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State v. Franklin

Court of Criminal Appeals of Tennessee, Jackson

June 28, 2019

STATE OF TENNESSEE
v.
CORDARIOUS FRANKLIN

          Session September 5, 2018

          Appeal from the Criminal Court for Shelby County No. 15-01192 Lee V. Coffee, Judge.

         Defendant, Cordarious Franklin, was convicted of rape of a child, aggravated sexual battery, and child abuse. The trial court imposed consecutive sentences of forty years for rape of a child, twelve years for aggravated sexual battery, and eleven months, twenty-nine days for child abuse. On appeal, Defendant raises the following issues: (I) whether the trial court erred by admitting the victim's forensic interview; (II) whether the evidence was sufficient to support Defendant's convictions; (III) whether the trial court erred in denying Defendant's request to review the victim's medical records; (IV) whether the trial court erred by failing to give the jury a Ferguson instruction; (V) whether a juror's questions amounted to extraneous prejudicial information; (VI) whether Defendant's sentence was improper; and (VII) whether there was plain error due to an ex parte conversation between the State and the trial court and by the trial court's exclusion of Defendant's family from the courtroom during the victim's testimony. After review, we conclude there is structural constitutional error by the trial court excluding the public from the courtroom and therefore reverse the judgments and remand for a new trial.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed and Remanded

          Andre C. Wharton, Memphis, Tennessee (on appeal) and Tim Williams and Krista Holder-Williams, Memphis, Tennessee (at trial) for the appellant, Cordarious Franklin.

          Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel; Amy P. Weirich, District Attorney General; and Jennifer Shurson and Lessie Rainey, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Thomas T. Woodall, J., delivered the opinion of the court, in which Norma McGee Ogle and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          THOMAS T. WOODALL, JUDGE.

         Background

         Initially, we note that in order to protect the minor victim, she will be referred to solely throughout this opinion as "the victim." In addition, we will refer to the victim's mother and other members of the victim's immediate family by their initials in order to further protect the victim's identity. C.D., the victim's mother, testified that on December 7, 2013, she was living with Defendant and their two children. When she arrived home from work at 10:00 p.m., Defendant said that he was going to go to the store which was located "a little walk" from their apartment. C.D. thought that Defendant was acting strangely because he told the children to stay in their rooms, and he was very quiet.

         As C.D. began cooking, the four-year-old victim walked out, and C.D. noticed a dark bruise under the victim's left eye. The child said that Defendant did it, but she did not say how Defendant bruised her eye. She also said that Defendant put his "cootie" in her mouth and told her not to bite it. C.D. testified that cootie is another word for "private area." The victim also said that Defendant told her to move her hands up and down on his private area (penis) and to suck on it. The victim indicated that the offense occurred while C.D. was at work and that Defendant told the victim's brother to go into his room and watch television before the offenses occurred. C.D. called her mother who in turn called police. The victim went to the bathroom and called for C.D. The victim said that she had "red stuff" on the tissue. C.D. also saw "pinkish red" in the toilet. She was told by police to take the victim to Le Bonheur Children's Hospital.

         Police arrived at the apartment and then left to find Defendant at the store. After the police left, C.D. got a knife and began looking for Defendant. As Defendant approached the apartment complex, C.D. met him at the front gates with a knife and the intent to kill him, but police stopped her. The victim was taken to Le Bonheur Children's Hospital for an examination. She was also questioned by someone from "Child Services." The victim's grandfather stayed with her while C.D. went back to the apartment for police to take pictures and collect evidence.

         C.D. returned to Le Bonheur Children's Hospital and later took the victim to the Rape Crisis Center where she received another exam. The victim was "pretty much telling everyone the same thing." C.D. also noted that the victim had diarrhea while at the Rape Crisis Center, although the victim had never mentioned being sick. C.D. took the victim to the Memphis Child Advocacy Center on a later date. C.D. admitted that she eventually spoke with Defendant again and let him see his children a couple of times. She testified that the victim still loved Defendant. C.D. also admitted apologizing to Defendant and asking for his forgiveness after finding out that she was pregnant with his third child. She said that she was apologizing for the situation in which they found themselves and not because she made up anything about the offenses in this case.

