4-
       Asked what he remembered about the bathroom, Dr. Wiles testified that he recalled
seeing a glass of wine and a bottle of pills. He asked the Defendant if the victim had any
medical problems and whether she could have overdosed. The Defendant told him that the
victim had had some wine, that they had taken the bath together, and that she was fine when
he got out of the bath and left. Dr. Wiles testified that the medication was an antidepressant
and that there was still some in the bottle, which was not open.

       As to getting the victim out of the bathtub, Dr. Wiles added:

       [I]t was, of course, a very urgent and rushed thing trying to get her out and get
       CPR going so it was – I’m certain it was aggressive, you know, we tried to be
       gentle but tried to be quick, and I do recall very clearly that I remember
       thinking, you know, this little lady weighs a lot. I hate to say the term but you
       know you hear the term “dead weight,” that’s really what it was like. It was
       hard to get her out over that tub. It wasn’t easy and she was wet and slippery
       and trying to get a good hold on her, it was hard.

       On cross-examination, Dr. Wiles described the Defendant’s demeanor as they
struggled to get the victim out of the tub as “very distraught and anxious over what was going
on.” He recalled the Defendant speaking to the victim, saying, “Come on, Teri,” “Please
come back,” and “Don’t die.” Dr. Wiles also stated that, while he and the Defendant were
performing CPR on the victim, the Defendant “developed chest pain and had to take a
nitroglycerin pill.”

       Dr. Gretel C. Stephens, a forensic pathologist, testified that she performed an autopsy
on the victim on November 19, 2003. She explained that, when she received the victim’s
body, she was not given a great deal of information about the circumstances surrounding the
victim’s death. She testified, “All we had was the order for autopsy, which was very brief,
succinct and not very informative, which said ‘Subject was lying in bathtub, she had a past
history of depression, no known medication.’” Accordingly, she began the autopsy with the
idea that the victim may have drowned.

       During the autopsy, beginning with the exterior of the victim’s body, she noted
“multiple cutaneous and deep contusions,” including a contusion on the dorsal left upper
thigh; contusions of the dorsal left arm; contusions of the right elbow; a fracture of the left
upper arm; a contusion of the right lateral abdomen; a contusion of the lateral left knee; a
contusion on the back of the left calf; a contusion to the right big toe; and contusions to the
upper portion of the left big and second toes. Dr. Stephens explained that these injuries were
“fresh,” i.e., “near the time of death or could be a day or two in.” She also noted bruises to
the right leg that were “a bit older.”


                                              -5-
       Dr. Stephens explained her reaction to the victim’s bruises:

       The finding of the bruises was – without a history of major falling, seizure
       disorder or something like that where multiple areas had been bruised and it
       all looked fresh, at least the ones that I pointed out, suggested to me that there
       was something more going on than a routine, “Oops, I drowned.” I’ve seen
       drowning in the bathtubs multiple times and very few of them have I been
       particularly concerned about. I got further concerned when we were able to
       show the fracture of the left upper arm bone. That’s very unusual from just
       simply a fall. As a result of that, I did some additional testing. I thought,
       “Well, maybe, since we didn’t have a history otherwise, she’d been involved
       in some sort of a struggle and this was actually a rape, homicide or something
       like.” Forensic pathologists always tend to think the worst so that we can rule
       them out. So we actually did studies in case we needed them for rape testing.
       We also did additional sections that I wouldn’t ordinarily do in an autopsy
       including take out the area of the end of the bones at the fracture and look at
       them under the microscope. Even though I didn’t find any tumor of any sort
       in Teresa Larkin, sometimes pathologic fractures can occur in an area where
       the bone is weak and it just means it’s a fracture that occurred because
       something else was interfering with the normal strength of the bone in that
       area. . . . I also did a section of the vertebra of the vertebral column because
       another thing that can occur usually in older women or in somebody that’s
       been on a lot of prednisone or other type of a steroid that tends to weaken your
       bones, can lead to very weak bones. If she had very weak bones, then a
       fracture like that might have occurred without the usual degree of force or
       trauma that would have been required to break that bone in a woman who was
       just thirty-seven. So I did additional studies because of that.

Her additional testing did not indicate either osteopenia, “kind of the early precursor to
osteoporosis,” or osteoporosis, conditions of bone weakening. She opined, “there was no
major osteopenic components identified” at the fracture site.

       In addition to the external bruising, Dr. Stephens also noted that the victim had
suffered internal bruising “at the upper part of the buttock and kind of over a bony
prominence”; “involving the upper portion of the back and shoulder area”; and of the left
breast. There also was bruising to the victim’s scalp, to the left side of her thyroid gland, and
to the right side of her tongue. Dr. Stephens did not see any indication that the victim’s
sternum was fractured.




                                               -6-
       Dr. Stephens testified that the victim’s lungs each weighed more than normal,
indicating that her lungs contained excess fluid “or something.” She also found colonies of
bacteria in the victim’s lungs. She explained:

              Well, the usual thing that you see in drowning is there are several things
       that you can see, but the one that really points to drowning, is when you have
       just horrendous froth coming out the mouth and nose and that’s from
       pulmonary edema fluid mixed with the water of the drowning and it all just
       kind of bubbles back up at you when you’re trying to resuscitate the person.
       Usually by the time we see them in the morgue, they still show that unless
       they’ve been subjected to a long resuscitative effort so that they’ve been
       pumped and pumped and pumped and all of that excess fluid is now kind of
       forced out of the lungs. So, you know, we’re not seeing that, but what we are
       seeing is bacterial colonies. If you’re pumping somebody’s chest and
       breathing for them and they’ve got bacteria up in the throat area, you can
       shove that down and it can go into the lungs. It’s unusual to see it that far out
       and the same thing can happen if you choke on vomit or choke on materials
       from the upper throat or if you drown. You can have, from the breathing in of
       the water through the airway, it can wash some of those bacteria from either
       the bath water itself or from the upper airway down into the lungs.

She added that the fact that the victim was found with her head above water “and the lack
of any clear indication that she had this horrendous froth and certainly no froth when I looked
at her, went against drowning.”

        Dr. Stephens ruled that the probable cause of the victim’s death was asphyxiation,
with blunt trauma also present. She explained that asphyxiation “just means that the oxygen
is not getting to the brain” and that the condition “can happen in multiple ways,” including
drowning, smothering, and heart stoppage. She added, “If you are being compressed hard
enough in your chest area so that you can’t inhale, that can cause an asphyxial death.” She
also explained that petechia hemorrhages, such as were noted on the underside of the victim’s
eyelids, are “tiny pinpoint hemorrhages.” The possible causes for these hemorrhages include
choking, strangling, smothering, violent vomiting, and heart attack. She stated that petechia
hemorrhages can also occur “if you don’t clot normally” or if “it’s someone who tends to
bruise easily.”

       As a result of the autopsy, Dr. Stephens concluded that the manner of death could not
be determined. She was suspicious of homicide, however, so she telephoned the Johnson
City Police and asked them to investigate. She stated that, had she had access to the medical
reports that were developed later in the case, she would have concluded that the manner of
death was homicide.

                                              -7-
       In conjunction with her testimony, the autopsy report Dr. Stephens prepared was
admitted into evidence. That report contains the following summary of the “anatomical
diagnosis”: “(1) Multiple contusions[;] (2) Proximal fracture of the left humerus with
extensive contusion[;] (3) Large surgical scar of left upper arm and shoulder[;] (4) Numerous
bacterial colonies in the peripheral and central lungs[;] (5) Petechial hemorrhages of the
conjunctivae[.]” The report provides cause of death as “Asphyxiation, with blunt trauma also
present.” The “narrative of findings” provides as follows:

               This 37 year old woman died due to asphyxiation with a broken left arm
       and multiple bruises also present. The type of asphyxiation is not clear, since
       the occurrence was in a bath tub and drowning may have occurred, but
       resuscitative efforts were also undertaken, with extensive bacteria in the
       peripheral lung tissues being the only feature suggestive of drowning. There
       is evidence for asphyxiation since there were petechiae of the eyelids. Drug
       tests showed only a small concentration of ethanol present in the fluids and no
       other drugs. The findings are especially troubling due to the major injury to
       the left upper arm in addition to other areas of bruising. The manner of death
       could not be determined. No marked osteopenia of her bone is shown.

The date of the report is March 10, 2004, almost four months after the victim’s death.

        On cross-examination, Dr. Stephens acknowledged that she could not determine “what
the mechanics of death were in this particular instance,” even taking into account the later
medical reports which she reviewed. She also acknowledged that she had not reviewed the
victim’s medical records in conjunction with performing the autopsy. She admitted that it
would have been “helpful” to have known that the victim had fractured her left humerus in
January 2001 from slipping on the ice. She also acknowledged that, if the victim had had
osteoporosis, it was “very likely” that she would have suffered “parallel bone fractures . . .
in both arms if she . . . was pulled from the tub by both arms.” However, she denied seeing
osteoporosis during her examination, stating that she “even checked vertebrae.” She denied
knowing that the victim had had “compression fractures of two vertebral bodies,” explaining
that she “could see only what [she] could look at with the naked eye which looked like a mild
degree of osteo-arthritic change.” Dr. Stephens stated that her lab did not have an x-ray
machine and that her “method of testing for a fracture was to see if something moved where
it wasn’t supposed to.” Using this method, she did not find any fractures to the victim’s
sternum or ribs or to the victim’s right arm. She found the fracture in the victim’s left arm
only because the arm was bent in an abnormal fashion.

       Dr. Stephens acknowledged that a bruised tongue can be evidence of a seizure. The
victim also could have bruised her tongue while fainting.


                                             -8-
        On redirect examination, Dr. Stephens reiterated that she “did not find major
weakness of [the victim’s] bones” and “no objective evidence for osteoporosis.” She also
stated that the victim’s past gynecological problems did not necessarily mean that the victim
suffered from osteoporosis. The toxicology report prepared in conjunction with the autopsy
revealed “a very small amount of alcohol in the blood” but no drugs in the victim’s system.

        On further cross-examination about the manner of death, Dr. Stephens testified, “I
didn’t suggest mechanical asphyxiation although that was a consideration. I did consider and
cannot rule out drowning still because of the extensive resuscitative effort that changed a lot
of the findings that we might see.”

       Dr. Darinka Mileusnic-Polchan, the Chief Medical Examiner for Knox and Anderson
Counties, Tennessee, testified that, several years prior to the criminal trial, the Defendant’s
lawyer asked her to review Dr. Stephens’ autopsy report and related materials, including
photographs and microscopic slides prepared from the victim’s organs, in conjunction with
the Defendant’s efforts to collect the life insurance proceeds payable on the victim’s death.
Dr. Mileusnic5 also reviewed the statement the Defendant gave to the police. After
reviewing and analyzing these materials, Dr. Mileusnic prepared a written report dated May
31, 2006, which was admitted at trial and includes the following:

              Gretel C. Stephens, M.D. at East Tennessee State University, Forensic
       Pathology Division, performed full autopsy on November 19, 2003. Two
       different findings/conclusions were listed as the main diagnosis under Primary
       Series subtitle: 1. Asphyxiation; 2. Blunt trauma. Based on the objective
       documentation (photographs and microscopic slides) and choice of words, it
       seems that Dr. Stephens excluded drowning and implied mechanical asphyxia.
       Unfortunately, it is not clear from the autopsy report what kind of mechanical
       asphyxia Dr. Stephens had in mind when she was formulating her final
       opinion.

              There are few gross findings (Primary Series) supporting mechanical
       asphyxia – petechiae of the conjunctivae and contusion of the deep left neck
       tissue next to the thyroid gland. Regrettably, there are no photographs of
       petechiae to document the finding. Without objective documentation and
       detailed description of the density and other characteristics of conjunctival
       petechiae, this statement becomes meaningless. Soft tissue contusion in the
       left neck is minor and does not involve skeletal muscle. With no other



       5
           Dr. Mileusnic-Polchan confirmed that she goes by “Dr. Mileusnic.”

                                                   -9-
accompanying findings, it is impossible to base the main diagnosis of
mechanical asphyxia just on this detail.

       Second part of the main diagnosis, blunt trauma, is depicted in several
gross photographs as well as in several microscopic slides. If one disregards
neck finding, right lateral tongue hemorrhage and petrous temporal bone
finding, eighteen foci of contusions are observed. Comparison of the listed
diagnoses and photographs allows for better understanding what kind of
trauma we are dealing with. First of all, majority of bruises are over bony
prominences such as shoulders, right elbow, right iliac crest and left knee.
Many of the listed contusions would be consistent with [the victim] being
pulled out of the bathtub and placed on the hard surface where resuscitation
began. Additional contusions included dorsal left arm, left breast, parieto-
occipital scalp, right lateral abdomen, thighs, left calf and bilateral toes.
Posterior incision into the skin and muscle of the back nicely demonstrates
hemorrhage at the level of the shoulder blades where the body came in contact
with the hard surface/floor. The same is true for the occipital subscalp
hemorrhage.

       Fracture of the left humerus with surrounding hemorrhage is the only
major fresh-appearing trauma. Similar to the rest of the contusions elsewhere
on the body, there is no surrounding inflammatory reaction, consistent with
perimortem occurrence. It is not hard to envision occurrence of these
traumatic findings during aggressive pulling of the body from the bathtub and
subsequent resuscitation.

        Dr. Stephens lists a couple of more findings such as peripheral tongue
hemorrhage and petrous temporal bone congestion. Peripheral tongue
hemorrhage is more consistent with terminal seizure rather than trauma due to
foul play. Finally, petrous temporal bone congestion is neither contusion nor
trauma. As the matter of fact, it is a very nonspecific finding, which is
frequently noted in drowning deaths. Diagnoses listed under the Secondary
Series subtitle constitute minor incidental findings, which will not be discussed
here.

       Autopsy reveals heavy and edematous lungs (1350 grams combined
weight). Microscopically, there is severe generalized edema noted throughout
the alveolar spaces bilaterally as well as focal hemorrhage and bacterial
clumps. Bacterial colonization of the lungs when autopsy is done shortly after
death indicates aspiration and transfer of oral flora distally in the lungs. These
findings coupled with watery gastric content and [the Defendant’s] account of

                                       -10-
      water coming out of his wife’s mouth would indicate drowning. Although [the
      victim] was found in only approximately one foot of water, her husband did
      indicate that the tub was leaky.

              Additional microscopic findings include mild hepatic steatosis (fatty
      liver) and colloid cyst of the thyroid cartilage with focal surrounding
      intramuscular extravasation.       As the matter of fact peripheral focal
      extravasation (leaking of blood in surrounding tissue) is also noted in the
      pelvic region and in the perirenal soft tissue (around kidneys). The extent and
      location of these foci of extravasation indicate perimortem agonal changes that
      were occurring irrespective of trauma. Therefore, overinterpreting these
      changes anywhere in the body could be misleading. Neuropathologic exam
      demonstrates early red neuronal changes, particularly in the cerebellar Purkinje
      cells, consistent with terminal hypoxia. Foci of extravasation or microscopic
      bleeding are noted in several brain sections.

              The most interesting finding in this autopsy is cardiac histopathology.
      Heart sections taken by Dr. Stephens indicate worrisome changes that could
      not be ascribed only to agonal artifact, resuscitation or laboratory artifact (recut
      glass slides 1 and 2). In her histological description Dr. Stephens did indicate
      presence of focal hemorrhage in the heart muscle. In that same section of the
      cardiac muscle, in the vicinity of the extravasation/bleeding there are subtle
      inflammatory changes present such as focal clustering of lymphocytes,
      macrophages and rare neutrophils. In the foci of myocytolysis (muscle fiber
      breakdown) there is abundant cellular debris and surrounding interstitial
      edema. These changes are frequently indicative of myocarditis, which is
      notorious for focality and random distribution with wide skip areas. In cases
      of suspected myocarditis additional random sampling of the heart muscle is
      highly recommended.

Dr. Mileusnic’s report to the defense concluded as follows:

             Based on the currently presented evidence, terminal cardiac event with
      agonal seizure and possible drowning cannot be excluded. In summary, most
      gross and microscopic findings in support of mechanical asphyxia with blunt
      trauma are insufficient to be listed as the main cause of death without [sic]
      reasonable medical certainty. More detailed cardiac examination with
      additional sectioning is recommended.




                                             -11-
             If you have any additional questions or new investigative information
       becomes available, please do not hesitate to contact me. Thank you for giving
       me an opportunity to work with you on this troubling case.

At trial, she explained her opinion as follows:

               The final opinion, of course, all boils down that what I thought to be
       cause, potentially manner of death would be, the cause of death I had to base
       essential information received and autopsy findings. The most remarkable
       thing for me in the autopsy, and you heard a lot of it from Dr. Stephens, is that
       her lungs were extremely heavy, [the victim’s] lungs were extremely heavy
       and there was a lot of clear fluid coming from her mouth and that was at that
       time as [the Defendant] observed and described in the report and by [defense
       counsel’s] also account, so all that coupled together, plus watery fluid and
       watery content in the gastric content to me, that was very significant for
       drowning, there was no question about it. And actually, even to this point
       there’s no question about it in my mind. Now, the other finding that I had to
       rely on is, okay, we do have this blunt trauma that Dr. Stephens was concerned
       about. Of course, I’m looking at the trauma from the photographs and as there
       always is, photographs sometimes can be underwhelming depending on how
       they’re presented and some of the things that I wanted to see, such as some of
       the bruising under the scalp a little bit better angle or petechiae in the eyes, I
       could not see, they were not in the photographs. So because of that, I couldn’t
       really put so much weight on that particular finding as far as bruising was
       concerned. But there was one big thing that we all discussed yesterday and
       that’s – or the witness discussing it yesterday, and that was the fracture in the
       left arm and that was the arm that would be turned toward whoever is rescuing
       [the victim] from the bathtub. So in case you’re going to lift, I don’t know,
       120-pound woman just by that arm in the bathtub, I can see how that could
       potentially happen. So I said “Okay, if that’s the case, I can see that happening
       during that particular rescue.” I think it’s drowning and I still think it’s a
       drowning. But as far as what could contribute or lead to this drowning,
       because she had some issues but she didn’t have seizures, she didn’t have a lot
       of alcohol in the blood, so what could lead to that, then I was looking a little
       bit deeper, I was looking into tissue histology to see if I can find anything.
       Now the heart was one area that I was concerned about and that’s the section
       Dr. Stephens took from the front of the heart, the left ventricle front right kind
       of under the breastbone that showed, as she described, a little of a hemorrhage.
       I said, “Well, there’s a little bit of hemorrhage,” which is bleeding in the heart
       muscle, and I’m also seeing some debris there. Well, could it be that
       something is happening in the heart that maybe could lead to her sudden loss

                                             -12-
       of consciousness that would cause her to drown? So that’s basically what I
       said in my report as a conclusion, is drowning, what could lead to that, it’s
       possible.

She added that “drowning was more important than traumatic or other kind of mechanical
asphyxia[,] that’s compression of the neck or mouth or of the chest.” She also testified that,
at the time she prepared her initial report, she attributed the majority of the victim’s bruising
to the rescue attempts.

        Dr. Mileusnic faxed her report to the Defendant’s lawyer on June 6, 2006. She
subsequently met with representatives of the State and law enforcement concerning the
victim’s death. They discussed exhuming the victim’s body for further evaluation. In March
2009, the victim was exhumed from her above-ground vault and Dr. Mileusnic performed
a second autopsy. In conjunction with performing this second autopsy, Dr. Mileusnic
prepared an “Autopsy Final Report” which was admitted into evidence and which contains
the following “Narrative”:

              The body of Teresa Larkin, a 37-year-old white female, was exhumed
       on March 12, 2009 for a second autopsy and detailed anthropologic
       examination. In spite of the previous removal of the fractured left proximal
       humerus, multiple additional fractures and contusions not obscured by the
       decomposition process are recorded at this time. The results of the first
       autopsy had been reviewed previously addressing areas of concern. Second
       autopsy with anthropologic study and additional testing as well as more
       detailed investigative information reveal [the] following:

              1. Follow up investigation indicates that the witnessed retrieval of the
       body from the bathtub and resuscitation efforts were not aggressive to the
       point of inflicting any significant injury to the body of [the victim]. Revival
       efforts were both initiated and conducted by trained medical personnel
       throughout the resuscitation;

              2. Additional examination of the tissues, organs, particularly the heart
       sections, coupled with anthropologic evaluation reveals that: a. The previously
       noted cardiac changes are traumatic in nature. Parallel sternal fractures as well
       as predominance of extravasated erythrocytes rather than inflammatory cells
       in the sampled myocardium are consistent with blunt force injuries; b.
       Subcutaneous, intramuscular and subscalp contusions are very deep and still
       observable despite the prolonged burial and decomposition changes with
       maggot infestation. Distribution of fractured bones matches the originally
       described skin and soft tissue contusions.

                                              -13-
              Initial review of the victim’s medical records tells me that [the victim]
       was a rather healthy lady with minor issues such as sinusitis and vaginal
       discharge. More than a year prior to her death she had a near-fainting episode.

              In summary, the cause of death is homicidal drowning with traumatic
       asphyxia and multiple blunt force injuries as contributing factors in death of
       [the victim]. The extent, appearance and distribution of the skeletal injuries
       cannot be explained away by any accidental or suicidal events, natural
       conditions and/or reasonable artifacts of resuscitation, postmortem handling
       of the body, first autopsy or exhumation.

        During the second autopsy, Dr. Mileusnic noted that the victim’s right humerus was
also fractured, with a “complex spiral fracture.” She testified that the fractures to both upper
arms were caused by “a spiral twisting motion.” Dr. Mileusnic also found “grinding-type
fractures” in both of the victim’s elbows as well as “two very interesting fractures in the
sternum.” She testified that the fracture to the victim’s left elbow “[c]ould have happened
around the same time” as the fracture to the left humerus. As to the sternum fractures, she
stated that it was “relatively rare” for such fractures to be caused by CPR. She explained
further:

       A sternum can fracture in trauma cases, a sternum can sometimes fracture
       during resuscitation but whenever there was fracture of the sternum or the
       breastbone in resuscitation, it was always preceded with the fracture of the
       bones – of ribs. I’ve never seen fractured sternum that did not have fractured
       ribs that were due to resuscitation, and whenever that happened, it was always
       the weakest part of the sternum, the breastbone, and it’s really the thinnest.
       This was not the thinnest part of the sternum, this was actually lower down
       where the sternum sort of kind of curves and creates kind of a widening or an
       enlargement. So the location on the sternum, the fact that there were two
       fractures on the sternum, two lines, were very disturbing to me.

