State of Tennessee v. Robert Eugene Crawford, Jr.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs September 18, 2012

STATE OF TENNESSEE v. ROBERT EUGENE CRAWFORD, JR.

Appeal from the Criminal Court for Sullivan County

No. S56314 Robert H. Montgomery, Jr., Judge

No. E2012-00001-CCA-R3-CD - Filed August 19, 2013

The Defendant, Robert Eugene Crawford, Jr., was convicted by a Sullivan County jury of

aggravated child abuse and aggravated child neglect. The trial court imposed consecutive

terms of twenty-five years for each of these convictions. In this direct appeal, the Defendant

contends that (1) the trial court erred in denying his motion to suppress his statements to the

police; (2) he was entitled to disclosure of grand jury materials; (3) reenactment photographs

of the abuse were improperly admitted into evidence; (4) he should have been permitted to

conduct individual voir dire of the potential jurors; (5) the trial court improperly limited his

cross-examination of two witnesses; (6) his investigator should have been permitted to testify

as a lay witness about the Defendant’s susceptibility to suggestion and the investigation

techniques used; (7) he should have been allowed to present evidence from his mental

evaluation about his reading comprehension difficulties; and (8) the trial court made several

erroneous sentencing determinations, including the denial of his right to allocution, the length

of the sentences imposed, and the imposition of consecutive sentencing. Following our

review of the record and the applicable authorities, the judgments of the trial court are

affirmed.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J OHN E VERETT

W ILLIAMS and R OBERT W. W EDEMEYER, JJ., joined.

Ilya I. Berenshteyn, Bristol, Tennessee, for the appellant, Robert Eugene Crawford, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy E. Wilber, Assistant Attorney

General; Barry P. Staubus, District Attorney General; and Teresa A. Nelson, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

By presentment returned on February 26, 2009, a Sullivan County grand jury charged

the Defendant with separate counts of aggravated child abuse and aggravated child neglect,

both involving his newborn son. See Tenn. Code Ann. § 39-15-402. The offenses were

alleged to have been committed on or about June 8, 2008, to June 9, 2008. The Defendant

does not challenge the sufficiency of the convicting evidence on appeal; therefore, we

provide only a brief summary of the facts underlying the Defendant’s convictions and those

which are necessary for a determination of the issues on appeal.

The evidence at trial revealed the following facts. The victim’s date of birth was May

29, 2008, and the Defendant signed the victim’s birth certificate. At the time the victim was

born, the victim’s mother and the Defendant were not married. After returning home from

the hospital, the Defendant began to question the paternity of the victim and started calling

the victim a “monk-monk,” meaning that the child was of Mexican heritage. The Defendant

stated in the victim’s mother’s presence, “I wonder what would happen if I threw him up

against a wall.” She testified that she thought he was joking at the time.

Prior to Sunday, June 8, 2008, the victim acted “like a normal baby”; he had been to

his “well baby check up” and everything was “fine.” According to the victim’s mother, June

8 began like a “regular day.” She was at home with her two children, the victim and her

fifteen-month-old daughter, and Deanna Jennings (“Deanna”), who also lived with the family

in the Kingsport apartment. The Defendant was home because he did not have to work that

day. During the evening hours, the victim started crying, which the victim’s mother

described as different than a “normal newborn baby cry[,]” a “screaming cry like he was

really hurting.” She gave him “gastro drops” in an effort to ease his pain. According to the

victim’s mother, the crying lasted for an hour or so and stopped only after both she and the

Defendant held the victim and walked him around, “patting his butt.” She recalled that she

did not go to bed until “late” that evening.

The victim’s mother testified that, around 4:00 or 5:00 a.m. the next morning,

Monday, June 9, the victim woke up again. She said that the Defendant “got up with [the

victim]. . . and was feeding him and trying to get him to go to sleep[.]” She awoke when she

“heard a loud screaming cry” and went to help the Defendant get the victim back to sleep;

the victim “finally” went back to sleep. When the victim awoke at 10:00 or 10:30 a.m. on

June 9, 2008, he hardly ate and his skin “was yellow, like he had jaundice.” She asked the

Defendant “to look and see what he thought” about the victim, and the Defendant said, “He

looks like he’s half dead.” After that, the victim was “just fussy,” and he continued not to

eat very much throughout the day and slept “off and on.”

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They left the apartment and went to the store and Deanna’s mom’s house; the victim

fell asleep in his carseat. When they got home later that afternoon, she took the victim out

of his carseat and noticed severe swelling and bruising on the left side of the victim’s head

and that his eye was “slanted” to where he could barely open it. She then took the victim to

the hospital, where she was unable to explain the victim’s injuries upon arrival. The victim’s

mother asserted that she had never done anything to harm the victim and that she had never

seen anyone else harm the victim.

Deanna, who was thirteen years old in June 2008, testified at trial about the events

surrounding the victim’s injuries, including the victim’s cries and when she and the victim’s

mother discovered the victim’s injuries. She also heard the Defendant make racial slurs

against the victim; ask aloud, “What would happen if I threw him up against the wall”; and

following the victim’s injuries, say that he was “probably half dead.” Deanna also testified

that she had never done anything to harm the victim and that she had never seen anyone else

harm the victim.

An investigation into the victim’s injuries ensued. Detective Todd Ide of the

Kingsport Police Department went to the hospital on June 9, 2008, and interviewed the

Defendant. In the statement the Defendant gave to Det. Ide, the Defendant stated that he had

gone to visit his wife in Hawkins County on June 9, 2008, when his sister called him and said

that the victim was in the hospital. He stated to Det. Ide that he then came to the hospital,

where he was informed of the victim’s injuries.

The following day, June 10, 2008, Detective Melanie Adkins of the Kingsport Police

Department went to the hospital, where she interviewed the Defendant, the victim’s mother,

and the treating physician. Det. Adkins obtained written statements from both the Defendant

and the victim’s mother at that time. In the days that followed, Det. Adkins spoke with the

victim’s mother several more times, and she spoke with the Defendant again on June 11 and

12, taking additional statements from him on those days.

The June 10 statement was read for the jury. In that statement, the Defendant said that

he noticed the victim was “yellow” the previous day and that he asked the victim’s mother

if she wanted to take him to the emergency room, but she wanted to wait. The Defendant

left, going to visit his wife, when he received a call from his sister that the victim’s mother

was taking the child to the hospital because “his ear was going to fall off.”

In the June 11 statement, the Defendant stated that he had not been around the victim

“for a couple days because something happened[,]” that he had done “something to [the

victim] on Sunday and it scared” him. He explained to Det. Adkins that he had argued with

the victim’s mother that day because she believed he was going to leave her and go back to

his wife. He also stated that he needed “counseling” for his bipolar disorder and that he was

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not taking his proper medication. The Defendant then admitted that he “hurt” the victim,

“jerk[ing]” the child out of his carseat and hitting his head against a wall. The Defendant

described that the victim’s head “snapped back” when it came into contact with the wall. He

noticed that the victim was acting differently and that his head was yellow before leaving to

visit his other child. He blamed the incident on being tired and under stress.

In the final interview on June 12, 2008, the Defendant again admitted to hitting the

victim’s head on a concrete wall. He described it as a “hard hit” and acknowledged that he

did not tell the victim’s mother what he had done. He said that he did not tell anyone about

his actions because “most people would beat the s--t out of” him. He also stated that he had

not been coerced into giving a statement. He claimed that it was “just an accident out of

anger” and that he did not intend to hurt the victim. The Defendant demonstrated his actions

for the police, which were photographed, and the photographs were admitted into evidence.

Following the victim’s arrival at the hospital, it was determined that the victim

suffered “bilateral fractures of the skull” and several areas of bleeding in the brain. The

victim was placed in the neonatal intensive care unit because his condition was “highly

unstable and critical” and there was a substantial risk of death. The swelling in the brain led

to “seizure activity[,]” and the victim suffered “protracted or substantial impairment of

cognitive functioning or mental faculties” while at the hospital. The victim was put on life

support on more than one occasion, and a feeding tube was inserted. On June 18, 2008, the

victim was transferred to another hospital for further treatment, where he stayed, according

to the victim’s mother, for an additional fifteen to twenty days.

The treating physician, Dr. Amirah Daher, opined that the victim’s injuries were “non-

accidental” or “[b]lunt trauma.” She further confirmed that the injuries were consistent with

an adult slamming the victim’s head into a concrete wall. According to Dr. Daher, it was

very important to receive a complete patient history at the time of admission in order to

provide proper treatment to the patient. She opined that, if the victim had been taken

immediately to the hospital following his injuries, the staff could have reduced the pain

suffered by the victim. Dr. Aher explained that the victim would likely suffer from lifelong

disability and would be prone to seizures and epilepsy. There was a “fairly high likelihood”

that the victim’s “cognition and IQ and learning ability” were impacted by the bleeding in

the brain and that his ability to reason could have been affected.

Dr. Marianne Neal, testifying as an expert in the field of pediatric radiology,

determined that the victim suffered severe brain injuries—nine on a scale of one to ten. She

described that the victim suffered bleeding of the brain and “brain cell death” from blunt

force trauma. She stated that, within a reasonable degree of medical certainty, the victim

would have suffered less extreme pain if brought to the hospital immediately after his

injuries. According to Dr. Neal, the victim’s injuries also would have been less severe if

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treated immediately—immediate treatment would have resulted in less impairment to the

victim’s bodily and mental faculties. Dr. Neal opined that the victim had a possibility of

mental delay and mental retardation due to his injuries and that the victim may suffer from

seizures for the rest of his life.

Although their testimonies differed to some degree, the doctors stated that the victim’s

injuries occurred from one to two hits to the head. Both the Defendant’s and the victim’s

mother’s parental rights had been terminated prior to trial, and the victim had been placed

in foster care. The victim’s foster care mother also testified, and she relayed the

developmental and physical difficulties the child suffered from following his injuries.

Based upon the foregoing, the jury found the Defendant guilty as charged. The trial

court sentenced the Defendant to consecutive terms of twenty-five years. This appeal

followed.

ANALYSIS

On appeal, the Defendant presents the following issues for our review: (1) whether

the trial court erred in denying his motion to suppress his statements to the police; (2)

whether he was entitled to disclosure of grand jury materials; (3) whether reenactment

photographs were properly admitted into evidence; (4) whether the trial court should have

permitted individual voir dire of the potential jurors; (5) whether the trial court properly

limited his cross-examination of the victim’s mother and Det. Adkins; (6) whether the trial

court erred by not allowing the Defendant’s investigator to testify as a lay witness about the

Defendant’s susceptibility to suggestion and the investigation techniques used; (7) whether

the trial court should have permitted him to present evidence from his mental evaluation

about his reading comprehension difficulties; and (8) whether the trial court made several

erroneous sentencing determinations, including the denial of his right to allocution, the length

of the sentences imposed, and the imposition of consecutive sentencing.1 We address each

in turn.

I. Suppression of Statements

First, the Defendant makes several challenges to the admission of his statements.

Specifically, he argues that the statements were custodial in nature and that, at no time, was

he advised of his Miranda rights. He also argues that the statements were not admissible

under rules of relevance. Finally, he contends that the trial court erred in denying his motion

to reconsider his suppression motion based on newly discovered evidence. The State

responds that the trial court did not err in admitting the Defendant’s statements to the police.

1

For the purpose of clarity, we have reordered and renumbered the issues as presented by the Defendant in

his brief.

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A. Voluntariness and Miranda Waiver

The Defendant claims that his statements were involuntary because he did not

knowingly and intelligently waive his rights under Miranda v. Arizona, 384 U.S. 436 (1966).

