State v. Diallo Lauderdale ( 2000 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
March 4, 2003 Session
STATE OF TENNESSEE v. DIALLO JAMEL LAUDERDALE
Appeal from the Circuit Court for Henry County
No. 13058 Julian P. Guinn, Judge
No. W2001-01296-CCA-R3-CD - Filed September 5, 2003
The defendant, Diallo Jamel Lauderdale, was convicted by a Henry County Circuit Court jury of first
degree felony murder, and the trial court sentenced him as a violent offender to life in the
Department of Correction. The defendant appeals, claiming that (1) the evidence is insufficient to
support his conviction; (2) the wording of the felony murder by aggravated child abuse and neglect
statute resulted in an indictment that failed to inform him of the charged offense, is vague, and
resulted in him being convicted by less than a unanimous verdict; (3) the trial court erred by denying
his motion to suppress; and (4) these cumulative errors and a juror’s failing to mention until after
the jury had been sworn that she was a friend of the victim’s family denied him the right to a fair
trial. We affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
JOSEPH M. TIPTON, J., delivered the opinion of the court, in which DAVID H. WELLES and JAMES
CURWOOD WITT, JR., JJ., joined.
B. Kirk Vandivort and Jerred A. Creasy, Charlotte, Tennessee, for the appellant, Diallo Jamel
Lauderdale.
Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; G.
Robert Radford, District Attorney General; and Steven L. Garrett, for the appellee, State of
Tennessee.
OPINION
This case relates to the death of seven-year-old Dominique Porter. Officer Joshua Mann Frey
of the Paris Police Department testified that he responded to an Emergency Medical Services (EMS)
call at 1003 Reynolds Street on May 29, 2000, at 6:04 p.m. He said that when he arrived at the
scene, the victim was in an ambulance and appeared to have burn marks on the left side of her face
and neck. He said that the victim was unresponsive and that he interviewed Archilene Lauderdale,
the defendant’s mother, who informed him that she and her husband had just arrived at the
defendant’s apartment, found the victim unresponsive, and telephoned EMS. He said that three or
four other children and Mrs. Lauderdale’s husband were also at the scene but that the defendant was
not present. He said he went into the living room but did not notice anything out of the ordinary.
Officer Frey testified that he went to the emergency room at the Henry County Hospital and
interviewed the defendant. He said the defendant was at the hospital visiting Alecia Porter, who was
the defendant’s girlfriend and the victim’s mother. She was there giving birth to their child. He said
that the defendant was calm and that the defendant told him the victim had gone to bed about 2:00
p.m and was still sleeping when he left the apartment at 5:00 p.m. Officer Frey said he also talked
with a doctor, who told him that the victim’s burns appeared to be two to three days old and that a
CAT scan showed the victim’s brain had shifted from left to right. On cross-examination, Officer
Frey testified that he did not get into the ambulance with the victim but looked at her through the
back door. He said he interviewed Keshonte Porter, the victim’s younger sister. He said that he also
interviewed Alecia Porter and that he tried to interview the defendant’s neighbors but was unable
to contact any of them.
Alecia Lynette Porter, the victim’s mother, testified that she had six children. She said that
three were the defendant’s and that at the time of the victim’s death, she and the defendant had been
together for about four and one-half years. She said that on May 28, 2000, she was in the Henry
County Hospital having a baby. She said that she last saw the victim on May 25, that the victim was
fine at that time, and that she learned about the victim’s injuries on May 29. She said that when she
saw the victim at the Henry County Hospital, the victim was bandaged up and she could only see the
victim’s eyes. She said the victim remained unresponsive and died at Vanderbilt Hospital after life
support was removed. She said the defendant told her the victim had fallen off the bed. She said
that her apartment’s living room had a concrete floor covered with tile and that an oriental rug
partially covered the floor.
On cross-examination, Ms. Porter testified that the victim and Keshonte Porter sometimes
ironed their own clothes and often played at the playground down the street. She said that when the
victim was transported to Vanderbilt Hospital, Dr. Carolyn Orr told her that the victim had scratches
on her neck. She denied telling Dr. Orr that the victim got the scratches while playing at the park
several days before the crime in question. On redirect examination, Ms. Porter testified that to the
best of her knowledge, the defendant was the only person supervising her children while she was in
the hospital.
