Session November 5, 2014
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals Reversed in Part and Affirmed in Part; Conviction Vacated; Case Remanded for a New Trial. Appeal by Permission from the Court of Criminal Appeals. Criminal Court for Shelby County. No. 1104122 Carolyn W. Blackett, Judge.
Neil Umsted, Memphis, Tennessee, for the appellant, Frederick Herron.
Robert E. Cooper, Jr., Attorney General and Reporter; Joseph F. Whalen, Acting Solicitor General; Jeffrey D. Zentner, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Terri Fratesi, Assistant District Attorney General, for the appellee, State of Tennessee.
Daniel A. Horwitz, Nashville, Tennessee, for the amicus curiae, Tennessee Association of Criminal Defense Lawyers.
CORNELIA A. CLARK, J., delivered the opinion of the Court, in which SHARON G. LEE, C.J., and GARY R. WADE, and HOLLY KIRBY, JJ., joined. JEFFREY S. BIVINS, J., not participating.
CORNELIA A. CLARK, J.
The defendant was charged with and convicted of rape of a child, and he received a twenty-five- year sentence. The defendant appealed, raising seven issues. The Court of Criminal Appeals held that the trial court erred by (1) allowing the prosecution to introduce the child's prior consistent statement, a recorded forensic interview, during its case-in-chief before the child's credibility had been challenged; and (2) ruling that if the defendant chose to testify the prosecution would be permitted to ask him whether he had been previously arrested or convicted of an unnamed felony. Nevertheless, in a divided decision, two judges of the Court of Criminal Appeals concluded that these errors were neither individually nor cumulatively prejudicial. The dissenting judge opined that the second error alone was prejudicial and entitled the defendant to a new trial. We affirm the Court of Criminal Appeals' conclusions that the evidence is sufficient to support the conviction and that the election is sufficiently specific and definite. We hold that the cumulative effect of the two conceded trial errors is prejudicial and entitles the defendant to a new trial. Because of the remand for a new trial, we do not address the defendant's other allegations of evidentiary errors. Accordingly, the judgment of the Court of Criminal Appeals is reversed in part; the defendant's conviction is vacated; and this matter is remanded to the trial court for a new trial, consistent with this decision.
I. Factual Background
On June 28, 2011, a Shelby County Grand Jury returned a single count indictment charging the defendant, Frederick Herron, with rape of a child. The indictment alleged that the rape occurred between
July 1, 2002, and July 5, 2006, when the child, born October 14, 1994, was greater than three but less than thirteen years of age. The abuse was not reported to law enforcement authorities until September of 2010. The defendant's trial occurred from March 26 to March 30, 2012.
The child, who shall be referred to as MM, was seventeen years old and in the eleventh grade at the time of trial. She had nineteen siblings, ranging in age from ten to forty-two years old. When MM was six years old, she and eight of her siblings were removed from the custody of their biological mother because she abused drugs and neglected them. MM moved in with one of her unmarried adult sisters, Takyra Shields. Ms. Shields had no children, so she and MM initially lived alone together in an apartment in Memphis.
Ms. Shields obtained legal custody of MM on July 13, 2001, shortly before MM turned seven. Toward the end of 2001, Ms. Shields met and began dating the defendant. The couple married on September 1, 2002, prior to MM's eighth birthday. MM's nephew, D.J., lived with them awhile and shared a bedroom with MM. After he moved out, his mother, MM's sister Treliesia, and her minor daughter lived with them for about two months and shared MM's bedroom. After they moved out, the household consisted of MM, the defendant, and Ms. Shields. The family moved frequently, about every eighteen months, causing MM to change schools often. MM recalled attending four or five different elementary schools.
Unlike Ms. Shields, whom MM described as " always mean to [her]," the defendant was " always really nice to [her]," " bought [her] things," " treat[ed her] better than" Ms. Shields did, took " the time to talk to [her]" rather than " yell" at her, was not verbally abusive, and never cursed or talked down to her. According to MM, the defendant seemed to treat her as his own daughter, genuinely appeared to care for her, and had taken her to and from school more than anyone else in her " whole life." MM characterized the defendant as a " [n]ice, kind, caring," and " generous" person, on whom she had relied a great deal to supply her daily needs, such as food, clothing, shelter, and school supplies.
