Court of Criminal Appeals of Tennessee, Nashville
Session Date November 12, 2014
Direct Appeal from the Circuit Court for Cheatham County No. 16157 Larry Wallace, Judge
James L. Baum, Burns, Tennessee, for the appellant, Jimmie Lee Reeder.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Dan Mitchum Alsobrooks, District Attorney General; and Wendell Ray Crouch, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.
Norma McGee Ogle, J., delivered the opinion of the court, in which Camille R. McMullen, and Robert H. Montgomery, Jr., JJ., joined.
NORMA McGEE OGLE, JUDGE
I. Factual Background
The appellant was tried for rape of a child and aggravated sexual battery. Although he does not contest the sufficiency of the evidence, we will summarize the evidence presented at trial.
Detective Jason Matlock of the Ashland City Police Department testified that he began investigating this case in February 2009 and that he interviewed the appellant on February 12, 2009. Detective Matlock arrested the appellant on March 5, 2009, and interviewed him again. During both interviews, the appellant claimed he had no idea why the police wanted to speak with him. When the police advised him that the case involved a young girl's allegations of sexual abuse, the appellant never asked them to identify the child.
On cross-examination, Detective Matlock acknowledged that before the interviews, the appellant had been in a custody dispute with the appellant's ex-wife and "had tried to bring charges against a Jody Jones." During the interviews, the appellant made statements indicating that he thought the interviews were related to the custody dispute or his problems with Jones. Someone from the Child Advocacy Center (CAC) interviewed the victim twice, and Deputy Matlock viewed both interviews. He acknowledged that the victim made three allegations of rape: that the appellant penetrated her anus with his penis, that the appellant penetrated her vagina with his penis, and that the appellant digitally penetrated the victim. However, Detective Matlock charged the appellant with only one count of rape of a child for the appellant's digitally penetrating the victim. He said he charged the appellant "based on our investigation and probable cause on those particular charges."
The State played the appellant's interviews for the jury. During both interviews, the appellant invoked his right to counsel when the police advised him that they wanted to question him about allegations of child sexual abuse. Although the police did not question him about the crimes, the appellant continued talking to the officers, telling them about the situation with his wife and his problems with Jones. During his March 2009 interview, the appellant also told them that he was going to church and that he and his children had been baptized.
Mary Barnhill testified that the victim's mother was Barnhill's foster daughter. After the victim was born, the victim's mother was unable to care for her, so Barnhill obtained custody of the victim and raised her. In September 2008, the victim was six years old. The appellant and his three children lived next door, and the victim would go to his house to play with his children. In January 2009, Penny Hackney, whom Barnhill described as "a friend of a friend, " was living with Barnhill. The victim revealed sexual abuse to Hackney, and Barnhill learned about the victim's allegations. Barnhill talked with the victim, and the victim told her about the abuse. Barnhill said that prior to the victim's disclosure, she never noticed any change in the victim's behavior. She said she no longer had custody of the victim because her nephew had adopted the victim.
Deputy Jeremy Ethridge testified that in March 2009, he worked for the Ashland City Police Department. On March 5, 2009, he walked the appellant from the police department to the jail. He stated that en route, the appellant told him that "his kids were at home when this incident occurred." On cross-examination, Deputy Ethridge acknowledged that in his report, he wrote that the appellant told him that "'the kids were at home during that.'" He acknowledged that he did not know what the appellant meant by that statement.
The then eleven-year-old victim testified that she had known the appellant "[a] long time" and used to go to his house to play with his children. She said that the appellant "put his wiener in my butt, " that the incident happened in the appellant's bedroom, and that she thought it occurred in 2009 when she was in kindergarten. The State asked her how many times the appellant touched her, and she said he touched her only one time. The victim told Hackney, and Hackney told Barnhill. The victim acknowledged that someone interviewed her at the CAC, and she said that she told the truth during the interview. She stated that the appellant's putting his penis in her anus hurt "[r]eally bad" and that he told her not to tell "our secret." The victim was afraid to tell anyone because she thought she would get in trouble.
On cross-examination, the victim testified that in 2009, she lived with her "Mamaw, " Mary Barnhill, and "Papaw, " James Barnhill. The victim said that in order to prepare for trial, she watched the videos of her CAC interview and talked with her father and the assistant district attorney general. The victim acknowledged that she alleged the appellant touched her "bad spot" on the inside; that he put his "bad spot, " meaning his penis, in her "bad spot"; and that he put his "bad spot, " meaning his penis, in her "butt all the way." The incidents occurred on different days in the appellant's bedroom. During the incidents, the appellant's bedroom door was open, and his children were watching television in the living room. Defense counsel asked if the appellant's two daughters were ever in the bedroom, and she said yes. However, the appellant's son was never in the room. The victim acknowledged that despite the abuse, she continued to go to the appellant's house to play.
The victim testified that she told Hackney that the appellant "put his wiener in my bad spot and butt and . . . I told her stuff about it." She acknowledged that Hackney's statement did not say that the appellant penetrated the victim's anus with his penis or that he put his "bad spot" in her "bad spot." The victim told an interviewer at the Our Kids Center that the appellant put his hand inside her "butt, " but she never revealed the incident to anyone at the CAC, anyone at the Department of Children's Services (DCS), or Hackney. The victim also never told anyone at the CAC that the appellant "put his wiener in [her] butt all the way." The victim said she was confused when she talked to Hackney and during her interviews at the CAC and DCS. The victim acknowledged telling someone at the CAC that the appellant should go to jail so that the appellant's ex-wife could move back into the house with the children. She also acknowledged that she liked the appellant's ex-wife. The victim denied making false allegations of sexual abuse previously.