Dr. Mary Barraza Taylor, a pediatric intensive care physician at Vanderbilt Children’s
Hospital, testified that she was the victim’s treating physician when the victim arrived at Vanderbilt
on May 29 and that Dr. Frederick Barr became the victim’s primary caregiver the next day. She said
the victim was in a coma and unresponsive. She said that the victim stiffened her arms and legs in
response to stimulation and that the victim’s pupils were fixed and dilated at different sizes and did
not respond to light. She said the victim had no spontaneous movement and had abnormal brain
function. She said a dark line with small crescent-shaped marks and dark scratch-type marks were
around the victim’s neck. She said the victim had first and second degree burns that extended from
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her breastbone to her stomach and additional burns on her face, neck, and left leg. She said dark
bruises were in the middle of the victim’s back.
Dr. Taylor testified that there were no obvious cuts or bruises on the victim’s scalp but that
a CAT scan showed a lack of blood to the left side of the victim’s brain. She said that the left side
of the brain was severely swollen and that a small amount of blood had collected outside the brain.
She said the victim basically had no chance of recovering from her neurological injuries. She said
that based on the victim’s injuries, she suspected child abuse and contacted social services and Dr.
Suzanne Starling, a child abuse specialist.
On cross-examination, Dr. Taylor testified that the victim’s burns were caused by scalding
liquid and that her initial report classified the victim’s burns as superficial. She said that some of
the marks on the victim’s neck were scabbed over and that she could not tell how long the scabs had
been present. She said that tests did not show obvious signs of a tear in a blood vessel that would
have inhibited the supply of blood to the victim’s brain. She said the victim had no retinal
hemorrhaging, which is associated with shaking and choking. She said that the victim had been
intubated at the hospital, which means that a tube had been placed in the victim’s throat, and that she
had never seen an intubation cause bruising of the neck. She said that Dr. Barr discovered a fracture
at the base of the victim’s skull but that she did not see the fracture.
Dr. Frederick Earl Barr, an assistant professor in pediatrics and a pediatric intensive care
physician at Vanderbilt University Medical Center, testified that he became the victim’s treating
physician on May 30, 2000. He said that the victim suffered a severe brain injury, that the left side
of her brain was swollen, and that she died on June 2, 2000. He said swelling in the victim’s brain
created pressure, which cut off blood flow to the brain and led to brain death.
On cross-examination, Dr. Barr testified that he was not a neurologist and that he relied on
the radiologist to read CAT scans. He said that there was not enough blood inside the victim’s skull
to cut off the flow of blood to the brain and that it was unusual to see that type of brain injury from
a fractured skull without a large amount of blood around the brain. On redirect examination, Dr.
Barr testified that the victim’s brain injury could have been caused by strangulation.
Dr. Suzanne Key Starling testified that she was a pediatrician and the director of the Child
Abuse and Neglect Program at Vanderbilt Children’s Hospital at the time of the victim’s death. She
said she was notified about the victim on May 30, 2000, and examined the victim that day. She said
the victim was unconscious with no movement at all. She said the victim had several visible
injuries, including second degree burns on her face, chest, and left foot. She said the burns were
oblong and splotchy, indicating they were hot liquid burns. She said that the victim’s left arm was
swollen, that a round bruise was on the victim’s forearm, and that x-rays showed the victim’s arm
was broken. She said that the victim had areas of round bruising in the small of her back and that
children did not bruise in that area accidentally. She said bruising in the small of the back occurred
when a child was hit in the back or suffered a traumatic back injury. She said that the victim had
multiple areas of crescent moon-shaped scabs and cuts on the neck and that she had seen similar
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injuries from fingernails. She said the victim had a red line across the front of her neck, which could
have been a ligature mark.
Dr. Starling testified that the CAT and MRI scans revealed an area of bleeding and swelling
in the left side of the victim’s brain. She said the victim had suffered a significant brain injury that
did not correspond with any natural disease. She said the victim had a skull fracture, which could
have been caused by blunt force to the head. She said the fact that only the left side of the victim’s
brain was swollen meant the victim could have been strangled. She said that she spoke with the
victim’s mother and the defendant and that the defendant told her the victim fell out of a top bunk
bed and was burned by steam from a clothes iron. She said that although she did not ask the
defendant about the marks on the victim’s neck, the defendant told her the victim had been choked
by a playmate three days before the crime in question. She said that the defendant’s explanations
did not account for the victim’s injuries, that she diagnosed the victim as having been abused, and
that she contacted the Paris Police Department.
On cross-examination, Dr. Starling testified she was not a neurologist but a consultant who
evaluated children suspected of being abused. She said that she was not qualified to render a cause
of death opinion and that her allegation of strangulation was based on the injury to the left side of
the victim’s brain, the fingernail marks on the victim’s neck, and the line across the victim’s neck.
