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RHODEN v. MORGAN

January 18, 1994

LAWTIS DONALD RHODEN
v.
JACK MORGAN, et al.



The opinion of the court was delivered by: JOHN T. NIXON

 The Court is in receipt of the Magistrate Judge's Report and Recommendation (Doc. No. 43) in the above-styled matter to which Petitioner has filed timely Objections (Doc. No. 47). Respondent has filed a Reply to Petitioner's Objections (Doc. No. 48), and Petitioner has filed a Traverse to Respondent's Reply (Doc. No. 51). On November 8, 1993, the Court heard Oral Argument from the parties on their respective objections to the Report and Recommendation. Upon review of the record in this case and the filings and arguments of the parties, the Court finds some of Petitioner's objections to be meritorious, and rejects in part and modifies in part the Report and Recommendation as follows.

 I. INTRODUCTION

 Pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), Magistrate Judge Haynes filed a Report and Recommendation in this action on April 23, 1993. The Magistrate recommended that the petition for writ of habeas corpus be denied. Petitioner is a state prisoner who is currently confined in Turney Center Prison in Only, Tennessee. The relevant facts are as follows.

 During the first week of December, 1984, Petitioner Lawtis Donald Rhoden went to Nashville and met his girlfriend, Cornelia "Connie" Widmann. (Report and Recommendation, Doc. No. 43, at 2.) Ms. Widmann had been living in Nashville and renting a room from the Wright family. (Id.) At the instruction of Mr. Rhoden, Ms. Widmann had inquired of the Wright's thirteen-year-old daughter ["Ms. Wright"] whether she would be interested in being a model and having her picture taken by Mr. Rhoden. (Id.) Mr. Rhoden had also spoken with Ms. Wright by telephone about being photographed. (Id.) Ms. Wright was told that she would be photographed for a photography class. (Id.)

 After arriving in Nashville, Mr. Rhoden went with Ms. Widmann to purchase cameras, film, and clothes to be worn by Ms. Wright. (Report and Recommendation, Doc. No. 43, at 2.) On December 4, 1984, Ms. Widmann went to Ms. Wright's school and brought Ms. Wright to a local motel where Mr. Rhoden was waiting. (Id.) After Ms. Wright showered, Ms. Widmann assisted her with her hair and makeup. (Id. at 2-3.) When Ms. Wright attempted to wear some of the clothes that had been purchased for her, it was discovered that some of the clothes did not fit. (Id. at 3.) Mr. Rhoden ordered Ms. Widmann to return to the store and exchange the clothes, and Ms. Widmann left the motel. (Id.)

 While Ms. Widmann was away, Mr. Rhoden took photographs of Ms. Wright in various poses. (Report and Recommendation, Doc. No. 43, at 3.) Ms. Wright alleged that for some of the pictures Mr. Rhoden removed Ms. Wright's clothing, except for her bra, and photographed her with her genitals exposed. (Id.) In addition, Ms. Wright alleged that Mr. Rhoden performed cunnilingus on her and attempted to insert his penis into her vagina on three separate occasions. (Id.) She testified that he penetrated her vagina on one occasion. (Id.)

 When Mr. Rhoden finished taking photographs, Mr. Rhoden told Ms. Wright that he would give her a computer and $ 500.00 if she would not tell her mother about what had happened at the motel. (Report and Recommendation, Doc. No. 43, at 3.) Ms. Widmann returned and drove Mr. Rhoden to the airport while Ms. Wright waited in the motel room. (Id.) Mr. Rhoden told Ms. Widmann that he had a client that would pay a large sum of money to see a little girl in her underwear and that he would give Ms. Widmann half of it. (Id.) As well, he later telephoned Ms. Widmann and told her that the pictures he took of Ms. Wright constituted child pornography. (Id.)

 A subsequent medical examination of Ms. Wright revealed the presence of sperm, as well as recent trauma to the hymenal area inside the vagina and a hematoma. (Report and Recommendation, Doc. No. 43, at 3.)

 Mr. Rhoden was arrested and charged with two offenses, rape (Count I) and use of a minor for obscene purposes in violation of Tenn. Code Ann. § 39-6-1137 (Count II). (Report and Recommendation, Doc. No. 43, at 2.)

 In December 1984, the time at which Mr. Rhoden allegedly violated the statute, Tenn. Code Ann. § 39-6-1137 provided:

 
(a) It shall be a felony, punishable by imprisonment for not less than three (3) years nor more than twenty-one (21) years and a fine of not more than Ten Thousand Dollars ($ 10,000), for any person:
 
(1) To knowingly promote, employ, use or permit a minor to engage in or assist others to engage in:
 
(A) Posing or modeling alone or with others in any performance of sexual conduct for purposes of preparing a film, photograph, negative, slide or motion picture or other matter which is obscene;
 
(B) Sexual conduct by the minor alone or with other persons or animals; or
 
(C) Promoting any matter which depicts any minor posing alone or with others in any sexual performance which is obscene. . . .
 
