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State v. Crawford

Court of Criminal Appeals of Tennessee, Nashville

August 31, 2017

STATE OF TENNESSEE
v.
ANTHONY M. CRAWFORD

          Session Date: January 10, 2017

         Appeal from the Criminal Court for Wilson County No. 13-CR-142 John D. Wootten, Jr., Judge

         A Wilson County jury convicted the Defendant, Anthony M. Crawford, of aggravated assault and child abuse. The trial court sentenced the Defendant to consecutive prison terms of six and four years, for a total effective sentence of ten years. On appeal, the Defendant asserts that: (1) the trial court erred when it denied his motion to dismiss the indictment on double jeopardy grounds; (2) the trial court improperly commented on the evidence; (3) the trial court erred when it precluded the Defendant's expert witness from testifying at the suppression hearing; (4) the trial court erred when it denied the Defendant's motion to suppress his October 19, 2012 statement; (5) the evidence is insufficient to support the convictions; (6) the trial court erred when it allowed the State to cross-examine witnesses about "highly prejudicial statements" the Defendant made about the victim; (7) the State did not properly make an election of offenses, thus depriving the Defendant of a unanimous verdict; (8) the cumulative effect of the errors deprived the Defendant of a fair trial; and (9) the trial court improperly ordered consecutive sentencing. After a thorough review of the record and applicable law, we affirm the judgments of the trial court.

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

          Andrew Love and Barry Gearon, Nashville, Tennessee, for the appellant, Anthony M. Crawford.

          Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Tom P. Thomson, Jr., District Attorney General; and Thomas H. Swink, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert W. Wedemeyer, J., delivered the opinion of the court, in which Robert L. Holloway, Jr., J., joined. Thomas T. Woodall, P.J., concurred in result only and filed a separate concurring opinion.

          OPINION

          ROBERT W. WEDEMEYER, JUDGE

         I. Facts

         A. Procedural History

         A Wilson County grand jury indicted the Defendant for two counts of aggravated child abuse. The victim was his girlfriend's two-month old baby. The Defendant filed a motion to suppress his statement made to police on October 4, 2012, at Vanderbilt Hospital, and a separate motion to suppress his statement made to police on October 19, 2012, after undergoing a polygraph test at the police station. After a hearing, the trial court determined that both statements were voluntarily made and denied the motions to suppress the statements.

         The Defendant also filed a motion in limine requesting that the State not be allowed to mention the polygraph test at trial. The trial court granted the motion. On October 21, 2014, the first trial in this case began. After the State had presented proof, the Defendant presented an expert witness who mentioned that, in the course of the investigation, the Defendant had taken a polygraph test. Upon mention of the polygraph test, the trial court excused the jury and talked with both attorneys. The trial court asked the attorneys for suggestions on ways to address the issue of the jury's hearing about the polygraph test. Neither attorney offered any constructive suggestions. The trial court declared a mistrial on October 22, 2014.

         On January 28, 2015, the Defendant filed a motion to dismiss the indictment on double jeopardy grounds based upon the October 22, 2014 mistrial. After a hearing, the trial court denied the motion and denied the Defendant's request for an interlocutory appeal. At the second trial, the jury found the Defendant guilty of the lesser-included offenses of aggravated assault and child abuse. The trial court sentenced the Defendant to consecutive prison terms of six years and four years, for an effective sentence of ten years.

         B. Suppression Hearing

         The Defendant contended in his suppression motions that both the October 4 statement and the October 19 statement were obtained through police coercion. On appeal, the Defendant challenges only the voluntariness of the October 19 statement. We will summarize all the testimony from the suppression hearing as the entire progression of the investigation is relevant to this issue.

         October 4, 2012 Statement

          Scott Massey, a Lebanon Police Department detective, testified that he received a phone call on October 4, 2012, from a Department of Children's Services ("DCS") case worker. The case worker advised that Vanderbilt Children's Hospital had notified DCS about a possible two-month-old child abuse victim, who had several fractures.

         At Vanderbilt Hospital, Detective Massey and Detective Donnie Self met in the emergency room with Dr. Meredith, the attending physician. Dr. Meredith described the multiple fractures throughout the victim's body that were in various stages of healing. Based upon the initial assessment, the victim's case had been transferred to Dr. Deborah Lowen, the head of the child abuse team at Vanderbilt Hospital.

