State v. Lowe
| Decision Date | 12 July 2016 |
| Docket Number | No. M2014-00472-CCA-R3-CD,M2014-00472-CCA-R3-CD |
| Parties | STATE OF TENNESSEE v. LINDSEY BROOKE LOWE |
| Court | Tennessee Court of Criminal Appeals |
Appeal from the Criminal Court for Sumner County
The parents of the defendant, Lindsey Brooke Lowe, discovered the body of one of her newborn twins in a laundry basket in her bedroom. A second deceased newborn was also found in the basket, and the defendant gave an incriminating statement to police. A jury convicted the defendant of two counts of first degree (felony) murder, two counts of first degree (premeditated) murder, and two counts of aggravated child abuse, a Class A felony. The trial court merged the first degree murder convictions for each victim. The defendant received a life sentence for each first degree murder conviction and a twenty-five year sentence for each aggravated child abuse conviction, all to be served concurrently. On appeal she asserts that the evidence was insufficient to support the verdicts; that the trial court erred in not suppressing her statement; that the trial court was biased; that the trial court denied her the right to testify in her defense; that the burden of proof was shifted to the defense; that her motion for a change of venue should have been granted; that the physical evidence obtained through a search warrant should have been suppressed; that the trial court erred in excluding expert testimony regarding her ability to waive her right to remain silent; that the trial court erred in various other evidentiary decisions; and that she is entitled to relief under the theory of cumulative error. After a thorough review of the record and the applicable law, we affirm the judgments of the trial court.
David L. Raybin (on appeal), Nashville, Tennessee; John Pellegrin (at trial and on appeal), Gallatin, Tennessee; and James Ramsey (at trial), Gallatin, Tennessee, for the Appellant, Lindsey Brooke Lowe.
Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Senior Counsel; Lawrence Ray Whitley, District Attorney General; and C. Ronald Blanton, Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINIONThe defendant was interviewed by police and ultimately gave a statement in which she admitted placing her hand over each baby's mouth in order to stifle the child's cry. Prior to trial, the defendant moved to suppress her statement.
On November 5, 2012, the trial court held a hearing during which the State presented the testimony of Detective Steve Malach, who had obtained the defendant's statement. The defense focused primarily on showing that the Miranda warnings given by Detective Malach were not adequate. The defendant also tried to introduce the testimony of Dr. Pamela Auble, a forensic psychologist who had examined the defendant. The State objected to the testimony, and the trial court ultimately excluded it because Dr. Auble had not reviewed the interview between the defendant and Detective Malach. Defense counsel requested to make an offer of proof in question and answer form, but the trial court refused, concluding that the statements of defense counsel regarding the potential testimony, along with Dr. Auble's report, constituted a sufficient offer of proof. The defendant was permitted to call Dr. William D. Kenner to testify regarding the defendant's susceptibility to coercion. The trial court denied the motion to suppress, finding that the defendant was not in custody, that the Miranda warnings were adequate, and that her statements were knowing and voluntary. The defendant moved for an interlocutory appeal of the denial of the motion, which was likewise denied. In denying the interlocutory appeal, the trial court took exception to the defendant's summary of the proceedings on the motion to suppress. This court denied an application to review the denial of the motion to suppress. The trial court's comments at the hearing on the motion for interlocutory appeal then became the basis of a motion to recuse, which the trial court heard and denied on January 22, 2013. The denial of the motion to recuse was likewise appealed to this court, and this court affirmed the trial court's decision shortly before the trial began on March 11, 2013. State v. Lindsey Brooke Lowe, No. M2013-00447-CCA-10B-CD, 2013 WL 706318, at *5 (Tenn. Crim. App. Feb. 26, 2013).