When asked about her first memory of the defendant behaving inappropriately toward her, MM described an incident that occurred after Ms. Shields had scolded her. MM had been walking upstairs toward her bedroom, crying, when the defendant, who was already upstairs in the master bedroom, called for her to come into his room. MM complied. The master bedroom was dark when she went inside, and the defendant was seated on the side of the bed opposite the door, dressed in his boxer shorts, with his pants around his ankles. MM stood between the defendant's legs, with her back towards him,
and his legs touching either side of her body. With his hands, the defendant rubbed MM " on [her] back and kind of like on [her] stomach and like down [her] leg a little bit." As he touched her, the defendant asked MM, " Are you my baby?" When she responded, " I don't know," the defendant replied, " What do you mean you don't know? Either you is or either you ain't my baby." MM replied, " I don't know--I guess." About this time, Ms. Shields ascended the stairs, and the defendant told MM she could go. As MM was leaving, Ms. Shields stopped her and asked why she had been in the master bedroom with the defendant and if the defendant's pants were down. MM told Ms. Shields that the defendant had called her into the room and that, although his pants were down, he was wearing his boxer shorts. Ms. Shields replied, " Okay," asked no more questions, and allowed MM to go to her own room. MM recalled thinking that the defendant's behavior was " real weird," but she did not mention the incident to anyone, aside from her responses to Ms. Shields's questions.
When asked how far the defendant's touching had gone, MM testified that, beginning when she was in second grade and seven years old, the defendant came into her bedroom " all the time," " always" at night, and on each occasion, he " would always go to the bottom of [her] bed, and he would, like, fling the covers back, and he would start moving [her] legs to like try to get in between [her] legs" and " do what he wanted." MM testified that if she were lying on her side or stomach, the defendant would turn her onto her back, move her legs apart, pull down her pants and underwear, and " hav[e] sex with [her]." MM explained that by this term she meant the defendant would penetrate her vagina with his penis. MM had tried to " keep [her] legs closed" and would " clench up so he couldn't move [her]." Although MM could not recall the defendant touching her with his hands, she remembered him " breathing on [her]," and she stated that his breath smelled of beer " [j]ust about every time." MM was unsure whether the defendant ejaculated inside her vagina, but she recalled sometimes feeling a " wet," " sticky" substance on her bed and thigh. MM testified that the defendant never spoke during these episodes, which " never really stopped until fifth grade." Although MM was awake during these assaults, she ordinarily feigned sleep.
MM also testified about an incident that occurred when her cousin, Keyla Walker, who was visiting from out of town, spent the night with her. After the girls were in bed but before they were asleep, a person entered the room, walked to the foot of the bed, lifted the covers, and tried to get into bed with them. The girls did not scream or call out for help, but at Ms. Walker's suggestion, they " started kicking" their feet, and the intruder ran from the room. As he left, MM realized it was the defendant and that he was naked. MM remarked to Ms. Walker that this was not the first time the defendant had come into her room. Neither Ms. Walker nor MM told an adult about the incident. Ms. Walker left the next day and never spent the night at MM's home again when the defendant was present.
MM acknowledged, however, that the defendant had not assaulted her every night. Except for the incident involving Ms. Walker, the defendant had not entered her room when other family or friends were staying with them. MM also could not recall the defendant assaulting her before he and Ms. Shields married, or while the family lived in a loft-style apartment when MM was in second or third grade, or during the marriage when the defendant and Ms. Shields were separated.
