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State v. Sisco

Court of Criminal Appeals of Tennessee, Nashville

February 21, 2018


          Assigned on Briefs January 17, 2018

         Appeal from the Criminal Court for Putnam County No. 14-CR-843 David A. Patterson, Judge

         Perry Lewis Sisco, the Defendant, was convicted by a jury of one count of rape of a child and four counts of rape and was sentenced to twenty-five years for rape of a child and to twelve years on each of the rape convictions. The four twelve-year sentences were ordered to be served concurrently with each other but consecutively to the twenty-five-year sentence, for a total effective sentence of thirty-seven years. On appeal, the Defendant claims that: (1) the trial court erred in denying the motion to suppress his statement; (2) the trial court erred in denying his motion for the recusal[1] of the 13th Judicial District Attorney General and his staff; (3) the trial court abused its discretion in sentencing; and (4) there was insufficient evidence to sustain the convictions. Discerning no error, we affirm.

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

          Craig P. Fickling, District Public Defender: L. Scott Grissom and Jennifer Kolstadt, Assistant Public Defenders, Cookeville, Tennessee, for the appellant, Perry Lewis Sisco.

          Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior Counsel; Bryant C. Dunaway, District Attorney General; and Beth Willis and Bret T. Gunn, Assistant District Attorney 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 Timothy L. Easter, J., joined



         Factual and Procedural Background

         On August 11, 2014, one day before her sixteenth birthday, K.S.[2] disclosed to an assistant principal at Cookeville High School that her father had been molesting her since she was eight years old and that her mother was aware of the molestation and did nothing to prevent it.

         On October 6, 2014, a Putnam County grand jury issued a ten-count indictment charging the Defendant with three counts of rape of a child (Counts 1, 2, and 3) and seven counts of rape and jointly charging Kathy Ann Sisco ("K.S.'s mother") with rape in Counts 5, 6, 7, and 8. On May 6, 2016, a grand jury issued a superseding ten-count indictment. Other than the date of issuance, the only differences between the original indictment and the superseding indictment were that K.S.'s mother was charged with rape in Counts 5, 6, and 7 in the superseding indictment and the dates between which the offenses were alleged to have occurred. The superseding indictment for Counts 1, 2, and 3 alleged that "between August 12, 2006, through August 11, 2011, " the Defendant "did unlawfully and intentionally or knowingly sexually penetrate [K.S.] . . . a person less than thirteen (13) years of age, in violation of T.C.A. § 39-13-522[.]" For Counts 4, 5, and 6, the superseding indictment alleged that "between August 12, 2011, through August 11, 2013, " the Defendant "did intentionally and knowingly by force or coercion sexually penetrate [K.S.] in violation of T.C.A. § 39-13-503[.]" For Counts 7, 8, 9, and 10, the superseding indictment alleged that "between August 12, 2013, through August 31, 2014, " the Defendant "did intentionally, knowingly, or recklessly sexually penetrate [K.S.], without her consent and the [D]efendant . . ., knew or had reason to know that [K.S.], did not consent to said sexual penetration, in violation of T.C.A. § 39-13-503[.]"[3]

         The Defendant filed a motion to sever his case from his wife's case, a motion to suppress his statement, a motion for bond reduction, a motion for in camera inspection of the record of the Department of Children's Services (DCS), and a motion for the District Attorney General's (D.A.'s) Office to be removed from the prosecution of the case.

         November 19, 2015 Motion Hearing

         At the beginning of the hearing, the trial court granted the motion for severance and allowed the Defendant and the State full access to the DCS records. Investigator Terry Hembree of the D.A.'s Office testified that he met Putnam County Sheriff's Department (PCSD) Detective Roger Cooper at Cookeville High School at approximately 6:00 p.m. on August 11, 2014.[4] The Defendant and K.S.'s mother were already at the school when Investigator Hembree arrived. The Defendant agreed to go with him to the D.A.'s Office for an interview. Investigator Hembree explained that he wanted to conduct the interview at the D.A.'s Office because the office had an interview room equipped for audio and video recording. Investigator Hembree advised the Defendant that he was not under arrest, and he did not handcuff the Defendant. The Defendant agreed to ride in a patrol car to the D.A.'s Office.