         Detective Massey testified that he next spoke with the victim's mother, N.S., who relayed the victim's history to Detective Massey. N.S. told the detective that she was thirty-two weeks into her pregnancy when the victim was born on July 31, 2012. Due to his premature birth, the victim remained in the hospital until August 31, 2012. After release from the hospital, the victim had weekly medical appointments with the pediatrician. N.S. told Detective Massey that, two days before his hospitalization, the victim had been "vomiting." N.S. took the victim to his pediatrician, and the pediatrician instructed her to take the victim to "Vanderbilt." At the hospital, the victim was diagnosed with "acid reflux, " given a prescription, and sent home. Two days later, October 4, 2012, the vomiting persisted. N.S. said that she called the pediatrician, and the pediatrician again advised N.S. to take the victim to "Vanderbilt" for assessment.

         Detective Massey testified that N.S. told him that she lived at Value Place, an extended stay hotel on Highway 109, and worked full-time in housekeeping at the hotel. The Defendant lived with her and the victim, and the Defendant had been "babysitting" on October 4 while N.S. worked. When the pediatrician advised her to take the victim to Vanderbilt Hospital on October 4, she and the Defendant took him. N.S. said that she requested x-rays of the victim in an attempt to learn what was wrong with the victim. It was following these x-rays that N.S. learned of "all of the broken bones." Detective Massey described N.S. as "visibly upset." She told Detective Massey that she was mad at being accused by Vanderbilt Hospital personnel of harming her child when she had "not done anything to hurt [the victim]."

         Detective Massey testified that he told N.S. that he was "trying to figure out exactly what happened" to the victim, a two-month old that had "many broken bones" with no explanation. He asked her to explain her "home life." N.S. said that the Defendant was her boyfriend and "stay-at-home babysitter." She explained that she worked six days a week, eight hours a day. She tried to work ten and twelve-hour days for the overtime money, so having the Defendant watch the victim was helpful to her. She said that the Defendant was not the victim's biological father but that she and the Defendant "had been together since she was pregnant." N.S. confirmed that she and the Defendant were the only people who took care of the victim. She explained that they would go to the Defendant's mother's house on Saturday nights for "family night" where the whole family would be together but that the victim was with N.S. and the Defendant the entire time.

         N.S. told Detective Massey that the victim slept, swaddled, in his "swing." She had found that he slept better in his swing than his crib. She described the victim as having been "really fussy lately." Consequently, she and the Defendant had not been able to sleep much. N.S. adamantly denied doing anything to harm the victim. N.S. also denied that the Defendant had done anything to harm the victim. She said the Defendant treated the victim as "his own son."

         Detective Massey testified that, on the night of October 4, 2012, Vanderbilt Hospital was "extremely busy" and there were no rooms available for him to speak privately with N.S. Their conversation took place on the benches outside the hospital, in front of the emergency department entrance. Detective Self was eight to ten feet away from Detective Massey and N.S. while the two spoke. Detective Massey estimated that the interview lasted for an hour, beginning at 9:20 p.m. Detective Massey then asked if he could speak with the Defendant since he was the primary caregiver. N.S. said that the Defendant and his mother were outside smoking, and then she called the Defendant's mother's cell phone. Once N.S. made contact with the Defendant, Detective Massey asked if he could speak to the Defendant on the phone. He identified himself to the Defendant and asked if the Defendant would meet with him to speak about the victim's injuries. The Defendant agreed and approximately a minute later the Defendant approached Detective Massey from the parking garage.

         Detective Massey testified that he invited the Defendant to sit on the bench with him while they spoke. He said that it seemed "kind of informal" to him at that point and that the Defendant did not appear "to have a problem with coming over and talking" with the detective. Initially, Detective Massey gathered background information to see if the Defendant's information was consistent with the information N.S. had provided. The Defendant described his living arrangement with N.S. and his daily routine with the victim. He agreed that he had not been sleeping well lately due to the victim's fussiness. The Defendant told Detective Massey that he had been unaware that the victim had been "hurt." He stated that he thought of the victim "as his own son" and would not harm him.