The abuse ended, MM explained, when she confronted the defendant. This confrontation occurred, according to MM, when the defendant entered her bedroom around 2:00 or 3:00 a.m. on July 4th of the summer after she had completed fifth grade, while the family was living " [o]n Hacks Cross." After the defendant moved her legs apart and removed her pants on this occasion, MM asked him why was he on top of her. The defendant replied, " What?" MM repeated the question, and the defendant stood and asked, " What do you mean?" MM again repeated the question, but the defendant " just started talking about other stuff." When MM picked up a cigarette lighter and stated, " Well, how about I just burn you," the defendant " snatched" the lighter from her and admonished her for " playing" with it. MM left her bedroom and went into the living room, but the defendant followed her. When MM told him that she was " going to go tell" Ms. Shields about the abuse, he asked if she wanted " to mess with [his] marriage." When MM replied, " No," the defendant stated, " Well, if you don't want to mess with my marriage, you won't say anything." MM returned to her bedroom without responding and lay face down on the bed. The defendant came back into her room and licked her leg. MM again confronted him, asking, " Why did you just do that?" The defendant left her room without responding. A short time later, he returned and told her that he and D.J., who had spent the night in the guest room, were going outside to " pop firecrackers." MM went with them but " stayed in the background" as they " started popping firecrackers." When Ms. Shields awoke later and asked why they were up so early, the defendant replied, " We wanted to get a head start." Despite her earlier threat, MM did not tell Ms. Shields about the abuse or about the defendant entering her room that night. Despite her silence, the abuse ended that night. Nevertheless, MM estimated that the defendant raped her more than ten times while the family lived on Hacks Cross. According to MM, many of these assaults had occurred after the defendant and Ms. Shields had argued about his excessive drinking.
MM believed, based on questions Ms. Shields had asked her, that Ms. Shields either knew " what [the defendant] was doing to [her]" or " had suspicions" about the abuse. MM testified that on one occasion, the defendant entered her bedroom and was about to remove the covers and her pants, but suddenly ran from the room when Ms. Shields, normally a heavy sleeper, awoke. The next day, Ms. Shields asked MM if the defendant had been in her room. When MM replied, " Yes," and remarked that the defendant " had done something" to her, Ms. Shields " told [MM] to keep a fork or a knife under [her] pillow; and if anybody else came back in [her] room, to stick them with it." MM testified that she had never felt that Ms. Shields loved her and that Ms. Shields yelled at her " all the time" and " thr[e]w it in [her] face" that she was not living with her mother anymore. MM also described getting into " trouble" with Ms. Shields for " things [she] didn't do" and things Ms. Shields knew she " didn't do." MM agreed that she had been " hurt" and " angered" by Ms. Shields's conduct toward her. MM also recalled being " real[ly] angry" with Ms. Shields for not doing anything to stop the abuse. MM testified that, even after she told Ms. Shields the defendant had done something to her, he had remained in the household and had continued raping her.
MM testified that the defendant and Ms. Shields separated when MM was in fifth
grade. Although MM and Ms. Shields moved out, MM finished her fifth-grade year at the nearby elementary school. Each morning, Ms. Shields dropped MM off at the defendant's home, and from there, she walked to school. She also often returned to the defendant's home in the afternoon. MM and the defendant talked regularly in the afternoons about the people who had hurt her, how she felt, and how she could feel better. During one of these conversations, MM told the defendant that he, too, had hurt her. The defendant appeared surprised and questioned her, saying, " Me?" and " Well, what did I do to you?" When MM reminded him that he " used to . . . do things to [her]," the defendant asked whether she meant that he " used to put [him]self in [her]?" MM answered, " Yes," and the defendant then asked if he had been drunk at the time. When MM responded, " Yes, I guess so," and commented that he " used to drink," the defendant stated, " Well, I don't remember, but I'm sorry."
MM remained in contact with the defendant after he and Ms. Shields divorced, despite the sexual abuse, and she sometimes stayed at his home when she and Ms. Shields argued. MM testified that the defendant never assaulted her when she stayed with him. However, MM related that, on one of these occasions, she had gone to sleep alone on the living room floor, because the defendant had no furniture, and awoke the next morning with the defendant asleep behind her on the floor, dressed only in his boxer shorts, with his penis out of his boxers, " lying on the floor." Seeing this, MM went to another room in the residence and asked the defendant to drive her home when he awoke later.
