Session January 8, 2015
Appeal by Permission from the Court of Criminal Appeals Criminal Court for Union County No. 3640 E. Shayne Sexton, Judge
Robert L. Jolley, Jr. and Megan A. Swain (on appeal), Knoxville, Tennessee, and Dale Potter, Assistant District Public Defender (at trial), Jacksboro, Tennessee, for the appellant, Dominic Eric Frausto.
Herbert H. Slatery, III, Attorney General and Reporter; Joseph F. Whalen, Acting Solicitor General; Leslie E. Price; Senior Counsel Criminal Justice Division; Jared Ralph Effler, District Attorney General; and Tracy Tipton Jenkins, Assistant District Attorney General, for the appellee, State of Tennessee.
Cornelia A. Clark, J., delivered the opinion of the Court, in which Sharon G. Lee, C.J., and Gary R. Wade, Jeffrey S. Bivins, and Holly Kirby, JJ., joined.
CORNELIA A. CLARK, JUSTICE
I. Factual and Procedural Background
A. Jury Selection
Dominic Eric Frausto, the defendant, was indicted by a Union County Grand Jury for two counts of rape of a child and two counts of aggravated sexual battery. The case proceeded to trial in the Criminal Court for Union County, with jury selection beginning on August 26, 2009. The record before this Court regarding jury selection is sparse, and defense counsel indicated at oral argument that not all bench conferences between the attorneys and the trial court were transcribed. Nevertheless, the record sufficiently reflects that the trial court initially seated a panel of eighteen prospective jurors for voir dire and then immediately excused one person for cause. Next, the attorneys addressed the jurors, advised them of the nature of the case, and asked some preliminary questions. Afterwards, the trial court advised each side of its right to exercise nine peremptory challenges and stated that the trial would begin when the trial court had thirteen jurors.
Defense counsel objected to the trial court's jury selection process, noting that he had "never been in a situation where [he had] to strike everybody at one time." The trial court responded that he did not have to strike everybody. Defense counsel stated, "[T]he problem is if I use all of my challenges or if I challenge some more depending on who comes up in the box, then I . . . don't know who is coming up." The trial court responded, "[T]he process is get rid of the ones you don't want. Who might be coming up is completely out of your control . . . ." Defense counsel noted that in his previous experience he had "never had to do more than one strike at a time."
Defense counsel exercised seven peremptory challenges on the first panel of eighteen prospective jurors. The trial court instructed the eleven remaining jurors to wait in the jury room while another panel of eighteen prospective jurors were seated and questioned. From the second panel of eighteen, the trial court excused one person for cause and also reminded both parties that they could "back strike" any of the eleven prospective jurors from the first panel then waiting in the jury room.
Following voir dire of the second panel, the defendant used his remaining two peremptory challenges, and the State used three of its challenges. Considering both panels, a total of twenty-three prospective jurors remained. The trial judge then announced that he planned to select randomly ten of the remaining prospective jurors and exclude them from service.
Hearing this, defense counsel again objected to the trial court's method of selecting the jury. The trial court responded that the method "ha[d] been accepted statewide." Defense counsel argued that the method did not allow the parties to determine the twelve or thirteen jurors who would actually decide the case, explaining:
[B]ased on the first round, we're actually voir diring [eighteen], and we have to make enough selections to eliminate that down to . . . under [thirteen], otherwise, we don't get to go to another round. And then once we go to the second round, we've then had to use up enough challenges that we only have out of this group a limited number of challenges that's available and then . . . you end up with a larger pool than [twelve] or [thirteen, ] at which time the [c]ourt then randomly selects instead of the attorneys making the decision who is gonna be sitting in judgment of the defendant in determining guilt or innocen[ce]. The [c]ourt's procedure is that it gets to select, and we think that's improper.
After excusing the jury, the trial court asked defense counsel to explain how his client would be prejudiced by this method of jury selection. Defense counsel stated:
The problem I've got is, your Honor, the first [eleven] that's left on the panel are not gonna be the [eleven] people that are gonna be the first [eleven] people in this box, it's gonna be a random selection by the [c]ourt. And if the first [eleven are] gonna be who is here and then the [c]ourt's gonna take the next two people and put with it, that's one thing, but to take and pick [twenty-three] and then the [c]ourt randomly picks out of those [twenty-three], that's not a panel picked by the defendant or by the State, that's a panel picked by the [c]ourt.
The trial judge responded that the parties were not entitled to pick jurors, but rather, were only entitled to exclude jurors, that he had used this method of jury selection "for years, " and that the method had been accepted throughout Tennessee. Nevertheless, the trial court advised defense counsel that if he could produce "some law" indicating that the trial court's method was "wrong, " the trial court would "go with" defense counsel. Although defense counsel was unable to produce any contrary authority at that time, he preserved the objection for the record. The trial court then proceeded by randomly selecting and excusing ten prospective jurors. The thirteen remaining jurors served as the jury at the defendant's trial.
