State of Tennessee v. Brandon Robert Vandenburg

08/08/2019

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

January 17, 2019 Session

STATE OF TENNESSEE v. BRANDON ROBERT VANDENBURG

Appeal from the Criminal Court for Davidson County

No. 2015-C-1517 Monte Watkins, Judge

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No. M2017-01882-CCA-R3-CD

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A Davidson County jury convicted Brandon Robert Vandenburg, Defendant, of

five counts of aggravated rape, two counts of aggravated sexual battery, and one count of

unlawful photography. On appeal, Defendant argues the following: (1) the trial court’s

denial of his motion to dismiss the superseding indictment violated his right to due

process and protection from double jeopardy and violated Tennessee Rule of Criminal

Procedure 8; (2) prosecution on the superseding indictment created a realistic likelihood

of vindictive prosecution; (3) the trial court erred in excluding the testimony of Dr. J.

Sidney Alexander; (4) the trial court erred by denying Defendant’s request to question

potential jurors about recent rape cases in national news and by failing to timely

admonish prospective jurors; (5) the trial court erred in denying Defendant’s motion to

suppress the June 27, 2013 interrogation and evidence obtained based on that

interrogation; (6) the trial court erred in excluding Defendant’s voicemail on Joseph

Quinzio’s cell phone; (7) the trial court erred by instructing the jury on the requisite

culpability for criminal responsibility and on “presence and companionship” as it relates

to criminal responsibility; (8) the State committed prosecutorial misconduct during

closing arguments; (9) the evidence was insufficient for a rational juror to have found

Defendant guilty beyond a reasonable doubt; (10) Tennessee Code Annotated section 39-

13-605 is void for vagueness; (11) the trial court erred in ordering Defendant to serve an

excessive sentence; (12) the trial court erred in denying Defendant’s motion to recuse;

(13) the trial court erred by excluding evidence of the co-defendants’ prior bad acts; (14)

the trial court erred by denying Defendant’s Tennessee Rule of Evidence 412 motion; and

(15) the cumulative errors in Defendant’s trial warrant a new trial. After a thorough

review of the facts and applicable case law, we affirm the trial court’s judgments in

counts one through four and six through eight. Although not raised by either party, we

determine that Defendant’s conviction of aggravated rape in count five must be vacated.

We modify the conviction in count five to attempted aggravated rape and remand to the

trial court for sentencing in count five.1

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

in Part, Vacated in Part and Remanded

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which THOMAS T.

WOODALL and TIMOTHY L. EASTER, JJ., joined.

Randall E. Reagan, Knoxville, Tennessee (on appeal), Troy Bowlin, Morristown,

Tennessee, and Albert Perez, Jr., West Covina, California (at trial) for the appellant,

Brandon Robert Vandenburg.

Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Senior Assistant

Attorney General; Glenn R. Funk, District Attorney General; and Tom Thurman and Jan

Norman, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

I. Factual and Procedural Background

This appeal stems from Defendant’s participation in the aggravated rape,

aggravated sexual battery, and unlawful photography of the victim, E.L.,2 along with Co-

defendants Corey Batey, Jaborian McKenzie, and Brandon Banks. In August 2013, the

Davidson County Grand Jury indicted Defendant and his co-defendants on five counts of

aggravated rape, two counts of aggravated sexual battery, one count of tampering with

evidence, and one count of unlawful photography. Defendant and Co-defendant Batey

proceeded to trial in January 2015. The jury found Defendant guilty of four counts of

1

After the jury returned a verdict in the previous trial, the trial court granted a new trial. The

State then obtained a superseding indictment which included five counts of aggravated rape and several

other offenses. The State made an election of offenses in both trials. In the first trial, the State elected to

proceed in count four with “the penile-vaginal penetration of the victim by Mr. Batey.” The jury in the

previous trial found Defendant guilty as charged with the exception of count four in which the jury found

Defendant guilty of attempted aggravated rape, a lesser included offense of aggravated rape. In the

subsequent trial, the State elected to proceed in count five with the penile-vaginal penetration of the

victim by Mr. Batey, and the jury found Defendant guilty of aggravated rape in count five. Because the

jury in the previous trial found Defendant guilty of the lesser included offense of attempted aggravated

rape in count four, Defendant’s conviction of aggravated rape for the same particular incident in count

five of the subsequent trial violates double jeopardy principles.

2

It is the custom of this court to refer to victims of sexual crimes by their initials to protect their

identity. We intend no disrespect.

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aggravated rape, one count of attempted aggravated rape, two counts of aggravated

sexual battery, one count of tampering with evidence, and one count of unlawful

photography. On June 23, 2015, the trial court granted Defendant’s motion to declare a

mistrial3 because the jury foreperson failed to disclose that he had been named a victim of

statutory rape in a prior criminal case. The trial court determined that the jury

foreperson’s conduct “g[ave] rise to a presumption of bias” and that the foreperson was

not “a fair and impartial juror.”

On July 7, 2015, the Davidson County Grand Jury issued a second indictment that

charged Defendant and his co-defendants with five counts of aggravated rape, two counts

of aggravated sexual battery, and one count of unlawful photography. Defendant

proceeded to trial in June 2016.

Jury trial

Captain Donnie Harville4 testified that he worked for the Vanderbilt Police

Department (VPD) in the Investigation Division. Captain Harville explained that the

VPD had “a memorandum of understanding with [the Metro Nashville Police

Department] where they investigate certain crimes for the [VPD] when major felonies

happen on campus. They usually come in and assist us or they can take lead over the

investigation.” Captain Harville explained that the VPD began investigating the current

offenses because “[t]he Housing Unit was reviewing the video surveillance on the NICE

System,5 and it came across some suspicious activity, and they alerted the [VPD] to

investigate.” He learned of the video on the morning of June 26, 2013. When Captain

Harville reviewed the June 23, 2013 surveillance footage from multiple cameras in

Gillette Hall, a dormitory for athletes on Vanderbilt’s campus, he observed “four males

carrying an unconscious female into Gillette Hall.”

Captain Harville identified the DVDs that contained the surveillance footage from

multiple cameras in Gillette Hall during the time period that the offenses occurred. He

testified that the video surveillance footage depicted a vehicle approaching one entrance

3

Defendant’s motion for mistrial or to set aside the verdict was not included in the appellate

record. Additionally, a transcript of the evidentiary hearing related to Defendant’s motion was not

included in the appellate record. The appellant bears the burden of preparing an adequate record on

appeal, see State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993), which includes the duty to “have

prepared a transcript of such part of the evidence or proceedings as is necessary to convey a fair, accurate

and complete account of what transpired with respect to those issues that are the bases of appeal.” Tenn.

R. App. P. 24(b).

4

Captain Harville testified that, at the time of the offenses, he held the rank of lieutenant

detective at the VPD.

5

Captain Harville explained that the NICE system was Vanderbilt’s video surveillance system in

the campus dorms and buildings.

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of the dorm. A person, whom Captain Harville identified as Defendant, exited the

vehicle and attempted to enter the dorm by scanning an ID card. The video surveillance

footage also depicted Defendant speaking with two individuals, Co-defendants McKenzie

and Banks, outside of the dorm. Another individual, whom Captain Harville identified as

Co-defendant Batey, approached Defendant. The video then depicted Defendant carrying

an unconscious female from the vehicle into the dorm. Video surveillance footage from

inside Gillette Hall depicted Defendant carrying the unconscious female, whom Captain

Harville identified as E.L, into the dorm with Co-defendants McKenzie, Banks, and

Batey. Co-defendant McKenzie pushed the elevator button while Defendant carried E.L.

Defendant and Co-defendant Banks entered the elevator with E.L. and rode it to the

second floor. Co-defendants Batey and McKenzie later joined Defendant, Co-defendant

Banks, and E.L. on the second floor. On cross-examination, Captain Harville agreed that

Defendant appeared to struggle to carry E.L. while he waited for the elevator to arrive on

the first floor of Gillette Hall.

After Defendant and Co-defendant Banks arrived on the second floor, Defendant

picked E.L. up off the elevator floor and placed her on the hallway floor. The video of

the second-floor surveillance camera depicted Co-defendant Banks taking a photograph

of E.L. on his cell phone while she lay on the hallway floor. Defendant and Co-

defendant Banks then picked up E.L. and carried her down the hallway. Surveillance

footage then depicted Defendant carrying E.L. into Room 213 at 2:37 a.m. Co-

defendants Banks and Batey followed Defendant into the room. Around 3:09 a.m.,

Defendant left Room 213 with a towel on his head and approached one of the

surveillance cameras. Defendant placed the towel on the camera to block its view; by

3:26 a.m., someone had removed the towel. During cross-examination, Captain Harville

stated that surveillance footage depicted Defendant experiencing “some type of emotion”

around 3:13 a.m.

Around 3:14 a.m., the surveillance video in East Hall dormitory depicted Chris

Boyd and Michael Retta exit Mr. Boyd’s room; Mr. Boyd had a cell phone in his hand.

Dillon van der Wal exited his room and spoke with Mr. Boyd and Mr. Retta. A few

minutes later, the surveillance video depicted Mr. Boyd, Mr. Retta, and Mr. van der Wal

exiting East Hall around 3:18 a.m. At 3:21 a.m., the surveillance video in Gillette Hall

depicted Defendant walking to the main lobby of the second floor and opening the door

for Mr. Boyd, Mr. van der Wal, Mr. Retta, and Deandre Woods.

At 4:16 a.m., the surveillance video in East Hall depicted Defendant standing in a

hallway speaking with Mr. van der Wal, Austyn Carta-Samuels, and Mr. Boyd. From

4:52 a.m. to 5:14 a.m., E.L. exited Room 213, entered the bathroom, and either returned

to Room 213 or walked around the hallway several times. Around 11:50 a.m., E.L., who

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had entered Room 214 around 8:00 a.m., left with another female, exited Gillette Hall,

and drove off in her vehicle which was parked in front of the dorm.

On cross-examination, Captain Harville testified that he had asked Kevin Colon,

an athletic department official, to bring Defendant to the VPD office. Captain Harville

then introduced Defendant to Detective Jason Mayo and Sergeant Michael Shreeve. On

redirect examination, Captain Harville explained that he met Defendant outside of a VPD

administration building, where administrative staff in plain clothes worked.

G.L. Black testified that, in June 2013, he worked at Vanderbilt University as an

Associate Dean and Director of Student Conduct and Academic Integrity. Mr. Black

explained that his role at Vanderbilt involved “reviewing and resolving student violations

of university policy[.]” Mr. Black received regular reports from “different entities on

campus” that concerned academic or nonacademic misconduct. Around 4:30 p.m. on

June 24, 2013, Mr. Black learned of “some video footage” that pertained to student

misconduct. To begin his investigation, Mr. Black viewed “a few video clips that . . .

showed a woman, who appeared to be incapacitated in some way, . . . being carried into a

residence hall by several males.” On June 25, Mr. Black “convened a group of people in

the middle of the day to look at the video to try to help identify these students . . . on the

video.” The group did not include any VPD officers but did involve three athletic

department officials—David Williams, Candace Lee, and Mr. Colon. Mr. Black arranged

for nine students identified on the video to come to his office to discuss the footage that

afternoon: Defendant; Co-defendants McKenzie, Banks, and Batey; Jacob Bernstein; Mr.

van der Wal; Mr. Boyd; Deandre Woods; and Mack Prioleau. Mr. Black met with the

students individually and recorded the interviews.

During his interview with Mr. Black, Defendant stated that he saw E.L., whom he

had met previously at Tin Roof, a local bar, on the night of June 22. He explained that

both he and E.L. were intoxicated that night. They attempted to get into her apartment

but were unable, so Defendant drove them in E.L.’s vehicle to Gillette Hall. Defendant

told Mr. Black that E.L. was not very coherent but had not passed out during the drive.

Once they arrived at Gillette Hall, Co-defendants McKenzie, Batey, and Banks helped

Defendant carry E.L. to his room on the second floor. Defendant told Mr. Black that they

put E.L. in his bed; he then went to East Hall to spend the night because E.L. had thrown

up in the room. Defendant denied that he or any of the Co-defendants had sexual contact

with E.L., took photographs of her, or had sexual intercourse with her. Later in the

interview, Defendant explained that he covered up the security camera on the second

floor of Gillette Hall because he “wasn’t thinking clearly” and “there was a girl passed

out in [his] room.” Defendant gave a signed, written statement to Mr. Black that

reiterated his verbal statement. On the evening of Friday, June 28, Mr. Black placed

Defendant on interim suspension from Vanderbilt University.

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Detective Mayo testified that he had worked for the Metro Nashville Police

Department (“MNPD”) since 2000. In June 2013, Detective Mayo worked in the Sex

Crimes Unit of the MNPD. On June 26, 2013, Detective Mayo received a phone call

from his supervisor, Sergeant Shreeve, around 2:30 p.m. Sergeant Shreeve asked

Detective Mayo to respond to the VPD’s administrative building. When Detective Mayo

arrived, he met with Sergeant Shreeve and a VPD officer. He observed several still shots

obtained from the surveillance videos while another officer interviewed E.L. With the

assistance of the VPD and other Vanderbilt officials, Detective Mayo identified the

individuals depicted in the still photographs. Detective Mayo described E.L. as

“somewhat confused” and “dumbfounded” about the events of June 23. Detective Mayo

noted that because the still photographs were timestamped, he could estimate when the

offenses occurred. He estimated that eighty to ninety hours elapsed between the time

when the offenses occurred and when the VPD and the MNPD interviewed E.L.

Detective Mayo asked E.L. to consent to a medical-legal examination at Vanderbilt

University Hospital. After the examination, E.L. retrieved clothing that she wore during

the offenses “[f]or possible evidence collection.”

On the morning of June 27, Detective Mayo and Sergeant Shreeve returned to the

VPD administrative building and interviewed several individuals, including Defendant, in

Captain Harville’s office. During the interview, Defendant initially stated that he “might

have taken a picture” of E.L., but if he did, he deleted the photograph. Later during the

interview, Defendant stated the following:

They helped me bring her up to the room and -- man, I can’t even

talk about this s[**]t. Right as I got in there, I changed to my pajamas. At

some point, they told me [Co-defendant McKenzie] took off his shirt. He

told me -- after we all got interrogated, they told me . . . hey we all need to

get the same story, we need to . . . have an explanation for why [Co-

defendant McKenzie] took off his shirt and all this stuff.

And -- and anyways, so as I brought her in there, she was on the

floor throwing up and I sat on my bed. My roommate was there. He kind

of woke up a little bit. I mean I’m sure he saw me sitting on my bed. And

she was on the floor and they just -- they turned her over and they were just

messing with her and slapping her leg or slapping her butt and fingering her

and s[**]t. And I don’t -- honestly, I don’t even know everybody -- who

was [there] because at one point they turned off the light. And after that,

they’re all laughing about it and -- I don’t know if they had sex with her or

not. I couldn’t tell. I was pretty inebriated.

....

-6-

And they were like, “You need to sleep -- you need to sleep in here

with her and act like nothing happened and all this stuff. And at one point,

like I know you guys saw like I -- I put the towel over the camera ‘cause

right before they left, I wanted them to help take her back to the room or

something and that’s when I called [Mr.] Boyd and [Mr. van der Wal]

because I mean I knew something bad just really happened and it like -- I

was just trying to bring her up to my room to put her in the bed and like I

couldn’t carry her myself and like -- just f[****]d up, man. Like I sat there

and like saw it happening and I didn’t tell them to stop, you know, but I

d[**]n well didn’t do anything. I didn’t even touch the girl.

....

I didn’t know what to do. I -- you know, I was intoxicated. I mean

obviously you see the camera footage. But I didn’t do anything to stop it,

and that’s when I called [Mr. Boyd] and -- [Mr. Boyd] and [Mr. van der

Wal] and they said they would be right up and that’s when I told them.

Like I told them everything that happened, that they did all this stuff and

that I just needed help. And -- and they told me to sleep in . . . his room

and we’ll talk about it in the morning.

And I texted her in the morning. And all those guys talked to me the

next day, the guys that did it. They’re like, “You need to be quiet. You

can’t talk about this stuff. You need to have sex with her to like try to

cover it up like whatever happened.” And so the next day I had her come

over. I don’t know if she told you that or not. And we ended up having sex

unprotected and that was that. And after they investigated us or they called

us in. They told me I needed to get my story straight and say nothing

happened. And they said that [Co-defendant McKenzie] took his shirt off

because I threw water on him. And say that I covered up the camera

because -- I don’t even know why.

And I just feel -- I’m just scared because . . . they’re going to say

that like I did something and it’s like -- I know at least my roommate was

there for a little bit but he was sleeping. But at least he saw that I was on

the bed the whole time. I didn’t even touch her. Like I have no reason to.

She -- like we had sex the next day. . . . I don’t have sex with a girl

throwing up. That’s disgusting.

