Court of Criminal Appeals of Tennessee, Knoxville
Session April 28, 2015
Appeal from the Criminal Court for Hamblen County No. 13CR112 John F. Dugger, Jr., Judge
Greg W. Eichelman, District Public Defender; and D. Clifton Barnes, Assistant District Public Defender, Morristown, Tennessee, for the appellant, Paul Stackhouse.
Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel; Dan E. Armstrong, District Attorney General; and Kimberly Morrison, Assistant District Attorney General, for the appellee. State of Tennessee
ROBERT W. Wedemeyer, J., delivered the opinion of the Court, in which D. KELLY Thomas, Jr., and Timothy L. Easter, JJ., joined.
ROBERT W. WEDEMEYER, JUDGE
A Knox County grand jury indicted the Petitioner for aggravated sexual battery of his granddaughter. This Court summarized the facts presented at trial as follows:
The State called the victim-one of the [Petitioner]'s granddaughters-as its first witness. The victim testified that in 2006, her parents had been divorced for about two years. The victim testified that although she lived with her mother, she still had visitation with her father, and that her father lived with his parents, the [Petitioner] and his wife. The victim testified that her visitation period included the entire summer, during which time she was living in her own room in the [Petitioner]'s house in Hamblen County.
During this summer visitation period, the victim testified that sometime during June of 2006, she had just finished taking a shower in the bathroom connected to the [Petitioner]'s bedroom when the [Petitioner] entered the bathroom and started touching her breasts. She further testified that he carried her into his bedroom, laid her down on the bed, and performed oral sex on her. The victim specified that the oral sex included the [Petitioner] placing his mouth on her vagina and licking her. The victim testified that on this occasion, while the oral sex was occurring, the [Petitioner]'s wife, Doris Stackhouse, entered the room and saw them on the bed. According to the victim, Doris Stackhouse was speechless, but a surprised expression washed over her face before she ran out of the room. The victim testified that after this interruption, the [Petitioner] stopped what he was doing and chased after his wife. The victim testified that after the [Petitioner] left, she dressed herself and ran down the hall to her own bedroom.
On cross"examination, the [Petitioner]'s counsel asserted that the victim's father remarried in January 2006 and that he moved out of his parents' house following his remarriage. Defense counsel asked the victim whether the sexual contact she had just described had occurred before her father had moved out of the home. The victim stated that she believed it had but that, regardless of whether or not her father was still living there, she spent considerable time staying at her grandparents' house during June of 2006. The [Petitioner]'s counsel brought to the victim's attention earlier statements made to investigators and on the stand to the effect that the act of cunnilingus at issue had occurred while her father was still living in his parents' home. The victim then testified that if the sex act had not happened in June of 2006, it must have happened in 2005. The [Petitioner]'s trial counsel proceeded to impeach the victim with statements made to investigators in 2008 to the effect that nothing had happened between her and the [Petitioner]. Finally, defense counsel raised the issue of a letter written by the [Petitioner] in 2008 that seemed to indicate that the sex act at issue had occurred three years earlier. The witness agreed that if she made that statement in 2008, then it sounded correct to her that the sex act would have occurred in 2005. Ultimately, the victim answered yes to a statement made by the [Petitioner]'s counsel that the sex act at issue did not occur in June of 2006.
On re"direct examination, the victim testified that she was under the age of thirteen when the sexual contact that was witnessed by the grandmother occurred. The victim further testified that when investigators initially questioned her regarding the incident she denied it on several occasions because she was afraid of what might happen to her and to her grandfather.
The State next called the [Petitioner]'s wife, Ms. Doris Stackhouse. Ms. Stackhouse testified that she had been married to the [Petitioner] for forty"seven years and was married to him in June of 2006. She further testified that only herself and her husband were living in their home in June of 2006, and that none of their grandchildren ever stayed with them, even intermittently, during that time. The witness specifically testified that the victim would never have stayed with them at any point during June of 2006. Following this testimony, the prosecution requested and received permission to treat Ms. Stackhouse as a hostile witness. During the ensuing cross"examination, Ms. Stackhouse denied that the victim ever visited the residence during June of 2006, denied ever seeing her husband with the victim in their bedroom, and denied ever seeing them together on a bed while the victim was nude. Concerning whether she had ever walked in and seen the victim naked on their bed, she stated that "there is a possibility that that may have happened, but it's not in my memory bank."
The State then questioned Ms. Doris Stackhouse as to whether she could recall going to visit Dr. Kim Keinath (her therapist) on September 15, 2006. Ms. Stackhouse replied that she had been a patient of Dr. Keinath "on and off" for some time but could not recall the specific dates of her appointments. The State asked Ms. Stackhouse if she could recall ever telling Dr. Keinath that she thought her husband was abusing the victim. Ms. Stackhouse stated that she never made any such statement and specifically denied telling Dr. Keinath that she had walked into the bedroom and seen her granddaughter naked on the bed being fondled by her husband.
The State then called Dr. Kim Keinath as a rebuttal witness. The defense objected on grounds that this impeachment testimony was not permissible during the State's case"in"chief and also objected on the grounds that the witness's testimony would include allegations of crimes that were outside of the one alleged in the Bill of Particulars. Following a jury"out hearing, the trial court decided to allow the testimony.
Dr. Keinath took the stand and testified that she had a Ph.D. in clinical psychology and had been treating Ms. Doris Stackhouse as a patient since approximately 1993. The witness testified that on September 15, 2006, Ms. Stackhouse came in to a session with her and said, "my life has changed dramatically." Ms. Stackhouse proceeded to tell her that she had walked into her bedroom and seen her granddaughter lying on the bed, partially unclothed, and that her husband was down between her granddaughter's legs. Dr. Keinath further testified that Ms. Doris Stackhouse stated: "I think my husband has been sexually abusing my granddaughter and I think this has been going on for a very long time." Following this statement, the trial court instructed the jury that with regard to the witness' testimony concerning "something" going on "for a very long time, " they were not to consider anything concerning any other incidents but were only to consider the particular incident that was alleged and charged in the indictment.
Dr. Keinath stated that she advised Ms. Stackhouse to report this incident to the Department of Children's Services (D.C.S.) and explained that if she would not do so, then the doctor would report it herself. Dr. Keinath testified that the rest of the session was spent discussing the possibility of making a report to D.C.S. Dr. Keinath testified that Ms. Stackhouse stated that while she was very angry with her husband and would ensure that he was never around any of the children, she thought that the [Petitioner]'s behavior might be secondary to his dementia. At some point after this session, when she concluded that Ms. Stackhouse was not going to report the incident to D.C.S., Dr. Keinath stated that she called and reported the incident herself.
On cross"examination, Dr. Keinath stated that nothing in her records spoke to whether or not this sexual contact occurred in June of 2006. Moreover, nothing in her records identified the victim as being the particular granddaughter who was abused by the [Petitioner] during ...