STATE OF TENNESSEE v. WARNER CONRAD BIAS — (COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE)

To view complete transcript click here

COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE

May 21, 2008 Session

Direct Appeal from the Criminal Court for Sullivan County No. S44,980      Phyllis H. Miller, Judge

No. E2007-01452-CCA-R3-CD – Filed November 16, 2009

Following a jury trial, Defendant, Warner Conrad Bias, was convicted of first degree premeditated murder and sentenced to life imprisonment with the possibility of parole. On appeal, Defendant argues that (1) the trial court erred in refusing to allow testimony of Defendant’s severe mental disease or defect, and his ability to form the requisite intent to commit first degree murder; (2) the trial court erred in allowing the State to introduce evidence of a 1997 order of protection filed by the victim against Defendant; (3) the trial court erred in refusing to allow Defendant to cross-examine the investigator about Defendant’s videotaped statement and by refusing to admit the videotape into evidence; and (4) the evidence was insufficient to support Defendant’s conviction for first degree premeditated murder.  Following our review of the record, we affirm the judgment of the trial court.

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

OPINION

Background

Michael Kegley testified that his mother, the victim, Ella Faye Kegley, operated an upholstery business out of her home on Southside Avenue in Bristol, Tennessee. She had operated the business since her husband’s death in 1978.  Defendant worked for the victim on a commission basis, and he had also lived with the victim for a number of years, but they were never legally married.  Mr. Kegley testified that Defendant sometimes talked about his days as a boxer in the navy and that he won several tournaments.  Defendant also said that he could kill someone with his “bare hands.”

On Monday, March 5, 2001, Mr. Kegley stopped by the victim’s house around 12:30 to 1:00 p.m. to have lunch with her as he did each day.  She prepared lunch and then said that she needed to finish some furniture in the basement.  While Mr. Kegley was at the residence, Defendant  walked upstairs to get a drink of water.  They talked, but Defendant did not mention that he thought the victim was dating Darrel Swartz or that she was seeing anyone else. Mr. Kegley testified that the victim had previously indicated that she and Defendant had not been getting along very well and that she wanted to close the upholstery shop.  Mr. Kegley left the victim’s house around 2:00 p.m., and everything seemed fine.  When he walked out of the front door and beside the house, both the victim and Defendant waived to him from the basement window.

The following day, March 6, 2001, Mr. Kegley called the victim to tell her that he would not be able to stop by for lunch because he had to be in court on behalf of his employer, CVS Pharmacy, for a shoplifting case. The victim did not answer, so he assumed that she was out giving someone an estimate for upholstery work.  Mr. Kegley testified that he stopped by the victim’s residence around 2:30 and discovered that it was locked.  He noticed that the truck was there, but Defendant’s van was gone.  Mr. Kegley had a key to the residence, so he unlocked the door and walked inside. He yelled out, but no one answered.  He then left the residence and drove by his grandmother’s house located nearby.  When he arrived, Mr. Kegley noticed a “detectives car” sitting in the driveway.  He walked inside his grandmother’s house to check on her and saw two detectives from Bristol, Virginia.

Mr. Kegley testified that at some point, an officer from the Bristol, Tennessee Police Department arrived to assist the Virginia officers.  Mr. Kegley returned to the victim’s house with all of the officers for a “walk through” of the residence to determine if the victim was inside.  Mr. Kegley did not notice anything unusual or out of place.  He testified that he did not have any contact with the victim on March 6, 2001, and there were no signs of a struggle or any type of violence in the house.  Mr. Kegley testified that officers from the Bristol Tennessee Police Department returned to the victim’s residence the following day, and he later received confirmation that the victim was dead…

A few days after the victim’s funeral, Mr. Kegley, his wife, and his sister, Julie Maxfield, were at the victim’s residence sorting through her belongings.  As Ms. Maxfield was cleaning the spare bedroom where the victim stored her clothes, she found a pair of khaki pants with blood on them in between the wall and the bed.   Ms. Maxfield threw the pants down and called Mr. Kegley into the room.  He then called police.  The pants were untouched until Detective Charlie Thomas arrived and took them.  Ms. Maxfield testified that the pants appeared as though someone had wiped their hands on them.  She also said that the pants were too large to be the victim’s.