She also stated that, after she performed the second autopsy, she concluded that “the most
consistent and meaningful explanation [for the injuries to the heart noted during the first
autopsy] was actually there was contusion on the heart that was related to the trauma to the
sternum.”

       In addition to the fractures, Dr. Mileusnic found two areas of “hemorrhage or bleeding
under the skin and in the muscle,” one area in the victim’s back and the other area toward the
victim’s buttocks. She stated that these areas of deep bruising were “not visible
superficially.”


                                              -14-
       Dr. Mileusnic reiterated that she “still st[oo]d by” her original determination that the
main cause of the victim’s death was drowning. She continued: “Now how drowning
occurred and how it came about, in my opinion it was actually a very violent death that led
to her drowning and/or a violent mechanism that led to her drowning.” She added, “if this
were my jurisdiction, I would call it homicide.”

        On cross-examination, Dr. Mileusnic acknowledged that she faxed her initial
determinations regarding the victim’s death to the Defendant’s lawyer on June 6, 2006, but
she did not recall speaking to Detective Sherfey about the case on the same day. However,
she did recall speaking with Detective Sherfey several times over the course of “a long time.”
She stated that she resisted becoming further involved in the case because it was “troubling”
and “nasty.” She added that the Defendant’s civil litigation had been concluded before she
had “any serious conversation with the State to get involved in the exhumation.” At that
point, she testified, she “got kind of dragged into this case again because [she] felt obligation
toward the victim that [she did] need to review whatever additional information and evidence
is there.” She testified that she had “nothing to do with” the Defendant or defense counsel
after defense counsel called her and told her that the civil litigation was “done and over and
it’s favorable.”

        Dr. Mileusnic explained that, when she performed her original work for the
Defendant, she “had no objective scene investigation information whatsoever” and “didn’t
really have any medical history on [the victim].” When she began working for the State, she
“was given scene photographs because it’s really important to see where did this all occur.”
She also learned from conversing with Detective Sherfey that “this bathroom actually was
nicely carpeted which would actually reduce all this trauma from dropping the body on nice
plush carpet resulting in bruising the back of the head, bruising the back of the shoulders,
well, that was not an equation anymore.” Additionally, the State provided her with the
victim’s medical records, including psychiatric records. However, she did not recall
specifically a letter from Dr. William C. Diebold indicating that the victim was being treated
for anxiety and depression in May 2002, was scheduled for a follow-up visit in three months,
and was “also seeing a therapist for more frequent visits.”

       Based on the medical records she reviewed, she learned that the victim was dealing
with some minor musculoskeletal pain, probably related to an old injury received in a motor
vehicle accident; “on and off” depression; and some “gynecological issues” including a
hysteroscopy, a uterine ablation, and a tubal ligation. She also acknowledged that the
victim’s medical records reflected that the victim had had a near-fainting episode a year prior
to her death; previous compression fractures of her back; a previous fracture of one of her
toes; and “skeletal issues in terms of pain.” She also acknowledged that the victim had
suffered a prior fracture to the left humerus. She stated that this previous fracture “healed


                                              -15-
with no residue.” Dr. Mileusnic testified that merely looking at a bone was not sufficient to
determine whether the individual suffered from osteoporosis.

        When asked if the victim could have had a seizure prior to her drowning, Dr.
Mileusnic responded, “I’ve never seen so much bruising and injury on the body just from
seizure and drowning subsequent to the seizure in a bathtub.” She acknowledged that the
injury to the victim’s tongue could be indicative of a seizure.

        On redirect, Dr. Mileusnic stated that one of the “big problems” that she encountered
in this case was the evidence that the victim drowned contrasted with the reports that she was
found in the bathtub with her head above water. She added, “for a healthy person to drown,
you have to be, again, incapacitated or intoxicated, one of those things, and, again, falling
in would account for some injury but not for all of them, and certainly not for fractures that
we’re seeing.” When asked whether someone who had fainted or seized or fallen into a
bathtub would later be found sitting upright, Dr. Mileusnic answered, “No.” When asked to
explain why not, she responded,

               Just because her sitting in the bathtub with everything else that we
        found, it seems or looks more like a staged scene rather than natural way that
        she would end up following her trauma and let’s say drowning. So to me,
        looking at some scene that looks staged like that, and staging of the scene is
        pretty – a common phenomenon in forensic science, is something to be
        concerned about.

She also explained that water in a bathtub “would buffer a lot of the movement and trauma.”

        Dr. Murray Marks, Associate Professor at the Department of Pathology and Oral
Surgery at the University of Tennessee Medical Center and a board-certified forensic
anthropologist, assisted in the exhumation and second autopsy of the victim. He explained
that his specific role was “to assess the skeleton and try to make some sense out of trauma
if it was discovered.” He prepared a written report addressed to Dr. Mileusnic, dated May
1, 2009, that was admitted into evidence. In the report, he notes that “[t]he [victim’s] left
humerus demonstrates previous removal of the upper end via complete transverse sectioning
through the proximal third of the shaft and removal of the head. This specimen was not
available for study.” 6



        6
          Dr. Stephens’ autopsy report reflects that she removed the victim’s left “femoral head” for further
analysis. Based on the remainder of the record, it appears that her reference to the victim’s “femur” was a
clerical error and that the autopsy report should have referred to her removal of an upper portion of the
victim’s left humerus.

                                                    -16-
        In his examination of the victim, he determined that there was a fracture on the front
surface of the sternum (breastbone) that was “pushed in from the front.” There was also a
second fracture further down on the sternum, also caused by pressure from the front. He
stated that the types of fractures he found in the sternum “would be something from a direct
blow.”

       As to the victim’s right upper-arm bone, the right humerus, he observed an area in the
elbow region where the exterior compact bone had been “abraded away,” exposing the
“[t]rabecular bone” which is “the spongy bone or the cancellous bone that is inside the bones
of the skeleton.” He stated that, normally, a person’s trabecular bone is not visible. He
observed a similar injury to the victim’s left humerus. He explained the cause of these
injuries:

               That type of a wound is received when there’s a twisting and
       particularly of a lower part of the arm and the elbow becomes compromised,
       and so the proximal ulna and the distal humerus come into contact in this
       particular case right here so it’s twisted off center and then as it’s turned on
       this axis, which is the elbow, it wears down the articular cartilage, it can go
       right through it and abrade it.

Dr. Marks added that the degree of force required to cause these injuries would be “pretty
significant.”

       Dr. Marks also observed an impact fracture to that portion of the victim’s shoulder
blade into which the upper portion of the right humerus fit. He stated that this fracture was
caused by pressure from the humerus. The upper portion of the right humerus also “was
destroyed in a pretty significant manner, it was twisted, fragmented and there was some spiral
fracturing on it which means of a twisted nature caused the breakage. It wasn’t a simple
fracture[,] it was pretty complicated.”

       Dr. Marks also explained the injuries that he found by reference to some of the
victim’s actual bones, which were admitted into evidence over the defense’s objection. Dr.
Marks testified that the fractures that he observed were received “around the time of death.”

       On cross-examination, Dr. Marks acknowledged that the fractures could have
occurred after the victim’s death.

       Charlie Herron, funeral assistant with Oak Hill Funeral Home, testified that he
assisted in handling the victim’s body after the initial autopsy. He and Harry Torian retrieved
the body from the morgue and transported it to the funeral home. He also “worked the


                                             -17-
funeral service.” From the time the victim’s body was retrieved until it was laid to rest,
nothing occurred that would have further damaged the body.

       Harry Torian testified that he worked part-time with the Oak Hill Funeral Home,
“working services and making removals.” He and Charlie Herron retrieved the victim’s body
from the Medical Examiner’s Office in Johnson City after autopsy. The body did not suffer
any injury during the removal or thereafter.

       Frank Fitzgerald, the embalmer at Oak Hill Funeral Home, testified that he recalled
the victim’s body because it “had bruises on [the] right and left arm and [the] right and left
leg.” He also testified that nothing happened to the body after its delivery to the funeral
home that would have caused any injury.

        Dr. Sam Stout, a biological anthropologist specializing in skeletal biology, testified
that he examined a cross-section of a rib bone from the victim’s body to determine whether
it was osteoporotic. He stated that the cortical bone portion of the sample was “right at the
average for a metabolically normal person between the ages of thirty and thirty-nine.” His
examination did not reveal indications of osteopenic or osteoporotic ribs.

      On cross-examination, Dr. Stout acknowledged that, as a forensic anthropologist, he
does not make diagnoses of osteoporosis. He explained that “osteoporosis is kind of a
potpourri of diseases actually and all [he was] addressing is how much bone.”

       Robert Casey testified that he was working as a rescue technician on a rescue truck
in Johnson City in November 2003. He responded to the call received about the victim. At
the scene, he “found a female patient lying supine on the floor, unconscious, unresponsive,
with no pulse, no respiratory effort and there [were] two gentlemen on the scene.” One of
the men, who identified himself as a doctor, was performing CPR chest compressions on the
victim. Casey went to the victim’s head and began bag-valve mask ventilation. The
ambulance crew arrived shortly thereafter and intubated the victim while Casey took over the
CPR compressions.

       On cross-examination, Casey acknowledged having given a written statement to the
police. The statement, admitted as an exhibit, is dated November 20, 2003. The statement
provides as follows:

       I received a call to #2 Whalen Ct. on an unconscious female that may have
       been in cardiac arrest. I was advised that there was a physician on scene. I
       arrived and the physician’s wife met me at the door. She stated, “Go up the
       hallway and take a right into the bathroom.” There was naked w/f in the floor
       on her back. There was a brown haired w/ man approximately 6’ tall in his

                                             -18-
       40’s that I think was a physician and he was doing chest compressions. There
       was a w/ m with gray or starched [sic] hair in his late 40’s-50’s with glasses
       on that was performing mouth to mouth that I think is her husband. The
       husband stated that he had been in the tub with her. There was a candle
       burning on the tub in the far back right hand corner. The husband stated he
       had been out of the tub for 20 minutes. The husband stated he had found her
       in the tub but not under the water. The husband stated that he had pulled her
       out of the tub and into [sic] the floor. The doctor stated that when he got there
       she had a pulse. I checked her pulse upon arrival and found none. I took over
       CPR and found that she was full of water. The water level in the tub was
       below the jets. I turned her head to get some water out because she had a lot
       of water. When I took over CPR the husband went to her feet. He placed a
       towel over the woman as I was working on her. The ambulance arrived in 2-3
       minutes and EMS Capt. Randy Byrd arrived right after them. Paramedic Jason
       Painter tried to intubate and couldn’t because he couldn’t see the vocal cords,
       so he asked for suction. Bob Barrett gave him the yaunkeur [sic] and Jason
       commenced suction. There was a lot of water that came out of her airway.
       Jason then attempted to intubate the second time, which was successful. Jason
       then attempted to bag, but you could hear the gurgling with the chest rising.
       Jason then requested suction, which was done with a suction catheter. Jason
       then suctioned additional water out of her lungs that had a little bit of blood in
       it. Jason pulled the suction out and went back to bagging the airway. We then
       secured the tube with a tube tamer. ACLS protocol drugs w[ere] then
       administered. She was then packaged on a long spine board to the cot in the
       livingroom and then to the ambulance. I don’t remember having wet pants or
       anybody else having wet clothes when we were done. I spoke with the
       doctor’s wife as I was leaving and asked, “What happened?” She stated the
       husband had come outside to do some yard work and the daughter had asked,
       “Where’s mom?” The husband told her where her mother was. The daughter
       went to the bathroom and thought her mother was playing. The daughter
       nudged her mom and she went under the water. The daughter then ran out.

        Robert Barrett, an EMT with Washington County/Johnson City EMS, testified that
he also responded to the call about the victim. Upon arrival, he found a “thirty-something-
year-old female lying supine on the bathroom floor. [He thought] she had a towel over her
pelvic area, otherwise, she was unclothed. She was in – she was pulseless, had no
respirations, no heartbeat.” He and his partner, Jason Painter, “immediately proceeded into
ACLS protocol, started IV’s, hooked her up to a cardiac monitor.” The only unusual thing
that stood out in his memory about the call was “there was a half full wine glass in the corner
of the bathtub.”


                                              -19-
       On cross-examination, Barrett recalled giving a statement to the police in which he
reported the Defendant “talking to his wife trying to get her to come around.” He also told
the police that “the female didn’t appear to have any deformities on her body.”

        Jason Wayne Painter, a paramedic for Washington County/Johnson City EMS,
testified that, when he arrived at the scene, he “found a mid-thirty-year-old female patient
lying in the floor and in obvious cardiac arrest. She was pulseless, she was apneic. CPR was
underway by a physician that was described to be a neighbor, and apparently the patient’s
husband.” He put a heart monitor on the victim and noted no electrical activity in the
victim’s heart. He intubated the victim, and he and Barrett

       started the IV and [they] started pushing medications or administering
       medications for that rhythm. [They] just continued to do CPR and push
       medications. [They] put her on a long spine board, same thing that [they] put
       people on for car wrecks for spinal immobilization in order to extract her from
       that position. [They] got her on the cot, got her to the truck and just proceeded
       to do just that all the way to the hospital.

Painter reiterated that there were “no signs of life” when he arrived, and he observed no signs
of life thereafter.

       Painter testified that, during the intubation procedure, they suctioned water out of the
victim’s airway and that, after intubation, he “had to suction water out of her lungs through
the ET tube through the endotracheal tube with a suction catheter.” He stated that he did not
know how much water he actually suctioned out, “but it was a substantial amount.” He
emphasized that the water came from the victim’s lungs, not her stomach.

       On cross-examination, Painter stated that, when he arrived at the scene, the victim’s
hair was wet. He added that “[t]here was also water on the floor about the head where her
head was laying on the carpet” and described the water temperature as “not cold.” He
confirmed having told the police two days after the event that the doctor who had been there
when he arrived had told him that there was a faint pulse when the doctor arrived. He also
confirmed having told the police that he “[d]id not notice any abnormal bruising.” However,
he explained that, because they were working on a cardiac patient, they “weren’t really
looking for any.”

        On redirect examination, Painter recalled asking what had happened upon his arrival
at the scene. The Defendant told Painter that “he had just gotten out of the bath tub, that he
had just taken a bath with her and left her and she was fine.” When Painter asked the
Defendant how long it had been since the Defendant had seen her, the Defendant replied,
“Approximately fifteen minutes.”

                                             -20-
        James McCoy testified that he was related to the victim and Gentry because his
mother was the victim’s grandmother’s sister. He took his wife and mother to the emergency
room after the victim was transported to the hospital. He testified that the Defendant “met
us at the door and said she was already gone so then they were saying that she drowned in
her bathtub.” McCoy’s mother accosted the Defendant, stating, “I want to know what
happened to Teresa.” The Defendant told her that they had found the victim in the bathtub,
sitting up, and that she had had a glass of wine and “took a pain pill, maybe even two and he
didn’t know what happened, if she passed out or what.”

       Suzanne Payne testified that she had been friends with the victim and the Defendant.
After learning of the victim’s death, she and another friend, Linda, went to visit the
Defendant and Tia. During their visit, the Defendant told her what had happened, explaining
that “he and [the victim] had been intimate in the bathtub and were talking and making plans
for Thanksgiving, and then he went to pick up Tia.” Payne was unsure if the Defendant was
picking up Tia from somewhere in the neighborhood or from the school bus. The Defendant
told her that, “when he came back, he said he had something to do in the basement, so he sent
Tia on up and then Tia found [the victim].”

       Sara Rice testified that she knew the victim because her daughter and the victim’s
daughter had been “best friends for about fifteen years.” She stated that she also knew the
victim because she had a cleaning service and cleaned for the victim. Rice testified that the
victim “was in excellent shape.” She described being on the trampoline with the victim and
doing acrobatics in the yard together with their daughters.

        During the summer of 2004, Rice had a conversation with the Defendant about the
victim’s death. The Defendant told her that the victim “had an aneurysm and she drowned
in the bathtub.”

      Mary Paige Tate testified that she was a neighbor of the Defendant’s and the victim’s
and that she observed the victim turning cartwheels and playing hopscotch with their
daughters. She observed this activity two or three years prior to the victim’s death.

       Levonia Presley testified that she and her husband raised the victim from the time the
victim was about six months old, including putting her through college. The victim was
supposed to make a visit to their house on the day of her death. Presley stated that she and
her husband paid for the victim’s funeral. She also stated that the Defendant never offered
to pay for the funeral expenses. The Defendant asked her if the victim’s eyes could be
donated, but Presley refused. Presley testified that she wanted the exhumation and second
autopsy and stated that she was willing to pay for it.



                                            -21-
       On cross-examination, Presley stated that she did not know about the conversations
that her husband had with the Defendant about the victim’s funeral.

        Lieutenant Steve Sherfey of the Johnson City Police Department7 testified that he
became involved in the case on November 20, 2003, following a call from Dr. Stephens.
There had been no police investigation prior to that time. In conjunction with the
investigation, he took a statement from the Defendant and collected some drugs from him
that he said the victim had been taking. The drugs included calcium tablets and vitamin pills.
Photographs were taken of the bathtub. The Defendant’s statement, taken on November 25,
2003, provides as follows:8

               On 11/18/2003, my wife Teresa had taken her little girl to school.
       Teresa had gone to a breakfast related to her work, and got home between 9:30
       and 10:00 a.m. Between 11:30 a.m. and 1:00 p.m. I was gone from the home.
       I got home around 1:00 p.m. Teresa got home around 1:15 p.m. Teresa had
       been under stress due to work. Last month both of the drugs she had sold had
       been taken off the market (for TennCare). She had been looking for another
       job. We take baths together for relaxation. We had sex in the tub. Teresa
       wanted to lay in the tub and relax. She often took hot baths. I had gone
       downstairs maybe 30-45 minutes. At 2:45, I had gone out to meet our
       daughter at the bus stop. When I came back up, the little girl asked “Where’s
       mom?” I said that she was upstairs getting ready. The little girl came back out
       and said that mom was not responding. The tub leaks and the tub had a foot
       of water maybe. When I got upstairs her lips were purple, and her head was
       out of the water. I pulled her out and I told Tia (the little girl) to call 911. I
       saw our neighbor, Dr. Wiles, come in while I was outside. I told Tia to get the
       doctor. When I got her out, I started CPR, I thought I felt a pulse. After I got
       her out of the tub, 4 times water came out of her. She threw up one time when
       I leaned over. The doctor came in and we continued CPR. The medics came
       in and started CPR. I took a nitro pill due to the CPR. It seemed as though
       they worked her 20 to 30 minutes. My brother lives nearby and saw the
       ambulances and drove me to the hospital. This seemed like another 30
       minutes. I believe she had eaten breakfast at her breakfast for Merck. Her
       supervisor is Steve Goodrich, 1409 Bayhill Ridge Lane, Knoxville. She
       seemed to be in a good state of mind that day other than her job stress. She
       often had tension headaches. She would have real tight muscular pain in her


       7
           Lt. Sherfey also was referred to at trial as Detective Sherfey.
       8
           A copy of the Defendant’s statement was admitted as an exhibit.

                                                     -22-
       head. I do not know if she had taken medications on that day. In May of last
       year she was put on estrogen patches. She took Zoloft, Xanax, and Ambien to
       sleep. She was court ordered to go to a psychologist for counseling, Dr.
       Diebold. His office is below Roundtree. He prescribed her Xanax. She had
       problems with alcoholism. She had started drinking around 11:00 a.m. There
       was a wine glass broken outside the tub. I do not know how much she had
       drunk. She had some female surgery (same-day surgery), the doctor was Julie
       Markham. My mom had driven us, I had an accident at work and have
       seizures and do not drive.

               There was probably around 30 minutes from the time I last saw her until
       I got back upstairs. There was probably about a foot of water in the tub when
       I got out.

Also pursuant to his investigation, Lt. Sherfey obtained several life insurance policies
covering the life of the victim which named the Defendant as beneficiary. These policies
were issued by Connecticut General Life Insurance Company through the Defendant’s
previous employer; Prudential Insurance Company of America through the victim’s
employer; and Fidelity & Guaranty Life Insurance Company. According to Lt. Sherfey, the
amounts paid under these policies were $1,000 (from American Income Life Insurance);
$25,000 (from Connecticut General); $412,428 (from Prudential); $485,995.50 (from
Prudential); $73,995.50 (from Prudential); $214,691.20 (from Fidelity & Guaranty); and
$750 (from Connecticut General); for a total of $1,235,181.25.

       Also during Lt. Sherfey’s testimony, the tape of the 911 call was played for the jury.
During the call, Tia is heard crying and telling the dispatcher, “my mom is in the bathtub and
she won’t wake up!” She then says, “my stepdad just got her out of the water and she won’t
wake up.” A male voice is heard in the background and Tia then says, “bring oxygen, he
said” and “he doesn’t know what happened.” Tia reports that her mother’s lips are blue and
again states that “he” pulled her mother out of the water. She reports that “he” said that “she
has a pulse but she’s unconscious.” She tells the dispatcher that her mother is not breathing.
Leann Wiles also speaks to the dispatcher, stating that her husband, a doctor, is assisting in
performing CPR and reports that the victim had a “weak pulse at first.”

        On cross-examination, Lt. Sherfey explained that he went to Dr. Wiles’ house on
November 20, 2003, to obtain a statement. He spoke with both Dr. Wiles and Mrs. Wiles and
made notes from their conversation. According to Lt. Sherfey’s notes, Dr. Wiles told him
that the victim was lying next to the tub when he got to the bathroom and began CPR. Lt.
Sherfey stated that he may have misconstrued what Dr. Wiles had said, however, and that
what Dr. Wiles had meant was that he started CPR after the victim was removed from the


                                             -23-
tub. Lt. Sherfey also acknowledged that, in her call to 911, Tia stated that the Defendant had
pulled the victim out of the tub.

        As to the life insurance policies, Lt. Sherfey acknowledged that one of the policies
was provided by the victim’s employer, and that the victim was the beneficiary on policies
insuring the life of the Defendant. One of the policies under which money was paid to the
Defendant was a policy primarily insuring the Defendant; the victim was listed as an
“additional insured.” He also acknowledged that the Connecticut General and Prudential
policies contained an “accidental death” provision and that Prudential paid both the face
value and the accidental death benefits. The insurance policy monies were paid into court
following a lawsuit by Gentry on Tia’s behalf against the Defendant and the insurance
companies. The lawsuit subsequently was settled with sums of $500,000 to Tia and
$729,560.89 to the Defendant. The Defendant also divested himself of any interest he had
in the house that the victim owned prior to their marriage and placed the deed in a trust for
the benefit of Tia.

