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State v. Harris

Court of Criminal Appeals of Tennessee, Nashville

November 5, 2019


          Session August 20, 2019

          Appeal from the Criminal Court for Davidson County No. 2013-D-3164 Cheryl Blackburn, Judge

         Aggrieved of his Davidson County Criminal Court jury convictions of one count of felony murder in the perpetration of aggravated child neglect, one count of the facilitation of felony murder in the perpetration of aggravated child abuse, three counts of aggravated child abuse, one count of aggravated child neglect, and one count of the facilitation of aggravated child abuse, the defendant, Donald Lee Harris, appeals. The defendant alleges that the trial court erred by permitting the State to introduce the victim's medical records on rebuttal, that the State's election of offenses was insufficient to ensure jury unanimity, that the trial court erred in its jury instructions regarding criminal responsibility for the conduct of another, that the evidence was insufficient to support his convictions, and that the total effective sentence of life plus 75 years is excessive. The defendant's convictions of felony murder (Count 9), facilitation of felony murder (Count 8), aggravated child abuse (Counts 2 and 3), aggravated child neglect (Count 7), and facilitation of aggravated child abuse (Count 1) are affirmed. We find no error in the sentencing decisions of the trial court. Because the State's election of offenses was insufficient to safeguard the defendant's right to a unanimous verdict in Count 6, the defendant's conviction in Count 6 is reversed. Because dual convictions of aggravated child abuse in Counts 2 and 3 violate double jeopardy principles, those convictions must be merged. The case is remanded for a new trial on the offense of aggravated child abuse in Count 6 and for the entry of corrected judgment forms reflecting the merger of Counts 2 and 3.

         Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed in Part; Reversed in Part; Remanded

          Manuel B. Russ (on appeal) and Leah Wilson (at trial), Nashville, Tennessee, for the appellant, Donald Lee Harris.

          Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Pam Anderson and Doug Thurman, Assistant District Attorneys General, for the appellee, State of Tennessee.

          James Curwood Witt, Jr., J., delivered the opinion of the court, in which John Everett Williams, P.J., and Robert H. Montgomery, Jr., J., joined.



         The Davidson County Grand Jury charged the defendant and Shantonio Hunter with six counts of aggravated child abuse, one count of aggravated child neglect, one count of felony murder in the perpetration of aggravated child abuse, and one count of felony murder in the perpetration of aggravated child neglect for injuries inflicted on Ms. Hunter's three-year-old son, E.H., that eventually led to his death.


         On April 26, 2013, Metropolitan Nashville Police Department ("Metro") Officer Brandon O'Guinn responded to a call of an unresponsive child at 919 North 12th Street in Nashville. When Officer O'Guinn approached the apartment, he encountered Ms. Hunter in the doorway, screaming. She "alluded to the right side of the door," and he entered the apartment to the right. Inside the apartment, Officer O'Guinn observed "a small boy on an air mattress . . . being given CPR by the defendant." When he checked for the victim's pulse and found none, Officer O'Guinn told the defendant to continue CPR. He recalled that the emergency medical personnel arrived within two minutes, and the victim was taken to Vanderbilt University Medical Center ("VUMC") via ambulance. After the victim was taken from the scene, Officer O'Guinn asked the defendant, who was visibly upset, what had happened. Officer O'Guinn testified,

He had indicated that the child had been sick overnight several times and [the victim] had -- defecated and thrown up on himself. He had been given a bath several times. I do recall the mattress being wet underneath where the small child was laying and I initially, I mean just thinking, thought that he might have drowned in the tub. I remember asking did -- at any time did he go under the water, and he said no. But that was the reason . . . for the dampness under the body and why he was wet at the time, that he had just got out of the tub because he had been sick and had some issues overnight.

         Metro Officer Joseph Progar, who also responded to the scene, went into the bathroom and saw "that the bathtub was drained but it was still wet, and there was like a towel or washcloth that was in the tub." The floor was wet, and another towel lay on the toilet seat. The defendant, who was "very upset," told Officer Progar "[t]hat the child had soiled himself and that the child had, you know, like two baths within about an hour and a half or so." Officer Progar also observed a bottle of children's cold medication on the floor next to the air mattress.

         Metro Crime Scene Investigator Joe Williams responded to VUMC, where he spoke with Detective Selene Julia before photographing the victim's body. While photographing the body, Investigator Williams observed a bruise "above the rib stomach area" that "had . . . real faded dots from like where a knuckle" had struck him with a fist.

