Robert D. Walsh v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs June 2, 2004

ROBERT D. WALSH v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. P 26520 Arthur T. Bennett, Judge

No. W2003-02040-CCA-R3-PC - Filed August 23, 2004

The Appellant, Robert Walsh, appeals as of right from the judgment of the Shelby County Criminal

Court denying his petition for post-conviction relief. Walsh was convicted in 1999 of aggravated

sexual battery of a foster child who was in his care. On appeal, Walsh contends that: (1) he was

denied the effective assistance of counsel based upon trial counsel’s cross-examination of the victim

and (2) his right to a fair and impartial jury was violated by a deputy sheriff’s comments to the jury

during deliberations. After review of the issues presented, the judgment is affirmed.

Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

DAVID G. HAYES, J., delivered the opinion of the court, in which DAVID H. WELLES and ROBERT W.

WEDEMEYER, JJ., joined.

C. Michael Robbins (at trial and on appeal), Memphis, Tennessee, and William D. Massey (at trial),

Memphis, Tennessee, for the Appellant, Robert D. Walsh.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Jennifer L.

Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General; and Julie

Mosley and Lee Coffee, Assistant District Attorneys General, for the Appellee, State of Tennessee.

OPINION

Factual Background

In 1998, the Appellant was indicted for aggravated sexual battery and rape of a child. The

jury returned a guilty verdict for aggravated sexual battery and a not guilty verdict for rape of a child.

For his aggravated sexual battery conviction, he received a sentence of ten years to be served at

100%.

On direct appeal, this court affirmed the Appellant’s aggravated sexual battery conviction

and modified his sentence to Range I service at 30%. State v. Robert D. Walsh, No. W1999-01473-

CCA-R3-CD (Tenn. Crim. App. at Jackson, Jan. 30, 2001), perm. to appeal denied, (Tenn. 2001).

The relevant facts, as summarized by this court in the Appellant's direct appeal, reflect that:

Around Christmas 1994, the eight-year-old victim1 and her four-year-old sister were

placed as foster children in the home of Robert and Lou Walsh. The victim was

unable to provide a precise time frame, but approximately six months later, in the

summertime, the defendant had a sexually oriented conversation with the victim in

which he told her that it would be permissible under the Bible for him to have sexual

relations with her, although it would be wrong for him to have sexual relations with

an animal. In her testimony, the victim recounted that “pretty close” in time after this

conversation, the defendant rubbed the victim up and down along his body until he

ejaculated. The victim testified that after this incident, the defendant asked the

victim to touch his private parts “maybe a couple of weeks after he had first done it

to me.” Over time, the defendant engaged in various acts of fondling the victim,

having her masturbate him, and performing oral sex on her. He attempted vaginal

penetration on one occasion, anally penetrating her in the process. The victim

testified that the defendant said they both would go to jail if she told anyone about

the sexual acts. The defendant also told the victim that he would marry her when she

was older and his wife was dead, and they would have children together.

In December 1996, the victim and her sister returned to the home of their

biological mother. The victim did not report the abuse until approximately eleven

months later, and an investigation commenced. During the investigation, the victim

gave at least two statements implicating the defendant to child welfare and law

enforcement officials.

To counter the state’s evidence, the defendant presented proof aimed at

showing that the victim was sexually knowledgeable beyond her years as well as

untruthful. The defense attempted to highlight alleged inconsistencies between the

victim’s prior statements and her trial testimony. The defense also presented proof

to counter various claims made by the victim, such as that she had been alone with

the defendant in his bedroom, that the defendant’s wife often slept on the living room

sofa and not in the bed with the defendant, that the victim and the defendant were

sometimes alone together, that the defendant bathed the victim, and that the victim

and the defendant went swimming alone together after dark in the backyard pool.

The defendant testified and flatly denied any sexual misconduct with the

victim. Three character witnesses testified on behalf of the defendant before the trial

court exercised its discretion to limit further cumulative proof of this nature.

Id.

1

It is the policy of this court to avoid use of the names of minor victims of sex crimes.

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On June 10, 2002, the Appellant filed a petition for post-conviction relief, wherein he argued

that he received ineffective assistance of counsel and he was denied his right to a fair and impartial

jury. A hearing was held on May 2, 2003, at which the Appellant, trial counsel, and Linda Busby,

a juror at the Appellant’s trial, testified. The post-conviction court denied relief by written order on

July 29, 2003. This timely appeal followed.