         On cross-examination, C.D. testified that she and Defendant had been together for six years at the time of the offenses in 2013. She said that the victim had never witnessed any type of sexual activity between her and Defendant and that she had a bedroom door that closed and locked. When asked exactly what the victim told her at the time of the offenses, C.D. testified that the victim told her, "My dad put his cootie in my mouth and told me to suck on it." The victim did not respond when C.D. asked her about the bruise other than to say that Defendant did it.

         C.D. admitted that she refused offers of counseling for the victim because the victim did not like talking about what happened, and it would be a "constant reminder." C.D. denied that seeing the video of the victim's forensic interview influenced C.D.'s statement to police because she saw it after the statement. C.D. believed she told police that Defendant told the victim not to bite his penis. C.D. admitted that she contacted Defendant through Facebook after the offenses occurred and sent him the following message:

I'm sorry. I know you love your daughter. God knows she loves you. When I see y'all, it's a bond like no other. I know you would never do anything to harm them. Please don't be mad at me for my concerns as a mother. You have no idea how much in my heart I didn't want to believe it happened 'cause I love you just as much. I'm sorry. You can still see the kids when you want. They love seeing you. Even [the victim] is coming back around to you."

         C.D. testified that she also sent Defendant a message that read: "Do you forgive me? Really, I truly am sorry. If I've ever admitted I was wrong before, I am now." C.D. admitted she was not present when Defendant saw the victim while the victim was at his sister's house. She did not know for certain if the victim was alone with Defendant during the visit.

         On redirect, C.D. testified that she did not tell Defendant that she was wrong for calling the police and protecting the victim. She also said that she did not accept counseling for the victim because she thought that the victim, at her age, did not understand that what happened to her was wrong.

         Teresa Onry, a forensic interviewer with the Memphis Child Advocacy Center, testified that she interviewed the victim in this case on December 16, 2013. As soon as the interview began, the victim disclosed what happened. Ms. Onry testified that she was alone with the victim during the interview, and the victim answered questions appropriately for her age. There were also two observers listening from another room. Ms. Onry explained that children have "flashbulb" memories, which meant that "they remember something and then they say it." She said that the victim was calm and soft-spoken during the interview and did not seem intimidated by her surroundings.

         Sally Discenza, a forensic examiner/nurse at the Rape Crisis Center, testified as an expert in sexual assault forensic examination. She examined the victim on December 8, 2013. She obtained the victim's medical history from the victim's mother who said that she got home from work and noticed a bruise on the victim's face. Concerning the victim's medical history, Ms. Discenza further testified:

The child also disclosed her dad told her to go to the bedroom and close the door. Her father told her to put his "cootie" - - and I clarified with the mother what that meant, which it meant his penis - - in her mouth and suck on it. Her father also put his red bandana on her head. And the father made her rub his penis up and down. And the mother demonstrated what the child demonstrated to her. [The victim] told her mother her cootie was bleeding and then they went to Le Bonheur.

         Ms. Discenza testified that she spoke with the victim alone. She noted that the victim's demeanor was "sad" and "quiet" but that the victim was also "articulate" and "specific" about what happened. Ms. Discenza testified:

[The victim] said, um, I started it out by asking her what happened to her eye. And she stated, "[Defendant] hit me. He put his thing in my mouth and told me to suck on it." And I clarified with her what his "thing" was. And she clarified "his cootie," and then I clarified with her what that meant to her, which was his penis. "He told me to do this too," and she demonstrated holding something in her hand and going up and down. "He put his cootie on my butt. There was blood on the tissue." Saying -- I asked her had he done this before, and she said yes. And I asked her how many times he did this before, and she said three.