The defense also moved to suppress the physical evidence obtained from the defendant's home pursuant to a search warrant. Detective David Harrell testified at the hearing that he had prepared a search warrant and that he took it to Judge C.L. Rogers at 11:35 a.m. on September 14, 2011. The judge signed three copies in Detective Harrell's presence. One was returned to the judge, one left at the home, and one executed and put under seal. The copy under seal showed it was signed at 11:35 p.m., while the copies left in the home and kept in the possession of the judge both showed they were signed at 11:35 a.m. Detective Harrell testified he executed the warrant at 12:34 p.m. Judge Rogers testified that writing "p.m." on one warrant was a clerical error.
At the motion to suppress, the trial court found that Tennessee Rule of Criminal Procedure 41(d) was violated because the three copies of the warrant were not identical. However, the trial court concluded that the discrepancy was an unintentional clerical error, that the warrant was otherwise in compliance with constitutional principles, and that Tennessee Code Annotated section 40-6-108 (2010) acted to preserve the warrant. The trial court stated, "If there was ever a case for a good faith mistake or exception, this is the case," and the court denied the motion to suppress the fruits of the search warrant.
Prior to trial, the trial court also heard the defendant's motion for a change of venue. Defense counsel's legal assistant testified regarding certain internet searches she had performed that retrieved a wide variety of media coverage of the issue. Many of the comments to the news articles were vitriolic, vicious, and threatening. Rick Berry, an investigator hired by the defense, contacted persons from the county's jury panel lists from four months in early 2012. He discovered that seventy-seven percent of those who responded had heard about the deaths of the twins, and most of them had received their information from the media. Thirty-six percent of those who had heard about the deaths believed that the defendant was guilty of murder, and twenty-nine percent were closely connected to law enforcement. Of those that responded, forty-five percent felt it would be fairer for her to be tried outside the county. The trial court found that, although publicity around a trial was not a new phenomenon, "this social media, the threats, the hostility from these sites is something new." The trial court stated that it could, however, control the jury that actually sat to try the case, and it took the motion under advisement until after the panel had been subject to voir dire by the attorneys, noting that several of the factors in State v. Hoover, 594 S.W.2d 743, 746 (Tenn. Crim. App. 1979) related to the actual jurors seated and the potential jurors called.
The record reflects that the defense and prosecution worked together to create a questionnaire to identify potential bias in the jury venire. In an attempt to ensure an impartial jury, the trial court arranged for summonses to be sent to approximately four hundred potential jurors and for the jury to be impaneled over a period of two daysinstead of one. During an extensive voir dire process, the trial court excused sixteen jurors for cause. The State used four of its eight peremptory challenges, and the defendant used seven out of eight. At the end of voir dire, the trial court denied the motion for a change of venue, and the case proceeded to trial.
At trial, the State presented evidence tending to show that the defendant became pregnant after having sexual contact with a man who was not her fiancé, that she hid the pregnancy because of a fear of its social consequences, and that she suffocated her children to keep her family from discovering the births. The defendant presented evidence tending to show that she became pregnant after being sexually assaulted, that she did not, due to a preexisting mental defect, realize that she was pregnant at any time during the pregnancy, that giving birth unassisted affected the defendant's mental state and physical capabilities, and that the deaths of the children were not intentional or premeditated.
The defendant grew up in Hendersonville, Tennessee, and lived with her mother, father, and younger sister. The defendant's father and sister testified that she attended a private religious school and was involved in numerous activities such as swimming and dance. The defendant was close with her family and was always well-behaved and "meek." In 2005, while the defendant was away at college, the defendant's mother, who had previously run the home in addition to working, developed a benign brain tumor the size of an orange. After surgery, the defendant's mother underwent a change in her personality. She was no longer able to plan, clean, organize, or make financial decisions, and she experienced emotional highs and lows. The defendant tried to fill her mother's place by cleaning, getting groceries, and doing other domestic tasks when she came home from college on the weekends. The defendant had become engaged to Jonathan Brooks at college, but after she graduated in 2008, she moved into her parents' house to assist her mother. The defendant remained engaged to her fiancé, but the two lived in separate cities both before and after his graduation in ...
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