         Detective Massey testified that he suggested to the Defendant that the lack of sleep might cause the Defendant to be "short tempered" with the victim. The Defendant acknowledged that it was difficult dealing with the victim at times but maintained that he would never harm the victim. As the two men spoke, Detective Massey observed that the

          Defendant appeared distraught at times, concerned, and tired. The Defendant responded appropriately to all of the detective's questions, and he did not appear to be under the influence of an intoxicant. The tone of the interview was conversational, and Detective Massey said that he never raised his voice or told the Defendant he was not free to leave.

         Detective Massey testified that when he questioned the Defendant further about possible sources of the injuries, the Defendant stated that he accidentally dropped the victim one time. He explained that the victim had been home from the hospital for about a week. The Defendant had retrieved the victim from the bathtub and was walking to another room when the victim slipped out of his hand, landed on a mattress, and then bounced off of the mattress onto the floor landing on his face. The Defendant said that the victim began crying. The Defendant said he immediately picked the victim up, patted him, and the victim stopped crying. The Defendant said he thought it was "okay, " so he did not tell N.S. because he was afraid she would be angry. The Defendant agreed that there had been times he was aggravated when he picked the victim up but that he never did so with such force that he would have injured the victim.

         Detective Massey testified that the Defendant also told him that the victim had been constipated. The Defendant explained a method the pediatrician had suggested for helping the victim with bowel movements that involved gently pressing the victim's legs toward his chest. The victim had cried at times while the Defendant pressed on his legs, but the Defendant assumed it was due to the discomfort of constipation.

         Detective Massey wrote down the Defendant's statement and then reviewed the statement with the Defendant. After review, the Defendant signed the two-page statement. Detective Massey estimated that his interview with the Defendant lasted approximately one hour and fifteen minutes.

         After speaking with the Defendant, Detective Massey went back inside the hospital where the social worker showed him a photograph of two small marks on the back of the victim's legs. Detective Massey asked N.S. about the marks. N.S. said that they had recently been in the car for eight hours and that perhaps the marks had come from the prolonged period of time in the car seat.

         Detective Massey testified that he had mentioned the possibility of a polygraph test to both the Defendant and N.S. during each of their interviews at the hospital. He explained to them that in cases where there is a non-verbal victim, "there may be an offer of a polygraph down the road." He then asked if they would be willing to take a polygraph test, and they agreed.

          The following day, Detective Massey called Dr. Lowen seeking an update on the victim's status. Dr. Lowen confirmed that she had completed an initial examination and, in her professional opinion, the victim's multiple bone fractures were the result of child abuse. Dr. Lowen noted that the victim "may have a mild bone disease" but nothing that would explain the extent of the victim's injuries. Further testing was being conducted, and Dr. Lowen estimated that she would have the results in approximately eight weeks.

         On cross-examination, Detective Massey confirmed that his interaction with the Defendant at the hospital was "information gathering." Detective Massey stated that, at the point of the initial interview, he did not have enough information to determine the source of the injuries. He agreed that he did not have probable cause to hold the Defendant. Detective Massey said that it was his practice to begin every non-custodial interview by telling the person, "you don't have to talk to me if you don't want to." He confirmed that he said this to the Defendant at the beginning of the initial interview.

         The trial court then ruled on the motion to suppress the October 4, 2012 statement to police. The trial court denied the motion, finding that the interview was non-custodial. The trial court credited the detective's testimony that he advised the Defendant that he was not under any obligation to speak with the detective. The trial court further found that the location, which was outside in a high-traffic area, the fact that the Defendant was not the focus of the investigation, and the conversational tone of the interview supported the detective's testimony that this was the information gathering phase of the investigation. The trial court concluded that the statement was voluntarily given and noncustodial.

         October 19, 2012 Statement

         Detective Massey testified that he arranged for the Defendant and N.S. to take a polygraph test on October 19, 2012. The Defendant and N.S. arrived at the police station at 10:00 a.m. The Tennessee Bureau of Investigation ("TBI") polygraph examiner had just arrived, so Detective Massey asked the Defendant and N.S. if they would wait in the lobby while the polygraph examiner set up his equipment. TBI Special Agent Mike Smith and Tennessee Highway Patrol ("THP") Agent Larry Pollard conducted the test. Detective Massey walked the Defendant upstairs to the room where the polygraph equipment had been set up, an area that required key card access for building security.