She said that although the line across the victim’s neck was consistent with choking, it could have
been caused by something else. She said that a simple fall was insufficient to explain the victim’s
brain injury but that very complex, high speed, and large impact falls could cause an internal injury
to the brain. She said that the victim’s intubation could have caused bruising around the neck.
Investigator Jacque Dartanion Bass of the Paris Police Department testified that he began
investigating the victim’s injuries after receiving Dr. Starling’s report. He said that he visited the
defendant’s apartment and that the living room had a hard floor covered with tile and one or two
throw rugs. He said a set of bunk beds was in the victim’s bedroom. He said that the police did not
test the bathtub, the clothes iron, or the victim’s clothing for blood, hair, or skin; that no tests were
performed in the victim’s bedroom; and that the water temperature in the apartment was not tested.
On cross-examination, Investigator Bass testified that the defendant voluntarily accompanied
him to the police station, never asked to leave, and never requested an attorney. He said that he read
the defendant his rights, that the defendant waived those rights, and that the defendant voluntarily
gave a statement. He said that he interviewed the defendant for approximately one and one-half
hours and that part of the interview was videotaped. He said that the defendant told police he had
been whipping the victim in the bathroom because she had not done her chores and that the victim
fell and may have hit her head against the bathtub. He said that at first, the defendant claimed to
know nothing about the victim’s burns but that the defendant later admitted splashing water on the
victim. He said that according to the defendant, the defendant thought the victim was asleep when
the defendant left the apartment. He acknowledged that based on the defendant’s statements, the
incident could have been an accident. On redirect, Investigator Bass testified that the defendant gave
another statement in which he said the victim had fallen off a bunk bed and landed on a clothes iron.
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On recross-examination, he testified that Keshonte Porter had told police that the victim fell out of
bed and landed on an iron.
Keshonte Porter, who was the victim’s younger sister and nine years old at the time of trial,
testified that on May 29, 2000, the victim forgot to make her bed and went to the park. She said that
the defendant told her to get the victim and that when she and the victim returned to the apartment,
the defendant took the victim into the bathroom and whipped her. She said that the defendant was
holding the victim’s arm when they came into the living room and that the defendant picked the
victim up over his head and slammed the victim onto the floor. She said that the victim was lying
unresponsive on the floor and that the defendant poured water from the kitchen faucet onto the
victim. She said that she and the defendant put fresh clothes on the victim because the victim’s
clothes were wet and that the defendant put the victim into the top bunk bed. She said the defendant
told her to tell people that the victim fell off the bed and hit her face on a clothes iron.
On cross-examination, Keshonte testified that she did not check on the victim and that when
the defendant’s parents arrived at the apartment, she did not tell them the victim was hurt. She said
that she heard the defendant whipping the victim in the bathroom and that the bathroom door was
closed. She said that she did not see the victim fall off the bed on May 29 but that she saw burns on
the victim. She said she saw the burns after the defendant poured water on the victim but before the
defendant put the victim into the bunk bed. She said that she got the water from the kitchen faucet,
that the water was hot, and that she gave the water to the defendant. She said she did not remember
telling a police officer that she had changed the victim’s clothes by herself.
Special Agent Brian Byrd of the Tennessee Bureau of Investigation (TBI) testified that he
was assigned to investigate the case. He acknowledged that Keshonte Porter had told Officer Joshua
Frey that the victim fell out of bed. He also acknowledged that when he interviewed Keshonte on
June 13, she told him that her statement to Officer Frey had been untrue. He said that during his
June 13 interview with Keshonte, Keshonte told him that she went to get the victim at the
playground and that the victim was fine at that time. He said Keshonte stated that when the victim
and the defendant came out of the bathroom, she could tell the defendant had spanked the victim.
He said Keshonte told him that the defendant lifted the victim over his head and dropped her on the
floor. He said that according to Keshonte, the defendant got water and threw it on the victim and
that she changed the victim’s clothes.
Agent Byrd testified that Keshonte had no explanation for lying to Officer Frey but that she
admitted not telling Officer Frey the truth. He said that according to Keshonte, no adult told her to
make up the story about the victim falling out of bed. He said that after he talked with Keshonte on
June 13, she testified at the defendant’s preliminary hearing that the victim fell off the bed and onto
an iron. On cross-examination, Agent Byrd testified that when he talked to Keshonte on June 13,
the defendant was not present but that when Keshonte testified at the preliminary hearing, the
defendant was in the courtroom.
