Court of Criminal Appeals of Tennessee, Knoxville
Session Date July 23, 2014
Direct Appeal from the Criminal Court for Knox County No. 96458 Mary Beth Leibowitz, Judge
Mike Whalen, Knoxville, Tennessee, for the appellant, Santos Medardo Funes Romero.
Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Senior Counsel; Randall E. Nichols, District Attorney General; Kyle Hixson, Assistant District Attorney General, for the appellee, State of Tennessee.
Robert W. Wedemeyer, J., delivered the opinion of the court, in which James Curwood Witt, Jr., J., and Timothy L. Easter, Sp. J., joined.
ROBERT W. WEDEMEYER, JUDGE
This case arises from allegations of sexual abuse made by an eight-year-old against the Defendant. As a result of these allegations, the Defendant was indicted on charges of rape of a child and aggravated sexual battery.
A. Voir Dire
During voir dire, the prosecutor asked, "[I]s there anyone who feels that . . . they would be unable to sit in judgment of another human being?" To this, several prospective jurors raised their hands, and the prosecutor inquired further.
MS. SHAFER: I have a daughter that was abused and I can't -- I could listen to the case but it would be very difficult for me.
[Prosecutor]: A little too close to home for you?
MS. SHAFER: Emotional.
[Prosecutor]: And I understand as to the emotional. Do you feel that there is any way that you could put those thoughts aside as this case goes along?
MS. SHAFER: I -- as a Christian, I would certainly do my best, but it would be very difficult.
[Prosecutor]: Okay. And that's understandable. Thank you for disclosing that. I know that's difficult. . . .
I saw another hand. Sir, is it Mr. Clabough?
MR. CLABOUGH: Yes, sir.
[Prosecutor]: And you feel you would be uncomfortable sitting in judgment as well?
MR. CLABOUGH: Yeah, because of the nature of the case. I've got an eight-year old daughter and where we live, several houses close to us there's things close to this that went on, and I don't know if I would be biased or not [.]
MR. CLABOUGH: -- in all honesty.
[Prosecutor]: Well -- and this is your family that was involved [.]
MR. CLABOUGH: No.
[PROSECUTOR]: -- in this other incident? Can you tell us a little bit about what happened there? What was going on at this other house?
MR. CLABOUGH: It was -- he was a convicted child molester, was not registered and had 10, 15 girls at a time in his basement teaching gymnastics with no other adult supervision, and he was finally picked up at Powell High School patrolling for freshman -- young girls.
[Prosecutor]: And so, he was arrested?
MR. CLABOUGH: Yes.
[Prosecutor]: Was he brought to trial, do you know?
MR. CLABOUGH: As far as I know, not yet.
[Prosecutor]: Okay. So to your understanding, he's still in custody awaiting trial?
MR. CLABOUGH: He better be.
[Prosecutor]: And you know, understand all cases are different.
MR. CLABOUGH: No, I understand, but you asked me. I wanted -- . . . I want to be honest.
MR. CLABOUGH: I don't know that I could be unbiased in this case, you know, this particular case.
THE COURT: . . . Is there anybody else that -- there's a gentleman back there.
MR. STRUNK: I was abused as a child.
[Prosecutor]: Okay. Sorry to hear that, sir.
THE COURT: Thank you, sir, for telling us that.
[Prosecutor]: Thank you very much. Obviously, this type of case would be too difficult for you? Thank you.
The Defendant's attorney moved to strike for cause the prospective jurors who had indicated that they had been abused or their child had been abused. The trial court ruled that it would allow the State to attempt to rehabilitate some of the prospective jurors. The State informed the jurors of the difficulties of trying this type of case and the importance of having jurors who care about children serve on the jury. The State then asked:
And with that in mind, Ms. Shafer, let me ask you. I know you said it would be difficult for you to be fair in this case, but do you think that you could listen to both cases and that if the judge instructed you to, that you could render a fair decision in this case?
Ms. Shafer responded that she would "pray that [she] could, yes. I mean, it's a very sensitive subject, but I believe in fairness . . . I couldn't pre-judge because that's not the American way, you know?" Mr. Clabough expressed his belief that he would not be able to acquit the Defendant, even if the State did not prove its case.
The State then turned to question the jury venire about whether a child victim's delay in disclosing abuse would "cloud her testimony" in their eyes.
Ms. Watkins replied:
I was sexually abused by a neighbor two doors down, and I have never revealed it to anybody to this day. I never told my parents, I've never told my husband, I've never told anybody until this day.
[Prosecutor]: And how old are you now?
MS. WATKINS: I'm 62.
[Prosecutor]: How old were you when this happened?
[Prosecutor]: And where did you live?
MS. WATKINS: In Montreal.
[Prosecutor]: Montreal, ...