The Defendant concludes, “the 3rd and 4th statements made by the Defendant were made

while he was effectively in custody and because he made those statements without the benefit

of Miranda warnings those statements and confessions should have been suppressed.” He

notes several factors as to why his statements were not voluntarily given: (1) that he was

instructed to come to the criminal justice center for an interview and was placed in a small

room with his back to the door; (2) that it takes only a few minutes to read Miranda rights

to a person; (3) that, after the third statement, where he made incriminating admissions, he

still was not given Miranda warnings; and (4) that all four statements were not written by the

Defendant, and Det. Adkins stated that she knew the Defendant possibly had reading

difficulties, but still, she did not ask about his educational background or ability to

understand what he was signing.

At the motion to suppress hearing, the State first called Det. Ide to testify about the

Defendant’s first statement at the hospital. He stated that on June 9, 2008, he received a call

about possible child abuse and went to the hospital where he interviewed the Defendant and

the victim’s mother. Det. Ide identified himself as a law enforcement officer, and the

Defendant agreed to speak with him. According to Det. Ide, the Defendant voluntarily

accompanied him to a nearby hospital room, where he was alone with the Defendant for the

interview. Det. Ide stated that the Defendant was not under arrest at this time, that he never

brandished a weapon, and that he did not threaten the Defendant at any time.

Det. Ide wrote out a statement based upon his conversation with the Defendant. Det.

Ide explained, “[I]t[’]s easier just to write what they tell me and then at the end of that

statement I will have them read the statement and then sign the statement verifying that that’s

what they have conveyed to me.” Once the statement was complete, he had the Defendant

read it and initial each page “from the beginning where [he] started reading to the end of that

page where [he] stop[ped] reading[.]” Det. Ide admitted that he did not ask the Defendant

if he could read or write; however, the Defendant indicated that he had read the statement and

also signed it on the last page of the document. According to Det. Ide, the Defendant

acknowledged that this was his statement and did not request to change anything therein.

Det. Ide also testified that the Defndant did not appear to be under the influence of any

substances at the time he gave the statement; Det. Ide opined that the statement was

voluntary.

According to Det. Ide, the interview lasted about forty-one minutes; however, the

exhibit showed it took only about twenty-one minutes. Det. Ide stated that he did not issue

Miranda warnings because this was an “initial interview” and the Defendant was not a

suspect at that time. When the interview was finished, the Defendant left.

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Det. Adkins testified that she was called to follow-up and complete the investigation

after Det. Ide’s initial interview. As her first order of business, she spoke with the treating

physician “to try to get some ideas as to what the nature of the injuries were and what they

believed may have caused the injuries.” She was informed that “[t]he child had two skull

fractures, some bruising to the face and brain bleed[ing] believed to be from blunt force.”

The doctor told her that this “was non-accidental trauma[.]”

On June 10, at Det. Adkins’ request, the Defendant and the victim’s mother came to

the Kingsport Justice Center to be interviewed. She did not arrange their travel; they arrived

on their own. Det. Adkins first spoke with the victim’s mother, followed by an interview

with the Defendant. Det. Adkins was alone with the Defendant for the interview. According

to Det. Adkins, the Defendant indicated a willingness to cooperate, and she did not read him

his Miranda rights at that time. She told the Defendant that she wanted to discuss the

following: “As far as the nature of the injuries and how they occurred and of course at that

point in time my primary interest was trying to determine some timelines as to who had been

with the child.” She described the Defendant as “very cooperative” and stated that she never

used force or coercion to get him to speak with her. She also opined that the Defendant did

not appear intoxicated or under the influence of drugs or alcohol.

Det. Adkins prepared a written statement from this interview; she wrote as the

Defendant talked. She said that this interview lasted “a couple of hours, maybe.” Once

finished, she read the statement to the Defendant, and he agreed that it was accurate. He did

not make any changes and “voluntarily” signed the document. The Defendant was not under

arrest, and he left after giving the statement.

Det. Adkins took a second statement from the Defendant the following day also at the

Kingsport Justice Center under similar circumstances. She stated that she followed “the

same process” she “outlined on the day before, the same method of taking his statement[.]”

She confirmed that she again read the statement to the Defendant, and he signed it. He

initialed his changes to the document.2 He again left.

Det. Adkins testified that she took a final statement from the Defendant on June 12

again employing a similar method. She spoke with him personally that day, locating him at

a local blood bank, and asked him to come to the justice center. He told her that he had an

errand to run and would be there after that was completed. He showed up later that day and

gave a statement. In this statement, the Defendant also made changes to the statement as

written by Det. Adkins and initialed those changes. During this interview, Det. Adkins took

2

She testified at the suppression hearing that the Defendant did not make any changes to this second

statement. However, it is clear from our review of the document and Det. Adkins’ trial testimony that the

Defendant did in fact make changes to this statement.

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photographs of the Defendant demonstrating how he had inflicted the victim’s injuries. He

again left following this final interview; he was not arrested until a later date.

He was never issued any Miranda rights during any of these interviews. Det. Adkins

explained that she continued to interview the Defendant as new information developed.

On cross-examination, Det. Adkins described the interview room as a five-by-seven-

foot room. It did not have windows; the door was not locked during the interviews. The

Defendant sat with his back to the door, and she sat across the table from him.

When asked if she ever confronted the Defendant with her “suspicion of his guilt”

during the third interview, she replied, “At that time I did not because I had not had the

opportunity to go back with the doctors with what he had told me had occurred.” She

explained that “the first time he said he had done something his statements were not

corroborated by the evidence.” After the third statement, she “had a little bit more

information as to kind of what [she] was looking for but [she] had not been able to go back

and talk with the doctors again to see what he had told me . . . .” Stated another way, before

arresting the Defendant, she wanted to corroborate his statement with the medical evidence.

She testified that she conducted multiple interviews with various individuals following the

victim’s admission to the hospital.

Det. Adkins was asked about her knowledge of the Defendant’s reading abilities. She

stated that she “had heard . . . somewhere” that he could not read, but she was unsure if that

was before or after her interviews with him. She did not believe she asked the Defendant

about his educational background or whether he could read. She explained that she reads her

statements to the suspects to “err on the side of caution” in case someone is uneducated or

unable to read. She stated that she “had no reason” to read the Defendant his Miranda

warnings because he was not in custody.

The Defendant testified at the suppression hearing. He gave a different account of the

events than the detectives, claiming the following: that he asked both detectives for an

attorney; that Det. Adkins followed him to the justice center on all three occasions, and on

the final occasion, initially activated her blue lights; that he informed Det. Adkins that he did

not want to speak with her; that she sat between him and the door in the interview room; and

that she made accusations about his guilt during the interviews.

The Defendant then detailed his experience with the criminal justice system, including

prior unrelated interviews with the police. He confirmed that he did graduate from high

school, receiving a “specialized” diploma. When asked if had “filled out questionnaires and

indigency forms before” in court, he claimed that people had helped him fill out these

documents because he “ain’t that good with the reading or writing.” He then stated that he

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could read and write “some, . . . not a lot[.]” The Defendant confirmed that his initials

appeared on one of the statements, but he claimed he did not ask Det. Adkins to change

anything on the statement.

Det. Adkins was called in rebuttal. She denied meeting the Defendant in the hospital

parking lot as he claimed and denied that she ever followed him to the justice center. She

also testified that, as a detective, she did not drive a patrol car; she “was assigned a plain

Chevrolet green, no light.”

Turning to the issue presented by the Defendant, the Fifth Amendment to the United

States Constitution, applicable to the states through the Fourteenth Amendment, states that

“[n]o person . . . shall be compelled in any criminal case to be a witness against himself.”

Similarly, the Tennessee Constitution states “that in all criminal prosecutions, the accused

. . . shall not be compelled to give evidence against himself.” Tenn. Const. art. I, § 9. Under

the Fifth Amendment, a confession is involuntary when it is the result of coercive action on

the part of the State. Colorado v. Connelly, 479 U.S. 157, 163-64 (1986).

A police officer is required to warn a suspect of his Miranda rights prior to a custodial

interrogation. See Miranda, 384 U.S. at 478-79; State v. Riels, 216 S.W.3d 737, 754 (Tenn.

2007). The Tennessee Supreme Court has stated, “The warnings and waiver mandated by

Miranda ‘are, in the absence of a fully effective equivalent, prerequisites to the admissibility

of any statement made by a defendant’ during custodial interrogation, whether inculpatory

or exculpatory.” State v. Northern, 262 S.W.3d 741, 749 (Tenn. 2008) (quoting Miranda,

384 U.S. at 476). Any waiver of Miranda rights must be “made voluntarily, knowingly and

intelligently.” Miranda, 384 U.S. at 444. A court must look to the totality of the

circumstances in determining whether a defendant has validly waived his Miranda rights.

State v. Middlebrooks, 840 S.W.2d 317, 326 (Tenn. 1992) (citing Oregon v. Elstad, 470 U.S.

298, 318 (1985); State v. Kelly, 603 S.W.2d 726, 728-29 (Tenn. 1980)), superseded by

statute on other grounds as stated in State v. Reid, 91 S.W.3d 247, 306 (Tenn. 2002).

The standard of review applicable to suppression issues involves a mixed question of

law and fact. State v. Garcia, 123 S.W.3d 335, 342 (Tenn. 2003). Both proof presented at

the suppression hearing and proof presented at trial may be considered by an appellate court

in deciding the propriety of the trial court’s ruling on a motion to suppress. State v. Henning,

975 S.W.2d 290, 299 (Tenn. 1998); State v. Perry, 13 S.W.3d 724, 737 (Tenn. Crim. App.

1999). “[A] trial court’s findings of fact in a suppression hearing will be upheld unless the

evidence preponderates otherwise. State v. Cox, 171 S.W.3d 174, 178 (Tenn. 2005) (quoting

State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). The Tennessee Supreme Court explained

this standard in State v. Odom:

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Questions of credibility of the witnesses, the weight and value of the

evidence, and resolution of conflicts in the evidence are matters entrusted to

the trial judge as the trier of fact. The party prevailing in the trial court is

entitled to the strongest legitimate view of the evidence adduced at the

suppression hearing as well as all reasonable and legitimate inferences that

may be drawn from that evidence. So long as the greater weight of the

evidence supports the trial court’s findings, those findings shall be upheld.

Odom, 928 S.W.2d at 23. The Tennessee Supreme Court has concluded that “a trial court’s

determination at a suppression hearing is presumptively correct on appeal.” State v. Saylor,

117 S.W.3d 239, 244 (Tenn. 2003) (citing State v. Harbison, 704 S.W.2d 314, 318 (Tenn.

1986)).

Initially, we quickly dispose of the Defendant’s argument that these statements are

involuntary because it would have been easy for Det. Adkins to give the Defendant Miranda

warnings. Regardless of whether “it does not take long nor is it hard to give the Miranda

warning to a suspect” as the Defendant asserts, such is not the test. The Miranda decision,

by its own terms, only “applies to the questioning of an individual who has been taken into

custody or otherwise deprived of his freedom by the authorities in any significant way.”

State v. Dailey, 273 S.W.3d 94, 102 (Tenn. 2009) (quoting Miranda, 384 U.S. at 478)

(internal quotation marks omitted).

The test for determining whether a person is in custody to a degree that he would be

entitled to Miranda warnings is “whether, under the totality of the circumstances, a

reasonable person in the suspect’s position would consider himself or herself deprived of

freedom of movement to a degree associated with a formal arrest.” State v. Anderson, 937

S.W.2d 851, 855 (Tenn. 1996). The determination of whether a suspect is in custody for

Miranda purposes is a “very fact specific inquiry.” Id. To that end, our supreme court has

supplied the following, nonexclusive, list of factors “relevant to that objective assessment”:

the time and location of the interrogation; the duration and character of the

questioning; the officer’s tone of voice and general demeanor; the suspect’s

method of transportation to the place of questioning; the number of police

officers present; any limitation on movement or other form of restraint

imposed on the suspect during the interrogation; any interactions between the

officer and the suspect, including the words spoken by the officer to the

suspect, and the suspect’s verbal or nonverbal responses; the extent to which

the suspect is confronted with the law enforcement officer’ suspicions of guilt

or evidence of guilt; and finally, the extent to which the suspect is made aware

that he or she is free to refrain from answering questions or to end the

interview at will.

