Court of Criminal Appeals of Tennessee, Nashville
Session Date April 22, 2015
Appeal from the Circuit Court for Rutherford County No. F-67357 David M. Bragg, Judge
Gerald L. Melton, District Public Defender and Russell N. Perkins, Assistant District Public Defender, for the appellant, Marcus Smartt.
Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant Attorney General; Jennings Jones, District Attorney General; and Laural Hemenway, Assistant District Attorney General, for the appellee, State of Tennessee.
John Everett Williams, J., delivered the opinion of the Court, in which Alan E. Glenn and Roger A. Page, JJ., joined.
JOHN EVERETT WILLIAMS, JUDGE
FACTUAL AND PROCEDURAL HISTORY
The defendant was indicted for three counts of aggravated sexual battery and one count of solicitation to commit aggravated sexual battery after his ex-girlfriend's twin children revealed that he had had sexual contact with them at the time that they were around five years old. The defendant was tried December 10-13, 2012.
C.P. gave birth to the victims of these crimes, S.P., a boy, and M.P., a girl, on August 14, 1996. Sometime thereafter, she and the victims' father separated, and she began living with the defendant, with whom she had another child in the year 2000. By all accounts, the victims had a very close relationship with the defendant and all of his family. The victims looked on the defendant as a step-father, and the defendant's sister married the victims' father after he and the victims' mother separated. The defendant's mother lived with the victims, their mother, their sister, and the defendant for a period of time after the crimes alleged in the indictment, providing childcare for the victims and their younger sister. The victims called her "Nonna, " and she considered them as her grandchildren. The defendant's brother also stayed briefly with the family, sleeping on a couch when he had nowhere to stay.
The victims' mother testified that she lived in Rutherford County for three or four years and that she moved away on September 18, 2003. She and the defendant lived in three or four different houses together. The victims' mother testified that she was the main income provider and that they moved often because they could not always pay their bills. She testified that she suffered from postpartum depression and post-traumatic stress disorder through the time the abuse occurred and that she was hospitalized for these conditions. According to the victims' mother, the defendant controlled her ability to leave the house, and she was only permitted to go to work and on a daily forty-five minute walk with the defendant's brother's girlfriend. She testified that her failure to return on time would lead to conflict. When the prosecutor attempted to explore the conflict, the defendant asked for a jury-out hearing to determine the admissibility of the proffered evidence.
During the hearing, the victims' mother testified that there was both verbal and physical conflict in the house and that the children witnessed both. She testified that the defendant was controlling in various ways. The victims' mother testified that when she said she wanted to leave the state, the defendant threatened to kill their younger daughter and the twins and to make her watch. She also testified that the defendant had assaulted her, pushing her so that she broke her tailbone when she was eight months pregnant. The prosecution referenced a police report filed as part of discovery in which officers witnessed the defendant holding the victims' mother down. The victims' mother also referred to an incident in which S.P. told her that the defendant had stuck a needle into his groin and the defendant claimed he had been fixing S.P.'s pants. The prosecution argued that the evidence of these bad acts should come in because the defendant's sexual abuse was motivated by his desire to control the family and because the prior bad acts were pertinent to the victims' delay of some six or seven years in reporting the crimes. The trial court concluded that the relationship of the people in the house was relevant to the allegations and to the timing of the victims' disclosure, but it excluded any evidence of domestic violence, concluding that its probative value was outweighed by the danger of unfair prejudice.
When the trial resumed in front of the jury, the prosecutor asked about ways in which the defendant had been controlling. The victims' mother then stated that she had wanted to go to Alaska to be with her sick mother, but the defendant had told her that if she tried to leave, he would kill the baby and make her watch. Defense counsel objected, and a bench conference, which was not recorded by the court reporter, ensued. Back on the record, the trial court stated it was granting the motion to strike the testimony and instructed the jury to strike the question and answer from their minds and not to refer to it during deliberations. The court stated, "And as to your subsequent motion, [counsel], I would deny that at this time." The victims' mother then testified that the defendant did not permit her to wear makeup, certain colors, or revealing clothing and that he would not let her talk to her family in private. The defendant monitored her communications, and he would not permit her to get close to any friends. She testified that the defendant began to drink moderately during the time that the abuse occurred and became angry if there was not money for beer.
The victims and their mother identified a picture of the house where the abuse occurred. M.P., her mother, and the defendant's brother, who had briefly stayed on the couch, all testified that the house had one bathroom, which had no tub but only a shower.