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Officer Joshua Frey was recalled by the defense and testified that he talked to Keshonte
Porter at the Henry County Medical Center. He said that Keshonte told him the victim had fallen
out of the bunk bed and that an iron fell on the victim. He said that only Alecia Porter was present
when he talked with Keshonte.
Sergeant Thomas E. Lankford of the Paris Police Department testified that he was present
during the end of the defendant’s videotaped interview. He acknowledged that the defendant
voluntarily went to the police station, was free to leave at any time, and voluntarily gave a statement.
He said that he did not test the clothes iron or the temperature of the tap water in the defendant’s
apartment. On cross-examination, Sergeant Lankford testified that the defendant weighed about two
hundred thirty pounds and that the defendant told physicians at Vanderbilt Children’s Hospital that
the victim had fallen out of bed and landed on an iron. He said that the defendant repeated that story
during the videotaped interview but that the defendant later admitted lying about what had happened
to the victim. He said the defendant later explained that the victim fell, hit her head on the bathtub,
and that the defendant poured cool and hot water on the victim.
Lawrence Lloyd Niemi, the Maintenance Manager for the Paris Housing Authority, testified
that on May 26, 2000, he responded to a complaint in the defendant’s and Alecia Porter’s apartment
about a high electric bill. He said that he discovered the water heater in the apartment was set at 140
degrees Fahrenheit and that he turned down the thermostat to 130 degrees.
Archilene Turner Lauderdale, the defendant’s mother and a registered nurse, testified that she
and her husband went to Paris, Tennessee on May 29, 2000, to see the defendant’s new baby. She
said that when they arrived at the defendant’s apartment, the defendant was not there and the children
were alone in the living room. She said that she telephoned the hospital and spoke to Alecia Porter
and that Ms. Porter told her the defendant was not at the hospital. She said that according to Ms.
Porter, Ms. Porter had just spoken with the defendant and the defendant was supposed to be at the
apartment. She said that Keshonte was sitting on the living room couch and did not seem worried.
She said that she asked Keshonte where the victim was and that Keshonte told her the victim was
asleep.
Mrs. Lauderdale testified that the apartment was clean and that the floor had been mopped.
She said that she and her husband decided to take the children out to eat and that when she went to
wake the victim, she heard the victim snoring. She said that she tried to wake the victim but that the
victim did not respond. She said that she shook the victim and put a damp washcloth on her but that
the victim remained unresponsive. She said she telephoned the victim’s mother and 9-1-1. She said
that she asked Alecia Porter about scratches on the victim’s neck and that Ms. Porter told her the
victim had been fighting with Keshonte and other children.
Mrs. Lauderdale testified that she did not notice anything unusual or abnormal about the
victim other than burns on her face. She said that the victim had a normal temperature and pulse but
that the victim’s snoring was abnormal. She said the EMS attendant put a “zap monitor” on the
victim’s finger, which showed that the victim was breathing. She said that Keshonte told her the
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victim had fallen out of bed, was talking, got back into bed, and went to sleep. She said Keshonte
also told her that the victim burned her face on an iron.
On cross-examination, Mrs. Lauderdale testified that she expected the defendant to be at the
apartment when she arrived and that the children would not be alone. She said that she could not
say if Ms. Porter was concerned about the defendant’s absence but that Ms. Porter had thought the
defendant was at home with the children. She said that the victim did not sound like she was in
respiratory distress and that the victim’s skin color was good.
Gary William Lauderdale, the defendant’s father, testified that he went with his wife to Paris.
He said that the defendant’s apartment was clean and that it looked as though someone had mopped
the floor because wet spots were in the bathroom, hallway, and kitchen. He said that no one was
home with the children and that he asked his wife to find out where the defendant was while he
assembled a crib for the defendant’s baby. He said that they went into the victim’s bedroom and that
the victim was facing the wall and appeared to be sleeping. He said that the victim’s bunk bed was
on the right side of the room and that a clothes iron was on the floor on the left side of the room. He
said he did not notice any water in the bedroom.
Carolyn C. Orr, a social worker at Vanderbilt Children’s Hospital, testified that she and Dr.
Starling interviewed Alecia Porter on May 30, 2000. She said Ms. Porter told them that two or three
days before the crime in question, the victim had been playing with other children at the park and
returned home with scratches on her neck. She said that according to Ms. Porter, the victim had been
involved in an altercation with other little girls over a pair of shoes. On cross-examination, she said
the shoe incident “sounded like it was a group of children out playing and squabbling.”
