State v. Kinnaird

823 S.W.2d 571, 1991 Tenn. Crim. App. LEXIS 589
CourtCourt of Criminal Appeals of Tennessee
DecidedJuly 26, 1991
StatusPublished
Cited by1 cases

This text of 823 S.W.2d 571 (State v. Kinnaird) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Kinnaird, 823 S.W.2d 571, 1991 Tenn. Crim. App. LEXIS 589 (Tenn. Ct. App. 1991).

Opinion

OPINION

BIRCH, Judge.

A Putnam County jury found Herschel Kinnaird, the defendant, guilty of accessory before the fact to first-degree murder1 and of conspiracy to commit first-degree murder.2 For the accessory to first-degree murder conviction, the jury imposed punishment of imprisonment for life. The trial judge sentenced the defendant to a ten-year term for conspiracy to commit first-degree murder, to be served concurrently with the life sentence.

Kinnaird appeals as a matter of right and maintains that the evidence is, as a matter of law, insufficient to support the conviction. Additionally, he contends that:

1. The district attorney general’s failure to disclose the existence of a relationship between the state and a juror deprived the defendant of a fair and impartial trial;
2. The district attorney general’s failure to disclose certain exculpatory evidence deprived the defendant of a fair and impartial trial;
3. The trial court erred in failing to grant defendant’s motion for a mistrial;
4. The trial court erred in permitting a witness to testify about bruises and scratches on the victim; and
5. The trial court erred in his ruling on the discoverability of certain recordings of telephone conversations.
The trial court’s judgment is affirmed.

I

The salient proof of record established that the marriage of Pamela and Herschel Kinnaird was an extremely troubled one. After much vacillation, Mrs. Kinnaird decided in March 1988 to proceed with her divorce plans. With this in mind, she retained counsel. A petition was prepared, but not filed.

[573]*573From all indications, the defendant believed that Gary Hunter was romantically involved with Pamala Kinnaird. Additionally, he often complained that she was not a good mother because she did not prepare meals for their children.

Beginning in the spring of 1988, the defendant, or someone acting in his behalf, began to search for someone to kill Mrs. Kinnaird. The first procurement effort occurred when Earl Kinnaird, the defendant’s brother, approached his friend, Kelly Aver-itt. Earl Kinnaird told Averitt that his brother was interested in finding someone who would murder for hire. Averitt replied that he did not know of anyone.

Shortly thereafter, the defendant himself approached Averitt and asked him to find someone to kill Pamala Kinnaird and make it look like an accident. He told Averitt that “if everything worked out we all could be doing pretty good because of the insurance policy.” Although Averitt rejected the request, he did sell a .25 caliber semiautomatic pistol to the defendant.

Another attempted procurement occurred on July 8, 1988, at a residence where the defendant was installing aluminum siding. The defendant asked Jonathan B. Kaye, the owner of the residence, if he knew of someone who would kill for pay, stating that he needed the information for a friend. Kaye’s response was emphatically negative. On the previous day, the defendant remarked to Kaye’s wife that the next time he got married he wanted to make sure that his wife could cook.

David Barlow was the defendant’s job supervisor. As he was inspecting the work on the Kaye residence, the defendant asked him if he knew someone who would kill for hire. He stated to Barlow, as he had to Kaye, that he needed the information for a friend. Barlow dismissed the conversation.

The next solicitation involved Renee Valentine, who at the time was a friend of Earl Kinnaird. The conversation between the defendant and Valentine culminated with the defendant offering her $3,000 to $4,000 to do the job herself. Moreover, the defendant discussed how the murder should be accomplished; he said that he preferred the murder to be done with a knife because he did not want Pamala to suffer. Valentine declined the offer.

Donnie Nelson, the defendant’s uncle, testified that the defendant asked him to kill Mrs. Kinnaird for $3,000. The defendant gave Nelson the .25 caliber pistol he had purchased from Averitt. On July 13, 1988, just hours before the killing, the defendant informed Nelson of Mrs. Kin-naird’s likely whereabouts. Nelson located her where the defendant had directed him and stabbed her to death.

Mrs. Kinnaird’s body was found in her parked car. She had been stabbed with a knife approximately twenty-one times in the face, neck, shoulders, chest, and both hands. Additionally, the knife punctured her right mammary artery, right lung, and liver. Charles Harlan, M.D., Chief Medical Examiner for the State of Tennessee, testified that the victim died from excessive loss of blood.

After Earl Kinnaird had been told of the victim’s death, he went to his apartment and found Nelson sitting in his car in the driveway. Desiring to protect his uncle, Earl Kinnaird told Nelson to follow him to a highway rest area, where they abandoned Nelson’s car.

On the morning after the victim’s death, the defendant asked Averitt to take Nelson, who was then at Earl Kinnaird’s apartment, to Nashville. The defendant expressed strong disapproval of Nelson’s method of killing the victim; threatening to kill Nelson for cutting her up like he did. The defendant also told Averitt to tell Nelson to leave a note saying that he (Nelson) was to blame for the killing and that he killed Pamala Kinnaird because he was in love with her. The defendant gave Averitt $100 to give to Nelson.

Averitt took the money to Nelson and helped him write the requested note. Av-eritt then started to drive Nelson to Nashville; en route, however, Nelson insisted that the defendant should pay him, as promised, before he (Nelson) left town. Averitt dropped Nelson off at an exit with the understanding that Averitt would re[574]*574turn with the money. Nelson ended up in Gordonsville. He was arrested there and returned to Cookeville, where he confessed to having killed Pamala Kinnaird.

In a search of the defendant’s residence, investigators recovered two policies of insurance. The policies insured Pamala Kin-naird’s life; both were in effect at the time of her death. One policy, issued on July 25, 1988,3 was in the face amount of $100,-000 with Herschel Kinnaird as the sole beneficiary. On the second policy, also insuring the life of Pamala Kinnaird, the defendant collected $34,713.84 on August 22, 1988.

The defendant argues that the evidence does not support his convictions. This argument is two-pronged: First, defendant insists that the trial judge erred in refusing to grant his motion for judgment of acquittal. Inasmuch as the defendant elected to present evidence of his own, any error resulting from a failure to sustain his motion for judgment of acquittal is waived. State v. Johnson, 762 S.W.2d 110 (Tenn.1988). Second, the defendant urges that the jury verdict is not supported by the evidence. The appropriate standard for sufficiency review is whether, after viewing the evidence in a light most favorable to the state, any rational trier of fact could have found the essential elements of these offenses beyond a reasonable doubt. Tenn.R.App.P. 13; Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.

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Related

Hershell Lee Kinnaird v. State of Tennessee
Court of Criminal Appeals of Tennessee, 2001

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Bluebook (online)
823 S.W.2d 571, 1991 Tenn. Crim. App. LEXIS 589, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kinnaird-tenncrimapp-1991.