Assigned on Briefs September 3, 2014
Appeal from the Criminal Court for Shelby County No. 13-00529 John W. Campbell, Judge
Stephen C. Bush, District Public Defender; Barry W. Kuhn, Assistant Shelby County Public Defender (on appeal); and Constance Barnes, Assistant Shelby County Public Defender (at trial), Memphis, Tennessee, for the appellant, Rickey Bell.
Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; Amy P. Weirich, District Attorney General; and Terre Fratesi, Assistant District Attorney General, for the appellee, State of Tennessee.
Robert L. Holloway, Jr., J., delivered the opinion of the Court, in which Alan E. Glenn and Robert W. Wedemeyer, JJ., joined.
ROBERT L. HOLLOWAY, JR., JUDGE
Factual and Procedural Background
This case arises out of alleged sexual misconduct by the Defendant to his daughter, the victim. A Shelby County Grand Jury indicted the Defendant on one count each of rape of a child, aggravated sexual battery, and rape and two counts of sexual battery by an authority figure.
On August 26, 2013, the Defendant filed a motion for a bill of particulars, seeking to have the State provide specific dates for the alleged offenses. The State filed a Tennessee Rule of Evidence 404(b) motion on September 5, 2013, and a written response to the motion for a bill of particulars on September 6, 2013. Prior to jury selection on September 9, 2013, the trial court conducted a hearing on the two motions.
With respect to the motion for a bill of particulars, the State argued that the victim was unable to provide more detailed information for the dates of the offenses of rape of a child, aggravated sexual battery, and two counts of sexual battery. The State provided information that those offenses occurred between the time the Defendant returned to the family home and the victim's thirteenth birthday, and the indictment states those offenses occurred between March 15, 2007, and March 14, 2010. Regarding the rape charge, the State had previously provided discovery related to the rape showing that the victim was seen at Le Bonheur Children's Hospital on August 7, 2012. The trial court denied the Defendant's motion for a bill of particulars.
With respect to the 404(b) motion, the State sought to allow the victim to testify at trial about an incident she witnessed in which the Defendant hit the victim's mother with a belt. The State argued that this incident supported their assertion that the victim was scared to come forward and tell anyone about the Defendant's raping her repeatedly. The State also sought permission to present evidence at trial regarding the Defendant's 2006 conviction for misdemeanor assault by offensive touching. The State explained at the hearing that the Defendant had been charged with rape of a child but ultimately pleaded guilty to assault against the victim ("the 2006 case"). Prior to entering the plea, the Defendant had been incarcerated as a result of the charges against him. He was released for time served when he pled guilty. The State argued that, as a result of the misdemeanor assault conviction, the Defendant had trouble securing employment, the family suffered financial hardship, and the Defendant blamed the victim for the family's financial problems.
The victim testified at the motion hearing. In 2005, she told her mother about sexual misconduct committed by the Defendant. Her mother reported this information to the police. The victim confirmed that she testified truthfully in court regarding the events that transpired when she was seven and eight years old. When asked what the Defendant did to her that led to the 2006 case, the victim stated, "He would touch like my breast area, or my vagina, or any other inappropriate area, mostly with his hands." When she was examined at the Rape Crisis Center, the nurse discovered "redness on [the victim's] vagina, or some chaffing." The victim explained that the redness was from the Defendant's trying to insert his penis or fingers into her vagina and also attempting to insert his penis into her rectum. The victim denied ever telling anyone that these events never happened.
The Defendant returned to their home following his incarceration from the 2006 case "around [her tenth] birthday, " which was in the spring of 2007. Shortly after he returned he began touching her the same way he did before.
The victim recalled an argument between the Defendant and her mother that occurred in front of the victim and her sister. The Defendant was upset because he could not find a job. During the argument, her mother called the Defendant "a rapist, " and the Defendant responded by punching a wall. The Defendant then yelled at the victim, "Am I a rapist, have I ever did [sic] anything to you?" She answered "no" out of fear. The victim also recalled a separate time when the Defendant struck her mother three times with a belt during an argument.