Defendant again stated that he did not think that Co-defendants Banks, Batey, or

McKenzie took photographs of E.L. during the offenses. Defendant told Detective Mayo,

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however, that he took a video of his co-defendants digitally penetrating E.L. and that he

sent the video to Mr. Boyd and Mr. Carta-Samuels. Defendant also admitted to flushing

condom wrappers down the toilet after he placed a towel over the security camera in the

hallway. Defendant did not recall that E.L. made any noise during the offenses.

Defendant consented to allow Detective Mayo and Sergeant Shreeve to inspect his phone

and to collect a DNA sample.

After the interview, Captain Harville accompanied Defendant to his dorm room to

collect his cell phone. Detective Mayo met E.L. at the Vanderbilt University Crisis

Center; when he informed E.L. that she had been raped and sexually assaulted, she was

“[p]retty shocked[,]” “visibly upset[,]” and “[c]ried.” After speaking with E.L., Detective

Mayo returned to the VPD administration building and collected Defendant’s phone.

Around 2:00 p.m., Detective Mayo, Sergeant Shreeve, and Captain Harville went to

Room 213 in Gillette Hall and met with Defendant and his roommate, Mr. Prioleau.

With the consent of Defendant and Mr. Prioleau, the officers examined Room 213.

Detective Mayo asked for the MNPD Identification (ID) Unit to come to the room to

collect evidence. On June 28, Detective Mayo executed search warrants to gather digital

data from Co-defendants McKenzie, Batey, and Banks’ cell phone. Detective Mayo also

returned to Room 213 to search Defendant’s laptop computer.

On cross-examination, Detective Mayo testified that he interviewed Co-defendant

McKenzie on July 7, 2013, September 9, 2013, and July 14, 2014. He also interviewed

E.L. and Mr. Prioleau. During his investigation, Detective Mayo collected Mr. Boyd’s

and Mr. Carta-Samuels’ phones. Detective Mayo agreed that he asked Defendant to

make a controlled phone call to Co-defendant Batey and that Defendant complied.

Detective Mayo recovered an iPhone 4 from Joseph Quinzio.

Investigator Felicia Evans worked for the MNPD as a crime scene investigator in

the Crime Scene Investigation Unit at the time of the offenses. On June 27, 2013,

Investigator Evans responded to Gillette Hall to assist Investigator Sharon Tilley.

Investigator Tilley walked through the scene first with Detective Mayo, then with

Investigator Evans. Investigator Tilley photographed the room; later, she and

Investigator Evans marked items for collection of evidence. Investigators Evans and

Tilley also performed a panoscan6 of Room 213 and used an “alternative light source” to

look for body fluids but did not find any. Investigator Evans photographed a “container”

or “tub” near a desk that contained “vomitus-type material on the bottom of the tub.” She

also collected a scraping of the substance from the bottom of the container. Additionally,

6

Investigator Evans explained that a panoscan was a 360-degree photograph of an area. She

stated that a panoscan “allows for any still photographs that were taken to be embedded into that actual

scan.”

-8-

Investigators Evans and Tilley processed the room for latent prints and collected a green

towel and a red and white towel. Investigator Evans testified that the red and white towel

smelled strongly of urine. When Investigator Evans scanned the green towel with the

alternative light source, the light indicated the presence of “bodily fluid or semen” near

the edge of the towel. She also processed a condom box and loose condoms found in a

drawer for latent prints. Further, Investigator Evans found latent prints on the interior

side of the door. On cross-examination, Investigator Evans clarified that she collected

two fingerprints on the condom box.

Detective Chad Gish testified that he worked for the MNPD in the Surveillance

and Investigative Support Unit of the Criminal Investigative Division. Defendant and the

State stipulated that Detective Gish was an expert in digital forensics. Detective Gish

explained that the Surveillance and Investigative Support Unit “work[ed] a lot of major

crimes, especially crimes that have a digital aspect involved, such as cell phones,

computers, video anything of that nature.” In July 2013, Detective Mayo and Sergeant

Shreeve asked Detective Gish to assist in digitally analyzing electronic devices they had

seized while investigating the current offenses. Detective Gish requested Defendant’s

interview with Detective Mayo and Sergeant Shreeve at the VPD administrative office as

well as the surveillance video from Gillette Hall. With these items of evidence, Detective

Gish created a timeline of the offenses. Next, Detective Gish connected the electronic

devices that MNPD had seized to “a forensic piece of software[] to extract the data from

that telephone.” Detective Gish was unable to recover any deleted photographs or videos

from Defendant’s iPhone, but he found other evidence that the phone had previously held

photographs or videos related to the offenses, such as “references to ‘rape’ in iMessages”

and “numerous, numerous[] calls” during the timeframe of the offenses. Detective Gish

also observed that “[t]he content of the messages seemed to be that whoever was

responding to these messages had seen a video[] or a picture.” Additionally, Detective

Gish “saw references in the recovered text message of this timeframe[] . . . to Facetime.”7

Detective Gish also examined the search history of Defendant’s iPhone and found that a

user had searched Google on June 26, 2013 for the following phrase: “Can police retrieve

deleted picture messages.” After the Google search engine provided the user with a list

of websites that met the search criteria, the user went to a website that discussed “police

mine deleted texts from your cell phone[.]” The user also searched on The Student Room

web server for the following phrase: “Police Power/capabilities on Recovering Deleted

Messages from a Sams[u]ng phone.” Detective Gish continued to examine Defendant’s

iPhone and found “a lot of missing images that had been deleted” from Defendant’s

phone during the timeframe of the offenses. Further, Detective Gish examined a

7

Detective Gish explained that Facetime is “basically, a phone call, a video phone call, streamed

over the web.”

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“thumbnail database”8 on Defendant’s iPhone and “recovered images from this thumbnail

database[] that were taken in the timeframe of 2:38 to 3:10 in the morning, inside the

room with the victim” from the day that the offenses occurred. Detective Gish was able

to recover “nine images that were taken from [Defendant]’s cell phone out of the

thumbnails”; the thumbnails were from photographs or still images of videos. Detective

Gish testified that the thumbnails depicted the following, in pertinent part:

 E.L. lying on the carpet in the hallway of the second floor of Gillette Hall with

her skirt pulled up, her underwear removed. Her buttocks are red and her top

is pulled up, exposing her breasts;

 E.L. lying on the floor of Defendant’s dorm room with Co-defendant Batey

kneeling over her while touching his genital area;

 E.L. lying on the floor of Defendant’s dorm room with her skirt pulled up

above her waist, her underwear removed, and her legs “spread open.” Co-

defendant Banks’s hand is depicted in the photograph holding a cell phone;

 E.L. lying face down with her underwear removed, her skirt pulled up, and her

legs spread open with Co-defendant Batey penetrating E.L.’s vagina with his

fingers;

 E.L. lying on the floor of Defendant’s dorm room with her underwear

removed, her skirt pulled up, and a bottle penetrating her anus;

 E.L. lying face down with her underwear removed and Co-defendant Batey

penetrating E.L.’s vagina with his fingers while Co-defendant Banks takes a

photograph with his cell phone;

 E.L. lying on the floor of Defendant’s dorm room with her underwear

removed, her skirt pulled up, and Co-defendant Batey kneeling near her head

with his pants pulled down to his waist and holding his penis in his hand;

 E.L. lying in the hallway of the second floor of Gillette Hall with her skirt

pulled up.

Detective Gish also forensically examined Co-defendant Batey’s iPhone; he

extracted data that included messages, photographs, and videos. Detective Gish

discovered that “there were images taken from [Co-defendant] Batey’s phone, but like

[Defendant]’s they had been deleted and they weren’t recovered.” Using the same

process of recovering the thumbnail database on Co-defendant Batey’s iPhone, Detective

Gish was able to recover thumbnail images. He described the images as the following:

8

Detective Gish explained that computers do not delete the thumbnail views of files when a user

deletes the original file. Similarly, iPhones do not delete the thumbnail images of files that have been

deleted from the phone’s memory.

- 10 -

 E.L. lying in Defendant’s dorm room with her skirt pulled up, her underwear

removed, and her top pulled up;

 E.L. lying on her back with her bra pulled up or removed to expose her breasts;

 E.L. lying on her back while Co-defendant Banks spreads her labia open and

takes a photograph of her vagina;

 E.L. lying in Defendant’s dorm room with her underwear removed and her

skirt removed or pulled up so that her lower body is exposed. Her buttocks

appeared red;

 E.L. lying on her stomach in Defendant’s dorm room while Co-defendant

Batey spread her buttocks open to expose her anus and labia;

 E.L. lying in the hallway of the second floor of Gillette Hall with her

underwear removed, her skirt pulled up, and her buttocks appeared red;

 Close-up photographs of E.L.’s genitals and anus.

Detective Gish conducted the same forensic digital exam on Co-defendant Banks’s

cell phone as he had conducted on Defendant’s and Co-defendant Batey’s iPhones.

Similarly, he was able to recover thumbnail images of deleted photographs or videos

from Co-defendant Banks’s phone. The thumbnail images depict the following:

 E.L. lying in Defendant’s dorm room with her shirt pulled up and Co-

defendant Batey kneeling near her head while touching his genital area;

 Two close-up images of E.L.’s buttocks with her underwear removed or pulled

down and her buttocks spread apart so that her anus and labia are exposed. Co-

defendant Batey is depicted digitally penetrating E.L.’s vagina;

 E.L. lying face down in Defendant’s dorm room with her underwear pulled

down below her thighs while Co-defendant Batey digitally penetrates her anus;

 E.L. lying in Defendant’s dorm room with her underwear removed, her top and

skirt pulled up while Co-defendant Batey kneels on a red and white towel;

 E.L. lying in Defendant’s dorm room with a bottle penetrating her anus;

 Multiple close-up photographs of Co-defendant Banks’s hand spreading E.L.’s

labia open to expose her vagina;

 E.L. lying on her back in Defendant’s dorm room while her face appears wet;

 E.L. lying on her back with her shirt pulled up to expose her breasts and an

object covering her face;

 E.L. lying on her back with her underwear and skirt removed while Co-

defendant Batey squats over her face with his underwear pulled down;

 A close-up image of Co-defendant Batey squatting over E.L.’s face with his

underwear pulled down;

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Detective Gish forensically examined Defendant’s laptop computer and found that

the internet browsing history had been deleted. However, he was able to recover “a

picture of the actual website that was accessed by the user.” Detective Gish observed

four “web page previews of pornography sites that were accessed” during the timeframe

of the offenses. Detective Gish learned that Defendant’s iPhone called or received calls

from the phones of Miles Finley and Mr. Quinzio during the timeframe of the offenses.

In July 2013, Detective Gish, Detective Mayo, and Sergeant Shreeve traveled to Palm

Desert, California, to speak with Mr. Finley and Mr. Quinzio and “to conduct search

warrants on the mobile devices and electronic devices of these two individuals[.]”

Detective Gish seized a MacBook Pro laptop from Mr. Quinzio; he conducted a

digital forensic analysis of the computer and found photographs or videos relating to the

offenses. One video was approximately twelve seconds long and was recorded at 2:35

a.m. on June 23; the file was labeled IMG_1398.mov, which corresponded to a file that

had been deleted from Defendant’s iPhone. The video depicts E.L. lying in the hallway

of the second floor of Gillette Hall mumbling incoherently with her skirt pulled up while

Co-defendant Banks takes a photograph of E.L.’s genitals on his phone. During the

video, Defendant says, “My phone’s motherf[**]king dead right now. My phone’s

motherf[**]king dead.” Detective Gish noted that the angle of this video and the

timeframe matched Defendant’s actions seen on the surveillance video from Gillette Hall.

Mr. Quinzio received another video from Defendant through iMessage that was

recorded at 2:40 a.m. on June 23; this video was labeled IMG_1400.mov and was almost

seven seconds in length. IMG_1400.mov depicts Co-defendant Batey digitally

penetrating E.L.’s anus with his right index finger in Defendant’s dorm room while

E.L.’s underwear is pulled down and her skirt is pushed up. E.L.’s left buttock appears

red. Defendant can be heard laughing while he films. Detective Gish noted that this

video also corresponded to a file that had been deleted from Defendant’s iPhone.

After Defendant sent these videos to Mr. Quinzio and Mr. Finley, the three men

had the following exchange on iMessage:

MR. FINLEY: UR gunna get in trouble

MR. FINLEY: Delete that s[**]t

MR. FINLEY: Lol

MR. QUINZIO: Yeah Brandon you a dumbass.

MR. FINLEY: Get out of there

- 12 -

MR. FINLEY: She could call rape so done.

MR. FINLEY: Soon

MR. FINLEY: Delete that s[**]t

MR. QUINZIO: Seriously!

....

MR. FINLEY: Dog kick that b[***]h out or gangbang her

MR. FINLEY: Don’t let her wake up

MR. QUINZIO: Raping girls at vandy

DEFENDANT: U gotta delete this text

Defendant sent a third video to Mr. Quinzio, Mr. Finley, Mr. Boyd, and Mr. Carta-

Samuels through iMessage; this file was labeled IMG_1401.mov. The video was

approximately forty-one seconds long and was recorded at 2:40 a.m. Detective Gish

determined that Defendant was the individual who recorded this video because “when he

points the phone down you see his blue jeans and his shoes that he was wearing in the

surveillance video.” When the video begins, E.L. is lying face down on the dorm room

floor with a plastic bottle penetrating her anus. Defendant laughs and says, “Squeeze that

s[**]t, squeeze that s[**]t, squeeze that s[**]t[,]” and Co-defendant Banks squeezes and

twists the bottle. Defendant says “I can’t do this shit bro” and laughs. Detective Gish

testified that another person in the room says, “Let’s go back to Tin Roof. Hey, do you

guys want to go back to Tin Roof?” Co-defendant Batey kneels on the left side of E.L.’s

body in his underwear. Defendant says, “Dude, I can’t do this. I can’t f[**]king do this

right now. Bro, you ain’t even hard, bro[,]” as Co-defendant Batey leans forward with

his hands near his genital area and then pulls away from E.L’s body. Detective Gish

testified that the video appeared to depict Co-defendant Batey penetrating E.L.’s vagina

with his penis. In response to the video, Mr. Finley messaged, “Lol[,]” and Defendant

responded, “FaceTime[.]”

During a message exchange with Mr. Quinzio on June 22 at 6:06 p.m., the evening

before the offenses, Defendant mentioned that he “smashed last night but didn’t.”

Defendant then sent the following messages to Mr. Quinzio, in pertinent part: “Ever since

that god damn pro hormone dude . . . .!”; “Limp..”; “I know..but like I was hard AF at

- 13 -

first”; “Well we gunna try again tonight cuz ima f[**]k a different girl”; “Ima make sure I

f[**]k tonight.” Detective Gish found another conversation between Defendant and Mr.

Quinzio on Mr. Quinzio’s laptop from June 26. During the message exchange,

Defendant asked Mr. Quinzio to “[s]end” “[a]ll 3[.]” In response, Mr. Quinzio sent

Defendant the three video files that Defendant had sent to Mr. Quinzio during the

offenses.

Detective Gish obtained the call log from Defendant’s iPhone and identified the

following phone calls that Defendant placed on June 23, in pertinent part:

Call recipient Time Length

Joseph Quinzio 2:48 a.m. None

Miles Finley 2:52 a.m. 0:10

2:53 a.m. 0:05

3:08 a.m. 0:02

Chris Boyd 3:14 a.m. 2:31

Austyn Carta-Samuels 3:17 a.m. 0:03

Miles Finley 3:18 a.m. 0:03

Austyn Carta-Samuels 3:19 a.m. None

Dillon van der Wal 3:19 a.m. None

3:19 a.m. 0:01

Joseph Quinzio 3:36 a.m. 0:33

Chris Boyd 4:01 a.m. 0:03

Corey Batey 4:13 a.m. 0:01

Detective Gish testified that these phone calls had been deleted, but he was able to

recover them from Defendant’s phone. Additionally, Detective Gish found a number of

calls to or from Co-defendant Batey on Defendant’s phone, some of which had been

deleted but were recovered:

- 14 -

Direction Date/Time Length

Missed June 23 1:54 p.m. None

Missed June 25 11:44 p.m. None

Outgoing June 25 11:45 p.m. 1:21

Missed June 25 11:50 p.m. None

Outgoing June 25 11:51 p.m. None

Outgoing June 26 4:42 p.m. 0:02

Incoming June 26 4:47 p.m. 0:39

Outgoing June 26 4:54 p.m. 0:08

Outgoing June 26 9:51 p.m. 0:06

Incoming June 26 9:52 p.m. 1:40

Outgoing June 26 9:57 p.m. 0:02

Outgoing June 26 9:57 p.m. 0:02

Outgoing June 26 11:13 p.m. 0:03

Missed June 26 11:35 p.m. None

Missed June 26 11:36 p.m. None

Outgoing June 27 10:00 a.m. 2:24

On June 27, 2013, a user of Defendant’s computer viewed a page labeled “sexual assault”

on the website of Southern Illinois University at Carbondale.

