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State v. Demps

Court of Criminal Appeals of Tennessee, Nashville

February 27, 2018

STATE OF TENNESSEE
v.
STEPHEN D. DEMPS

          Session January 17, 2018

         Appeal from the Criminal Court for Putnam County No. 2014-CR-0436 Gary McKenzie, Judge.

         Stephen D. Demps, the Defendant, was convicted of five counts of rape of a child and four counts of aggravated sexual battery. The trial court merged counts six and eight, aggravated sexual battery, into counts two and four, rape of a child.[1] He received a total effective sentence of twenty-five years' incarceration. On appeal, he argues that: (1) his statement during his December 2013 interview with law enforcement should have been suppressed because he was in custody and was not informed of his rights under Miranda v. Arizona, 384 U.S. 436 (1966); (2) his statement during his January 2014 interview with law enforcement should have been suppressed because he was coerced into confessing; (3) the trial court erred in denying his motion for mistrial after individuals spoke to the sequestered victim during trial; and (4) the State failed to properly submit a bill of particulars and he was prejudiced by this failure. After a thorough review of the facts and applicable case law, we affirm.

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

          Richard M. Brooks, Carthage, Tennessee, for the appellant, Stephen D. Demps.

          Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Bryant C. Dunaway, District Attorney General; and Bret Gunn and Beth Willis, Assistant District Attorneys 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.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE.

         I. Factual and Procedural History

         On May 7, 2014, the Putnam County Grand Jury indicted the Defendant on six counts of aggravated sexual battery. On March 2, 2015, the Putnam County Grand Jury issued a superseding indictment charging the Defendant with five counts of rape of a child and five counts of aggravated sexual battery. The Defendant filed a motion to suppress his statements to law enforcement on April 6, 2015.

         Suppression Hearing

         Detective Roger Cooper testified that he had worked for the Putman County Sheriff's Department ("PCSD") for over seventeen years. In December 2013, Detective Cooper investigated J.A.'s[2] complaint against the Defendant, J.A.'s great-uncle. On December 20, 2013, Detective Cooper called the Defendant and asked him to come to the PCSD for an interview ("the December interview"). The next day, the Defendant and his wife, Velma Demps, came to the PCSD to speak with Detective Cooper. Detective Cooper did not inform the Defendant of J.A.'s allegations prior to the interview. Detective Cooper stated that, during the December interview, the Defendant "didn't admit to what was being alleged, but did talk about some inappropriate contact." Detective Cooper made a video recording of the December interview. Detective Cooper did not tell the Defendant that he was under arrest or that he could not leave the PCSD, and the Defendant left at the end of the December interview. On January 14, 2014, Detective Cooper went to the Defendant's residence to interview the Defendant again ("the January interview"). Detective Cooper did not alert the Defendant or Mrs. Demps that he was coming to interview the Defendant. Mrs. Demps invited Detective Cooper to come inside the residence after he knocked on the door and introduced himself. Detective Cooper made an audio recording of the January interview with the Defendant.

         On cross-examination, Detective Cooper testified that, during the December interview, the Defendant stated that J.A. had pushed up against him and that "he had pinched her on the boob to get her off of him . . . when they would wrestle around." Detective Cooper did not recall whether he informed the Defendant that he recorded the December interview, but he stated that the video camera was visible in the corner of the interview room. Detective Cooper did not inform the Defendant of his Miranda rights at the December interview because the Defendant was not under arrest.

         Detective Cooper stated that he went to the Defendant's house in January to photograph the Defendant's basement, where J.A. alleged the incidents had occurred. He agreed that his investigation was focused on the Defendant based on J.A.'s allegations. Regarding the January interview, Detective Cooper stated that the Defendant was friendly and answered his questions. He stated that, if the Defendant had asked him to leave the residence, he would have left. Detective Cooper explained that, while he was in the Defendant's basement, the Defendant voluntarily allowed him to look at the Defendant's computer files and search history. Detective Cooper agreed that he mentioned religion to the Defendant during the January interview, but he denied that he used the theme of religion to coerce a confession from the Defendant. He explained that, after he observed that the Defendant's basement was unfinished and did not look like an area where J.A. would have been wrestling with the Defendant, he asked the Defendant more questions. Detective Cooper agreed that he told the Defendant to do the "right thing" and discussed sexual urges with the Defendant.