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Id.

At the conclusion of the motion to suppress hearing, the trial court determined that the

Defendant was not in custody for purposes of Miranda. In so concluding, the trial court

made extensive findings of fact and conclusions of law. The trial court first noted that the

Defendant was familiar with the criminal justice system, having prior felony convictions and

serving time in jail. The trial court then specifically credited the testimony of Dets. Ide and

Adkins “with regard to the fact that they were conducting an investigation about the alleged

injuries of this child.” The court continued:

He was the father. They talked with other individuals as well and that in each

occasion there was nothing about the way that they spoke with him, either at

the hospital or the three different times at the Kingsport Police Department that

would cause a reasonable person in a suspect position to believe that they were

---- had this freedom of moving denied them just like a formal arrest. In each

of those cases the [D]efendant went to the location of the police department on

his own locomotion so to speak. I mean he either went in a vehicle or

somebody else’s vehicle. Every time he went from outside of the building ----

inside the building into the interview room with the officer there was nothing

to indicate that he was ever in handcuffs or that he was ever ---- that the officer

ever held on to him to go in, that he was ever searched or patted, any of those

kinds of things that would seem to be associated with a formal arrest and every

time after the interview took place and after the statement was read to him at

least by Detective Adkins in all three of her cases and after he signed it he left.

I mean he wasn’t fingerprinted in any of those kinds of cases and there was

obviously apparently in one case they took his picture. Apparently he was

showing ---- they took his picture but in every time he left. I mean there was

nothing to indicate the kinds of things that I think a reasonable person would

associate with being arrested and therefore being in custody. . . . There’s not

anything that I’ve heard to cause me to feel like that he was forced or coerced

in any way into making these statements.

On appeal, the Defendant seems to only be challenging the admission of his second

and third statements to Det. Adkins. Regardless of which statements he is actually

challenging on appeal, we conclude that the trial court properly denied his motion to suppress

his statements because he was not in custody for purposes of Miranda. Det. Ide conducted

an “initial interview” of the Defendant at the hospital following a report of possible child

abuse. Det. Ide opined that the Defendant was not coerced and that the statement was

voluntary. The Defendant left following that interview. Det. Adkins interviewed the

Defendant in an interview room at the Kingsport Justice Center on all three occasions; no

other officer was present during the meetings. While the door was shut, it was not locked.

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The Defendant sat with his back to the door, and Det. Adkins sat across the table from him.

The Defendant left after all three interviews. As noted by the trial court, the Defendant came

to those meetings on his own volition, and the Defendant evinced a willingness to cooperate.

According to the detectives, the Defendant was never confronted with suspicions of guilt or

evidence of guilt during those interviews; Det. Adkins stated that she was trying to establish

a timeline for the victim’s injuries and wanted to verify information provided by the doctors

during her interviews with the Defendant. After his final interview, she wanted to verify his

version of the events with the medical evidence before arresting the Defendant. The

Defendant signed each statement and initialed any changes. The trial court considered the

relevant factors in making its determination that the Defendant was not in custody at the time

he made the statements, and the evidence does not preponderate against those findings.

2. Relevancy

The Defendant also argues that his statements were not admissible relying on rules

of relevance. Specifically, he contends, “The four (4) statements contradict one another and

do not tend to correlate or corroborate one another,” and therefore, “[t]he probative value of

such contradictory evidence was unquestionably outweighed by [the] danger of unfair

prejudice, confusion of the issues, or misleading of the jury.” In a separate section of his

brief, he makes a similar argument, stating that the trial court “ruled that the existence of

multiple statements only enhances the probative value.” He continues, “[E]ach and every

statement is individual in its nature and facts and circumstances of each should be examined

separately.” He concludes that the trial court’s decision was incorrect and that the statements

should have been suppressed under Tennessee Rule of Evidence 403. The State responds

that the trial court properly determined that each of the Defendant’s statements put the others

into context.

At the pre-trial hearing, defense counsel argued that admission of all four statements

would serve only to confuse the jury and invoke an emotional response. The prosecutor

responded that admission of the four statements showed “a progression of admissions and

it[’]s what the [D]efendant said and it goes to the [D]efendant’s intent and his purpose and

to the circumstances which these injuries occurred so we say it’s material and relevant and

that outweighs any emotional response by a jury[.]” He continued that the jury would be

instructed to base their decision on law rather than with any sympathy. The prosecutor also

noted that he had the burden to prove the Defendant’s guilt beyond a reasonable doubt.

Defense counsel replied that the probative value of the contradictory evidence was not

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.

In rendering its decision, the trial court first noted that it had already determined that

the Defendant’s statements were voluntary at the motion to suppress hearing. Regarding the

Defendant’s relevance objection, the trial court ruled, “I think the fact that there are multiple

statements as opposed to one statement frankly puts each of those statements in context of

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the other and I think that it’s important that the jury hear that context . . . . I do find that it

has probative value and I do not find that that probative value is substantially . . . outweighed

by the danger of unfair prejudice.” The trial court also noted that the admission of multiple

statements “can work both ways[,]” i.e., benefitting either party.

Tennessee Rule of Evidence 401 provides that “‘[r]elevant evidence’ means evidence

having any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the

evidence.” Generally, relevant evidence is admissible, while irrelevant evidence is

inadmissible. Tenn. R. Evid. 402. However, relevant evidence may be excluded if its

probative value is “substantially outweighed by the danger of unfair prejudice, confusion of

the issues, or misleading the jury.” Tenn. R. Evid. 403. The term “unfair prejudice” has

been defined as “[a]n undue tendency to suggest decision on an improper basis, commonly,

though not necessarily, an emotional one.” State v. Banks, 564 S.W.2d 947, 951 (Tenn.

1978). “The admissibility of evidence under Rule 403 of the Tennessee Rules of Evidence

is a matter within the trial court’s discretion and will not be reversed on appeal absent an

abuse of that discretion.” State v. Biggs, 218 S.W.3d 643, 667 (Tenn. Crim. App. 2006)

(citing State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997)).

As the trial court noted, it had previously determined that all four statements were

voluntary, considering separately the admissibility of each of the four statements on

constitutional grounds. As for any relevancy objection to admission of all four statements,

we agree with the trial court that each of these statements helped place the others into

context. The Defendant’s multiple admissions further established his culpability for these

crimes; the Defendant continued to change his story as the evidence developed. We cannot

say that the trial court abused its discretion in determining that the probative value of this

evidence substantially outweighed the danger of unfair prejudice, confusion of the issues, or

misleading the jury.

3. Motion to Reconsider

The Defendant submits that the trial court erred in denying his motion to reconsider

its prior ruling on his motion to suppress his statements. On appeal, he provides, “The

essence of the Defendant’s argument is that pursuant to newly discovered evidence the

statements and confessions of the Defendant should have been suppressed.” Specifically, a

mental evaluation was performed on the Defendant to determine his competency to stand

trial. Based upon the evaluation, the doctors concluded that the Defendant was competent

but noted that the Defendant suffered from “reading comprehension difficulties.” This

finding was noted in a letter to the court.

At the pre-trial hearing, defense counsel requested the trial court to reconsider its

previous ruling “based on the new evidence as to his psychological evaluation[.]” Defense

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counsel continued, this coupled with the fact that the Defendant received a “special ed

diploma[,]” “he might not have known what he was signing, understood what he was signing

or even understood if it was read to him.” The State argued that the Defendant’s reading

comprehension was “immaterial” because Det. Adkins read the Defendant’s statements to

him. The trial court then noted that the Defendant had also sent the court “a lot of

correspondence, too.” Defense counsel replied that the Defendant was being helped by his

fellow inmates in drafting those materials. The trial court noted that the Defendant did have

some education and that the letter only referenced “potential” reading difficulties. The court

denied his request to reconsider its previous ruling on suppression of the Defendant’s

statements, finding that, even if the Defendant did have potential reading comprehension

difficulties, that fact by itself did not rise “to the level that the statements should be

suppressed.”

The Defendant’s communication skills appeared adequate; the extent of his “reading

comprehension difficulties” was never explained. The Defendant never indicated to either

of the officers that he could not read. Also, the Defendant’s level of reading comprehension

was addressed at the motion to suppress hearing. Det. Ide said that he had no knowledge that

the Defendant could not read or write. When Det. Ide handed the Defendant his statement

to read, the Defendant indicated that he had read the document before he signed it. Det. Ide

also testified that he asked the Defendant “to sign it from the point where he stopped reading

at which point he signed, initialed the first page and the second page.” Det. Adkins was

asked if she knew whether the Defendant could read, and she said that she “had heard that

at somewhere in time” but was “not really sure if it was during those interviews or later on

in time.” She stated that in order to err on the side of caution, it was her customary practice

to read her statements to the defendants before they signed them.

The issuance of this letter following the mental evaluation did little to improve the

Defendant’s argument for suppression of his statements. We agree with the trial court that,

even if the Defendant did in fact have reading comprehension difficulties, such fact by itself

does not render all four of his statements inadmissible. See, e.g., State v. Sheridan

Armstrong, No. W2003-02100-CCA-R3CD, 2004 WL 2378253, at *5 (Tenn. Crim. App.

Oct. 20, 2004) (holding that, although mental health experts concluded that the defendant

was mildly mentally retarded, his confession was still voluntarily made). The Defendant’s

reading level is just one factor to consider when making a determination if his statements

were voluntary; people who cannot read at all can still make voluntary statements to law

enforcement. Moreover, Det. Adkins testified that she read all of the Defendant’s statements

to him before he signed them. We cannot say that the trial court erred in denying the

Defendant’s request to reconsider his suppression motion.

II. Grand Jury Materials

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The Defendant argues that the trial court erred in denying his motion for disclosure

of grand jury materials pursuant to Tennessee Rule of Criminal Procedure 6(k). Prior to trial,

the Defendant filed a motion for disclosure of “information and materials relating to the

conduct of the grand jury in this cause,” arguing that discovery of these materials was

necessary in order for him “to adequately prepare his defense, including possible motions to

dismiss the indictment.” In the motion, the Defendant requested the following materials: (1)

the concurrence slips for the grand jury and all logs, minutes, voting records, or memoranda

with respect to the presentment returned against the Defendant; (2) the name, address,

occupation, and date of appearance for all witnesses examined and stenographers or operators

of a recording device present before the grand jury; (3) all logs, minutes, memoranda, or

transcripts showing any advice or legal instruction given to the grand jury by the State or the

court concerning the offenses charged, and all comments by the State or any grand juror on

the evidence presented and the testimony of any witness, the guilt of the Defendant, the

decision of any person to plead guilty to criminal charges, or in response to any questions

posed by a grand juror; (4) all information, including documents, dealing with attempts by

the State to reach a plea bargain with either of the prospective defendants; and (5) all draft

indictments prepared by the State.

At the pre-trial motion hearing, defense counsel repeated his request for disclosure of

grand jury materials as important for preparation of the defense. In response to the

Defendant’s request, the trial court referred to the presentment, noting that Det. Adkins was

the only witness to testify before the grand jury. Defense counsel stated, “Of course if she

has testified somehow differently, . . . we could use that for impeachment[.]” The trial court

stated that, because grand jury proceedings were not recorded, there was no transcript or

minutes to obtain. Defense counsel replied that was the reason he was requesting “materials

they have . . . prepared, . . . that might not be attorney materials but materials that [were]

presented to the grand jury in getting this indictment.” The trial court then noted that “any

evidence” presented to the grand jury, such as pictures or diagrams, would likewise have

been included in regular discovery materials.