The defendant testified that on May 29, 2000, he was living between his mother’s house and
Alecia Porter’s apartment. He said he was staying with Ms. Porter the week of the incident in
question because Ms. Porter was going to have a baby. He said that although only three of Ms.
Porter’s children were his, all of them called him “daddy.” He said the children played at the park
every day and did chores, including washing dishes, mopping floors, and ironing clothes. He said
that the victim and Keshonte ironed clothes on Keshonte’s bottom bunk in their bedroom.
The defendant testified that Ms. Porter had her baby on May 28 and that he and the other
children were at Ms. Porter’s apartment on May 29. He said that he and the children cleaned the
house in preparation for the new baby and that he told the children they could go to the park if they
cleaned their rooms. He said that the victim went to the park without cleaning her room and that he
sent Keshonte to get her. He said that he was not mad at the victim but that he was worried about
her because she had left the apartment without telling him where she was going.
The defendant testified that after Keshonte and the victim returned, he went into the
bathroom and found the victim wiping out the sink. He said that her clothes were wet and that he
asked her, “Why did you leave?” He said he grabbed the victim’s arm and hit her twice with a belt.
He said the victim pulled away from him, fell, and hit her head on the bathtub. He said that
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Keshonte got some water from the kitchen sink and that he threw the water on the victim because
she was unresponsive. He said that he did not know the temperature of the water but that it was
warm. He said he got more water from the bathroom sink and threw it on the victim. He said that
when the victim did not respond, he tried to give her CPR. He said he thought the victim was
conscious because she spit out some of the water.
The defendant testified that he put the victim in the top bunk bed and that she grabbed him.
He said that the victim did not have burns on her face at that time and that he did not know she was
seriously injured. He said that when the victim fell in the bathroom, he did not see any bumps,
bruises, or blood on her. He said that before he left the apartment to go visit Ms. Porter, he checked
on the victim. He said that she was snoring and that he thought she just wanted to be left alone. He
said he did not slam the victim to the floor and that he had disciplined the children before. He said
the bedrail in the top bunk was broken and had fallen onto the floor earlier that day. He said that he
did not intentionally hurt or kill the victim and that he loved her.
On cross-examination, the defendant testified that he did not tell Keshonte to make up the
story about the victim falling out of bed and that he did not know why Keshonte was claiming that
he picked up the victim and threw the victim to the floor. He said that Keshonte was not a liar but
that she did not always tell the truth. He said he was not lying to Officer Frey when he said that he
did not know what happened to the victim because he was unaware of the victim’s injuries at that
time. He said he was not lying to Dr. Starling when he told her the victim fell out of bed and was
burned by the iron because that is what Keshonte had told him. He said that he did not know how
the victim broke her arm and that he did not shake or choke her.
Charles Warren Harlan, the county medical examiner, testified that he reviewed the autopsy
report prepared by Dr. O.C. Smith and completely agreed with the data in the report. He said the
victim had burns on her face and neck and a burn that extended onto her chest. He said the burns
were liquid burns consistent with steam or water that was the same temperature as steam. He said
that water turned to steam at 210 degrees Fahrenheit and that he was certain the victim’s burns were
caused by water at that temperature, not 130-degree tap water. He said that 130-degree tap water
could have caused the victim’s burns only if she had had prolonged contact with the water.
Dr. Harlan testified that the scabs on the victim’s neck were consistent with scabs five to
eight days old. He said he found no bruising around the victim’s neck and no evidence of
strangulation. He said that the victim’s skull fracture and brain injury were consistent with a slip and
fall and that the victim’s skull fracture was more consistent with her falling against a curved or edged
surface than a flat surface. He said that with the victim’s type of injuries, she could have appeared
normal for hours or days. He said the victim’s broken arm also was consistent with a fall. He said
that the victim’s death was an accident and that he did not believe she had been abused. On cross-
examination, Dr. Harlan testified that he trained Dr. Smith and that Dr. Smith was one of his best
students. He said that strangulation did not cause brain swelling directly but that it could lead to
brain swelling.
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Dr. O’Bryan Clary “O.C.” Smith, a forensic pathologist, testified on rebuttal that he
performed the victim’s autopsy. He said the victim died from blunt trauma to the head and
compressive forces to the neck. He said that Dr. Harlan was not present during the autopsy and that
a slip and fall did not explain the victim’s injuries. He said that during the victim’s autopsy, he
found bleeding on both sides of the victim’s neck, indicating compression to the neck. He said that
water 120 degrees Fahrenheit could burn skin but that it could take thirty seconds before water that
temperature caused blistering. He said that 130-degree water could cause burns very quickly.
