State v. Shuck

• Decision Date: 06 October 1997
• Citation: 953 S.W.2d 662
• Parties: STATE of Tennessee, Appellant, v. Merlin Eugene SHUCK, Appellee.
• Court: Tennessee Supreme Court

Page 662

953 S.W.2d 662

STATE of Tennessee, Appellant, v. Merlin Eugene SHUCK, Appellee.

Supreme Court of Tennessee at Knoxville.

Oct. 6, 1997.

John Knox Walkup, Attorney General and Reporter, Michael E. Moore, Solicitor General, Gordon Smith, Associate Solicitor General, Michael J. Fahey, II, Assistant Attorney General, Nashville, Alfred C. Schmutzer, Jr., District Attorney General, James B. Dunn, Assistant District Attorney General, Sevierville, for State/Appellant.

Charles R. Terry, Denise S. Terry, Morristown, Thomas F. Bloom, Nashville, (Appeal Only), for Defendant/Appellee.

OPINION

DROWOTA, Judge.

The defendant, Merlin Eugene Shuck, was convicted of one count of solicitation to commit first degree murder and two counts of solicitation to commit especially aggravated kidnaping. The defense theory at trial was entrapment, and in support of that defense, Shuck sought to introduce expert testimony from a neuropsychologist that he had suffered a cognitive decline and significant deterioration of his cognitive abilities which rendered him more susceptible to inducement than the average person. The trial judge refused to admit the testimony finding that it would invade the province of the jury. Concluding that the trial court abused its discretion in excluding the testimony, the Court of Criminal Appeals reversed the convictions and ordered a new trial. Thereafter, we granted the State permission to appeal to consider whether expert psychological testimony about a defendant's susceptibility to inducement is admissible under Tennessee law to establish entrapment. ¹

We conclude that expert testimony about a defendant's susceptibility to inducement generally is admissible if it "will substantially assist the trier of fact to understand the evidence or to determine a fact in issue," ² and is not objectionable merely because the expert's opinion embraces an ultimate issue to be decided by the trier of fact. ³ Though the admissibility of expert testimony in a specific case is a decision which rests in the discretion of the trial judge, that decision may be overturned on appeal upon a showing of abuse of discretion. For the reasons that follow, we conclude that the trial court abused its discretion by excluding the expert testimony proffered by the defendant and that the error was not harmless. Consequently, we affirm the judgment of the Court of Criminal Appeals reversing the convictions and remanding for a new trial.

BACKGROUND

The defendant, Merlin Shuck, has worked as a practicing veterinarian in Morristown for over thirty years and has been very active in civic and community affairs. In January of 1992, Shuck hired Kathy Waters as an assistant in his veterinarian clinic. Waters had moved to Morristown from New York in 1991 with her husband, David Waters. Prior to moving to Tennessee, Kathy Waters had been successfully treated for a cocaine addiction, but she had an alcohol problem while she was employed by the defendant.

During her employment, the defendant and Ms. Waters developed a relationship beyond that of employer-employee. Though the precise nature of their relationship is not clear, the record shows that the defendant, while attempting to help Waters with her drinking problem, tried to get her involved in his church, persuaded her to be counseled by his pastor, provided her with airline tickets to Florida to seek a reconciliation with her former husband and children, assisted her in securing an apartment after she left David Waters, and provided her with money to buy furniture and pay debts.

The defendant tried to manage Waters' personal relationships as well. Witnesses for the State testified that when Waters missed work because of sickness, Shuck would go to her apartment, walk in unannounced, and berate Waters and her husband for consuming alcohol. When Shuck learned that Waters had developed a social relationship with Robert Cadman after leaving her husband, he continued the unusual conduct by entering their apartments unannounced, and berating the two of them. When Waters left his employ, the defendant closely monitored her activities and repeatedly contacted her subsequent employers and acquaintances demanding to know her whereabouts. Shuck even asked the local cab company to refuse to transport Waters either to Cadman's apartment or the liquor store. According to the owner of the cab company, Shuck, who was a city councilman, threatened her with political reprisal if the company provided Waters with transportation without his knowledge. On one occasion, when he was unable to locate Waters, Shuck posted "Fugitive-at-Large" posters, and when he found her, Shuck locked Waters in his clinic so she would "dry-out."

