State v. Pack, E2011–02680–CCA–R3–CD.

• Decision Date: 27 September 2013
• Docket Number: No. E2011–02680–CCA–R3–CD.,E2011–02680–CCA–R3–CD.
• Parties: STATE of Tennessee v. Phillip PACK.
• Court: Tennessee Court of Criminal Appeals

421 S.W.3d 629

STATE of Tennessee

v.Phillip PACK.

No. E2011–02680–CCA–R3–CD.

Court of Criminal Appeals of Tennessee, at Knoxville.

May 21, 2013 Session.

Sept. 27, 2013.

Gregory P. Isaacs and Andrea B. Mohr (on appeal); and Keith Hatfield (at trial), Knoxville, Tennessee, for the appellant, Phillip Pack.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; William Paul Phillips, District Attorney General; and Michael O. Ripley and Leif Jeffers, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

JAMES CURWOOD WITT, JR., J., delivered the opinion of the Court, in which JOSEPH M. TIPTON, P.J., and CAMILLE R. McMULLEN, J., joined.

JAMES CURWOOD WITT, JR., J.

The defendant, Phillip Pack, appeals from his Campbell County Criminal Court jury conviction of second degree murder, claiming that the evidence was insufficient to support his conviction, that newly discovered evidence established his innocence, that the trial court erred by admitting certain evidence, and that the prosecutor made inappropriate remarks during closing argument. Because the evidence adduced at trial was insufficient to support the defendant's conviction of second degree murder, the conviction is reversed, and the charge is dismissed.

A Campbell County Criminal Court jury convicted the defendant of second degree murder based upon his providing methamphetamine to the victim, Jayne Love, whose skeletal remains were found near Eagle Bluff rock in Campbell County in September 2008.

At trial, Evelyn Herman, the victim's probation supervisor, testified that on October 10, 2006, she began supervising the victim's probation for convictions of passing worthless checks and driving under the influence. Ms. Herman described the victim as “compliant” and noted that she last saw the victim on April 30, 2008, when the victim reported as scheduled. Ms. Herman said that the victim missed a scheduled meeting on May 1, 2008, which was unusual.

David Madison testified that while hunting on Eagle Bluff on September 10, 2008, he discovered human skeletal remains “spread out” in the woods. Mr. Madison did not disturb the remains and telephoned the sheriff's department immediately. Later that same day, he accompanied officers to the area.

Lester Gaylor testified that while hunting below Eagle Bluff rock on March 23, 2009, he discovered “a pair of shoes and stuff” along with “a purple Crown Royal bag” that contained the victim's driver's license and other personal items. Mr. Gaylor said that he put the items back into the bag, put the bag back where he had found it, and contacted police. He accompanied officers to the area that same day.

Campbell County Sheriff's Department Detective Brandon Elkins testified that he accompanied Messrs. Madison and Gaylor to Eagle Bluff following their respective discoveries. Detective Elkins recalled that it took officers approximately 18 minutes to reach the site from the area where people generally park at Eagle Bluff rock. At the location of the skeletal remains, officers also found clothing and a necklace. Detective Elkins said that officers did not disturb the remains but instead contacted the medical examiner and Doctor Lee Jantz of the University of Tennessee Forensic Anthropology Team. Doctor Jantz and her team arrived on the same day as Mr. Madison's discovery. Detective Elkins assisted Doctor Jantz by obtaining the victim's dental records.

Detective Elkins testified that at the location discovered by Mr. Gaylor, officers found tennis shoes, one of which had a sock inside of it, along with the faceplate of an aftermarket compact disc player, and a Crown Royal bag. Inside the bag, he found the victim's driver's license, a set of keys, a pair of women's underwear inside a sealed baggie, and other miscellaneous items. Mr. Gaylor's discovery, he said, was “a little less than a mile” from where Mr. Madison found the skeletal remains.

Doctor J. Randall Pearce, a forensic odontologist and consultant to the University of Tennessee Anthropology Team, testified that after being contacted by Doctor Jantz, he x-rayed the skull discovered by Mr. Madison and compared the x-rays to the victim's dental records provided by the victim's dentist. Focusing particularly on three teeth in the upper right quadrant that had extensive fillings, Doctor Pearce was able to conclude that the skull belonged to the victim. He verified his findings by comparing the maxillary sinus and the root pattern of the teeth on the skull with those on the victim's x-rays.