         Investigator Hembree began the interview at approximately 8:00 p.m. by obtaining the Defendant's oral consent to be interviewed. The digital video disc (DVD) of the interview was entered as Exhibit 2 to the motion hearing. Investigator Hembree then read aloud the "Advice of Rights/Waiver of Rights" form, and the Defendant executed a written waiver of his Miranda rights. According to Investigator Hembree, the Defendant admitted that he had sexual contact with K.S. when she was approximately thirteen years of age and that he had "penile/vaginal penetration and oral sex between the two of them" approximately twenty times. On cross-examination, Investigator Hembree agreed that the Defendant and K.S.'s mother went to the school to look for their daughter after she did not return home and that they had been at the school for approximately three hours when he arrived.

         The following dialogue from the direct examination of the Defendant's mother, Barbara Sisco, was the only proof offered by the Defendant on the motion to disqualify the D.A. and his staff:

[Trial Counsel:] And are you familiar, w[ith] Mr. E.J. Mackie, did he at one point in time represent [the Defendant] in a matter in Cumberland County?
[Barbara Sisco:] I think so.
[Trial Counsel]: So you were familiar that, with regarding something in DCS, regarding a different daughter of [the Defendant]?
[Barbara Sisco:] Yes, I just, I don't remember that much about the case.
[Trial Counsel]: But you do believe he retained Mr. E.J. Mackie?
[Barbara Sisco:] Yes.

At the conclusion of the hearing, the following dialogue occurred:

[Trial Court:] Now[, ] I don't know of anything that causes me to think that the [S]tate should be recused from the case. I didn't hear definitively that the [D]efendant was represented by E.J. Mackie and I don't know how the [S]tate would have difficulty if E.J. Mackie had been retained in a case having to do with child support or some civil action, was it, [trial counsel]? Is that what you heard?
[Trial Counsel:] Your Honor, it was something regarding a DCS matter.
[Trial Court:] So what is the argument then that the [S]tate's attorney should be removed from this case?
[Trial Counsel:] Your Honor, [the Defendant] requested I file this motion. He does not---
[Trial Court:] Okay. What is the thought process behind it? I understand that he's asking you to, where are we?
[Trial Counsel:] Your Honor, [the Defendant] just didn't feel that since Mr. Mackie had been his attorney that he would have, that their office would have access to maybe information that he had shared with Mr. Mackie previously and that he didn't feel comfortable with this particular District Attorney's Office prosecuting this matter since Mr. Mackie has been hired onto their staff.
[Trial Court:] Okay. Now I see what you're saying.
[Trial Counsel:] Yes.
[Trial Court:] All right. We had to make that connection. General, do you see any difficulty?
[State:] No, sir, I've had no connection, no conversation with Mr. Mackie about this case.
[Trial Court:] And do you plan to do that?
[State:] No.
[Trial Court:] And can you keep from having any conversation with him that would have to do with anything that he would know with [the Defendant]?
[State:] Yes, sir. I rarely ever see Mr. Mackie.
[Trial Court:] Okay. You've had none with him on this case, [Mr.] Mackie has had nothing to do to touch the case?
[State:] And General Gunn, who will be trying the case, has not either.
[Trial Court:] Okay. At this time I see no reason for the [S]tate to be recused from hearing the case, the [S]tate's attorneys in the 13th Judicial District. I would suggest to the [S]tate that Mr. Mackie not touch the case in any way. If you think that would cause some difficulty with it, put up your Chinese Wall or whatever it's called and keep Mr. Mackie away from anything that would happen. Nothing has happened at this point and so that motion to cause the District Attorney's [O]ffice to be recused from hearing the case is denied.

         At the conclusion of the hearing, the trial court denied the motion to suppress, finding that the Defendant voluntarily waived his rights and provided the statement to the investigator. The trial court also denied the motion for recusal, finding no reason for the D.A.'s Office to be recused from the case.