Detective Gish testified that he obtained an iPhone 4 from Mr. Quinzio, but this

phone did not contain any evidence relevant to his investigation. Detective Gish also

obtained an iPhone 5 from Mr. Quinzio. During his forensic analysis of this phone,

Detective Gish recovered a voicemail that Defendant left for Mr. Quinzio shortly after the

offenses occurred. This voicemail correlated to the thirty-three second phone call from

Defendant to Mr. Quinzio on June 23 at 3:36 a.m. Detective Gish also obtained an

iPhone from Mr. Finley during his execution of search warrants in California. Detective

Gish testified that Mr. Finley’s phone “had just been wiped” when he executed the search

warrant of Mr. Finley’s person. Detective Gish was unable to recover any evidence from

this phone during his forensic examination. Detective Gish also conducted forensic

analysis of computers found at Mr. Finley’s residence, but he found no evidence related

to the current offenses. Additionally, Detective Gish obtained and analyzed Mr. Carta-

Samuels’ phone, but again, he found no evidence related to the current offenses.

Detective Gish obtained and analyzed Mr. Boyd’s phone and found an iMessage

conversation between Defendant and Mr. Boyd. The conversation had been deleted, but

Detective Gish was able to recover it. The conversation began at 2:49 a.m. and ended at

3:21 a.m. and included the following exchange:

- 15 -

DEFENDANT: I’m coming

DEFENDANT: My phones at 1%

DEFENDANT: Meet me outside the [e]mergency door at east

MR. BOYD: Come get us

DEFENDANT: Ok I’m leaving now my phones gunna charge in my

room

MR. BOYD: I’m at Gillette

DEFENDANT: I’ll come out from of Gillette

MR. BOYD: Hurry

MR. BOYD: DDR hurry

On June 25 and 26, Defendant had the following conversation with E.L. over

iMessage:

E.L.: Are you okay? I’m worried.

DEFENDANT: No I’m not:( this is all so messed up like I didn’t do

anything and I feel like I’m getting blamed for stuff that didn’t even

happen. I just wanna cry

E.L.: That’s f[**]ked up. Want to come to the pool and talk about

it???

DEFENDANT: Me and a bunch of teammates are probably going to

get kicked off the team unless something changes

DEFENDANT: Not tonight, tomorrow can we?

E.L.: Definitely. Are you sure not tonight? If you tell me what

happened I might be able to help

E.L.: I don’t want anyone to get into trouble because of me

- 16 -

E.L.: It’s going to be okay!

DEFENDANT: Maybe I’ll call you later

E.L.: I’ll do everything I can to clear your name

DEFENDANT: I heard jakes spreading rumors and stuff idk y

E.L.: Seriously?

DEFENDANT: Idk it’s all rumors but this stuff is so whack I would

never do anything like that

....

E.L.: I just got contacted by vanderbilt women’s center wanting me

to come in so they can help me but I asked someone from student conduct

to come too so I can try to clear this up

DEFENDANT: Ok great this is such a mess, I’m never helping

anyone get home ever

DEFENDANT: Next time just not gunna care lol. I feel like I’m

getting punished for taking care of u that night. .

E.L.: You were just trying to help me I’ll tell them that.

E.L.: I understand why you’re upset. I’m trying my best to make it

right

E.L.: You should be!

DEFENDANT: I’m just frustrated

E.L.: I’ll take care of it.

....

E.L.: They’re going to show me the video

E.L.: So that should help

- 17 -

DEFENDANT: Ok cool

....

DEFENDANT: What happened today

E.L.: I don’t really know much more than you do

DEFENDANT: I thought u said u talked to everyone today and

watched the video?

E.L.: Yeah I didn’t end up seeing it and they didn’t really tell me

anything

DEFENDANT: That’s weird cuz [sic] they said u watched it this

afternoon

E.L.: They wouldn’t tell me anything I was so confused

DEFENDANT: Hmm that’s weird well I was told I wasn’t supposed

to talk to u till all this is over…:(

E.L.: Yeah me either

DEFENDANT: Alright then I guess we can’t talk right now…I wuld

[sic] never let what they’re saying happen to you that’s messed up

DEFENDANT: I’m so upset right now

....

E.L.: Why did y’all cover up the cameras

E.L.: I’m just so confused right now

Mr. Quinzio, testified that he had known Defendant since the age of thirteen. He

stated that in June 2013, he owned and used an iPhone 4. During the evening of June 22

and early morning of June 23, Mr. Quinzio did not converse with Defendant over

FaceTime. However, Mr. Quinzio received phone calls from Defendant during that

period. Defendant left a voicemail on Mr. Quinzio’s phone, but Mr. Quinzio stated that

- 18 -

he “couldn’t make out much of the story. [Defendant] was talking to others, as well as

[Mr. Quinzio]. And [Defendant] just told [Mr. Quinzio] to call him back[.]” The

voicemail was approximately thirty-three seconds long.

Approximately a week later, Defendant came to Mr. Quinzio’s house in

California, removed the video files from the computer, put them on a flash drive, and

attempted to delete and reinstall the “software” from Mr. Quinzio’s computer. Defendant

also drove Mr. Quinzio’s vehicle to retrieve his own vehicle. After Defendant drove Mr.

Quinzio’s vehicle, Mr. Quinzio discovered that his iPhone 4 was missing from his

vehicle. Defendant informed Mr. Quinzio that he would return Mr. Quinzio’s iPhone 4,

but Defendant did not do so. Defendant later informed Mr. Quinzio that the phone had

been destroyed, and Defendant purchased an iPhone 5 for Mr. Quinzio. Mr. Quinzio

stated that, based on his involvement in the current offenses, he entered a conditional

guilty plea to attempted accessory after the fact and received a sentence of eleven months

and twenty-nine days, suspended to unsupervised probation.

On cross-examination, Mr. Quinzio clarified that, in addition to leaving a

voicemail on his phone, Defendant called him early in the morning of June 23. Mr.

Quinzio agreed that, during the phone call, Defendant sounded intoxicated. Mr. Quinzio

also agreed that he told Detective Mayo that he had never seen Defendant that intoxicated

and that Defendant was not a big consumer of alcohol. He further agreed that he told

Detective Mayo that he knew “what was going on” and that it “was wrong[,]” but that

Defendant did not. Mr. Quinzio also agreed that Defendant asked him to send the videos

of the offenses back because Defendant did not remember what had occurred.

Co-defendant McKenzie testified that he currently lived in Mississippi and was

out on bond. In June 2013, Co-defendant McKenzie attended Vanderbilt University on a

football scholarship. He stated that Co-defendant Banks was his roommate and that he,

Co-defendant Banks, and Co-defendant Batey were best friends. He did not know

Defendant prior to June 23, 2013. On the evening of Saturday, June 22, Co-defendants

McKenzie, Banks, and Batey listened to music in McKenzie and Banks’ room in Gillette

Hall and drank alcoholic beverages. Later, the three co-defendants went to a party in

East Hall and consumed more alcoholic beverages. Co-defendants McKenzie, Banks,

and Batey returned to Gillette Hall with Batey’s friend, “Quela.” Co-defendant

McKenzie explained that they were “buzzed” from having consumed alcoholic

beverages, but they were able to walk and talk on their own. Co-defendant Batey and

“Quela” went to Co-defendant Batey’s room; Co-defendants Banks and McKenzie

returned to their room to change clothes and then left the dorm to purchase food. As Co-

defendants Banks and McKenzie returned to Gillette Hall with food for Co-defendant

Batey, they observed Defendant pulling up to the dorm and Co-defendant Batey exiting

Gillette Hall with “Quela[.]” Defendant informed Co-defendant McKenzie that “he had

- 19 -

been out to the Tin Roof and he’s pretty drunk, and he had this young lady in the car, and

he needed [their] help to get her to his room.” Co-defendant McKenzie stated that

Defendant did not have trouble communicating. Defendant and Co-defendant Banks

carried E.L. out of the vehicle, into Gillette Hall, up the elevator, and into the second-

floor hallway. Co-defendant McKenzie and Co-defendant Batey went up to the second

floor a few minutes later. Co-defendant McKenzie did not know E.L. but observed that

she was “passed out” and did not make any sounds while she was in Defendant’s room.

After Defendant carried E.L. into his dorm room, the co-defendants followed.

Defendant attempted to wake up his roommate, Mr. Prioleau. Co-defendant Batey began

touching E.L. and removing clothes. Co-defendant McKenzie identified himself in the

photographs of the offenses; he stood near the doorway and wore a white shirt and blue

and white shoes. He identified Defendant’s voice on the videos of the offenses;

Defendant stated, “We have this b[***]h in here[,]” and “We’re going to f[**]k her.”

Defendant then “grabbed condoms out of the dresser drawer and passed the box around.”

Co-defendant McKenzie testified that “everyone” took a condom. Co-defendant

McKenzie recalled that Co-defendant Batey digitally penetrated E.L.’s vagina and that

Co-defendant Banks squeezed a bottle that had been inserted into E.L.’s anus. Co-

defendant McKenzie also testified that Co-defendant Batey penetrated E.L.’s vagina and

mouth with his penis while Defendant filmed the offenses. Additionally, Co-defendant

McKenzie testified that, prior to sitting on E.L.’s face with his genitals exposed, Co-

defendant Batey stated that “he had never had his a[**] ate before.” Co-defendant

McKenzie testified that, after Defendant filmed Co-defendant Batey penetrating E.L.,

Defendant “grabbed his laptop and turned on porn, and grabbed a bottle of water and put

it on himself in an attempt to get a hard on.” Defendant was unable to achieve an

erection and stated that “he had done to[o] much coke.” Co-defendant Batey slapped

E.L.’s buttocks five or more times. When Co-defendant McKenzie stated that E.L. would

wake up, Defendant said “she’s not going to wake up” and also slapped E.L.’s buttocks.

Next, Co-defendant Batey stated that he was going to urinate on E.L., and he proceeded

to do that. Co-defendant McKenzie admitted that he took a condom from Defendant and

took a photograph and video on Co-defendant Batey’s phone at Co-defendant Batey’s

request.

Regarding Defendant’s apparent level of intoxication, Co-defendant McKenzie

stated that this was his first interaction with Defendant; however, he could tell that

Defendant was “kind of” drunk but stated that Defendant was able to communicate and

walk without assistance. Co-defendant McKenzie described Defendant as “amped,”

“aggressive,” and “bossy.” Co-defendant McKenzie stated that he was unaware that

Defendant’s roommate, Mr. Prioleau, was in the room until Defendant attempted to wake

him up. After the offenses occurred, Defendant and Co-defendants McKenzie and Banks

left Defendant’s room and went into the bathroom. Co-defendant McKenzie stated that

- 20 -

he and Co-defendant Banks were “freaking out” but that Defendant “assured” them that

“everything would be okay.” While they were in the bathroom, Defendant flushed their

condoms down a toilet. After Defendant and Co-defendants McKenzie and Banks left

the bathroom, Defendant asked them to help him carry E.L. back to her vehicle. Co-

defendants McKenzie and Banks refused, and Defendant “put a towel over his head and

went and covered the camera.” Co-defendant McKenzie testified that Defendant put E.L.

in the hallway outside his dorm room.

Defendant and Co-defendants McKenzie, Batey, and Banks met the day after the

offenses in a dorm room. Co-defendant McKenzie stated that a teammate had received a

video of the offenses, and the teammate questioned Co-defendant McKenzie about the

video because the teammate recognized Co-defendant Batey and Co-defendant McKenzie

on the video. Defendant and Co-defendants McKenzie, Batey, and Banks met to discuss

how aware E.L. was of what had occurred during the offenses. Co-defendant McKenzie

asked Co-defendant Batey if he penetrated E.L. during the offenses, and Co-defendant

Batey responded that he had. Defendant stated that he was going to call E.L. over to his

room and have sex with her. After the Vanderbilt University Student Conduct officials

questioned Defendant and Co-defendants McKenzie, Batey, and Banks, the four men met

at a Popeye’s restaurant and discussed what each had told the Student Conduct officials

about the offenses. Co-defendant McKenzie admitted that he lied to the Student Conduct

officials. He also lied when he spoke with the MNPD on June 27, 2013. At his first

meeting with the MNPD and the District Attorney’s Office, Co-defendant McKenzie’s

statement contained some truthful information and some false information; Co-defendant

McKenzie admitted that he exaggerated how intoxicated Defendant and Co-defendants

Banks and Batey were during the offenses. Co-defendant McKenzie testified that he was

truthful in his interview with the District Attorney’s Office after he was charged for the

current offenses.

During cross-examination, Co-defendant McKenzie agreed that when he spoke

with Detective Mayo on June 27, he stated that “nothing happened” to E.L. while he was

in Defendant’s dorm room. He also informed Detective Mayo that he did not observe

anyone take a photograph or video of E.L. Co-defendant McKenzie also agreed that in

his interview with MNPD on July 17, 2013, he stated that Defendant and Co-defendant

Batey were intoxicated to the point that they “didn’t know what [they] w[ere] doing[.]”

Additionally, he agreed that during the July 17 interview, he stated that Defendant was

“freaking out” about what happened in his room. On redirect examination, Co-defendant

McKenzie explained that Defendant was “bossy” and “in control” during the offenses

because Defendant pushed Co-defendants McKenzie and Batey off the elevator, handed

out condoms, and covered the camera.

- 21 -

Mr. Prioleau testified that he was a senior at Vanderbilt University. In June 2013,

Mr. Prioleau lived in Gillette Hall on Vanderbilt’s campus; he and Defendant were

roommates. On the evening of Saturday, June 22, he spent time with a friend on the sixth

floor of Gillette Hall and returned to his and Defendant’s room “sometime after

midnight[.]” In the early morning hours of June 23, Mr. Prioleau woke up and saw four

other football players in the room with the lights on; he identified these individuals as

Defendant and Co-defendants Banks, Batey, and McKenzie. From his location in the top

bunk of the bunk bed, Mr. Prioleau also observed a female lying face down on the floor

of the bedroom. “Throughout the night, [Mr. Prioleau] heard them use the F word in

regards to having sex with her. [Mr. Prioleau] heard [Defendant] say he couldn’t get an

erection due to cocaine use at some point.” Additionally, Mr. Prioleau heard

pornography playing on a computer. He did not hear E.L. make any noise while she was

in the bedroom. As soon as Defendant and Co-defendants Banks, Batey, and McKenzie

left the room, Mr. Prioleau also left; at that time, E.L. was in Defendant’s bed on the

bottom bunk. Mr. Prioleau went to the sixth floor of Gillette Hall and stayed with a

friend for the remainder of the night.

Mr. Prioleau stated that Defendant kept condoms in a drawer in the room. When

Mr. Prioleau returned to the dorm room around noon on June 23, the room was empty.

Later that day, Defendant texted Mr. Prioleau to ask “if he could have the room to be

with a girl.” After speaking with Detective Mayo a few days later, Mr. Prioleau saw

Defendant and Co-defendants Banks, Batey, and McKenzie. Co-defendant Banks asked

Mr. Prioleau to “help them out[.]” Mr. Prioleau said “okay” and walked away.

Special Agent Charley Castelbuono testified that she worked in the Forensic

Biology Unit of the Tennessee Bureau of Investigation (TBI). Defendant and the State

stipulated that Special Agent Castelbuono was an expert in the field of DNA analysis.

Special Agent Castelbuono received evidentiary items for testing from Detective Mayo.

She tested vaginal swabs from E.L. for the presence of semen and found that the DNA

profile of the sperm fraction matched Defendant as a minor contributor. She also tested a

green towel that Detective Mayo recovered near the door of the dorm room; Defendant

matched the DNA profile found on this item. Additionally, Special Agent Castelbuono

tested a green towel that Detective Mayo found hanging on the wall of the room. She

examined two stains on the item; the analysis of the first stain was inconclusive as to

Defendant and the second stain matched Defendant. Special Agent Castelbuono also

found Defendant’s sperm on the brown fitted sheet recovered from the lower bunk bed.

On cross-examination, Special Agent Castelbuono stated that she found a few

sperm cells on E.L.’s panties that could have been from an old sperm stain or transferred

from another surface. Special Agent Castelbuono did not find enough male DNA from

this item to confirm an identity.

- 22 -

Mr. van der Wal testified that in June 2013, he lived in East Hall on the Vanderbilt

University campus. Mr. van der Wal stated that early in the morning on June 23, 2013,

Mr. Boyd received a phone call; based on that phone call, Mr. Boyd and Mr. van der Wal

walked to Gillette Hall with Mr. Retta. Mr. Woods met the three men at Gillette Hall.

As he entered the second floor of Gillette Hall, Mr. van der Wal observed “a female on

the ground with her dress above her midriff area. She was laying [sic] face down and

there were handprints on her . . . butt.” The female, E.L., was nude from the waist down.

