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State v. Johnson

Court of Criminal Appeals of Tennessee, Jackson

August 21, 2017

STATE OF TENNESSEE
v.
ERROL JOHNSON

          April 11, 2017 Session

         Appeal from the Criminal Court for Shelby County No. 14-00889 J. Robert Carter, Jr., Judge

         The defendant, Errol Johnson, was convicted of two counts of aggravated child neglect, a Class A felony, and two counts of criminally negligent homicide, a Class E felony. The trial court merged the two aggravated child neglect convictions and sentenced the defendant as a violent offender to twenty-two years in the Department of Correction. The trial court also merged the defendant's convictions for criminally negligent homicide and sentenced him to two years. The defendant's sentences were ordered to be served concurrently for an effective sentence of twenty-two years in the Department of Correction. On appeal, the defendant argues that the evidence is insufficient to support his convictions for aggravated child neglect and that the trial court imposed an excessive sentence. We conclude that the evidence is sufficient to sustain the jury's verdict and affirm the judgments of the trial court. However, because aggravated child neglect is not an enumerated offense included in Tennessee Code Annotated § 40-35-501(i)(2), the trial court erred in its applying the statute and sentencing the defendant as a violent offender at 100% release eligibility. Therefore, we remand the matter for a new sentencing hearing.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed in Part and Reversed in Part; Case Remanded

          Stephen C. Bush, Shelby County Public Defender; Harry E. Sayle, III, Assistant Public Defender (on appeal); and Nigel Lewis, Kathy Kent, and Erim Sarinoglu, Assistant Public Defenders (at trial), for the appellant, Errol Johnson.

          Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Carrie Shelton-Bush and Abby Wallace, Assistant District Attorneys General, for the appellee, State of Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court, in which Alan E. Glenn and Timothy L. Easter, JJ., joined.

          OPINION

          J. ROSS DYER, JUDGE

         Facts and Procedural History

         On November 24, 2012, the victim, a 12-year-old girl, died as a result of severe neglect and lack of care. As a result of her death, the State charged the defendant, the victim's father; the victim's mother; and the victim's home healthcare worker, Chasara Jones, each with two counts of aggravated child neglect and two counts of first degree murder. The proof presented at trial is summarized as follows:

         On November 24, 2012, Officer Robert Redditt of the Millington Police Department responded to a 911 medical call concerning an "unresponsive or not breathing juvenile female" at 7684 Arapaho, Millington, Tennessee. According to Officer Redditt, he entered the home through the carport and immediately noticed a "horrific odor. It smelled like death to me." Officer Redditt testified that the odor grew stronger as he moved deeper into the house and closer to the victim's room.

         As he entered the victim's bedroom, Officer Redditt found the victim sitting on the floor leaning against the bed, and her mother attempting to perform CPR. Officer Redditt noted the defendant was also in the room and was very upset and screaming at his wife. Officer Redditt instructed the mother to lay the victim flat on the floor so CPR could be performed properly. When she did, Officer Redditt noticed numerous sores on the victim's legs. Once the medical team arrived, Officer Redditt left the victim's bedroom and escorted the defendant to the carport.

         Shelby County Sheriff's Deputy Darryl Blake testified he was employed by the Millington Police Department in 2012 and responded to the 911 call concerning an unresponsive juvenile on November 24, 2012. Deputy Blake testified that the "smell in the house took your breath away, " and, as he walked to the victim's room, "the worse the smell got." Deputy Blake also noted the house was unorganized and the kitchen was full of dirty dishes. When Deputy Blake entered the victim's bedroom, he noticed she had thick bandages on both feet. He also noticed fly strips hanging all around her room that were full of flies. Deputy Blake testified "the floor was very, very sticky and just brown." He stated that "the white mattress was completely dark in most spots where you could tell someone was lying." According to Deputy Blake, the defendant was very angry and repeatedly stated "someone was going to pay if something happened to his baby."

          Because the defendant refused to take his wife, the victim's mother, to the hospital with him, Deputy Blake offered to take her. According to Deputy Blake, the defendant said his wife could not ride with him because he would do "something" to her if something happened to the victim. When they entered the victim's hospital room, nurses were cutting the bandages off her feet. According to Deputy Blake, it took the nurses "about 10 minutes for each foot." Deputy Blake testified that once the bandages started coming off "maggots and everything started falling out of the bandages" and "parts of bones from [the victim's] feet started coming out inside the bandages."

         Deputy Blake ran into the defendant as he was leaving the victim's hospital room. According to Deputy Blake, the defendant hugged him and stated, "[I] can't believe we let my baby die." The defendant then immediately changed from "we" to saying "she" and blaming the victim's mother. Finally, the defendant told Deputy Blake, "I work so much. I couldn't believe this was going on. How can I know all this was going on as much as I work?" After witnessing the victim's injuries and speaking with the defendant, Deputy Blake requested a detective be sent to the hospital.