         Sharon Tilley, who was a Metro Crime Scene Investigator at the time of the victim's death, photographed the apartment and collected various items of evidence, including a green fabric belt with a ring loop closure, a "white metal stud belt" that was broken and stained with something reddish brown, a piece of black belt, and an orange polo shirt stained with a reddish-brown substance.

         Metro Detective Selene Julia responded to VUMC, and, when she arrived sometime between 7:30 and 8:00 a.m., the victim had not yet been pronounced dead. By the time she saw him, however, he had been pronounced dead. Detective Julia observed "numerous physical injuries on him," including "noticeable injures" on the victim's chest, stomach, sides, and face.

         Detective Julia identified the defendant's voice on telephone recordings that were exhibited to her testimony and played for the jury. In the first recording played for the jury, the defendant said of the victim, whom he called "Man Man," "He got a[n] ass-whooping from me Monday. . . . He got hit Wednesday night." The defendant also said, "Man Man got put out of school that Monday when I whooped him. That's when he got put out of school. It's the same week that he died." In the second recording, the defendant stated that he and the co-defendant, the victim's mother, had "lived together for a whole year basically." In the third recording, the defendant said that he "was not the last one who hit Man Man," explaining, "And . . . it all happened Wednesday. When I got home from work. That's when it happened. Because me and her got to arguing about something. She took it out on him." The defendant said that he had not initially told the police about Ms. Hunter's involvement, saying, "That's why I didn't say nothing because I love her. . . . I was gonna do life for the girl."

         Assistant Davidson County Medical Examiner Doctor David Zimmerman, who performed the autopsy of the victim, testified that the victim's body was essentially covered with fresh, healing, and old wounds. The victim had multiple abrasions "on the forehead, on both cheeks, on the chin and on the bridge of the nose." The skin on the bridge of the victim's nose, his frenulum, and the skin "on the left side on the inside of the [lower] lip" all bore lacerations. Doctor Zimmerman noted that the wounds on the bridge of the victim's nose were starting to heal, indicating that they had been inflicted "[h]ours to a couple of days" before the autopsy. Similarly, abrasions on the victim's lower lip, chin, and left cheek were "hours to days" old. The injuries to the inside of the victim's mouth had "been there a couple of hours" before the victim's death.

         The skin underneath both of the victim's eyes was bruised, and Doctor Zimmerman observed bruises on the victim's cheek and temple. The victim had abrasions on his face and behind his ear as well as bruising, abrasions, and a scar underneath his chin and an abrasion on the left side of the neck. Upon pulling back the skin of the victim's head, Doctor Zimmerman found blood between the galea, the layer of connective tissue "attached right to the skull," and the bones of the skull "kind of on the forehead going up onto the scalp" that coincided with "abrasions of the skin" in that same area. More impact than a simple trip and fall would have been necessary to cause the subgaleal hemorrhage.

         Doctor Zimmerman observed scarring patterns on the victim's body that looked like small dashes as well as scarring above the victim's right eye and on his cheek. Doctor Zimmerman observed a contusion on the victim's chest. Scars on the upper left quadrant of the victim's torso "were at least months or weeks old. . . . They were completely healed." An abrasion on the tip of the victim's penis formed the same small dot pattern as those on other parts of the victim's body. Doctor Zimmerman observed an abrasion on the victim's inner right thigh that formed that same pattern as well as abrasions, scars, and contusions on the right buttock, right torso, and right arm. Similar circular contusions also appeared near the victim's spine.

         Doctor Zimmerman observed "abrasions, contusions, and . . . scars" on the victim's back and buttocks, some of which formed a linear pattern. Doctor Zimmerman explained,

If a long thin object were used and it struck the skin, it'll press the blood out of the skin right where it hits and it'll cause the capillaries to rupture at the edges and that'll cause the bruising around where the object was hit. And there won't necessarily be any bruising directly where the object hit.

         Linear abrasions on the right side of the victim's chest that were "hours to days" old lay at right angles, indicating that those abrasions were "either two impacts with something that would abrade the skin or . . . a single impact of something that has a right angle on it." The scars on the victim's back and buttocks, both the round and the linear, were "all well-healed scars so weeks to months old." In addition to these scars, Doctor Zimmerman found "multiple well-healed scars, weeks to months old," on the back of the victim's legs that appeared to wrap around the backs and sides of the leg; "there were significantly more on the right leg than on the left." He also found "some scabbed abrasions" on the victim's legs that took the form of "dark dots." Those were "hours to days old." There were abrasions on the left inner thigh, both partially healed and acute, as well as scarring. The circular pattern contusions also appeared on the back of the victim's left leg. Doctor Zimmerman said that the linear contusions on the back of the victim's leg were consistent with a long strap-like item striking the skin. Contusions and scarring also appeared on the back of the victim's right hand.