      Lt. Sherfey acknowledged that he took two videotaped statements of Tia, one in
January 2004 and one in January 2005.

       The State rested its case-in-chief after Lt. Sherfey’s testimony.

        The Defendant testified that he was fifty-five years old at the time of trial. Other than
this matter, he never had been charged or convicted of a crime. He continued to live in the
home in which the victim had died, a house he had owned prior to their marriage. He had
been married once previously and had a daughter, Whitney, with his first wife. He had been
employed by Sprint for thirty years when he had a car accident involving a head injury,
leaving him unable to drive for over a year. The injury, combined with an earlier heart
attack, led to his receiving Social Security disability benefits. He received additional income
from several rental properties.

       He married the victim in July 2000 after they had been living together for about one
year. Tia, the victim’s daughter, also lived with them. The house in which the victim and
her daughter previously had been living became a rental property. Since the victim’s death,
that property was turned over to Tia. The Defendant retained five other pieces of rental
property that he had acquired prior to his marriage to the victim.

       During the marriage, the Defendant and the victim refinanced the victim’s former
house and the rental properties. The refinancing resulted in five loans and one of the
Defendant’s rental properties being paid off. At the time of the victim’s death, all of the
loans were current and all of the rental properties were occupied. The Defendant stated,


                                              -24-
“The rents from the six made all the payments, plus there was money left over so there was
never, never any problem . . . making payments or anything.”

        The Defendant confirmed that the victim had worked for Merck as a pharmaceutical
sales representative and made over $80,000 per year.

       The Defendant stated that he had a life insurance policy through Sprint and that the
policy also covered the victim. He described the policy as “kind of an automatic thing when
you work there.” The policy included accidental death benefits. The victim was named the
beneficiary on all of the Defendant’s life insurance policies. Similarly, the victim was
covered under a life insurance policy issued in conjunction with her employment, which also
covered the Defendant after their marriage. The Defendant was listed as the beneficiary on
the victim’s life insurance policies.

       When the Defendant and the victim refinanced the rental properties, the victim
became concerned about the financial implications and the Defendant’s health problems.
Accordingly, they obtained an additional life insurance policy from Fidelity & Guaranty in
the amount of $200,000. The Defendant was the primary insured at a cost of $305 a month.
When they learned that they could add the victim as an additional insured in the same amount
for $20 a month, they did so. They were each other’s beneficiary. As for contingent
beneficiaries, the Defendant designated his daughter and the victim designated Sam and
Levonia Presley. The Defendant explained this designation as intended to keep Gentry from
Tia’s money in the event of the victim’s death.

       After the victim’s death, the Defendant received paperwork from Merck (the victim’s
employer) by which to make a claim on the victim’s life insurance. The Defendant stated
that he did not know how much the policy was for at the time. The paperwork he received
from Merck indicated that the policy proceeds would be in the amount of $462,000.

       After receiving the victim’s death certificate, which took several months, the
Defendant also made claims under the Connecticut General (Sprint) and Fidelity & Guaranty
(private) life insurance policies on the victim. Prior to any proceeds being paid to the
Defendant, Gentry sued the Defendant on behalf of Tia for five million dollars. Gentry also
sued the insurance companies, claiming the proceeds. Eventually, the insurance companies
paid the proceeds into court for further disposition pursuant to the litigation.

        According to the Defendant, the victim had fallen on the ice in January 2001, resulting
in a fracture to her left humerus near the shoulder. She was treated by Dr. Aiken at Watauga
Orthopaedics but still was having problems with it over a year later. The victim also suffered



                                             -25-
from gynecological problems including heavy bleeding and excruciating pain. She had
surgery for these problems in March 2003. She also suffered from depression.

        The Defendant stated that he understood that the victim suffered from low bone
density. According to the Defendant, one of the drugs that the victim represented was
Fosamax, prescribed for low bone density. In conjunction with her job, the victim had a
device that measured bone density in an individual’s foot. She provided this device to one
of her clients, Dr. John Sherrill, so that he could measure the bone density of his nurses and
patients and, if necessary, prescribe Fosamax. The victim also used the device on herself.
The Defendant explained that he and the victim were also close friends with Dr. Sherrill and
his wife, and the Defendant testified: “I didn’t see [the victim] take the test, but I did hear
the discussions because Dr. Sherrill’s wife also had a very low number when she had taken
the test. So I can remember Dr. Sherrill begging both of them to take Fosamax and neither
of them would.”

        At the time of her death, the victim had been looking for another job, in part because
TennCare had removed Fosamax and another drug that the victim represented from its
formulary. This was going to result in a large pay cut and possibly the loss of her job. After
her death, the Defendant learned that the victim had also been “put on report” by her
employer for failing to get her paperwork turned in on a timely basis. The Defendant stated
that the victim suffered from stress related to her job.

       On the morning of her death, the victim had a breakfast appointment for her work.
After such an appointment, the victim typically remained to speak with doctors about the
drugs she represented and restock the doctors’ shelves with samples. The victim returned
home between 9:30 and 10:00. At about 11:30, the Defendant’s daughter picked him up to
take him to lunch. While they were at lunch, the victim took care of some business at a local
printing shop. The victim had returned home by the time the Defendant arrived after lunch.
The Defendant and the victim took a bath together and had sex. The Defendant left the
bathtub and went downstairs at “a little before 2:00.” At the time the Defendant left the
victim, she had let some of the water out of the tub so that she could refill it with hot water.
According to the Defendant, the victim “loved hot baths” and took them regularly. The
Defendant told the victim he was going to go outside and do some yard work. The couple
had plans to visit the Presleys later that day.

       The Defendant raked some leaves and then went to the basement to get the mower.
The garage door was up, and he noticed that it was about 2:45. He walked down to the bus
stop in order to meet Tia. He met Tia and her friend, Katie, and they walked together back
to the house. The Defendant returned to the mower. Tia asked the Defendant where the
victim was, and he told her that she was upstairs getting ready for their visit to the Presleys.


                                              -26-
      According to the Defendant, he remained in the basement for what “seemed like
another ten minutes before Tia came downstairs.” He continued:

      When Tia came downstairs, Tia was not [sic] excited, which it was surprising,
      because I wasn’t in a big hurry. She said, I think her exact words were, “Dale,
      I can’t get mom to answer me.” Well, we played a lot of hide and seek and I
      thought “Well, we’re just going upstairs to play another game of hide and seek
      for her mom.” And I followed Tia up and we went into the bathroom. And
      when I went into the bathroom, my wife was there in the tub up, with her head
      above water, her lips were quivering and they were blue. I could tell, that was
      the first sign that I knew something was wrong was by the color of her lips.
      I knew that there was probably a, you know, a problem because she seemed
      like she was having a hard time and kind of, not really gasping, but just having
      a hard time breathing. I immediately pulled my wife out of the tub.

              I leaned over, she was there with her hands down. I grabbed her by her
      wrists, I stood up with her. Her – she was facing me, I had her – it would have
      been her left wrist in my right hand and her right wrist in my left hand, and I
      proceeded to get her out. And it was not a – it’s like Tia described, it was not
      just a smooth trying to pick someone up by their wrists and get them out of the
      tub, it was not a smooth thing.

      ....

      She was – her hair was wet, she was wet and soapy. So the water – she was
      very slick, and when I picked her up, I know that I dropped her left or it would
      have been her right wrist slipped out of my hand. I’m right-handed, I was
      weaker in my left wrist. Her wrist slipped out and she kind of – I know she
      torqued around, I’m not sure if it was that way or that way, but she torqued
      around, hit the wall, I got – I kind of moved up against the wall to help steady
      her to keep her from falling, and got her other wrist back and then used the
      wall to bring her on out.

             Tia saw me do [this]. That was – I mean, it was probably during the
      time that I was getting, – I mean, as soon as I saw her, I said, “Call 911.”

             Tia grabbed one of the – it was a cordless phone, I’m not sure if it was
      in the bathroom there, it probably was because her mother probably had it
      laying beside the tub somewhere there in the bathroom. She grabbed the
      phone, she called 911[.]


                                            -27-
       ....

               [A]s soon as I got her out, I know that she was talking to them, and I’m
       thinking – I’m thinking they had told her or she said they want me to stay on
       the line. I said, “No, go get David and Leann [Wiles],” because I had just seen
       them, I knew they were home because they had just passed me fifteen, twenty
       minutes prior to that.

              She ran and got David and Leann. She did not come back in the house,
       she stayed outside. Leann kept her outside in the front yard.

When asked if the victim’s feet hit the floor as he was extracting her from the tub, the
Defendant answered,

              Yes, like I said, she was facing me, and I can remember hesitating when
       we got to the edge of that tub, she was out of the tub, but her feet were still
       back. I knew that her feet were going to hit that floor, and they did, it was a
       very loud thump when both her feet hit the floor.

        The Defendant stated that, once he got the victim out of the tub, he began CPR. He
testified,

       The first breath that I put into her, she gagged and she threw some water up,
       and then after and in just a minute, you know, I kept her head to the side
       because I didn’t want to have her head back while she was throwing up. So
       I turned her kind of on her side and she threw-up and that would have been
       right at the corner.

        The Defendant continued CPR. When Dr. Wiles arrived, Dr. Wiles told the Defendant
to stop so that he could check the victim’s carotid pulse. When the Defendant stood up, he
“had a real tightness in [his] chest.” He took a nitroglycerin pill. Dr. Wiles told the
Defendant that the victim had a pulse, so Dr. Wiles began doing the chest compressions, and
the Defendant ventilated the victim.

       The Defendant flatly denied that Dr. Wiles assisted him in getting the victim out of
the bathtub. He stated that she was on the floor when Dr. Wiles arrived and that there was
not room for him to assist. Referring to a photograph of the tub area which included a yard-
stick on the floor, the Defendant stated that the space was less than forty inches wide.
Accordingly, the two men moved her two to three feet away from her original position on the



                                             -28-
floor “to where [Dr. Wiles] could be on one side of her and [the Defendant] could be on the
other.”

      The Defendant testified: “I love my wife very much and still do. I would have never
done anything that day or any other day to have caused any kind of harm, let alone her death.
I would have never had done anything to have hurt her. I loved her very much.” The
Defendant added that he had not dated since the victim’s death.

       The Defendant stated that, at the hospital, he was asked if the victim was an organ
donor. He did not recall any specific mention of the victim’s eyes. The Defendant stated that
he deferred the decision to Tia. He also deferred the choice of the victim’s casket to Tia and
was ready to pay for the funeral. At that point, Sam Presley told him, “No, I want to do that.
That’s the last thing I can do for her.” Accordingly, the Presleys paid for the funeral. The
victim was interred in an above-ground crypt. A year later, the Defendant was served with
a summons on the lawsuit filed by Gentry.

        The Defendant was unaware that the victim’s death was under investigation until he
was visited at his home by Lt. Sherfey (then Sergeant) and Investigator Matt Howell. They
asked him what had happened, and he gave them a statement. He also gave them the drugs
the victim had been taking and allowed them to take photographs. He had no further contact
with law enforcement until he was arrested on July 19, 2009.

      After the victim died, Tia continued to live at their house for approximately five
weeks, at which time Gentry came and got her.

        The lawsuit filed by Gentry was mediated to a settlement in July 2006. According to
the settlement, a trust was set up for Tia in the amount of $500,000 and title to the house
previously owned by the victim.

       On cross-examination, the Defendant acknowledged having seen the victim turn
cartwheels. He described the victim as a “very thin woman.” He also stated that they did not
have a gym membership, did not have any “cardio equipment,” and that their lifestyle was
“pretty sedentary.”

      The Defendant also stated that the victim appeared fine and in a good mood when he
got out of the bathtub and left her. He considered her death to have resulted from an
accident. He reiterated that he did not kill the victim. He denied hearing a bone break while
Dr. Wiles was performing chest compressions. He reiterated that he got the victim out of the




                                             -29-
bathtub by himself, before Dr. Wiles arrived. He testified:

       I would not have just stood there with my hands on my . . . hips and waited for
       that, for him to come and help me get my wife out of the tub. I got . . . my
       wife out of the tub immediately. And, you know, it wasn’t a – it wasn’t
       something I was trying to be slow and gentle with either, sir. I tried to get her
       out of the tub as quick as I could and try to get some – some help to her
       because, like I said, her lips were blue and quivering and she was in some type
       of distress.

He reiterated that he pulled his wife out of the tub by her wrists. He explained that that “was
the fastest and best way [he] knew how.” He also stated that Tia was in the bathroom during
the time he was pulling the victim out of the bathtub.

       The Defendant asserted that he and the victim had “a great marriage.” The stress that
the victim had been suffering from was work-related, not marriage-related.

        Eddie R. Lawhorn testified that, between 1994 and 2004, he sold mortgage protection
insurance. He met with the Defendant and the victim in March 2002 in order to speak with
them about mortgage protection insurance regarding their recent refinancing of some
properties. He testified that “[t]he primary concern seemed to be from Teresa that her
husband had had heart problems at an early age, which at that time was forty-seven.” The
couple wanted insurance coverage in the amount of $400,000 for fifteen years. Lawhorn was
successful in finding a company willing to issue the policy, with the Defendant being the
primary insured. The premium was too high, however, so the Defendant and the victim
decided to reduce the policy amount to $200,000 on each of them, with the victim designated
as the additional insured. The policy was issued by Fidelity & Guaranty.

        Dr. John Sherrill, a family physician practicing in Bristol, Tennessee, testified that the
victim had been his Merck Pharmaceutical representative. He also treated the victim on
occasion but did not act as her gynecologist. They developed a friendship which extended
to their respective spouses. He met the Defendant before the Defendant and the victim were
married.

        In conjunction with her job, the victim had a Sahara Densitometry Screening Test
which was a device into which an individual could insert a foot and get a bone density score.
Dr. Sherrill explained, “[A] good score would be %2.5 and if it was 0 it means she’s lower
and if it’s &2.5, those patients are at risk for osteo – well they have osteoporosis.” According
to Dr. Sherrill, the victim’s score was &2.5. He advised her to take Fosamax, to exercise



                                               -30-
regularly, and to take calcium supplements. He described the victim, however, as “a non-
compliant patient.”

        Dr. Sherrill stated that the victim had suffered “two previous fractures, one where she
just bumped her – one of the toes, and then the other one, a minor trauma too, she fell
holding her husband’s arm and fractured her left humerus, proximal humerus.” He stated
that the fracture was “indicative of either a low bone mass or osteoporosis in her case, an
osteoporotic fracture.”

        On cross-examination, Dr. Sherrill reiterated that the fracture to the victim’s left arm
was “very unusual for someone who doesn’t have . . . osteoporosis or something.” He
acknowledged, however, that he did not witness the fall or treat the fracture. He added that
the victim had other risk factors pointing to osteoporosis: “she’s Caucasian, she was a thin,
slender build, she had a very sedentary lifestyle, [and] she used alcohol on a regular basis.”
He also stated that, “if you have osteoporosis, you don’t take medications, you’re never going
to get true healing.” He testified that he saw the print-out from the victim’s screening test
and that he remembered it because his wife at the time had the same score, and the score was
“fairly unusual” in young women. On further questioning, Dr. Sherrill testified on cross-
examination, “Ladies and gentlemen of the jury, I believe this young woman had
osteoporosis.” He then stated that this was his “professional opinion based on her risk factors
and two previous non-traumatic falls.”

        Dr. Thomas Watson Jernigan, board-certified obstetrician gynecologist, testified that
he was the Professor and Interim Chairman of the Department of Obstetrics and Gynecology
at East Tennessee State University. He stated that the defense had contacted him to review
the victim’s case. In so doing, he reviewed “a multiplicity” of the victim’s medical records
and developed a “couple of concerns.” Dr. Jernigan explained:

       I am a person that does a lot of menopause counseling, and one of the things
       that struck me is that this young lady, thirty-six years of age, had already
       sustained an endometrial ablation, that is a lining of the uterus which has been
       ablated to prevent bleeding. But if you delved further into the discussions both
       from Holston Medical Group and Dr. Markham, her gynecologist, she had
       been having hormonal issues throughout most of her time and this may have
       led to some of the other problems she was having. One also became concerned
       about the bone health of the entire body.

       ....




                                              -31-
       If one were to look at Ms. Larkin’s records over time, one saw that there were
       hormonal irregularities throughout her adolescence and in her 20’s and into her
       30’s. How does this play a role in bone health? Well, most of us, as we’re
       young kids and then running and playing throughout our adolescence, gain
       most of our bone density before the age of twenty. And in women, it’s very
       important, because right after that period of time, they start losing bone. And
       I’ve tried several ways of putting it into simple terms, but the bottom line is,
       the running, the active playing, the exercising builds up a deposit and then
       mother nature sort of slowly takes out that deposit, and over time, all of us end
       up with weakened bones. But in Ms. Larkin’s case, there seemed to be an
       issue, not only with consecutive or sequential estrogen fluctuations, but
       enough that led to some irregular bleeding which then led to the ablation.
       There were times that she didn’t have periods, which would indicate to me that
       she had a problem with having enough estrogen. If you really look in the year
       2003, Dr. Markham mentioned several times night sweats, hot flashes which
       are indicative of a loss of estrogen. Bone needs estrogen. If bone has
       estrogen, it builds, it actually slows down the resorption. No estrogen, and
       more bone is lost. That’s why we worry about patients who go through a
       menopause at fifty having difficulty over the latter parts of their life. Well, in
       this case, that started much earlier.

With regard to the medical findings after the victim’s death, Dr. Jernigan testified as follows:

               Well, there are a number of things I found important. Let me start with
       where I am, and I’m a gynecologist first, that’s what I look at first. So I
       looked at a couple of things. First I looked at her female organs and what was
       going on there. When they had done the endometrial ablation, the burning of
       the inside of the lining to prevent heavy bleeding, there was an inactive
       endometrium indicating, again, the lack of estrogen stimulation. Further, the
       ovaries, at the time of the first autopsy, were very small, smaller than would
       be anticipated for a young woman. Now that’s not an indication of how much
       estrogen there was, but it’s another key. We, as clinicians, look for keys. We
       try to look at the whole body and then we look at our area and we try to put
       this together, and this together, and then we come up with a diagnosis and
       that’s how we work. So I looked at that. I also was concerned because she
       had already sustained a previous fracture . . . on the left arm. And then there
       were other indications of significant fractures which included the right arm and
       the sternum, . . . and those concerned me because it went back – and then – so
       I went back and looked and said, “Could this person have had poor bone health
       starting in adolescence?” And that’s when I started to look at her weight, she


                                              -32-
       was Caucasian, she did use alcohol, and she did not take medications
       consistently[.]

        In reviewing the victim’s medical records from Watauga Orthopaedics, Dr. Jernigan
noted that the victim’s “left shoulder fracture was still giving her problems eighteen months
after the fracture” and that this concerned him. Dr. Jernigan opined:

              Based on everything that I read, which included Watauga Orthopaedics,
       which included Holston Medical Group, . . . Dr. Markham’s discussion, there’s
       no question that there was a problem with her bone structure, which in clinical
       terms would be osteoporosis.

        On cross-examination, Dr. Jernigan acknowledged that he was not a forensic
pathologist and did not analyze the bone tissue of his live patients. He also acknowledged
that the victim had been treated with an estrogen patch “as late as October of 2003.” He
stated that the records he reviewed did not reflect the length of time that the victim had been
using an estrogen patch. He acknowledged that he did not know how much alcohol the
victim drank. He also acknowledged that, in the medical records that he reviewed, there was
“[n]o documentation of osteoporosis.”

       Dr. Ronald Hamdy testified that he was employed by East Tennessee State University
as a Professor of Internal Medicine, the Chair of Geriatric Medicine, and the Director of the
Osteoporosis Center. At defense counsel’s request, he reviewed the autopsy reports and the
medical records of the victim. He testified that, based on recent research,

       [t]he diagnosis of osteoporosis now is based on one of two possibilities. If the
       patient has sustained a fragility fracture, the diagnosis is osteoporosis. If the
       patient hasn’t sustained a fragility fracture, then you look at bone density and
       measure the bone density to make the diagnosis. But the presence of a fragility
       fracture now is diagnostic of osteoporosis.

       As to the definitions of fragility fractures, he explained:

       The one that is universally accepted is, it is a fracture that results from a fall
       that does not exceed the body height. So if a person is walking, trips over
       something, falls, breaks a bone, this is a fragility fracture. If the person is
       cleaning the gutters, trips and falls twenty feet, this is a traumatic fracture, it
       doesn’t qualify as osteoporosis. Other definitions of osteo-fragility fracture is
       a fracture that occurs out of trauma that ordinarily would not result in a
       fracture. The orthopedic surgeons like to use the term “low energy” or “low


                                              -33-
       impact fracture.” But it’s very important to realize that now, 2011, and it’s
       been going on for a few years now, the diagnosis of osteoporosis can be made
       just based on the presence of a fragility fracture.

      He also explained the differences in cortical and trabecular bone in the context of an
osteoporosis diagnosis:

               Essentially, most of the bones we have are a mixture of cortical and
       trabecular bone. If you can imagine the bone in the thigh, it’s a very long
       tubular. The outer shell is the cortical bone, the inside softness is the
       trabecular bone. Trabecular bone has a very rich blood supply. Cortical bone
       doesn’t have as rich a blood supply, in fact, the amount of blood going to the
       cortical bone is very much reduced. Our bones are all the time turning over
       and this is the way we can keep a healthy skeleton. When any part of our bone
       is injured, even if it is a small bump against a wall, there is a tiny injury.
       Almost immediately, cells are going to come and resorb the bone that is not
       healthy, and then, when they are finished resorbing this, other cells are going
       to come to build that bone. I’m saying this because this depends a lot on the
       blood supply. Because trabecular bone is so vascular, it responds to anything
       much quicker than cortical bone, and if you look at what happens normally at
       the menopause when estrogen is diminished, the first bone to be affected is the
       trabecular bone. And this is why the young ladies are under menopause when
       they fall and fracture a bone, it’s usually the wrist, which is mostly trabecular.
       As they grow older, they fracture their vertebrae which contain more trabecular
       than cortical bone, and when they are in their 60’s, 70’s and 80’s, they fracture
       their hip because now the cortical bone is also affected. So the very first bone
       that is affected is the trabecular, and I think this bears a lot on – if you look at
       the piece of bone after all the soft tissue has been removed, you’re only left
       with the shell, and just looking at the shell, you cannot now say the patient has
       a lesser quantity than he should have, because this is immaterial as far as a
       diagnosis of osteoporosis is concerned. The diagnosis of osteoporosis is based
       on the presence of fragility fractures. If the patient does not sustain fracture,
       the next best thing we have is to measure the bone density. But we all know
       that the bone density is not a good representative, a good predictor of fractures,
       and we’ve got lots of studies on virtually all the medications we have to treat
       osteoporosis. When we pick up patients with osteoporosis, we measure their
       baseline bone density, we treat them, we measure their bone density two, three
       years later and we see how many patients have fractured. Even though the
       bone mineral density is the best predictor of fracture, it’s not the only one, in



                                              -34-
       fact, it doesn’t predict more than about 60% of the fractures, which means that
       40% of the fractures cannot be predicted on the bone mass.