ANALYSIS

The Post-Conviction Procedure Act, Tennessee Code Annotated sections 40-30-101 to -313

(2003), provides a method by which a defendant may challenge a conviction or sentence for violation

of a state or federal constitutional right. Tenn. Code Ann. § 40-30-103 (2003). In order to succeed

on a post-conviction claim, the Appellant bears the burden of showing by clear and convincing

evidence, the allegations set forth in his petition. Tenn. Code Ann. § 40-30-110(f) (2003).

I. Ineffective Assistance

First, the Appellant contends trial counsel was ineffective in his cross-examination of the

victim. To succeed in a challenge for ineffective assistance of counsel, the Appellant must establish,

under Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984): (1) deficient

representation and (2) prejudice resulting from the deficiency. Thus, the Appellant must prove that

counsel “made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment,” and the Appellant must demonstrate that counsel’s errors were

so serious as to deprive the Appellant of a fair trial, a trial whose result is reliable. Id.

With respect to deficient performance, the Appellant must demonstrate that counsel’s

representation fell below the range of competence demanded of attorneys in criminal cases. Baxter

v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). This court “must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the

[Appellant] must overcome the presumption that, under the circumstances, the challenged action

might be considered sound trial strategy.” Strickland, 466 U.S. at 689 (citation omitted). We should

defer to trial strategy or tactical choices if they are informed ones based upon adequate preparation.

See Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Additionally, this court should avoid the

“distorting effects of hindsight” and “judge the reasonableness of counsel’s challenged conduct on

the facts of the particular case, viewed as of the time of counsel’s conduct.” Strickland, 466 U.S.

at 689-90.

The issues of deficient performance by counsel and possible prejudice to the defense are

mixed questions of law and fact. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). “A trial court’s

findings of fact underlying a claim of ineffective assistance of counsel are reviewed on appeal under

a de novo standard, accompanied with a presumption that those findings are correct unless the

preponderance of the evidence is otherwise.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001)

(citing Tenn. R. App. P. 13(d)); see Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However,

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conclusions of law are reviewed under a purely de novo standard, with no presumption of

correctness. Fields, 40 S.W.3d at 458.

At trial, the following events transpired:

On cross-examination, the victim was asked several questions about a prior

statement she had given to Sergeant [Teresa] White of the Shelby County Sheriff's

Department. . . . Later during its case-in-chief, the state called Carol Smith of the

Department of the Children’s Services to the stand. . . . [T]he court . . . determined

that Ms. Smith’s testimony regarding the victim’s prior statements to her about the

[Appellant’s] sexual abuse was admissible as prior consistent statements to

rehabilitate the victim after her credibility had been attacked on cross-examination.

. . . On cross- examination, defense counsel asked for a copy of the tape recording

of Smith’s interview with the victim. When the witness said she did not have it with

her, court was recessed so that the witness could travel to her office to retrieve the

tape and so that the defense could review it. When cross-examination resumed,

defense counsel inquired at length about variations between the tape and the

transcription of it. The witness acknowledged that there were variances and explained

that she did not herself prepare the transcribed version. . . . On redirect, the state

moved to introduce the tape recording of the victim’s interview with Ms. Smith on

the basis that the implication from cross-examination was that things had been

omitted from the transcription of the tape. . . . [B]efore the tape was played for the

jury, the defense objected that “there are things that weren’t testified in here that’s

on the tape.” The court overruled the objection, finding that the defense had placed

the tape’s contents at issue by questioning whether there were inconsistent statements

of the victim on the tape. Thereafter, the tape was played for the jury.

Robert D. Walsh, No. W1999-01473-CCA-R3-CD. The Appellant argues that, based upon

inadequate preparation, trial counsel was under a mistaken impression that a particular portion of

the victim’s statement was inconsistent, when in fact, it was not. This mistaken impression was the

basis of trial counsel’s cross-examination of the victim, and directly led to the introduction of Ms.

Smith’s testimony and the audio tape, thereby, constituting ineffective assistance. He contends that

the tape revealed additional instances of sexual misconduct to those testified to by the victim during

her direct-examination and, as a result of this prejudice, he is entitled to a new trial.

