Assigned on Briefs March 3, 2015
Appeal from the Criminal Court for Shelby County No. 11-04834 Chris Craft, Judge
Claiborne H. Ferguson, Memphis, Tennessee, for the appellant, Kenon Pack.
Stephen Bush, Chief Public Defender; Barry W. Kuhn (on appeal) and Trent Hall (at trial), Assistant Public Defenders, Memphis, Tennessee, for the appellant, Jennifer Banks.
Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel; Amy P. Weirich, District Attorney General; Eric Christensen and Lora Fowler, Assistant District Attorneys General, for the appellee, State of Tennessee.
Timothy L. Easter, J., delivered the opinion of the Court, in which Robert W. Wedemeyer and Robert H. Montgomery, Jr., JJ., joined.
TIMOTHY L. EASTER, JUDGE
Factual and Procedural Background
This is a direct appeal by both Defendants from their separate convictions in the Criminal Court of Shelby County. Defendant Banks and her boyfriend, Defendant Pack, were both indicted by the Shelby County Grand Jury for two counts of aggravated child abuse, charging in alternative counts that Defendants inflicted serious bodily injury in Count One and used a deadly weapon or dangerous instrumentality in Count Two. The victim was Defendant Banks's five-year-old daughter. According to the State, the victim had been whipped repeatedly with a homemade wooden paddle, sustaining life-threatening injuries.
On Monday, December 13, 2010, the victim's kindergarten teacher, Tiffany Eason, noticed that the victim was unable to sit while eating her breakfast in the school cafeteria. The victim said that her leg was hurting. The victim was a new student and had only been attending Alcy Elementary for a few days. Ms. Eason recalled that the previous Friday, after the Christmas party, she had noticed that the victim was walking strangely and that the victim had said that her leg was hurting on that occasion as well.
The school nurse, Joann Oliver, was called into the cafeteria. Ms. Oliver also noticed that the victim was sitting on her knees while trying to eat breakfast. Ms. Oliver attempted to assist the victim, but when her leg brushed against the victim's buttocks, the victim screamed. Ms. Oliver carried the victim to the teacher's lounge, accompanied by Ms. Eason. The victim was crying. When Ms. Oliver attempted to calm the victim by telling her that they would call her mom, the victim became hysterical, crying, "No, no, no, I don't want to go home."
Once in the teacher's lounge, Ms. Oliver pulled down the victim's pants. The victim's legs and buttocks were swollen, and there were open sores and blood on the backs of her legs, bruises on her thighs, and old scabs and scars on her knees. According to Ms. Oliver, the victim's "whole posterior was just swollen purple black tight red." The principal, Sunya Payne, was notified that there was an emergency and told to come to the teacher's lounge. Ms. Eason asked the victim what happened, and the victim initially said that she fell out of bed. The victim eventually reported that she got a "whooping" from her mom for lying. The victim told Ms. Eason that her mom, Defendant Banks, "whooped" her one time, and that her "daddy, " Defendant Pack, "whooped" her more than her mom. The victim reported that she was spanked every day.
Ms. Oliver tried to pull off the victim's panties, and some skin that had adhered to the panties came off. The wounds were fresh, weeping bright red blood. The victim's skin was hot to the touch, swollen, and very tight. Ms. Oliver put an ice pack on the victim's back. The victim became very quiet, started falling asleep, and her breathing was shallow. The victim was going into shock by the time the ambulance arrived to take her to the hospital, and she was deteriorating rapidly. Ms. Oliver believed that the victim's condition was life threatening, that "she was dying right in front of us."
Defendants Banks and Pack arrived at the school to pick up the victim. Defendant Banks was not allowed into the teacher's lounge to see the victim. Ms. Payne spoke to Defendant Banks and told her that the child had been beaten and had bruises. Defendant Banks responded that the victim did not say anything to her. Ms. Payne described Defendant Banks as calm but confused, as if she did not know what they were talking about. Defendant Banks kept saying that the victim did not tell her she was hurting. According to Ms. Eason, it was not difficult to see the injuries and anyone living with the victim would have noticed them while bathing or dressing the victim or even seeing her walk.
