State v. Garrison

STATE OF TENNESSEE v. WENDI NICOLE GARRISON

No. E2011-00496-CCA-R3-CD

COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE

October 25, 2011 Session

Filed July 27, 2012

Direct Appeal from the Criminal Court for Carter County

No. S17724

Lynn W. Brown, Judge

A Carter County Criminal Court Jury convicted the appellant, Wendi Nicole Garrison,¹ of the second degree murder of the victim, Joshua Perry. The trial court imposed a sentence of sixteen years in the Tennessee Department of Correction. On appeal, the appellant argues that the evidence is insufficient to sustain her conviction, that the trial court erred in denying her request to charge assisted suicide as a lesser-included offense of second degree murder, and that the trial court erred in denying her request for a jury instruction regarding assisted suicide as a defense to second degree murder. Upon review, we affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which D. KELLY THOMAS, JR., J., joined. JERRY L. SMITH, J., not participating.

Stacy L. Street, Elizabethton, Tennessee, and James T. Bowman, Johnson City, Tennessee, for the appellant, Wendi Nichole Garrison.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; and Al Schmutzer, Jr., District Attorney General, Pro Tempore, for the appellee, the State of Tennessee.

OPINION

I. Factual Background

The appellant was convicted of the second degree murder of the victim, but on directappeal this court reversed the conviction based upon the trial court's error to charge the jury on the lesser-included offense of voluntary manslaughter. See State v. Wendi Nicole Garrison, No. E2007-02895-CCA-R3-CD, 2009 WL 2501994, at *1 (Tenn. Crim. App. at Knoxville, Aug. 14, 2009). This appeal resulted from the retrial on the charge of second degree murder.

Nora Davis testified at trial that in 2005, the appellant and the victim lived together in a residence she rented to them next door to her own home. In the early morning hours of March 25, 2005, the appellant rang Davis' doorbell. Davis answered the door, and the appellant, who was "crying and carrying on," told Davis that she had shot the victim. Davis called 911 to ask for help.

A tape recording of the 911 telephone call was played for the jury. During the call, the appellant informed the 911 operator that the victim told her that she could not leave unless she killed him. The appellant said that the victim put a "muzzleloader" up to his head and that "he said here just pull the trigger and I said you're such a f[***]ing asshole and I just pulled the trigger." She said that the gun had not had a "cap" in it since deer season. She told the operator that she believed the victim was dead because he was lying in the floor, he was unresponsive, and there was "brain matter" everywhere. The appellant repeatedly said that the victim told her to pull the trigger, she did, and the victim was dead.

Carter County Sheriff's Deputy Patrick Shawn Johnson, was one of the first officers who responded to the scene. He went into Davis' residence and saw the appellant sitting at the kitchen table. She was crying, distraught, and wiping her tears with her hands. The appellant said that she and the victim had argued all night, that she had wanted to leave, and that the victim would not let her. The victim retrieved the appellant's .50 caliber muzzleloader rifle and told her that she would have to shoot him before she could leave. The victim said that "[s]he pulled the trigger and now he's dead." The appellant said that she had the muzzleloader rifle for hunting and that there had not been a "cap" on the gun for a long time. Deputy Johnson saw blood, tissue, and brain matter on the appellant's left side from her hair to her pants leg.

Tennessee Bureau of Investigation (TBI) Agent Shannon Morton and Carter County Sheriff's Deputy Todd Hamm went to the appellant's residence to examine the crime scene. They found the body of the victim on the living room floor in front of a loveseat. Blood, tissue, bits of skull, and pieces of brain matter were scattered around the room. Agent Morton found the weapon that had been used to kill the victim, a .50 caliber muzzleloader rifle. A "fanny pack" containing supplies for the muzzleloader rifle was "looped" in the victim's fingers. Pieces of a cellular telephone that had been burned were found in the fireplace.

Agent Morton did not see any injuries to the appellant. However, after the appellant was arrested, she complained of an injury to her thumb and was taken to the hospital. Dr. Randall Lee Belt, who treated the appellant at Sycamore Shoals Hospital, said that the appellant had a bruise and a sprain to her right thumb and a small bruise on her forearm. Dr. Belt said that the appellant had no further injuries.