…The victim’s body had already set into rigor mortis.  There was no smoke in her nostrils or mouth, which indicated that she died before the fire started.  The victim’s teeth were missing, and there was blood coming out of one side of her mouth.  Mr. Jordan testified that he could smell the odor of kerosene in the bedroom.  It was also on the floor, the chest of drawers, the victim’s clothing, and on the bedding where the kerosene heater was tipped over.  It was his opinion that the fire was intentionally set and that kerosene was used as an accelerant.  He also said that the fire originated “around the bed area in those two set areas of the chest of drawers, . . .at the foot of the bed and around where we found the victim laying.”

Sergeant Mark Nash of the Bristol, Virginia fire Department is an arson investigator and was partnered in March of 2001 with an accelerant detection canine named Buffy.  Buffy was trained to alert on petroleum hydrocarbon-based products.  On March 6, 2001, Sergeant Nash was called to the scene of the fire on Lindsey Street to assist Fire Marshall Jordan in the investigation and in drawing a diagram of the scene.  Sergeant Nash testified that the fire started in a back bedroom, and he noticed the odor of kerosene or diesel fuel when he entered the room.  He and Buffy later did a walkthrough of the apartment, and the dog alerted on the odor of an accelerant in several locations. The victim’s body was still in the bedroom, and the dog also alerted to the presence of an accelerant on the victim’s clothing.

…Trooper Michael Hilton of the North Carolina Highway Patrol testified that around 6:00 p.m. on March 6, 2001, he was traveling North on Interstate 77 (I-77) when he saw a white Buick around mile marker forty-one traveling in the same direction at fifty miles per hour, well below the posted speed of sixty-five miles per hour.  Trooper Hilton testified that the vehicle was weaving in and out of its lane. He followed the vehicle for one mile until it exited I-77 at exit forty-two.  He then followed the vehicle onto the exit ramp.  Defendant traveled to the stop sign at the bottom of the ramp, turned his left signal on, and turned left onto US 21 N.  Trooper Hilton testified that Defendant made the turn too wide and went into the emergency lane of the four-lane road.  Trooper Hilton then activated his blue lights and siren to stop the vehicle, but Defendant fled at a high rate of speed. Defendant passed cars on a double yellow line, and he sped through the city of Troutman on a twolane road at a speed Trooper Hilton estimated to be sixty miles per hour, well above the posted speed limit of thirty-five miles per hour.  When he reached Murdock Road, Defendant failed to stop at the stop sign.  At that point, other agencies became involved in the chase.  The Troutman Police Department and the Iredell County Sheriff’s Department placed stop sticks on Murdock Road that Defendant eventually ran over which punctured the tires on his vehicle.  Defendant fled back onto I-77 traveling southbound from exit forty-five.  After traveling for approximately one mile, Defendant’s car became disabled.

When the vehicle eventually came to a stop, Defendant exited the vehicle with his hands up, and Trooper Hilton placed him under arrest.  He asked Defendant why he was running from police, and Defendant would not reply.  He also patted Defendant down to check for weapons or illegal contraband and found a pocket knife.  Trooper Hilton searched Defendant’s vehicle, but did not find any illegal contraband.  Defendant was driving a rental vehicle.  Trooper Hilton placed Defendant in his patrol car in order to transport him to the Iredell County Jail, and he advised Defendant of his Miranda rights.  As he was transporting Defendant to the jail, Defendant told Trooper Hilton that he had done a terrible thing and could not live with himself.  He also said that he had been trying to kill himself for three days.  Trooper Hilton testified:

Well he went on to ask me if I would kill him and at that point I asked him, I said, “What did you do that was so bad.”  And he said “I want a camera and everything set up,” he said “I want to tell it just one time.”  He said “I want a camera set up so I can give a confession.” And I told him at that point that I didn’t have any reason to set up cameras for a confession on the charges that I had him for.  And I said,  “Well what am I dealing with here?”  And he said “You’re dealing with murder.”  He said, “I murdered my wife.”  He said, “She was being unfaithful to me, I’ve been married to her for 19 years and she was being unfaithful to me with my best friend.”  And I – – – he said that – – – – well, I asked him at that point, I said, “Well what about your friend,” I said, “Did you do anything to your friend,” and he said, no, he did not.

He said that Defendant cried while he was talking and seemed to be remorseful.  Defendant also said that the murder occurred in Bristol, Tennessee.