         Detective Massey testified that initially Special Agent Smith and Agent Pollard gathered personal information from the Defendant. Detective Massey recalled that each man wore a suit and a tie. He described his dress that day as "typical, " a polo shirt, cuffs, and a badge. Detective Massey listened as Special Agent Smith and Agent Pollard reviewed the process of taking a polygraph test with the Defendant. The Defendant appeared to understand their explanations and responded appropriately to any questions asked. Detective Massey testified that the Defendant did not appear to be impaired and was alert. The Defendant reviewed and signed both a polygraph waiver and a Miranda waiver. When provided with the option, the Defendant declined to have the exam video-recorded.

         Detective Massey estimated that this initial conversation with the Defendant lasted between twenty and twenty-five minutes. He described the tone of this introductory conversation as "very relaxed." Detective Massey asked the Defendant if he wanted a break before they began the test, and the Defendant indicated that he did. Detective Massey obtained a cigarette for the Defendant, and the Defendant smoked outside the building. Detective Massey stood with the Defendant during the break and the two engaged in "general conversation" and spoke of nothing related to the case. After washing his hands, the Defendant returned to the interview room and began the test. Detective Massey left the Defendant with Agent Pollard and entered a connecting room where he observed via closed circuit television.

         Detective Massey testified that the test began at noon and the results were given to the Defendant at 1:21 p.m. After the Defendant had finished the test, he had a fifteen or twenty minute break before receiving the results. While outside on this second break, Detective Massey asked the Defendant how he felt about the test. The Defendant appeared "kind of nervous" but responded that he had told the truth and was not worried. He stated, "I just want my little turd back." Detective Massey clarified with the Defendant that the Defendant was referring to the victim in this statement. The Defendant then said he hoped to marry N.S. and raise the victim "as any responsible parent would." After finishing his cigarette, the Defendant wanted to see the results of the exam, so Detective Massey walked him back upstairs to the interview room.

         Detective Massey testified that the Defendant was provided with the questions he would be asked during the polygraph test before the test began. After the break, the polygraph examiner told Detective Massey that the results of the polygraph test indicated that the Defendant had been untruthful about hurting the victim and also about his knowledge of who hurt the victim. In the interview room, Detective Massey told the Defendant the results of the test indicated that the Defendant had not been truthful. The Defendant maintained that he had told the truth during the exam. Detective Massey and Agent Pollard reiterated that he had "clearly failed the polygraph, " and the Defendant began crying.

         Detective Massey testified that the Defendant admitted that on one occasion, while N.S. was at work, the victim began crying. The Defendant was aggravated and picked the victim up "with one arm and was squeezing him." The Defendant realized he was being "too rough" with the victim, so he laid the victim on the bed and "patted his butt" until the victim fell asleep. The Defendant also recounted an incident when he was "taking a bath" and had shampoo in his hair when he heard the victim scream. He ran to where the victim was and saw that the victim had spit up and was choking. The Defendant said that he grabbed the victim "squeezing him with one hand, " while trying to put on underwear with his other hand. The Defendant stated that those were the only two incidents where he felt he had hurt the victim. The Defendant reduced both of the incidents to writing. Detective Massey identified the October 19, 2012 statement. He read both aloud, and they were consistent with his testimony. The Defendant later admitted to a third incident that had occurred, and the Defendant's statement concerning the incident was as follows:

I, [the Defendant], was asleep. After [N.S.] went to work, the baby started crying while I was asleep, so I got aggravated and got up and grabbed him and squeezed him. I heard a little pop, and I said to myself, what was that? It didn't seem to bother the baby so I didn't think nothing of it so we laid down. I patted his butt to get him back to sleep and we fell asleep.
I didn't call anyone because I was afraid of what might happen and I thought it was just a bone popping.

         Detective Massey testified that after the Defendant reduced all of the incidents to writing, he reviewed the statement with the Defendant. The review of the statement was recorded, and the recording was played for the trial court.

         Detective Massey denied using threats, coercion, or promises to get the Defendant to take the polygraph exam. He repeated that he had mentioned the possibility of a polygraph test to both N.S. and the Defendant on October 4, 2012, at the hospital and then spoke with N.S. by phone to arrange a time and day for the test. Detective Massey testified that N.S. also took a polygraph test two weeks after the Defendant's polygraph test. N.S.'s polygraph test results indicated that she was being truthful about these events.

