State v. Benesch

STATE OF TENNESSEE v. EDWARD JOSEPH BENESCH II

No. M2015-02124-CCA-R3-CD

COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE

December 13, 2016 Session

August 25, 2017

Appeal from the Circuit Court for Dickson County

No. 22CC-2013-CR-234

Larry J. Wallace, Judge

The Defendant, Edward Joseph Benesch II, stands convicted by a Dickson County jury of aggravated child neglect and voluntary manslaughter, for which the trial court sentenced him to an effective term of eighteen years' incarceration. In this appeal as of right, the Defendant raises the following allegations of error: (1) that the trial court erred by denying the Defendant's motion to suppress his statement to police after he first requested an attorney and that request did not need clarification in the Defendant's opinion; (2) that the evidence was insufficient to support the Defendant's convictions because he did not intentionally neglect the victim and because the element of adequate provocation was absent; (3) that the trial court abused its discretion when it admitted photographs of the victim taken at the crime scene and during the victim's autopsy given their gruesome nature; (4) that trial court erred by allowing a paramedic to testify as an expert about the "significance of the force" that caused the victim's injuries; (5) that it was improper for the trial court to allow two witnesses, Shannon Edmonson and Shara Tisdale, to testify about the Defendant's alleged drug usage and drugs being found in his home; (6) that the trial court should not have allowed testimony from the Defendant's next-door neighbor that bore "no indicia of reliability and was completely unverifiable"; (7) that the trial court's refusal to allow the Defendant's "mitigation expert" to testify regarding how the Defendant told her he fell on the victim violated the Defendant's constitutional right to present a defense; and (8) that the trial court erred when it allowed the State to play, as a prior inconsistent statement, the video recording of Judith Lane's interview with law enforcement.¹ Following our review of the record and the applicable authorities, we must conclude that the evidence was insufficient to support the Defendant's conviction for voluntary manslaughter because the Defendant was notadequately provoked by the eighteen-month-old victim, and therefore, that conviction is reversed and vacated. However, because the proof is sufficient to support the lesser-included offense of reckless homicide, we remand this matter to the trial court for entry of an amended judgment reflecting a reckless homicide conviction and imposition of a consecutive, four-year sentence for that conviction. The Defendant's remaining issues do not entitle him to relief, and his conviction for aggravated child neglect is affirmed. Accordingly, the trial court's judgments are affirmed in part and reversed in part.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed in Part; Reversed in Part; Case Remanded

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which CAMILLE R. MCMULLEN and J. ROSS DYER, JJ., joined.

Olin J. Baker and William Walker Wade, Charlotte, Tennessee, for the appellant, Edward Joseph Benesch II.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Wendell Ray Crouch, Jr., District Attorney General; and Carey J. Thompson, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

This case arose following the death of the eighteen-month-old victim while she was in the exclusive care, custody, and control of the Defendant. The Defendant was charged with first degree felony murder in the perpetration of aggravated child abuse, first degree felony murder in the perpetration of aggravated child neglect, aggravated child abuse, and aggravated child neglect. See Tenn. Code Ann. §§ 39-13-202, -15-402. The Defendant proceeded to a trial by jury where the following evidence was adduced.

A. The Victim's Death and the Defendant's arrest. Ms. Kimberly Perez was the victim's aunt. Ms. Perez testified that the victim's mother was in jail in March 2013 and that, during this time, the Defendant was caring for the victim and the victim's three-year-old sister. Moreover, when the victim's mother was arrested, she was pregnant with her seventh child, and the Defendant was the father of this baby.

On Thursday morning, March 7, 2013, Ms. Perez was asleep on her couch when she was awakened by the Defendant, who was telling her that the victim was "sick" and "need[ed] to go to the hospital." Ms. Perez instructed the Defendant to bring the victiminside, and Ms. Perez went to use the restroom. When Ms. Perez returned to the living room, the Defendant "was at the door" with the victim "on his shoulder." Ms. Perez took the victim from the Defendant and laid her on the floor. At that time, the victim "was just limp and unresponsive," according to Ms. Perez. Ms. Perez tried to arouse the victim by talking to her and touching her, but Ms. Perez realized that the victim was not breathing. Ms. Perez explained the victim's state: "She wasn't moving. Her eyes had rolled back when I put her down and [were] kind of half open." When Ms. Perez "knew something was wrong" with the victim, she phoned 9-1-1 and began performing CPR on the victim while receiving instructions from the 9-1-1 operator.