         Doctor Zimmerman found contusions and "small little dots of abrasions" on the abdomen and a variety of abrasions on the abdomen near the belly button. He observed that the victim's abdomen was "protuberant which means it's kind of sticking out." Additionally, "some dark discoloration of the abdomen," indicating a bruise, aligned to injuries that Doctor Zimmerman found to the victim's intestines. Upon internal examination of the victim's abdomen, Doctor Zimmerman found "about 45 milliliters of serosanguinous fluid and fibrinopurulent debris." The amount of serosanguinous fluid, "the same fluid that you would see in a blister on your skin," inside the victim's abdomen was equivalent to "about one and a third cans of soda." Fibrinopurulent debris, he explained, is a "stringy, green, thick material that was on the organs, the surfaces of the organs in the abdomen. And that's part of the body's healing process. It has white blood cells and other proteins to wall off any kind of infection that would be in the abdomen." The presence of the serosanguinous fluid and fibrinopurulent debris indicated that "there was an acute peritonitis in the abdomen. That means there's an infection in the abdomen." When he examined the victim's intestines, Doctor Zimmerman found that some of "the loops of the intestines were also stuck together." He also observed "bruises on the surfaces of both the small bowel and the colon" as well as more than one "area of necrosis which means that part was dead tissue. . . . the color wasn't right. It was more of a grayish color, and there was also hemorrhage or bleeding on the serosal surfaces as well." Doctor Zimmerman testified that the process of necrosis would have taken "hours or days."

         Doctor Zimmerman found another 100 milliliters of serosanguinous fluid in the victim's chest as well as "plural adhesions, . . . where the outside surface of the lung is stuck to the chest wall," that could be attributed to either "some kind of infection or some sort of injury in the chest."

         Doctor Zimmerman testified that peritonitis is typically accompanied by symptoms such as pain in the abdomen, fever, irritability, loss of appetite, vomiting, diarrhea, and decreased movement. He said that peritonitis could be caused by "either an injury or an infection that has spread to the abdomen" and that, to cause peritonitis, an injury would have "to be a hard enough injury where it can cause a hole in the intestines or stomach. And then some of those contents spill into the abdominal cavity and then the body tries to fight off that infection that's occurring because of that." He found evidence that the contents of the victim's intestines had spilled into the abdominal cavity when viewing the slides he created using material from the outside of the victim's intestines. Upon examining the material microscopically, he "saw some plant material on the outside of the intestines." The presence of plant material on the slides was consistent with the victim's having an actual injury to his stomach or intestines. He said that both the injury and the peritonitis would have been treatable with antibiotics and fluids.

         Doctor Zimmerman examined the "white stud belt" recovered from the apartment and opined that the belt could have made some of the abrasions he found on the victim's body and agreed that "the small metal areas on the belt . . . could make round scars on the skin." He said that a belt without such studs, "especially if it hit with the edge of the belt, . . . could make linear contusions." Doctor Zimmerman testified that the impact of the knuckles of a closed fist could have made the round contusions he observed on the victim's abdomen. He agreed that blunt force to the mouth could have caused the injuries inside the victim's mouth.

         Doctor Zimmerman agreed that there were abrasions and contusions across a majority of the victim's body but testified that, with prompt medical treatment of the injuries, the victim could have survived. The failure to obtain prompt medical care contributed to the victim's death. Ultimately, he determined the cause of death to be multiple blunt force trauma.

         During cross-examination, Doctor Zimmerman conceded that he was unable to identify a tear in the victim's small intestine, but he said that "there had to have been one in order for that plant material to be there." He added that, "[w]ith all the contusions on the abdomen, some sort of blunt trauma of the abdomen would have caused" the tear that led to the victim's death. He acknowledged that "[a]n infection in the intestines could cause a tear of the abdomen" but said that he "didn't see any evidence of that. By infection, I mean like a bacterial or a viral infection inside the intestines. I didn't see any evidence of that under the microscope." Doctor Zimmerman clarified that the belt with studs on it could have caused "some of the bruising" and "some of those linear abrasions" but not the internal injuries. He explained, "[I]f a belt were used to impart that much force on an abdomen to cause those internal injuries, it would leave more than just superficial abrasions on the skin." He acknowledged that although a simple slip and fall would have been insufficient, running into the corner of a table "could make a deep enough injury to cause a subgaleal hemorrhage." Finally, he said that the fluid in the victim's lungs could be attributed to the services he received at the hospital but that it was not "very likely" that any of his injuries were sustained in the course of treatment.