This Court has noted that “cross-examination is a strategic and tactical decision of trial

counsel, which is not to be measured by hindsight.” State v. Kerley, 820 S.W.2d 753, 756 (Tenn.

Crim. App. 1991); see also Hellard, 629 S.W.2d at 9. Allegations of ineffective assistance of

counsel relating to matters of trial strategy or tactics rarely provide a basis for post-conviction relief.

Counsel has some discretion in conducting the defense and is entitled to use his best judgment in

matters of trial strategy or tactics. Taylor v. State, 814 S.W.2d 374, 378 (Tenn. Crim. App.), perm.

to appeal denied, (Tenn. 1991) (citing McBee v. State, 655 S.W.2d 191, 193 (Tenn. Crim. App.

1983)). Further, we “acknowledge the unique difficulty of cross-examining a child at trial, especially

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concerning the sensitive issue of sexual abuse.” Jimmy Greene v. State, No. E2000-00426-CCA-R3-

PC (Tenn. Crim. App. at Knoxville, Mar. 6, 2001).

It is abundantly clear from the record that the defense theory was that the victim was not

truthful in her claim of sexual abuse and that portions of her testimony were inconsistent with her

prior statements and other evidence. Robert D. Walsh, No. W1999-01473-CCA-R3-CD. In closing

argument, trial counsel went so far as to use the words “inconsistency” and “inconsistencies” in

describing the victim’s testimony and her prior statements and argued that the inconsistencies

amounted to reasonable doubt. Id. Trial counsel’s cross-examination of the victim based upon this

theory of defense does not fall below “the range wide of professional assistance.” State v. Burns,

6 S.W.3d 453, 462 (Tenn. 1999).

However, we must address trial counsel’s cross-examination of Ms. Smith, which directly

led to admission of the audiotape. In the Appellant’s direct appeal, this court, in concluding that the

trial court did not err in admitting the audiotape of the interview with Sergeant White, observed that:

In his cross-examination of Ms. Smith, defense counsel inquired in great detail about

certain portions of the audiotape which apparently were not transcribed. As part of

the effort to demonstrate the victim’s purported inconsistencies, defense counsel

made much of some matters which were on the tape but not part of the transcription.

The mode of counsel’s questioning suggested that the transcription was incomplete

and somehow misleading. While we do not appreciate the relevance that defense

counsel apparently believed existed in the differences between the transcript and the

tape of Ms. Smith's interview with the victim, we nevertheless decline to find error

in the tape's admission.

Robert D. Walsh, No. W1999-01473-CCA-R3-CD. Moreover, this court noted:

[A]t times counsel’s cross-examination about variances between the transcription and

the taped statement itself as well as his questioning about particulars of the victim’s

prior statement took portions of her statement out of their overall context.2 This

court has said that when cross-examination about a prior statement tends to distort

the meaning of the statement, the portions of the statement necessary to place the

excerpts in context may be introduced. See State v. Boyd, 797 S.W.2d 589, 593-94

(Tenn. 1990).

Id.

2

Defense counsel laboriously cross-examined M s. Smith about particulars of the statement. It appears that at

times, defense counsel’s questioning tended to confuse the witness because counsel asked questions in succession which

dealt with unrelated aspects of the victim’s prior statement. This mode of cross-examination obfuscated the rehabilitative

nature of the witness’s testimony on direct about the victim's prior statement.

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After having reviewed the audiotape,3 we, likewise, do not appreciate the relevance that trial

counsel apparently believed existed in the differences between the transcript and the tape of Ms.

Smith’s interview with the victim. The testimony elicited from Ms. Smith by trial counsel during

cross-examination did not assist in the Appellant’s theory of defense, as it permitted introduction of

the audiotape,4 which was admissible as a prior consistent statement of the victim. See Crisp v.

Duckworth, 743 F.2d 580, 587 n.8 (7th Cir. 1984). The case centered on the victim’s word against

the Appellant’s. Trial counsel incorrectly assumed that such a “laborious” cross-examination would

not lead to admission of the tape. Trial counsel is charged with an understanding of proper trial

procedure and rules of evidence. See Brown v. State, 877 P.2d 1071, 1073 (Nev. 1994). Moreover,

if the purpose of this extensive cross-examination was to show the inconsistencies between the

audiotape and the transcript, trial counsel never moved to admit the transcript into evidence. Robert

D. Walsh, No. W1999-01473-CCA-R3-

CD, n. 3.