Mr. van der Wal also observed a towel draped over the security camera in the hallway.

He stated that, after he arrived, Defendant, Mr. Boyd, and Mr. Woods carried E.L. into

Defendant’s dorm room and put her in Defendant’s bed. As Mr. van der Wal entered

Defendant’s dorm room, Mr. Prioleau got out of the upper bunk bed and left the room.

Mr. van der Wal stated that, after he left Defendant’s dorm room, he was “standing in the

hallway for a second and there was a video being shown.” Mr. van der Wal then returned

to East Hall with Defendant, Mr. Boyd, and Mr. Retta.

While the group of men walked back to East Hall, Defendant told multiple

versions of what occurred with E.L. Defendant stated that “nothing happened, that he

was too drunk to remember[,]” and that “he attempted to have sex with her but couldn’t

get himself to do it” because Defendant was “too drunk to get an erection.” Defendant

also stated that Co-defendant Batey had sex with E.L. “and other people did as well.”

Additionally, Defendant stated that “there were condoms that were disposed of and then

there was a water bottle used in some way.” When the group arrived at East Hall,

Defendant went into Mr. Carta-Samuels’ room. Mr. van der Wal observed that, while

Defendant was in Mr. Carta-Samuels’ room, Defendant had Mr. Carta-Samuels’ phone in

his hand. Mr. van der Wal described Defendant as “intoxicated, but no more intoxicated

than any other night” when Mr. van der Wal socialized with Defendant. Mr. van der Wal

stated that Defendant was “conversing” and “walking without . . . assistance[.]” Mr. van

der Wal testified that Defendant spent the night in his room in East Hall. When Mr. van

der Wal woke up later in the morning of June 23, Defendant had left the room. Mr. van

der Wal met Defendant at Waffle House later that morning for breakfast, but Defendant

did not express concern for E.L. during their meeting.

During cross-examination, Mr. van der Wal testified that he was aware that E.L.

and Defendant had a relationship prior to the offenses at issue. Mr. van der Wal clarified

that, while he ate breakfast at Waffle House later in the morning of June 23, Defendant

again told “multiple stories about what had happened.” Mr. van der Wal stated that

Defendant’s versions of the events “didn’t make sense.” He explained that Defendant

“was shocked that his other teammates had . . . had sex with her[;] he was telling it as if

he was shocked that it happened.”

- 23 -

Lauren Miller testified that in June 2013, she lived in the Village at Vanderbilt

Apartments as E.L.’s roommate. Ms. Miller stated that she was “extremely close friends”

with E.L. and that they were both members of Vanderbilt University’s dance team.

During the evening of June 22, 2013, Ms. Miller and E.L. hosted a gathering at their

apartment. After hanging out in the apartment kitchen and having a few drinks, E.L., Ms.

Miller, and their guests “got in a cab and went to Tin Roof” around midnight. After the

group arrived at Tin Roof, the group “started taking some pictures of [their] friends” and

greeted some people. Ms. Miller did not notice anything unusual about E.L.’s behavior

when the group arrived at Tin Roof. After the group took some photographs, they

“walked around the bar[.]” Ms. Miller greeted some friends from Vanderbilt and left

shortly after because she had to get up early the next morning. Ms. Miller observed E.L.

with Defendant before she left, and she stated that E.L. “seemed totally normal[.]” Ms.

Miller saw Defendant hand E.L. a drink before Ms. Miller left Tin Roof. Ms. Miller

stayed up until 3 a.m. on June 23 talking to a friend; she did not hear any unusual noise

outside of the apartment, did not hear a knock on the door, and did not receive any phone

calls.

Ms. Miller saw E.L. in the early afternoon of June 23 when E.L. returned to the

apartment. She testified that she was “initially pretty shocked” by E.L.’s appearance.

Ms. Miller stated that E.L. was “extremely disheveled” and that her hair appeared to have

“gotten wet and then been dried again.” She also noticed “vomit encrusted in her hair.”

E.L.’s clothing “had a very strange consistency to them, and her shirt also had some

vomit encrusted on it.” Ms. Miller observed “a huge gash” on E.L.’s knee and small

bruises on her legs. Ms. Miller had not observed bruises on E.L.’s legs previously. E.L.

did not remember how she sustained the bruises and laceration, but she assumed she had

fallen. After changing clothes, E.L. and Ms. Miller met their friend Madison Jensen and

ate breakfast at Pancake Pantry. Ms. Miller stated that E.L. “kept getting progressively

and progressively more and more ill.” While waiting in line at Pancake Pantry, E.L.

stated that “she had never felt this sick before in her life and she just didn’t even know

what had happened to make her feel that sick.” During the evening of June 24, Ms.

Miller overheard a phone conversation between E.L. and Defendant. While on

speakerphone, Defendant told E.L. “that he was being accused of some things that he

would’ve never done and that it wasn’t fair, and that all he wanted to do was come over

and hang out with her and that sort of thing.” Defendant also stated that “he would’ve

never done what he was being accused of.” Ms. Miller testified that she and E.L. were

“really confused” about Defendant’s statements. A few days later, E.L. told Ms. Miller

that “she was having some pain on her rear end and kind of the back side of her legs.”

Ms. Miller observed “some pretty big bruises” on E.L.’s buttocks and took a photograph

to show E.L.

- 24 -

On cross-examination, Ms. Miller clarified that E.L. also consumed alcohol at

their apartment prior to going to Tin Roof. However, Ms. Miller did not mix E.L.’s

drinks, so she did not know how much alcohol E.L. consumed. She stated that she was

not concerned that E.L. stayed at Tin Roof with Defendant because “they had been

hanging out for a while, so [E.L. and Ms. Miller] trusted him.”

Julianna Martel testified that, in June 2013, she lived in Nashville while taking an

organic chemistry class at Vanderbilt University and working part-time at Vanderbilt’s

football camps. She explained that she knew E.L. because they both participated on

Vanderbilt’s dance team. Ms. Martel met Defendant when he visited Vanderbilt’s

campus to learn about the football program. On June 22, 2013, Ms. Martel saw

Defendant at the Bristol Apartments. Around midnight, Ms. Martel arrived at Tin Roof

bar. She saw E.L. arrive shortly after with other members of the dance team. Ms. Martel

described E.L.’s behavior as “completely normal.” Ms. Martel also saw Defendant at Tin

Roof; she explained that she did not interact with him much, but she did not notice any

unusual behavior. Prior to leaving Tin Roof around 1:30 a.m., Ms. Martel spoke with

E.L. and noticed that she was holding “a blue drink[.]” Ms. Martel again described

E.L.’s behavior as normal.

Elizabeth Parnell testified that she was a women’s health nurse practitioner and

that she was “certified as a Sexual Assault Nurse Examiner for adults.” Defendant and

the State stipulated that Ms. Parnell was an expert in sexual assault examinations. On

June 26, 2013, Detective Mayo asked Ms. Parnell to travel to the emergency department

of Vanderbilt University Medical Center. Ms. Parnell met with E.L. in a triage room and

discussed E.L.’s health history and her reason for being at the hospital. E.L. told Ms.

Parnell that she remembered being at Tin Roof with friends around midnight, but she

could not remember anything until she woke up around 8 a.m. in Defendant’s dorm

room. Because more than seventy-two hours had passed between the offenses and Ms.

Parnell’s examination of E.L., Ms. Parnell explained that it was difficult to collect

evidence. Ms. Parnell noted that E.L. had bathed, changed clothes, and engaged in other

activities that could have reduced evidence since the offenses occurred. E.L. reported to

Ms. Parnell that “she drank more than usual” on the night of the offenses. E.L. also

informed Ms. Parnell that she had consensual vaginal intercourse around 5 p.m. on June

23.

E.L. signed a consent form, and Ms. Parnell conducted a physical examination of

E.L.’s person. Ms. Parnell also noted “physical trauma on her extremities and her

buttocks.” She observed a scabbed wound immediately below E.L.’s right knee and

bruises on the front of E.L.’s left thigh, below her left buttocks, on her right buttocks, and

on her left calf. Ms. Parnell also observed scratches on E.L.’s right and left ankles. Ms.

Parnell did not observe any visible trauma to E.L.’s vaginal wall or her rectum. Ms.

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Parnell collected “pubic hair combings, labia swabs, vaginal swabs, a rectal swab, two

perianal swabs, two gumline swabs, the DNA buccal swabs from the inside of her cheeks

. . . , and then two swabs of . . . vaginal pool.” Ms. Parnell additionally collected blood

from E.L.

E.L. testified that in June 2013, she was a rising senior at Vanderbilt University

and lived at the Village at Vanderbilt with her roommate, Ms. Miller. E.L. met

Defendant approximately two weeks prior to the offenses at issue. On the afternoon of

June 22, 2013, E.L. spent some time with friends at her apartment. She had one mixed

drink before she and her friends took a cab to Tin Roof around midnight. When she

arrived at Tin Roof, she “took some pictures with some friends and said hi to people.”

She saw Defendant when she arrived; she was happy to see him, and Defendant “seemed

happy, socializing, [and] normal.” E.L. drank a gin and tonic mixed drink and stood with

a group of people socializing. E.L. drank a second drink–a Red Bull and vodka mixed

drink that Defendant took from a bartender and poured into her cup. E.L. drank a third

drink, a shot of whiskey that Defendant took from a bartender and gave her. E.L.’s fourth

drink was “blue and in a clear cup.” E.L. explained that she did not see the bartender

pour this drink but that Defendant brought her the drink. Defendant told E.L. that the

blue drink was the California version of a Long Island Iced Tea and that E.L. needed to

try it. Defendant gave E.L. another shot, but she “had taken a sip or two of the blue drink

and [she] was starting to feel a little intoxicated, so [she] gave that shot to somebody

else.” E.L. could not remember if she finished the blue drink.

E.L.’s next memory was “waking up in an unfamiliar room around 8 a.m. the next

morning” on June 23. E.L. stated that she was clothed and lying in a bed; she was alone

in the room. E.L. stated that she felt “off and confused and scared.” She noticed that her

keys and phone were sitting on top of a dresser near the bed, but she could not find her

shoes. She exited the room and realized that she was in Gillette Hall, so she knocked on

Jake Bernstein’s door across the hall from the room that she woke up in. Mr. Bernstein

did not immediately answer the door, so E.L. called him and he let her into his room.

E.L. also texted Defendant to “figure out what was going on.” E.L. left Gillette Hall

between 11 a.m. and noon; her vehicle was parked in front of Gillette Hall when she

exited the dorm. She “had no idea” how her vehicle had gotten there. As E.L. drove her

vehicle back to her apartment, she noticed “blood smeared across the glove box in front

of the passenger seat.” E.L. “notice[d] how [she] was in a lot of pain everywhere, and

particularly [her] left shoulder hurt and also [her] left wrist, and [she] had a wound on

[her] right knee that was actively bleeding.” When E.L. arrived at her apartment, her

roommate, Ms. Miller, was worried for her. E.L. “quickly changed and just quickly

rinsed off”; she noticed that her hair had gotten wet and dried overnight. After changing,

E.L. went to eat with Ms. Miller.

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E.L. conversed with Defendant throughout the day of June 23. Defendant told her

that she “had gotten sick in his room and he had to spend the whole night taking care of

[her], it was so horrible for him, and he was not happy about it.” Eventually, Defendant

asked E.L. to come to his room in Gillette Hall around 5 or 6 p.m. E.L. and Defendant

discussed the previous night, and Defendant told her again that she threw up in his room

and that he cleaned it up. When E.L. pressed Defendant for more details about the

previous night, Defendant said that he did not want to talk about it because “it was

horrible.” After E.L. and Defendant spoke for a while, Defendant “suddenly started

being very nice” and “eventually he kind of suddenly initiated intercourse.” Defendant

did not wear a condom during the intercourse.

After hearing Defendant’s version of the events of the evening of June 22 and

early morning of June 23, E.L. learned more information “that was not consistent with

what [Defendant] had been telling [her.]” On the morning of June 26, officers from VPD

contacted E.L. She stated that her “biggest concern at that time was trying to protect

him” so that Defendant would not be removed from the Vanderbilt football team. During

her interview with VPD, E.L. saw some still photographs from the video surveillance

recorded in Gillette Hall during the offenses. E.L. agreed to undergo a medical-legal

exam at Vanderbilt University Medical Center; however, she stated that she “was worried

that [Defendant] would be mad at [her] because he would have to give a cheek swab if

[she] got the examination.”

E.L. stated that she had no memory of her movements in Gillette Hall between 4

a.m. and 8 a.m. on June 23. E.L. did not know Co-defendants McKenzie, Batey, or

Banks at the time the offenses occurred. E.L. testified that she did not give Defendant or

Co-defendants McKenzie, Banks, and Batey permission to touch her.

On cross-examination, E.L. agreed that she met Defendant in early 2013 when

Defendant visited Vanderbilt University on a recruiting trip. She agreed that she “saw”

Defendant three or four times in June prior to the current offenses, including earlier in the

week of June 22. Regarding the evening of June 22, E.L. recalled that she made her own

drink at her apartment and used three ounces of gin. E.L. agreed that she drank more

than usual at Tin Roof. She also agreed that she had blacked out previously but stated

that she had never passed out from consuming alcohol; she stated that she walked around

and spoke to people during the previous blackout.

After the State rested, Defendant moved the trial court to read Ms. Martel’s

testimony that was proffered outside the presence of the jury into the record. The trial

court allowed the testimony to be read to the jury. During the jury-out testimony, Ms.

Martel agreed that in July 2013, she told Detective Zocola that E.L. told her that a woman

named Angie gave E.L. the blue drink. On cross-examination, Ms. Martel stated that she

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“never saw the drink being purchased and [she] never saw it being handed off.” Ms.

Martel only saw the blue drink in E.L.’s hand.

The State made the following election of offenses for counts one through seven:

Count [o]ne of the [i]ndictment alleges an act of aggravated rape against

[E.L.] and refers to the following conduct: [Co-defendant] Banks

penetrating the anus of [E.L.] with an object while [E.L.] was unconscious

on the floor of the dorm room located in Gillette Hall on Vanderbilt

University campus.

Count [t]wo of the [i]ndictment alleges an act of aggravated rape against

[E.L.], and refers to the following conduct: the digital penetration of

[E.L.]’s vagina by [Co-defendant] Batey while [E.L.] was unconscious on

the floor of the dorm room located in Gillette Hall on Vanderbilt University

campus.

Count [t]hree of the [i]ndictment alleges an act of aggravated rape against

[E.L.], and refers to the following conduct: the digital penetration of

[E.L.]’s anus by [Co-defendant] Batey while [E.L.] was unconscious on the

floor of the dorm room located in Gillette Hall on Vanderbilt University

campus.

Count [f]our of the [i]ndictment alleges an act of aggravated rape against

[E.L.], and refers to the following conduct: an act of fellatio upon [E.L.]’s

mouth or lips by [Co-defendant] Batey while [E.L.] was unconscious on the

floor of the dorm room located in Gillette Hall on Vanderbilt University

campus.

Count [f]ive of the [i]ndictment alleges an act of aggravated rape against

[E.L.], and refers to the following conduct: the penile penetration of

[E.L.]’s vagina by [Co-defendant] Batey while [E.L.] was unconscious on

the floor of the dorm room located in Gillette Hall on Vanderbilt University

campus.

Count [s]ix of the [i]ndictment alleges an act of aggravated sexual battery

against [E.L.], and refers to the following conduct: the touching of the

primary genital area of [E.L.] by [Co-defendant] Banks while [E.L.] was

unconscious on the floor of the dorm room located in Gillette Hall on

Vanderbilt University campus.

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Count [s]even of the [i]ndictment alleges an act of aggravated sexual

battery against [E.L.], and refers to the following conduct: [Co-defendant]

Batey placing his buttocks on [E.L.]’s face while [E.L.] was unconscious

on the floor of the dorm room located in Gillette Hall on Vanderbilt

University campus.

The jury found Defendant guilty of aggravated rape in counts one through five, of

aggravated sexual battery in counts six and seven, and of unlawful photography in count

eight.

Sentencing hearing

At Defendant’s sentencing hearing, the State argued that Defendant was a standard

offender. The trial court admitted the presentence report. The trial court considered an

audio recording of an interview of Mr. Finley as well as a sworn affidavit from Mr.

Finley. During the interview, Mr. Finley stated that he overheard a conversation between

Defendant and Mr. Quinzio; Defendant told Mr. Quinzio that he had attempted to give a

date rape drug to a female acquaintance, Angelica LaVecchia, but he was unsuccessful

because he did not crush the pill up. The trial court entered a victim impact statement

from E.L., which stated the following:

I had intended to give a detailed Victim Impact Statement at today’s

sentencing hearing specific to the effects of [Defendant]’s actions. As a

result of the last sentencing hearing in this case, that is no longer something

I’m able to do. I ask that my prior statement be referenced. Also, two

professionals who have helped me through this and witnessed the impact on

me have submitted letters to you describing what they have seen; and I ask

that you consider those.