With respect to the victim's perception of the financial impact of the 2006 case on her family, the victim stated, "It made me feel guilty that I told the first time, because before all of that had taken place we were on a good stable level and right after that it just seemed like we were struggling." After the case resolved and the Defendant returned home, he was unable to attain full-time employment. The Defendant blamed her for the family's financial problems. When the victim was asked why she went so long without reporting the Defendant's behavior after he returned home, she stated,
I felt like I didn't want to put my family through the situation again. And the first time I noticed that my mom, she really didn't believe me the first time and I didn't feel like I got the justice, for the first time and I felt like it was no reason to come back with it, again.
On cross-examination, the victim acknowledged that the Defendant started his own car-washing business when he returned to the home and that the family's financial situation improved.
The State argued that they should be allowed to present testimony concerning the events that led to the 2006 case to explain why the victim did not report the sexual abuse sooner, to prove a settled purpose to harm this particular victim, and to show motive, intent, and identity. The Defendant argued that the danger of unfair prejudice outweighed the probative value of such evidence.
At the conclusion of the hearing, the trial court took the matter under advisement. Before jury selection, the trial court ruled that the situation involving the Defendant's hitting the victim's mother with a belt would not be relevant at trial and was inadmissible under Tennessee Rule of Evidence 404(b). With respect to the Defendant's conduct that led to the 2006 case, the trial court stated,
[The victim] testified about this prior incident. This prior incident resulted in a conviction for assault. Based on the case law the Court finds that this - the subject matter of this testimony would be admissible under 404B.
I think the Court finds that we have the same victim involved. The Court feels it goes to the intent of the defendant as well as motive, as well as the fact that he is singling out a particular individual.
And it goes back to State versus Smith, and State versus Guinn in talking about there is a settled purpose to harm the victim.
I think that it is also significant in this case from the context that there was another minor child in the home at the same time, but was, apparently, not victimized.
So we have this prior conduct towards this one particular individual and then that conduct continued on. So I do think that it does go to intent and motive, as well as the indicative willingness to harm this particular victim, as well as settled purpose to harm this particular victim.
The Court finds that the evidence involving this other act, these other acts are clear and convincing, the Court makes that finding. As well as that the probative value of this testimony of this proof is not outweighed by the prejudicial effect.
Accordingly the trial court admitted testimony regarding the 2006 case at trial.
The Defendant proceeded to a jury trial on September 9-12, 2013. Jayelon Carr testified that she was currently a student at Delta State University. She had graduated from Overton High School, where she and the victim became friends through the school's music program. Ms. Carr had never been to the victim's house and had never met the Defendant. However, the two girls would call and text each other.
Ms. Carr recalled that August 6, 2012, was the first day of the school year and that the victim did not come to school that day. At approximately 3:30 p.m., the victim called Ms. Carr and told her why she had not been there. The victim made Ms. Carr promise that she would not tell anyone what she had told her. She and the victim spoke again that evening. Ms. Carr remembered being "scared" that something else might happen to the victim.
The next morning at school, one of the guidance counselors approached Ms. Carr about a matter unrelated to the victim, and she told the guidance counselor what the victim had told her. Ms. Carr was then questioned by school officials and the police about what the victim had told her. Ms. Carr confirmed that, even though she broke her promise and told the victim's secret, the two of them remained friends.
On cross-examination, Ms. Carr stated that she never noticed the victim being depressed or sad. On redirect examination, however, she agreed that the victim was "serious" when she described what had happened to her. Ms. Carr also agreed that the victim knew that she had a "strong personality" and would not "let it ride" if she heard something like what the victim told her.
Steven Broadway testified that he lived in Memphis and served as the assistant principal at Overton High School. He recalled that Ms. Carr and the victim were in the performing arts program at Overton.
