Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs November 18, 2014
Appeal from the Criminal Court for Cumberland County No. 100008 Leon C. Burns, Jr., Judge
Russell C. Tribble, Cookeville, Tennessee, for the appellant, Joshua Paul Lewis.
Robert E. Cooper, Jr., Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Bryant C. Dunaway, District Attorney General; and Amanda Hunter and Gary McKenzie, Assistant District Attorneys General, for the appellee, State of Tennessee.
John Everett Williams, J., delivered the opinion of the Court, in which Robert W. Wedemeyer and Timothy L. Easter, JJ., joined.
JOHN EVERETT WILLIAMS, JUDGE
I. Facts and Procedural History
The defendant's judgments of convictions were entered on June 27, 2011, and he filed a motion for a new trial on October 3, 2011. Although the motion was untimely filed, the trial court conducted a hearing on October 7, 2011, and denied the motion from the bench. On direct appeal, this Court concluded that the defendant had waived appellate review of the issues raised on appeal due to his failure to file a timely motion for new trial. State v. Joshua Paul Lewis, No. E2011-02377-CCA-R3-CD, 2012 WL 4392749, at *9 (Tenn. Crim. App. Sept. 26, 2012). This Court summarized the factual background of the defendant's case as follows:
The Defendant was indicted in January 2010 for two counts of rape of a child and one count of attempted rape of a child. Each count involved the same victim, a male born on April 29, 2000. Each count alleged that the crime was committed "on a specific day between May 1, 2009 and July 31, 2009, in Cumberland County, Tennessee." In May 2010, the defense filed a motion for a bill of particulars requesting the "exact time and date of" each offense and the "exact location" of each offense. The State responded that the offense alleged in Count 1 occurred "[b]etween the dates of May 1, 2009 and July 31, 2009" and took place at the "Cumberland Mountain State Park, Cumberland County TN." The response gave the same description of the "time and date" as to Counts 2 and 3. The location of the crime alleged in Count 2 was described as the "residence of Valerie D[.] at 940 Old Highway 70, Crossville, TN." Finally, the response described the location of the crime alleged in Count 3 as "OakLawn Cemetery Pomona, POW Camp Road, Cumberland County TN."
Also prior to trial, the defense filed a motion to suppress the Defendant's statement to the police. At the ensuing hearing, Investigator Jeff Slayton with the Cumberland County Sheriff's Department testified that he was one of the officers who interviewed the Defendant on December 9, 2009. He identified an "Admonition and Waiver and Waiver of Rights" document bearing the same date and signed by the Defendant. The document also indicates a time of 9:07 p.m. This document was subsequently admitted into evidence.
Investigator Slayton stated that, earlier that day, he had been in a "lengthy . . . vehicle pursuit" of the Defendant. During the Defendant's apprehension, he was pepper-sprayed at some time late in the afternoon, but before 6:00 p.m. Investigator Slayton stated that he had been pepper-sprayed as part of his training and that the effects last from thirty to forty-five minutes.
Investigator Slayton interviewed the Defendant together with Investigator Chad Norris. A "DCS" agent, whose name he could not remember, was also present. The interview took place in the training room of the justice center. The Defendant was in custody at the time.
Investigator Slayton read the Admonition and Waiver to the Defendant, and the Defendant then read the Waiver of Rights out loud. According to Investigator Slayton, the Defendant had no trouble reading the document. The Defendant did not complain about being unable to read because of the pepper-spray. After the Defendant had read the Waiver of Rights out loud, he signed it. Investigators Slayton and Norris both witnessed the Defendant's signature.
Investigator Slayton proceeded to question the Defendant about the pursuit. He also questioned him about the instant allegations, of which Investigator Slayton had just learned. At no time did he promise the Defendant a lower bond if he confessed to the sex offense charges. After Investigator Slayton finished his oral interview of the Defendant, Investigator Norris reduced the Defendant's statement to writing.
On cross-examination, Investigator Slayton maintained that the Defendant's eyes were not "irritated" during the interview and that the Defendant had been able to look at and focus on Investigator Slayton. He also maintained that the Defendant was "calm" and "understanding" while the Admonition and Waiver was read to him. Investigator Slayton described this information as the Defendant's Miranda rights. The Defendant did not have on handcuffs, but Investigator Slayton did not remember if the Defendant had on leg-shackles. According to Investigator Slayton, there was no audio-recording of the interview.
Investigator Chad Norris with the Cumberland County Sheriff's Department testified that he witnessed the Defendant sign the Waiver of Rights. He also stated that he reduced the Defendant's statement to writing. He identified the document and explained his process for creating it:
The way I do my statements is, I will write a portion of it, after what they've told me what they want to say, I'll write their words and I'll read back what I've wr[itten]; and then I'll continue on with it, write a small-another portion of it, read it back, and all the time asking them, "Is this what you want me to say? Is this correct?" And I do that throughout the whole statement. Then I give them the statement and have them read over it.
Investigator Norris confirmed that he followed this process with the Defendant's written statement. He then read the statement into the record:
I had several sexual contacts with [the victim] after he came on to me. I touched his penis several times, I'm not sure exactly how many times. He played with my penis several times as well. I never came/ejaculated while he played with my penis. When it first started we were both into it, but in the later part of the relationship [the victim] was more into it than me. I gave him a blow job more than one time, but I'm not sure exactly how many times. Most of the sexual acts occurred at Valerie D[ ]s' house on Old Highway 70. On one occasion while at the cemetery on POW Camp Rd not too far from Valeries's house [the victim] wanted to have sex in Valerie's van. He got in the back seat and took his pants off. He had his legs raised up and I had my pants unzipped with my penis out. I had a condom on and was about to put my penis in his butt, but decided [to] stop before we had intercourse. At a house on Old Mail Road where I was doing work me and [the victim] laid on top of each other, but nothing happened there. I wish these things hadn't happened and I would take them back if I could.
Investigator Norris testified that the Defendant signed this written statement at 10:45 p.m. He also testified that he did not promise the Defendant a ...