Court of Criminal Appeals of Tennessee, Nashville
Session Date June 17, 2014
Direct Appeal from the Circuit Court for Warren County No. F-13783 Larry B. Stanley, Jr., Judge
Joshua T. Crain, Murfreesboro, Tennessee, for the appellant, Joseph Anthony Saitta, Jr.
Robert E. Cooper, Jr., Attorney General and Reporter; Michelle L. Consiglio-Young, Assistant Attorney General; Lisa S. Zavogiannis, District Attorney General; and Thomas Miner, Assistant District Attorney General, for the appellee, State of Tennessee.
Norma McGee Ogle, J., delivered the opinion of the Court, in which Roger A. Page, J., and Larry J. Wallace, Sp.J., joined.
NORMA McGEE OGLE, JUDGE
I. Factual Background
In July 2012, the Warren County Grand Jury indicted the appellant for rape of a child. The alleged victim was his daughter, who was born on June 30, 2009.
At trial, Sethly Hodges testified that she became a licensed practical nurse in November 2010, began working for CareAll Home Health in April 2011, and was assigned to care for the victim from April to November 2011. The victim, who was two years old in November 2011, was Hodges's only patient. The victim suffered from cerebral palsy, brain damage, scoliosis, and breathing problems; had a feeding tube and tracheostomy; and could not speak. Hodges did not think the victim had clear vision, but the victim could hear. Hodges said that she and another nurse "split" the victim's care, each working twelve-hour shifts, and that she cared for the victim thirty-six to forty-six hours per week. The nurses looked after the victim in her home and "did everything" for her, including changing her diaper, sometimes washing her laundry, bathing her, flushing her feeding tube, and giving her breathing treatments. Usually, one of the victim's parents was present. Hodges said she never had to leave the victim alone with the victim's parents because another nurse always came in at the end of Hodges's shift and "relieved" her.
Hodges testified that at some point, the victim's family lost use of both of its vehicles. The nurses tried to help the family by driving the appellant to work, and Hodges even let the family use her car to run errands. The victim's mother also had a five- or six-year-old son, but he did not live with the family. In November 2011, the victim's mother was scheduled to have visitation with her son for Thanksgiving. The victim's mother did not have transportation, so Hodges drove her to pick up the boy on Tuesday, November 22, 2011. The trip lasted about four hours. While Hodges and the victim's mother were gone, the victim was at home alone with the appellant. Hodges said she was not worried about leaving the victim with the appellant because the victim's mother was not concerned about it. Also, the victim had been left alone with the appellant previously, and the appellant knew how to take care of her. Before Hodges and the victim's mother left for the trip, Hodges checked the victim's diaper and flushed her "trach." The diaper did not need to be changed.
Hodges testified that while they were on the trip, the victim's mother received a text from the appellant, stating that the victim had had "a really big, hard bowel movement and he didn't think the nurses were giving her enough water that he was going to give her water." Hodges stated that she had never experienced the victim "being what I would call constipated. There maybe [had] been a day or two that she didn't have a bowel movement but that doesn't necessarily mean that she was constipated." Hodges said that the victim sometimes received Miralax or Benefiber in her feeding tube and that the victim's mother "would kind of switch her back and forth, Benefiber and Miralax and there was discussion that she may have been constipated but as far as when I was there I never saw any -- nothing concerned me as far as constipation." Hodges had never seen blood in the victim's stool.
Hodges testified that when she and the victim's mother returned home about 4:30 p.m., she went into the victim's bedroom and immediately smelled the strong odor of a bowel movement. The appellant was lying on the floor in the room but got up and went into the living room, and Hodges began changing the victim's diaper. She said that when she opened it, she noticed blood and "a little bit of discoloration as far as like a little bit of brown but it's not what I would call a bowel movement." Hodges said that she had been expecting a bowel movement in the diaper but that "[t]here was what appeared to be like BM, maybe almost looked like a little bit of diarrhea maybe. . . . [A]nd then there is like slimy stuff. It's all kind of mixed together." Upon seeing the blood, Hodges called for the victim's mother. When the victim's mother came into the room, she inspected the victim's rectum, and they saw that the victim's rectum had been "ripped." Hodges said that the rip was not "front to back" but that it was "a good size rip" and "shocking." Hodges wiped the victim's vagina with a baby wipe but saw no blood. When she wiped the victim's rectum, blood was on the wipe. She stated,
I'm not going to say that it was oozing out but again, whenever she pulled her bottom apart you could see blood up inside of there kind of with the bodily fluids, there was tissue. I didn't just sit there and stare at it because it was very gut wrenching.
Hodges testified that the victim's mother's face "got red, " that both of them were shaking, and that the victim's mother began yelling at the appellant. The victim's mother went to speak with him, and Hodges could hear them "bickering back and forth." The victim's mother wanted to know about the blood and "how did your daughter's bottom get like this." The appellant said he did not know.
Hodges testified that she was panicked, scared, and "thinking the worst." She stated, "I couldn't even, like as a nurse, looking back, I should have looked further at [the victim] but I have a two year old daughter and seeing that was very traumatic." Hodges wanted to telephone her supervisor but was afraid the appellant would hear her and was afraid of what the appellant might do. Therefore, she texted her supervisor about the situation. When her supervisor did not respond, Hodges texted Tracy Martin, the nurse who was supposed to relieve her from her shift. Martin responded that if the victim's condition was as bad as Hodges said, then she needed to take the victim to the hospital. Hodges talked with the victim's mother about taking the victim to the hospital, and the appellant stated that if they did so "they're going to think [he] did it."