The prosecutor confirmed that Det. Adkins was the only witness before the grand jury

and that there was no recording of that proceeding. The prosecutor stated that he was present

when Det. Adkins testified and that “she basically did as normally in a grand jury proceeding,

she summarized and testified under oath as to the evidence in possession[.]” According to

the prosecutor, “most of” the evidence presented at the hearing, “if not all, [was] provided

pursuant to discovery.” Defense counsel responded, “And we, of course, are also asking for

draft indictments that had presented in preparing (inaudible).” After further explanation by

the trial court regarding the operation of grand jury proceedings, defense counsel inquired,

“[I]f the [c]ourt would rule that if there is any material that becomes available, as the

prosecutor has said, the Generals would make it available to us. That’s all we would ask for.

-15-

And while I understand that the General just said there was nothing but . . . maybe there

was.”

The trial court denied the Defendant’s motion, ruling that, while it appreciated the

“seriousness of this charge” against the Defendant, “that in and of itself” did not “change[]

the rules of criminal procedure in the grand jury[.]” The court then informed defense counsel

that the State would likely provide him with an opportunity to review witnesses’ statements

prior to trial and, moreover, the State had a “responsibility to present any exculpatory

evidence that they either know of now or may know of at a later date.” For those reasons,

the court refused to “issue a particular order . . . other than just [the State] complying with

the responsibilities that they already have that exist under law.”

On appeal, the Defendant relies on the exception to the rule of secrecy of grand jury

testimony found in Tennessee Rule of Criminal Procedure 6(k) to argue that the trial court

should have ordered the State to disclose the “materials” of the grand jury. Specifically, the

Defendant requests the “ministerial records of the grand jury described in his motion” and

any “draft indictments prepared by the prosecution.” The Defendant infers that the trial court

should have inquired of the State whether any “materials” were presented to the grand jury

before denying the Defendant’s motion.

Tennessee grand juries do not normally record the testimony of witnesses. See Tenn.

R. Crim. P. 16, Advisory Comm’n Cmts.; see also Tenn. Code Ann. § 40-12-208 (requiring

certain special investigative grand juries to record their proceedings). There is no

requirement to do so. See Parton v. State, 455 S.W.2d 645, 647 (1970). However, the grand

jury itself, but not the district attorney, may record the testimony of witnesses so long as the

requirement of secrecy is maintained. See Tiller v. State, 600 S.W.2d 709, 712 (Tenn. 1980)

(indicating that it is proper for the grand jury “to record or have recorded the testimony of

witnesses appearing before that body”).

A defendant is entitled to discovery of his testimony (and that of co-defendants being

tried jointly) before the grand jury. Tenn. R. Crim. P. 16(a)(1)(A), (B), (C), and (a)(3).

Other than discovery of a defendant’s own testimony and that of co-defendants, there is no

general right to discovery of grand jury testimony. Under limited circumstances, a trial judge

has authority to permit discovery of grand jury testimony. Rule 6(k)(2) provides for the

following exception to the rule of secrecy: (1) upon an allegation of perjury; or (2) upon an

investigation by the court of inconsistency of testimony, the grand jurors are required to

disclose the testimony of witnesses. The latter circumstances involves the requirement of a

clear showing that the removal of the oath of secrecy is necessary to the “attainment of truth

and justice.” West v. State, 466 S.W.2d 524, 525 (1971) (“There is no provision in our law

for the blanket discovery of Grand Jury testimony.”). Consequently, the party seeking

disclosure must have some specific reason suggesting inconsistent testimony.

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The Defendant has failed to show any error committed by the trial court. As noted

by the trial court, the only witness to testify before the grand jury was Det. Adkins. The

Defendant merely asked for “ministerial records” of the grand jury and any “draft

indictments”; there were no actual allegations of inconsistencies in the grand jury testimony.

Rule 6(k) does not require that all grand jury “materials” be turned over to the defense; the

rule requires only the disclosure of witness’s testimony for the purpose of ascertaining the

consistency of the witness’s testimony or to disclose the grand jury testimony of any witness

charged with perjury. See State v. Reid, 164 S.W.3d 286, 331 (Tenn. 2005). Moreover, the

proceedings in this case were not recorded, so the State cannot produce documents it does

not possess. Id. This issue is without merit.

III. Reenactment Photographs

The Defendant, relying on rules of relevance, contends that the trial court erred by

allowing the State to introduce into evidence two reenactment photographs demonstrating

how he inflicted the injuries on the victim. The State argues that the photographs were

relevant to show how the victim suffered his injuries, showing how the Defendant

intentionally picked up the victim from the carseat and swung the victim’s head into a wall.

The State further counters that the probative value of the photographs substantially

outweighed any risk of unfair prejudice. We conclude that the trial court properly admitted

the photographs into evidence.

During the Defendant’s fourth statement, he was asked to demonstrate for Det. Adkins

how he inflicted the victim’s injuries using a carseat and an Elmo doll. The Defendant’s

actions using a demo carseat and Elmo doll were photographed, and the State sought to

introduce these photographs at trial. The Defendant objected, arguing first that the

photographs were irrelevant because they were not “pictures of the true event,” and

alternatively, that they were overly prejudicial. The State countered that the photographs

were “highly relevant” because it was the Defendant himself demonstrating what he did that

led to these injuries “which [was] essential to this case, to the cause and the consequences

of the injuries and how the injuries occurred and who did it.” The State also noted that the

pictures clearly showed an intentional act, rather than an accidental injury. The trial court

ruled the photographs were relevant and admissible as a “demonstration of the [D]efendant

as to what he did with the child” and concluded that the probative value was not outweighed

by the danger of unfair prejudice. The trial court further explained that, because the

Defendant was using a red and green doll, it was clear to the jury that the object was “a doll

not a child or a doll made to look exactly like a child[.]” Det. Adkins testified about the

reenactment at trial, and the photographs were admitted into evidence over the Defendant’s

objection.

The Defendant contends that the trial court erred by admitting the photographs into

evidence because they do not depict a true and accurate portrayal of how the victim suffered

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his injuries. Tennessee courts follow a policy of liberality in the admission of photographs

in both civil and criminal cases. Banks, 564 S.W.2d at 949 (citations omitted). Accordingly,

“the admissibility of photographs lies with the discretion of the trial court” whose ruling

“will not be overturned on appeal except upon a clear showing of an abuse of discretion.”

State v. Faulkner, 154 S.W.3d 48, 67 (Tenn. 2005) (quoting Banks, 564 S.W.2d at 949).

In order to be admitted as evidence, a photograph must be relevant to an issue at trial.

Tenn. R. Evid. 402; State v. Braden, 867 S.W.2d 750, 758 (Tenn. Crim. App. 1993). Again,

evidence is relevant if it has “any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it would

be without the evidence.” Tenn. R. Evid. 401. A relevant photograph is generally

admissible, Tennessee Rule of Evidence 402, unless its “probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury,

or by considerations of undue delay, waste of time, or needless presentation of cumulative

evidence.” Tenn. R. Evid. 403. In deciding whether to admit photographs, the trial court

must consider the questions of fact that the jury will have to consider in determining the

accused’s guilt, as well as other evidence that has been introduced during the course of the

trial. State v. Williamson, 919 S.W.2d 69, 78 (Tenn. Crim. App. 1995).

In State v. Underwood, 669 S.W.2d 700, 704 (Tenn. Crim. App. 1984), this court

stated that an in-court reenactment may be admissible, especially when the defendant has the

opportunity, as the Defendant did in this case, to cross-examine the witnesses who conducted

the demonstration. Furthermore,

Evidence may be given of experiments, demonstrations, and tests made out of

court and not in the presence of the jury upon the same principles which permit

them to be conducted in the jury’s presence. It is a matter peculiarly within the

discretion of the court to decide the admissibility of such evidence in the light

of all the surrounding facts and circumstances. The test for exclusion is

whether the [demonstration] would confuse rather than aid the jury.

State v. Robertson, 130 S.W.3d 842, 855 (Tenn. Crim. App. 2003).

Det. Adkins testified that she asked the Defendant to show her “exactly how he picked

[the victim] up and exactly how he hit his head into the wall.” The Defendant was aware he

was being photographed as he demonstrated his actions using an Elmo doll, and he went so

far as to tell Det. Adkins exactly how far to place the carseat away from the wall for the

demonstration. Det. Adkins opined to the jury that the pictures accurately depicted what the

Defendant said he did to the victim. In our view, the reenactment and resulting photographs

were relevant to show the Defendant’s intent in banging the victim’s head against a wall and

that the injuries were non-accidental. As noted by the trial court, a toy rather than a lifelike

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baby doll was used as a demonstrative aid in the reenactment, thereby minimizing the danger

of unfair prejudice to the Defendant. Moreover, the reenactment and photographs aided the

jury. Therefore, the trial court did not abuse its discretion by admitting the two photographs

into evidence. See, e.g., State v. Travis Kinte Echols, No. E2009-01697-CCA-R3-CD, 2011

WL 2418737, at *21-22 (Tenn. Crim. App. June 14, 2011), perm. app. denied, (Tenn. Oct.

21, 2011) (reenactment photographs showing the victim’s and defendant’s positions at time

of shooting were properly admitted).

IV. Voir Dire

Next, the Defendant contends that the trial court erred by denying his motion for

individual voir dire of prospective jurors. Specifically, he asserts that, “[w]hile here there

were no serious or religious undertones, the nature of the crime was so egregious . . . ,

wherein the victim was only 9 days old at the time of the injury, that the individual or

partially individual voir dire was more than warranted.” In response, the State first contends

that the Defendant has waived the issue for failing to compile a complete record on appeal,

and alternatively, that the trial court acted within its discretion in conducting voir dire.

The Defendant filed a pre-trial motion requesting individual voir dire based solely on

the nature of the crime. At the motion hearing which followed, the trial court noted its

customary practice was to ask members of the venire if they knew of or recognized the

Defendant or had read or heard anything about the particular case. The trial court continued

that, if a potential juror responded in the affirmative, then the trial court would talk with that

person “individually about what they might have read or heard[.]” Defense counsel then

requested “partial individual voir dire should the need arise[.]” The trial court stated that it

was unaware of any pre-trial publicity in this case, to which defense counsel stated that he

was “trying to do it out of an abundance of caution” because there was “a child involved.”

The trial court stated that it was not inclined to grant individual voir dire solely on the

circumstances of the crime “without some additional showing” from the venire of knowledge

of the Defendant or the crime. The trial court concluded, “Okay, so I will agree to partial on

individual voir dire.” Defense counsel replied, “That’s all I ask.” Thereafter, the Defendant

has failed to include a transcript of the voir dire in the appellate record; therefore, we do not

know if any prospective jurors knew the Defendant or had read, seen, or heard anything

about the case, necessitating the need for individual voir dire in accordance with the trial

court’s order.

“The ultimate goal of voir dire is to [ensure] that jurors are competent, unbiased, and

impartial, and the decision of how to conduct voir dire of prospective jurors rests within the

sound discretion of the trial court.” State v. Howell, 868 S.W.2d 238, 247 (Tenn. 1993).

“The prevailing practice is to examine jurors collectively.” State v. Austin, 87 S.W.3d 447,

471 (Tenn. 2002); State v. Oody, 823 S.W.2d 554, 563 (Tenn. Crim. App. 1991); State v.

Hopper, 695 S.W.2d 530, 539 (Tenn. Crim. App. 1985). However, “[i]ndividual voir dire

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is mandated only when there is a ‘significant possibility’ that a juror has been exposed to

potentially prejudicial material.” Austin, 87 S.W.3d at 471-72 (quoting Howell, 868 S.W.2d

at 247).