Please do not use my absence as an excuse for leniency as it in no

way diminishes the profound and insidious impact of [Defendant] on me

and my life. I still ask that he receive the full sentence allowed under the

law for orchestrating a sustained thirty-minute gang rape against me, a

defenseless woman who trusted him. The minimum sentence is not enough

for what this man did to me.

E.L.’s prior victim impact statement set out the following:

It’s hard for me to stand here on display and speak to you today

about the impact this has had on my life. The thought of sharing any more

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of myself that hasn’t already been taken from me seems unbearable, and it

goes against every instinct that I have.

I was fearful of giving a victim impact statement at all because I

know that after three years and everything that has happened, I can never

do it justice, and I’m scared of that failure. It will never be possible for

anyone to put into words how this has affected me. You will never

understand what this has done to me if you aren’t standing in my shoes.

The humiliation, the pain, the isolation, being reduced to nothing but a

piece of flesh right before your eyes, it does something to you that is truly

impossible to describe.

I also know that it’s hard to encapsulate the impact this has had

because it is still ongoing. The attack on me didn’t end that day because I

relive it in every proceeding and experience additional attacks every time I

am in court.

When I let myself think of this[,] I become so angry and feel so

powerless, even today, that speaking coherently about it at all is a

challenge.

There are no words to describe the horror of those images from that

night and how it feels to watch yourself be dehumanized.

A detective showed me some of those photos and videos that you

and forty-two jurors have now seen so many times, and what I saw was

image after image of my genitalia covering the entire frame on the screen.

These stark, alien-looking fingers all over the flesh were moving from

frame to frame, with multiple hands reaching in. Videos played, and I

heard the laughing. I heard the degrading, taunting voices.

My memory of the images I was shown then starts to flash in and

out. The realization of all the different ways that they raped me, that people

can see these close up pictures of my body, the unknown of what was done

to me in those thirty minutes that wasn’t recorded-it was incomprehensible.

I wanted to run away and never stop running.

At one point[,] I saw what I first thought was a dead woman’s face.

I was suddenly overwhelmed by my memory of a family member’s corpse,

and then I realized that it’s me. They had taken a picture of my face during

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the attack. I was lifeless and my face was covered in something shiny. I

didn’t recognize myself.

Something permanent snapped that day. I felt myself detach from

my body. Now, I feel like I’m walking around in the shell of someone else.

A part of me went numb, a sense of being a whole person with hopes and

dreams about what’s possible in the world was now gone.

I was twenty-one years old when this happened. I’m twenty-four

today. Since the horror of that night, all I have wanted is for this to be

behind me, to be left alone and try to live my life in peace, but the process

to get justice has been a never-ending, constant misery that has twisted

itself so into my life that I can’t even remember what it was like in a time

when this wasn’t happening. Everything . . . [D]efendant has done in this

case and the media circus surrounding it have been a continuous disruption

repeatedly dragging me back every step I try to take forward. I can only

feel that . . . [D]efendant has intentionally wanted this to be as tortuous for

me as possible.

What happened to me that night has been compounded by the live-

streaming, tweeting, and international dissemination of every detail of how

I was degraded and humiliated for all posterity. In this age of technology,

anyone I ever meet in my personal or professional life can learn I am a rape

victim and the details of the case before I’ve even fully introduced myself

to them. There is no way for me to even know if any given person I

interact with has done so. This is something I now have to expect for the

rest of my life.

Again, the attack on me didn’t end that day because I have to relive

it in every proceeding and am constantly experiencing additional attacks.

The fact that I even had to breathe the same air as the men who did this to

me ever again . . . is unthinkable. But, I have endured all of this because

the details of the rape are so horrific, and there is so much irrefutable

evidence, I knew that they had to be stopped and held accountable.

This is a serious violent crime, and it must receive the enhanced

punishment it deserves. Any victim should know they would have justice if

they went through the process.

Additionally, the trial court admitted letters from two mental health professionals

who worked with E.L. that discussed the impact of the offenses on E.L. E.L. received

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therapy during the summer of 2015. Dr. Nancy Cook stated that “[i]n spite of significant

effort on her part, [E.L.] reported persistent and recurrent distressing recollections of the

images and sounds, a sense of powerlessness and hopelessness, irritability, difficulty

concentrating and hypervigilance.” Dr. Cook diagnosed E.L. with Post-Traumatic Stress

Disorder (“PTSD”). Dr. Cook explained that because E.L. had to attend multiple trials

and proceedings related to the offenses, she relived the trauma of the offenses, which

“continually disrupt[ed] her academic planning and her emotional sense of wholeness.”

Additionally, Dr. Cook stated that the offenses “caused serious, long-term identifiable

emotional impacts and significant neurological changes in [E.L.’s] body.” Dr. Cook

stated that E.L. would need to continue therapy because of the significant trauma. Wanda

Swan, Director of The Respect Program at Emory University, stated in her letter that she

assisted E.L. as her on-campus crisis counselor. Ms. Swan stated that E.L.’s former

friends, dance team members, and coaches “harass[ed] and bull[ied] her, minimize[d] her

trauma, encourage[d] her to ‘just be normal,’ blame[d] her for the assault, and

question[ed] her judgment.” Additionally, Ms. Swan stated that “[t]here are pieces,

definitive properties of [E.L.’s] personality, character, mental and emotional capacity that

she will never be able to reunite with.”

The trial court also entered a letter from Reverend Kevin Riggs, who worked with

Defendant in the Jobs for Life program while Defendant was incarcerated. Reverend

Riggs stated that Defendant successfully completed the Jobs for Life class while

incarcerated. Additionally, the trial court entered a statement of Ms. LaVecchia and a

police report on the alleged incident between Defendant and Ms. LaVecchia. Ms.

LaVecchia stated that she was unaware of allegations that Defendant put a date rape drug

in her drink. The State and Defendant stipulated that Mr. Quinzio stated in an interview

that he did not remember Defendant mentioning incidents involving date rape drugs.

Defendant called Pernilla Linner, who testified that she lived in LaQuinta,

California, and knew Defendant because she had been friends with Defendant’s mother

for over twenty years. Ms. Linner stated that, in her interactions with Defendant, he was

always “very, very polite[,]” “very respectful[,]” and “[v]ery kind.” Ms. Linner also

testified that Defendant was respectful when playing sports with her children.

Additionally, she stated that Defendant was “kind of like a father figure” to his brothers;

she described Defendant as “a perfect sibling.” On cross-examination, Ms. Linner stated

that she was not aware that Defendant used illegal steroids and cocaine and consumed

alcohol while under the age of twenty-one. However, she stated that this knowledge did

not change her opinion of Defendant.

Frank Gill testified that he met Defendant three years prior to the sentencing

hearing when Mr. Gill volunteered in a prison ministry. Mr. Gill did not believe that

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Defendant would be a danger to the community after serving his sentence. Mr. Gill also

testified that Defendant had “tremendous potential” for rehabilitation.

Shannon Fix testified that she lived in Palm Desert, California, and that Defendant

was “like a nephew to [her].” She explained that she had known Defendant for

approximately seven years because Defendant’s brothers were friends with her son. Ms.

Fix testified that Defendant watched over her three children and that she was comfortable

leaving Defendant alone with her children. She stated that Defendant transferred from

the University of San Diego to a local community college when one of his brothers was

diagnosed with retinitis pigmentosa; Defendant volunteered to coach his brothers’

football team, drove his brothers to medical appointments and school, and helped them

with homework. Ms. Fix stated that Defendant regularly attended religious services with

his family and described Defendant as “endearingly naive, very cerebral, [and] very

bright.” On cross-examination, Ms. Fix testified that Defendant expressed remorse that

he had not done more to help E.L. and stop the offenses.

Defendant gave an allocution and expressed his remorse for his involvement in the

offenses. He apologized to E.L. and stated that he was “ashamed of [him]self and that

[he] was so irresponsible with alcohol, which le[d] to something tragic.”

The trial court stated that it had considered “the evidence that was presented at

trial, all of the motions that were heard, the sentencing hearing, Presentence Report, the

evidence at the sentencing hearing, Principles of Sentencing, arguments of counsel, the

nature of the criminal conduct involved here, as well as the enhancement and mitigating

factors.” The trial court found that “the victim was particularly vulnerable because of her

physical incapacity[,]” “the victim suffered psychological injuries as a result of this

incident[,]” and that Defendant abused a position of private trust because he “formally or

informally stood in a relationship to the victim that promoted confidence, reliability and

faith[.]” The trial court also found that Defendant was a leader in the commission of the

offenses because “he [wa]s the one that could have stopped this incident.”

The trial court additionally found that Defendant “did not have any prior criminal

convictions[,]” that Defendant had “a lot of family and community support,” and that

Defendant “may be remorseful, seemed remorseful at least.” The trial court concluded

that “the enhancement factors outweigh[ed] the mitigating factors in this particular case.”

The trial court sentenced Defendant, as a Range I standard offender, to serve seventeen

years each for counts one through five, aggravated rape, nine years each for counts six

and seven, aggravated sexual battery, and two years for count eight, unlawful

photography. The trial court ordered all the sentences to run concurrently for a total

effective sentence of seventeen years in the Tennessee Department of Correction.

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Defendant filed a timely motion for new trial. He argued, in pertinent part, that (1)

the evidence was insufficient; (2) the trial court erred in denying his motions to dismiss

the superseding indictment; (3) the trial court erred in excluding the testimony of Dr. J.

Sidney Alexander; (4) the trial court erred in denying Defendant’s motion to strike the

venire during voir dire or to grant additional peremptory strikes; (5) the trial court erred

by failing to admonish the prospective jurors at the beginning of voir dire; (6) the trial

court erred by instructing the jury on “presence and companionship” regarding criminal

responsibility; (7) the trial court erred in excluding evidence of the prior bad acts of Co-

defendants Batey, Banks, and McKenzie; (8) the trial court erred in excluding

Defendant’s voicemail that he left on Mr. Quinzio’s phone; and (9) the trial court erred in

denying Defendant’s motion to suppress his statement from June 27, 2013. The trial

court denied Defendant’s motion for new trial. Defendant now timely appeals.

II. Analysis

(1) Denial of motion to dismiss superseding indictment

Defendant argues that the trial court violated “his rights to due process and

protection against double jeopardy under the Tennessee Constitution, Art. 1, § 10, and the

Fifth Amendment of the United States Constitution” by denying his motion to dismiss the

superseding indictment. He asserts that the trial court should have dismissed the

superseding indictment because jeopardy attached to the original indictment when the

trial court swore in the jury at Defendant’s first trial. Defendant argues that the original

indictment failed to charge aggravated rape and aggravated sexual battery and contends

that the State was “prohibited from adding offenses to the superseding indictment when it

failed to include them in the original indictment.” Additionally, he asserts that none of

the exceptions to the mandatory joinder rule apply in this case, so the State should have

joined the charges of aggravated rape and aggravated sexual battery to the charges of

assault in the original indictment. Further, he argues that the State engaged in

prosecutorial vindictiveness by seeking a superseding indictment. In his reply brief,

Defendant argues that he should have been retried on the original indictment because

jeopardy attached to the original indictment at the first trial, and therefore, the State was

prohibited by Tennessee Rule of Criminal Procedure 7(b) from amending the indictment

without Defendant’s consent.

The State responds that Defendant’s second trial did not violate double jeopardy

principles because double jeopardy does not preclude the retrial of Defendant. The State

argues that the jeopardy from Defendant’s first trial did not terminate when the trial court

granted Defendant’s motion for a new trial; essentially, the jeopardy from the first trial

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“continued” to the superseding indictment.9 Additionally, the State contends that the

issuance of the superseding indictment did not violate double jeopardy principles because

“the superseding indictment was issued well before the second trial, giving . . .

[D]efendant ample notice of the charges.” Further, the State asserts that Defendant

received adequate notice of the charges in the superseding indictment because it charged

the same offenses as the initial indictment except for the omission of the destruction of

evidence charge. The State argues that it properly exercised its discretion by obtaining a

superseding indictment that clarified “that the aggravated rape and aggravated sexual

battery charges were based on the incapacity of the victim.”

On August 9, 2013, the Davidson County Grand Jury returned an eight-count

indictment against Defendant and Co-defendants Banks, Batey, and McKenzie. Counts

one through five alleged aggravated rape and used the following language:

THE GRAND JURORS of Davidson County, Tennessee, duly

impaneled and sworn, upon their oath, present that:

BRANDON E. BANKS, CORY LAMONT BATEY, [Defendant],

and JABORIAN DASHON MCKENZIE between the 22nd day of June,

2013, and the 23rd day of June, 2013, in Davidson County, Tennessee and

before the finding of this indictment, did intentionally, knowingly, or

recklessly engage in unlawful sexual penetration of [E.L.] and Brandon E.

Banks, Cory Lamont Batey, [Defendant], and Jaborian Dashon McKenzie

were aided or abetted by one or more other persons, in violation of

Tennessee Code Annotated § 39-13-502, and against the peace and dignity

of the State of Tennessee.

Counts six and seven alleged aggravated sexual battery using the following

language:

THE GRAND JURORS of Davidson County, Tennessee, duly

impaneled and sworn, upon their oath, present that:

BRANDON E. BANKS, CORY LAMONT BATEY, [Defendant],

and JABORIAN DASHON MCKENZIE between the 22nd day of June,

9

We note that Justice Holmes’ concept of “continuing jeopardy” set out in Kepner v. United

States, 195 U.S. 100, 134 (1904) (Holmes, J., dissenting), has been cited disapprovingly in numerous

decisions of the United States Supreme Court. Swisher v. Brady, 438 U.S. 204, 225 (1978); United States

v. Scott, 437 U.S. 82, 90 n.6 (1978); Breed v. Jones, 421 U.S. 519, 534-35 (1975); United States v.

Jenkins, 420 U.S. 358, 369 (1975); Green v. United States, 355 U.S. 184, 189, 192 (1957); Seiber v. State,

542 S.W.2d 381, 385 (Tenn. Crim. App. 1976) (citing Breed, 421 U.S. at 533).

- 35 -

2013, and the 23rd day of June, 2013, in Davidson County, Tennessee and

before the finding of this indictment, did intentionally engage in unlawful

sexual contact with [E.L.], and Brandon E. Banks, Cory Lamont Batey,

[Defendant], and Jaborian Dashon McKenzie were aided or abetted by one

or more other persons, in violation of Tennessee Code Annotated § 39-13-

504, and against the peace and dignity of the State of Tennessee.

The record on appeal includes a document entitled Defendant’s “Memorandum of

Law Regarding Counts 1 Through 7 of Indictment[.]”10 In this memorandum, Defendant

argued that “[c]areful examination of Counts 1 through 7 of the instant indictment shows

that the only criminal offense as to which every element is alleged is assault in violation

of Tennessee Code Annotated § 39-13-101(a)(3)[.]” Thus, Defendant asserted that the

language of counts one through five in the indictment failed to allege “force, coercion, a

weapon or any other article.” Defendant also noted that the indictment of counts one

through five failed to allege bodily injury or that “any defendant knew or had reason to

know that the victim was mentally defective, mentally incapacitated or physically

helpless.” Defendant alleged that the indictment for counts six and seven similarly failed

to allege aggravated sexual battery under Tennessee Code Annotated section 39-13-

504(a)(3). In its response, the State argued that “[a]n indictment which references the

statute defining the offense is sufficient and satisfies the constitutional and statutory

requirements of [State v. Hill, 954 S.W.2d 725 (Tenn. 1997)], giving the accused

sufficient notice of the charged offense.”

During a jury-out hearing in Defendant’s first trial, Defendant alleged that “the

facts found by the Grand Jury only make out a misdemeanor offense of assault.”

Defendant asked the trial court to instruct the jury only on assault. The trial court noted

that the State charged alternative theories in the aggravated rape and aggravated sexual

battery counts and elected to proceed on the allegation that E.L. was mentally

incapacitated during the offenses. The trial court found that the Davidson County Grand

Jury indicted Defendant and Co-defendants Banks, Batey, and McKenzie with aggravated

rape and aggravated sexual battery. The trial court concluded that “the parties ha[d] been

given sufficient notice[.]” The jury found Defendant guilty of four counts of aggravated

10

This memorandum of law was not accompanied by a motion in the record. In a later filing,

Defendant stated that he was “not intending to move the Court for any relief but rather submitting

authority for why the Court shouldn’t charge more than what has been indicted.” Further, this filing,

titled “DEFENDANTS’ REPLY TO THE STATE’S ‘RESPONSE’ REGARDING COUNTS 1-7 OF

THE INDICTMENT” (hereinafter “Reply”), states that Defendant “has never claimed that any count of

the indictment is defective, and . . . Defendant does not seek relief based on any alleged defect.” Instead,

Defendant “ask[ed] the Court to instruct the jury on the sole offense that the facts found by the grand jury

makes out and to decline to instruct on any other or greater offense.”