Although, the Appellant’s contention concerning the audiotape does have some merit, its

admission was not sufficiently damaging to deprive the Appellant of “a trial whose result is reliable.”

Strickland, 466 U.S. at 687. While we agree with the Appellant that the audiotape contained

references to uncharged sexual conduct, the victim testified to most of these instances on direct-

examination, as permitted by State v. Rickman, 876 S.W.2d 824, 828 (Tenn. 1994). In addition to

the testimony concerning the two offenses elected by the State,5 the victim testified that,

approximately fifteen to twenty times, the Appellant “would rub me up against him, against like his

private parts.” She also testified that he “fingered my private” on one occasion while they were

watching television. According to the victim, on more than one occasion, she and the Appellant

showered together, and he would wash her “all over” and have her wash “his private part.”

Additionally, she testified that, once when she and the Appellant were swimming in the pool, “he

3

The Appellant has not included a copy of the tape in the appellate record. At the post-conviction hearing, post-

conviction counsel had the original tape in his possession, and the post-conviction court apparently listened to the tape

before denying relief by written order. However, the tape was not admitted into evidence in the post-conviction court,

as post-conviction counsel stated that it must be returned to this court within thirty days. W e are unable to comprehend

why post-conviction counsel was unable to have the tape copied or transcribed and authenticated in accordance Rules

902 and 1005, Tennessee Rules of Evidence. Nonetheless, this court may take judicial notice of its records on file, .i.e.,

the record from the Appellant’s direct appeal. Tenn. R. App. P. 13(c); Givens v. State, 702 S.W.2d 578, 579 (Tenn.

Crim. App. 1985).

4

As noted on direct appeal, “[t]he tape of the interview Ms. Smith conducted with the victim was a prior

consistent statement of the victim. As such it qualified for admission for rehabilitative purposes just as Ms. Smith’s

testimony did.” Robert D. Walsh, No. W 1999-01473-CCA-R3-CD. However, it was clear that the State did not intend

on introducing the audiotape, as the existence of the audiotape was only discovered during trial counsel’s cross-

examination of Ms. Smith. Moreover, the trial court found that “the defense had placed the tape’s contents at issue by

questioning whether there were inconsistent statements of the victim on the tape.”

5

The Appellant was indicted in “open-dated” counts for rape of a child and aggravated sexual battery. W ith

regard to rape of a child, the State elected to proceed “on the attempted vaginal penetration that resulted in anal

penetration.” As to aggravated sexual battery, the State elected to proceed upon the Appellant’s act of masturbation,

which involved sexual contact of the Appellant by the victim.

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would go down there near my private and like lick it or something.” Moreover, we cannot ignore

the fact that trial counsel’s strategy was partially successful, as the Appellant was found not guilty

of rape of a child. We conclude that the Appellant did not establish any prejudice resulting from the

alleged deficiency. This claim is without merit.

II. Juror Misconduct

Next, the Appellant argues that a deputy sheriff's comments to the jury during deliberations

tainted the verdict and, therefore, he is entitled to a new trial. At the post-conviction hearing, Linda

Busby, who served as juror at the Appellant’s trial, testified that, during deliberations, a Shelby

County Sheriff’s Deputy entered the jury room. At that point, the jury had voted unanimously for

not guilty on the rape of a child charge. On the charge of aggravated sexual battery, the vote was 11

guilty to 1 not guilty; Juror Busby casting the not guilty vote. Upon the deputy sheriff’s arrival into

the jury room, one of the jurors told the deputy, who was serving as a court officer, that the jury

could not reach a decision. According to Juror Busby, the deputy sheriff responded “almost jokingly

or kind of laughed and said you have to or you must or something to that effect. You have to reach

a decision.” After the deputy sheriff exited the room, deliberations resumed, ballots were again cast,

and Juror Busby changed her vote to guilty.

