Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs January 10, 2017
from the Circuit Court for Marshall County No. 15-CR-110
Franklin L. Russell, Judge.
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.
R. App. P. 3 Appeal as of Right; Judgments of the Circuit
Horst, Nashville, Tennessee, for the appellant, Johnathan
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
L. Holloway, Jr., J., delivered the opinion of the court, in
which Thomas T. Woodall, P.J., and Robert W. Wedemeyer, J.,
L. HOLLOWAY, JR., JUDGE
Factual and Procedural Background
case arose after the Defendant's girlfriend's two
daughters, nine-year-old A.W. 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.
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."
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
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
[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
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
A year and a half after the allegation, we get these types of
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.
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.
for New Trial
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
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.
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[.]" 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.
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.
total, the Defendant argues on appeal that sixteen different
comments by prosecutors at trial were improper. The
challenged comments are as follows: 
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. (during opening statement)
4. You knew before you walked in this courtroom today
that he gave-- (during cross-examination of a ...