Paramedic Jeffrey Mayer responded to Alcy Elementary School on December 13, 2010, at approximately 8:15 a.m. He went to the teacher's lounge where he saw the victim lying on the couch, covered with a blanket. He asked the victim to point on a stuffed animal where she was hurting, and the victim indicated from the stomach down both legs. The victim said that her mama gave her a "whooping" with a ruler. Paramedic Mayer cleared non-essential people from the room and removed the blanket to assess the victim's injuries. He noticed her thighs were enlarged and the skin was tight and felt hot to the touch. He explained that this could be due to either internal hemorrhaging or infection. He took the victim's pulse and her heart rate was high, which could be due to loss of blood or pain. Paramedic Mayer documented fourteen areas of injuries on the victim, characterizing her injuries as "significant." When asked what happened, the victim said "my mama gave me a whooping." The victim said that her mother used a ruler and that she got a "whooping" every day when she came home from school.
Both Ms. Payne and Ms. Eason accompanied the victim to the hospital. The victim told Ms. Payne that her mommy gave her "one tap tap, " and that her daddy gave her "more than one tap tap." Ms. Payne understood the victim to be referring to Defendant Pack when she talked about her "daddy." Ms. Eason recognized Defendant Pack as the person who brought the victim to school every day. The victim said she got spanked if she did not finish her math problems or if she lied. The victim said that she was hit with a ruler or a big stick. The victim also said that sometimes she holds crates when she gets in trouble.
Dr. Karen Lakin, a board certified physician in pediatrics and child abuse pediatrics, examined the victim at LeBonheur Children's Hospital. She spoke to the victim, the school personnel who accompanied the victim to the hospital, and the victim's mother, Defendant Banks. The victim reported that she had been whipped. Defendant Banks reported that the victim was whipped the prior Saturday. Dr. Lakin explained that, during the examination, the victim was very still rather than moving around like children usually do. The victim would react in pain when the areas that were bruised or swollen were touched, but otherwise remained very lethargic. Dr. Lakin stated that the victim "was basically in shock."
Dr. Lakin noticed that there was significant swelling to both lower extremities, with the left side more swollen than the right. The swelling was so dramatic that the victim had lost the contour between her thighs and her buttocks. The victim's skin was very hard and tight, and there was discoloration on the back, the back of the legs, and the buttocks. The victim had a large hematoma, or a collection of blood, in her abdomen. The victim had extremely low blood pressure, low blood volume, and a high heart rate because she had lost about two-thirds of her blood volume from all the bruising in her lower extremities. The victim required an emergency blood transfusion. At trial, Dr. Lakin testified that the victim would have died if she had gone home that day rather than to the hospital.
The victim developed complications from her injuries, including acute kidney damage and necrosis of the tissue on her left thigh. Dr. Lakin performed a debridement, or removal of all of the dead tissue from the wound, like she would if she were treating a severe burn. The victim had to come back to the hospital several times a week over the course of a month to have the bandaging over the wound changed until it was healed enough that the victim could receive a skin graft, where skin from the front of the victim's thigh was shaved off and used to cover the open wound on the back. This wound took three months from the time of the initial injury to heal and developed keloid scars that the victim will have for the rest of her life.
At trial, Dr. Lakin opined that these wounds were the result of blunt force trauma. She said that it would be very painful to put on clothing and that the victim could not bend because of the swelling. She explained that there was evidence of newer injuries on top of older injuries. She said that there would be significant pain to be repeatedly hit on top of old bruises, describing it as "ongoing torture."
During cross-examination by Defendant Pack's attorney, Dr. Lakin said that the victim reported that her mother had whipped her and caused the injuries. After a jury-out hearing, Dr. Lakin read from a page in the victim's medical record over an objection by Defendant Banks. Identified as Exhibit 36A, the page contained an assessment by a Child Life Specialist, including reported medical and social history as well as the Specialist's observations of and interactions with the victim. A follow-up note indicated that the victim, "[a]fter hearing mention of her mother . . . asked EDT if her mother
'knew where she was', 'knew that she had told everyone' and if mother was mad at her or if she was in trouble, " and that the Specialist reassured the victim that she was not in trouble for telling her teacher what happened to her, that nobody was mad at her, and that her mother knew where she was and wanted her to heal. Another page from the victim's medical records, identified as Exhibit ...