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State v. Leonard

Court of Criminal Appeals of Tennessee, Nashville

April 24, 2017

STATE OF TENNESSEE
v.
JOHNATHAN ROBERT LEONARD

          Assigned on Briefs January 10, 2017

         Appeal from the Circuit Court for Marshall County No. 15-CR-110 Franklin L. Russell, Judge.

         Johnathan Robert Leonard ("the Defendant") appeals his Marshall County convictions for three counts of rape of a child, two counts of soliciting sexual exploitation of a child, and one count of aggravated sexual battery, for which he received an effective sentence of ninety-six years. The Defendant asserts that he was denied due process and a fair trial based on numerous instances of prosecutorial misconduct and that the cumulative effect of "irregularities" during voir dire and jury selection resulted in structural constitutional error, necessitating a new trial. After a thorough review, we affirm the judgments of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed.

          Brent Horst, Nashville, Tennessee, for the appellant, Johnathan Robert Leonard.

          Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant Attorney General; Glenn Funk, District Attorney General; and Weakley E. Barnard and Drew Wright, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Robert W. Wedemeyer, J., joined.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE

         I. Factual and Procedural Background[1]

         Trial

         This case arose after the Defendant's girlfriend's two daughters, nine-year-old A.W.[2] and seven-year-old B.W., came forward with allegations of sexual abuse by the Defendant. From August 2013 to March 2014, the victims' mother lived with the Defendant and her children in an apartment in Lewisburg. During this timeframe, the victims' mother worked full-time while the Defendant worked only sporadically. Therefore, the Defendant was at home and cared for A.W. and B.W. when they got off the school bus in the afternoons and on weekends when the victims' mother was at work. On March 2, 2014, B.W. and A.W. disclosed to their mother the Defendant's sexual abuse. The following day, the victims' mother took her children from the apartment and contacted the Lewisburg Police Department. After being interviewed by detectives, B.W. and A.W. were taken to Our Kids Clinic for forensic examinations. The Defendant was later arrested based on the disclosures made by the victims. After waiving his Miranda rights, the Defendant spoke to detectives and denied having any type of sexual contact with the girls.

         At trial, B.W. testified that, while her mother was at work, the Defendant would "make [her] touch his penis." She explained that the Defendant would "pull his pants down" and tell her what to do with his penis. She further stated that this happened multiple times and in different rooms of the apartment. B.W. testified that the Defendant put his penis in her mouth and touched her with his penis on her "bottom" and vagina. She stated that the Defendant put his penis "in [her] bottom" and that sometimes he would put baby oil on his penis. She explained that "[i]t would hurt" when the Defendant's penis touched her bottom. B.W. stated that she saw "white stuff" come out of the Defendant's penis and that sometimes it went into her mouth. B.W. also recalled that she would watch movies with the Defendant through his Xbox. The movies were pornographic movies, in which people had "no clothes on" and were "playing with each other's privates."

         A.W. testified that the Defendant "[s]how[ed] his private parts" to her while he was on the couch in the living room. She stated that the Defendant made her touch his penis with her hand, and he made her move her hand "up and down." A.W. testified that this happened more than one time. She recalled another time when the Defendant told her to pull down her underwear, and he touched her "butt" with his penis. A.W. stated that the Defendant pushed his penis "[i]n [her] butt" and that it hurt when he did this. She recalled that the Defendant would put lotion on her hand and make her rub the lotion on his penis. She stated that the Defendant's penis "would go straight" and that "clear, white stuff would come out." A.W. explained that one time she saw the Defendant put his penis in B.W.'s mouth. She also recalled that the Defendant would show her pornographic movies on his Xbox. She specifically recalled that the Defendant watched movies on the website "Pornhub."

         The Defendant testified and denied the allegations of sexual abuse. He also denied making B.W. and A.W. watch pornographic movies with him. The Defendant stated that, on the morning that B.W. and A.W. made the disclosures, he and the victims' mother had argued, and he told the victims' mother he was leaving her. Moreover, the Defendant contended that, after the Defendant said he was leaving the victims' mother on a previous occasion, she had threatened to "put him in jail." The Defendant testified that B.W. had been exposed to inappropriate movies at her friend's house. In closing argument, defense counsel argued the Defendant's theory of the case, in part, as follows:

[General] Barnard talked about common sense, and there's no way these children could have come up with this detailed version that they gave here in court the other day, between the time-from the time Mom has taken them to the police department and in that short span of time. I agree with that 100 percent. That's not what happened.
Mom takes them down to the police department. They make some-and they talk about it in the car-they make some type of statement to the police. And we didn't hear the details of that. I'm not saying we should have. There are rules how these things go.
But not long after that police department interview, we know what the children said.
Bear with me, I'm going to read the entire paragraph of what each of the girls said at the hospital, so I don't have to read it again.
So, what [A.W.] said. [A.W.] indicated that she was afraid to talk about what happened on Sunday because she did not want her mom to cry anymore. She did not want anybody to cry anymore.
[A.W.] then indicated that someone named Johnathan had done something to her on Sunday. And as to what he had done, [A.W.] again expressed reluctance and fear related to talking about what had happened.
[A.W.] agreed to answer a few specific questions necessary for diagnosis and treatment today. During this type of questioning, [A.W.] reported digital rectal touching by Johnathan had occurred on Sunday.
[A.W.] said it was almost always on my butt. He did stuff. [A.W.] provided no additional details, and no further questioning was pursued.
And this is what [B.W.] said.
When asked about the reason for her visit to the clinic today, [B.W.] said, "I don't really want to say."
When asked why she did not want to say, [B.W.] stated, "Because my dad got took [sic] away. My dad, he did the same thing that Johnathan did to us, my dad got taken away. Only he did it to another kid. So now he can't be around little kids anymore, only teenagers. And he cannot come to our house no more [sic]. And Johnathan can't come to our house no more [sic]."
[B.W.] then stated, "Like I told yesterday when I stated what-told yesterday, " [B.W.] said, "It was really scary. Yesterday was really scary." [B.W.] then reports she was scared yesterday and continued to feel afraid that her mother is going to be taken away from her.
[B.W.] stated, "And I don't want my mom to be taken away, because then everybody would be taken away. And we're going to have to find another family who will be nice to us, and not like my dad or Johnathan."
[B.W.] then indicated that she preferred not to answer today, regarding what Johnathan did.
. . . . [T]his is a medical exam, this is not court testimony. This is not telling you every single thing that happened to the girls. The bottom line is there was no detailed statement. There was no, "Well, I touched his erect penis and it looked like this." . . . . It wasn't that detailed two days after the allegation.
It simply wasn't, not as [Genera] Barnard seems to have thought.
A year and a half after the allegation, we get these types of sordid details.
….
It took a year and a half before we're in court and we hear those details.
What happened in that year and a half?
….
[L]et's not forget, where have those girls spent the last 600 nights? With their mother. Who I think at this point is fair to say hates [the Defendant], who she threatened to leave numerous times-or when he threatened to leave numerous times, said, "Do it, I'll have you arrested, " and actually had him arrested.
So those details don't come out until they have lived with this mother . . . .
….
So these children who have lived their entire lives with [the victims' mother] and spent-since the allegation the last 600 nights, not just the night before trial, not just one night, but the last 600 nights in the presence, care and control of this woman who hates the [D]efendant.

         Following deliberations, the jury found the Defendant guilty of three counts of rape of a child, two counts of solicitation of sexual exploitation of a minor, and one count of aggravated sexual battery. The trial court sentenced the Defendant, as a Range II multiple offender, to consecutive terms of thirty-two years at one hundred percent on each count of rape of a child. The trial court sentenced the Defendant, as a Range I standard offender, to concurrent terms of ten years at one hundred percent for aggravated sexual battery and five years at thirty percent on both counts of solicitation of sexual exploitation of a minor and ordered these sentences to run concurrently with the Defendant's sentences for rape of a child, for a total effective sentence of ninety-six years at one hundred percent in the Department of Correction.

         Motion for New Trial

         Thereafter, the Defendant filed a timely motion for new trial and amended motion for new trial. At a hearing on the motion, one juror ("Juror Leonard") testified that he formerly worked as a 911 dispatcher but was currently employed with the Marshall County Sheriff's Office as a correctional officer. Juror Leonard stated that he began his employment with the sheriff's office on October 26, 2015. Juror Leonard could not recall if he applied for the position before or after the Defendant's trial. The following exchange took place during the Defendant's questioning of Juror Leonard:

Q. . . . Do you recall whether you, at the time of this trial, do you recall making any unofficial inquiries about that position, to the sheriff or anyone in his department before the trial?
A. What was the trial date again?
Q. August 3rd.
A. I don't think so.

         Following the hearing, the trial court found that the jury panel called for the Defendant's case had heard one other rape case prior to the instant trial. The trial court found that one juror, Juror Derryberry, served on both juries. The trial court noted that the Defendant retained an investigator to interview the jurors after the trial but that the jurors "advised the investigator that the juror who sat on both trials did not impart during deliberations in the second case any information whatsoever from the first case[.]"[3] The court also determined that neither the trial court nor the prosecutors improperly rehabilitated any prospective juror during voir dire. Finally, the trial court found that, during voir dire, Juror Leonard did not misrepresent anything about his then existing employment or his prospective relationship with the Marshall County Sheriff's Office. The trial court determined that Juror Leonard did not become employed by the sheriff's office until two months after the Defendant's trial. The trial court entered a written order denying the motion for new trial. This timely appeal follows.

         II. Analysis

         A. Prosecutorial Misconduct

         The Defendant first contends that he was denied due process and a fair trial based on a persistent pattern of prosecutorial misconduct, consisting of "numerous prejudicial and inflammatory comments[.]" The State responds that the Defendant waived the majority of his claims of prosecutorial misconduct by failing to object at trial and failing to include the claims in his motion for new trial and that he is not entitled to relief under plain error. As for the Defendant's preserved claim of prosecutorial misconduct, the State responds that the issue is without merit.

         In total, the Defendant argues on appeal that sixteen different comments by prosecutors at trial were improper. The challenged comments are as follows: [4]

1. [W]e're going to start this trial, and we're going to have two little girls come in here and do the hardest thing they've ever done in their life, I want to make sure that you know before we have to do that that you can be a fair and impartial jury. So take five seconds to look in your hearts, and if you can't, if you can't and you're not sure that you can be, raise up your hand if you can't be fair in this case today. (during voir dire)
2. Now, how much bravery will it take, she's now eight, to come in here and tell you the things that happened to her as a six and seven year old girl, a little innocent girl telling you about the horrible things that happened to her by her mom's boyfriend, a man she one time called dad? (during opening statement)
3. These two little girls are probably going to feel like they're the ones on trial.[5] (during opening statement)
4. You knew before you walked in this courtroom today that he gave--[6] (during cross-examination of a ...

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