Over an hour after the shooting, Agent Morton had a gunshot residue test performed on the appellant's hands to see if she had fired a weapon. The appellant suggested that Agent Morton also have the test performed on the victim. She stated that "she thought that he had helped pull the trigger." TBI Agent James Russell Davis, II, examined the results of the test that was performed on the victim and determined that the victim had "fired, handled, or was near a gun when it was fired." Agent Davis said that the test on the appellant was inconclusive but could not eliminate the possibility that she fired a gun. Agent Davis explained that the length of time between the shooting and the test, as well as the appellant's wiping tears with her hands, could have affected the results of the test.

TBI Agent Alex Brodhag testified that to arm the muzzleloader rifle, gunpowder or pellets made of compressed gunpowder are poured down the barrel, then a bullet is seated on top of the gunpowder and is held in place by a "209 shot shell primer" or "cap." When the safety is turned off, the weapon is ready to fire. Agent Brodhag was unable to conclusively state that the bullet fragments found at the scene had been fired from that weapon; however, he stated that the type and size of the rifling marks on the fragments were consistent with the muzzleloader rifle.

TBI Agent Charles Hardy stated that he examined the muzzleloader rifle and that he found nothing of significance on the right side of the weapon. However, on the left side of the rifle, he found human blood along the barrel, on the stock, and on the scope. Agent Hardy also examined the clothes the appellant was wearing at the time of the shooting. He noticed the highest concentration of "high velocity impact staining on the left arm" of her shirt and some additional staining to the shoulders of her shirt. The highest concentration of staining on her pants was located on the outside seam of the left leg. Agent Hardy explained that "the amount of high velocity impact spatter on the left sleeve is more consistent with that area of the body being closer to the source of the blood after the shot was fired." He further explained that the appellant had "to be within three to five feet [of the victim] to have the type of staining on her shirt and the weapon to be present."

During the autopsy, Dr. William McCormick discerned that the victim's death was the result of "a massive lethal brain wound" that was caused by a single gunshot wound to the head. He said that the "whole back of the head was gone" and that a large portion of the victim's brain and skull had been "thrown out of the back of the head." Dr. McCormicknoted that in addition to the "massive damage to the [victim's] face, head, [and] the eye socket," the victim also had some scratch marks on the right side of his neck, a bruise on his right hand, and a bruise on his left shoulder.

The appellant testified that she was a hairdresser and that she graduated high school in 1990. She said that in 1998, she joined the army and went through six weeks of basic training, during which she received weapons training. She was trained on an "M-16 A2" but not on a muzzleloader rifle. She said she was also trained in "body to body" combat with people larger than she was. She was honorably discharged after she fractured her pelvic bone. In 2001, the appellant joined the army reserves where she again trained in the use of a "M-16 A2."

She said that she met the victim in June 2004 at a neighbor's house. The victim, who was five years younger than the appellant, told her that he was married but was getting a divorce. Although the appellant was initially reluctant, the two began having a relationship.

The appellant said that the victim moved in with her in July or August 2004. The appellant said that one weekend in August 2004, the victim repeatedly assaulted her by choking her and banging her head into the floor. Police arrived and took the victim into custody. The following Monday, the victim got out of jail, and the appellant took out an order of protection against the victim. However, within hours of obtaining the order, she contacted the victim. The victim promised he would not hurt her again, so she had the order of protection dismissed and refused to prosecute the victim for the assault.

Shortly after the court proceedings, the victim and the appellant decided to have a baby. The appellant acknowledged that the victim was still married and had filed for bankruptcy. Around Christmas 2004, they learned that the appellant was pregnant. In January, they began moving into the house beside Davis, but the appellant also kept her apartment.

The appellant said that before the move was completed, she and the victim had a disagreement during which the appellant threatened to call 911. The victim left, but he punched or kicked the door after the appellant locked it. Afterward, the victim called the appellant and threatened to kill her, the baby, and any man who came into the appellant's life. The appellant told him to...