B. Trial Proof
The defendant was charged with four offenses: two counts of rape of a child, both alleged to have occurred at the defendant's residence on Gray Road, and two counts of aggravated sexual battery, both alleged to have occurred at the victim's residence on Maynardville Highway. The proof offered at trial demonstrated that Lenora Balogh dated the defendant for approximately six months, from February to July 2008. During this time, her two children, M.B., the victim of the alleged sexual offenses,  and A.B., were seven and two years old respectively. Ms. Balogh met the defendant when he lived at her apartment complex on Maynardville Highway. In March 2008, the defendant moved to another residence on Gray Road, which he shared with his mother, aunt, and cousin. For the remainder of her relationship with the defendant-March to July 2008-Ms. Balogh and her children stayed at the Gray Road residence five or six nights a week. The couple and the children all slept in the living room. Ms. Balogh and the defendant slept on a pallet on the floor; M.B. slept on the couch; and A.B. slept on the love seat. Ms. Balogh acknowledged that she and the defendant occasionally had sex in the living room while the children were sleeping, but she maintained that the children always remained asleep. Ms. Balogh admitted, however, that M.B. had walked into the living room on one occasion while she was performing oral sex on the defendant. Ms. Balogh denied that M.B. saw anything inappropriate, explaining that the defendant was fully clothed at the time.
Beginning in May 2008, Ms. Balogh attended community college classes twice a week from 5:00 p.m. until 9:30 p.m., and she occasionally left her children alone in the defendant's care at his residence during this time. She also periodically left her children alone with the defendant at her own apartment for shorter periods of time while she went out to pick up food or groceries five miles away. When she left for these errands, Ms. Balogh said the children would be "[p]laying or watching a movie" and the defendant would be "[s]itting there with them." The television was located in the bedroom of Ms. Balogh's apartment. Ms. Balogh testified that M.B. had been "doing fine" when she began her relationship with the defendant, but her demeanor toward the defendant changed "approximately in May, " and M.B. "went from loving him to hating him."
Ms. Balogh learned of the sexual assault allegations in July 2008 and reported the matter on either July 8 or 9 to the Union County Sheriff's Department, the Department of Children's Services ("DCS"), and M.B.'s doctor. Ms. Balogh stated unequivocally that M.B. had no further contact with the defendant after the allegations were reported.
M.B., eight years old at the time of trial,  testified that the defendant raped her at his residence, on the couch in the living room. M.B. could not remember when the rape occurred or how old she was at the time. However, she recalled that her mother had gone to the store and was not present when the rape happened and that her younger sister, A.B., was present in the living room, lying on the love seat. M.B. testified that the defendant "stuck his penis in [her] vagina, " "[m]oved it around, " and "[i]t hurted." M.B. testified that she was not wearing pants and that the defendant had moved her panties aside to accomplish the rape. M.B. equivocated on the number of times the defendant had raped her-stating on direct examination that it had happened only once but stating on cross-examination and redirect that it had happened more than once.
Christina Gilpatrick, M.B.'s daycare provider for over two years, testified that on two occasions when the defendant came to pick up M.B. from daycare, M.B. ran and hid in the house, cried, and said that she did not want to go home. Ms. Gilpatrick said these incidents occurred the last week of July and in early August of 2008. The dates Ms. Gilpatrick identified were after Ms. Balogh reported the rape allegations and stated that Ms. Balogh had no further contact with the defendant. When recalled to testify by the defendant, Ms. Balogh stated that the defendant had gone with her to the daycare to pick up M.B. a couple of times during the summer of 2008 and that M.B. was not happy to see him either time.
Phillip Johnson, a criminal investigator with the Union County Sheriff's Department, testified that he began investigating the allegations against the defendant after the report was filed with DCS in early July 2008. The defendant agreed to come into the station for a noncustodial interview on August 4, 2008. Detective Johnson advised the defendant that he was not under arrest and that he could leave at any time, and the defendant signed a "NonCustodial Interview" form confirming that he was given that advice. Detective Johnson also advised the defendant of his Miranda rights and provided the defendant with a written "Admonition of Rights" form, which the defendant signed, indicating that he understood his rights and waived them. At the defendant's request, Detective Johnson wrote the defendant's statement as the defendant gave it, and the defendant signed each page. The interview lasted less than forty minutes, after which the defendant was allowed to leave.
The defendant's entire written statement was admitted into evidence at trial, and the portion pertinent to ...