M.P. testified that she, her brother, her sister, her mother, and the defendant all lived in the house together. One day, M.P's mother left the house and did not take M.P. with her. M.P. recalled that she was excited about getting ready for school the next day and that she was just starting kindergarten. M.P. went into the bathroom to take a shower, and she shut the door. M.P. recalled that the shower curtain was tinted with a design on it, and the victims' mother confirmed that the shower curtain at that house had a wavy design to distort images. The defendant came in to use the bathroom, and M.P. was telling him that his shirt appeared to be a different color than it actually was because she was looking through the tinted curtain. The defendant was wearing baggy pants and either a blue or green shirt. After pulling up his pants and washing his hands, the defendant walked up to the shower, opened the curtain, and grabbed M.P.'s bottom. He pulled down his pants and underwear with his other hand, exposing his erect penis. He touched his penis to her stomach. M.P. did not hear a noise, but the defendant appeared to hear something because he suddenly jumped, pulled up his pants, and ran out. M.P. did not tell anyone because she was embarrassed and scared. Years later, she told first a friend, then her brother, then her mother, and finally the authorities. M.P. testified that she made her disclosure because she knew it was the right thing and she that would feel guilty if it happened to someone else.
M.P. testified that she and her mother and siblings moved to Alaska and that she returned to Tennessee to visit her father about two years after they moved. She stayed for two weeks and saw all of the defendant's family except the defendant, whom she had not seen from the time she moved from Tennessee to the time of trial. She testified that her brother now lives with their father in Tennessee because he was arguing with their mother.
S.P. also testified that he lived with his mother, two sisters, and the defendant when he was four or five and close to starting kindergarten. On one occasion, the defendant entered his room and told his twin sister to go outside. The defendant began to tell S.P. that he cared about him. The defendant then pulled down S.P.'s pants and began to touch S.P.'s penis. When S.P. told him to stop, the defendant told him to "shut up" and kept touching him. S.P. recalled another incident when his mother was out of the house and he was going to take a shower in the bathroom. The defendant came in while S.P. was undressing, showed his penis to S.P., and told S.P. to grab it. S.P. refused, and the defendant then forced him to touch the defendant's erect penis by putting his own hand over S.P.'s and moving S.P.'s hand to his penis. S.P. read a statement he had previously made in order to refresh his recollection then testified that the defendant had also told him to "[s]hut the F up" and slapped him prior to forcing him to touch his penis. S.P. testified that about three weeks after the incident in the bathroom, the defendant came to his room, acted "real nice, " and told him not to tell anyone about the abuse.
S.P. testified that he was scared to tell anyone because he felt the defendant would "take it out" on him or his mother. S.P. disclosed the abuse when he was about eleven years old. He stated that his sister revealed something to him which he told his mother but that he did not tell his mother that he had been abused until about a year later. S.P. testified he had not seen the defendant since the family moved to Alaska, although he had come back to Tennessee two years after the move for a visit to his father and although he currently lives with his father, the defendant's brother-in-law, in Tennessee.
S.P. acknowledged that he did not speak to anyone outside the family about the abuse for about a year after he told his mother. He asserted that he had only spoken with his mother once about the abuse and that she did not tell him what to say. S.P. testified he had a good relationship with his father and that he was close to his mother. He decided to move in with his father because he was arguing with his mother at the time.
The victims' mother testified that the family moved from the house in which the abuse took place to another home, which they shared with the defendant's mother, and that she eventually ended her relationship with the defendant. She testified that the defendant's mother actually helped her get to a shelter but made her promise not to reveal to the defendant that his mother had assisted her. The victims' mother then stayed briefly with a friend who was a police officer. She had left all of her belongings behind and had to wait while family and friends in Alaska raised money for airfare for herself and the children.
Virginia Dodson, a friend of the victims' mother and former police officer, testified that the victims and their mother stayed with her while they waited for family to raise money so that they could go to Alaska. Ms. Dodson knew the family well and recalled that S.P. had some issues in school with being aggressive; at one point, she was called in to speak to him at school. Ms. Dodson also testified that the defendant had briefly stayed at her house during a time when he and the victims' mother were separated. During this stay, he acknowledged being controlling of the victims' mother and expressed a desire to reform. During Ms. Dodson's testimony, the prosecutor asked her to recall a conversation with the defendant about being controlling. Ms. Dodson responded that she was a police officer at the time and that the defendant had been arrested. After a bench conference, which was not recorded, the trial court again instructed the jury to strike the answer from their minds and not to refer to it during deliberations. The trial court then stated, "As to your subsequent motion, [counsel], the Court would deny that motion."
The victims and their mother and sister were able to move to Alaska after a short stay with Ms. Dodson. The victims' mother first learned of the abuse about five or six years after it occurred, when the victims were eleven or twelve years old and living in Alaska. She was awoken by S.P., who was visibly shaken and emotional. The victims' mother at first thought he was having a seizure,  and he could hardly speak. S.P. told her to talk to M.P. The victims' mother found M.P. crying and on the verge of vomiting. After M.P. disclosed the abuse, the victims' mother made a report to the local authorities but did not pursue charges based on what M.P. had told her because she did not feel M.P. would be able to pursue charges. S.P. told her years later that he was abused. The victims' mother ...