Dr. Hamdy also explained that reduced estrogen, such as occurs with menopause, results in
reduced bone mass: “Around the menopause, up to 5% of the skeleton can be lost every year
for 2, 3, 4 years which means that over a period of 3, 4 years, the skeleton can lose about a
third or a quarter of its bone mass, and then after that, it slows down.” He also stated that
ovarian dysfunction can contribute to osteoporosis because it results in less estrogen being
produced.

         With respect to the victim, Dr. Hamdy testified that “the diagnosis of osteoporosis is
quite obvious.” He cited her fragility fracture in January 2001 when she fell on the ice and
broke her humerus. Prior to that, in March 1991, she fractured her right fifth toe after she
hit her right foot with a vacuum cleaner. Dr. Hamdy opined that this fracture was “very, very
likely to be another fragility fracture or a low trauma fracture.” He also noted that, eighteen
months after the fragility fracture to her humerus, the victim’s “bone has not healed because
she had osteoporosis.” He also referred to two entries in the victim’s medical records, the
first in December 1995 and the second in May 2000, that were suggestive of the disease of
mastocytosis. Dr. Hamdy stated that mastocytosis “is another condition that leads to
osteoporosis.” While Dr. Hamdy cautioned that it was not definite that the victim suffered
from mastocytosis, the medical records entries were “very, very suggestive of mastocytosis.”

       As to the fractures to the victim’s sternum noted during the autopsy, Dr. Hamdy
explained that,

       [i]f a health care professional who’s trained in CPR has administered CPR to
       a person who looks quite healthy, you are going to use as much force as
       possible because you want to compress the heart. . . . And trained health care
       professionals know how to differentiate a lady who looks as if she has a fragile
       bone, from a lady who looks normal. This is easy because of the age of the
       person. But if you are faced with a person who is in her mid-30’s, you have
       no way of knowing that the bones are fragile and you may use the maximum
       force because your ultimate goal is let’s push whatever blood is in the heart
       into the brain.

Thus, the autopsy report indicated that the victim’s “sternal fractures are consistent with a
compressive force applied to the chest as is done in CPR.” He added, “[T]he bones are so
fragile that pulling the arms may induce a fracture.”




                                             -35-
       Asked about Dr. Stephens’ notations in her autopsy that the victim had “no marked
osteopenia of the bone,” Dr. Hamdy stated that “[one] cannot say for sure the patient has
osteopenia or not” simply by looking at pieces of bone. He also questioned Dr. Stephens’
notation that “no decrease in [the victim’s] bone strength is encountered,” asking, “[H]ow
did she test it? What sort of bone strength? How did she apply it? And what was she
comparing it to?” As to Dr. Stout’s observation that, “[i]n terms of cortical area and mean
osteon size, the histomorphology of the rib from [the victim] are consistent with a healthy
(skeletally) person in their 30’s,” Dr. Hamdy stated that he had reviewed the rib sections and
agreed with Dr. Stout’s observations but opined that “they’re irrelevant because this lady has
sustained fragility fractures.” He added, “I’ve also got big problems that just the ribs were
looked at. Traditionally, when we do a bone density test, we look at the two hips, we look
at the wrists, and we look at the vertebrae. These are the weight-bearing bones, we in fact
don’t look at the ribs at all.” He continued:

       And one thing that I found very interesting is that it does say . . . Dr. Mileusnic
       harvested the humerus and where are they and why wasn’t microscopic
       examination done on the weight-bearing bones that were harvested? Why just
       the rib?. . . It is true, osteoporosis is a systemic disease that affects all the
       bones, but to various degrees, and if you just focus on one bone, the data is
       irrelevant.

        On cross-examination, Dr. Hamdy reiterated that he could not assess the accuracy of
Dr. Stephens’ conclusions about the victim’s bones because the autopsy report did not set
forth the specific data upon which her conclusions were based. He also reiterated that a
fragility fracture resulted in a clinical diagnosis of osteoporosis, regardless of microscopic
examination of the bones. When questioned about the medical records indicating that the
victim had been receiving estrogen therapy, Dr. Hamdy replied that, while he did not measure
the estrogen in the victim’s body, the medical records reflected that “she doesn’t have enough
estrogen.”

        Dr. Jonathan Arden testified that he is a forensic pathologist. On behalf of the
defense, he reviewed the victim’s medical records and autopsy reports. He stated that, based
on his review of the microscopic slides of the victim’s ovarian tissue, she “had ovaries that,
anatomically looked like they were not functioning.” This “open[ed] up the whole question
about bone strength and osteoporosis.” As to the fractures to the victim’s arms, Dr. Arden
testified:

       If you look at where they are distributed and the nature of those fractures,
       they’re very much symmetrical, not identical, but very symmetrical. You have
       a high left humeral fracture, and I’m indicating just my left upper arm just


                                              -36-
below the shoulder, the one that Dr. Stephens identified. It had a configuration
that you heard described by, I think both Dr. Marks and Dr. Mileusnic, as
being a spiral fracture and I concur with that, which indicates a twisting
mechanism to make the break. You have a very similar looking fracture on the
upper part of the right humerus, not exactly the same location, it was up a little
higher but very similar also described and shown in the photos and I agree with
what they said that this is a spiral fracture, again, indicative of twisting,
yanking of that arm causing the forces to be in the humerus just below the
shoulder. You have what Dr. Marks described as grinding fractures or
abrasion fractures in the bones on each side of each elbow indicative of one
bone rubbing on another and scraping off some of the surface. Again, related
to and I hope I’m not mischaracterizing but I think Dr. Marks said relating to
a twisting kind of mechanism, and you have that in both elbows on the same
bones in both elbows. You also have the one thing that’s not perfectly
symmetrical, is the – I actually should say one thing’s not symmetrical because
nothing is perfect in life, but only one shoulder had a little bit of the abrasion
in the – in the scapula, the socket where the humerus fits in the shoulder so –
but again, both sides, fractures indicative of twisting mechanisms of both arms.
So, that to me is the first important thing with those fractures because there’s
a pattern there. The body is telling us what happened that both arms were
yanked and twisted. The other thing that is important to me about the arm
fractures, is that the only one of those fractures that was positively identified
in the first autopsy, when the soft tissues were still intact, when you still had
a good shot at seeing the bleeding associated with a real injury, an antemortem
injury, was the left humerus that Dr. Stephens found. And although she
describes it as having hemorrhaged, I can tell you that based – first of all, there
are no photographs of that internally so I can’t assess that independently, there
is one microscopic slide that I recall of the left humerus, the area of the
fracture. And what was notable to me, is that in actuality, on that slide there
is no fracture one showing. I’m not saying there was no fracture in the body,
but the sample that was taken did not include a fracture line, and, in fact, it had
a small amount of what I characterize as a minimal amount of bleeding. So it
– and fractures tend to bleed quite substantially. It had a little bit of bleeding.
It didn’t show the actual fracture line, there was no hemorrhage into the
marrow space where the trabecular bone is that you’ve seen, the little network
or meshwork in there. So the fact that whatever hemorrhage could be
demonstrated was really quite minimal, again, to me is indicative of – these are
perimortem fractures. And the other arm fractures we don’t have the benefit
of the soft tissues, they were discovered later after the decomposition process
had happened, but interestingly to me that you have these symmetric patterns


                                       -37-
       of fractures on both arms, in both arms, and you have the one area in which I
       can assess it, the bleeding is remarkably minimal, which is indicative of a
       perimortem fracture, not something that happened to a live person with full
       circulation and blood pressure.

               It’s significant to me because my interpretation of the arm fractures is
       that they occurred when [the victim] was pulled out of the tub, at a time when
       she was either already without pulse or very close to it. We – I was here, you
       heard from [the Defendant] about how he felt that [the victim] still may have
       been alive up until the moments before she came out of the tub, that she was
       having difficulty breathing. So she may have had a heartbeat then. We also
       know that by the time she is laid down on the floor and resuscitation is started,
       it’s questionable about whether or not a pulse is felt. At some point quickly
       thereafter, she required CPR, she needs chest compressions, which is
       indicative of her heart is stopped. So the time when she is pulled by the arms
       and yanked or jerked, as was said by several of the witnesses out of the tub,
       there’s a time at or around when her heart stopped beating. And so they are
       significant to me, number one, because I think they’re perimortem and
       perimortem fractures would be appropriate for someone whose heart had
       already stopped or was just about to stop, and the other significance to me is
       that going full circle back to where I started in the case in my first inquiries
       back to you, is that the amount of fracturing that she has in those bones,
       especially the two spiral fractures of the two upper arms, is much more than
       I would expect to happen if you take a normal healthy thirty-six-year-old
       woman, grab her by the arms and jerk her up out of the tub to rescue her. And
       so that’s another thing that is saying to me, “She has weakened bones.” I
       started in the beginning of the case noticing her ovaries, being concerned about
       them not being functional, being concerned about her having osteoporosis, so
       that all then comes together quite remarkably.

        Dr. Arden also opined that the “best explanation” for the fractures to the victim’s
sternum was the CPR efforts, based on the characteristics of the cracks themselves and
“because there was no hemorrhage associated with those fractures.” He explained: “The
fact that there was no hemorrhage despite the fact that there are two cracks in that bone, is
indicative of this being a postmortem fracture.”

       Dr. Arden testified that, in his opinion to a reasonable degree of medical certainty,

       [A]ll of the fractures of the arms can be explained by the grabbing and jerking
       motion getting her up out of the tub. The fractures to the sternum are not


                                             -38-
explained readily by getting her out of the tub but they are explained readily
by the immediately following CPR. The bruises, if you notice, are scattered
in a number of different area[s] of her body. Many of them are overlying what
we call “bony prominences.” Those are the parts on your body where the
bones stick out, places where you are more likely to hit when you fall down.
I am motioning on my elbow, things like elbow, knees, over the pelvic bones,
or the hip joints where you – your bones stick out, you can hit them if you fall.
So many of her bruises were related to areas of bony prominences which is
what you hit if you get – if you fall, if you get dropped, that kind of thing.

       Some of them were not and some of them were consistent with her
being grabbed, for instance, that kind of thing. And just one other small item
in terms of the bruises and explaining them, I will also tell you that in two of
the bruises that were looked at microscopically, I saw evidence of some
inflammation that indicates that those were in the neighborhood of several
days old. And so one of the bruises in the scalp, I think it was the right frontal,
and the bruise that was described on the outside of the left breast, there was
microscopic evidence there that those were actually probably a few days old.
So we have to discount those completely from the events in the bathtub and the
events of that day in November. But the rest of them could be from grabbing,
could be from dropping, could be from the attempts to get her out. There’s
nothing about those that would not fit with that explanation.

Asked further about the pattern of the victim’s injuries, Dr. Arden testified:

[I]f you look at the pattern and the distribution of the injuries around her body,
this is not, in my opinion, a pattern of injuries that you see typically in an
assault. If you look at the bruises, for instance, as I said, many over bony
prominences, which are – nothing is impossible. I’m not saying you can’t
possibly get a bruise on your elbow during an assault, but look at the overall
pattern. Look at things like knees and elbows, look at things like the torso.
Look at the ones on the back that are consistent with her being laid down
forcefully in order to do CPR. None of those tells me a story that says, “This
is what normally happens when somebody gets fatally assaulted by blunt
impact. This is what happens when somebody gets beaten to death,” and, of
course, the rest of the autopsy supports that. Does she have any internal head
injuries or brain injuries? No. Does she have any injuries in the face such as
common mechanism of assaultive injuries, somebody gets punched in the
face? No. Does she have evidence of strangulation? And actually, in my
opinion, no, not at all. She has the one little hemorrhage to left of her thyroid


                                       -39-
       gland, and I heard Dr. Stephens talk about how that was unusual and she
       thought that was concerning. I looked at that picture again just last night, and
       there’s a tiny little area of hemorrhage, it doesn’t add up to anything, I can’t
       make that into a strangulation. You know, she doesn’t have stab wounds, she
       doesn’t have gunshot wounds, you know, that’s obvious. Look on the torso.
       Does she have any significant injuries to the internal organs in her torso as if
       somebody assaulted her? No. Does she have any internal bleeding that relates
       to inflicted injuries? No. She only has the one finding in the heart, which is,
       again, if you look at the microscopic slide, a tiny area of minimal escape of red
       blood cells. It’s so little that it’s what you could see with resuscitation, it’s
       what you could see as a what we call a “postmortem artifact.” It’s not a bruise
       of the heart. It’s clearly not a contusion, so she has no internal injuries. She
       has no facial injuries. She has no head injuries. She has no brain injuries. She
       has a pattern that doesn’t look like somebody who was killed by blunt impact.

       Dr. Arden testified that he disagreed with Dr. Mileusnic’s findings and conclusions
concerning the cause and manner of the victim’s death. While he agreed “that drowning has
to be a major consideration here, [he did] not agree that it is proved, as we say beyond a
reasonable medical certainty, the kind of standard we use to render a diagnosis or an
opinion.” He also disagreed that the manner of death was homicide because he did not see
“any injuries that . . . could be interpreted to say they were inflicted upon her and caused her
death.” He emphasized that,

       most importantly, [he did not] see clear-cut evidence as to the cause of death
       at all. There’s very, very valid question here, and you’ve heard discussion
       from the witnesses about drowning, about some form of asphyxia, although
       nobody seems to have an answer as to what kind of asphyxia, how that
       happened, and if you can’t figure out how it happened, I don’t think you can
       say how it happened. I mean, if you don’t know how someone was
       asphyxiated, how do you know if it’s an accident or a homicide or what?

He opined that “the best decision for her manner of death . . . is also ‘undetermined.’” He
added: “We simply can’t say, and it’s not because I don’t want to say, it’s because there isn’t
evidence on which to base such a specific conclusion.”

      On cross-examination, the State posed the following hypothetical: “had [the victim]
been killed, had she went through someone walking in behind her, grabbing her arms,
pushing them together and shoving her down in the bathtub, could she not have received all




                                              -40-
of these injuries?” Dr. Arden responded as follows:

               Simply pushing her down into the bathtub? I think it’s unlikely she’s
       going to receive all of these injuries. Under this hypothetical scenario you’ve
       just presented to me, she could receive some of these injuries. But, you know,
       what you’ve described to me doesn’t sound like something that would have
       caused the arm fractures, for instance. It certainly wouldn’t have caused the
       sternal fractures. It might have banged her elbows, for instance, but it doesn’t
       – it’s not a scenario where you’re banging – I’m using the word “bang”
       meaning where she had impacts to cause bruising both front and back. So it
       would theoretically explain some of her injuries but not the totality or the
       pattern.

Asked about the omission from his written report of any analysis regarding the twisting
injuries near the victim’s elbows, Dr. Arden responded as follows:

       I was really concentrating much more on the fractures of the upper portions,
       the proximal portions of the two upper arm bones, the humeri. And so, given
       that those to me, I thought were really more important, that’s what I
       concentrated on. I was aware, of course, of those fractures around the elbow
       and especially after hearing Dr. Marks testify and describe his interpretation
       of them, I realize that, although I had omitted them here, they fit in with my
       original interpretation of the totality of the injuries, which is why I’m
       discussing them today.

He reiterated that he took these injuries into account when giving his opinion about the
victim’s injuries during his testimony. He testified that, in his medical opinion, the victim’s
injuries could have been caused by the manner in which the Defendant testified that he got
the victim out of the bathtub.

       When asked if he stood by the statement he made in his written report that nothing he
had reviewed suggested foul play or homicide, “given that there was no other evidence of any
type of seizure, no evidence of any other type of a fall, anything of that nature, and she was
found sitting upright and she obviously had water in her lungs with no other explanation of
a medical reason why she died,” Dr. Arden responded as follows:

              Actually, yes. She is at that point an unexplained death, something of
       a mystery. She doesn’t have any of the kinds of injuries that I would expect
       from somebody who was fatally assaulted. As you said that in the predicate
       to your question, something about no evidence of a seizure, which actually,


                                             -41-
       I’m sorry, sir, is incorrect. She does have a bite mark of her tongue which is
       commonly seen with seizure although there is no – there is no positive
       anatomical evidence of a seizure . . . . But she did have evidence that is
       consistent with having had a seizure. There was nothing that was described to
       me of that scene that suggested a struggle, that suggested an assault, so
       actually, sir, I still stand by that statement.

       Dr. Arden acknowledged that none of the victim’s medical records which he reviewed
stated a diagnosis of osteoporosis. He disagreed with Dr. Marks’ method of testing for
osteoporosis, explaining,

       the rib is not the ideal bone to use for testing for osteoporosis and, in fact, I’ve
       got literature with me from the anthropology community that points out, that
       taking a single section of one rib is not an adequate survey, even if it’s a test
       that is valid and legitimate. They make the point that for – and specifically,
       it’s published for evidentiary purposes, so this is from the forensic
       anthropology literature. It says, ‘You should not take one section from one rib,
       there is too much variability within the same rib or rib to rib.’

He added that the examinations performed by Drs. Marks and Stout “don’t address the
medical question on that issue, and it is a medical question.” He added, “The anthropologists
aren’t here making diagnoses medically.”

       When asked if he could rule out the victim’s death as a homicide, Dr. Arden testified,

               As in categorically, 100% exclude? I can’t do that for anything, neither
       can anybody else in this room. There is not 100% certainty in life or medicine.
       I can tell you that there is some possibility that this was a homicide. I can tell
       you that there is no evidence on which to base that conclusion with a
       reasonable medical certainty.

       ....

       It’s clearly an undetermined death to me because there is no significant or
       there is no compelling evidence. First of all, I don’t know that she died of
       asphyxiation. We have one other thing we haven’t talked about, at least in my
       time on the stand here. There was a question raised by Dr. Mileusnic about
       whether she has myocarditis and we’ll never know the answer to that question.
       That kills people. Some people die from sudden cardiac deaths in the
       complete and total absence of a pre-existing, long-standing heart disease


                                              -42-
        including young healthy people. Some people have seizure disorders that
        weren’t previously diagnosed. Some people slip under the water and drown.
        We actually don’t know that she drowned, for one thing, we also don’t know
        that she asphyxiated. There’s no proof positive of asphyxiation here. There’s
        some mildly suggestive evidence that wasn’t documented, the petechial
        hemorrhages. You can see those with heart attacks, and as Dr. Stephens said,
        people who have violent vomiting. So there is no evidence on which to base
        a conclusion about what caused this woman to die. And if we don’t know
        what caused her to die, and there’s no compelling evidence from the scene and
        the circumstances about how it happened, whatever it was, then how do we
        know what killed her? We don’t.

       The defense rested its case after Dr. Arden concluded his testimony. In rebuttal, the
State submitted several pages of notes by Jennifer Parris, a licensed clinical social worker
whom the victim saw for fourteen sessions beginning in June 2002 and continuing into
December 2002. These notes reflect that the victim reported anxiety, depression, insomnia,
panic attacks, and “some marital issues – blended family issues.” The intake form, prepared
in June 2002, indicates that the victim reported no suicidal or homicidal thoughts. The intake
form further reflects that the victim’s “goals” were “deal [with] stepdaughter effectively”;
“problem resolution”; “stress mgt.”; and “coping skills.” The final notes reflecting the
December 18, 2002, session state, “Family conflict/holiday. Focused on coping.”

      After deliberating, the jury convicted the Defendant of (1) the first degree
premeditated murder of the victim and (2) one count of insurance fraud. 9 The trial court
subsequently sentenced the Defendant to life imprisonment for the murder and to a
concurrent term of eight years for the fraud conviction. The Defendant filed a timely motion
for new trial, which the trial court heard and eventually denied. The Defendant timely
appealed.

                                                 Analysis

                                            Thirteenth Juror 10

       The Defendant contends that he is entitled to a new trial because the trial court failed
to perform its duty as thirteenth juror. We agree.


        9
         During deliberations, the trial court granted a judgment of acquittal on one of the two remaining
insurance fraud counts.
        10
             We have chosen to address the Defendant’s issues in a sequence other than chronological.

                                                    -43-
        Tennessee Rule of Criminal Procedure 33(d) provides that the trial court “may grant
a new trial following a verdict of guilty if it disagrees with the jury about the weight of the
evidence.” Tenn. R. Crim. P. 33(d). This Court has described this provision as “the modern
equivalent to the ‘thirteenth juror rule.’” State v. Blanton, 926 S.W.2d 953, 958 (Tenn. Crim.
App. 1996). According to our supreme court, “[t]he thirteenth juror rule originated at
common law and requires the trial court to independently weigh the evidence, pass upon the
issues, and decide whether the verdict is supported by the evidence.” State v. Moats, 906
S.W.2d 431, 433 (Tenn. 1995) (citing Curran v. State, 4 S.W.2d 957, 958 (Tenn. 1928))
(emphasis added). This fundamental duty requires the trial court to determine for itself
whether the evidence adduced at trial establishes guilt beyond a reasonable doubt. See id.
(citing Manning v. State, 292 S.W. 451, 457 (Tenn. 1927)). The trial court’s mandatory
review includes an evaluation of the credibility of the witnesses and an assessment of the
weight of the evidence. See Moats, 906 S.W.2d at 434-35. See also Blanton, 926 S.W.2d
at 958 (thirteenth juror rule imposes a duty on the trial judge to “weigh the evidence and
grant a new trial if the evidence preponderates against the weight of the verdict”).