         Jury Trial

         State's Proof

         K.S. testified that she was eighteen years of age and a senior in high school. She said that she had been living in a foster home for two years. She identified her father, the Defendant, seated in the courtroom. She said that she lived with her father and mother on Sheep Bluff Road from the time she was born until she was removed and placed in foster care. She said that her brother, who was three years older than her, also lived there until he turned eighteen. She said that she lived in two different trailers on Sheep Bluff Road and that in 2012, when she was thirteen years old, her parents got rid of the first trailer and bought a new trailer.

         K.S. identified a spreadsheet with a column containing a cell for years 2006 through 2016, and corresponding columns containing cells for her grade in school, her age, and the school she attended for each year. The spreadsheet also noted the date of "disclosure" as August 11, 2014. The spreadsheet, which was admitted as Exhibit 1 and published to the jury, provided:

         DATE OFBIRTH: August 12, 1998







Starting 12th


High School


Starting 11th


High School


Starting 10th


High School

Disclosure 8/11/14


Starting 9th


High School


Starting 8th


Middle School


Starting 7th


Middle School


Starting 6th


Middle School


Starting 5th


Middle School


Starting 4th


Elementary School


Starting 3th


Elementary School


Starting 2nd


Elementary School

         K.S. testified that the Defendant "raped [her] from the age of eight until [she] was released to foster care." She said that he penetrated her vaginally with his penis and his fingers, that he penetrated her anally with his penis, and that they had oral sex. She estimated that he raped her at least twenty times and that the first rape occurred when she was eight years old, attending elementary school at Cane Creek School, and living in the "old trailer." The Defendant told her to come into his bedroom and lie down on the bed. K.S. said that she did what he told her to do "[bec]ause [she] trusted him." She said that the Defendant covered her face with a towel and removed her shorts. She asked "what was going on, " and the Defendant told her "to trust him." He then penetrated her vaginally with his penis. She said the incident was painful and that she was crying. She said that she did not tell anyone because she did not know who to trust.

         K.S. said that her family moved into a new trailer in 2012 and that she "believed" she was thirteen years old when they moved into the new trailer. She described an incident that occurred in the new trailer in which she was told to come into her parent's bedroom. She said that her mother was lying on the bed, and the Defendant was sitting in a chair. She said that they "asked [her] to lie down with them." She said that she lay down beside her mother and that the Defendant got up from the chair, removed his shirt, and lay down on the other side of her mother. She said that the Defendant took off her mother's nightgown and had sex with her mother. She said that the Defendant took her shorts off and then penetrated her first with his fingers. She said that she "was asking for them to stop and let me go[, ]" but "he forced her to do the same thing with him as he was doing to her [mother]." She explained that he forced her "to have sex with him" and that he penetrated her vaginally with his penis. She said that she kept asking him to stop but that he would not. She said that he told her "[j]ust not to tell anyone, not to say anything." She said that she believed the incident involving her mother happened when she was thirteen or fourteen years of age in middle school.

         K.S. recalled another incident in which the Defendant told her to come into his bedroom and sit down on his bed. She said that he "asked [her] to turn over to lie on [her] stomach" on the edge of the bed. She stated that the Defendant removed her shorts and penetrated her anally. She said that she was crying because it hurt and that she asked him to stop and to leave her alone. She stated that the Defendant stopped. She did not tell anyone because she was scared and because she did not trust her mother.

         The following dialogue is from the direct examination of K.S. concerning when the incident described above occurred:

[State:] That incident, [K.S.], where your dad put his penis in your bottom, where were you attending school at that time?
[K.S.:] I was in the middle school.
[State:] And the chart shows that you were thirteen or fourteen years old at that time, correct?
[K.S.:] Yes.
K.S. described another occasion when the Defendant came into her bedroom while she was sleeping. She "remember[ed] being woken up to him taking [her] bed shorts off and . . . he continued to take his shorts off. And he told [her] to be still, lie still as he would use his penis to put into [her] vagina." The following dialogue from the direct examination concerned the above incident:
[State:] Did that feel good?
[K.S.:] No.
[State:] Did you want it to ...

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