(8) "Obscene" means:
 
(A) That the average person applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;
 
(B) That the work depicts or describes, in a patently offensive way, sexual conduct; and
 
(C) That the work taken as a whole, lacks serious literary, artistic, political, or scientific value.
 
(9) "Sexual conduct" as used in this section shall include but not be limited to sexual intercourse; sodomy; sexual bestiality; masturbation; sado-masochistic abuse; excretion; or the exhibition of the male or female genitals.

 (Tenn. Code Ann. § 39-6-1137 (1984).)

 Mr. Rhoden was indicted on April 19, 1985, on counts of rape and using a minor "to engage in posing or modeling in performance of sexual conduct to-wit, exhibition of the female genitals for the purpose of preparing photographs which were obscene in violation of Tenn. Code Ann. § 39-6-1137." (Pet'r's App. Br., App. A, Doc. No. 3, at 1; Pet'r's Objections, Doc. No. 47, at 17 n.2.)

 The Tennessee Legislature amended the definition of "sexual conduct" in Tenn. Code Ann. § 39-6-1137(9) in 1985 to substitute "lewd exhibition" for mere "exhibition" of genitals. The amendment became effective on July 1, 1985. (Pet'r's App. Br. Supp. Pet. Habeas Corpus, App. B, Doc. No. 3, at 1.) The legislative record indicates that the July 1985 amendment was adopted in response to concerns that the original language was unconstitutionally overbroad. (Pet'r's App. Br., App. E, Doc. No. 3, at 2.) The legislature adopted the directive of Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973), which provides that "lewd exhibition" of genitals may be considered obscene. (See Pet'r's App. Br., App. E, Doc. No. 3, at 2; Miller, 413 U.S. at 25, 93 S. Ct. at 2615.)

 The statute under which Mr. Rhoden had been indicted had been amended, and the amendment had become effective on July 1, 1985, prior to Mr. Rhoden's trial on October 21, 22, and 23, 1985. (Pet'r's App. Br., App. B., Doc. No. 3, at 1; Pet'r's Objections, Doc. No. 47, at 17-18.) Mr. Rhoden's trial counsel, William Wilson, did not discover that the statute had been amended until Mr. Rhoden's post-conviction hearing. (Pet'r's Objections, App. A., Doc. No. 47, at 104-05.)

 Mr. Rhoden was convicted on October 23, 1985, of rape and use of a minor for obscene purposes. (Report and Recommendation, Doc. No. 43, at 2.) As a result of his convictions, Mr. Rhoden was sentenced to twenty (20) years on each offense to be served consecutively. (Id. at 3.)

 The Tennessee Court of Criminal Appeals affirmed Mr. Rhoden's conviction on direct appeal. (Report and Recommendation, Doc. No. 43, at 3.) On October 5, 1987, the Tennessee Supreme Court denied Mr. Rhoden's application for permission to appeal. (Id.) Mr. Rhoden filed a state post-conviction petition on February 16, 1988, which was denied by the trial court. (Id.) On February 21, 1991, the Tennessee Court of Criminal Appeals affirmed the trial court's denial of Mr. Rhoden's post-conviction petition, and the Tennessee Supreme Court denied Mr. Rhoden's application for permission to appeal on July 1, 1991. (Id. at 3-4.)

 On July 17, 1991, Mr. Rhoden filed his federal Petition for Writ of Habeas Corpus. (Pet'r's Objections, Doc. No. 47, at 2.) In his petition, Mr. Rhoden raises the following nine claims:

 (1) Petitioner was convicted of a state obscenity statute that was unconstitutionally vague, overbroad, and indefinite on its face and as applied to him in violation of the First, Fifth, and Fourteenth Amendments to the U.S. Constitution;

 (2) Petitioner's state conviction for Count II, a violation of Tenn. Code Ann. § 39-6-1137, cannot be sustained as a matter of law because the evidence was insufficient under First and Fourteenth Amendments standards;

 (3) Petitioner was denied a fundamentally fair trial by an impartial jury in violation of the First, Sixth, and Fourteenth Amendments to the U.S. Constitution due to juror misconduct and bias;

 (4) Petitioner was denied a fundamentally fair trial by an impartial jury in violation of the Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution due to the improper admission of a prior uncharged rape during the State's case-in-chief;

 (5) Petitioner was denied a fundamentally fair trial by an impartial jury and the effective assistance of counsel in violation of the Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution where the trial court precluded him from raising ...


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