      The reasons underlying the thirteenth juror rule are long-standing, set forth more than
one hundred years ago:

       [T]he circuit judge hears the testimony, just as the jury does, sees the
       witnesses, and observes their demeanor upon the witness stand; that, by his
       training and experience in the weighing of testimony, and the application of
       legal rules thereto, he is especially qualified for the correction of any errors
       into which the jury by inexperience may have fallen, whereby they have failed,
       in their verdict, to reach the justice and right of the case, under the testimony
       and the charge of the court; that, in our system, this is one of the functions the
       circuit judge possesses and should exercise – as it were, that of a thirteenth
       juror. So it is said that he must be satisfied, as well as the jury; that it is his
       duty to weigh the evidence, and, if he is dissatisfied with the verdict of the
       jury, he should set it aside.

Cumberland Telephone & Telegraph Co. v. Smithwick, 79 S.W. 803, 804 (Tenn. 1904).

       In short, the crucial purpose of the thirteenth juror rule “is to be a ‘safeguard . . .
against a miscarriage of justice by the jury.’” Moats, 906 S.W.2d at 434-35 (quoting State
v. Johnson, 692 S.W.2d 412, 415 (Tenn. 1985) (Drowota, J., dissenting)). Thus, “the trial
court’s approval of a criminal verdict as the thirteenth juror is a necessary prerequisite to the
imposition of a valid judgment.” Id. (emphasis added). See also State v. Carter, 896 S.W.2d
119, 122 (Tenn. 1995).



                                              -44-
        In order to satisfy its role as thirteenth juror, a trial court simply may overrule a
motion for new trial without comment. In such event, this Court may presume that the trial
court approved the verdict as the thirteenth juror. See Moats, 906 S.W.2d at 434; Carter, 896
S.W.2d at 122. When, however, “the record contains statements by the trial court expressing
dissatisfaction or disagreement with the weight of the evidence or the jury’s verdict, or
statements indicating that the trial court misunderstood its responsibility or authority to act
as the thirteenth juror,” the defendant must be granted a new trial. Moats, 906 S.W.2d at
435-36.

      In Moats, the supreme court determined that the trial court misconstrued its
responsibility or authority to act as the thirteenth juror and ordered a new trial, id. at 436,
based on the trial court’s following comments on the record:

       [T]he case was a difficult to try. [sic] There was a great deal of evidence that
       caused this Court concern, ah, throughout the trial of this case. I am saying
       that on the record.

               Nevertheless, I think that upon reviewing the testimony, and the
       conclusion of the jury, the Court feels that the jury came to what, ah, was a
       reasonable conclusion, if they looked at it as the Court feels it must consider
       that they looked at it . . . . I don’t think that the Court can willy-nilly decide
       that somebody is entitled to a new trial. I think that I have to find that the jury
       did not have sufficient evidence to conclude what it concluded. I think that in
       this matter the jury did have sufficient evidence to come to a conclusion along
       that line. And, ah, I don’t feel that it is appropriate for me to overturn that
       jury’s conclusion at this time.

              However, for the record, this court has had difficulty with the, ah, with
       the proof in this matter.

Id. at 433. The supreme court construed these comments as indicating that “the trial court
did not believe that the weight of the evidence supported the jury’s verdict, but refused to
grant a new trial because the evidence was legally sufficient to support the verdict.” Id. at
435. Therefore, our high court concluded, “[T]he trial court misconstrued its authority to
grant a new trial under the thirteenth juror rule.” Id. Accordingly, the defendant was entitled
to a new trial. Id. at 436.




                                              -45-
       In the instant case, the trial court heard argument on the motion for new trial on May
2, 2011. The trial court’s comments on that date include the following:

       I guess in my thinking over the last several days, and this case has been on my
       mind trying to look . . . back and see where a jury could have gone where they
       – gone where they went, whatever language that is, and I didn’t think during
       that period of time about Mr. Larkin’s testimony, for whatever reason I just
       didn’t think about it. And General Brooks is right, the jury had an opportunity
       to listen to him; had an opportunity to believe him, or disbelieve him. For
       whatever reason it’s apparent they had to disbelieve him. They did not believe
       what he testified about. It was purely – purely and I mean pure the most
       circumstantial case that anybody practicing law would ever be exposed to. I
       – I mean, everything hung upon circumstantial proof. And it’s, when you
       think about it the court probably was thinking that the jury may have a hard
       time reaching a verdict of guilt in this case maybe because of the way I was
       thinking at the time, that wasn’t the truth – I mean, that wasn’t what happened.
       They – they reached a verdict and they did it – they did it with some emotion.

The trial judge declined to rule as thirteenth juror on that day, however, and continued his
final ruling until June 3, 2011. At that time, the trial court ruled from the bench as follows:

       I guess a long time ago when I started practicing law I took a position I didn’t
       always not many times during my life that I probably have not agreed with
       juries, but we all disagree sometimes and say, well, we don’t – we don’t agree
       – I don’t agree. I’ve had some people convicted I didn’t think should be, but
       I’ve had people acquitted I don’t think should have been acquitted. The
       problem is when you get one person that puts on a black robe to think that
       their ability to comprehend, to analyze, and look at the evidence is so much
       greater than twelve folks sitting in that jury box I don’t think is what this
       system is about. It’s – it’s about when you – when you see, which very seldom
       happens, just grave injustice, and you can argue that maybe in this case. They
       – they’ve took evidence of what doctors testified to and that’s all this case is
       all about. That’s what made it so unusual. It wasn’t – you know, as cases go
       that we’ve had through the years it’s not anything that you’d sit as a spectator
       and get excited about like one of those who done it. That’s not what this case
       was. It was about twelve folks taking all that evidence they had and going
       back there and – and hopefully going through and – and looking at everything.
       You’ve got to understand, as you do, that over there there were twenty-four
       eyes and twenty-four ears, and here there’s two and that’s all. This jury after
       listening to a well tried case, and when I say a well tried case I mean that,


                                             -46-
       made a determination that Mr. Larkin committed this offense. You make an
       argument that’s very compelling to me, Mr. Slagle, in the sense that the review
       on appeal is different from this court’s determination of what you’ve asked me
       to do. There’s a lot of difference between that standard we both know. And
       that puts Mr. Larkin in a – in a – in a tough situation on appeal as to whether
       or not they would disturb that verdict. And I just don’t think I’m in a position
       to disturb it. I don’t. I’ve looked at this thing and, you know, he’s – he’s
       entitled to a fair trial. He’s not entitled to a perfect trial. Judges in the best
       of their wisdom don’t try perfect cases. I kind of get amused sometimes when
       I read about cases and they talk about jurors who did what they did and
       everything. But, where jurors get where they do is what judges rule on during
       the course of a trial. That’s what an appeal is about, it’s not about whether or
       not a jury was particularly wrong, or not wrong – right in an appeal, but
       whether a judge did what he was supposed to do wearing a black robe. And
       I think I’ve done that in this case. I – I think he – he got a fair trial. It wasn’t
       perfect. There’s no trial that will ever be. So, I’ve looked through everything
       that I’ve – I’ve – you’ve had. He’s had his day in court, and the court’s not
       going to disturb that verdict.

(Emphases added). The trial court subsequently entered an order denying the Defendant’s
motion for new trial.

        Similar to the trial court’s comments in Moats, these comments reflect the trial court’s
failure to conduct an independent weighing and evaluation of the evidence, including the
credibility of the witnesses, as required by the thirteenth juror rule. The trial court clearly
was surprised by the jury’s verdict, and it struggled to make sense of the verdict by
speculating that the jury simply rejected the Defendant’s testimony. The trial court itself
never made a finding on the Defendant’s credibility. Additionally, even if the trial court
expressly had agreed with the jury on the Defendant’s credibility and found on the record that
the Defendant’s testimony was not credible, once the court decided to comment, the trial
court still had a duty to weigh the various experts’ testimony and determine for itself whether
the State had proved beyond a reasonable doubt that the Defendant committed the
premeditated murder of his wife. The trial court did not undertake this analysis. Instead, the
trial judge deferred to the greater number of eyes and ears possessed by the jurors as
compared to the number he, alone, possessed.

        Moreover, instead of focusing on an independent evaluation of witness credibility and
the weight of the evidence as required by the thirteenth juror rule, the trial court focused its
attention simply on whether the Defendant had received a fair trial. The legal definition of
a “fair trial” is much broader and encompasses many more issues than simply the quantity


                                              -47-
and quality of the evidence adduced at trial. Thus, whether a defendant has received a fair
trial is not the issue that must be resolved when a trial court is ruling as the thirteenth juror.

        The trial court’s general conclusion that the Defendant received a “fair trial” is not an
adequate substitute for the trial court’s independent analysis of the evidence and witness
credibility and its ensuing adoption or rejection of the jury’s verdict. It is, in fact, the trial
judge’s responsibility to “second-guess” the jury’s twelve sets of eyes and ears with his or
her own single set, because a trial judge’s eyes and ears are complemented by his or her
“training and experience in the weighing of testimony, and the application of legal rules
thereto.” Smithwick, 79 S.W. at 804. A trial judge does not satisfy this responsibility by
stating that he or she is not in the position to overturn a jury’s verdict, nor by concluding that
the trial court’s rulings during the trial resulted in the defendant receiving a fair trial.

        In sum, we hold that the trial court did not satisfy its obligation to act as the thirteenth
juror in this matter. Accordingly, we reverse the Defendant’s convictions and remand this
matter for a new trial.

      Although we are reversing the Defendant’s convictions on the thirteenth juror issue,
we will address several of the Defendant’s other issues in light of a possible retrial of the
Defendant.

                                          Dr. Mileusnic

       Dr. Mileusnic originally was contacted about the victim’s death by the defense in
conjunction with defending the civil proceedings brought by Gentry on Tia’s behalf against
the Defendant. Following discussion, Dr. Mileusnic agreed to be retained by the defense and
to render a professional opinion regarding the cause of the victim’s death. For her review
and professional analysis, the defense provided her with numerous documents and other
materials regarding the victim’s death, including the Defendant’s statement to the police; the
victim’s death certificate and subsequent “Delayed Report of Diagnosis”; the County
Medical Examiner’s Report of Investigation; and the (first) autopsy report and related items.
After reviewing these materials, Dr. Mileusnic generated a written report dated May 31,
2006, which concluded the following: “Based on the currently presented evidence, terminal
cardiac event with agonal seizure and possible drowning cannot be excluded. In summary,
most gross and microscopic findings in support of mechanical asphyxia with blunt trauma
are insufficient to be listed as the main cause of death without [sic] reasonable medical
certainty.” She faxed this report to defense counsel on June 6, 2006. The Defendant utilized
the report in the civil litigation. Importantly, there is no evidence in the record that Dr.
Mileusnic communicated to the Defendant any reservations about the validity of her opinion.



                                               -48-
        In spite of her work for the Defendant in the civil case, Dr. Mileusnic began working
with the State in its pursuit of the instant criminal charges within days of submitting her
report to the defense in the civil case. In April 2010, the defense filed a motion “to exclude
Dr. Darinka Mileusnic-Polchan from testifying on behalf of the State” on the bases that (1)
“the State of Tennessee through its agents ha[s] improperly violated a confidential
relationship and a contractual relationship that the defendant had with Dr. Darinka
Mileusnic” and (2) “Dr. Darinka Mileusnic’s conduct was improper, that such conduct
violated a confidential relationship with Dale Larkin and that her conduct breached her
contractual obligation to the defendant.” The trial court held a hearing on the motion, at
which the following proof was adduced:

        Lt. Sherfey testified that he began investigating the victim’s death on November 20,
2003, but no charges were filed until July 2009, after the exhumation and second autopsy by
Dr. Mileusnic. Lt. Sherfey acknowledged that, prior to that time, the defense had provided
him a copy of the report Dr. Mileusnic prepared in her capacity as an expert witness for the
Defendant in conjunction with the civil case involving the victim’s death. He testified that,
after receiving the report, he and “Agent Lott” spoke with the district attorney “in reference
to speaking with her about, we were going to set up a meeting in reference to some slides that
she had analyzed and some other things that we saw in the report.” He acknowledged that
the “slides” were ones that had been provided to Dr. Mileusnic by the defense.

       Lt. Sherfey stated that he spoke with Dr. Mileusnic on June 22, 2006, in order to set
up a meeting between her and the district attorney general. She advised him that she was
available to meet with the district attorney on June 28, 2006. According to Lt. Sherfey, Dr.
Mileusnic requested at the June 28th meeting “any statements, that kind of thing, that we
might have in the case that she didn’t have.” Accordingly, they provided her with
“everything” in their file, including statements. Lt. Sherfey acknowledged that some of the
statements contained hearsay and that some were from angry family members casting
aspersions on the Defendant and/or his marriage to the victim.

        After she had been given the opportunity to review the State’s file, Dr. Mileusnic met
again with District Attorney General Clark in October 2006. Lt. Sherfey and Agent Lott of
the Tennessee Bureau of Investigation also attended this meeting. According to Lt. Sherfey,
District Attorney Clark knew that Dr. Mileusnic was the Defendant’s witness. Lt. Sherfey
testified that Dr. Mileusnic advised them that “she would be willing to pursue it further as
far as an exhumation. There was some unanswered questions from the original autopsy that
she would like to see.” Accordingly, in March 2009, the State filed a petition to exhume the
victim’s body, which the trial court granted. The petition provided that Dr. Mileusnic had
agreed to perform the subsequent autopsy. Based on Dr. Mileusnic’s autopsy and Dr. Murray



                                             -49-
Marks’ report, which Dr. Mileusnic relied upon in conducting the autopsy, the State
subsequently sought an indictment against the Defendant.

        Dr. Mileusnic testified and acknowledged that she had been approached by the
defense about the victim’s death. In conjunction with her testimony, several items of
correspondence between her and defense counsel were admitted into evidence. The first
letter from defense counsel to Dr. Mileusnic, dated April 4, 2005, provided as follows:

             I enjoyed our conversation Friday regarding my pending case in the
      Law Court for Washington County at Johnson City. As I explained to you on
      the phone, this case arose from the death of a young woman, my client’s wife,
      in the bathtub of their home in Washington County, Tennessee. I am
      providing you with a copy of the autopsy report and the statement my client
      made to the police regarding the incident. My client’s neighbor, a
      neurosurgeon, attempted to revive Ms. Larkin. Obviously his attempts were
      unsuccessful.

             The young girl who found her mother in the tub is now back in the
      custody of her biological father. Her father is attempting to sue my client to
      prevent him from recovering over $600,000 in life insurance benefits from
      three different policies in which Ms. Larkin named her husband as beneficiary.
      This was listed as a suspicious death. These benefits have not been paid at this
      time.

             I am certain that the State of Tennessee or its expert witness, Dr. Gretel
      Stephens saved pictures and other evidence from the autopsy. Since the State
      has decided not to pursue charges against my client in this case, I can obtain
      their closed file as well as that of Dr. Stephens. Please review these
      documents and give me a phone call next week so that we may discuss your
      possible participation in this case as an expert witness on behalf of Mr. Larkin.

              Also, after a review of this information, I would appreciate an
      approximate cost of your services should you be so inclined to take this case.
      I shall await your reply.

On April 21, 2005, defense counsel sent another letter to Dr. Mileusnic, which stated the
following:

             On April 4, 2005, I sent you some information regarding a statement
      given by my client, Dale Larkin, as well as an autopsy concerning the death of


                                            -50-
      his wife, Teresa K. Larkin. These documents are the subject matter of a civil
      lawsuit as no criminal charges were placed. I do not know if you have had a
      chance to review these documents.

             If you have had a chance to review the documents, I would appreciate
      a phone call or letter from you outlining your review of the documents and
      whether or not you would be interested in being employed as an expert on Mr.
      Larkin’s behalf in the civil lawsuit brought by the ex-husband of the deceased
      and biological father of her only child. I would also appreciate you providing
      me with an approximate cost of your time and work you would need to
      perform in this case. I would appreciate you contacting me at your earliest
      convenience.

On May 5, 2005, defense counsel sent another letter to Dr. Mileusnic, which contained the
following:

              Enclosed you will find a check drawn on our escrow account in the
      amount of $1,000 to retain your services in the above-captioned civil action.
      I have explained to my client that you charge $1,000 to review a case, $2,000
      to make a report and $500 per hour for additional work. I am going to need a
      court order to release the pictures and microscopic slides as well as the case
      file from the Johnson City Police Department. I hope to have that order down
      in the near future. I must preserve the chain of custody of the evidence at the
      request of the district attorney general. This will require someone transporting
      these items other than a member of my firm. I do not know what arrangements
      you could make to maintain custody of the slides and pictures. I will discuss
      that with you at the next call.

              I appreciate your cooperation in looking into this case. I did discuss
      with my client how Ms. Larkin was removed from the bathtub. My client said
      that he grabbed her by the wrist and pulled her from the bathtub on to the floor
      in the bathroom. I do not know whether that information helps you, but I will
      have you to talk with my client as soon as possible.

             I look forward to working with you on this case.

        Dr. Mileusnic acknowledged that she wanted to work for the Defendant to determine
how the victim died. She accepted a $1,000 retainer to do so. In conjunction with her
ensuing work, she sought and obtained from the defense additional information consisting
of forty-four recut slides from Dr. Stephens’ autopsy. As to information she received from


                                            -51-
the defense that was not noted in her written report, she stated, “There was no additional
information regarding that except for maybe a couple of facts about Ms. Larkin and that she
had some medical issues, and that she had potentially a drinking problem.” She recalled
asking defense counsel if the victim had been feeling “bad” or if she had “weak or bad
feelings” in an effort to obtain more information about possible heart problems. She recalled
learning that the victim had complained of “not feeling well for a while.”

       Dr. Mileusnic testified that she was contacted by the State after generating her written
report for the Defendant. She stated, “I was contacted with additional information with the
question, please, could you review additional information because the fact was, I did not have
scene investigation available to me originally. So then I accepted to review the additional
scene investigation and the medical records.” Asked by defense counsel why she agreed to
do further work on the matter for the State after having performed work for the Defendant,
she responded:

              Well, first of all, you know, I expressed my reservation saying that,
       number one, I did review the case, and number two, I never submitted
       complete charge on this case. Except for the retainer I never charged [defense
       counsel] or his client an additional dime because – and the main reason for that
       being, because I just did not feel good about the case, because I knew that I did
       not have complete information. That’s number one. Number two, you never
       called back, you never contacted me, you never asked me whether additional
       funds were really necessary. I wouldn’t have asked for that anyway. And then
       number three is that I kind of feel an obligation toward the decedent because
       we are – forensic pathologist essentially speak for decedents, not necessarily
       for one lawyer or the district attorney or whatever. So I felt obliged that I kind
       of owed her to review as much information as possible to render a complete
       opinion that could be as honest as possible.

        Dr. Mileusnic also contended that she was “not employed by any particular
individual” but by the “people [of] East Tennessee, and particularly Knox and Anderson
County tax payers.” She added, “after a year or actually two years later, I didn’t really feel
any obligation to anybody rather than just the victim.” Dr. Mileusnic also stated that,
initially, she suggested to the State that they hire someone else and that she “basically did
express reservation for [her] further involvement.”

       When asked by defense counsel if she had recommended to the State that someone
else do the exhumation and second autopsy “due to [her] connection with [the Defendant],”




                                             -52-
she responded,

               Well, first of all, I never met with [the Defendant] and I never met with
       [defense counsel] until today.11 As a matter of fact, I never knew what you
       looked like until today. So I would not – I would really prefer if you wouldn’t
       use my connection or dedication, because there was really nothing except for
       your thousand dollar retainer and that was a long time paid. . . . And
       throughout the whole time I did express my reservation whether they’re [the
       State] sure they want me to get involved. And as I said, you know, I speak for
       the victim. I don’t speak for any particular party. And, therefore, they agreed
       for me to get involved, and I didn’t have an issue with it either.

        Dr. Mileusnic stated that she was present at the exhumation along with members of
her staff. The bill for the second autopsy was $1,300, but she did not know if this bill had
been paid. Dr. Mileusnic stated that she saw no conflict in first working for the Defendant
and then working for the State, asserting that her work for the State “was unrelated to
whatever I did with you.” When asked whether she had communicated to the defense her
later conversations with the State, she stated that she did not remember.

       On cross-examination by the State, Dr. Mileusnic testified that she enlisted Dr. Marks’
services and that “his expertise was instrumental in generating the final report and the
opinion.” She also stated that she did not recall signing “any consulting agreement” with the
defense and did not recall any specific conversations with the defense about confidentiality.
She, however, also stated, “generally in my business we always try to keep information
confidential.”

       Dr. Mileusnic testified that, after she generated her report for the defense, she was not
surprised to be contacted by the State. She also stated that, although she was entitled to
$2,000 for the report she generated for the defense, she “never did any billing” because she
“did not feel comfortable with the provided information.” She added, “Obviously, there was
much more to the investigation than just the statement of the involved person.” She
described the additional information provided to her by the State as follows:

              Well, the new information was the statements from – or actually in our
       conversation we addressed the statements from the decedent’s daughter on
       how she was found, additional information on the set-up of the bathroom and
       the bathtub and how – the layout actually of the bathroom, the conversations
       between law enforcement and the involved individuals, from the physician


       11
            The Defendant was represented by the same lawyer in both the civil lawsuit and the instant trial.

                                                    -53-
       who performed the resuscitation, all the details, to all the medical records that
       were available that I requested as far as her previous health and other
       conditions in which might actually give me a little bit more insight into her
       overall health.

       On redirect, Dr. Mileusnic stated that she had never given the report she generated for
the defense “to anyone else” and that she never discussed her conversations with the defense
“with anyone else.”

        After taking the matter under advisement, the trial court later denied the Defendant’s
motion to exclude Dr. Mileusnic as a witness for the State at the Defendant’s criminal trial.
The trial court found that no confidential relationship existed between the doctor and the
defense. The trial court noted that the report Dr. Mileusnic generated for the defense “was
shared with opposing civil litigants, as well as the Johnson City Police Department.” The
trial court also found that the defense had not disclosed any confidential information to Dr.
Mileusnic and that the relationship ended upon the conclusion of the civil proceedings for
which she had been retained.12 Additionally, the trial court found that the State would have
been placed “at a distinct disadvantage” “[i]f they had to go out and get someone else to
perform that work.” The trial court added, “[I]t’s only right I think in this case because I
think this is a doctor who actually works for the people of East Tennessee, that’s what her
relationship is.” The trial court ruled,

       [B]ased upon all that I just feel that it was appropriate for the State to contact
       her. She was the appropriate person to contact, and to put the State at some
       disadvantage because of that would just not be appropriate. More than
       anything else I find there’s no confidential relationship, and I think it’s
       appropriate that the State of Tennessee to use her as the expert in this case.

