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State v. Hall

Court of Criminal Appeals of Tennessee, Nashville

May 2, 2017


          Session October 18, 2016

         Appeal from the Criminal Court for Davidson County No. 2010-D-3534 Monte Watkins, Judge

         The Appellant, David Scott Hall, was convicted in the Davidson County Criminal Court of attempted especially aggravated sexual exploitation of a minor, a Class C felony, and sentenced to four years to be served as one year in confinement and the remainder on supervised probation. On appeal, the Appellant contends that the evidence is insufficient to support the conviction, that the trial court erred by allowing an expert witness to give irrelevant and highly prejudicial testimony, that he is entitled to coram nobis relief, that his right to a speedy trial was violated, that the trial court erred by allowing the State to introduce evidence without showing a proper chain of custody, that the trial court erred by allowing the State to play only a portion of a controlled telephone call to the Appellant, that the trial court erred by allowing the victim to testify about habit, that the trial court erred by allowing the State to introduce into evidence a letter supposedly written by the Appellant, and that the trial court erred by allowing the State to make improper closing arguments. Based upon the oral arguments, the record, and the parties' briefs, we conclude that the evidence is sufficient to support the conviction, that the trial court erred by allowing a witnesses to give irrelevant testimony but that the error was harmless, that the Appellant is not entitled to coram nobis relief, and that his right to a speedy trial was not violated. Finding no plain error as to the remaining issues, we affirm the judgment of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

          Manuel B. Russ, Nashville, Tennessee, for the appellant, David Scott Hall.

          Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Glenn R. Funk, District Attorney General; and Deborah Housel, Assistant District Attorney General, for the appellee, State of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which John Everett Williams and Robert W. Wedemeyer, JJ., joined.



         I. Factual Background

         In December 2010, the Davidson County Grand Jury indicted the Appellant for attempted especially aggravated sexual exploitation of a minor. At the February 2015 bench trial, the eighteen-year-old victim testified that in May 2010, she was thirteen years old and lived in Nashville with her mother and sister, who was eighteen months younger than the victim. A flood had damaged their house, so the Appellant lived with them for a very brief time to help them paint and fix the garage. The victim said that the Appellant was "our second cousin" and acknowledged that he was "close" to the family.

         The victim testified that she and her sister had separate bedrooms and that a bathroom was between their rooms. The Appellant slept upstairs in a loft, and he was not allowed in the victim's bedroom. However, he would come into her room occasionally to tell her it was time for dinner, ask her a question, or show her something. A fish tank was on a dresser in the victim's room. The victim and her sister usually fed the fish, but anyone who wanted to feed them could do so. The victim's weekday routine before school was to get out of bed, wake her sister, spend fifteen minutes in the shower, get dressed, and eat breakfast. While the Appellant was living with them, the victim would put on clothes immediately after her shower rather than walk from the bathroom to her bedroom wearing only a towel. The victim's bedroom was "not a very big room, " and she would dress in an area between her dresser and her bed. The victim's mother always drove the victim and her sister to school.

         The victim testified that May 18, 2010, was the last day of school before summer vacation. That morning, she got out of bed, took a shower, and returned to her bedroom. She then stated as follows:

I noticed on my bed some clothes had been ruffled. I didn't remember them being that way when I had left.
And then I looked over to where my folded clothes were on my dresser and I went over there to get some underwear. And when I had started looking through the clothes I saw a red dot and two little bra cup things. And a red dot. So I unveiled it and there was the camera.

         The victim said that the red dot meant the camera was recording and that she recognized the camera as belonging to the Appellant.

         The victim testified that she was surprised and picked up the camera, which no longer appeared to be recording. She showed the camera to her sister, and they watched a video on the camera. The video showed the victim entering her bedroom, "walking and rifling, " and seeing the camera. The victim recognized the Appellant in the video. The State asked how she recognized him, and she answered, "His shirt, mostly. But just the frame of his figure. Like I could tell it was him." The girls took the camera to their mother and watched the video with her.

         The victim testified that after the three of them watched the video, her mother had a conversation with the Appellant. The victim was not present for the conversation. As the girls and their mother were leaving for school that day, the Appellant was also leaving. He asked if he could go into the victim's bedroom to get his sunglasses case, but he was not allowed to do so. He did not live with them after May 18.

         On cross-examination, the victim testified that she had known the Appellant since she was seven or eight years old. She acknowledged that it was "normal" for him to be at her home and that her mother trusted him. The Appellant had a pair of sunglasses, but the victim did not remember him leaving the sunglasses in her room on May 18. She acknowledged, though, that he asked to get his sunglasses case from her bedroom before he left that day. Defense counsel asked if one of the fish in the fish tank, a fish nicknamed "Barrack Obama" by the Appellant, belonged to the Appellant. The victim answered, "Maybe he did. I - that sounds a little familiar. I can't specifically remember it, but that - he might have, yeah. I don't think it was his fish, though. I don't think - I can't remember." She said she also did not remember the Appellant ever feeding any of the fish.