         The trial court denied the Defendant's motion to suppress. The trial court credited Detective Cooper's testimony and found that the Defendant freely and voluntarily came to the PCSD for the December interview. The trial court also found that Detective Cooper informed the Defendant that he was not under arrest and that the Defendant denied any criminal activity during that interview. The trial court found that the location of this interview at the PCSD weighed in favor of suppression. The trial court found that the majority of the December interview was not accusatory or confrontational in nature and that the Defendant drove himself to the interview, which weighed against suppression. Additionally, the trial court found that Detective Cooper did not restrain or limit the Defendant's movement during the December interview; Detective Cooper was not in uniform and did not sit between the Defendant and the door. The trial court found that the Defendant was aware that he was not under arrest and could leave at any time. Thus, the trial court concluded that "based upon the totality of the circumstances, a reasonable person in the [Defendant]'s position would not consider himself deprived of freedom of movement to a degree associated with a formal arrest during the interview conducted by Detective Roger Cooper on December 21, 2013."

         The trial court found that, during the January interview, the Defendant consented to Detective Cooper coming into his house to further discuss the allegations, take photographs of the basement, and inspect his computer. The trial court found that Detective Cooper twice mentioned something to the effect that the Defendant needs to tell the truth so that J.A. does not appear to be a liar. The Defendant then confessed to criminal behavior. The trial court noted that the Defendant was a healthy, intelligent, and articulate adult, which weighed against suppression of the Defendant's confession. The trial court also noted that there was no evidence that the Defendant had previous interaction with law enforcement, other than the December interview, which weighed in favor of suppression. The trial court found that, while Detective Cooper's questions "were definitely accusatory and definitely confrontational, " Detective Cooper's questioning was not repeated or prolonged, which weighed against suppression. The trial court found that Detective Cooper did not promise anything in exchange for a confession, which weighed against suppression. The trial court found that there was no evidence that the Defendant was deprived of food, sleep, or medical attention, which weighed against suppression. The trial court found that Detective Cooper's statements about religion and making J.A. out to be a liar were not coercive. The trial court concluded that "the statement of the Defendant to Detective . . . Cooper on January 14, 2014[, ] was freely and voluntarily given" and that "the [s]tatement was not extracted by any sort of threat, or violence, nor obtained neither by any direct or implied promises nor by the exertion of any improper influence."

         Jury Trial

         Detective Cooper testified that, in 2010, he became a detective for the PCSD in the Crimes Against Children Division. He explained that he worked with the Child Advocacy Center ("CAC")[3] in Cookeville. Detective Cooper stated that J.A., her mother, and a family friend came to the PCSD on December 14, 2013, and filed a report; J.A. was twelve years old at the time. J.A. was interviewed at the CAC, and Detective Cooper observed this interview from another room. He then asked the Defendant to come to the PCSD for the December interview. The Defendant and Mrs. Demps came to the PCSD on December 20, 2013, and Detective Cooper interviewed the Defendant. Detective Cooper went to the Defendant's residence on January 14, 2014 to conduct a second interview. According to Detective Cooper, the Defendant demonstrated his sexual contact with J.A. in the basement during the second interview. Detective Cooper then asked the Defendant if he had penetrated J.A.'s vagina with his tongue. Detective Cooper explained that, based on his years of experience, he knew that the Defendant was withholding information by not responding to or denying the allegation. Detective Cooper stated that the Defendant "had a look on his face of, like he was going to say something[, ]" so Detective Cooper said that the Defendant's expression implied that the Defendant's answer was yes. Detective Cooper also asked the Defendant if he kissed J.A.'s vagina, and the Defendant nodded in the affirmative.