         Ms. Discenza testified that her physical examination of the victim revealed a bruise and swelling under the victim's right eye. She noted that the injury was recent due to the "purple red" discoloration of the victim's skin, and there was still swelling. Ms. Discenza did not find any injury to the victim's genital or anal area, which was not uncommon in cases of child sexual assault. Ms. Discenza testified that the bleeding noted by the victim could have occurred internally and not been visible from the exam. She noted that the anal area, especially, had an "autonomic response that it will dilate up" to prevent injury. Ms. Discenza collected a rape kit from the victim. She noted that the victim had eaten food prior to the examination and that she had also had a bowel movement and diarrhea prior to the examination. Therefore, Ms. Discenza was not surprised that no DNA was found on the oral or anal swabs taken from the victim. She said that her findings supported the victim's history of sexual assault.

         On cross-examination, Ms. Discenza testified that she had no way of knowing if someone influenced the victim before Ms. Discenza spoke to her. However, she testified that the victim was very bright and articulate and that she was able to tell Ms. Discenza exactly what occurred. Ms. Discenza said:

So again, with what occurred, that that was - - that history is something that you wouldn't normally meet. Normally a child does not say that. You know what I mean? That doesn't occur typically. That's not what their experience is. So there was something that occurred that made her have these experiences.

         She noted that "most children don't come up and say, 'Someone put their cootie in my mouth.'"

         Ms. Discenza acknowledged that a bruise under someone's eye was not indicative of any type of sexual trauma. She also said that there was no dilation of the anus in the victim's case. Ms. Discenza assumed that a younger child would have more anal trauma from penetration by an adult than an older child. She noted that "as literature supports, it's in all children that in more instances than not you're going to have a normal exam. In examining children of sexual assault, there's more instances than not that the exam is going to be normal." Ms. Discenza agreed that she did not find any physical evidence of rape or a sexual assault. She also agreed that it could be just as likely, from the physical observations, that the victim was raped as that she was not raped. The parties stipulated that all of the DNA swabs from the victim tested negative for semen.

         The victim, now seven years old, testified that she recalled living in an apartment with her brother, mother, and Defendant. She recalled a conversation with her mother in the kitchen before they moved out of the apartment during which her mother asked, "What you do to get your mark on your face?" She told her mother that Defendant did it. The victim noted that her mother was cooking breakfast foods for dinner, and she had walked into the kitchen to help her mother cook. When asked if her mother asked her any further questions, the victim replied, "No." When asked if she told her mother anything else during the conversation, the victim replied, "Yes." However, she did not remember what she told her mother. The victim testified that her mother called police after their conversation, and officers came to the apartment. She later went to the hospital and to the Child Advocacy Center. The victim recalled talking to "Ms. Teresa" and that she told Ms. Teresa the same thing that she told her mother. She said that the conversation was recorded and that she had watched the video. The victim testified that she told the truth during her conversations with her mother and with "Ms. Teresa."

         The victim testified that on the day of the offenses, she was at home with her mother, brother, and Defendant. At some point, her mother left to go to work. The victim noted that their apartment had two bedrooms and that she shared a room with her brother, and her mother and Defendant shared the other bedroom. The victim testified that Defendant told her to go into his bedroom by herself, and she sat on the floor watching television. Defendant then walked into the room and sat on the bed. He also asked the victim to sit on the bed with him. At that point, Defendant removed his pants and underwear but not his shirt. With the aid of a doll during her testimony, the victim testified that Defendant touched inside of both her "butt" and her mouth with his "[p]rivate part." The victim further testified that when Defendant placed his private part in her mouth, he said, "Don't bite it."