         James Slough, a paramedic with the Millington Fire Department, also responded to the 911 call. In describing the odor in the home, Mr. Slough testified the odor got stronger as they moved towards the back of the house. The odor was a "real putrid, rotting flesh smell." "It smelled like a gangrenous wound. A real wretched smell." As he attended to the victim, Mr. Slough could not find a pulse and noted the victim was not in good health and was not breathing. He also noticed that the victim did not have on any clothes from the waist down and she "had blisters and bedsores on [her] inner thighs." Mr. Slough also testified the victim's room was very dirty. There were stains on the floor and the bed. The smell was horrible, and there were maggots on the floor.

         Carey Maiden, an emergency room technician with Methodist Hospital, was on duty when the victim arrived at the hospital on November 24, 2012. Ms. Maiden, who also worked as an EMT with the Millington Fire Department, was familiar with the victim. On May 2, 2011, the Millington Fire Department had responded to a "general weakness call" at the victim's home. That day, they had to help lift the victim out of her bed and move her to a stretcher so that she could be transported to the hospital.

         On November 24, 2012, the emergency room was notified that a 12-year-old girl in full arrest was being transported. When the victim arrived, the staff "immediately noticed that she was a lot larger than a normal 12-year-old." According to Ms. Maiden, the victim looked as if she was full grown. Ms. Maiden testified they attempted to resuscitate the victim for almost an hour. Despite all their efforts, they were unable to save the victim.

          Ms. Maiden testified she aided in preparing the victim's body for transport to the medical examiner's office. Per hospital policy, they are required to keep everything that was on the victim's body with her body, minus bandages and anything used to help resuscitate her. Additionally, all of the victim's sores and wounds needed to be uncovered. Therefore, Ms. Maiden removed the compression boots on the victim's feet and began to remove the bandages underneath. As the new bandages were removed, Ms. Maiden noticed that the new bandages had been placed over the older, dirty bandages, meaning no one had changed the bandages or cleaned the victim's sores in a very long time. Additionally, Ms. Maiden discovered maggot larvae in the bandages. Ms. Maiden testified that it took about twenty minutes per foot to remove the bandages. She even had to change to sharper, stainless-steel scissors in order to cut the thick, hardened bandages. As the bandages were removed, they discovered that the skin was embedded in the bandages, the victim was missing toes on her right foot, and her bones began to fall out as the bandages were removed. According to Ms. Maiden, there was little to no flesh on the victim's feet.

         Detective Dennis Brunson with the Millington Police Department was called to the victim's house to investigate the circumstances surrounding the victim's death. As part of his initial investigation, Detective Brunson spoke with the defendant. The defendant informed Detective Brunson that the victim was sick and blamed his wife for not caring for the victim properly. He also informed Detective Brunson that he was suing Le Bonheur Children's Hospital and commented, "I guess this will help my lawsuit."

         Detective Brunson testified he could smell the "strong putrid odor associated with death" from outside the house and that the smell was worse once he entered the house. As he examined the victim's bedroom, Detective Brunson noted the victim's mattress was heavily stained. The sheets, the mattress, and the hospital pad on the victim's bed were heavily soiled. He also noticed stained and soiled rags and bandages on the floor of the victim's room. According to Detective Brunson, the victim's room "smelled of rotten flesh." Detective Brunson also found a Tylenol PM bottle and gauze packaging in the victim's trashcan.

         As Detective Brunson and other officers searched and inventoried the house, the defendant, who had remained outside, ran into the house and into his room. When Detective Brunson checked on him, the defendant stated "he wished he had went to her when she was crying and moaning" the night before. Detective Brunson also testified that the defendant was "very upset" when they informed the defendant the victim's body could not be released until the medical examiner had concluded the autopsy. According to Detective Brunson, the defendant wanted to have the victim cremated and taken to New Orleans. On cross-examination, Detective Brunson testified that the defendant refused to allow him to speak with his son and told him that he preferred if Detective Brunson would not talk to his wife.

         Charlotte Jones, a victim advocate coordinator for the Memphis Child Advocacy Center, testified that she was working for the Tennessee Department of Children's Services at the time of the victim's death. According to Ms. Jones, on November 24, 2012, she received a priority one referral concerning "allegations of neglect and death" relating to the victim. As a result of the referral, Ms. Jones went to the victim's home where she was immediately met by the defendant. After Ms. Jones introduced herself, the defendant told her that he resented her being there. The defendant stated, "My daughter has been sick for over two years and now that's she's dead DCS and MPD are coming here saying we're bad parents." The defendant also told Ms. Jones that they were not receiving any help and that the care of the victim was "all on his wife." He also informed Ms. Jones of his attempts to sue Le Bonheur Children's Hospital and TennCare.

         Ms. Jones testified the first thing she noticed about the victim's room was it smelled like "rotten flesh or a dead animal" despite candles and incense burning in the room. She also noticed the mattress and the carpet were heavily stained, and the room was full of fly strips. Ms. Jones testified there were dead flies all over the bathroom and bloody bandages on the floor.

         Before Ms. Jones left the house that evening, the defendant presented her with a box containing the victim's medical records. The defendant told Ms. Jones that the documents in the box showed they had tried to get help for the victim, but no one would help them. Ms. Jones testified that the defendant called her twice after she left, requesting that the victim's body be ...


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