MM's arguments with Ms. Shields escalated, and Ms. Shields kicked her out of their shared home three times during MM's eighth grade year. Each time, Ms. Shields called the defendant to come pick up MM. MM lived with the defendant about a week the first time, and although it is not clear how long she stayed with the defendant the second time, MM said she had not wanted to return home. On the third occasion, MM lived with the defendant about four months at the Autumnwood Apartments. The defendant's girlfriend also lived with them for " a little bit of time" but accepted a job in Texas and moved there. Although his girlfriend asked him to move with her to Texas, the defendant declined because MM did not want to leave Memphis. MM agreed that, during the time she lived with him, the defendant drove her to and from school, paid for her school clothes, and provided her shelter and food. MM had no contact with any of her adult siblings during this time.
MM remained at the defendant's home until he told her she could no longer live with him. Because Ms. Shields also refused to allow MM to move back in with her, MM moved in with another of her adult sisters, Tacoma McCrary. MM remained in contact with the defendant after she moved, and he attended the juvenile court hearing a few months later at which Ms. McCrary obtained legal custody of MM. The juvenile judge directed the defendant to continue providing MM's health insurance coverage.
In April of 2010, while she was in ninth grade and living with Ms. McCrary, MM attempted suicide by taking an overdose of Lortab. MM testified that she had not truly wanted to end her life and had " just
[been] thinking about, you know, everything that was happening and that [had] happened" and that " it just seemed like it was just one bad thing after another; and [she] was just tired of it." When the prosecutor asked MM to specify the things that had made her think she " might not want to live anymore," MM responded that it had been " [d]ealing with [Ms. Shields] and her--verbal abuse, physical abuse, and getting raped, and moving from home to home--different family members having to deal with, you know, different things--people dying in my family and stuff like that."
After the suicide attempt, MM received both in-patient and out-patient treatment at Lakeside, a local mental health facility, and her treatment was covered by the health insurance the defendant provided. The defendant visited her at Lakeside about three times. During these visits, the defendant questioned MM about what her caregivers had asked her and what she had told them. MM testified that she " kind of knew" the defendant was attempting to determine " if [she] had said anything" about the sexual abuse, " but [she] hadn't." MM did not tell the defendant that she had not disclosed the abuse to her Lakeside caregivers.
MM stopped having contact with the defendant after Ms. McCrary learned of the abuse and took MM, in September of 2010, to an office in downtown Memphis to speak with a counselor about it. MM testified that she had decided to tell the counselor about the abuse because Ms. McCrary and other family members were already aware of it. They learned of the abuse after MM's niece discovered her childhood diary, which contained an entry referring to the defendant raping MM from second to fifth grade. According to MM, her niece then showed the diary to Ms. Shields, who confronted MM about the abuse in the presence of several other family members, including at least one male and Ms. Walker. MM denied the abuse had occurred, so her family did not call the authorities at that time.
During her direct examination, MM authenticated the diary and read the following portion of an entry she had written at 7:27, on October 4, 2006, ten days before her twelfth birthday:
And another thing, [the defendant], AKA your bitch-ass ex-husband raped me from second grade until fifth--July 4th; and still tried to do it periodically; and the reason I said until July 4th was because that is when I confronted him. You remember when we were living in Hacks Cross--3913 Long Creek Road, at 4:00 A.M. that morning, and D.J. was in the guest room, and know--know this, [Ms. Walker] was the only person who knew until in the sixth grade when I finally told Ebony and Tonya.
MM acknowledged that the diary included only a single reference to the defendant raping her and that in another portion of the same diary entry, she had written, " I'm still a virgin." MM explained that she had considered herself to be a virgin in 2006, despite the rapes, because she had not wanted the rapes " to happen to [her]."
MM agreed too that her diary included more entries about her anger and resentment toward Ms. Shields than about the
abuse or her feelings toward the defendant. MM admitted that she had also written in the diary of her desire to kill Ms. Shields by stabbing her in the heart. MM said that she had been angry with Ms. Shields and made no apologies for writing about her feelings at the time. MM explained that she had not expected to be reading her diary aloud at age seventeen to " strangers in a courtroom."
The counselor to whom MM disclosed the abuse contacted the police, and on November 23, 2010, MM provided information and answered questions about the abuse in a recorded forensic interview. MM watched the recording prior to testifying at trial, and after she authenticated the DVD, the trial court, over the ...