         The victim testified that she, her sister, and the Appellant shared the same bathroom. The Appellant loved to travel and take photographs, and his camera was with him most of the time. The Appellant usually kept it in his pocket. The victim said that the Appellant was like an uncle to her, that she loved him, and that he never hurt her or made her feel uncomfortable.

         On redirect examination, the victim testified that the Appellant usually would come downstairs while she and her sister were getting ready for school and that he would not have his camera with him. The victim did not see the Appellant's sunglasses case in her room on May 18.

         Fifteen-year-old A.M.[1] testified that she was the victim's sister and was eleven years old in May 2010. The girls lived with their mother, and the Appellant stayed with them "on and off" for about a month to help after the flood. Their mother had a rule when a man was in the home that the girls had to be fully clothed when they came out of the bathroom. On May 18, the victim woke A.M. and went to take a shower. While the victim was in the shower, A.M. left her bedroom and saw the Appellant standing near the victim's bedroom and the bathroom. She said it was unusual for him to be there because "he would just usually sit on the couch or [be] eating." At some point, the victim brought the Appellant's camera to A.M. A.M. played a video on the camera, and the girls watched the video. A.M. said that she recognized the victim and the Appellant in the video and that she and the victim showed the video to their mother. On cross-examination, A.M. testified that she did not remember giving the Appellant his cellular telephone charger before she left for school on May 18.

         E.M. testified that she was the mother of the victim and A.M. and that the Appellant was her second cousin. On the morning of May 18, 2010, the girls came into her bedroom and said they had found something. They were "quite excited" and "seemed upset." The girls and E.M. watched the video on the Appellant's camera twice. E.M. said that she tried "to keep it kind of calm because everybody was a little worked up" and that she told the girls to get ready for school.

         E.M. testified that she went upstairs and asked the Appellant if he had been downstairs. The Appellant said he had been downstairs to the bathroom. She asked him if he had been in the victim's or A.M.'s bedroom, and he said no. E.M. told him that something had happened and that she needed him to leave the home. The Appellant got his belongings and went downstairs. E.M. said he had not been to her home since May 18.

         E.M. testified that she dropped off the girls at school, took the camera to the police department, and spoke with a detective. At some point, she made a controlled telephone call to the Appellant in the presence of a female detective. The State played a portion of the call for the trial court. During the call, E.M. told the Appellant that she found a camera in the victim's bedroom and that it contained a video recording of the victim. E.M. asked how the camera got into the room and "set up" to record the victim. The Appellant said that he did not remember making the video but that he remembered going into the victim's room on May 18 to get his sunglasses. He said that he may have "set [the camera] down or something" but that he did not remember turning it on. E.M. told the Appellant that he was also on the recording, and he said, "I probably went in there and fed the fish. I was waiting to go to the bathroom." The Appellant told E.M. that he was "really embarrassed, " that he was sorry the camera was in the victim's room, and that he "wasn't trying to do anything." The Appellant repeatedly maintained that he did not intend to record the victim.

         On cross-examination, E.M. testified that the Appellant went on vacations with her family, that he babysat her children, and that she never had a problem with him. When E.M. asked the Appellant to leave on the morning of May 18, he did so. Before he left, he told her that he was looking for his sunglasses. E.M. went into the victim's bedroom, but the Appellant's sunglasses were not there. E.M. said that the Appellant may have named one of the fish in the fish tank but that he was not allowed to go into the victim's bedroom to feed the fish.

         Detective Michael Adkins of the Metropolitan Nashville Police Department (MNPD) testified that he investigated this case and obtained a search warrant for the Appellant's camera. The warrant was executed, and a forensic examination of the camera was conducted. Detective Adkins was present for part of the examination and watched two videos from the camera's memory card. He then obtained a search warrant for the Appellant's residence, which was executed on June 9, 2010. During the search, officers seized computers and other devices. The Appellant agreed to speak with Detective Adkins, so they talked in the detective's van for about one hour.

         On cross-examination, Detective Adkins acknowledged that he was searching the Appellant's residence for child pornography. He said his interview with the Appellant "got a little heated" but denied yelling at the Appellant for the entire hour. He acknowledged that he "hit the dashboard once or twice" and that he asked if the Appellant got a "hard on" from looking at photographs of young children. He also acknowledged that he did most of the talking and said that the Appellant "denied everything." Detective Adkins stated that he was trying to get the Appellant to admit the truth but that the Appellant "never would."

         Detective Chad Gish of the MNPD testified as an expert in the forensic analysis of electronic devices that he inspected the Appellant's camera and removed the memory card. Detective Gish found two videos on the card. One video was "active." The other video had been deleted, but Detective Gish was able to recover it. He said the deleted video had been recorded before the active video and was of less duration than the active video. Detective Gish acknowledged that he received other evidence in this case and that he examined the evidence for child pornography. He did not find child pornography but found pornography.