When there is extraneous prejudicial information or any outside influence is brought to bear

on a juror, the validity of the verdict is questionable. State v. Parchman, 973 S.W.2d 607, 612

(Tenn. Crim. App. 1997). Rule 606(b) of the Tennessee Rules of Evidence prohibits a juror from

giving testimony on “any matter or statement occurring during the course of the jury’s deliberations

or to the effect of anything upon any juror’s mind or emotion as influencing” his or her vote. Tenn.

R. Evid. 606(b); see also State v. Blackwell, 664 S.W.2d 686, 689 (Tenn. 1984). However, the rule

allows a juror to “testify on the question of whether any extraneous prejudicial information was

improperly brought to the jury’s attention [or] whether any outside influence was improperly brought

to bear upon any juror. . . .” Tenn. R. Evid. 606(b).

If it is shown that one or more jurors has been exposed to extraneous prejudicial information

or improper influence, there arises a rebuttable presumption of prejudice, and the burden then shifts

to the prosecution to explain the conduct or to demonstrate the harmlessness of it. Parchman, 973

S.W.2d at 612; State v. Young, 866 S.W.2d 194, 196 (Tenn. Crim. App. 1992). In order to shift the

burden to the prosecution to demonstrate the harmlessness of the communication with the jury, the

threshold question is whether the statement communicated to the jury was prejudicial to the

Appellant. Parchman, 973 S.W.2d at 612.

The Appellant asserts that the deputy sheriff’s statement to the effect that the jury must

“reach a decision” was prejudicial because it impermissibly imparted to the jury the idea that they

could not end with a “hung jury.” The Appellant argues that the he was deprived of the chance that

the jury might have been unable to reach a unanimous decision on the one count for which there was

a lone holdout voting not guilty, eliminating the possibility of a mistrial. Id. Our supreme court

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rejected the use of a jury charge that instructs minority voters to follow the majority voters. Id.

(citing Kersey v. State, 525 S.W.2d 139, 144 (Tenn. 1975)).

In the present case, it is undisputed that an improper communication occurred between the

deputy sheriff and the jury. Even if “jokingly,” what the deputy sheriff stated to the jury was that

they had to reach a verdict. When the improper communication was made, the taint of the jury

verdict was presumed. Id. at 613. It was then the State’s burden to affirmatively show that any

contact was harmless. Id.

On cross-examination by the State, Juror Busby testified that the jury returned a verdict

approximately three hours after the trial concluded. She stated that the deputy sheriff did not coerce

the jury, and his comment appeared to be a joke. According to Busby, the comment “made you

realize that you did have to make a decision.” Busby went on to testify that the comment did not

cause her to change her vote from not guilty to guilty, but rather she changed her vote based upon

her own independent judgment “following any interchange with the other eleven members of the

jury[.]” She stated that “[i]f [she] felt in [her] heart of hearts that [the Appellant] was not guilty of

committing any crime, [she] would [not] have voted him guilty just to be in agreement with eleven

other people[.]” She also stated that she had served on juries in the past, and she knew that she was

not required to change her vote, as a hung jury was a possibility.

The Appellant, relying on the separate concurrence by Judge Smith in Parchman, contends

that “it was improper for the post conviction court to consider the testimony of Ms. Busby regarding

her deliberative process.” See id. at 615 (Judge Smith concludes that the misconduct of the juror and

the bailiff resulted in prejudice to the judicial process and required a new trial even though the

misconduct in all probability did not alter the results of the trial). In Parchman, the majority

concluded that the State failed to carry its burden to affirmatively show that the contact was

harmless. Id. at 614. However, the majority indicated,

It would have been possible to call the juror to testify whether they were influenced

by the statement relayed to them by the male juror. Also, the male juror could have

confirmed that the statement made by the bailiff was not prejudicial, and this juror

could have testified as to what statement he then made to the remaining jurors.

Id.

We are unable to perceive of how the State would be able to rebut the presumption of

prejudice if the State were not permitted to have Juror Busby testify as to how the statement

influenced her. Accordingly, we conclude that the post-conviction court properly considered the

testimony of Juror Busby. Moreover, the State has carried its burden in showing the harmlessness

of this communication.

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CONCLUSION

Based upon the above analysis, we affirm the judgment of the post-conviction court denying

the Appellant post-conviction relief.

___________________________________

DAVID G. HAYES, JUDGE

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