Doctor Lee Jantz, coordinator of the Forensic Anthropology Center at the Universityof Tennessee, testified that she traveled with her team to Eagle Bluff rock on September 10, 2008, to examine the skeletal remains discovered by Mr. Madison. Doctor Jantz said that “based upon the condition of the remains, the slight greasy texture and the slight odor and the time of the year,” she estimated that the remains were “between three and six months postmortem,” placing the victim's time of death between March and June 2008. Doctor Jantz explained that she could not determine the cause of the victim's death because “[a]ll the soft tissue evidence [was] gone” but did say that she “did not see any evidence of trauma that's on the skeletal remains.”

Forensic testing conducted on the women's underwear discovered inside the sealed baggie established the presence of deoxyribonucleic acid (“DNA”) belonging to both the victim and the defendant. None of the other items tested, including the victim's clothing and shoes, bore evidence of blood, semen, or other bodily fluids. Both of the forensic scientists who testified at the defendant's trial clarified that they were not asked to make any finding relative to the cause of the victim's death.

Twenty-one-year-old Michael Wilson testified that he had known the defendant for approximately two years at the time of the 2010 trial and that he was with the defendant and the victim on the night that she died. Mr. Wilson testified that on a day in May 2008, the defendant, the defendant's brother, Russell Pack, and the victim came to the Grantsboro residence of Mr. Wilson's friend and “asked [him] if [he] wanted to ride with them.” Mr. Wilson said that he agreed “[j]ust to get out of the house.” He said that at that time he had “hung out with [the defendant] a couple times before.” After the trio picked up Mr. Wilson sometime after dark, they “rode around, then ... went up on the rock.” They traveled in the defendant's “little green Ford Ranger,” and Mr. Wilson rode in the back of the truck while the victim rode in the cab between the defendant and his brother. Mr. Wilson said that the group's purpose in traveling to Eagle Bluff rock was to “[j]ust do some Meth.” Mr. Wilson said that he had consumed “[t]hree or four” Oxycontins earlier in the day and, as a result, “was pretty messed up.”

Mr. Wilson testified that after they arrived at Eagle Bluff rock, the victim said “something about wanting to do a shot of dope.” At that point, the defendant asked Mr. Wilson to “hand him the bottle of water,” and Mr. Wilson “handed it to him through his window, [and the defendant] fixed a shot of dope up.” He described what he meant by “fixed a shot of dope”: “Poured ... the dope into a spoon, he drew back water in the syringe and put it on it—drew it back. And then I don't know ... if she shot it up herself or what.” Mr. Wilson testified that the victim “done” the shot prepared by the defendant but said that he did not see the victim inject herself and did not see anyone give her an injection.

Mr. Wilson said that he was familiar with the process for preparing methamphetamine to be injected because he had injected methamphetamine on one previous occasion. Mr. Wilson said that he did not consume any methamphetamine on that night but acknowledged that he was “pretty messed up” after ingesting the Oxycontin.

Mr. Wilson said that the methamphetamine had come from the defendant, speculating, “I guess he had it in his pocket.” He said that the drug was contained in a baggie and that the defendant prepared the injection in “a teaspoon.” Mr. Wilson estimated the amount of drugs included in the preparation, saying, “I'm gonna say it was at least a gram of Meth.” Mr. Wilson said that the amount, which filled the spoon, was atypically large. He stated that when he had injected methamphetamine, he had only used “between a quarter and a half a gram.” He testified that he had not seen anyone inject that large an amount of methamphetamine before. Mr. Wilson claimed that he told the defendant “that looked like an awful lot of dope,” and the defendant responded, “ ‘She can handle it.’ ”

Mr. Wilson said that he “remember[ed]” the victim “saying that her arm was numb and her chest was hurting” sometime after he saw the syringe prepared. At that point, according to Mr. Wilson, the defendant “told her if she was gonna be getting sick to get out of his vehicle.” Mr. Wilson said that he did not hear the victim say anything else. He said that the defendant, his brother, and the victim then exited the truck and “walked off into the woods.” Mr. Wilson said that he did not accompany the trio into the woods and instead, “sat in the back of the truck the whole time.”

Mr. Wilson testified that the defendant and his brother returned “30, 45 minutes” later, and the victim was not with them. He said that the defendant's brother told him to get into the front of the truck, and they drove away. He recalled that the defendant's brother told him that if he “ever said anything about it that [he'd] lay up there, too.” Mr. Wilson said that on the way down the mountain, they stopped, and the defendant “got out and picked up a duffel bag” that he placed in the bed of the truck. The men took Mr. Wilson “back to Grantsboro.” He said that they were on the mountain for approximately “an hour and 15 minutes.”

Mr. Wilson testified that he had...