         On cross-examination, Detective Massey denied any knowledge of the Defendant's medical conditions or that the Defendant was taking medication at the time of the polygraph test. Detective Massey stated that he did not ask the Defendant if he was using medication because the Defendant appeared "pretty sharp and concise." Detective Massey stated that he had no reason to believe the Defendant was under the influence of medication.

          The Defendant testified that in September and October 2012, he suffered from kidney stones, a cyst on his testicles the size of a grape, and "epididiyitis, " which he explained was a "testicle disorder."[1] Due to these medical conditions, the Defendant was taking hydrocodone, phnergan for nausea, and "a couple of different antibiotics and things." The Defendant confirmed that he was having difficulty sleeping as a result of his medical condition.

         The Defendant testified that he first met Detective Massey at Vanderbilt Hospital on October 4, 2012, and next saw him at the Lebanon Police Department on October 19, 2012. The Defendant said that he had not slept the night before the polygraph test due to stress and pain from the kidney stones. The Defendant confirmed that he informed someone "at the polygraph" that he had not slept, was in pain, and was taking pain medication. He estimated that he was at the police station for four to six hours. He recalled that when he told "everyone" that he was "under the influence of prescription narcotics and [he] hadn't slept in several, several days, " he was told "it didn't really matter and just set it all up and [he] did it."

         The Defendant testified that he was at the police station for four to six hours. When he arrived, he waited for about an hour while law enforcement set up the equipment. He said that, even though he notified "them" of his pain medication and lack of sleep, he was still hooked up to the polygraph machine. After the polygraph test, the officers showed him a chart on a computer screen, which he did not understand, and told him that he had lied. The Defendant agreed that he then gave another statement. He said that he felt "trapped" and "scared" during the interview. He recalled that he was twenty-one or twenty-two at the time and alone with three "grown men."

         The Defendant was asked about his mental health, and he responded that he had been diagnosed with post-traumatic stress disorder related to his childhood. He stated that he was a victim of abuse and attended twenty-nine different schools as a child. The Defendant stated that he had a ninth-grade education.

         The Defendant testified that he felt like he "had been led down a road" to give the second statement after the polygraph test on October 19, 2012. He explained that the portion of the interview that was not recorded was "them calling me a liar a thousand times." He stated that it was his belief that law enforcement tried to "make" him believe he had caused the victim's injuries. The Defendant said that, during the polygraph test the examiner kept advising him to be quiet, other than to offer one-word responses to the questions, and to not move. The Defendant explained, "You passing kidney stones, how can you help but to move, when I'm passing kidney stones and I've got a kidney stone going down through my urethra and my heart gets to racing and I'm hurting." When he attempted to tell the polygraph examiner about his pain due to passing a kidney stone, he was told "it didn't really make a difference." The Defendant said that a very small portion of his time while at the police station was recorded.

         On cross-examination, the Defendant testified that he had not slept for "a minimum of four" days before the polygraph test was administered. He agreed that he had been awake for approximately ninety-six hours. He reiterated that he notified law enforcement that he had not slept for four days and was under the influence of narcotics, but that he was told that "it wouldn't make a difference on the polygraph test." He said that he was unsure of whether Detective Massey was in the room at the time he disclosed this information but that he was certain "the TBI agents" were present. The Defendant stated that he volunteered this information to the law enforcement officers.

         The Defendant testified about the polygraph test and the procedure for preparing for the polygraph test. He agreed that he had done some research on polygraph testing before taking the test. He said that he learned that a polygraph test was inaccurate 60% of the time. The Defendant said that he did not ask the examiners about this statistic he had gathered from a Google search of the internet. The Defendant confirmed that he was advised of his Miranda rights and identified his signature on the waiver. He said that he "vaguely" recalled the information on the form and could not recall whether the form was read to him. The Defendant agreed that he elected not to record the administration of the polygraph test. The Defendant also agreed that although he was passing a kidney stone, had not slept in four or five days, and was taking hydrocodone at the time, two years later he was able to recall that day in detail.