         On cross-examination, Detective Cooper stated that, during her interview at the CAC, J.A. said that the Defendant touched her over her clothes. He explained that he never personally interviewed J.A., but he spoke with J.A.'s mother, K.M., [4] about the allegations. Detective Cooper agreed that, after the Defendant admitted he had sexual contact with J.A., Detective Cooper asked the Defendant if he felt guilty. Detective Cooper stated that the Defendant seemed remorseful and said he was ashamed of his conduct but also deflected blame.

         J.A. testified that, in December 2013, she was twelve years old. She stated that she spent time at the Defendant's residence, including spending the night. J.A. said that her siblings also went to the Defendant's residence, but she explained that sometimes she went by herself. The Defendant and Mrs. Demps also transported J.A. to and from school on occasion. She explained that she liked to watch videos of hair and makeup tutorials on the computers in the Defendant's basement. J.A. stated that the Defendant began touching her vagina with his fingers and mouth in the basement of his residence when she was eight years old. The Defendant told her not to tell anyone about the touching. J.A. explained that the Defendant put his fingers and tongue inside her vagina and moved them around. She stated that she generally wore shorts and a T-shirt when the Defendant penetrated her. She explained that she would be sitting at the computer, and the Defendant would sit next to her and touch her. J.A. stated that the Defendant took off her shorts or made her stand in order to penetrate her. She also stated that the Defendant put his hand up her shirt and touched her breasts.

         J.A. described an incident that occurred in the living room of the Defendant's residence. She was sitting on the couch watching TV, and the Defendant penetrated her vagina with his fingers and tongue. J.A. testified regarding another incident that occurred after the Defendant and Mrs. Demps went to dinner with J.A. and her siblings at a Golden Corral restaurant. Earlier that day, J.A. was in the basement of the Defendant's residence with the Defendant. J.A. stated that the Defendant penetrated her vagina with his fingers and tongue. J.A. stated that, on the last occasion that her mother arranged for J.A. to spend the night at the Defendant's residence, she cried and told her mother that she did not want to go. She testified that the Defendant penetrated her on this occasion with his fingers and tongue. J.A. estimated that the Defendant penetrated her with his fingers and tongue at least thirty times.

         J.A. stated that, while the Defendant was committing the offenses, her siblings were usually in the upstairs of the residence, and Mrs. Demps was either upstairs or not in the residence. J.A. stated that she told her neighbor, Rose Clark, about the Defendant's conduct, and J.A. then told her mother. She explained that she did not inform an adult of the abuse until she told Ms. Clark because she was scared and embarrassed. After J.A. informed her mother of the Defendant's offenses, J.A. and her mother went to the PCSD and spoke with a deputy. Later, J.A. spoke with a woman at the CAC. J.A. admitted that she did not tell the woman at the CAC all the facts about the Defendant's offenses; J.A. told the woman that the Defendant had touched her on the outside of her clothing because she was embarrassed and believed that she would get into trouble.

         On cross-examination, J.A. testified that two individuals[5] came into the room where she was sequestered prior to her testimony. J.A. stated that these individuals did not discuss the case with her.

         Deputy Matthew Roberts testified that he had worked for the PCSD for eleven years. On December 14, 2013, Deputy Roberts spoke with J.A., her mother, and Ms. Clark. Deputy Roberts generated a report based on the information that J.A. shared. He stated that J.A. was very emotional while she described the Defendant's offenses.

         At the conclusion of the State's proof, the State elected to proceed on five counts of rape of a child based on the Defendant's oral and digital penetration of J.A. during her visits to the Defendant's home. The State also proceeded on four counts of aggravated sexual battery based on the Defendant's sexual touching of J.A.'s vagina during her visits to the Defendant's home. The State dismissed count ten of the indictment, aggravated sexual battery. The jury found the Defendant guilty as charged on the remaining counts. The trial court merged count six, aggravated sexual battery, into count two, rape of a child, and merged count eight, aggravated sexual battery, into count four, rape of a child. The trial court sentenced the Defendant to a total effective sentence of twenty-five years' incarceration. The Defendant filed a timely motion for new trial, which the trial court denied. The Defendant now timely appeals.

         II. Analysis

         Motion ...


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