         The State played the two videos from the memory card for the jury. The first video, which was forty-two seconds in duration, showed a fish tank on the dresser and then the camera being placed on the dresser beside the fish tank and turned toward the victim's bed. The second video, which was seven minutes in duration, again showed the fish tank, the camera being placed on the dresser, and the camera being turned toward the victim's bed. A person walked between the camera and the bed twice and left the room. About four minutes later, the victim entered the room, turned on the light, and walked to her bed. She was wearing a t-shirt and shorts, and her hair was wrapped in a towel. She turned toward the dresser, immediately went to the camera, and picked it up. At that point, the recording ended.

         On cross-examination, Detective Gish testified that he also examined the Appellant's computer and cellular telephone. He reiterated that he did not find any child pornography on those devices.

         The Appellant testified that he was fifty-five years old and that the victim was his third cousin. On the morning of May 18, 2010, he awoke and went downstairs to use the bathroom. He said he "possibly" had his camera with him because he was using the camera to document flood damage. The Appellant heard the alarm for his cellular telephone charger going off in the victim's bedroom, so he went into the room to check the charger. The victim had asked to borrow the charger in order to charge her own cellular telephone.

         The Appellant testified that he looked at the fish in the fish tank and pulled out his camera to video-record the fish. Defense counsel asked why the Appellant wanted to record the fish, and the Appellant answered, "I take pictures and videos of lots of stuff, you know. I'm a photographer, just an amateur, you know. I take pictures of, you know, the river, you know, and stuff." He said he took the first video and was "trying to coax the fish out." The Appellant did not own any of the fish but had nicknamed one "Barack Obama." After he made the first video, he put the camera on the dresser and fed the fish. The Appellant said he often made two or three videos and kept the best one. He then deleted the first video because "there weren't as many fish . . . swimming around."

         The Appellant testified that he made a second video of the fish, put his camera on the dresser, and fed the fish again "to coax [them] out and get them to swim around." At that point, he noticed that his sunglasses were in the victim's bedroom. He wondered what they were doing there and began "just nosing around, being nosey." He explained that he became distracted when he saw his sunglasses, that he forgot about the camera, and that the second video showed him "going through her stuff, nosing around." He did not know the victim's clothes were covering the camera. He said the camera was aimed toward the bedroom window, which was not something he would do intentionally because the light from the window would make the video dark. He denied entering the room with the intent to video-record the victim while she was changing clothes.

         On cross-examination, the Appellant acknowledged that he had computer science degrees from Vanderbilt University and Middle Tennessee State University and that he was staying with the victim's family to help after the flood. He did not recall E.M. asking on May 18 if he had been in the girls' rooms and said she asked him to leave so the family could get ready for a school trip to Ohio. He acknowledged that he had seen the two videos many times and that he did not mention the cellular telephone charger in his controlled call with E.M. or in his conversation with Detective Adkins. He explained that "it didn't seem like a significant thing, it was something I remembered later, " and he noted that the charger could be heard going off in the first video. The Appellant did not knock on the victim's bedroom door before he entered the room because the door was open, and he thought someone was in the bathroom but did not know if it was the victim. The Appellant said he did not turn on the bedroom light because light was shining through the window. He said he accidentally left his camera in the victim's room.

         On redirect examination, the Appellant testified that E.M. made the controlled telephone call to him three weeks after the incident. During that three-week period, he did not know he had left his camera in the victim's bedroom and thought it was in the trunk of his car. On recross-examination, the Appellant testified that he received discovery for this case in the Fall of 2013 and subsequently sent a letter to Davidson County District Attorney General Torry Johnson. The State asked if he said anything in the letter about video-recording the fish, and the Appellant did not answer. The Appellant noted that he did not sign the letter.

         The State introduced the four-page, typed letter to General Johnson into evidence. In the letter, the Appellant stated that during his telephone conversation with E.M., she confronted him about the camera being in the victim's bedroom and that he told her he probably went into the room to feed the fish. He then wrote as follows:

[E.M.] and I went to a lot of trouble to clean the aquarium and take care of the fish in [the victim]'s room. [The victim]'s room was centrally located next to the living room. While I was in there, I found my prescription sunglasses. My sunglasses kept disappearing. When I found my sunglasses in [the victim]'s room, I looked around to see if she had any more of my stuff. I saw my cell phone charger plugged into [the victim]'s phone. I thought it was unusual that [the victim] had my sunglasses and cell phone charger. Why didn't she use her own cell phone charger?
I was happy to find my sunglasses and I picked them up and left [the victim]'s room. I took my sunglasses upstairs so I could find them later. I don't remember leaving my camera in [the victim]'s room. If I did, it was unintentional. That's all I remembered 3 weeks later when they first told me about this. It was not significant enough to remember exactly what happened. The only reason I remember anything is because I found my sunglasses and cell phone charger in [the victim]'s room.

         The Appellant did not sign the letter but concluded it by typing his name and telephone number.

         Immediately after the close of proof, the trial court found the Appellant guilty as charged of attempted especially aggravated sexual exploitation of a minor, a Class C felony. After a sentencing hearing, the court sentenced him to four years to be served as one year in confinement and the remainder on supervised probation.

         II. ...

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