At the pre-trial hearing, the trial court ruled that defense counsel would have to

address questions to the entire jury pool regarding their knowledge of the Defendant and the

case. Also, the trial court was not aware of any pre-trial publicity in the case. The trial court

stated that defense counsel would be permitted to conduct individual voir dire of any jurors

who expressed knowledge of the Defendant or the case. The Defendant has not shown that

the trial court abused its discretion in requiring him to address questions to the entire jury

before permitting individual voir dire of jurors who expressed knowledge about the

Defendant or the case. See, e.g., State v. Gary Lynn Harvey, No. E2008-01081-CCA-R3-

CD, 2010 WL 5550655, at *39 (Tenn. Crim. App. Dec. 30, 2010) (trial court’s ruling

permitting individual voir dire only of jurors who expressed knowledge and opinions of

lawsuits involving the Sheriff’s Department was proper). Additionally, the Defendant has

not included a transcript of the voir dire in the appellate record, thus offering no proof that

he suffered any prejudice as a result of the trial court’s ruling. Moreover, at the motion for

new trial hearing, the trial court could not recall any specific instance where defense counsel

requested individual voir dire. The Defendant is not entitled to relief on this issue.

V. Limits on Cross-Examination

The Defendant contends that the trial court improperly precluded him from fully

cross-examining two witnesses. He contends that he should have been allowed to

cross-examine the victim’s mother for bias based on Department of Children Services’

(“DCS”) parental rights termination proceedings. He also asserts that he should have been

allowed to ask Det. Adkins (1) if she believed that the Defendant was covering for someone

during his statements and (2) about two reprimands in her personnel file. The State contends

that the trial court did not unduly restrict the cross-examination of these witnesses.3 We

address the Defendant’s argument to each witness in turn.

A. Victim’s Mother

Prior to cross-examination of the victim’s mother, the court conducted a jury-out

hearing because the Defendant had expressed a desire to cross-examine the victim’s mother

3

In making his various arguments, the Defendant relies on documents included in a “Joint Appendix.” The

documents included therein are a transcript of the dependency and neglect hearing in juvenile court and two

documents from Det. Adkins’ personnel file at the Kingsport Police Department. However, the Defendant

never sought to have the documents introduced at trial; the trial court did not rely on the documents in making

its decision; the documents are not certified; and the Defendant has not attempted to properly supplement the

record with these documents. Accordingly, we agree with the State that these documents are not properly

before this court.

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about DCS dependency and neglect proceedings and the subsequent termination of her

parental rights. The prosecutor relayed the following facts from those DCS proceedings.

DCS had filed an action against both the Defendant and the victim’s mother for severe abuse

and neglect. At the hearing in juvenile court, the victim’s mother admitted to severe child

neglect, and the abuse charge against her was dropped. The court found that the Defendant

had committed both severe abuse and neglect.

Then, returning to the case herein, the prosecutor objected to any questioning about

the dismissal of the child abuse allegation against the victim’s mother because the juvenile

hearing involved “a completely different standard of proof[.]” The prosecutor continued that

defense counsel was permitted to ask if “any promises [were] made in exchange for her

testimony” against the Defendant at trial “but to couch it in terms of DCS made some

dismissal of some dependent neglect allegations or severe child abuse” was not appropriate

for cross-examination. The prosecutor then noted that defense counsel also expressed a

desire to ask the victim’s mother about her voluntary surrender of her parental rights based

upon her stipulation that she was unable to provide for the victim’s care. Defense counsel

stated that the State had “opened the door” on direct when the victim’s mother responded to

questioning that she had “signed away her rights” in the parental rights termination

proceeding. Defense counsel averred, “I can now cross-examine her as to that and ask her

why she did it and was there any promises made to her in exchange of her dropping her

parental rights and there be nothing filed against her.” Defense counsel noted that, after the

victim’s mother stipulated to the finding of neglect, “everybody [was] pointing fingers” at

the Defendant. According to defense counsel, he wanted to inquire about these actions to

explore any possible bias on the part of the victim’s mother. The prosecutor then stated that

“what DCS does isn’t relevant to the State[,]” as they were not a party to the dependency

neglect action, a civil proceeding, and she had nonetheless agreed to the termination of her

rights.

The court allowed the defense to ask the victim’s mother if she had received any

promises from the district attorney’s office, not DCS, in exchange for her trial testimony

against the Defendant. However, the trial court precluded the defense from asking about the

DCS proceedings, reasoning that it could not “see in any way how that had any bias at all

with regard to her testimony here today,” particularly because the victim’s mother had

“already given . . . up” her parental rights. Later, the victim’s mother was recalled, and she

testified that the district attorney’s office never promised her immunity or any other benefit

in exchange for her trial testimony against the Defendant.

The Defendant cites Tennessee Rule of Evidence 616, which permits a party to “offer

evidence by cross-examination, extrinsic evidence, or both, that a witness is biased in favor

of or prejudiced against a party or another witness.” The right to question a witness as to

potential bias is a recognized fundamental right. Delaware v. Van Arsdall, 475 U.S. 673, 680

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(1986); State v. Sayles, 49 S.W.3d 275, 279 (Tenn. 2001). “Although the trial court retains

discretion regarding the exercise of the right to examine witnesses for bias, any undue

restriction on that right may violate a defendant’s right to confrontation under the Sixth

Amendment of the United States Constitution and [a]rticle 1, [s]ection 9 of the Tennessee

Constitution.” State v. Rice, 184 S.W.3d 646, 670 (Tenn. 2006) (citations omitted). To

prevail, the Defendant must establish that “he was prohibited from engaging in otherwise

appropriate cross-examination designed to show a prototypical form of bias on the part of the

witness, thereby exposing to the jury the facts from which jurors could appropriately draw

inferences relating to the reliability of the witnesses.” Van Arsdall, 475 U.S. at 680; see also

Rice, 184 S.W.3d at 670.

While it is true that the Defendant is entitled to confront witnesses regarding the

potential bias of those witnesses, such testimony however must still be relevant. The trial

court’s ruling herein was simply one of relevance, i.e., evidence concerning the DCS

proceedings was not relevant to show any possible bias of the victim’s mother. We cannot

say that the trial court abused its discretion in this regard. The victim’s mother’s rights had

been terminated by DCS prior to her testimony at trial against the Defendant. The question

of why the victim’s mother agreed to a finding of neglect during the DCS proceedings has

no bearing on whether she was biased in favor of the prosecution. Regardless of whether her

parental rights were ultimately terminated based upon a finding of abuse or a stipulation of

failure to provide care, there was simply no proof that the victim’s mother had anything to

gain with DCS by her testimony against the Defendant. Moreover, the district attorney’s

office was not involved in the juvenile court proceedings. The trial court properly allowed

the Defendant to question the victim’s mother about whether the district attorney’s office had

promised her anything in exchange for her testimony against the Defendant, to which she

replied in the negative. The trial court did not improperly limit the Defendant’s

cross-examination of the victim’s mother.

B. Detective Adkins

The Defendant argues that the trial court erred when it limited his cross-examination

of Det. Adkins in two instances: specifically, not being allowed (1) to ask of the detective if

she believed the Defendant “was covering for somebody” nor (2) to ask about two separate

reprimands in the detective’s personnel file with the Kingsport Police Department. The State

responds that the trial court did not abuse its discretion by disallowing the Defendant to

cross-examine Det. Adkins on these subjects.

1. Covering for Someone

Defense counsel sought to ask Det. Adkins about her possible belief that the

Defendant was lying to cover for someone. The exact question posed to Det. Adkins was as

follows: “Did you have a reason to believe that what he was telling you if he was covering

for somebody or ---” The prosecutor objected on grounds of speculation: “I object to what

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she believed he was doing.” Defense counsel argued that the question asked for the

detective’s thoughts about whether the Defendant was lying to cover for someone, not those

of the Defendant. The trial court sustained the speculation objection and disallowed the

question.

On appeal, the Defendant argues that this question asked for proper lay opinion

testimony under Tennessee Rule of Evidence 701, reasoning that he was not asking Det.

Adkins to speculate but that “[s]he could form a reasonable belief based on her investigation

as to whether the Defendant was lying or not.” Opinion testimony is not objectionable

merely because it embraces an ultimate issue before the jury. Tenn. R. Evid. 704. However,

opinion testimony by lay witnesses must meet the requirements of Tennessee Rule of

Evidence 701, which provides that lay witnesses may give testimony in the form of an

opinion where the testimony is “(1) rationally based on the perception of the witness and (2)

helpful to a clear understanding of the witness’s testimony or the determination of a fact in

issue.” Tenn. R. Evid. 701(a). However, the admission of lay opinion testimony is limited

to those situations wherein the jury could not readily draw its own conclusions on the

ultimate issue, without the aid of the witness’s opinion testimony. Blackburn v. Murphy, 737

S.W.2d 529, 533 (Tenn. 1987). Put another way, the lay witness may express an opinion to

describe her observations if that is the only way in which she can effectively communicate

her observations to the jury. State v. Brown, 836 S.W.2d 530, 550 (Tenn. 1992). When the

admission or exclusion of opinion evidence is challenged on appeal, it is reviewable only for

abuse of discretion. See, e.g., State v. Gray, 960 S.W.2d 598, 606 (Tenn. Crim. App. 1997).

The question posed to Det. Adkins was seeking her opinion on the Defendant’s

truthfulness, or in this case her perceived untruthfulness, during the statements he made to

her ultimately confessing to these crimes. The testimony sought to be elicited did involve

the ultimate issue in this case, i.e., whether the Defendant was truthful when he confessed

to committing the crimes of which he was accused. The question as posed to Det. Adkins

was improper because it called for a conclusion of the witness and invaded the province of

the jury to determine the veracity of witnesses’ testimony. See, e.g., State v. James Arthur

Johnson, No. M2009-01147-CCA-R3-CD, 2010 WL 3323796, at *4-5 (Tenn. Crim. App.

Aug. 24, 2010) (trial court erred in admitting detective’s opinion that defendant was a willing

participant in crime). We agree that such is not proper opinion testimony. It was for the jury

to decide if the Defendant was being truthful to Det. Adkins when he admitted to committing

these crimes and thus guilty as charged. The trial court did not abuse its discretion in so

limiting Det. Adkins’ testimony.

2. Reprimands

Regarding Det. Adkins’ reprimands, the Defendant sought to cross-examine her about

two specific instances: one in 1996 where Det. Adkins was reprimanded for discharging her

service weapon inside her home and another in 2002 where an assistant district attorney filed

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a complaint about Det. Adkins not showing up when subpoenaed to court. Defense counsel

asserted that he was offering the evidence under Rule 608, attacking Det. Adkins’ character

for truthfulness. The trial court noted that the 1996 incident was over ten years old, and

therefore, under Rule 608(b) the probative value would have to substantially outweigh any

prejudicial effect. The court found that it did not. With respect to the 2002 reprimand, which

was not quite ten years old, defense counsel argued that it was probative of character for

truthfulness because it was a “part of the job.” The trial court found that the 2002 reprimand

did not have “probative value for the purpose of truthfulness or untruthfulness.” In so ruling,

the trial court accepted that there was a reasonable factual basis to support both allegations.

Tennessee Rule of Evidence 608(b) provides,

Specific instances of conduct of a witness for the purpose of attacking

or supporting the witness’s character for truthfulness, other than convictions

of crime as provided in Rule 609, may not be proved by extrinsic evidence.

They may, however, if probative of truthfulness or untruthfulness . . . , be

inquired into on cross-examination of the witness concerning the witness’s

character for truthfulness or untruthfulness . . . .