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rape, one count of attempted aggravated rape, two counts of aggravated sexual battery,

one count of tampering with evidence, and one count of unlawful photography..

On June 15, 2015, 139 days after the jury found him guilty, Defendant filed a

motion for mistrial or, in the alternative, a motion to set aside the verdict on the basis that

the jury foreperson made a material misrepresentation during voir dire. At the motion

hearing on the same day,11 the jury foreperson gave testimony that “was inconsistent with

the answers provided during voir dire.” On June 23, 2015, the trial court granted

Defendant’s motion; the trial court’s order notes that Defendant “did not request a new

trial pursuant to Rule 33 out of concern that [he] may waive any appellate issues.” The

trial court stated that, “as a practical matter, a new trial, if granted, would have to be

pursuant to Rule 33 of the Tennessee Rules of Criminal Procedure.” The trial court

stated that “[a] mistrial is granted prior to the verdict in a trial” and that a defendant could

challenge juror misconduct in a motion for new trial. The trial court cited to State v.

Akins, 867 S.W.2d 350, 355 (Tenn. Crim. App. 1993), for the conclusion that “[w]hen

conduct becomes apparent after the jury has rendered a verdict, a new trial is the

appropriate remedy.” The trial court concluded that the jury foreperson committed

misconduct when he failed to disclose during voir dire that he was the named victim in a

twenty-three count indictment in a statutory rape case and granted Defendant’s motion.

On July 7, 2015, the Davidson County Grand Jury returned a superseding

indictment charging Defendant and Co-defendants Banks, Batey, and McKenzie with five

counts of aggravated rape, two counts of aggravated sexual battery, and one count of

unlawful photography. The aggravated rape counts alleged the following:

THE GRAND JURORS of Davidson County, Tennessee, duly

impaneled and sworn, upon their oath, present that:

BRANDON E. BANKS, CORY LAMONT BATEY, [Defendant],

and JABORIAN DASHON MCKENZIE on the 23rd day of June, 2013, in

Davidson County, Tennessee and before the finding of this indictment, did

intentionally, knowingly, or recklessly engage in unlawful sexual

11

The motion for mistrial was not included in the record on appeal. A transcript of this motion

hearing was also not included in the record on appeal. As we have previously noted, Defendant bears the

burden of preparing an adequate record on appeal. See Ballard, 855 S.W.2d at 560. Defendant’s burden

of preparing an adequate record on appeal includes the duty to “have prepared a transcript of such part of

the evidence or proceedings as is necessary to convey a fair, accurate and complete account of what

transpired with respect to those issues that are the bases of appeal.” Tenn. R. App. P. 24(b). This court is

precluded from considering an issue presented for review when the record is incomplete and does not

contain a transcript of the proceedings relevant to the issue, or portions of the record upon which the

appellant relies. Ballard, 855 S.W.2d at 560-61 (citing State v. Roberts, 755 S.W.2d 833, 836 (Tenn.

Crim. App. 1988).

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penetration of [E.L.] and Brandon E. Banks, Cory Lamont Batey,

[Defendant], and Jaborian Dashon McKenzie did aid or abet each other in

the commission of the offense and Brandon E. Banks, Cory Lamont Batey,

[Defendant], and Jaborian Dashon McKenzie knew or had reason to know

that [E.L.] was mentally incapacitated or physically helpless, in violation of

Tennessee Code Annotated § 39-13-502, and against the peace and dignity

of the State of Tennessee.

The aggravated sexual battery counts alleged the following:

THE GRAND JURORS of Davidson County, Tennessee, duly

impaneled and sworn, upon their oath, present that:

BRANDON E. BANKS, CORY LAMONT BATEY, [Defendant],

and JABORIAN DASHON MCKENZIE on the 23rd day of June, 2013, in

Davidson County, Tennessee and before the finding of this indictment, did

intentionally engage in unlawful sexual contact with [E.L.], and Brandon E.

Banks, Cory Lamont Batey, [Defendant], and Jaborian Dashon McKenzie

did aid or abet each other in the commission of the offense and Brandon E.

Banks, Cory Lamont Batey, [Defendant], and Jaborian Dashon McKenzie

knew or had reason to know that [E.L.] was mentally incapacitated or

physically helpless, in violation of Tennessee Code Annotated § 39-13-504,

and against the peace and dignity of the State of Tennessee.

On September 11, 2015, Defendant filed a “Motion to Dismiss Superseding

Indictment,” which argued that “[t]he superseding indictment allege[d] an additional

element in Counts 1-7 that was not alleged in the original indictment, specifically that the

defendants ‘knew or had reason to know that [the alleged victim] was mentally

incapacitated or physically helpless’ in the counts alleging aggravated rape and

aggravated sexual battery.”12 Defendant contended that the inclusion of additional or

different elements violated his protection against double jeopardy. He also asserted that

the jeopardy that attached to the original indictment continued due to the mistrial, and

therefore, the State should proceed under the original indictment.

The State responded that it could properly proceed on the superseding indictment

because the trial court’s grant of a new trial “returned . . . Defendant to the same position

he was in prior to the first trial[.]” At a hearing on the motion on October 19, 2015, the

trial court found that “there [were] no new charges that [were] brought with the

superseding indictment, only an additional element.” The trial court stated that the grant

12

Second alteration in the original text.

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of a new trial “place[d] the defendants back in the same position that they were initially

and, as such, . . . a superseding indictment can be brought[.]” On October 20, 2015, the

trial court filed an order denying Defendant’s motion to dismiss the superseding

indictment. The trial court found “that the indictment [wa]s appropriate and the charges

therein should not be dismissed.”

On June 13, 2016, the first day of Defendant’s second trial, Defendant again filed

a motion to dismiss the superseding indictment and argued that the indictment violated

the prohibition against double jeopardy. The court minutes from that day reflect that the

trial court denied this motion. The trial court entered a written order denying the motion

on June 22, 2016, and again concluded that “[t]he superseding indictment which was

filed after the mistrial was not amended with additional charges nor does it require

joinder.”

After the trial court swore in the jury, the State read the indictments, and

Defendant pled not guilty, Defendant filed a motion to dismiss the indictments.

Defendant argued that because jeopardy attached during the first trial and continued to

the second trial, he was placed in jeopardy twice for the same offenses once the jury was

sworn in the second trial. Defendant asserted that jeopardy continued from the first trial

because the trial court declared a mistrial. Defendant also argued that the State should

have proceeded on the original indictment because the State cannot obtain a superseding

indictment while jeopardy continues from a previous indictment. The State argued that it

had properly obtained a superseding indictment. The trial court denied the motion, and

the trial proceeded.

Initially, we must determine whether the trial court granted a motion for mistrial or

a motion for new trial after the conclusion of Defendant’s first trial. Although Defendant

apparently filed a motion for mistrial, the trial court concluded that a new trial was the

appropriate remedy to address the juror misconduct that came to light after the jury

rendered its verdict and Defendant’s first trial concluded. “A mistrial is granted in a case

in which the jury is discharged without a verdict; a motion for new trial is made after a

judgment has been rendered.” State v. Terry Sanders, No. M2011-00426-CCA-R3-CD,

2012 WL 5948885, at *4 (Tenn. Crim. App. Nov. 15, 2012) (quoting Howell v. Davis,

299 S.E.2d 336, 337 (S.C. 1983)) (internal quotation marks omitted), perm. app. denied

(Tenn. Mar. 5, 2013). Because Defendant filed his motion after the jury rendered its

verdict and because the trial court essentially treated the motion as a motion for new trial,

we will interpret Defendant’s motion as a motion for new trial.

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(A) Double jeopardy

The Double Jeopardy Clause of the Fifth Amendment to the United States

Constitution, made applicable to the states through the Fourteenth Amendment, states,

“No person shall . . . be subject for the same offense to be twice put in jeopardy of life or

limb.” U.S. Const. amend. V. Similarly, the Tennessee Constitution guarantees “[t]hat

no person shall, for the same offense, be twice put in jeopardy of life or limb.” Tenn.

Const. art. I, § 10. Both clauses provide three distinct protections: “(1) protection against

a second prosecution for the same offense after acquittal; (2) protection against a second

prosecution for the same offense after conviction; and (3) protection against multiple

punishments for the same offense.” State v. Watkins, 362 S.W.3d 530, 541 (Tenn. 2012).

A defendant acquitted of criminal charges may not be subjected to retrial on those

same charges. State v. Harris, 919 S.W.2d 323, 327 (Tenn. 1996); see also Ball v. United

States, 163 U.S. 662, 671 (1896). Additionally, “when a conviction has been set aside

because of insufficiency of the evidence, double jeopardy forbids giving the prosecution

‘another opportunity to supply evidence which it failed to muster in the first

proceeding.’” Harris, 919 S.W.2d at 327 (quoting Burks v. United States, 437 U.S. 1, 11

(1978)). However, a retrial of a defendant who has successfully appealed an issue other

than sufficiency of the evidence does not subject the defendant to double jeopardy. Id.

(citing Burks, 437 U.S. at 11; Ball, 163 U.S. at 672; State v. Campbell, 641 S.W.2d 890,

893 (Tenn. 1982)); see also Lockhart v. Nelson, 488 U.S. 33, 38 (1988) Jeffers v. United

States, 432 U.S. 137, 152 (1977); Price v. Georgia, 398 U.S. 323, 326 (1970); Green v.

United States, 355 U.S. 184, 189, 192 (1957). Further, “upon appellate reversal of a

conviction[,] the Government is not limited at a new trial to evidence presented at the

first trial, but is free to strengthen its case in any way it can by the introduction of new

evidence.” United States v. Shotwell Mfg. Co., 355 U.S. 233, 243 (1957). This is more

commonly known as the “clean slate” rule. See State v. Kacy Dewayne Cannon, No.

E2011-02624-CCA-R3-CD, 2012 WL 6049639, at *8 (Tenn. Crim. App. Dec. 5, 2012),

perm. app. denied (Tenn. Apr. 10, 2013). Thus, the mere fact that Defendant’s case was

retried after the trial court granted a new trial on the basis of juror misconduct did not

place Defendant under jeopardy twice for the same criminal conduct.

The Tennessee Supreme Court stated the following regarding the State’s power to

seek superseding indictments:

The power to seek a superseding indictment lies within th[e] broad

discretion of the State. A superseding indictment is an indictment obtained

without the dismissal of a prior indictment. Where there has been no

jeopardy on the first indictment, a grand jury may return a new indictment

against an accused even though another indictment is pending. Although

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the State may not bring a superseding indictment to harass or intimidate the

accused, a legitimate decision to bring a superseding indictment is uniquely

within the State’s authority. Thus, the State may obtain a superseding

indictment at any time prior to trial without dismissing the pending

indictment and may then select the indictment under which to proceed at

trial.

State v. Harris, 33 S.W.3d 767, 771 (Tenn. 2000) (internal citations and footnote

omitted).

When the trial court granted Defendant’s motion, the judgments from the first trial

were vacated, and Defendant returned to the pretrial stage of the criminal proceeding,

with the exception of the jury’s acquittal of aggravated rape in count four. Essentially, it

was as if Defendant’s first trial never happened. Thus, because Defendant’s case had not

proceeded to trial, the State had the discretion to seek a superseding indictment. See id.

In any event, excluding count four, which we will discuss in depth later in this

opinion, the original and superseding indictments charged the same offenses. The

Tennessee Supreme Court has previously held that “specific reference to a statute within

the indictment may be sufficient to place the accused on notice of the charged offense.”

State v. Sledge, 15 S.W.3d 93, 95 (Tenn. 2000); see also State v. Carter, 988 S.W.2d 145,

149 (Tenn. 1999), Ruff v. State, 978 S.W.2d 95, 100 (Tenn. 1998). Here, the original

indictment did not list the aggravating factor of the aggravated rape and aggravated

sexual battery counts, but the indictment did refer to the appropriate section of Tennessee

Code Annotated for those offenses. Thus, the original indictment was still sufficient to

put Defendant on notice of the offenses for which he was charged. Additionally, because

the original and the superseding indictment both charged Defendant with committing

aggravated rape and aggravated sexual battery, the State did not improperly amend the

offenses by obtaining a superseding indictment.

Because the State had the discretion to seek a superseding indictment after the trial

court ordered a new trial and because the original and superseding indictment both

charged Defendant with aggravated rape and aggravated sexual battery, the State did not

place Defendant in jeopardy twice for the same offense by seeking the superseding

indictment.

(B) Mandatory joinder of offenses

Under Tennessee Rule of Criminal Procedure 8(a), “[t]wo or more offenses shall

be joined in the same indictment, presentment, or information, with each offense stated in

a separate count, or the offenses consolidated pursuant to Rule 13,” if the offenses are

- 41 -

“based on the same conduct or arise from the same criminal episode”; are “within the

jurisdiction of a single court”; and are “known to the appropriate prosecuting official at

the time of the return of the indictment(s), presentment(s), or information(s).” Tenn. R.

Crim. P. 8(a)(1). “A defendant shall not be subject to separate trials for multiple offenses

falling within Rule 8(a)(1) unless they are severed pursuant to Rule 14.” Tenn. R. Crim.

P. 8(a)(2). All three of the criteria listed in Rule 8(a)(1) must exist before multiple

offenses are required to be joined.

The findings of fact made by a trial court on the mandatory joinder of offenses

“are binding upon this court unless the evidence contained in the record preponderates

against them.” State v. Baird, 88 S.W.3d 617, 620 (Tenn. Crim. App. 2001) (citing State

v. England, 19 S.W.3d 762, 766 (Tenn. 2000)). “However, this court is not bound by the

trial court’s conclusions of law.” Id. (citing State v. Simpson, 968 S.W.2d 776, 779

(Tenn. 1998)). The application of the law to the facts is a question of law that this court

reviews de novo. State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000).

We have previously concluded that the original indictment and the superseding

indictment charged Defendant with the same offenses: aggravated rape, aggravated

sexual battery, and unlawful photography. Because the indictments charged the same

offenses, the State did not “save back” any offenses that arose from the same conduct or

the same criminal episode. See Tenn. R. Crim. P. 8(a), Advisory Comm’n Cmts. Thus,

we conclude that Rule 8 is not implicated in Defendant’s case. Additionally, because

Defendant sought and received a new trial, the State’s superseding indictment did not

cause Defendant to endure unnecessary court proceedings. The trial court properly

concluded that the State was not required to join the offenses alleged in the superseding

indictment with the offenses alleged in the original indictment.

(C) Plain error in the superseding indictment

In our review of this case, we note that the jury acquitted Defendant of aggravated

rape and convicted Defendant of attempted aggravated rape in count four at the

conclusion of the first trial. Once a jury acquits a defendant of a charge, the State may

not pursue a conviction for that offense after the trial court has ordered a new trial. Thus,

the State should not have sought a superseding indictment for aggravated rape in count

five. Instead, the State should have sought a superseding indictment for attempted

aggravated rape. Because Defendant was subjected to jeopardy for aggravated rape in

count four during the original trial and the jury acquitted him of that offense, the

prosecution for aggravated rape in count five in the second trial was plain error. Thus,

we vacate Defendant’s conviction for aggravated rape in count five. Because the original

jury found Defendant guilty of the lesser included offense of attempted aggravated rape

and the second jury found Defendant guilty of the greater offense of aggravated rape, we

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conclude that the trial court should modify Defendant’s conviction in count five to

attempted aggravated rape. We will address the sufficiency of this conviction later in this

opinion. Additionally, on remand, the trial court should enter an amended judgment

reflecting the imposition of the minimum sentence within the applicable range for count

five.

(2) Prosecutorial vindictiveness

Defendant asserts that “[t]he State’s election to file a superseding indictment and

include charges in the second indictment that it failed to include on the original

indictment creates a ‘realistic likelihood’ of prosecutorial retaliation.” Defendant argues

that because the original indictment only charged him with assault and the superseding

indictment charged him with aggravated rape and aggravated sexual battery, the

superseding indictment greatly increased his punishment exposure, creating a rebuttable

presumption of prosecutorial vindictiveness. The State does not specifically address this

argument. Because Defendant raises this issue for the first time on appeal, we conclude

that he has waived plenary review of this issue and we will review only for plain error.

Rule 36(a) of the Tennessee Rules of Appellate Procedure states that “[n]othing in

this rule shall be construed as requiring relief be granted to a party responsible for an

error or who failed to take whatever action was reasonably available to prevent or nullify

the harmful effect of an error.” Tenn. R. App. P. 36(a). “The failure to make a

contemporaneous objection constituted waiver of the issue on appeal.” State v. Gilley,

297 S.W.3d 739, 762 (Tenn. Crim. App. 2008). However, “[w]hen necessary to do

substantial justice,” this court may “consider an error that has affected the substantial

rights of a party” even if the issue was waived. Tenn. R. App. P. 36(b). Such issues are

reviewed under plain error analysis. State v. Hatcher, 310 S.W.3d 788, 808 (Tenn.