Mr. Broadway knew the victim as an "[e]xcellent student" but recalled one occasion during her freshman year in which she got into a physical altercation with another student. The mothers of the victim and the other student met with Mr. Broadway regarding the incident, and he learned that the mothers attended church together. According to Mr. Broadway, the mothers were able to work out the situation with their daughters amicably, and he believed that the situation had been resolved. The next day, however, Mr. Broadway was outside at the end of the school day and heard the Defendant shouting profanities at the orchestra director. Specifically, he heard the Defendant say, "No one better touch my mother-f***ing kid, I got a damn problem is [sic] somebody at this school's putting their hands on my g**d***d child and I'll come up here and f*** this s**t up." Once the Defendant got in his car, he yelled similar comments at Mr. Broadway. Mr. Broadway did not respond but simply observed the victim also get into the car and the Defendant drive away. Mr. Broadway confirmed that the victim was present for at least a portion of that incident.
Mr. Broadway was aware of an investigation that began on August 7, 2012, regarding a situation with the victim. He confirmed that the victim was absent from school on that day. On cross-examination, he stated that, although he did not know her exact grades, he knew that the victim was in good academic standing because she would not have been allowed to stay in the performing arts program otherwise.
Officer John Morris with the Memphis Police Department ("MPD") testified that on August 7, 2012, he responded to a situation of "a possible victim of a forcible rape." When he arrived at the house, the Defendant was standing outside. Officer Morris asked the Defendant if he knew the victim, and the Defendant acknowledged that the victim was his daughter. Initially, Officer Morris did not know that the Defendant was the suspect in the situation with the victim.
Officer Morris asked to speak with the victim, and the victim came out of the house shortly thereafter and spoke with Officer Morris. Officer Morris recalled that one other officer was there at the time and that the Defendant did not join in Officer Morris' conversation with the victim.
When questioned by Officer Morris, the victim denied telling any of her friends about an incident that would need to be reported to the police. Eventually, Officer Morris contacted his supervisor, Lieutenant Savage, and learned that the suspect in this case was the Defendant. At that point, Officer Morris determined that he needed to find a more secure location to question the victim. Officer Morris had the victim sit in his squad car and requested a female officer to assist in questioning the victim. MPD Officer Mia Hendree arrived within five to ten minutes and spoke with the victim in the squad car. During that time, Officer Morris and his partner observed the Defendant.
After speaking with the victim, Officer Hendree advised Officer Morris of what the victim had told her. The Defendant was then arrested. The Defendant and the victim were transported in separate vehicles to the sex crimes unit of the police station. When Officer Morris arrived back at the station, the victim said, "Officer I am sorry." He asked her why she was apologizing, and she said, "Well, I didn't tell you the truth at first." Officer Morris then assured the victim that her initial statement to him was "completely understandable, given the circumstances."
On cross-examination, Officer Morris stated that the Defendant was standing approximately fifteen to twenty feet from him when he initially questioned the victim. He confirmed that they would have been completely visible to the Defendant.
MPD Officer Hendree testified that she responded to the scene because there had been a request for a female officer. After talking with the other two officers at the scene, Officer Hendree spoke with the victim. Because the victim seemed very nervous, she began by asking the victim about school. After speaking for a few minutes about school, Officer Hendree left the victim to speak with the other officers again, but the victim stopped her and motioned for Officer Hendree to return to the car. At that point, the victim proceeded to tell Officer Hendree everything that had happened.
When Officer Hendree returned to speak with the victim, Officer Hendree noticed the Defendant drop his head and then look up at the sky and gesture as though he were praying. After speaking with the victim, Officer Hendree transported the victim to the police station while the other officers arrested the Defendant and transported him to the police station as well. Officer Hendree later transported the victim to Le Bonheur Children's Hospital for physical and sexual assault examinations and to the Department of Children's Services for further interviews.
MPD Officer Christopher Slaughter testified that he currently worked with the crime scene division. On August 7, 2012, Officer Slaughter responded to a call at the Defendant's residence. When he arrived, Detectives Webb and Lawrence from the sex crimes division were already at the home, and they notified him that the victim's mother had consented to a search of the location. Officer Slaughter identified photographs that he took outside and inside the residence. He also identified some items he collected, ...