         Michael Smith testified that he formerly worked for the TBI and was present on October 19, 2012, when a polygraph test was administered to the Defendant. He explained that Sergeant Larry Pollard, a THP patrolman, was "serving his polygraph internship under [Mr. Smith's] supervision at the time." Sergeant Pollard administered the polygraph test while Mr. Smith assisted Sergeant Pollard with the polygraph post-test interview and supervised Sergeant Pollard during the examination.

         Mr. Smith testified about the different "phases" of a polygraph test. One of the phases involved a "suitability assessment" of the examinee. Mr. Smith said that someone would not be a suitable candidate if they had certain health conditions or mental health issues and that behavioral concerns are considered as well as "education, drugs, alcohol, things of this nature." Mr. Smith said that someone with an active kidney stone would not be a good candidate for a polygraph test. He confirmed that a standard question of an examinee before the test begins was whether they had ingested either alcoholic beverages or any type of drug in the prior twenty-four hours. Mr. Smith agreed that narcotic medication could "[i]ndirectly" affect the test.

         Mr. Smith testified that, if the Defendant had been determined not suitable, they would not have administered the test. He stated that he had never had someone disclose morphine use on the morning of the test, but, if that were to occur, he would assess the person at the time based upon their mental and physical state.

         Mr. Smith testified that the Defendant's answers to three pertinent questions on the examination indicated deception. Mr. Smith denied telling the Defendant that he "might just get counseling" or that "he could be charged with misdemeanor assault." Mr. Smith stated that he believed that he told the Defendant that any decision with regard to charging an offense was the district attorney's decision. Mr. Smith explained that the results of a polygraph test are used as an investigative tool to assist law enforcement in obtaining truthful statements.

         On cross-examination, Mr. Smith testified that he would not administer a polygraph test to someone passing a kidney stone. Mr. Smith said that when talking with an examinee about results indicating deception, he did not "normally" use the term "liar" because it put the examinee on the defensive. Instead, he used language like "you haven't been truthful or you haven't told the whole truth."

         Following Mr. Smith's testimony, the trial court made specific findings with regard to whether the Defendant had shown coercion and concluded that he had not. Based upon its finding that the Defendant had failed to show coercion, the trial court denied the Defendant's request to present an expert witness on susceptibility to coercion. The trial court further found that the October 19, 2012 statement was given voluntarily. Although finding no coercion, the trial court allowed, as an offer of proof, the testimony of Dr. Stephen Montgomery, a forensic psychiatrist.

         Dr. Montgomery testified as an expert in the field of forensic psychiatry. Dr. Montgomery conducted a two-hour forensic psychiatric evaluation of the Defendant. During this time, Dr. Montgomery administered the Gudjonsson Suggestibility Scales to determine the Defendant's susceptibility to coercion. Dr. Montgomery noted that he was concerned about how the Defendant would do with the test because he had repeated the ninth grade three times and never graduated from high school. The Defendant, however, did "fairly well, " scoring better than the "average of court-related persons but a little less than average compared to a population of prisoners." Dr. Montgomery stated that the Defendant did "okay" on the delayed memory recall.

          Dr. Montgomery testified that, after viewing the video of the Defendant's interview, he believed various techniques offering "face saving justifications" or rationalizations were employed. He said that studies have indicated that persons who are younger, less educated, and have lower intellectual functioning are more susceptible to those techniques. He also testified that the length of an interview is a factor. Dr. Montgomery stated that the interview he observed between law enforcement and the Defendant was "significantly more controlled" than an interview he might conduct with a client. He said that open-ended questions allow for a more "free-flowing narrative" versus closed-ended questions where "we're really more directing at what we're thinking about instead of what their about." Dr. Montgomery observed that law enforcement used "more restrictive" questioning rather than allowing for a "free-flowing account."

         Dr. Montgomery testified that the Defendant disclosed to him numerous medical issues that he was suffering from at the time of the polygraph test. Dr. Montgomery stated that he had reviewed medical records corroborating the Defendant's assertion.