         When asked what Defendant told the victim to do with her hands, the following exchange took place:

[Prosecutor]: Okay. And did he tell you to do anything with your hands?
[The victim]: Yes.
[Prosecutor]: Can you show us what he told you to do with your hands?
[The victim]: Yes.
[Prosecutor]: Yes? Would you show us, please?
[The victim]: He told me to do this (indicating).
[Prosecutor]: He told - - okay. Can you hold your hands up just a little bit higher?
[The victim]: Yes.
[Prosecutor]: And show us again.
[The victim]: He told me to do this (indicating).
[Prosecutor]: Okay. And did you do what he said?
[The victim]: Yes.
[Prosecutor]: The hand gesture that you made that he told you to do, were you touching his private part when you did that?
[The victim]: Yes.

         The victim testified that after that, Defendant touched her butt with his private part. When asked if Defendant placed a red piece of fabric over her eyes, the victim replied, "No." However, she agreed that she could not remember. She said that Defendant did not say anything after he touched her, and she had some Kool-aid. The victim later went to the restroom and noticed blood on the tissue and in the toilet, and she notified her mother to look at it. The victim agreed that her testimony was the same as she told her mother and "Ms. Teresa."

         On cross-examination, the victim testified that she came to the courthouse on the Sunday before trial and watched the video of her interview. She also watched it in an office the Friday before trial. The victim denied watching the video at her house. The following exchange then took place:

[Defense Counsel]: Okay. Do you know if you get in trouble, you say some certain things happen. I think Monday you told the court that you get whippings sometimes?
[The victim]: Yes.
[Defense Counsel]: And today you could go to jail.
[The victim]: Yes.
[Defense Counsel]: Did someone tell you you could go to jail?
[The victim]: No.
[Defense Counsel]: You just said that?
[The victim]: Yes.
[Defense Counsel]: After that day, that day that you had the black eye, or the bruise on your eye - -
[The victim]: Yes?
[Defense Counsel]: - - do you - - you remember talking, you said, right?
[The victim]: Yes.
[Defense Counsel]: You remember telling your mother, but you can't remember what you told her?
[The victim]: Yes.
[Defense Counsel]: Is that right?
[The victim]: Yes.
[Defense Counsel]: Okay, so you don't remember? So, and you said - - you told Ms. Rainey that you didn't remember what you told the people at the hospital right?
[The victim]: Yes.
[Defense Counsel]: Okay. And so - - but after you saw the video, did someone tell you you had to say what was on the video today or you could go to jail?
[The victim]: No.
[Defense Counsel]: No? Did anyone say anything about you could get a whipping if you don't tell the Court about the video?
[The victim]: No.
[Defense Counsel]: Okay. So, so you don't remember what you told your mom, you don't remember what you told the police, and you really don't remember what happened that day, is that about it?
[The victim]: Yes.
[Defense Counsel]: So you don't remember? Is that right? I'm sorry.
[The victim]: Yes.
[Defense Counsel]: You do not remember? So the way you're remembering, is it because they showed you the video at least three times? Is that about it?
[Prosecutor]: Judge?
THE COURT: Yes, ma'am?
[Prosecutor]: If he can ask one question at a time.
[Defense Counsel]: Oh, I'm sorry.
THE COURT: Yes, sir, [defense counsel], if you'd ask one question, please. And [victim], if someone asks a question and you don't understand what's being asked, let me know and we'll get him to ask a better question, okay?
[The victim]: Okay.
THE COURT: Yes, sir, [defense counsel], you may proceed.
[Defense Counsel]: [Victim], so you just said yes when I asked you - - when I asked you if you did not remember what happened.
[The victim]: Yes.
[Defense Counsel]: And the only reason you remember is because they showed you the video three times.
[The victim]: Yes.
[Defense Counsel]: So was it confusing to talk to all those people?
[The victim]: No.