Before a witness can be questioned, the trial court, upon request, must hold a hearing to

determine whether “the alleged conduct has probative value and that a reasonable factual

basis exists for the inquiry.” Tenn. R. Evid. 608(b)(1). The rule further provides,

The conduct must have occurred no more than ten years before

commencement of the action or prosecution, but evidence of a specific

instance of conduct not qualifying under paragraph (2) is admissible if the

proponent gives to the adverse party sufficient advance notice of intent to use

such evidence to provide the adverse party with a fair opportunity to contest

the use of such evidence and the court determines in the interests of justice that

the probative value of that evidence, supported by specific facts and

circumstances, substantially outweighs it prejudicial effect . . . .

Tenn. R. Evid. 608(b)(2). This court reviews a trial court’s ruling pursuant to Rule 608(b)

under an abuse of discretion standard. Reid, 91 S.W.3d at 303.

The Defendant’s main complaint appears to be that the trial court did not hear any

evidence on the two reprimands but ruled that they were inadmissible without explanation.

The Defendant asserts that the evidence of Det. Adkins’ reprimands “had overwhelming

probative value”: “It would have put her testimony as to the willfulness of the Defendant’s

statements as well as to the whole investigation into question in the eyes of the jury.” We

disagree.

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In this case, the trial court complied with Rule 608, holding a jury-out hearing on the

matter and making the appropriate findings. As previously noted, the trial court in issuing

its ruling assumed that there was a reasonable factual basis to support the allegations.

Regarding the 1996 reprimand for discharging her service weapon inside her home, the trial

court properly focused on the time which had passed since Det. Adkins’ conduct and the

commencement of the prosecution against the Defendant, noting the enhanced standard

which applied. This incident had little probative value of Det. Adkins’ character for

truthfulness. The trial court properly determined that the probative value of this reprimand

did not substantially outweigh its unfair prejudicial effect upon the jury. We likewise agree

with the trial court that the 2002 reprimand involving Det. Adkins’ failure to appear in court

for the district attorney’s office was not probative of her truthfulness. See, e.g., United States

v. Williams, 249 F. App’x. 482, 483 (8th Cir. Oct. 3, 2007) (holding that prosecution

witness’s failure to appear for court proceedings was not probative of his truthfulness under

Federal Rule of Evidence 608(b), and even if such were the case, the trial court had the

discretion to disallow the line of questioning). Therefore, we cannot say that the trial court

abused its discretion by determining that the Defendant could not cross-examine Det. Adkins

about the two reprimands.

VI. Investigator Testimony

The Defendant argues that trial court erred when it did not allow his investigator to

testify as a lay witness about the Defendant’s susceptibility to suggestion and about the

investigation techniques used. At a jury-out hearing, the defense counsel informed the court

that he wished to call his investigator, Jason East, to testify that he found the Defendant “to

be very suggestible and that the progression of the confessions, in his opinion, were such that

it . . . led [the Defendant] to his confession[.]” The State objected that the witness was not

qualified as an expert to provide “testimony in the form of an opinion about the

[D]efendant’s mental condition.” The State further noted that the defense had not provided

the proper notice as required by the Rules of Criminal Procedure for expert testimony.

Defense counsel elaborated about the substance of the investigator’s testimony: “What his

opinion, what his testimony is going to be, Your Honor, as to his opinion and based on his

experience of about 17 years doing this kind of work, you know, what kind ---- how the

confessions progressed.”

The trial court noted that it had already conducted a motion to suppress the statements,

wherein it determined at that time that the statements were voluntarily made. The trial court

explained that this was just another attempt “to revisit” the issue. The trial court noted three

possible issues with presentation of the investigator’s testimony—one, was he qualified as

an expert; two, should this issue have been dealt with at the time of the motion to suppress;

and three, “the issue of false confession has come up before.” The trial court opined that

there was no basis for the investigator’s testimony but allowed the defense to make an offer

-25-

of proof. The defense called the investigator to testify “just to see if we can qualify him to

testify.”

Mr. East, a licensed private investigator, first provided his educational background,

including a Bachelor’s degree in psychology and sociology and Master’s degree “in

Interdisciplinary Studies that includes counseling, sociology, and criminology.” His

professional experience included work for private attorneys, as a case manager at DCS, and

as an officer with the Johnson City Police Department. According to Mr. East, if he were

permitted to testify on the Defendant’s behalf, he would testify about the investigation

techniques Det. Adkins used and his opinion on how “we arrived to the statements that [the

Defendant] has made.” He would further testify about the Defendant’s susceptibility “to

certain influences.” Specifically, he would provide the jury with a “diagram or give

somewhat of a diagram of how an investigation, including statements and how to lead up to

a certain statement and what factors with the [D]efendant can influence on how you treat that

particular case.” Upon questioning by the court, Mr. East confirmed that his determinations

about the investigation and the Defendant’s susceptibility were based upon conversations

with the Defendant.

The trial court then issued a definite ruling, concluding that Mr. East could not testify

about the Defendant’s susceptibility and the investigation techniques used because he did not

qualify as an expert. The trial court reasoned as follows:

I think he has to be qualified as an expert and I don’t find, based on this that

he has any special knowledge, skill or experience such that would put him in

a position of being able to testify as to [the Defendant’s] susceptibility in a

confession and to why he may have given that. I mean the jury, with regard

to investigative techniques, I mean the jury has heard from the two officers

that received statements from [the Defendant] and in my opinion, I mean I

think the jury is in a position to mak[e] the decision whether or not it[’]s

voluntary and whether or not that was his statement and whether or not it was

suggestive or anything like that. So I don’t even think investigative techniques

really fit into an expert opinion area. I think that’s really just more any lay

person can have an opinion about that and make a determination as to whether

or not it was based upon the evidence.

Defense counsel then noted that he had not moved to have Mr. East qualified as an expert but

that Mr. East was testifying as an experienced lay person. The trial court noted that, any such

testimony as a lay person would be based on hearsay:

So, you know, then it would be based on hearsay and so he’s giving an

opinion based on hearsay and the only way I know that you can base it on

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what, hearsay, would be either from [the Defendant] or perhaps from the

officer that was present. You know, [Mr. East] wasn’t there. I mean maybe

if he were there maybe he might be able to give an opinion. But when it’s

based on hearsay and you’re not qualifying him as an expert it’s kind of hard

for me to allow him to testify.

On appeal, the Defendant argues that Mr. East was not offered as an expert witness

and that his testimony as a lay witness was admissible pursuant to Rule 701, Tennessee Rules

of Evidence. As stated previously, unless qualified as experts, opinion testimony by lay

witnesses must meet the requirements of Rule 701, which provides that lay witnesses may

give testimony in the form of an opinion where the testimony is “(1) rationally based on the

perception of the witness and (2) helpful to a clear understanding of the witness’s testimony

or the determination of a fact in issue.” Tenn. R. Evid. 701(a). Tennessee Rule of Evidence

702 provides that “[i]f scientific, technical, or other specialized knowledge will substantially

assist the trier of fact to understand the evidence or to determine a fact in issue, a witness

qualified as an expert by knowledge, skill, experience, training, or education may testify in

the form of an opinion or otherwise.” This court has held that “lay opinion testimony under

Rule 701 is limited to those observations of a lay witness that are not based on scientific,

technical, or other specialized knowledge which would qualify the witness as an expert under

Rule 702.” State v. Timothy Murrell, No. W2001-02279-CCA-R3-CD, 2003 WL 21644591,

at *6 (Tenn. Crim. App. July 2, 2003) (citing United States v. Conn, 297 F.3d 548, 553 (7th

Cir. 2002)).

The investigator’s testimony in this case is not the proper substance for lay opinion

testimony. Testimony about the connection between the Defendant’s susceptibility to

suggestion and the interrogation techniques employed by Det. Adkins is properly categorized

as expert testimony because the opinion testimony is predicated upon specialized knowledge

that is unfamiliar to most lay-persons and that should be offered as expert testimony, due to

its complex nature. See State v. Ackerman, 397 S.W.3d 617, 631-32 (Tenn. Crim. App.

2012) (recognizing that expert testimony about a defendant’s susceptibility to suggestion

could be admissible); State v. Ted Ormand Pate, No. M2009-02321-CCA-R3-CD, 2011 WL

6935329, at *11-12 (Tenn. Crim. App. Nov. 22, 2011) (addressing the question of whether

expert testimony regarding a defendant’s susceptibility to making false confessions is

necessary to substantially assist the trier of fact). Accordingly, we conclude that the trial

court did not abuse its discretion by concluding that the investigator must be qualified as an

expert before so testifying, and the Defendant does not challenge the trial court’s

determination of Mr. East’s expert qualifications on appeal. Accordingly, this issue has no

merit.

VII. Mental Evaluation

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The Defendant contends that the trial court erred in not allowing him to present

evidence from his mental evaluation. As previously discussed, a mental evaluation was

performed on the Defendant to determine his competency to stand trial. Based upon the

evaluation, the doctors concluded that the Defendant was competent but noted that the

Defendant suffered from “reading comprehension difficulties.” This finding was noted in

a letter to the court, and defense counsel wanted to have it admitted into evidence. The

prosecutor responded that the finding of reading comprehension difficulties in the letter was

irrelevant because Det. Adkins testified that she read everything to the Defendant anyway.

The prosecutor continued, although Mr. Ide stated that he had the Defendant read his

statement, there was nothing inculpatory in that statement, and that admission of the letter

would serve only to mislead and confuse the jury. Defense counsel replied, “A problem is

a problem, okay, I think the jury has a right to know that [the Defendant] has a special ed

education and that he has a reading comprehension problem. It does go to mental state

maybe to some degree . . . .”

The trial court held that the letter itself was inadmissible and that there was no basis

to cross-examine Det. Adkins with the contents of the letter. The trial court reasoned that it

had previously determined that the Defendant’s statements were voluntary and admissible

and that admission of this letter would undermine that determination. The trial court noted

that, if the Defendant elected to testify, he could certainly discuss his reading difficulties.

The Defendant again seems to point to Rule 701 as a basis for admission of this

evidence, specifically arguing that “[t]he evaluation was prepared by a court appointed, State

psychologist/[psychiatrist], and would have been rationally based on the perception of the

witness that would help the jury in understanding the actions of the events or person

perceived . . . . ”4 However, we agree with the State that the report is inadmissible hearsay.

See Tenn. R. Evid. 802, 803. Moreover, at trial the Defendant was permitted to ask Det.

Adkins if she was aware that the Defendant had difficulties reading, and she replied that she

had no personal knowledge of such. Det. Ide was asked on direct if the Defendant read his

statement before he signed it, and Det. Ide responded in the affirmative. Det. Ide was never

asked on cross-examination if the Defendant appeared to have any difficulty reading that

statement. We agree with the trial court that the defense had not made any argument to

warrant either introduction of the letter or permit cross-examination of Det. Adkins about the

contents of the letter. The trial court did not abuse its discretion when it did not allow the

Defendant to introduce the mental evaluation.

VIII. Sentencing

4

He does not cite to a specific rule of evidence but only the case of State v. Davidson, 121 S.W.3d 600

(Tenn. 2003). His pinpoint cite is to page 613, which deals with a wholly unrelated issue. On page 617, our

supreme court deals with a similar issue addressing Rule 701.