The investigation which ended with the indictments for solicitation began as a result of an incident on May 18, 1993 when Shuck broke into Cadman's apartment, and was in the process of forcibly removing Waters, when Cadman telephoned Emergency 911 for assistance. The Morristown Police Department initiated an investigation, taking a statement from both Waters and Cadman about the incident and various other alleged physical assaults by the defendant upon Waters. At that time neither Waters nor Cadman wished to prosecute the defendant.

Because Shuck was a city councilman, the investigation was transferred to the local district attorney's office at the end of May of 1993. An investigator was assigned to the case, but discovered no additional evidence until the end of the summer when the investigator first spoke with Cadman, who gave a detailed, three-page statement accusing the defendant of assault, breaking and entering, and abuse of power. Thereafter, the investigator visited Waters in the Knox County jail, and was told that Judy McDaniel, who was employed by the defendant, would have further information about the incidents.

In the meantime, the allegations and events had come to the attention of Lawrence Myers, editor of a local newspaper. Myers interviewed Waters and Cadman and, beginning on August 24, wrote a number of articles about the situation. In the articles, Myers printed a transcript of the 911 telephone call and recounted the allegations which Waters and Cadman had made against Shuck.

The official investigation continued, and on September 6, the investigator went to McDaniel's home and took a statement from her concerning Waters' allegations. Sometime after the interview, McDaniel notified the investigator that the defendant had made statements which could be construed as threats against Waters. McDaniel thereafter agreed to wear a body wire to her job each day at the defendant's clinic.

Over a period of approximately five weeks, McDaniel taped various conversations at the clinic. On December 1, McDaniel informed the investigator that the defendant, in an unrecorded conversation, had sought her help and offered to forgive a debt she owed him if she would agree to help him get rid of Kathy and David Waters. As instructed by the investigator, McDaniel engaged the defendant in a taped conversation in which he confirmed the offer the next day.

Four days later, on December 6, the investigator and McDaniel met with officials from the Tennessee Bureau of Investigation (T.B.I.), and arranged for an undercover T.B.I. agent to pose as a hit man in a meeting that McDaniel was to set up with the defendant. McDaniel returned to work and offered to set up a meeting between the defendant and the hit man, who she portrayed as a friend of hers in Cocke County. The defendant discussed the possibility of the meeting with varying degrees of certainty. At one point, he told McDaniel that he "may need" the hit man but was not sure when. The defendant, thereafter, increased the number of people he wanted killed, adding Lawrence Myers as a third target, but he lowered the price he was willing to pay McDaniel for her "help." At another point, the defendant indicated that he would do the crime himself. A short time later he expressed renewed interest in the meeting, but said he was too busy to discuss the possibility of the meeting that week, and suggested that the "hit man" call next week. The defendant said that if a meeting or agreement could not be worked out "that's fine, no problem."

The defendant told McDaniel on December 15, that it was a bad time and he could not meet that day. The next day, Thursday, December 16, the defendant said, "let's see what the situation is. He might not want to do it under my requirements." Shuck, on one occasion, said the hit man "may not want to do it that way" and "that's all right." However, later that same day, in a conversation that was not tape-recorded, the defendant agreed to meet with the "hit man" that evening, Thursday, December 16, 1993. As arranged, the defendant met with the undercover agent, paid him five hundred dollars as partial payment for the murder of Myers, and said that the kidnapping and eventual murder of Kathy and David Waters would be deferred until after Christmas. The meeting between the defendant and the undercover agent was videotaped and the defendant was arrested as he left the hotel room where the meeting transpired.

The primary theory of defense throughout the trial was entrapment. In order to support this theory, the defense sought to introduce expert testimony from Dr. Eric Engum, a neuropsychologist, that the defendant suffered from a cognitive decline, and the significant deterioration of the defendant's cognitive abilities rendered him more susceptible to the persuasion of others to commit a crime, and particularly susceptible to persuasion of a trusted employee and confidante. The trial judge ruled that the testimony was not admissible because it would invade the province of the jury.

Based on the other proof in the case, however, the trial judge found that the defendant had raised a viable defense of entrapment and instructed the jury on that defense. The jury found the defendant guilty of one count of...