A video deposition of Dr. William Massello, the Assistant Chief Medical Examiner for the Commonwealth of Virginia, was played for the jury.  During the deposition, Dr. Massello testified that he performed an autopsy on the sixty-three-year-old victim.  She was five feet six inches tall and weighed one-hundred and four pounds.  Dr. Massello testified that the cause of death was stab wounds to the victim’s chest, strangulation, and impact wounds to her face.  Any one of the injuries would have been fatal.  Seventy percent of her body had been burned, and her blood analysis revealed no drugs, alcohol, or carbon monoxide in her system.  The burns occurred postmortem.  Dr. Massello testified that the victim had three stab wounds to the chest that penetrated her heart and lung.  The stab wounds were approximately four inches deep and injured the victim’s internal organs, which caused massive internal and external bleeding.  The wounds were caused by some type of sharp knife, and the victim was alive when she was stabbed.  She also had other cuts and a contusion to her chest, and her breastbone was fractured.

…Mike Kegley testified that sometime in early May of 1997, the victim told him that Defendant had threatened to kill her and her mother and burn the house down with them inside. Defendant was present when the victim told Mr. Kegley about the threat, and he told Kegley that he “just didn’t mean it.”  On cross-examination, Mr. Kegley testified that he was not surprised by the comment because Defendant had a violent temper.  He did not believe that Defendant had mental problems, but that Defendant was mean.  Mr. Kegley testified that he wanted to “throw” Defendant out of the victim’s house, but she would not allow it.

Darrell Swartz testified that he thought he and Defendant were best of friends.  He denied having an affair with the victim.  On March 5, 2001, Mr. Swartz said that Defendant stopped by his house, but did not mention that he had killed the victim.  Mr. Swartz said that he did not suggest cutting the victim’s body into pieces or sinking her in the deepest part of the lake.  He did not set his own apartment on fire, and he did not witness Defendant threaten to kill himself with a shotgun. Mr. Swartz testified he had only “structural” insurance on his house.  He lost all of his mother’s antiques, guns, knives, fishing rods, and clothing as a result of the fire.

Expert Testimony

Defendant argues that the trial court erred in excluding expert testimony on the issue of his severe mental disease or defect and his ability to form the requisite intent to commit first degree murder.  Prior to trial, Defendant gave the trial court and the State timely written notice of his intent to present the testimony of Dr. Rokeya Farooque, a psychiatrist, and Dr. Sam Craddock, a psychologist, regarding his mental health status and ability to or capacity to form the mental state required to commit first degree murder.  The trial court held a jury-out hearing to determine the admissibility of the expert testimony.  At the hearing, Dr. Farooque testified that she is a psychiatrist employed by the Middle Tennessee Mental Health Institute in Nashville, Tennessee.  She testified that she first saw Defendant three years after the murder. On the first three occasions that Defendant was with her, she saw him daily.  At the time of trial, she was seeing him once a week unless there were any other complaints or for medication purposes.

Dr. Farooque testified that she diagnosed Defendant as an AXIS II paranoid personality disorder and AXIS I, delusional disorder, persecutory type.  She explained that paranoid personality is an enduring pattern of behavior, and it is manifested by distrust or suspicion of others.  Dr. Farooque testified that Defendant was probably suffering from the disorder at the time of the murder…

Dr. Farooque testified concerning the medications that she had given Defendant during the course of treatment, and at the time of trial, he was on Lexapro and a Prolixin Enanthate shot every two weeks.  She testified that another doctor had him on some anti-hypertensive medicine and Valium. Dr. Farooque testified that despite the fact that defendant suffers from two mental disorders, his mental impairment at the time of the murder was not sufficient to deprive him of the ability to act with premeditation.  This was based on a review of all the “information at the time of the incident and after that his statement, others statement [sic] and the autopsy result and everything we have in our, we have with us . . .”  Defendant did not tell her anything that showed he was delusional at the time of the murder.  Dr. Farooque testified that most of Defendant’s delusions were after the murder and about jail incidents.  She also said that he was capable of manipulation…

… Prior to trial in this case, Defendant filed a motion in limine to exclude evidence of the order of protection and testimony concerning previous threats made by Defendant toward the victim.  The “Petition for Order of Protection” contains the following language: “Warner threw a tack hammer at me and missed.  He came up to me and hit me with a can of spray glue.  He threaten [sic] me.  He said if you call the law I will come back and kill you and burn your house.”