         On cross-examination, Dr. Montgomery confirmed that the Defendant had been prescribed a "relatively low dosage" of Lortab, "as needed, " for pain. He was to take the medication "as-needed." Dr. Montgomery stated that the Defendant did not disclose to him that he had told law enforcement about the medication or the kidney stone. Dr. Montgomery's report stated: "overall, [the Defendant]'s pattern of responding on these measure[s] suggest that [the Defendant] may be more suggestible and compliant than the average person, court-referred individual, or prisoner." Dr. Montgomery explained that his "fairly equivocal" assessment that the Defendant "may" be more suggestible is due to the fact that he only administered one test and he "would never hang [his] hat on just these one scores."

         On redirect examination, Dr. Montgomery testified that the Defendant disclosed that, during the polygraph test, he felt "like he was in jail, " and that he was not free to leave the police station.

         C. Trial

         On June 23, 2015, the Defendant's second trial began. Detective Massey testified consistently with his testimony from the suppression hearing. Additionally, he testified that the Defendant was "very coherent, very clear" and did not appear to be in any pain during the October 19 interview.

         Deborah Lowen, a Vanderbilt Children's Hospital pediatrician, testified as an expert witness in the field of pediatrics and child abuse pediatrics. Dr. Lowen stated that her specific title at Vanderbilt Children's Hospital was the Director of the Center for Child Protection and Well Being, the child abuse program. While serving in this capacity, she came in contact with the victim. Dr. Lowen explained that the victim was born at Vanderbilt Hospital, prematurely, and stayed in the Neonatal Intensive Care Unit ("NICU") for the first month of his life before discharge in "good condition." Dr. Lowen testified that during his initial stay in the hospital after birth, the victim underwent head ultrasounds, a chest x-ray, and multiple x-rays of his abdomen. All of these, specifically the x-rays of the abdomen depicting the victim's lower ribs, looked "fine."

         Dr. Lowen testified that, after release, the victim had "several visits in a couple of different clinics, " and two emergency room visits, including one where she became involved. The victim's primary care physician referred the victim to Vanderbilt Hospital on October 2, 2012, due to vomiting and concern regarding the possibility of pyloric stenosis. The victim underwent an ultrasound to look for pyloric stenosis, which was negative, so he was diagnosed with reflux and released with medication. On October 4, 2012, the victim returned to Vanderbilt Hospital due to concern about him vomiting blood and not keeping food down. Based upon these concerns, an x-ray was taken, which revealed rib fractures. Further chest x-rays showed multiple rib fractures, and the emergency department team requested Dr. Lowen's involvement.

         Dr. Lowen testified that she reviewed the x-rays, spoke with the caregivers individually, examined the victim, reviewed the x-rays again in more detail, reviewed all other medical records, and then spoke with the other clinicians involved before generating a detailed consultation note. Dr. Lowen identified x-rays taken of the victim. On the x-rays, she identified a fracture in the victim's left first rib, multiple oblique rib fractures, a fracture of his left thigh bone (femur), a fracture of his right thigh bone, a fracture to the victim's right forearm, a fracture to the right tibia, and fractures to the lower ribs.

         Dr. Lowen testified that when she first spoke with the Defendant, only the rib fractures had been discovered. The Defendant told Dr. Lowen that he and N.S. were "very surprised" by the fractures and that the victim had never fallen, been dropped or sustained any injuries. Dr. Lowen then spoke with N.S., who also seemed "very, very surprised" by the finding of rib fractures. N.S. confirmed that the victim had never fallen, been dropped, or experienced any traumas. N.S. disclosed that she noticed a "big change" in the victim about a week after release from the NIC U.She stated that "'everything went downhill, '" and the victim began to "'scream all the time.'" N.S. indicated that she and the Defendant were "pretty much the only caretakers." N.S. told Dr. Lowen that the Defendant took care of the victim while she worked seventy-five to one hundred hours over a two-week period. The Defendant confirmed to Dr. Lowen that he took care of the victim while N.S. worked. N.S. told Dr. Lowen that both she and the Defendant would "get frustrated" with the victim when he was screaming and crying.

          Dr. Lowen testified that N.S. and the Defendant reported bruising on the back of the victim's legs that N.S. indicated was caused by him sitting in his car seat too long. Dr. Lowen did not find this explanation consistent with a cause for bruising. After speaking with the Defendant and N.S., she examined the victim, noting numerous bruises on the victim, including a purple bruise on his ear. Dr. Lowen testified that she photographed the bruising because bruising on little babies who are not independently mobile was "very concerning." She explained that bruising on an infant indicates external force as a cause because an infant lacks the strength to cause the bruising. In reference to the bruise on the victim's ear, Dr. Lowen stated that the ear was "a common location for abusive bruises." She also noted that the bruising on the victim's extremities were in close proximity to the fractures.