         The victim testified that her mother took her to the hospital and that her grandfather was not there. She also said that her mother never left the hospital. The victim testified that she left Le Bonheur and went to another building. She was there until sunrise, and she then went home with her mother. The victim testified that she spoke with Ms. Onry and watched the video approximately ten days to two weeks later. She did not recall seeing Defendant since the incidents occurred. The victim testified that she was not afraid of defense counsel, and no one told her to say at trial what was on the video. She said that no one told her to use the word "cootie" for private parts and that she used the word on her own. The victim told defense counsel that she did not remember what happened on the day of the offenses. She also said that she did not know anyone named "Laquisha."

         On redirect examination, the victim testified that she remembered what she told her mother on the night of the offenses. However, she did not want to talk about it. She also said that she remembered what happened in the bedroom between her and Defendant but she did not want to talk about it. The victim testified that she was telling the truth in the video about what happened. When asked if she had done the best she could do to tell the truth in court, the victim replied, "Yes."

         On recross-examination, the victim testified that she had been to an aunt's apartment sometime after the offenses occurred, and she saw Defendant at the apartment. However, he did not spend the night there. She did not recall seeing Defendant at her grandmother's house.

         Following the victim's testimony, the video of her forensic interview was played for the jury. In the video, the victim told Ms. Onry that Defendant "watched" her and her younger brother while their mother was at work and that Defendant "messed" with the victim. The victim said that Defendant put his "cootie" in her mouth and told her to "suck on it." She said that Defendant also told her to move her hands up and down on his "cootie," and the victim demonstrated what she did. The victim told Ms. Onry that Defendant also put his "cootie" in her "butt" and that there was blood on the tissue when she used the bathroom. She said that the incidents occurred in her mother's house in her mother's bedroom. The victim told Ms. Onry that her younger brother saw her suck Defendant's "cootie."

         The victim told Ms. Onry that her mother saw a mark on her face. The victim said that the mark was caused by Defendant, but she did not know how it happened. The victim first told Ms. Onry that her clothes were on when Defendant put his "cootie" in her "butt." However, she later said that Defendant told her to get on the floor, and he removed her pants. The victim said that it hurt when Defendant put his "cootie" in her "butt." She said that Defendant placed a "red thing" on her head and over her eyes so that she could not see. The victim said that she had sucked Defendant's "cootie" two times, and he put his "cootie" in her "butt" one time. He also put his mouth on her mouth. The victim told Ms. Onry that Defendant had tattoos on his arms and on his "cootie." She used pictures to show where Defendant put his "cootie." The State then rested its case.

         Mary Turner, Defendant's grandmother, testified that Defendant, C.D., and their children, including the victim, lived with her during 2013-2014. Ms. Turner testified that she turned her living room into a bedroom by placing sheets at the "entranceway." She said that Defendant and C.D. had a pullout bed, and the children slept in a baby bed. When asked if she had any personal knowledge of Defendant and C.D. having sex with the children in the room, Ms. Turner replied, "Well, I have - - I have heard them and heard them say, 'Ya'll lay down.'" She then heard sounds that she interpreted as Defendant and C.D. having sex. Ms. Turner also testified that Defendant and the victim had been at her house together after December of 2013 along with C.D. and Defendant's son. Ms. Turner testified that the victim loved Defendant and did not appear to be afraid of him. She also called him "Daddy."

         On cross-examination, Ms. Turner agreed that the offenses in this case were alleged to have occurred in December of 2013. She acknowledged writing a letter in which she said that Defendant and his family lived with her after the victim was born in 2009. However, Ms. Turner testified that they lived with her "off and on" for two or three years. She agreed that Defendant and his family lived with her before the victim was born and afterwards.

         On redirect examination, Ms. Turner testified that she believed that Defendant and his family last stayed with her sometime before the victim turned four years old. During that time she heard the noises coming from the bedroom area.

         Laquisha McGhee, Defendant's girlfriend, testified that she and Defendant began dating in June 2013. She said that she had spent time with the victim more than ten times at her house, Defendant's sister's house, and Defendant's mother's house. She said that C.D. brought the victim to her house and that Defendant was never alone with the victim. Ms. McGhee testified that C.D. never told her that Defendant could not be alone with the victim. She said that the victim did not appear to be afraid of Defendant, and she called him "daddy." She also said that Defendant and the victim appeared to have a normal relationship. Ms. McGhee testified that she had never seen a tattoo on Defendant's penis.