                                             Analysis

        Generally, we review a trial court’s decision to admit or exclude expert witness
testimony for an abuse of discretion. See State v. Reid, 91 S.W.3d 247, app. 294 (Tenn.
2002); State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993); State v. McCloud, 310 S.W.3d
851, 864 (Tenn. Crim. App. 2009). The Defendant contends, however, that, under the facts
and circumstances of this case, the alleged error is one of constitutional dimension based
upon his due process rights. Initially, we note that whether an expert witness retained by a
party in civil proceedings thereafter should be disqualified from testifying for the State in a


       12
            We note that the Order of Compromise and Dismissal regarding the conclusion of the civil
litigation was not filed until August 2006.

                                               -54-
subsequent criminal prosecution against the same party appears to be an issue of first
impression before this Court. Indeed, our research has revealed no similar cases in either
state or federal courts.

        Before resolving the issue of whether the trial court committed error in denying the
Defendant’s motion, we must determine the applicable legal framework a trial court and an
appellate court should use for analyzing whether an expert witness who first works for the
defendant in a civil matter, and then works for the State in its subsequent pursuit of a
criminal conviction of the defendant, should be permitted to testify against the defendant at
the defendant’s criminal trial. In his opening brief, the Defendant contends that courts should
apply a per se disqualification rule to expert witnesses who switch sides. Given the
complexity of this issue and the multitude of factual scenarios in which it potentially may
arise, we decline to adopt a per se rule of disqualification when an expert witness retained
by a party in a civil matter is then retained by the State in its subsequent prosecution of the
party.

       In the alternative, the Defendant argues for application of the “appearance of
impropriety” test, citing Clinard v. Blackwood, 46 S.W.3d 177 (Tenn. 2001). Clinard
addresses the disqualification of lawyers, not expert witnesses. Specifically, a lawyer
represented Party A while the lawyer worked at one law firm. The lawyer subsequently
joined a firm that represented Party B in a lawsuit against Party A. The Tennessee Supreme
Court concluded that the law firm representing Party B properly screened the lawyer who had
earlier represented Party A so as to protect Party A’s client confidences from being
transmitted to the lawyers representing Party B. Nevertheless, the court held that the law
firm had to be disqualified from representing Party B in the lawsuit on the independent basis
of an appearance of impropriety.

        The Clinard court emphasized that, in the context of maintaining the integrity of the
legal profession, “‘the mere appearance of impropriety is just as egregious as any actual or
real conflict [of interest].’” Id. at 186 (quoting Lovell v. Winchester, 941 S.W.2d 466, 469
(Ky. 1997)). Thus, the court recognized that, “‘[f]or a law firm to represent one client today,
and the client’s adversary tomorrow in a closely related matter, creates an unsavory
appearance of conflict of interest that is difficult to dispel.’” Id. at 188 (quoting Analytica,
Inc. v. NPD Research, Inc., 708 F.2d 1263, 1269 (7th Cir. 1983)).

       To implement the appearance of impropriety standard, the court suggested several
“contours of the rule that aid in its application.” Id. at 187. As relevant to the instant case,
these contours include the application of an objective standard based on the “perspective of
a reasonable layperson.” Id. Importantly, application of the standard so as to avoid the
appearance of impropriety “is intended to promote public confidence in the legal system.”


                                              -55-
Id. Extending Clinard’s rationale to apply to expert witnesses, a trial court would be required
to disqualify an expert witness on the basis of an appearance of impropriety “in those
situations in which an ordinary[,] knowledgeable citizen acquainted with the facts would
conclude that [allowing the expert witness to switch sides] poses a substantial risk of
disservice to either the public interest or the interest of one of the clients.” Id. (internal
quotation marks omitted). See also In re McCarter, 296 B.R. 750, 754 (Bankr. E.D.Tenn.
2003) (disqualifying expert witness who sought to testify for one side while employed by the
other, noting that courts have the discretion to disqualify expert witnesses “as part of the
court’s inherent power to preserve the public confidence in the fairness and integrity of the
judicial proceedings”) (internal quotation marks omitted).

        The State does not respond to this argument in its brief but simply asserts that the
applicable analysis focuses on two issues: “(1) whether it was objectively reasonable for the
party seeking disqualification to conclude that a confidential relationship existed; and (2)
whether any confidential or privileged information was disclosed by that party to the expert
that is relevant to the current litigation.” As with most of the cases cited by the Defendant,
in making this argument, the State relies wholly on civil cases addressing the disqualification
of expert witnesses. See Koch Refining Co. v. Boudreaux, 85 F.3d 1178, 1181 (5th Cir.
1996); Hewlett-Packard Co. v. EMC Corp., 330 F.Supp.2d 1087, 1092 (N. D. Cal. 2004);
Mayer v. Dell, 139 F.R.D. 1, 3 (D. D.C. 1991). Even in the context of civil litigation,
however, courts have recognized that the courts have an inherent power “to disqualify
experts in certain circumstances. This power exists in furtherance of the judicial duty to
protect the integrity of the adversary process and to promote public confidence in the fairness
and integrity of the legal process.” Wang Labs., Inc. v. Toshiba Corp., 762 F.Supp. 1246,
1248 (E.D.Va. 1991) (citing Paul v. Rawlings Sporting Goods Co., 123 F.R.D. 271, 277-78
(S.D.Ohio 1988) and Great Lakes Dredge & Dock Co. v. Harnischfeger Corp., 734 F.Supp.
334, 336 (N.D.Ill. 1990)). See also United States v. Salamanca, 244 F.Supp.2d 1023, 1027
(D.S.D. 2003) (disqualifying government’s expert witness from testifying after expert had
served as interpreter between defendant and his lawyer because “[a]llowing him to testify
would create a conflict of interest and an appearance of impropriety”).

        In our view, the State’s approach is too narrow to address the fundamental fairness
concerns inherent in a criminal prosecution. The test advocated by the State is the test used
by courts in civil proceedings, which are fundamentally different from criminal prosecutions.
Criminal cases, as opposed to civil cases, directly involve the fundamental constitutional
liberty rights of the defendant. As a result, our judicial system recognizes significantly more
due process protections in criminal cases than in civil cases. For instance, in recognition that
our system of criminal justice would rather set a guilty person free than to convict an
innocent one, we permit criminal defendants to be convicted only upon proof of guilt beyond
a reasonable doubt. See In re Winship, 397 U.S. 358, 372 (1970) (Harlan, J., concurring).


                                              -56-
Of course, most civil proceedings are decided on the much lower standard of the
preponderance of the evidence. Additionally, persons defending criminal charges are vested
with numerous state and federal constitutional rights to ensure a fair trial, including the
constitutional rights to legal counsel, to present a defense, and to confront the State’s
witnesses. See U.S. Const. Amend. VI; Tenn. Const. art. I § 9. Of course, the overarching
concern in criminal prosecutions is that the defendant not be convicted except upon being
afforded the due process of law, including the right to a trial that is fundamentally fair. See,
e.g., State v. White, 362 S.W.3d 559, 566 (Tenn. 2012) (“Due process, at its most basic level,
‘mean[s] fundamental fairness and substantial justice.’”) (quoting Vaughn v. State, 456
S.W.2d 879, 883 (Tenn. Crim. App. 1970)).

       Moreover, as noted by the Defendant, this Court observed almost twenty years ago
that “[w]e cannot allow public confidence in the complete fairness and impartiality of our
tribunals to be eroded and nothing which casts any doubt on the fairness of the proceedings
should be tolerated.” State v. Tate, 925 S.W.2d 548, 555 (Tenn. Crim. App. 1995) (quoting
Johnson v. McReynolds, No. 35, 1990 WL 204298 (Tenn. Ct. App. Dec. 17, 1990)). We
conclude that the analytical framework proposed by the State does not adequately take into
consideration the overall fundamental fairness concerns of the criminal trial itself or the
public’s confidence in the criminal justice system.13

       First, we are concerned that determining an expert witness’ ability to join the
prosecution team after working for the defendant on whether there was, in the first instance,
an expectation of confidentiality and the exchange of confidential information, completely
overlooks the negative impact that an expert’s defection is likely to have on the jury’s
assessment of the defendant’s credibility, regardless of issues involving confidentiality. A
juror’s likely conclusion is that the defendant either lied to the expert or, as Dr. Mileusnic
claimed in this case, failed to provide him or her with all of the pertinent information. As
noted by one commentator, “a defecting witness . . . creates the appearance of chicanery.”
Steven Lubet, Expert Witnesses: Ethics and Professionalism, 12 Geo. J. Legal Ethics 465,
476 (Spring 1999); see also Douglas R. Richmond, Expert Witness Conflicts and
Compensation, 67 Tenn. L. Rev. 909, 929 (2000) (“An expert’s admission that he was
originally engaged by the opposing party is potentially devastating [even in a civil
proceeding].”).




        13
           Indeed, even the State recognizes in its brief that civil courts addressing the disqualification of
expert witnesses “often consider the prejudice to the parties and the policy concerns protecting the integrity
of the judicial process,” citing Hewlitt-Packard Co., 330 F.Supp.2d at 1092. See also Cordy v. Sherwin-
Williams Co., 156 F.R.D. 575, 580 (D.N.J. 1994) (recognizing that the policy objectives favoring expert
disqualification include “maintaining the integrity of the judicial process”).

                                                    -57-
        Second, we agree with the Defendant that an expert witness’ switching sides and
opinions after working for the defense places defense counsel at trial in the “untenable
position” of both needing to accredit the expert’s first opinion while simultaneously needing
to discredit the expert’s subsequent opinion. A focus on issues of confidentiality completely
overlooks this crucial aspect of a criminal defendant’s constitutional rights to counsel, to
present a defense, and to confront his accusers.

         A criminal defendant’s due process rights walk hand-in-hand with maintaining the
integrity of the criminal justice system and promoting the public’s confidence in the system.
We hold that these critical concerns – protecting a criminal defendant’s fundamental right
to a fair trial, upholding the integrity of our criminal justice system, and maintaining the
public’s confidence – are not satisfied by the expert witness disqualification test applied in
many civil proceedings, which focuses primarily on the nature of the relationship between
a civil litigant and an expert.

        Instead, we hold that a court addressing this issue should apply a modified appearance
of impropriety standard similar to the test set forth for the disqualification of attorneys in
Clinard. Accordingly, the appropriate test to be applied for assessing whether an expert
witness who previously was employed as an expert on behalf of a defendant later may testify
as an expert for the State on the same or substantially similar subject matter in a subsequent
criminal prosecution of the defendant is whether an ordinary person knowledgeable of all the
relevant facts would conclude that allowing the expert to switch sides poses a substantial risk
of disservice to the public interest and/or the defendant’s fundamental right to a fair trial.
Additionally, in making this determination, trial courts should consider the following non-
exclusive list of factors: (1) whether the State could have obtained a different expert witness
and, if so, under what conditions; (2) whether the defendant hired the expert first in order to
preclude the State from using the expert; (3) whether, in addition to switching sides, the
expert switches opinions; (4) whether the expert obtained any confidential or privileged
information from the defendant; (5) the expert’s reasons for switching sides and, if relevant,
the reasons for changing his or her opinions; (6) the significance of the issue about which the
expert is testifying; (7) the terms of the prior relationship between the defendant and the
expert; and (8) the timing of the expert’s switching sides.

       We further conclude that due process concerns mandate a presumption in favor of
disqualification in criminal cases. Unless the record demonstrates that the State clearly has
rebutted the presumption in favor of disqualification, the trial court should exclude the
testimony of the expert. On appellate review, if the appellate court determines that the trial
court erred by allowing an expert to testify, it should apply the constitutional harmless error
standard of review, i.e., the appellate court must determine whether the State has
demonstrated the error to be harmless beyond a reasonable doubt. See State v. Rodriguez,


                                             -58-
254 S.W.3d 361, 371 (Tenn. 2008). If the State has failed to meet this burden, reversal and
a new trial will be required. See id.

       Applying this framework to the facts and circumstances of this case, we are compelled
to conclude that the trial court erred in denying the defense motion to exclude Dr. Mileusnic
from testifying for the State. First, we take judicial notice that Dr. Mileusnic was not the
only forensic pathologist in the State of Tennessee in 2006. See Tenn. R. Evid. 201; State
v. Lawson, 291 S.W.3d 864, 869 (Tenn. 2009) (recognizing that appellate courts may take
judicial notice of facts). Indeed, she testified at the pretrial hearing regarding the
admissibility of her testimony that, when the State began its efforts to recruit her, she
suggested that they contact another pathologist. Further, while we recognize that the trial
court found that the State would have been placed at a “disadvantage” had it not been able
to employ Dr. Mileusnic, the trial court did not adequately state its reasons for this finding.
Dr. Mileusnic had no involvement in this case prior to being retained by the defendant. She
was not a fact witness. She did not perform the initial autopsy, nor did Dr. Stephens consult
with her in conducting the initial autopsy. In short, the trial court failed to support its
conclusion that the State would be placed at a “disadvantage” with any factual findings.14
Therefore, we hold that the record does not support the trial court’s finding in this regard.
Accordingly, this factor weighs in favor of disqualification.

        Second, the record reflects no attempt by the State to obtain an indictment against the
Defendant for his wife’s death prior to the time that he hired Dr. Mileusnic to assist in his
defense of a civil suit brought against him by Gentry on Tia’s behalf. Thus, the record
reflects no attempt by the Defendant to secure Dr. Mileusnic’s services deliberately in order
to create a conflict of interest that would impede her working for the State. Indeed, defense
counsel’s initial letter of inquiry to Dr. Mileusnic reflects defense counsel’s understanding
that the State had closed its file after deciding not to pursue criminal charges against the
Defendant. Therefore, the record supports the inference that the Defendant had no reason
to believe that he should hire Dr. Mileusnic in order to prevent the State from doing so. This
factor weighs in favor of disqualification.

       Third, Dr. Mileusnic’s expressed rationale for switching sides and opinions is less
than convincing. Dr. Mileusnic agreed to perform services on the Defendant’s behalf,
including a review of numerous materials relevant to a determination of how and why the
victim died. After reviewing the materials initially provided, Dr. Mileusnic asked the
Defendant to supply additional materials, which he did. The record is devoid of any requests
to the Defendant from Dr. Mileusnic for additional information such as a description or


        14
          The trial court stated that it was “only right” that the State turn to Dr. Mileusnic because she “is
a doctor who actually works for the people of East Tennessee, that’s what her relationship is.”

                                                    -59-
photographs of the bathroom where the victim died, statements from other people acquainted
with the victim, or the victim’s medical records.15 Apparently, Dr. Mileusnic was satisfied
sufficiently with the materials provided by the Defendant, as supplemented at her request,
to render a comprehensive written report containing her analysis and professional opinion
concerning the victim’s death.

       At the hearing, however, she claimed that the defense did not provide her with crucial
information regarding the scene or with the victim’s medical records. Yet, the record is clear
that Dr. Mileusnic never requested a detailed description, drawing, or photographs of the
scene. The record also supports the inference that she did not request to visit the scene.
Additionally, it is apparent that she based her later conclusions about the hardness of the
bathroom flooring on the opinions of others. Also, she could have asked the Defendant for
the victim’s medical records but did not do so. It is unclear why these records were
necessary to her second opinion but not to her first. Additionally, Dr. Mileusnic relied on
statements given to the police by persons not at the scene. Again, if Dr. Mileusnic needed
such hearsay declarations for the development of her second opinion, it is reasonable to
assume that she needed them for her first opinion. Yet, she did not ask the defense to provide
her with the names of persons who could provide her with additional information about the
victim and/or the Defendant and/or their relationship. Finally, we note that, insofar as the
record reveals, Dr. Mileusnic never advised the Defendant of her alleged concerns about the
case (other than a single sentence in her report describing the case as “troubling”) or her
alleged concerns about any lack of sufficient information. As a result, this factor weighs
heavily in favor of disqualification.

        Fourth, the trial court found that the Defendant had disclosed no confidential
information to Dr. Mileusnic and that no confidential relationship existed between the
Defendant and Dr. Mileusnic, in large part because the defense voluntarily provided a copy
of her initial report to the State. The trial court also determined that the materials provided
by the Defendant to Dr. Mileusnic were available to the State. The record supports the trial
court’s findings. Therefore, this factor weighs against disqualification.

       A review of the next relevant factor demonstrates that the issues about which Dr.
Mileusnic rendered her conflicting opinions were the key issues in this first degree murder
prosecution: the events leading to the victim’s death and the actual cause and manner of her
death. The only proof implicating the Defendant’s participation in the cause and manner of


        15
           The record reflects that the defense offered to provide Dr. Mileusnic with the State’s file which,
presumably, would have included the photographs of the Defendant’s bathroom taken in November 2003.
It is unclear whether Dr. Mileusnic reviewed the State’s file while working for the defense and, if she did
not, why she did not.

                                                    -60-
the victim’s death came from the State’s expert witnesses. The State’s key witness in this
regard was Dr. Mileusnic. Dr. Mileusnic came to the State’s attention only after she had
generated a report at the Defendant’s request. The State hired her knowing that she had
already issued a professional opinion in the Defendant’s favor. The State then convinced her
to assist the prosecution in demonstrating that the Defendant was responsible for the victim’s
death. The State’s strategy in “flipping” a defendant’s expert witness and then exploiting that
fact to the jury became clear during its closing argument, when the prosecutor argued the
following:

       Look at Dr. Mileusnic, she once did get retained by [the defense] regarding
       this case. She produced a report. She has talked about that report, she has
       explained it to you, ladies and gentlemen, why her opinions changed, how new
       information in this case led to a different report on her part, but what about the
       money trail on her, okay? [The defense] introduced a letter that he’d written
       to her where he’d paid $1,000 retainer for her to look at the case and said
       “You’ll get $2,000 for a report,” okay? What was her testimony about the
       $2,000 for the report? She issued the report, ladies and gentlemen, but she told
       you she never sent the invoice in. She never sent the invoice in because she
       told you “I never felt totally comfortable about this case.” So later on when
       Lieutenant Sherfey contacts her, begins a dialogue, she agrees to do an
       exhumation. She agrees to put in all of this work into this case and for what,
       a $1,300 check? As you consider what Dr. Mileusnic said to you, I want to
       suggest you ask yourself a question. When Lieutenant Sherfey brought this
       topic up to her, what would have been the easiest thing to do for that woman
       if she was just about money and not about seeking out the truth of this
       woman’s death? Ladies and gentlemen, the easiest thing she could have done
       was to have sent that invoice to [the defense], get her $2,000 that she’d already
       earned for writing a report. The easy thing to do is not to take $1,300 instead,
       look at this body, do all that work, and then write a report that she had to have
       known she was going to be grilled about, questioned about. In your own
       experiences, who do you trust more; someone who comes to a conclusion and
       won’t change it no matter what else is brought before them, or someone who
       is willing to reconsider their opinions in a matter?

This factor also weighs heavily in favor of disqualification.

        As to the terms of the initial relationship between Dr. Mileusnic and the Defendant,
we agree with the trial court that there does not appear to have been a clear breach of
confidentiality, particularly in light of the defense providing a copy of Dr. Mileusnic’s report
to the State. This factor weighs against disqualification.


                                              -61-
       The timing of Dr. Mileusnic’s defection is particularly troubling. Within mere days
of delivering her favorable report to the defense, she was consulting with the State in its
pursuit of a murder conviction of the Defendant. The record reflects no effort on her part to
warn the defense of her defection. Indeed, nothing in the record suggests that she ever
communicated to the defense any concerns she may have harbored about foul play. Rather,
once she delivered her report to the defense, she immediately became amenable to a complete
reversal of her professional opinion on behalf of a party adverse to her client. This factor
weighs heavily in favor of disqualification.

        In summary, we conclude that the totality of these factors weighs heavily in favor of
disqualification. We hold that an ordinary person knowledgeable of all the relevant facts in
this case would conclude that allowing Dr. Mileusnic to switch sides and testify for the State
posed a substantial risk of disservice to the public interest and to the Defendant’s
fundamental right to a fair trial. Moreover, the State clearly failed to rebut the presumption
in favor of disqualification. We also are constrained to hold that the State has failed to
demonstrate that the trial court’s error in denying the defense motion to exclude Dr.
Mileusnic was harmless beyond a reasonable doubt. The State may establish that a non-
structural constitutional error is harmless only when “it appears beyond a reasonable doubt
that the error complained of did not contribute to the verdict obtained.” Rodriguez, 254
S.W.3d at 371 (quoting State v. Allen, 69 S.W.3d 181, 190 (Tenn. 2002)) (internal quotation
marks omitted). In our view, the jury obviously relied heavily on Dr. Mileusnic’s testimony
in rendering its verdict. Indeed, Dr. Mileusnic’s testimony clearly was critical to the State’s
case. Because the admission of Dr. Mileusnic’s testimony was constitutional error which has
not been demonstrated to be harmless beyond a reasonable doubt, the Defendant must be
afforded a new trial. See id.

                                  Refusal to Sequester Jury

       The Defendant also argues that the trial court committed error in refusing to grant his
request for a sequestered jury. We disagree.

        Tennessee Code Annotated section 40-18-116 provides that, “[i]n all criminal
prosecutions, except those in which a death sentence may be rendered, jurors shall only be
sequestered at the sound discretion of the trial judge, which shall prohibit the jurors from
separating at times when they are not engaged upon actual trial or deliberation of the case.”
Tenn. Code Ann. § 40-18-116 (2003, 2006). Thus, this Court reviews a trial court’s ruling
on a motion to sequester for abuse of discretion. See State v. Larry Walcott, No. E2004-
02705-CCA-R3-CD, 2005 WL 2007203, at *6 (Tenn. Crim. App. Aug. 22, 2005), perm. app.
denied (Tenn. Feb. 6, 2006). This Court also has recognized that “‘the failure to sequester
a jury standing alone could rarely, if ever, constitute reversible error. A defendant would


                                             -62-
have to demonstrate actual prejudice or at least substantial likelihood thereof flowing from
the failure to sequester in order to warrant a new trial.’” State v. John Fred Howard, No.
W2008-00208-CCA-R3-CD, 2009 WL 1034506, at *8 (Tenn. Crim. App. Apr. 17, 2009)
(quoting United States v. Johnson, 584 F.2d 148, 155 (6th Cir. 1978)).