         Tara Steele-Giles, Director at Gartland Child Development Center ("the Center"), testified that the victim enrolled in January 2013 and attended somewhat sporadically until April 22, 2013. Ms. Steele-Giles described the victim as "a very good kid" who understood enough to follow directions but had difficulty expressing himself. The victim appeared to have "kind of like a speech problem," so Ms. Steele-Giles worked with him one-on-one "to get a little bit of understanding." She tried to speak with Ms. Hunter about the victim's issues "a few times," but "[a] lot of times it was, you know, like brush off, like ignore type of thing." Eventually, however, she spoke to Ms. Hunter and "arranged to get help for the child." That help was provided "one time at our facility. And the other times they could not get in contact with" Ms. Hunter.

         Ms. Steele-Giles recalled that the victim "didn't want to go" when his mother came to pick him up and would cling to Ms. Steele-Giles when it got time to leave, which, in hindsight, "was a red flag." She said that she did not take any action at the time because, given his limited ability to communicate, she could not be sure why the victim did not want to leave. Because the victim was potty trained and attended school in the winter and spring, Ms. Steele-Giles had no occasion to view the victim's bare legs.

         The Center did not use corporal punishment, and, on those occasions when one child harmed another, the Center created an incident report with one copy for the parents and another for the Center. The victim was involved in incidents on March 25 and 26, 2013, that involved his hitting other children. On one occasion, the victim stood on a chair and screamed. On another he threw rocks on the playground. On April 4, 2013, the victim was placed in timeout for spitting on the table. The victim's file contained no documented cases of the victim's injuring himself at the Center. After the victim was absent on April 23, 2013, Ms. Steele-Giles attempted to telephone Ms. Hunter on April 24, 2013. She left a message but never received a return call.

         Ms. Steele-Giles testified that she interacted often with the defendant, saying, "If I needed to ask anything, a lot of times Donald would speak for [Ms. Hunter]. And I didn't think nothing bad because I actually thought he was the father." She said that the defendant and Ms. Hunter often arrived together to drop off and pick up the victim and that Ms. Hunter had listed the defendant's name in the portion of the application for naming the victim's father.

         Forensic testing on the orange polo shirt and three pieces of belt collected from the scene established that reddish-brown stains on those items was the victim's blood.

         The defendant did not testify but did choose to present proof.

         Nashville Fire Department paramedic Richard Carney testified that he had no independent recollection of having treated the victim but acknowledged that the report he prepared following the incident did not include any notation that the victim had a torn frenulum. During cross-examination, however, Mr. Carney maintained that he could not have torn the victim's frenulum during the intubation procedure "because I'm nowhere near that."

         Psychologist and professional counselor Bernard Charles Ihrig, who was tendered as an expert in the field of child psychology, testified that he had reviewed the victim's medical records from Vanderbilt, Meharry, and Centerstone. He said that Meharry Doctor Vanessa Elliott had given the victim a "somewhat provisional" diagnosis of "potential global developmental delay or other developmental delay" in 2012 based upon answers provided by the co-defendant. He said that a diagnosis "of global developmental delay is highly associated with self-injurious behavior."

         During cross-examination, Doctor Ihrig admitted that he had never seen any images of the injuries inflicted on the victim and could not make a diagnosis of the cause of those injuries. He conceded that he did not interview any witnesses. Doctor Ihrig also admitted that the victim was not ever fully assessed for a developmental delay and that "[w]hat was done was superficial." Doctor Ihrig acknowledged that Doctor Elliot had also given the victim a provisional diagnosis of Oppositional Defiant Disorder, but Doctor Ihrig chose not to include that diagnosis in his report because it was his opinion that such a diagnosis was "completely inappropriate" for a child of the victim's age. Doctor Ihrig testified that inflicting corporal punishment on a child with a developmental issue "would exacerbate the symptoms that the child manifests," causing "[i]ncreased aggression, more tearfulness, slowed development, . . . lack of responsiveness to the environment. It would be pretty damaging."

         In rebuttal, the State offered into evidence a single nurse's report that was included in the victim's medical records from VUMC. The document indicated that the victim's frenulum was torn when he arrived at the hospital.

         Based upon this proof, the jury convicted the defendant of one count of facilitation of aggravated child abuse, three counts of aggravated child abuse, one count of aggravated child neglect, one count of facilitation of felony murder in the perpetration of aggravated child abuse, and one count of felony murder in the perpetration of aggravated child neglect. The jury found the defendant not guilty of two counts of aggravated child abuse. ...

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