-28-

The Defendant challenges several aspects of his sentence. Specifically, he contends

that he was denied his right of allocution, that the trial court erred in enhancing his sentence

to the maximum sentence within his range on each count, and that the imposition of

consecutive sentencing was improper. Before a trial court imposes a sentence upon a

convicted criminal defendant, it must consider: (a) the evidence adduced at the trial and the

sentencing hearing; (b) the presentence report; (c) the principles of sentencing and arguments

as to sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) evidence and information offered by the parties on the enhancement and

mitigating factors set forth in Tennessee Code Annotated sections 40-35-113 and 40-35-114;

(f) any statistical information provided by the Administrative Office of the Courts as to

Tennessee sentencing practices for similar offenses; and (g) any statement the defendant

wishes to make in the defendant’s own behalf about sentencing. Tenn. Code Ann. § 40-35-

210(b). To facilitate appellate review, “it is critical that trial courts adhere to the statutory

requirement set forth in Tennessee Code Annotated section 40-35-210(e)” and articulate in

the record its reasons for imposing the specific sentence. See State v. Bise, 380 S.W.3d 682,

705 n.41 (Tenn. 2012).

At the sentencing hearing, the presentence report was admitted as an exhibit without

objection. At the time of the sentencing hearing, the Defendant was twenty-three years old,

divorced, and had fathered two children, including the victim. The presentence report

reflected that the Defendant had prior felony convictions for attempted aggravated robbery,

aggravated assault, and burglary, and misdemeanors convictions for three counts of

contributing to the delinquency of a minor and one count of use of a prohibited weapon. At

the sentencing hearing, the trial court noted that, on February 9, 2008, the Defendant was

released on bond for the aggravated robbery, aggravated assault, and burglary charges, and

that the instant offenses occurred while he was released on that bond. A copy of the bond

was introduced into evidence at the sentencing hearing. The presentence report prepared for

the Defendant’s sentencing on those three prior felony convictions was also admitted as an

exhibit.

Moreover, the presentence report showed that the Defendant had previously been

granted judicial diversion on the prohibited weapon offense and one count of contributing

to the delinquency of a minor, which was later revoked for failure to comply with the

conditions of that release. According to the report, the Defendant’s diversionary sentence,

which was not revoked until August 5, 2008, was still in effect at the time of these offenses.

Some juvenile history was noted in the report.

The presentence report also reflected that the Defendant provided documentation that

he received “a diploma of specialized education.” The Defendant reported his mental health

as fair, stating that he had a diagnosis of bipolar disorder at age seven, along with additional

diagnoses of “ADD and ADHD.” He reported his physical health as excellent. The

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Defendant admitted to regular marijuana usage beginning as a juvenile. Additionally, the

Defendant reported sporadic employment as a “floor cleaner,” as a fast food worker, and as

a brick mason.

Prior to hearing the arguments of counsel, the trial court asked both parties if they had

any additional “evidence” to present, and both parties replied in the negative. The trial court

then imposed a twenty-five-year sentence on each count.

1. Allocution

The Defendant contends the trial court did not allow him to speak before being

sentenced, thus, effectively denying him his right to allocution. The State argues that the

Defendant has waived appellate review of this issue because he never informed the trial court

that he wished to make an allocution statement.

At the hearing, specifically, defense counsel was asked, “All right, . . . do you have

any evidence?”; to which defense counsel responded, “No evidence, Your Honor, just

argument.” After hearing the arguments of counsel, the trial court noted that, in rendering

its decision, it was required to look at “anything that the [D]efendant may have made on his

own behalf[.]” At no time during the hearing did defense counsel or the Defendant inform

the court of a desire to allocute. The Defendant assigned error to the issue in his motion for

new trial. At the motion for new trial hearing, the trial court made the following findings:

I am certain I never asked “Does the defendant wish to give an allocution or

make a statement.” I don’t think there’s any question. I don’t think I ever ask

for that but I feel 99.9% certain to ask whether or not the defense wishes to put

on any evidence[.]

Defense counsel conceded that, “at no point in time[,] did [he] say the [D]efendant would

like to give an allocution before sentencing.” The trial court then determined that its actions

did not deny the Defendant the right to give an allocution statement.

Tennessee Code Annotated section 40-35-210(b)(7) provides that in determining a

defendant’s sentence, the trial court shall consider any statement the defendant wants to make

in his own behalf about sentencing. Often referred to as allocution, allocution has been

defined as “the formality of the court’s inquiry of a convicted defendant as to whether he has

any legal cause to show why judgment should not be pronounced against him on the verdict

of conviction.” State v. Stephenson, 878 S.W.2d 530, 550 (Tenn. 1994) (citation omitted).

It is “an unsworn statement from a convicted defendant to the sentencing judge or jury in

which the defendant can ask for mercy, explain his or her conduct, apologize for the crime,

or say anything else in an effort to lessen the impending sentence. This statement is not

subject to cross-examination.” Black’s Law Dictionary 75 (7th ed. 1999); see also United

-30-

States v. Gilbert, 244 F.3d 888, 924 (11th Cir. 2001). “It is settled that a failure to comply

with the mandate of [allocution] ordinarily requires vacation of the sentence imposed without

a concomitant inquiry into prejudice. This is so precisely because the impact of the omission

on a discretionary decision is usually enormously difficult to ascertain.” State v. Keathly,

145 S.W.3d 123, 126 (Tenn. Crim. App. 2003) (quoting United States v. De Alba Pagan, 33

F.3d 125, 129-30 (1st Cir. 1994)) (footnotes omitted).

The State contends that the Defendant has waived this issue because he never

informed the court that he wished to make an allocution statement. The Defendant relies on

Keathly, 145 S.W.3d at 125-126, for the proposition that the trial court was required to

inform him of his allocution right and invite him to speak, i.e., there must be evidence of an

intentional relinquishment of a known right. However, the remainder of the cases relied on

by the Defendant are all from federal circuit courts of appeal interpreting the analogous

federal rule of criminal procedure. The Federal Rule of Criminal Procedure requires the

judge to “address the defendant personally in order to permit the defendant to speak or

present any information to mitigate the sentence.” Fed. R. Crim. P. 32(i)(4)(A)(ii) (formerly

Fed. R. Crim. P. 32(a)(1)(c)). Such is not the rule in the State of Tennessee.

Moreover, in Keathly, 145 S.W.3d at 125-130, this court reversed a defendant’s

sentence where the trial court refused to allow the defendant to read a statement without

being placed under oath and subject to cross-examination. In the case herein, unlike Keathly,

the trial court did not refuse to allow the Defendant to make a statement. At the sentencing

hearing, the trial court asked defense counsel if he wished to present any evidence, and

defense counsel stated that he did not. The trial court did not prohibit the Defendant from

addressing the court at that time. While the trial court admitted that it did not specifically ask

the Defendant if he wished to allocute, he did not deny the Defendant the opportunity to do

so. See, e.g., State v. Mark C. Noles, No. M2006-01534-CCA-R3-CD, 2007 WL 3274422,

at *12 (Tenn. Crim. App. Nov. 6, 2007) (holding that the trial court did not refuse to allow

the defendant to make a statement and that the defendant had the opportunity to do so). We

conclude that the Defendant had the opportunity to make a statement and failed to do so. He

is not entitled to relief on this issue.

B. Length

The Defendant challenges the imposition of the maximum sentence on each count.

The 2005 amendments to the Sentencing Act “served to increase the discretionary authority

of trial courts in sentencing.” Bise, 380 S.W.3d at 708.5 Currently, upon a challenge to the

length of the sentence imposed, it is the duty of this court to analyze the issues under “an

abuse of discretion standard of review, granting a presumption of reasonableness to

5

The Bise opinion was decided after the briefs were filed in this matter.

-31-

within-range sentencing decisions that reflect a proper application of the purposes and

principles of our Sentencing Act.” Id. at 707. Those purposes and principles include “the

imposition of a sentence justly deserved in relation to the seriousness of the offense,”

Tennessee Code Annotated section 40-35-102(1), a punishment sufficient “to prevent crime

and promote respect for the law,” Tennessee Code Annotated section 40-35-102(3), and

consideration of a defendant’s “potential or lack of potential for . . . rehabilitation,”

Tennessee Code Annotated section 40-35-103(5). State v. Carter, 254 S.W.3d 335, 344

(Tenn. 2007). The burden of showing that a sentence is improper is upon the appealing

party. See Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.; see also State v.

Arnett, 49 S.W.3d 250, 257 (Tenn. 2001).

Our amended Sentencing Act no longer imposes a presumptive sentence. Carter, 254

S.W.3d at 343. Tennessee Code Annotated section 40-35-210 was amended to provide as

follows:

(c) The court shall impose a sentence within the range of punishment,

determined by whether the defendant is a mitigated, standard, persistent,

career, or repeat violent offender. In imposing a specific sentence within the

range of punishment, the court shall consider, but is not bound by, the

following advisory sentencing guidelines:

(1) The minimum sentence within the range of punishment is the

sentence that should be imposed, because the general assembly set the

minimum length of sentence for each felony class to reflect the relative

seriousness of each criminal offense in the felony classifications; and

(2) The sentence length within the range should be adjusted, as

appropriate, by the presence or absence of mitigating and enhancement factors

set out in §§ 40-35-113 and 40-35-114.

(d) The sentence length within the range should be consistent with the

purposes and principles of this chapter.

Tenn. Code Ann. § 40-35-210(c), (d) (emphasis added).

“[T]he 2005 amendments rendered advisory the manner in which the trial court selects

a sentence within the appropriate range, allowing the trial court to be guided by—but not

bound by—any applicable enhancement or mitigating factors when adjusting the length of

a sentence.” Bise, 380 S.W.3d at 706. In accordance with the broad discretion now afforded

a trial court’s sentencing decision,

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misapplication of an enhancement or mitigating factor does not invalidate the

sentence imposed unless the trial court wholly departed from the 1989 Act, as

amended in 2005. So long as there are other reasons consistent with the

purposes and principles of sentencing, as provided by statute, a sentence

imposed by the trial court within the appropriate range should be upheld.

Id.

The Defendant was a Range I, standard offender6 who was convicted of two Class A

felonies; therefore, he was subject to a sentence between fifteen and twenty-five years on

each count. See Tenn. Code Ann. § 40-35-112(a)(1). The trial court found that five

enhancement factors applied to both of the Defendant’s convictions: (1) the Defendant had

a previous history of criminal convictions or criminal behavior, in addition to those necessary

to establish the appropriate range; (4) the victim of the offense was particularly vulnerable

because of age or physical or mental disability; (8) the Defendant, before trial or sentencing,

failed to comply with the conditions of a sentence involving release into the community; (13)

at the time the felony was committed, the Defendant was released on probation; and (14) the

Defendant abused a position of public or private trust. See Tenn. Code Ann. § 40-35-114(1),

(4), (8), (13) & (14). The trial court also applied enhancement factor (6), “The personal

injuries inflicted upon, or the amount of damage to property sustained by or taken from, the

victim was particularly great[,]” to the child neglect conviction. See Tenn. Code Ann. § 40-

35-114(6). The trial court then considered the Defendant’s evidence in mitigation and found

that none of those factors applied. See Tenn. Code Ann. § 40-35-113.

On appeal, the Defendant argues that trial court “erred in not finding any mitigation

factors that were applicable to the Defendant and applying only enhancing factors that were

not applicable to the Defendant.” Specifically, he challenges the trial court’s application of

enhancement factor (1), arguing that the trial court improperly “gave great weight to the fact

that the Defendant was using marijuana from the age of 12, for which he has never been

convicted” and that “[s]uch evidence cannot be used to enhance a sentence[.]” However, the

trial court properly considered the Defendant’s admission in his presentence report that he

began using marijuana at age twelve in support of his finding of enhancement factor (1). See

State v. Anthony Riggs, No. M2007-02322-RM-CD, 2008 WL 1968826, at *4 (Tenn. Crim.

App. May 7, 2008). We note that, regardless of this finding, the trial court also relied on the

Defendant’s record of criminal convictions in applying this factor.