        In this case, the Defendant contends that the trial court’s refusal to sequester the jury
resulted in the jury’s being exposed to a prejudicial comment from the public. Specifically,
during one of the jury’s lunch breaks during the defense case, someone in the restaurant told
the jury, “Hang ‘em high.” One of the jurors reported this incident to the trial court upon the
jury’s return from lunch. The trial court responded by stating to the jury, “I trust from that
comment that that means nothing to you or any of you for the record.” The juror who
reported the incident responded, “Right.” The court continued: “And I trust that you all
didn’t talk about it or hear any news events or anything. How was the bus, pretty good?
Pretty good buses?” The juror responded, “Pretty nice.” Defense counsel said nothing
during this colloquy. When the trial court said, “Call your next witness,” the defense called
its next witness.

        Obviously, a trial court has no way of knowing that a member of the public will speak
inappropriately to a jury during a jury’s lunch break. The only way definitively to protect a
jury from such commentary is to order sequestration. Clearly, however, not every jury must
be sequestered. Rather, we trust trial courts to assess the likelihood of improper contact and
to render a decision regarding sequestration accordingly. Based upon the record before us,
we conclude that the trial court did not abuse its discretion in refusing to sequester the jury.

       Moreover, our research reveals that reviewing courts have found no abuse of
discretion by a denial of sequestration even where the jury is subsequently exposed to far
more egregious commentary than was present in this case. For instance, in State v. Andrews,
576 P.2d 857 (Utah 1978), a juror turned over his napkin during his lunch break to find “a
drawing of a stick figure hanging from a gallows and an inscription reading ‘Hang the
n*****s.’” Id. at 858. Upon learning of this incident, the trial court instructed the jury,
“Occasionally some foolish person will try to communicate with you. Please disregard the
communications from foolish persons and ignore the same . . . . Just ignore communications
from foolish persons.” Id. at 859. The Utah Supreme Court concluded that

       no actual prejudice was demonstrated showing that the jury was influenced
       adversely and there was no showing that sequestration would have eliminated
       this incident. Indeed though the jury was not generally sequestered, it was
       sequestered at this recess. We believe that the professional manner in which
       this unfortunate incident was handled by the jurors, the bailiff, and the Court
       negates the probability of actual prejudice.


                                              -63-
Id. See also Andrews v. Shulsen, 600 F.Supp. 408, 419 (D. Utah 1984).

        Similarly, in Tremayne J. Collier v. Anthony Hedgpeth, No. C 07-5964 SI (pr), 2009
WL 2460940 (N.D.Cal. Aug. 10, 2009), the defendant claimed that the trial court “violated
his right to a fair trial when it denied his motion to exclude [a juror] because of her exposure
to improper third-party communications.” Id. at *3. The juror had reported that two of her
co-workers had exhorted her to “[b]urn” the defendant and to “hang ‘em high.” Id. at *4.
The reviewing court set forth the following factors to be considered in determining whether
improper communications between jurors and third persons requires a guilty verdict to be
reversed: “[1] whether the unauthorized communication concerned the case, [2] the length
and nature of the contact, [3] the identity and role at trial of the parties involved, [4] evidence
of actual impact on the juror, and [5] the possibility of eliminating prejudice through a
limiting instruction.” Id. (citing Caliendo v. Warden of California Mens’ Colony, 365 F.3d
691, 697-98 (9th Cir. 2004), and Dickson v. Sullivan, 849 F.2d 403, 405 (9th Cir. 1988)).
Applying these factors, the court concluded that the defendant had not demonstrated that the
third-party communication had tainted the verdict and, therefore, denied habeas corpus relief.
Id. at *4-5.

       Here, it is unclear how many of the jurors heard the third-party communication.
Certainly, it was brief. There is nothing in the record to indicate that the speaker had any
connection whatsoever with the case. The colloquy between the trial court and the reporting
juror indicates that the juror was unaffected by the comment. Nothing in the record
demonstrates that any other juror was affected to the Defendant’s prejudice. Indeed, defense
counsel apparently discerned no need to pursue the matter further, either through additional
voir dire of the jury, by requesting additional instructions from the judge, or by requesting
a mistrial. Moreover, prior to the jury leaving for its lunch break, the trial court had
delivered the following admonishments:

       [T]hey’re taking you out to Cracker Barrel, enjoy that meal. And remember
       you can’t talk or discuss this case. I’m hoping the officers – let me just caution
       the officers a little bit. They’re going – listen to me a minute. They’re going
       to be – listen to me a minute. They’re going to be in the public and, you know,
       there’s publicity on this case, so just make sure that there’s no conversations
       in or around them. If you folks hear of somebody mention this case, please let
       these officers know so they can ask them politely not to do that or something.
       Just please, we’re getting close to home, let’s don’t do anything that might
       create a problem. So just – I know you won’t do that purposefully. It’s a little
       spooky sometimes when we expose you to the public again. So have a good
       lunch, okay?



                                               -64-
By reporting what it had heard during lunch, the jury demonstrated its commitment to follow
the trial court’s instructions. Additionally, this Court presumes that a jury follows its
instructions. See State v. Gann, 251 S.W.3d 446, 463 (Tenn. Crim. App. 2007).

       In short, we hold that the Defendant has failed to demonstrate that he suffered any
prejudice as a result of the trial court’s denial of his request that the jury be sequestered. The
Defendant is entitled to no relief on this basis.

       As to the Defendant’s assertion that, “[e]ven if it was not error to refuse to sequester
the jury initially in this case, the judge should have investigated more thoroughly the
comment made to the jury while at lunch,” we hold that this issue is waived. The defense
requested no additional questioning by the trial judge and did not request to conduct its own
questioning. This Court is not required to grant relief when a defendant “failed to take
whatever action was reasonably available to prevent or nullify the harmful effect of an error.”
Tenn. R. App. P. 36(a). The Defendant is entitled to no relief on this basis.

                                 Admission of Victim’s Bones

       The Defendant contends that the trial court committed reversible error when, over the
Defendant’s objection, it allowed the State to introduce through Dr. Marks some of the
victim’s bones, specifically her right humerus, sternum, and forearm . During a jury-out
hearing regarding the admissibility of these items, Dr. Marks demonstrated with the bones
several injuries that the victim had suffered. The trial court ruled that the bones were
admissible, noting that they were “clean” and that there was “nothing inflammatory” about
them. The trial court added that they

       are just dull, brown bones. She’s dead and everybody knows she’s dead. They
       know that they took these bones and did what they did. They’ve had pictures
       of everything. They’ve seen, and I think it’s just for their benefit and for your
       experts’ benefit, these bones are the best way they can go about that.

As the basis for its ruling, the trial court stated, “[B]ecause of the nature of this case, I think
that its probative value of it far outweighs any prejudicial [effect].” The court added, without
objection, “I will tell the jury that they do not have to pick them up, they don’t have to do
anything, they’ll be provided with gloves in the event they care to look at those things.”

       Generally, we review issues regarding the admissibility of evidence under an abuse
of discretion standard. State v. Looper, 118 S.W.3d 386, 422 (Tenn. Crim. App. 2003)
(quoting State v. James, 81 S.W.3d 751, 760 (Tenn. 2002)). We will find that a trial court
abused its discretion in admitting or excluding evidence “only when the trial court applied


                                               -65-
incorrect legal standards, reached an illogical conclusion, based its decision on a clearly
erroneous assessment of the evidence, or employed reasoning that causes an injustice to the
complaining party.” State v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008) (citing Konvalinka
v. Chattanooga-Hamilton Cnty. Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008)). See also
Looper, 118 S.W.3d at 422.

        As with all evidence, the threshold inquiry is the proffered proof’s relevance. See
Tenn. R. Evid. 401, 402. If the proof has “any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable than
it would be without the evidence,” then it is relevant. Tenn. R. Evid. 401. Here, the State
proffered the victim’s bones to demonstrate the injuries she had sustained and to explain how
the injuries were inflicted. We agree with the trial court’s assessment that the bones were
relevant.

        Even if relevant, however, evidence may be excluded “if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury.” Tenn. R. Evid. 403 (emphases added). Our supreme court has declared
that evidence is unfairly prejudicial when it has “[a]n undue tendency to suggest decision on
an improper basis, commonly, though not necessarily, an emotional one.” State v. Mitchell,
343 S.W.3d 381, 389 (Tenn. 2011) (quoting State v. Banks, 564 S.W.2d 947, 951 (Tenn.
1978)). Relevant evidence also may be excluded upon “considerations of . . . needless
presentation of cumulative evidence.” Tenn. R. Evid. 403; see State v. Farner, 66 S.W.3d
188, 210 (Tenn. 2001) (holding that trial court abused its discretion in admitting computer
animated visualization of accident, in part because the animation depicted the accident fifteen
times at various speeds). Additionally,

       Rule 403 is a rule of admissibility, and it places a heavy burden on the party
       seeking to exclude the evidence. Excluding relevant evidence under this rule
       is an extraordinary remedy that should be used sparingly and persons seeking
       to exclude otherwise admissible and relevant evidence have a significant
       burden of persuasion.

State v. James, 81 S.W.3d 751, 757-58 (Tenn. 2002) (citation and internal quotation marks
omitted).

        The Defendant contends that the bones were of a “horrific nature” and that their
admission was unnecessary in light of witness testimony, diagrams, and photographs. That
is, the Defendant argues that the trial court should have excluded the bones on dual bases:
(1) that they were unfairly prejudicial; and (2) that they were needlessly cumulative. We
disagree with both contentions.


                                             -66-
        First, our supreme court has ruled on multiple occasions that a victim’s skeletal
remains may be admissible when relevant. See, e.g., State v. Robinson, 146 S.W.3d 469,
489-92 (Tenn. 2004) (cleaned and reconstructed skull); State v. Pike, 978 S.W.2d 904, app.
925 (Tenn. 1998) (cleansed and reconstructed skull); State v. Cazes, 875 S.W.2d 253, 263
(Tenn. 1994) (cleaned and reconstructed skull); State v. King, 718 S.W.2d 241, 250-51
(Tenn. 1986) (skull fragments); State v. Morris, 641 S.W.2d 883, 888 (Tenn. 1982) (cleansed
skull). Clearly, a victim’s bones are not so inherently “horrific” as to require their exclusion
regardless of their relevance. In this case, the several bones admitted were years old. They
were dry and clean. Dr. Marks was able to show the jury several of the victim’s injuries by
pointing out fractures on the bones themselves. While there were also photographs of these
fractures, we recognize the value that a three-dimensional image has over a two-dimensional
one. Dr. Marks also was able to demonstrate how the victim’s arm bones fit together and
how some of her injuries may have been caused through the interaction of the bones. The
Defendant’s vague assertions that the bones were, in and of themselves, unfairly prejudicial
are unpersuasive. We hold that the trial court did not err in ruling that the probative value
of the bones was not substantially outweighed by the danger of unfair prejudice.

       We also uphold the trial court’s ruling that the admission of the bones did not
constitute the needless presentation of cumulative evidence. As set forth above, Dr. Marks
was able to demonstrate physically the victim’s injuries with the bones. He was able to show
the jury how the bones fit together and the physical mechanisms necessary to cause the
injuries. While Dr. Marks also utilized photographs, the bones provided him with, in
essence, a working model that he was able to manipulate and use to further explain his
testimony. In short, the bones were not merely cumulative to other proof in the record.
Rather, the bones constituted unique and highly relevant evidence. We hold that the trial
court did not err in failing to exclude the bones on the basis that they were needlessly
cumulative. The Defendant is entitled to no relief on this basis.

                             Admission of Autopsy Photographs

        The Defendant also contends that the trial court committed reversible error in
admitting two photographs taken during the second autopsy. We have examined these
photographs, the second of which is a close-up of the same area shown in the first, and
acknowledge that they depict discolored, decaying flesh and insects. Each photograph also
depicts a small, but deep, incision that is being held open with forceps. Over the Defendant’s
objection, the trial court ruled that the photographs were admissible because they were
relevant to proving the victim’s injuries and were not inflammatory, explaining that the jury
“kn[e]w this lady has been in the ground for a long period of time.” The trial court added
that “[t]here’s nothing, when you look at them that you would not expect to see.”



                                              -67-
       The two photographs were admitted during Dr. Mileusnic’s testimony,16 and she
explained that they were of an area near the victim’s buttocks. She testified,

        The muscle now is kind of brown, salmon-brown in color and that is because
        of prolonged postmortem interval and because of the preservation of the body
        with embalming. The clusters that we see here are actually the maggots, so
        unfortunately, it was one of the things that we noticed that the maggots did
        infest the body in that vault and changed appearance of the front of the body.
        The back of the body was not so bad. As a matter of fact, the embalming fluid
        was saturated – tiles [sic] of embalming fluid were enveloping the back of the
        body so a lot of soft tissue was still pretty well preserved on the back. As we
        went deeper into the back muscles, and that’s something Dr. Stephens already
        looked at to some extent, we just went a little bit deeper, we noticed a couple
        of other deeper focus of hemorrhage or bleeding under the skin and in the
        muscle.

Referring to the close-up photograph, Dr. Mileusnic testified, “this is the deep intramuscular
hemorrhage that we uncovered as we were cutting into the muscle in the area of the
buttocks.” She explained that this was a “deep force hemorrhage” and that it would not have
been visible on the victim’s skin by eyesight.

        The Defendant argues in his reply brief that a proper reading of State v. Banks, 564
S.W.2d 947 (Tenn. 1978), requires this Court to find reversible error in the trial court’s
ruling. We disagree. The Defendant reads Banks as “requir[ing] exclusion of gruesome
autopsy photographs unless the state establishes that the probative value and relevance
outweigh their inherent prejudicial effect,” labeling this test as “the opposite of the traditional
balancing test, which allows the admission of relevant evidence unless the danger of unfair
prejudice ‘substantially outweighs’ the probative value of the evidence.” This construction
of Banks overlooks the fact that Banks was decided before the adoption of the Tennessee
Rules of Evidence. What the Defendant is labeling as “the traditional balancing test” is, in
fact, the test set forth in Tennessee Rule of Evidence 403. The test set forth in Rule 403 is
the test applicable to this issue. Banks does not create an exception or a modification to the
balancing test of Tennessee Rule of Evidence 403.

       We acknowledge that the Banks court opined that photographs “made during or after
an autopsy are most often [excluded] because they present an even more horrifying sight and


        16
           Although we have concluded that Dr. Mileusnic may not testify for the State in this matter, we
address this issue in the event that, on retrial, the State establishes that the two photographs are admissible
through another witness.

                                                     -68-
show the body in an altered condition and because lay jurors normally do not have the
experience necessary to draw correct inferences from the appearance of internal organs.”
Banks, 564 S.W.2d at 951 (citations omitted). The Banks court also recognized, however,
that photographs of a victim’s corpse are generally “admissible in murder prosecutions if they
are relevant to the issues on trial, notwithstanding their gruesome and horrifying character.”
Id. at 950-51. The Banks court then adopted Federal Rule of Evidence 403 as the appropriate
test: “Although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice . . . .” Id. at 951. This is the same language
included in Tennessee Rule of Evidence 403, adopted after the Banks decision. Since Banks,
our supreme court has upheld a trial court’s admission of autopsy photographs on numerous
occasions. See, e.g., State v. Cole, 155 S.W.3d 885, app. 912-13 (Tenn. 2005); State v. Hall,
958 S.W.2d 679, 708-09 (Tenn. 1997); State v. Smith, 868 S.W.2d 561, 575-76 (Tenn. 1993).

        We acknowledge that the disputed photographs are unpleasant. However, they are
unpleasant primarily because of the length of time the victim had been deceased, not because
of the injuries being displayed. The jury knew that the Defendant was not responsible for the
discoloration, decay, or insects visible in the photographs. Therefore, the trial court did not
abuse its discretion when it concluded that the probative value of these photographs was not
substantially outweighed by the danger of unfair prejudice to the Defendant. Accordingly,
the Defendant is entitled to no relief on this issue.

                     Limitation on Cross-Examination of Dr. Stephens

        The Defendant contends that the trial court committed error when it prohibited the
Defendant from cross-examining Dr. Stephens about a reprimand she had received from the
State of Tennessee Department of Health regarding her Tennessee medical license and her
failure to indicate the reprimand on the curriculum vita (“CV”) which she filed with the
court. The State disagrees.

        The trial court allowed the defense to voir dire Dr. Stephens about this issue during
a jury-out hearing prior to beginning its cross-examination of her. She testified that she
began working at ETSU in the forensic pathology department on July 1, 1998, and stayed
until June 27, 2005. When asked about the circumstances of her leaving, she testified,

              I was offered a contract because the workload, since I was the only
       forensic pathologist doing it for quite a considerable period of time, my reports
       became very long on being finished. The department chairman offered me a
       contract for the next year with it written in there that I should finish ten reports
       a week but not stipulating how many autopsies I was to do at the same time.
       That was unacceptable to me so I looked elsewhere.


                                              -69-
              I did not accept the contract and I looked elsewhere.

She testified that she subsequently learned that she “was being investigated because reports,
photographs and tissues had been found at a home that [she] had vacated back in 1998.”
When asked to explain the written reprimand she received from the State of Tennessee, she
testified,

       The materials in question had been at the home. It was tissues from a dog
       autopsy on one of my pets. It was microscopic slides of peripheral blood
       smears from a laboratory with whom I had consulted after leaving Nashville
       and it was reports that I was given both by the Davidson County Medical
       Examiners Office and outlying county medical examiner reports that were
       autopsy reports and reports of investigation by county medical examiner that
       I had prepared on autopsies that I had done. Since Davidson County in 1994,
       under a new forensic pathologist medical examiner had breached my contract,
       the only place I had to meet with attorneys and prosecutors on cases that were
       going to court in those counties, was at my home. These reports were then
       returned to my husband at that time, Dr. Charles Harlan, who was at the time
       the Chief Medical Examiner for the State of Tennessee. By the time he
       vacated the home after I had vacated the home and divorced him, these reports
       were still in the home. The new tenant in the home found them, turned over
       the reports to Dr. Bruce Levy, who was in active attempt to remove my former
       husband’s medical license and he took those to the media.

        She stated that she received the notice that a hearing was being held on this matter
only two days before the scheduled hearing because she since had moved and the notice was
sent to her old address. She did not attend the hearing due to the short time frame. She
subsequently “accepted the reprimand, paid the fee, kept [her] Tennessee license until it was
due to be renewed and asked that it be retired.” By this time, she was working in Ohio and
had no plans to return to Tennessee. She added that, after the reprimand, she had to defend
her Ohio license. When the trial court inquired about the outcome of that proceeding, she
testified, “I still have my Ohio license. They said they would not pursue it further.” She
admitted that she had not placed the reprimand on the CV that had been filed as an exhibit
to her testimony. She explained the omission: “Because I was still licensed by the State of
Tennessee to practice until after the reprimand. I was the one that requested that my license
be retired.”

       The trial court ruled that the defense would not be allowed to explore this matter on
cross-examination because it was not relevant. The Defendant now argues that his ability to
cross-examine Dr. Stephens about the reprimand was crucial to impeaching her and that it


                                            -70-
was relevant because “it related to Dr. Stephens’ potential partiality and established that Dr.
Stephens had a motive to testify favorably for the state in order to ameliorate the effects of
her prior reprimand.” He asserts that “[t]he jury was entitled to know that Dr. Stephens had
been reprimanded by the same entity that was prosecuting [him] in order to evaluate whether
her testimony might be affected by a desire to mend her damaged professional reputation and
repair her prior relationship with the state.” We are not persuaded.

        We acknowledge, of course, that “[p]roof of bias is almost always relevant because
the jury, as finder of fact and weigher of credibility, has historically been entitled to assess
all evidence which might bear on the accuracy and truth of a witness’ testimony.” United
States v. Abel, 469 U.S. 45, 52 (1984). Thus, “[a] defendant’s right to examine a witness to
impeach his or her credibility or to establish that the witness is biased includes the right to
examine a witness regarding any promises of leniency, promises to help the witness, or any
other favorable treatment offered to the witness.” State v. Rice, 184 S.W.3d 646, 670 (Tenn.
2006). Here, however, the Defendant’s attempt to demonstrate that the reprimand issued
by the State against Dr. Stephens somehow predisposed her to bias in favor of the State rings
hollow. Dr. Stephens explained that she had chosen to retire her Tennessee medical license.
There is no proof in the record that she had any plans to seek the reissuance of her license.
On the basis of the record before us, it is entirely speculative that Dr. Stephens was biased
in favor of the State. Indeed, it appears from our review that Dr. Stephens might more
reasonably have been expected to show prejudice against the State. Accordingly, we hold
that the trial court did not abuse its discretion in ruling that the defense could not cross-
examine Dr. Stephens about the reprimand in an attempt to prove bias.

        The Defendant also argues that the trial court erred in not allowing him to cross-
examine Dr. Stephens about her failure to reflect the reprimand on her CV. The State’s brief
is silent on this point.

       Tennessee Rule of Evidence 608(b) provides for the circumstances under which a
party may cross-examine a witness about specific instances of the witness’ conduct “for the
purpose of attacking . . . the witness’s character for truthfulness.” However, the Defendant
has cited us to no authority for the proposition that an expert witness is “untruthful” when
he or she omits from his or her CV a reprimand that is not related to the litigation at issue or
that does not, in and of itself, impact the expert’s qualifications and/or credibility. Cf. Miller
v. SSM Health Care Corp., 193 S.W.3d 416, 419-21 (Mo. Ct. App. 2006) (trial court properly
allowed defense counsel to cross-examine plaintiff’s expert about censure he had received
for making false representations as an expert). Given Dr. Stephens’ explanation of the
problems that led to her reprimand, none of which were targeted at her technical ability with
performing autopsies, drawing conclusions therefrom, or making professional



                                              -71-
misrepresentations, we fail to see how its omission from her CV established that she had
been “untruthful.”

        In the context of expert witnesses, a CV is proffered in order to assist the trial court
in determining whether the expert is qualified to testify. See, e.g., Caviglia v. Tate, 363
S.W.3d 298, 302-03 (Tex. Ct. App. 2012); Lamela v. City of New York, 560 F.Supp.2d 214,
224 (E.D.N.Y. 2008). A reprimand that does not go to these qualifications, or to a matter at
issue in the litigation, is not required for this determination. Accordingly, we hold that the
trial court did not abuse its discretion in prohibiting the defense from cross-examining Dr.
Stephens about the reprimand and/or its exclusion from her CV. The Defendant is entitled
to no relief on this issue.