2010).

Plain error relief is “limited to errors that had an unfair prejudicial impact which

undermined the fundamental fairness of the trial.” State v. Adkisson, 899 S.W.2d 626,

642 (Tenn. Crim. App. 1994). In order to be granted plain error relief, five criteria must

be met: (1) the record must clearly establish what occurred in the trial court; (2) a clear

and unequivocal rule of law must have been breached; (3) a substantial right of the

accused must have been adversely affected; (4) the accused did not waive the issue for

tactical reasons; and (5) consideration of the error is “necessary to do substantial justice.”

Adkisson, 899 S.W.2d at 641-42 (quoting Tenn. R. App. P. 36(b)); see also State v. Smith,

24 S.W.3d 274, 282-83 (Tenn. 2000) (formally adopting the Adkisson standard for plain

error relief). When it is clear from the record that at least one of the factors cannot be

established, this court need not consider the remaining factors. Smith, 24 S.W.3d at 283.

- 43 -

The defendant bears the burden of persuasion to show that he is entitled to plain error

relief. State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007).

It is a violation of basic due process to punish a person for choosing to exercise his

or her constitutional rights. North Carolina v. Pearce, 395 U.S. 711, 724-25 (1969). The

Tennessee Supreme Court has held that, even in the absence of proof of actual bad faith

or malice, there is a rebuttable presumption of prosecutorial vindictiveness that may arise

if the circumstances pose a “realistic likelihood” of prosecutorial retaliation. State v.

Phipps, 959 S.W.2d 538, 546 (Tenn. 1997). Our supreme court established the following

criteria for assessing whether a “realistic likelihood” of prosecutorial retaliation exists:

(1) “[w]hether the right asserted by the defendant would result in duplicable expenditures

of prosecutorial resources”; (2) “whether the prosecution would be required to do over

again what it thought it had already done correctly once”; (3) “whether the prosecutor has

a personal stake or an interest in self vindication”; (4) “whether institutional biases

militated against retrial of a decided question”; and (5) “whether the prosecutorial

decision to increase the charge or sentence was made after the initial trial was completed

rather than in a pre-trial context.” Id. If the circumstances in a particular case “give rise

to a realistic likelihood of prosecutorial retaliation[,]” the State must establish, by clear

and convincing evidence, that a legitimate purpose motivated the challenged decision.

Id.

If proven, allegations of prosecutorial vindictiveness or selective prosecution in

the institution of a prosecution may warrant dismissal of the indictment based on

constitutional concerns. State v. Skidmore, 15 S.W.3d 502, 508 (Tenn. Crim. App. 1999)

(citing Blackledge v. Perry, 417 U.S. 21, 27 (1974)). However, if a prosecutor has

probable cause to believe the accused committed the underlying offense, the decision to

prosecute the accused rests entirely within the prosecutor’s discretion, subject to certain

constitutional limitations. Id. (citing State v. Superior Oil, Inc., 875 S.W.2d 658, 660

(Tenn. 1994); Quillen v. Crockett, 928 S.W.2d 47, 51 (Tenn. Crim. App. 1995)).

Here, we conclude that the facts before us do not create a rebuttable presumption

of prosecutorial vindictiveness because there is no “reasonable likelihood” of

prosecutorial retaliation. See Phipps, 959 S.W.2d at 546. Defendant has not presented

any evidence that the prosecutors involved in his trials had “a personal stake or an

interest in self[-]vindication[.]” See id. The State has consistently asserted that it sought

a superseding indictment to “clarify” that it intended to prosecute Defendant for

aggravated rape and aggravated sexual battery on the theory that the victim, E.L., was

mentally incapacitated during the offenses. Further, there is no evidence that any

“institutional biases militate[] against retrial” because the trial court ordered a new trial

prior to when the State sought a superseding indictment. See State v. Frank Michael

Vukelich, No. M1999-00618-CCA-R3-CD, 2001 WL 1044617, at *8 (Tenn. Crim. App.

- 44 -

Sept. 11, 2001) (concluding that “no institutional biases militated against retrial of a

decided question, because the Defendant was to be tried again anyway”), perm. app.

denied (Tenn. Apr. 1, 2002).

Further, Defendant has not established that the State acted with actual malice

when it sought a superseding indictment prior to Defendant’s second trial. See United

States v. Goodwin, 457 U.S. 368, 384 (1982). As we have previously concluded, the

original indictment and the superseding indictment both charged Defendant with

aggravated rape, aggravated sexual battery, and unlawful photography. Because

Defendant has not established a presumption of prosecutorial vindictiveness or the

presence of actual vindictiveness, we conclude that no substantial right was affected by

the State’s decision to obtain a superseding indictment. Therefore, Defendant is not

entitled to plain error relief on this ground.

(3) Exclusion of Defendant’s intoxication expert

Defendant contends that the trial court erred in excluding the testimony of a

defense witness, Dr. Sidney Alexander. He asserts that a major part of his trial strategy

was arguing that “he was so intoxicated from alcohol at the time of the alleged offenses

that he did not have the capacity to form the intent necessary to be criminally responsible

for the offenses committed by his co-defendants.” Defendant argues that the trial court’s

decision prejudiced him and violated his right to due process and a fair trial. The State

responds that “the trial court acted within its discretion in excluding the testimony based

on the defendant’s untimely notice and the expert’s lack of qualifications.”

On September 15, 2014, prior to his first trial, Defendant filed a notice of intent to

offer expert testimony on his mental state. The notice stated that Defendant intended to

call Dr. Stephanie Stolinsky at trial. The record reveals that the State received Dr.

Stolinsky’s report on October 13, 2014. On October 17, 2014, the State filed a motion to

exclude Dr. Stolinsky’s testimony on the ground that her testimony would not be

admissible under Tennessee Rules of Evidence 401 and 702. Dr. Stolinsky’s report was

not included in the record on appeal as an exhibit, but it was attached to the State’s

motion. Dr. Stolinsky did not testify at Defendant’s first trial.

On September 25, 2015, Defendant filed a “Motion for Leave of Court to Tender

Motion on Experts[.]” The Motion stated that, on September 11, 2015, the trial court

held a scheduling conference and set a date for filing of notice of experts. Defendant

asked for an extension of thirty days to file a notice of expert testimony. Defendant

attached an email to this motion from the Criminal Court Clerk to all prosecutors and

defense attorneys involved in the case. The email referred to a meeting in the trial

judge’s chambers that was held that morning and stated that September 25, 2015, was the

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deadline for filing motions on experts. The trial court granted this motion on September

25, 2015, according to a minute entry from that date. On October 12, 2015, Defendant

filed a “Motion for Leave of Court to File Pretrial Motions[.]” This motion stated that

Defendant had “identified and retained particular experts” and asked the trial court to

extend its original deadline for the filing of pretrial motions on October 9, 2015. At a

motion hearing on October 19, 2015, the trial court set a deadline of December 1, 2015,

for Defendant to file a notice of expert testimony.

On May 6, 2016, the State filed a motion to exclude Defendant’s experts, Jim

Kempvanee and Dr. Alexander. The State noted that, at the October 19, 2015 motion

hearing, the trial court set December 1, 2015, as the deadline for Defendant to file a

notice of expert witnesses. The State’s motion also alleged that Defendant had failed to

provide any reports from his experts. On May 10, 2016, Defendant filed a reply to the

State’s motion, in which he asserted that, on October 9, 2015, he filed a motion to renew

all motions previously filed in the first trial, which included motions “related to the use of

expert testimony[.]” The reply also noted that Defendant gave the State notice on April

28, 2016, that he intended to call Dr. Alexander at trial to testify regarding Defendant’s

mental condition and Mr. Kempvanee to testify on “digital forensic analysis and

technology.” Defendant argued that the State would not suffer any prejudice by the

testimony of these two experts at trial because the State had been aware since the first

trial that Defendant might introduce expert testimony. Defendant also argued that Dr.

Alexander and Mr. Kempvanee were defense rebuttal witnesses and, therefore, not

subject to disclosure under Tennessee Rule of Criminal Procedure 16(b)(1)(B)(i)-(iii).

The trial court granted the State’s motion to exclude the testimony of Dr.

Alexander and denied the State’s motion to exclude the testimony of Mr. Kempvanee on

May 18, 2016. The order stated that the trial court “specifically set a deadline for the

defense to give notice of an expert and provide a report of that expert’s findings and that

was not done.” On May 31, 2016, Defendant filed a motion asking the trial court to

reconsider its grant of the State’s motion to exclude the testimony of Dr. Alexander. The

motion to reconsider reiterated many of Defendant’s previous arguments regarding the

admission of Dr. Alexander’s testimony. Notably, Defendant attached Dr. Alexander’s

report, dated May 27, 2016, to the motion to reconsider.

On May 31, 2016, Defendant filed an “Application for Rule 10 Extraordinary

Appeal and Stay of the Trial Proceedings” with this court.13 Defendant asserted in the

application that “[t]he actions of the trial court in precluding the defense from presenting

13

Defendant’s application and this court’s order denying the application were not included in the

record on appeal. To assist in resolution of Defendant’s case, we take judicial notice of these prior

proceedings. See Tenn. R. App. P 13(c); State v. Lawson, 291 S.W.3d 864, 869 (Tenn. 2009); State ex rel

Wilkerson v. Bomar, 376 S.W.2d 451, 453 (Tenn. 1964).

- 46 -

evidence regarding [Defendant]’s mental condition bearing on the issue of guilt has so far

departed from the accepted and usual course of judicial proceedings as to require

immediate review[.]” Defendant argued that the trial court’s decision to exclude Dr.

Alexander’s testimony violated his right to present a defense and was an abuse of

discretion because the State would not be actually prejudiced if Dr. Alexander testified.

On June 1, 2016, this court denied Defendant’s Rule 10 appeal. This court

concluded that Defendant did “not satisf[y] the ‘narrowly circumscribed’ requirements

for an extraordinary appeal.” This court determined that “[t]he trial court’s order reflects

that the trial court followed the accepted and usual course of judicial proceedings prior to

ruling on the four motions at issue.”

On June 7, 2016, the trial court ruled that it would hold a jury-out hearing to

determine whether the testimony of Dr. Alexander was admissible. The court minutes

from June 13, 2016, reflect that the trial court denied Defendant’s motion to reconsider.

In a written order filed on June 14, the trial court set out its reasoning for denying

Defendant’s motion after the hearing. The trial court found that,

1) although each party has had ample time to conduct an evaluation of

[D]efendant . . . , neither party has secured an evaluation of the defendant;

(2) although Dr. J. Sid Alexander testified regarding his psychiatric

expertise, Dr. Alexander did not demonstrate any specialized expert

opinion knowledge or training regarding toxicology; and (3) Dr. Alexander

relied on information supplied via email by defense counsel and did not

base any opinion on data, documentation or scientific evidence. Further,

the Court finds that the underlying facts indicate a lack of trustworthiness

of Dr. Alexander’s testimony.

On June 10, 2016, prior to the commencement of the second day of voir dire, the

trial court held a hearing on Defendant’s motion to allow Dr. Alexander to testify

regarding Defendant’s mental state and intoxication during the offenses. The trial court

heard arguments from both Defendant and the State and asked to hear from Dr.

Alexander on the first day of trial. On June 13, 2016, the trial court held a jury-out

hearing on the admissibility of Dr. Alexander’s testimony. The State and Defendant

stipulated that Dr. Alexander was a board-certified psychiatrist. Dr. Alexander testified

that, to prepare the letter that Defendant submitted to the trial court, he examined data

given to him by defense counsel. This data was Defendant’s “best recollection” of the

alcohol that he consumed prior to the offenses. Dr. Alexander explained that he was

retained by Defendant to calculate Defendant’s blood alcohol content (“BAC”) during the

offenses. He looked at “many different tables” and “many different sources of

information” but focused on a formula for calculating BAC based on “Widmark’s

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principle[.]”14 Dr. Alexander noted that the number of drinks that he used to calculate

Defendant’s BAC was “the most conservative number” because Defendant stated that he

consumed more alcoholic drinks than he could specifically remember. Dr. Alexander

also calculated how Defendant’s body metabolized alcohol by multiplying the fourteen

hours during which Defendant consumed alcohol with 0.015; this number represented

“the blood alcohol that was metabolized and no longer present.” Finally, Dr. Alexander

subtracted the first blood alcohol figure from the second to arrive at “what the blood

alcohol level most likely was at 2 a.m.” Dr. Alexander testified that the most reliable

estimate of Defendant’s BAC during the offenses was 0.22. He estimated that

Defendant’s BAC was between 0.25 and 0.27 immediately after Defendant left Tin Roof.

Dr. Alexander stated the following about his professional experience with the

effect of alcohol on individuals:

Alcohol use is very widespread in our country, and alcohol abuse is

also widespread. And, with that, the interface with psychiatry and alcohol

occurs in every phase of practice that I’ve ever had. So whether it’s an

outpatient private practice, outpatient in a drug and alcohol clinic, which

I’ve worked there. I’ve worked in patient drug and alcohol units. For

twelve years, I was the medical director of a very large state psychiatric

hospital. We had many, many people that were admitted to the hospital

with different levels of intoxication. And I also served as the night call

physician one night a week for a number of years. So, I would see the

people as they were brought in by the police and see the effects directly of

what level of alcohol.

Also, in the last ten or eleven years, I’ve worked in two different

general hospitals. So, we don’t have any psychiatric unit, but we see

people that overdose on alcohol or get ill enough medically to come in for

alcohol withdrawal. And we see people with blood alcohol levels at just

about any range, but even as high as .5, .6.

Dr. Alexander stated that he had treated “many thousands” of patients whose cases

“involve[d] alcohol and the effects of all alcohol[.]”

14

Dr. Alexander explained that Widmark’s principle “involves forming the volume of alcohol

that is taken . . . in grams” and then “plug[ging] those numbers into the equation, convert[ing] it to

milliliters and then multiply[ing] it by .789, which is the specific gravity of alcohol.” Next, Dr.

Alexander divided the specific gravity of alcohol by Defendant’s weight in kilograms and multiplied the

result by “a standard conversion factor of 0.68.” The result “represents a male individual’s distribution of

alcohol in their body[.]” Dr. Alexander next converted the number to liters to obtain the BAC.

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Dr. Alexander also learned that Defendant had sustained concussions in high

school as well as his freshman year of college. Additionally, Defendant suffered another

possible concussion shortly before the offenses during a motor vehicle accident. Dr.

Alexander testified that, although he did not have any of Defendant’s medical records on

these concussions, head injuries were “a factor that would have to be considered in this

situation.” He explained that the symptoms of alcohol consumption would be

“exacerbated or worsened” in a person with a previous head injury. Further, Dr.

Alexander stated that Defendant was “a new drinker” who would have likely displayed

the following symptoms at a BAC of 0.22: “being uncoordinated, unbalanced, slurred

speech, difficulty making decisions, difficulty perceiving the environment, difficulty

assessing situations, [and] basically dysfunction of the brain.” Dr. Alexander testified

that, in his professional opinion and to a reasonable degree of medical certainty, the

Defendant’s decision-making ability was impaired at the time of the offenses. More

specifically, Dr. Alexander explained that Defendant “would not have been cognizant

enough to be able to form intent or to have more than first order thinking.”

On cross-examination, Dr. Alexander stated that Defendant retained his services in

early- to mid-April 2016. Dr. Alexander testified that he was not board-certified in

toxicology or neuropharmacology. He could not specifically describe any training he had

received in toxicology after medical school. He stated that he did not normally prepare

reports like the one he prepared for Defendant. Dr. Alexander agreed that he based his

opinion and report on information given to him by defense counsel, namely, an email

with “a series of questions” and Defendant’s answers to the questions; he did not

interview Defendant. Dr. Alexander testified that he did not have enough information to

determine whether Defendant was malingering. He also stated that he did not review

video surveillance of Defendant’s actions on the night of the offenses prior to composing

his report.

The trial court noted that the State did not have an opportunity to retain an expert

to rebut Dr. Alexander’s findings. The trial court also noted that neither the State nor the

defense asked an expert to evaluate Defendant. Further, the trial court found that Dr.

Alexander was an expert in psychiatry and “did not demonstrate any particular expertise

in the field of toxicology,” which the trial court found to be “extremely important.”

Additionally, the trial court found that Dr. Alexander’s “conclusions and opinions were

based upon information supplied by defense counsel as admitted in the form of an e-mail

and not based upon any scientific information or documented information or any

particular evaluation that he had provided.” Therefore, the trial court concluded that “the

underlying facts indicate[d] a lack of trustworthiness in this particular case[,]” and the

trial court held that Dr. Alexander’s testimony should be excluded.