Hollye Gallion, the Clinical Director and a nurse practitioner at the Our Kids Center, testified as an expert in the diagnosis and treatment of child sexual abuse that she evaluated the victim on February 17, 2009. When Gallion asked the victim to identify her "private" areas, the victim said "'bad spot'" and "pointed to her front genitalia and butt." The victim told Gallion that the appellant touched the inside of her bad spot with his finger. The victim also said that the appellant touched the inside of her "butt" with his hand and that he put a bag over his penis and made her touch it. Gallion examined the victim but found no signs of trauma, injury, or infection. She stated that the victim's having a normal physical exam was not unusual because the body could heal quickly. Also, those parts of the body were "pretty flexible" so that an examiner often could not detect penetration.
Kim Stringfield Davis testified that she was the Executive Director of the CAC and interviewed the victim in February and March 2009. The interviews were video recorded. During the first interview, the victim looked at anatomical drawings of a female child and an adult male. Davis said that the victim identified the "bad spot" on both drawings as the genital area. The State played the interviews for the jury.
During the victim's February interview, she said that the appellant "touched me in a bad spot" and "made me touch him in a bad spot." She said the appellant touched her bad spot more than one time. She said he also rubbed her, pulled down her pants, and licked her "butt." On the anatomical drawing of the girl, the victim circled the buttocks and the genitalia as the places the appellant touched. At first, she said that the appellant touched her private with his tongue. However, she then stated that he touched her private with his hand. She said that his hand went inside her private and that it hurt. The victim said that the appellant also licked her "butt" with his tongue and that he put a brown bag over his bad spot and made her touch it. The incidents happened in the appellant's bedroom, and the appellant's three children were watching television in the living room at the time. The bedroom door was open, but the appellant's children did not see what was happening. The victim said that during the incident with the bag, the appellant's youngest daughter was in the bedroom "looking at the t.v." At the end of the victim's interview, she said that the appellant licked her "butt" while she was on his bed. She said that he put his hand inside her pants and panties, rubbed her private, and put a bag on his private and made her touch it. However, that incident occurred on the couch.
During the victim's March interview, she said she forgot to tell Davis that the appellant "licked me in the private." The victim and the appellant were on his bed, and the appellant's youngest daughter was in the living room. The victim said that her clothes were on and that the appellant licked her private over her clothes. The victim and Davis then discussed some of the victim's allegations from the February interview. Later, Davis asked the victim, "What made him stop doing all that?" The victim answered, "When he got baptized."
The appellant's son and two younger daughters, who were twelve, ten, and eight years old at the time of trial, testified on the appellant's behalf. They all stated that the victim used to come over to their house to play and that they either played outside or in the girls' bedroom. All of them said that they never saw the victim with the appellant in his bedroom or saw the appellant touch the victim in a bad way.
The jury convicted the appellant of one count of rape of a child, a Class A felony, and one count of aggravated sexual battery, a Class B felony. After a sentencing hearing, the trial court sentenced him to twenty-five and ten years, respectively, to be served consecutively at 100%.
A. Impartial Jury
The appellant contends that he was denied his right to an impartial jury because one the of the jurors failed to reveal that she knew one of the State's potential witnesses, Jody Jones, or that her brother-in-law had been convicted of a sexual offense involving one of her nieces. The State contends that the appellant is not entitled to relief because he failed to show actual bias by the juror. We agree with the State that the appellant is not entitled to relief.
At the beginning of jury voir dire, the State read a list of potential witnesses and potential rebuttal witnesses, including "Jody Jones." The trial court asked the potential jurors if they knew any of the potential witnesses, and several of them raised their hands. One of the potential jurors said that his knowledge of the appellant would affect his ability to render an impartial verdict, and the trial court immediately excused him. A new potential juror filled the empty seat, and the parties began questioning the potential jurors. During defense counsel's questioning, he asked, "In your personal lives, has anyone ever been involved in some kind of abuse in such a way that you would be more likely to believe an abused victim than Mr. Reeder?" One potential juror raised her hand, said she had been abused, and said that "I don't think I can put it aside." The trial court immediately excused her.
During the rounds of voir dire, as potential jurors moved from sitting in the audience of the courtroom to sitting in the jury box, the trial court continued to question them about whether they knew any of the potential witnesses or knew of any reason why they could not serve. Three additional potential jurors advised the court that they had experiences involving abuse that could impact their decisions in the case, and the trial court immediately excused them. Thereafter, potential jurors Fisher, Raymer, and Murray moved into the jury box. The court stated that "[y]a'll have heard the questions I've asked" and asked if they knew any of the potential witnesses. Murray and Fisher raised their hands. Murray stated that he knew potential witness Stringfield because they used to work for the same company, and Fisher stated that she knew the appellant because he used to work with her husband. Defense counsel asked, "For the new members, is there any reason any of you cannot serve? Carry any prejudice you cannot put aside?" No one answered in the affirmative, and the jury was sworn.
In the appellant's motion for new trial, he claimed that he was denied a fair trial due to juror misconduct. At the hearing on the motion, defense counsel examined Fisher as follows:
Q Now, do you recall when I was asking . . . if you know or are related to any of these people, and I went through a long list of names; do you recall that, vaguely?
A Vaguely, yes, sir.
Q Okay. And one of the persons I asked about was Jody Jones?
A (Nods head).
Q And you didn't hold up your hand or say I know him or anything like that?
A I didn't hear you say his name. The one time I heard his name during the trial was on a recording when he was talking about him.
Q So you do know Jody Jones?
A Yes, sir.
Q And is it fair to say that Jody Jones and your brother were best friends when ...