According to Ms. Perez, the Defendant immediately left her home after handing the victim to her. The Defendant had also brought the victim's three-year-old sister with him, leaving her with Ms. Perez as well. Ms. Perez opined that the Defendant "left in a hurry" because she could "hear gravel spinning everywhere" in her driveway.

Ms. Perez testified that she had cared for the victim the weekend prior to these events. Ms. Perez stated that she did not notice any bruising on the victim's body during those several days, noticing only that the victim had a "bite mark on her" face that was supposedly "from another child" and "some discolorations on her face." Ms. Perez also read aloud from a statement she gave²:

Perez reiterated [the Defendant's] account that he tripped and fell on top of [the victim] the night before, then he noticed she was wheezing late last night. Perez stated all she knew when [the Defendant] brought her in was the baby was limp. Perez repeated when she had asked him why he had not called 9-1-1. [The Defendant] replied, because he was scared.

Emergency personnel and law enforcement responded to the call from Ms. Perez's residence of "a child who was not breathing." Officer Scott Anthony Hull, with the City of Dickson Police Department, arrived on the scene at approximately 7:43 a.m. and saw the victim lying on a blanket in the living room. Officer Hull checked for a pulse and signs of breathing but found none. He further described the victim's condition:

When I walked in, she was facing—her head was towards the TV, feet [were] towards the crib. . . . Behind one of her ears was a large knot, bruising. She had bruises all over her abdominal cavity, her sides, her back, deep purple bruises, and she was just—she was lifeless.

Thereafter, Officer Hull took over CPR from Ms. Perez.

When Officer Hull saw "red lights pull up to the house," he thought it was an ambulance, so he carried the victim outside. Officer Hull said that he "knelt down" and "continued CPR on the [victim]" but that, after observing "the first responders from the fire department . . . getting their stuff together," he "ran back into the house with [the victim] to keep her warm[.]" According to Officer Hull, he renewed CPR efforts once back inside until "some lady" replaced him.

Officer Hull also testified that, when he took the victim outside, she was "already rigid" and that she "wasn't limp like a normal child would be." Moreover, once outside, Officer Hull saw that the victim's bruises "were more extreme than what [he] thought they were" initially. On cross-examination, Officer Hull agreed that "over the course of time as a body sits and cools, it begins to get a purplish color[.]"

Heather Bradley testified that she was a paramedic with the Dickson County Ambulance Service and that she responded to the call at Ms. Perez's residence that morning. Ms. Bradley stated that, when she arrived, the victim "was unresponsive, cold to the touch, apnea, [and] pulseless." Ms. Bradley also noticed "multiple bruises" on the victim's head, face, chest, back, legs, and arms. Furthermore, Ms. Bradley observed Officer Hull and "two first responders" with the fire department attempting "some treatment or resuscitation efforts" on the victim. Ms. Bradley then helped place an automated external defibrillator device ("AED") on the victim. However, the AED did not detect a heartbeat, according to Ms. Bradley, so "[n]o shock was advised" and no further resuscitation attempts were performed.

Ms. Bradley explained that, during this time, her "partner had been on the phone with the doctor who gives us permission to stop if [her partner] has painted the picture for [the doctor] that there [are] no signs consistent with life." Based upon her partner's representations to this doctor, the doctor pronounced the victim dead on the scene. Ms. Bradley informed that, had she been the one on the phone with the doctor instead of her partner, she would have reported that the victim "was not breathing" and "there was no pulse" and would have described "the bruising and discoloration that appeared to be on [the victim's] body." Ms. Bradley characterized this bruising as "significant."

That same morning, Officer Jerry Booker, with the Dickson County Sheriff's Office, went looking for the Defendant at the Defendant's home on Rocky Road. Officer Booker arrived at 11:33 a.m. and knocked on the door, but no one answered. According to Officer Booker, while he was standing at the Defendant's front door, he could smell "a typical household cleaner smell" that "was a little stronger ....