Hodges testified that she noticed the trash can by the victim's bed had been emptied and that she told the victim's mother that the diaper the appellant had changed was not there. The victim's mother left the room and returned with the diaper. Hodges said the victim's mother also had paper towels with blood "all over them." They opened the diaper but saw no blood in it. Hodges said that "mushy" stool was in the diaper but that the amount of stool "wasn't huge" and that she saw nothing concerning about the stool. She said the bloody paper towels were "kind of pink in some places . . . slimy, if you will" and appeared to have bodily fluid on them. The State asked Hodges if she recognized the fluid, and she said that she thought it was semen. She said the nurses never used paper towels to clean the victim after a bowel movement. They always used baby wipes.
Hodges testified that she and the victim's mother decided to take the victim to the emergency room (ER) but did not let the appellant know what they were doing. They put the diaper that Hodges had taken off the victim, the diaper that the appellant had changed, and the bloody paper towels into a bag and put the bag in Hodges's purse. On the way to the hospital, Hodges and the victim's mother agreed to say the victim's condition occurred when Hodges "ran [the victim's mother] down to the Dollar General." Hodges said that when they arrived at the ER and spoke with the triage nurse, the victim's mother "was a completely different person" and told the nurse that the victim "had been dealing with some constipation problems and that there was a little blood in her feces." Hodges said that the victim's mother's statement was "[a]bsolutely not" consistent with what Hodges had seen but that Hodges did not say anything to the triage nurse. She said that the victim's mother "didn't let me do a whole lot of talking" but that "I did try to stress the severity of the rip." The victim's mother did not tell the nurse about the bloody paper towels or the blood in the diaper that the appellant had changed.
Hodges testified that her shift ended at 7:00 p.m. and that Martin arrived at the hospital to relieve her. Hodges spoke with Martin in the parking lot, "tried to stress to her the severity of the tears, " and gave her the bag that contained the diapers and paper towels. Hodges said that when she got home, she telephoned the hospital, spoke with the nurse caring for the victim, and told the nurse that she thought "they should investigate further because [she] thought there was a little more going on that [the victim's] mother hadn't made them aware of." Hodges also began having second thoughts about lying to her supervisor regarding the amount of time she had been away from the victim that day. Hodges had told her supervisor that she and the victim's mother had gone to the store. Hodges said she did not tell her supervisor about the four-hour trip because she was afraid of losing her job and her nursing license. However, she decided "to come clean . . . for [the victim's] sake." The next morning, she went to CareAll and told her supervisor about the trip, and CareAll fired her. Hodges went to the sheriff's department and spoke with Investigator Kelly Carter.
On cross-examination, Hodges acknowledged that a laxative or fiber supplement was a routine part of the victim's care and that the victim had to have them. She also acknowledged that the victim's physician had prescribed Miralax or Benefiber to the victim and had switched the victim from one to the other. At the time of this incident, the physician had switched the victim back to Benefiber. The appellant had very little to do with the victim. In fact, neither of the victim's parents had much to do with her care because the nurses always took care of her. During the four-hour trip, Hodges and the victim's mother stopped at the home of Hodges's boyfriend in Smithfield to get money for gas. When they returned to the victim's mother's home after the trip, Hodges saw blood in the victim's diaper. Defense counsel asked Hodges about the amount of blood, and she stated, "I mean it wasn't just like covered in blood but there was spots of blood, smears of blood."
Hodges acknowledged that as part of her duties, she made notes about the victim throughout her shifts. On November 22, 2011, Hodges made her notes after she left the ER. Defense counsel showed Hodges her notes, and she acknowledged that she wrote that blood "'appear[ed]'" to be in the victim's diaper. She said she was sure she saw blood. She acknowledged that a child could have a large bowel movement with blood in the stool. She described the tear to the victim's rectum as large and "straight up and down" but said, "I looked away from it to be completely honest because it startled me." The paper towels were not saturated with blood, but "there was a lot of smeared blood on them." The blood appeared to be mixed with semen but Hodges could not say for sure whether the fluid was semen or some other bodily fluid. Defense counsel asked why she thought the fluid was semen, and she stated, "I guess because she was torn and that's the first thing that entered my mind." She acknowledged that although she was scared for the victim on November 22, she did not show the diapers or paper towels to the hospital staff. She said that she regretted that decision every day and that she and the victim's mother thought the appellant had done something to the victim. Hodges acknowledged that the ER physician diagnosed the victim with constipation. Hodges said she thought the hospital staff "didn't check her out thoroughly because they weren't led in the right direction to check her out thoroughly." She acknowledged that she did not know the appellant harmed the victim.
On redirect examination, Hodges testified that what she saw in the diaper did not match the appellant's description in his text message. She acknowledged that, given the physician's diagnosis of constipation, she could have decided not to reveal anything to her CareAll supervisor. However, she stated,
As a human being I felt like -- and also I have a daughter that is the same age and seeing [the victim] the way that I saw her in the condition that she's in it was horrifying and I truly felt like I had to go further with it for [the victim's] sake. Yes, I didn't ...