The Defendant also challenges the application of enhancement factor (14), arguing

that he was not in a position of trust because “he was not a live-in boyfriend at all, he was

6

The judgment form correctly notes that the Defendant is required to serve 100% of his sentence for

aggravated child abuse. See Tenn. Code Ann. § 40-35-501(i)(2)(K).

-33-

a stop-by, fly[-]by, baby-daddy[.]” This argument borders on the absurd. Regardless of

where the Defendant resided, it is clear that, as the victim’s father, the Defendant was in a

position of trust while the victim was in his care.

Finally, he argues that the trial court erred by refusing to apply mitigating factor (6),

“The defendant, because of youth or old age, lacked substantial judgment in committing the

offense[.]” See Tenn. Code Ann. 40-35-113(6). Ordinarily, “[i]n determining whether this

factor is to be applied, courts should consider the concept of youth in context, i.e., the

defendant’s age, education, maturity, experience, mental capacity or development, and any

other pertinent circumstance tending to demonstrate the defendant’s ability or inability to

appreciate the nature of his conduct.” State v. Adams, 864 S.W.2d 31, 34 (Tenn. 1993). The

trial court noted the Defendant’s youth, being just shy of twenty years old at the time these

crimes were committed, but further explained that the Defendant had been involved “in the

criminal justice system for a long period of time.” The trial court declined to apply this

factor, concluding, “I think that while he is young at the same time he’s demonstrated that

he is someone that is of an older nature and has had significant exposure to the criminal

justice system prior to this offense[.]” The Defendant argues that the trial court did not

consider his “education, maturity, experience, mental capacity or development at all[,]”

“basically stating that because of the Defendant’s long criminal history [this factor] should

not apply.” The Defendant was familiar with the consequences of crime, as shown by his

criminal history, which included multiple convictions as an adult and the commission of new

offenses while on probation and bond. He presented no evidence that his mental capacity or

development affected his ability to appreciate the nature of his conduct. See, e.g., State v.

Cornelius O’Brien Love, No. W2010-00334-CCA-R3-CD, 2011 WL 977566, at * (Tenn.

Crim. App. Mar. 21, 2011) (citing State v. Winston Chadrick McClain, No. M2002-02178-

CCA-R3-CD, 2003 WL 21658592, at *6 (Tenn. Crim. App. July 15, 2003) (concluding that

the trial court properly gave mitigation factor (6) “extremely little weight” because the

fifteen-year-old defendant’s lengthy and increasingly serious juvenile record indicated that

he understood the nature of his conduct and because no evidence was offered to the

contrary)).

These are the Defendant’s only challenges to the imposition of the maximum sentence

in his range. First, as discussed above, we conclude that the record supports the trial court’s

application of enhancement factors (1) and (14) to the Defendant’s sentences. We further

note that the trial court also properly applied a number of other factors to both of the

Defendant’s sentences, factors (4), (8), & (13),7 and the record supports their application.

7

We cannot say that enhancement factor (6), that the personal injuries inflicted upon the victim were

particularly great, was properly applied to the Defendant’s aggravated child neglect sentence because serious

bodily injury is an essential element of that offense. Tennessee Code Annotated section 40-35-114

(continued...)

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Given the new directive of Bise from our supreme court, upon a challenge to the

sentence imposed, it is the duty of this court to analyze the issues under “an abuse of

discretion standard of review, granting a presumption of reasonableness to within-range

sentencing decisions that reflect a proper application of the purposes and principles of our

Sentencing Act.” Bise, 380 S.W.3d 707. Because the application of enhancement and

mitigating factors to adjust a sentence was rendered advisory by the 2005 amendments, we

reiterate that the trial court may set a sentence anywhere within the applicable range so long

as the sentence is consistent with the principles and purposes of the Act, regardless of the

presence or absence of mitigating and enhancement factors. The trial court in this case

thoroughly considered the purposes and principles of the Sentencing Act in rendering its

decision; therefore, the imposition of the maximum sentence in the range is affirmed.

C. Consecutive Nature

The Defendant also argues that the trial court erred by imposing consecutive

sentencing. Initially, we note that the standard of review on the issue of consecutive

sentencing is unclear under our State’s current jurisprudence, given the recent

pronouncement of our supreme court in Bise and further application of that standard to

alternative sentencing determinations. See Bise, 380 S.W.3d at 708 (Tenn. 2012); see also

State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). However, in the arena of

consecutive sentencing, our supreme court has not issued a definitive ruling on the standard

of review to be applied by this court. In response, some panels of this court are applying an

abuse of discretion standard based upon the recent decisions of Bise and Caudle, while others

are continuing to apply a de novo standard of review until instructed otherwise by our

supreme court, and yet others are avoiding the standard of review altogether in deciding the

issue. See generally State v. Robert Fusco, No. M2012-01068-CCA-RM-CD, 2012 WL

6062856, at *38-39 (Tenn. Crim. App. Dec. 06, 2012) (silent on standard of review to be

applied), perm. app. denied, (Tenn. Apr. 11, 2013); State v. Eric Demond McCathern, No.

M2011-01612-CCA-R3-CD, 2012 WL 5949096, at *4-5 (Tenn. Crim. App. Nov. 16, 2012)

(majority applying abuse of discretion standard of review and concurring opinion advocating

de novo standard of review), perm. app. denied, (Tenn. Feb. 25, 2013).

Tennessee Code Annotated section 40-35-115(b) provides that a trial court may order

sentences to run consecutively if it finds any one of the following criteria by a preponderance

of the evidence:

7

(...continued)

specifically prohibits using enhancement factors that are elements of the offense, and our supreme court has

held that “proof of serious bodily injury will always constitute proof of particularly great injury.” State v.

Jones, 883 S.W.2d 597, 602 (Tenn. 1994). However, the trial court applied only five factors to the aggravated

child abuse sentence and still imposed the maximum twenty-five-year sentence.

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(1) The defendant is a professional criminal who has knowingly devoted the

defendant’s life to criminal acts as a major source of livelihood;

(2) The defendant is an offender whose record of criminal activity is extensive;

(3) The defendant is a dangerous mentally abnormal person so declared by a

competent psychiatrist who concludes as a result of an investigation prior to

sentencing that the defendant’s criminal conduct has been characterized by a

pattern of repetitive or compulsive behavior with heedless indifference to

consequences;

(4) The defendant is a dangerous offender whose behavior indicates little or no

regard for human life, and no hesitation about committing a crime in which the

risk to human life is high;

(5) The defendant is convicted of two (2) or more statutory offenses involving

sexual abuse of a minor with consideration of the aggravating circumstances

arising from the relationship between the defendant and victim or victims, the

time span of defendant’s undetected sexual activity, the nature and scope of the

sexual acts and the extent of the residual, physical and mental damage to the

victim or victims;

(6) The defendant is sentenced for an offense committed while on probation;

or

(7) The defendant is sentenced for criminal contempt.

These criteria are stated in the alternative; therefore, only one need exist to support the

appropriateness of consecutive sentencing. However, the imposition of consecutive

sentencing is subject to the general sentencing principles that the overall sentence imposed

“should be no greater than that deserved for the offense committed” and that it “should be

the least severe measure necessary to achieve the purposes for which the sentence is

imposed[.]” Tenn. Code Ann. § 40-35-103(2) & (4).

Here, the trial court clearly imposed consecutive sentences on two grounds: (1) the

Defendant was an offender whose record of criminal activity was extensive; and (2) the

Defendant was a dangerous offender whose behavior indicated little or no regard for human

life, and no hesitation about committing a crime in which the risk to human life was high.8

Tenn. Code Ann. § 40-35-115(b)(2) & (4). On appeal, the Defendant challenges only the

trial court’s application of the extensive criminal history criterion. Specifically, he asserts

8

Regarding the imposition of consecutive sentences because the defendant is a dangerous offender, our

supreme court has held, “The proof must also establish that the terms imposed are reasonably related to the

severity of the offenses committed and are necessary in order to protect the public from further criminal acts

by the offender.” State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995).

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that application of this criterion to him was improper, reasoning as follows: “The Defendant

had only three prior instances of criminal behavior as an adult. . . . While those instances

resulted in multiple convictions for multiple crimes, ultimately it was only three instances.”

The State replies that the trial court properly imposed consecutive sentences based on several

criteria: the Defendant had an extensive criminal history; the Defendant was on probation at

the time he committed these offenses; and the Defendant was a dangerous offender because

of his previous crimes and the abuse and neglect in this case.

The evidence adduced at the sentencing hearing supports the trial court’s conclusion

that the Defendant was an offender who had an extensive record of criminal activity. The

presentence report reflected that the Defendant had prior felony convictions for attempted

aggravated robbery, aggravated assault, and burglary, and misdemeanors convictions for

three counts of contributing to the delinquency of a minor and one count of use of a

prohibited weapon. The Defendant was released on bond for the aggravated robbery,

aggravated assault, and burglary charges,9 and this offense occurred while he was released

on that bond. Moreover, the Defendant had previously been granted judicial diversion,

which was later revoked for failure to comply with the conditions of release. The

Defendant’s diversionary sentence was still in effect at the time of these offenses.10 Morever,

the trial court found that the Defendant “had some juvenile history as well, not significant

but still involvement with the juvenile system.” Some juvenile history was noted in the

report. The trial court also noted the Defendant’s admission to regular marijuana usage

beginning as a juvenile. We disagree with the Defendant’s argument that his “three

instances” of criminal behavior were not sufficient to support application of this factor and

conclude that the record supports the trial court’s finding that the Defendant’s record of

criminal activity was extensive.

The trial court also found that the Defendant was a dangerous offender, first noting

the Defendant’s three prior violent felony convictions. The trial court recited the facts

9

The State incorrectly asserts in its brief that the Defendant was on probation for the attempted aggravated

robbery and aggravated assault convictions at the time he committed the instant offenses. It appears that this

error comes from the following language contained in the presentence report: “The Defendant has served the

four years [probation on the burglary offense] and the six years probation [for the attempted aggravated

robbery and aggravated assault offenses] is in effect at this time, even though he is incarcerated at the Sullivan

County Jail on the instant offense.” However, the Defendant was on bond for all three offenses, including

the burglary, not probation, at the time he committed the offenses herein. A disposition date of September

12, 2008, is reflected in the presentence report for all three of those offenses.

10

Thus, it does appear that the Defendant was on diversion, a form of probation, at the time he committed

the instant offenses. Another factor which likewise supports the imposition of consecutive sentences.

However, the trial court noted that the Defendant was on probation twice during its consecutive sentencing

ruling, but it never explicitly found that such factor applied.

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leading to those convictions and characterized that situation as “highly dangerous.” The trial

court then recounted the circumstances of the present offenses, noting the severe injuries to

the child, the age of the victim, the deliberate nature of the acts, the derogatory statements

made concerning the child’s paternity, and the Defendant’s statements expressing curiosity

about “slamming” the victim’s head into a wall. The court also stated that the Defendant’s

behavior “evidenced little or no [regard] for human life”; that an extended sentence was

necessary to protect the public against further criminal conduct by the Defendant; and that

consecutive sentencing was reasonably related to the severity of the offenses committed. In

our view, the record also supports a finding that consecutive sentences are warranted because

the Defendant qualifies as a dangerous offender and the Wilkerson requirements have been

met.

The presence of a single factor is enough to justify the imposition of consecutive

sentencing. Under these facts and circumstances, consecutive sentencing is an appropriate

and justly deserved sanction. Moreover, we note that the consecutive nature of these

sentences appears to be consistent with applicable sentencing principles and guidelines.

Based upon either standard of review, de novo or abuse of discretion, we affirm the trial

court’s imposition of consecutive sentencing.

CONCLUSION

In accordance with the foregoing reasoning and authorities, the judgments of the trial

court are affirmed.

_________________________________

D. KELLY THOMAS, JR., JUDGE

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