         Dominique Franklin, Defendant's sister, testified that Defendant and C.D. had been together since the two were seventeen years old, and they had three children together. She testified that Defendant met Ms. McGhee in 2014 rather than 2013. Ms. Franklin testified that C.D. would bring her children, including the victim, to Ms. Franklin's house while the charges against Defendant were pending, knowing that Defendant would be there. She said that C.D. dropped the children off on several occasions and left without giving Ms. Franklin any kind of instructions on whether or not Defendant could see the children. Ms. Franklin described the relationship between C.D. and Defendant as "cordial."

         Ms. Franklin testified that she visited Defendant's apartment after he and Ms. McGhee began living together, and the children, including the victim, were there on several occasions alone with Defendant. She said that the children also stayed there overnight.

         Defendant testified that he woke C.D. at approximately 5:30 a.m. on the morning of the offenses and escorted her to the bus stop so that she could go to work. He then walked back to the apartment and lay down in the bedroom for one to three hours. Defendant testified that although the children had a separate bedroom, they did not have a bed so the children slept with him and C.D. Concerning the events of the day, Defendant testified as follows:

[The victim] and [her brother] woke me up around 8:00 that morning 'cause they were hungry. I made them breakfast, which consisted of eggs and toast. They ate. They went back again and played their normal routine of games, which is - - consists of toys, blocks, things of that nature. Around I want to say 12:00, I made them lunch, which consisted of chicken nuggets. That's what they like. They had chicken nuggets that day. The rest of the day went fairly normal. It was cartoons and playtime.
[C.D.] made [it] home around 10 that night in which me and [the victim] and herself, we brought up the groceries that she brought home from work that day. Her father was with her. He brought her home that day.

         Defendant testified that he and the children were home all day, and no one came over. He noted that it was "extremely cold" that day.

         Defendant testified that C.D. began cooking dinner after she arrived home and that she made "breakfast for dinner." He left to walk to a store, which was approximately thirty minutes away. Defendant testified that the victim asked to go to the store with him but he told her no because of the weather. He said that the victim was in the kitchen with C.D. when he left. Defendant testified that C.D. met him with a knife at the gates to the apartment complex when he arrived back from the store, and they had a scuffle. He said that police arrived, and he was eventually taken into custody and transported to the police department. Defendant testified that he was questioned and then escorted to his grandmother's house. He said that the victim did not have a bruise under her eye before he went to the store, and he had no idea how it happened. Defendant claimed that he learned of the injury when he received the State's discovery.

         Defendant testified that he, the victim, C.D., and his son had lived with his grandmother, Mary Turner. At trial, the following exchange took place:

[Defense Counsel]: Did you live at your grandmother's from the time C.D. was pregnant with [the victim]?
[Defendant]: Yes, sir.
[Defense counsel]: Did you live there when [the victim] was born?
[Defendant]: Yes, sir.
[Defense Counsel]: Did you live with her more than once?
[Defendant]: Yes, sir.
[Defense Counsel]: How long did you live with her when [the victim] was born?
[Defendant]: From April up until in November of 2009.
[Defense Counsel]: Okay. Did you move back in with her after that?
[Defendant]: Yes, sir.
[Defense Counsel]: Who all moved back in with her after that?
[Defendant]: Me, [the victim], and her mother, [C.D.].
[Defense Counsel]: What about - - what about the other two?
[Defendant]: They weren't born yet, sir.
[Defense Counsel]: And how long did they live - - did y'all live there that time?
[Defendant]: Possibly like five or six months.
[Defense Counsel]: Then what happened? Where'd you live then?
[Defendant]: We actually had an apartment in the ...

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