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(A) Tennessee Rules of Evidence 702 and 703

“In Tennessee the qualifications, admissibility, relevancy and competency of

expert testimony are matters which largely rest within the sound discretion of the trial

court.” State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993). “If 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.” Tenn. R. Evid. 702.

The facts or data in the particular case upon which an expert bases

an opinion or inference may be those perceived by or made known to the

expert at or before the hearing. If of a type reasonably relied upon by

experts in the particular field in forming opinions or inferences upon the

subject, the facts or data need not be admissible in evidence. Facts or data

that are otherwise inadmissible shall not be disclosed to the jury by the

proponent of the opinion or inference unless the court determines that their

probative value in assisting the jury to evaluate the expert’s opinion

substantially outweighs their prejudicial effect. The court shall disallow

testimony in the form of an opinion or inference if the underlying facts or

data indicate lack of trustworthiness.

Tenn. R. Evid. 703.

In McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 265 (Tenn. 1997), the

Tennessee Supreme Court adopted the following non-exclusive list of factors to assist

courts in determining whether scientific evidence is reliable: (1) “whether scientific

evidence has been tested and the methodology with which it has been tested”; (2)

“whether the evidence has been subjected to peer review or publication”; (3) “whether a

potential rate of error is known”; (4) “whether, as formerly required by [Frye v. United

States, 293 F. 1013 (D.C. Cir. 1923)], the evidence is generally accepted in the scientific

community”; and (5) “whether the expert’s research in the field has been conducted

independent of litigation.” Additionally, the supreme court has considered “the expert’s

qualifications for testifying on the subject at issue[,]” see Brown v. Crown Equipment

Corp., 181 S.W.3d 268, 274 (Tenn. 2005), which particularly applies “where the expert’s

personal experience is essential to the methodology or analysis underlying his or her

opinion.” Id. Another factor to consider is “the connection between the expert’s

knowledge and the basis for the expert’s opinion[,]” which particularly applies when “the

expert’s opinions are based upon experience or observations as these areas are not easily

verifiable.” Id. at 275. Consideration of this factor “ensure[s] that an ‘analytical gap’

does not exist between the data relied upon and the opinion offered.” Id.

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As noted above, the trial court excluded Dr. Alexander’s testimony because “the

underlying facts indicate[d] a lack of trustworthiness in this particular case[.]”

Additionally, the trial court found that Dr. Alexander did not examine Defendant, “did

not demonstrate any specialized expert opinion knowledge or training regarding

toxicology[,]” and “relied on information supplied via email by defense counsel and did

not base any opinion on data, documentation or scientific evidence.” The trial court’s

findings are supported by Dr. Alexander’s testimony that, to prepare the letter that

Defendant submitted to the trial court, he examined data given to him by defense counsel.

This data was Defendant’s “best recollection” of the amount of alcohol that he consumed

prior to the offenses. Dr. Alexander was not board-certified in toxicology or

neuropharmacology, did not receive specific training in toxicology after medical school,

and did not normally prepare reports such as the one that he prepared for Defendant.

We conclude that the trial court properly exercised its discretion by excluding Dr.

Alexander’s testimony. See State v. Lowe, 552 S.W.3d 842, 865-66 (Tenn. 2018)

(concluding that an expert’s testimony would not have substantially assisted the trial

court in determining whether the defendant’s statement to police was voluntary because

the expert did not review the interview between the defendant and police); see also State

v. Brimmer, 876 S.W.2d 75, 79 (Tenn. 1994) (affirming the trial court’s exclusion of

expert testimony as “not sufficiently trustworthy” because the expert did not review the

complete interrogation).

(B) Right to present a defense

A defendant’s right to present his own witnesses to establish a defense constitutes

a fundamental element of due process and is protected by the Compulsory Process Clause

of the Sixth Amendment. Washington v. Texas, 388 U.S. 14, 19 (1967). “. . .

Washington v. Texas clearly established that, under the Sixth Amendment, a state may

not arbitrarily deny a defendant the right to call a witness whose testimony is relevant and

material to the defense.” Davis v. Straub, 430 F.3d 281, 290 (6th Cir. 2005) (citing

Washington, 388 U.S. at 23). Government conduct that rises to the level of “substantial

interference” with a witness’s “free and unhampered determination to testify” violates

this right. United States v. Foster, 128 F.3d 949, 953 (6th Cir. 1997); see, e.g., Webb v.

Texas, 409 U.S. 95, 98 (1972) (per curiam) (reversing the defendant’s conviction when

the trial court severely admonished the sole witness proffered by the defense who

declined to testify as a result); United States v. Thomas, 488 F.2d 334, 336 (6th Cir.

1973) (reversing a conviction obtained after a Secret Service agent, in an ex parte

communication, advised a defense witness of possible prosecution if he testified). Even

when such interference occurs, however, a violation of a defendant’s right to call

witnesses in his defense is subject to harmless error analysis. United States v.

Emuegbunam, 268 F.3d 377, 400 (6th Cir. 2001); Foster, 128 F.3d at 953 & n. 4.

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However, a defendant’s right to present witnesses is not absolute:

In appropriate cases, the right must yield to other legitimate interests in the

criminal trial process. Specifically, [i]n the exercise of this right, the

accused, as is required of the State, must comply with established rules of

procedure and evidence designed to assure both fairness and reliability in

the ascertainment of guilt and innocence. However, these procedural and

evidentiary rules of exclusion may not be applied mechanistically to defeat

the ends of justice. Such rules do not abridge an accused’s right to present

a defense so long as they are not arbitrary or disproportionate to the

purposes they are designed to serve.

State v. Brown, 29 S.W.3d 427, 432 (Tenn. 2000) (internal citations and quotation marks

omitted) (alteration in original). In determining whether a defendant’s right to present a

defense has been violated by the exclusion of evidence, courts should consider whether

“(1) the excluded evidence is critical to the defense; (2) the evidence bears sufficient

indicia of reliability; and (3) the interest supporting exclusion of the evidence is

substantially important.” Id. at 433-34 (citing Chambers v. Mississippi, 410 U.S. 284,

298-301 (1973)).

The United States Supreme Court has recognized that an exclusion of evidence is

unconstitutional when it “significantly undermine[s] fundamental elements of the

accused’s defense.” United States v. Scheffer, 523 U.S. 303, 315 (1998). The question of

whether excluded evidence is critical to a defense is a fact-specific inquiry. See

Chambers, 410 U.S. at 303.

1. Evidence critical to the defense

In this case, Dr. Alexander’s testimony on Defendant’s approximate BAC at the

time of the offenses would have assisted in establishing Defendant’s theory of the case—

that his high level of intoxication prevented him from knowingly participating in the

offenses and thus being criminally responsible. Dr. Alexander testified that, in his

professional opinion and to a reasonable degree of medical certainty, the Defendant’s

decision-making ability was impaired at the time of the offenses. More specifically, Dr.

Alexander explained that Defendant “would not have been cognizant enough to be able to

form intent or to have more than first order thinking.” Thus, we conclude that Dr.

Alexander’s testimony was critical to Defendant’s trial strategy. However, even though

Dr. Alexander’s testimony was critical to the defense, we must examine the other factors

relevant to the consideration of whether the exclusion of Dr. Alexander’s testimony

violated Defendant’s right to present a defense.

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2. Sufficient indicia of reliability

As stated previously in this opinion, the trial court excluded Dr. Alexander’s

testimony because “the underlying facts indicate[d] a lack of trustworthiness” and

because Dr. Alexander did not examine Defendant, “did not demonstrate any specialized

expert opinion[,] knowledge[,] or training regarding toxicology[,]” “relied on information

supplied via email by defense counsel[,]” and “did not base any opinion on data,

documentation or scientific evidence.” Dr. Alexander relied on self-serving and

uncorroborated statements from Defendant to calculate Defendant’s approximate BAC

during the offenses. Thus, we agree with the trial court that Dr. Alexander’s proposed

testimony and conclusions were unreliable, and we give this factor considerable weight.

3. Interest supporting exclusion

In this case, the interests supporting exclusion are the interests behind Tennessee

Rule of Evidence 703, which was discussed previously in this opinion. Further, we have

previously determined that the trial court properly exercised its discretion under Rule 703

to exclude Dr. Alexander’s testimony. Thus, the interests behind Rule 703 support the

exclusion of Dr. Alexander’s testimony. Because we have previously concluded that Dr.

Alexander’s testimony was unreliable, we also conclude that Defendant has not

established that the trial court’s exclusion of Dr. Alexander’s testimony violated his Sixth

Amendment right to present witnesses. See State v. Joshua Hunter Bargery, No. W2016-

00893-CCA-R3-CD, 2017 WL 4466559, at *42-44 (Tenn. Crim. App. Oct. 6, 2017), no

perm. app. filed.

(4) Jury selection

Defendant asserts that the trial court violated Tennessee Rule of Criminal

Procedure 24(b)(2) by denying Defendant’s request to question prospective jurors about

other college rape cases that had recently occurred in the United States. He argues that

he was unable to “effectively challenge for cause or to peremptorily challenge jurors

based on their attitudes about those cases.” Defendant also contends that the trial court

failed to timely give the prospective jurors the admonitions required by Tennessee Rule

of Criminal Procedure 24(g). He asserts that the trial court’s failure to admonish the

prospective jurors at the beginning of jury selection made it virtually impossible to select

a fair and impartial jury, preventing him from receiving a fair trial.

The State argues that the trial court properly denied Defendant’s motion to strike

the venire because Defendant “failed to establish that any of the jurors who served on his

trial were prejudiced by any outside influence.” More specifically, the State notes that

“only [two] of the [twenty-five] prospective jurors mentioned in . . . [D]efendant’s brief

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ultimately served on the jury[,]” and those two jurors “indicated that they could be fair

and impartial.” The State also contends that the trial court did not err by waiting to

admonish the prospective jurors until the second day of voir dire because “the trial court

explained that, due to information that some prospective jurors had obtained extraneous

information about the case, they had elected to question them further during individual

voir dire.”

On June 9, 2016, after the first day of jury selection, Defendant filed a motion to

strike the venire or to conduct individual voir dire. In the motion, Defendant asserted

that, during individual voir dire, several prospective jurors stated that members of the

panel had been discussing the case with each other. Other prospective jurors stated that

they had some prior knowledge of the case from hearing about it on local news or from

friends or family members. The trial court stated that the “problem can be resolved in the

voir dire process.” Defense counsel asked the trial court to allow individual voir dire.

The trial court stated that it would “ask a couple of questions” of the next group of forty

prospective jurors. The trial court also stated that the State and Defendant could discuss

sensitive issues with individual jurors. Defense counsel also noted that the trial court did

not admonish the venire to refrain from finding extrajudicial information about the case

under Tennessee Rule of Criminal Procedure 24(g) and consequently, prospective jurors

searched for information on Defendant’s case and previous trials on the Internet and

discussed it amongst themselves. The trial court stated that voir dire would proceed as

planned. As the voir dire process progressed, the trial court asked the prospective jurors

if they “have had any discussion about this particular case, or heard someone discuss this

particular case[.]” The trial court took jurors who responded affirmatively to the jury

deliberation room where the State and Defendant conducted individual voir dire.

J.M.15 indicated during group voir dire that he heard prospective jurors discussing

Defendant’s case on June 8. During individual voir dire in the jury deliberation room,

J.M. stated that he heard “that it happened three years ago, and one of his [co-

]defendants[] . . . had a trial already.” He explained that he first heard about Defendant’s

case on the morning of June 8 and that he did not form an opinion regarding Defendant’s

guilt or innocence. He affirmed that he could decide the case solely based on the

evidence admitted at trial. J.M. was later selected to serve on Defendant’s jury.

15

Defendant’s primary brief and reply brief discuss the voir dire of several prospective jurors;

however, we will only address Defendant’s arguments on this issue as they relate to individuals who were

selected to serve on Defendant’s jury because we must determine whether the jury who deliberated on

Defendant’s case was fair and impartial. See State v. Howell, 868 S.W.2d 238, 248 (Tenn. 1993); see also

State v. Thompson, 768 S.W.2d 239, 246 (Tenn. 1989). Additionally, we will refer to these jurors by their

initials to protect their privacy. No disrespect is intended.

- 54 -

During individual voir dire in the courtroom, M.N. affirmed that, if selected to

serve on Defendant’s jury, she would decide the case based on the evidence introduced at

trial and would be fair and impartial. M.N. stated that one of her daughter’s friends had

been molested as a child; she stated on the jury questionnaire that this was a “life-lasting

experience.” M.N. stated that the molestation of her daughter’s friend would not have

any effect on her ability to deliberate fairly and impartially on Defendant’s case. M.N.

was later selected to serve on Defendant’s jury.

Later in the day of June 9, Defendant renewed his motion to strike the venire. He

also requested that the trial court give him two more peremptory challenges. Defendant

asserted that he had used two peremptory challenges on prospective jurors who should

have been struck for cause. The trial court denied both requests.

The Sixth Amendment to the United States Constitution and article I, section 9 of

the Tennessee Constitution both guarantee the accused the right to trial “by an impartial

jury.” U.S. Const. amend. VI; Tenn. Const. art. I, § 9. The Tennessee Constitution has

been interpreted to guarantee a jury free from “disqualification on account of some bias

or partiality toward one side or the other of the litigation.” Carruthers v. State, 145

S.W.3d 85, 94 (Tenn. Crim. App. 2003) (quoting State v. Akins, 867 S.W.2d 350, 354

(Tenn. Crim. App. 1993)). Bias is “a leaning of the mind; propensity or prepossession

towards an object or view, not leaving the mind indifferent; a bent; for inclination.” Id.

“The ultimate goal of voir dire is to see 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.” Howell, 868 S.W.2d at 247 (citing State v.

Harris, 839 S.W.2d 54, 65 (Tenn. 1992); State v. Simon, 635 S.W.2d 498, 508 (Tenn.

1982)).

A trial court’s decisions regarding juror qualifications are reviewed for an abuse of

discretion. State v. Hugueley, 185 S.W.3d 356, 378 (Tenn. 2006); State v. Mickens, 123

S.W.3d 355, 375 (Tenn. Crim. App. 2003). The trial court’s decision will not be reversed

absent “manifest error.” Howell, 868 S.W.2d at 248. On appeal, this court must

determine “whether the jury that tried the case was fair and impartial.” State v. Davidson,

509 S.W.3d 156, 193 (Tenn. 2016).

(A) Questioning prospective jurors about other rape cases

Peremptory challenges are intended to exclude jurors “suspected of bias or

prejudice,” while the challenge for cause should be used to exclude potential jurors

“whose bias or prejudice rendered them unfit.” State v. Pamplin, 138 S.W.3d 283, 285-

86 (Tenn. Crim. App. 2003) (quoting Manning v. State, 292 S.W. 451, 455 (Tenn. 1927))

(internal quotation marks omitted). Tennessee Rule of Criminal Procedure 24(b)

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provides that the trial court “may ask potential jurors appropriate questions regarding

their qualifications to serve as jurors in the case” and “shall permit the parties to ask

questions for the purpose of discovering bases for challenge for cause and intelligently

exercising peremptory challenges.” Tenn. R. Crim. P. 24(b)(1). Additionally, “[o]n

motion of a party or its own initiative, the court may direct that any portion of the

questioning of a prospective juror be conducted out of the presence of the tentatively

selected jurors and other prospective jurors.” Tenn. R. Crim. P. 24(b)(2).

The Tennessee Rules of Criminal Procedure also set out the following procedure

for challenges for cause:

After examination of any juror, the judge shall excuse that juror

from the trial of the case if the court is of the opinion that there are grounds

for challenge for cause. After the court has tentatively determined that the

jury meets the prescribed qualifications, counsel may conduct further

examination and, alternately, may exercise challenges for cause.

Tenn. R. Crim. P. 24(c)(1). “Any party may challenge a prospective juror for cause if: . .

. [t]here exists any ground for challenge for cause provided by law” or “[t]he prospective

juror’s exposure to potentially prejudicial information makes the person unacceptable as

a juror.” Tenn. R. Crim. P. 24(c)(2)(A)-(B). In determining whether a prospective juror

has been exposed to potentially prejudicial information, the trial court “shall consider

both the degree of exposure and the prospective juror’s testimony as to his or her state of

mind.” Tenn. R. Crim. P. 24(c)(2)(B). “A prospective juror who states that he or she

will be unable to overcome preconceptions is subject to challenge for cause no matter

how slight the exposure.” Id.

If the prospective juror has seen or heard and remembers information that

will be developed in the course of trial, or that may be inadmissible but is

not so prejudicial as to create a substantial risk that his or her judgment will

be affected, the prospective juror’s acceptability depends on whether the

court believes the testimony as to impartiality. A prospective juror who

admits to having formed an opinion about the case is subject to challenge

for cause unless the examination shows unequivocally that the prospective

juror can be impartial.

Id. “Jurors need not be totally ignorant of the facts of the case on which they sit [and]

[e]ven the formation of an opinion on the merits will not disqualify a juror

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