         Dr. Lowen testified about the fractures on the x-rays, noting that it takes approximately seven days, and sometimes up to ten days, before healing will show on an x-ray. The fracture on the victim's left first rib showed no signs of healing so it likely had occurred in the seven days prior. Likewise, the fracture to the ninth rib also showed no signs of healing. The first abdominal x-ray taken on October 4, to look for possible causes of vomiting, showed healing rib fractures on both sides of the victim's rib cage, indicating that the fractures occurred more than seven to ten days earlier. As to the two femur fractures, Dr. Lowen testified that there were "early signs of healing, " indicating they were older than about seven days, but not "very old." Looking at the x-ray for the right forearm, Dr. Lowen noted that there were three fractures that were "new."

         Dr. Lowen testified that, after photographing the bruising and reviewing the additional x-rays taken, she spoke with N.S. again and notified her of the multiple fractures in three extremities and multiple rib fractures at various stages of healing. She further informed N.S. that due to these injuries she was required by law to notify investigating authorities. Dr. Lowen recalled that N.S. was "upset and tearful" at learning this news.

         Dr. Lowen testified that the radiologist who did the initial reading of the skeletal survey indicated the possibility of mild osteopenia, meaning that the bones did not look as mineralized as normal. Dr. Lowen spoke with this radiologist and several other radiologists who reviewed the images and concluded that the victim did not have mild osteopenia. The radiologists believed it was a function of the technique used to take the x-rays and not a problem with the actual bones. Due to the nature of the case, Dr. Lowen ordered additional labs to look for any risk factors for major bone problems and requested involvement from the genetics team. The lab results indicated no risk factors for bone problems and the geneticist, based upon his clinical evaluation, thought testing was unnecessary for Osteogenesis Imperfecta, brittle bone disease. Nonetheless, Dr. Lowen asked that the victim's blood work be sent to a lab in Washington that would test for brittle bone disease. The lab in Washington confirmed that the victim did not have Osteogensis Imperfecta. Dr. Lowen noted that the victim did not sustain any additional fractures following his removal from N.S. and the Defendant's custody. Over the course of the month, the subsequent x-rays showed healing, which she said would not be the case for a baby with severe bone problems. Dr. Lowen testified that the bruising also supported the conclusion that the victim had undergone some sort of trauma.

         The State asked Dr. Lowen "what mechanism would it take to cause all of these injuries?" Dr. Lowen responded, "[the victim], with 23 fractures[2] of varying ages on varying parts of his body and bruises on three extremities and an ear, that whole constellation, that whole series of injuries indicates that he was a victim of child abuse, and that's my medical diagnosis." Dr. Lowen was then asked to read the statements the Defendant provided about his interactions with the victim. She stated that, in her medical opinion, these instances documented by the Defendant might explain some of the injuries but not all.

         Jennifer England testified that she served as the victim's foster mother for a year. On October 10, 2012, she picked up the victim from Vanderbilt Children's Hospital. She described the victim as pale, very small, and still wearing a cast on his arm. Ms. England explained that, at that time, there were six children living in her household. She was the primary caregiver for the victim but her husband and children also helped care for the victim. She said that her children loved to play with him. In October 2013, the victim was placed with his biological father. She said that she still had visitation with the victim every other weekend because the victim had built a relationship with her children and they enjoyed playing together.

         Ms. England testified that, on October 20, 2012, ten days after the victim came to live with her, his cast slid off his arm. She "panicked a little bit, " wrapped it up, and took him to the Vanderbilt Hospital Emergency Department. His arm was x-rayed and re-casted but no new injuries were found. The victim returned to Vanderbilt Hospital on October 25, 2012, and his bones had healed sufficiently for removal of his cast. Ms. England stated that the victim had sustained no new fractures since the discovery of the fractures on October 4, 2012.

         Randy Dickens, the victim's biological father, testified that he had had custody of the victim for about a year and a half. He confirmed that the victim visited Ms. England every other weekend. Mr. Dickens confirmed ...


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