                                  Prosecutorial Misconduct

       The Defendant contends that he is entitled to a new trial based on improper closing
argument by the prosecutor. The Defendant avers that the prosecutor (1) asked the jury to
draw impermissible inferences about the veracity of the defense expert witnesses, particularly
by implying that their testimony was motivated by money; (2) misstated the medical evidence
about whether the victim had osteoporosis; (3) urged the jury to speculate about the victim’s
cause and manner of death; (4) expressed his beliefs and opinions about the credibility of
witnesses; and (5) appealed to the jury’s “passions and prejudices.” The State responds that,
because the defense lodged no contemporaneous objections, this Court may not grant relief
unless the alleged misconduct rises to the level of plain error.

        Although trial courts possess substantial discretion in determining the propriety of
closing arguments, they must restrict improper argument. State v. Hill, 333 S.W.3d 106, 130-
31 (Tenn. Crim. App. 2010) (citing Sparks v. State, 563 S.W.2d 564, 569-70 (Tenn. Crim.
App. 1978)). In making their closing arguments, both parties must be temperate and must
predicate their arguments on evidence adduced at the trial. State v. Sutton, 562 S.W.2d 820,
823 (Tenn. 1978). Additionally, summations “must be pertinent to the issues being tried.”
Id. (internal quotation marks omitted). Prosecutors, particularly, must proceed with caution
due to their special role in the criminal justice system. See Hill, 333 S.W.3d at 131 (quoting
Berger v. United States, 295 U.S. 78, 88 (1935)). “The State must refrain from argument
designed to inflame the jury and should restrict its commentary to matters in evidence or
issues at trial. More specifically, the prosecution is not permitted to reflect unfavorably upon
defense counsel or the trial tactics employed during the course of the trial.” Id. (citing
Dupree v. State, 410 S.W.2d 890, 891-92 (Tenn. 1967); Moore v. State, 17 S.W.2d 30, 35
(Tenn. 1929); Watkins v. State, 203 S.W. 344, 346 (Tenn. 1918); McCracken v. State, 489
S.W.2d 48, 50 (Tenn. Crim. App. 1972)).



                                              -72-
       Even if the record does demonstrate prosecutorial misconduct during closing
arguments, this Court will not grant a new trial on that basis unless it is “so inflammatory or
improper as to affect the verdict.” Hill, 333 S.W.3d at 131. In determining whether the
State’s argument improperly prejudiced the defendant and affected the verdict to the
defendant’s detriment, this Court considers the following factors:

       1. The conduct complained of viewed in context and in light of the facts and
       circumstances of the case.

       2. The curative measures undertaken by the court and the prosecution.

       3. The intent of the prosecutor in making the improper statement.

       4. The cumulative effect of the improper conduct and any other errors in the
       record.

       5. The relative strength or weakness of the case.

Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976); see also State v. Scarborough,
300 S.W.3d 717, 731 (Tenn. Crim. App. 2009).

        Initially, we note that the defense lodged a preliminary objection to the prosecution’s
closing argument. Prior to the beginning of the arguments, the defense advised the trial court
that, “[p]ursuant to Rule 29.1 on closing arguments, I do want, you know, I want to hear the
State’s whole theory in their [initial closing argument] so they don’t come back and argue
a different theory at the end.” The defense continued: “[A]ll of [the State’s] case should
come out in the first [closing argument] and we just ask that the Court follow Rule 29.1.
That would be the only reason I would object to anything . . . .” The court responded, “The
State should take notice of that. I think that’s how we do [it].” During the ensuing
arguments by the State, the defense lodged no objections.

        As our supreme court recently has observed, “it is incumbent upon defense counsel
to object contemporaneously whenever it deems the prosecution to be making improper
argument. A contemporaneous objection provides the trial court with an opportunity to
assess the State’s argument and to caution the prosecution and issue a curative instruction to
the jury if necessary.” State v. Jordan, 325 S.W.3d 1, 57-58 (Tenn. 2010). The failure to
lodge a contemporaneous objection results in a waiver of the issue on appeal. Id. at 58; see
also State v. Farmer, 927 S.W.2d 582, 591 (Tenn. Crim. App. 1996). We conclude that the
Defendant has waived this argument.



                                             -73-
      When an issue is waived on appeal, this Court nevertheless may grant relief on a
determination that plain error was committed. See Tenn. R. App. P. 36(b); State v. Adkisson,
899 S.W.2d 626, 636-38 (Tenn. Crim. App. 1994). We will grant relief for plain error only
when five prerequisites are satisfied:

       (1) the record clearly establishes what occurred in the trial court, (2) a clear
       and unequivocal rule of law was breached, (3) a substantial right of the
       accused was adversely affected, (4) the accused did not waive the issue for
       tactical reasons, and (5) consideration of the error is necessary to do substantial
       justice.

Banks, 271 S.W.3d at 119-20; see also Adkisson, 899 S.W.2d at 641-42. The Defendant
bears the burden of demonstrating plain error, and this Court need not consider all five
factors “when it is clear from the record that at least one of them cannot be satisfied.” State
v. Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007).

        Specifically, in this case, the Defendant argues in his brief that the State (1) attacked
the Defendant’s expert witnesses’ credibility on the basis that they were paid; (2) misstated
the evidence by averring that there was no medical proof of osteoporosis; (3) encouraged the
jury to speculate by arguing, “[w]hat happened between those two leading up to this
woman’s death, we don’t know, but there’s enough smoke for you to consider that there was
something there”; and (4) misstated Dr. Arden’s testimony about the victim’s bruises and
about the likelihood of her drowning. We carefully have reviewed the State’s closing
arguments at trial with these points in mind. While we are troubled by these aspects of the
State’s closing arguments, nevertheless, viewed in context and in light of the record as a
whole and our other holdings in this case, we conclude that consideration of these instances
of improper argument is not necessary to do substantial justice. Accordingly, the Defendant
is not entitled to plain error relief on this issue.

                                  Sufficiency of the Evidence

        The Defendant contends that the evidence is not sufficient to support his convictions
of first degree premeditated murder and insurance fraud. Our standard of review regarding
sufficiency of the evidence is “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). See
also Tenn. R. App. P. 13(e). After a jury finds a defendant guilty, the presumption of
innocence is removed and replaced with a presumption of guilt. State v. Evans, 838 S.W.2d
185, 191 (Tenn. 1992). Consequently, the defendant has the burden on appeal of
demonstrating why the evidence was insufficient to support the jury’s verdict. State v.


                                              -74-
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The appellate court does not weigh the evidence
anew; rather, “a jury verdict, approved by the trial judge, accredits the testimony of the
witnesses for the State and resolves all conflicts” in the testimony and all reasonably drawn
inferences in favor of the State. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, “the
State is entitled to the strongest legitimate view of the evidence and all reasonable or
legitimate inferences which may be drawn therefrom.” Id. (citation omitted). This standard
of review applies to guilty verdicts based upon direct or circumstantial evidence. State v.
Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (citing State v. Hanson, 279 S.W.3d 265, 275
(Tenn. 2009)). In Dorantes, our Supreme Court adopted the United States Supreme Court
standard that “direct and circumstantial evidence should be treated the same when weighing
the sufficiency of such evidence.” Id. at 381. Accordingly, the evidence need not exclude
every other reasonable hypothesis except that of the defendant’s guilt, provided the
defendant’s guilt is established beyond a reasonable doubt. Id.17 In any event, “[b]ecause
a defendant has been afforded due process only when the evidence is sufficient as to each and
every element of the crime, it is the responsibility of a reviewing court to carefully address
whether the State has met its burden of proof.” State v. White, 362 S.W.3d 559, 567 (Tenn.
2012).

                                  First Degree Premeditated Murder

        First degree premeditated murder is defined as the unlawful, intentional, and
premeditated killing of another. Tenn. Code Ann. §§ 39-13-201 (2003), -202(a)(1) (2003).
In the light most favorable to the prosecution, the proof in this case established that the
victim died of asphyxiation. The manner of death was either undetermined or homicidal.
Obviously, the jury determined that the Defendant killed the victim. We hold that, viewed
in the light most favorable to the State, the proof is marginally sufficient to establish that the
Defendant killed the victim. The Defendant admitted to being with the victim in the bathtub
before she was found unresponsive by her daughter. The victim was found with her head
above water, yet her lungs were filled with water. No drugs, other than a small amount of
alcohol, were found in the victim’s body. Dr. Stephens identified many bruises, both internal


        17
           The Defendant contends that Dorantes should not apply to his case because it was decided while
he was on trial. In Dorantes, the Tennessee Supreme Court specifically adopted the standard of review
applied by the federal courts in reviewing the sufficiency of circumstantial evidence. Dorantes, 331 S.W.3d
at 381. Prior to Dorantes, Tennessee’s courts had applied the Crawford standard of review when reviewing
the sufficiency of circumstantial evidence in criminal cases. See id. at 379-80 (citing State v. Crawford, 470
S.W.2d 610 (Tenn. 1971)). “The Crawford standard purportedly required the State to prove facts and
circumstances ‘so strong and cogent as to exclude every other reasonable hypothesis save the guilt of the
defendant, and that beyond a reasonable doubt.’” Id. (quoting Crawford, 470 S.W.2d at 612). We need not
decide this issue because, in our view, either standard of review would result in the same result under the
facts and circumstances of this case.

                                                    -75-
and external, on the victim’s body, as well as a fracture to the victim’s left upper arm and
petechial hemorrhages. Dr. Stephens attributed these injuries to blunt trauma inflicted at or
near the time of death. The Defendant’s testimony that he and the victim had intimate
relations in the bath shortly before her death permits the inference that these injuries were
inflicted after that encounter. Although far from overwhelming, under our standard of
review, this proof is sufficient to establish that the Defendant caused the victim’s injuries and
caused her to asphyxiate by drowning.

       However, to convict a defendant of first degree premeditated murder, the State must
establish sufficient facts to prove premeditation beyond a reasonable doubt.

       Premeditation is defined statutorily as follows:

       “[P]remeditation” is an act done after the exercise of reflection and judgment.
       “Premeditation” means that the intent to kill must have been formed prior to
       the act itself. It is not necessary that the purpose to kill pre-exist in the mind
       of the accused for any definite period of time. The mental state of the accused
       at the time the accused allegedly decided to kill must be carefully considered
       in order to determine whether the accused was sufficiently free from
       excitement and passion as to be capable of premeditation.

Id. § 39-13-202(d). Of course, an accused’s mental state at the time of the decision to kill
is often difficult to discern. Thus, Tennessee courts frequently look to the circumstances
surrounding the killing in order to determine if the proof is sufficient to support a jury’s
finding of premeditation. See State v. Jackson, 173 S.W.3d 401, 408 (Tenn. 2005); see also,
e.g., State v. Young, 196 S.W.3d 85, 108 (Tenn. 2006); State v. Vaughn, 279 S.W.3d 584,
594-95 (Tenn. Crim. App. 2008). Circumstances that may indicate premeditation include the
use of a deadly weapon upon an unarmed victim; lack of provocation by the victim; the
accused’s declarations of an intent to kill; the accused’s failure to render aid to the victim;
facts indicative that the accused had a motive to kill the victim; the particular cruelty of the
killing; the accused’s procurement of a weapon prior to the killing; preparations to conceal
the crime before the crime is committed; destruction or secretion of evidence of the killing;
and the accused’s calmness immediately after the killing. See State v. Thacker, 164 S.W.3d
208, 222 (Tenn. 2005); State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997); State v. Lewis,
36 S.W.3d 88, 96 (Tenn. Crim. App. 2000). Combined with other of these circumstances,
proof of repeated blows to the victim is also relevant to establish premeditation. See State
v. Millsaps, 30 S.W.3d 364, 369 (Tenn. Crim. App. 2000) (citing State v. Brown, 836 S.W.2d
530, 542 (Tenn. 1992)). Nevertheless, “a jury may not engage in speculation.” Jackson, 173
S.W.3d at 408; see also State v. West, 844 S.W.2d 144, 148 (Tenn. 1992) (“Although the jury



                                              -76-
is permitted to disbelieve the defendant’s testimony, it may not construct a theory based on
no evidence at all.”).

       Considering these factors in light of the proof in this case and the record as a whole,
we are constrained to conclude that the State failed to adduce sufficient proof to establish that
the Defendant killed the victim with premeditation.

        Reviewing the above list of factors supportive of an inference of premeditation,
clearly there is no proof in the record indicating that the Defendant procured or used a deadly
weapon on the victim; no proof that the Defendant ever declared an intent to kill the victim;
no proof of preparations to conceal the crime prior to committing it; and no proof that the
Defendant destroyed or secreted evidence of the killing. Contrary to failing to provide aid,
the proof established that the Defendant rendered aid to the victim and that he was distraught
while in the presence of Dr. Wiles as they performed CPR on the victim. There was no proof
of hostility between the Defendant and the victim. See Jackson, 173 S.W.3d at 401. The
record is also devoid of proof indicating that the Defendant was “sufficiently free from
excitement and passion” at the time the Defendant allegedly decided to kill the victim. Tenn.
Code Ann. § 39-13-202(d); see State v. Brandon Compton, No. E2005-01419-CCA-R3CD,
2006 WL 2924992, at *5 (Tenn. Crim. App. Oct. 13, 2006), perm. app. denied (Tenn. Feb.
26, 2007).

        The State argues that the proof established that the Defendant had a motive for killing
the victim: the recovery of insurance proceeds on the victim’s life. The State claims that the
Defendant’s motive is established because “[h]e was unemployed, and they were having
financial problems because of his unemployment.” We disagree that, even taken in the light
most favorable to the State, the proof established a motive that the Defendant killed the
victim for the life insurance proceeds. First, the only proof of the couple’s alleged financial
troubles came solely from the victim’s daughter, who was eleven years old at the time. She
testified only that the couple argued about money. This proof is simply too tenuous upon
which to base a finding of motive to kill.

       Second, although the Defendant was unemployed at the time of the victim’s death, the
proof in the record established that he had been receiving disability income as well as income
from several rental properties. The proof also established that the rental properties were
occupied by tenants and that the mortgages on these properties were current. Additionally,
the victim was employed and earning a significant income. The State offered no evidence
and there is no proof in the record that the couple’s combined income was not sufficient to
sustain their lifestyle or that they were otherwise in financial difficulties. While the
Defendant testified that the victim feared losing her job, this circumstance does not establish
the Defendant’s motive to kill the victim for the life insurance proceeds.


                                              -77-
        Third, the life insurance proceeds collected by the Defendant arose primarily from two
different sources: life insurance on the victim’s life provided by her employer, which the
Defendant had nothing to do with procuring; and life insurance obtained in conjunction with
refinancing the couple’s real estate investments.18 This latter insurance was obtained over
a year before the victim’s death. The primary insured was the Defendant. The proof
established that it was obtained at the victim’s request because of the Defendant’s prior
health problems. The life insurance on the victim was added as a rider because it was
inexpensive. There is no proof in the record that the Defendant obtained life insurance on
the victim’s life with an eye toward killing her and collecting the proceeds. Indeed, the proof
demonstrates little difference in this case from any other case in which a beneficiary recovers
life insurance proceeds following the decedent’s death under unexplained circumstances.
Thus, we hold that the proof in this case is not sufficient to establish a motive that the
Defendant killed the victim in order to collect the proceeds from her life insurance.

        The State also argues that the proof established that the Defendant was calm after
killing the victim, asserting that, after he drowned the victim, “he staged her body in the
bathtub, dressed himself, and went outside to wait for the victim’s daughter to arrive home
and find the body.” We are not persuaded. First, even if the Defendant “staged” the victim’s
body, there is no proof in the record as to the state of the Defendant’s mind as he was doing
so. This argument is analogous to an accused’s destruction or concealment of evidence of
the killing. This Court has recognized, however, that

        “[t]he concealment of evidence may be associated with the commission of any
        crime and the accompanying fear of punishment. One who kills another in a
        passionate rage may dispose of the weapon when reason returns just as readily
        as the cool, dispassionate killer. The fact that evidence is subsequently hidden
        from the police reveals nothing about a criminal’s state of mind before the
        crime.”

State v. Long, 45 S.W.3d 611, 621 (Tenn. Crim. App. 2000) (quoting West, 844 S.W.2d at
148).

        Second, the uncontradicted proof established that a significant period of time had
elapsed after the Defendant left the victim in the bathtub before the victim’s daughter arrived
home. This passage of time could have accounted for the Defendant’s apparent calm when
Tia initially saw him. We note that our supreme court has emphasized that an inference of


        18
         There was also life insurance on the victim through the Defendant’s employer, which he explained
was provided automatically. According to Lt. Sherfey’s testimony, the amount of money paid on this policy
was $26,000.

                                                  -78-
premeditation may be drawn from an accused’s calmness immediately after the killing. See
Bland, 958 S.W.2d at 660 (“Calmness immediately following a killing is evidence of a cool,
dispassionate, premeditated murder.”) (citing West, 844 S.W.2d at 148). Thus, this Court
has rejected a jury’s finding of premeditation when there is “no evidence in the record
regarding [the d]efendant’s behavior immediately following the crime,” explaining that
“[e]vidence of [the d]efendant’s conduct at more remote points of time after the homicide
is not directly probative of [the d]efendant’s mind set at the time of the killing.” Long, 45
S.W.3d at 622 (citing West, 844 S.W.2d at 148) (emphasis in Long). This accords with
common sense because calmness is an appropriate response to the successful completion of
a plan. When one kills while in the throes of anger or other passionate emotion, however,
calmness is far less likely to be the immediate response. In short, we hold that the proof is
not sufficient to establish that the Defendant was calm immediately after the killing.

        Finally, the State argues that the victim “was severely beaten, which shows the
particular cruelty of the killing.” The State’s theory at trial was that the victim’s injuries and
death were inflicted by the Defendant grabbing her arms from behind, twisting and fracturing
them, forcing the victim over the edge of the bathtub, thereby fracturing her sternum, and
holding her head under water, causing her to drown. While we certainly agree that such a
killing is violent and horrifying to the victim, the proof in this case does not support the
conclusion that the victim was “severely beaten” in the sense that the Defendant struck her
repeatedly. Cf., e.g., Brown, 836 S.W.2d at 543-44. Moreover, even if the victim’s death
was inflicted in a “particularly cruel” manner, this circumstance alone is not sufficient to
support a finding of premeditation.

       In sum, we hold that the State failed to adduce sufficient proof to establish that the
Defendant killed the victim with premeditation. See, e.g., State v. Ricky A. Burks, No.
M2000-00345-CCA-R3-CD, 2001 WL 567915, at *17-18 (Tenn. Crim. App. May 25, 2001)
(holding proof insufficient to establish premeditation, explaining that “[t]he absence of
planning activity and the absence of the events immediately preceding the killing militate
against proof of premeditation or that the [defendant] killed according to a preconceived
design”); State v. Patrick Wingate, No. M1999-00624-CCA-R3-CD, 2000 WL 680388, at
*6-7 (Tenn. Crim. App. May 25, 2000) (holding proof insufficient to support first degree
premeditated murder conviction although State adduced proof of financial motive, the
defendant’s display of no emotion upon leaving the scene, and the infliction of multiple
blows). Accordingly, we reverse the Defendant’s conviction of first degree premeditated
murder and dismiss that charge. Because we have found the proof marginally sufficient to
support a conviction of second degree murder, defined as a knowing killing of another,19 the
Defendant may be retried for second degree murder and any appropriate lesser-included


       19
            See Tenn. Code Ann. § 39-13-210(a)(1) (2003).

                                                 -79-
offenses. See State v. Maupin, 859 S.W.2d 313, 318 (Tenn. 1993). Principles of double
jeopardy prohibit the Defendant from being retried for first degree premeditated murder. See
id. at 317-18; Long, 45 S.W.3d at 622.

                                       Insurance Fraud

        As charged in this case, insurance fraud is committed when the accused intentionally
presents a false or fraudulent claim for the payment of loss upon a contract of insurance. See
Tenn. Code Ann. § 39-14-133 (2003). The Defendant was convicted of one count of this
crime based on his claim for proceeds under the life insurance policy issued by Fidelity &
Guaranty, which the Defendant and the victim purchased in conjunction with refinancing
their real estate investments.

       The Defendant argues that the State failed to adduce sufficient proof to support this
conviction because it introduced no claim document. However, we have carefully reviewed
Exhibit TT, which includes a copy of the insurance policy issued to the Defendant and the
victim; a copy of their application for the policy; and, contrary to the Defendant’s assertion,
a copy of a “Statement of Claim” dated July 20, 2004 and bearing the Defendant’s name.
Thus, the jury had before it proof that the Defendant made a claim for the payment of loss
upon a contract of insurance.

       Nevertheless, the claim provides that the victim’s cause of death was “asphyxiation
also with blunt trauma.” Accordingly, we fail to see how the claim was “false or fraudulent.”
The State argues in its brief that, “[p]ursuant to the terms of the insurance policy, . . . the
[D]efendant would only be reimbursed for an accidental death.” Thus, the State argues, the
Defendant’s claim was false or fraudulent because he knew that the victim’s death was not
accidental. However, we have carefully reviewed Exhibit TT and, other than an exclusion
for death by suicide within two years of the issue date, it does not appear that death benefits
were limited to accidental deaths.

       We recognize that, as a matter of public policy, murderers are prohibited from
recovering on the life insurance policies of their victims. See Tenn. Code Ann. § 31-1-106
(2007); Bolin v. Bolin, 99 S.W.3d 102, 105-07 (Tenn. Ct. App. 2002). However, the
Defendant was convicted of submitting a false or fraudulent claim for the payment of life
insurance proceeds on the victim’s life. Our review of the claim form reveals no false or
fraudulent statement by the Defendant. Accordingly, we hold that the State failed to adduce
sufficient proof to support the Defendant’s conviction of insurance fraud as charged in this
case. Therefore, we must reverse the Defendant’s conviction of insurance fraud and dismiss
the charge.



                                             -80-
                                         Conclusion

        We have determined that the trial court failed to exercise its mandatory duty to act as
thirteenth juror in this case; that the trial court committed reversible error in failing to
exclude Dr. Mileusnic as a witness for the State; that the State failed to adduce sufficient
proof to establish that the Defendant killed the victim with premeditation; and that the State
failed to adduce sufficient proof that the Defendant committed insurance fraud as charged
in this case. Accordingly, we must reverse the Defendant’s conviction of first degree
premeditated murder and remand this matter for a new trial on the charge of second degree
murder. We also must reverse the Defendant’s conviction of insurance fraud and dismiss that
charge.

       For the foregoing reasons, we reverse the judgments of the trial court and remand this
matter for further proceedings consistent with this opinion.




                                           _________________________________
                                           JEFFREY S. BIVINS, JUDGE




                                             -81-