Dr. Smith testified that the victim’s head injuries were consistent with a two-hundred-thirty-
pound man holding the victim over his head and throwing her to the floor. He said that in cases of
strangulation, a victim’s fingernails could scratch the victim’s neck as the victim tried to remove a
hand or ligature from around the neck. He said the scabs on the victim’s neck looked as though they
had been healing during the victim’s four-day stay in the hospital.
On cross-examination, Dr. Smith testified that hemorrhages in the front of the victim’s neck
and bleeding from her right carotid artery were recent injuries and evidence of strangulation. He said
that the victim’s larynx was not damaged but that ligature strangulation usually did not damage the
larynx. He said that intubation did not cause the victim’s neck injuries. He said that the back of the
victim’s skull was fractured and that the injury could have resulted from the victim’s head hitting
a flat or edged surface. He said that a slip and fall generally would not create enough force to
explain the victim’s head injury. The jury convicted the defendant of first degree felony murder.
I. SUFFICIENCY OF THE EVIDENCE
The defendant claims that the evidence is insufficient to support his first degree felony
murder conviction because Keshonte Porter’s testimony that the defendant picked up the victim,
lifted her over his head, and dropped her to the floor conflicts with the medical testimony, which
established that the victim died of a fracture to the back of her skull. The defendant claims that if
he had dropped the victim as Keshonte claimed, the victim would have landed on the floor face-
down and would not have suffered a skull fracture to the back of her head. In addition, the defendant
claims the evidence is insufficient because Dr. Charles Harlan testified that the victim’s skull
fracture was consistent with the victim’s head hitting an edged surface, not a flat surface such as a
floor. The state argues that the evidence is sufficient. We agree with the state.
Our standard of review when the defendant questions the sufficiency of the evidence on
appeal is “whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). We do not reweigh
the evidence but presume that the jury has resolved all conflicts in the testimony and drawn all
reasonable inferences from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d
542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions about
witness credibility were resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).
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First degree felony murder is defined as the “killing of another committed in the perpetration
of or attempt to perpetrate any . . . aggravated child abuse, aggravated child neglect.” Tenn. Code.
Ann. § 39-13-202(a)(2). Child abuse and neglect occurs when “any person . . . knowingly, other than
by accidental means, treats a child under eighteen (18) years of age in such a manner as to inflict
injury or neglects such a child so as to adversely affect the child’s health and welfare.” Tenn. Code
Ann. § 39-15-401(a). Aggravated child abuse occurs when the “act of abuse results in serious bodily
injury to the child.” Tenn. Code Ann. § 39-15-402(a)(1).
Viewed in the light most favorable to the state, the evidence is sufficient to support the
conviction. Alecia Porter testified that she last saw the victim on May 25 and that the victim was
fine at that time. On May 29, the victim went to the park without doing her chores and the
defendant, who was the victim’s sole caretaker, sent Keshonte Porter to get the victim. Keshonte
testified that when she and the victim returned to the apartment, the defendant whipped the victim
in the bathroom, brought the victim into the living room, lifted the victim over his head, and
slammed the victim onto the floor. The defendant then splashed hot water on the victim in an
attempt to revive her, put her into bed, and left the apartment. Although the defendant at first told
the police that the victim had been injured by falling out of bed, he later claimed that the victim had
slipped in the bathroom and hit her head against the bathtub.
Dr. Mary Taylor testified that the victim was comatose when she arrived at Vanderbilt
Children’s hospital and had burns on the front of her body, bruises in the middle of her back, and
scratch marks around her neck. She also testified that Dr. Frederick Barr discovered a fracture at the
base of the victim’s skull. Dr. Suzanne Starling testified that the victim’s left arm was broken and
that her skull fracture could have been caused by blunt force to the head. Dr. Starling concluded that
marks on the victim’s neck and the fact that only the left side of the victim’s brain was swollen
indicated that the victim could have been strangled, and Dr. Barr also stated that the victim’s brain
injury could have been caused by strangulation. Dr. Charles Harlan testified for the defense that he
found no evidence of strangulation, that the victim’s skull fracture was consistent with the victim’s
head hitting an edged surface, and that the victim had not been abused. However, Dr. O.C. Smith,
who performed the victim’s autopsy, testified that the victim died of blunt trauma to the head and
compressive force to the neck and that the skull fracture could have been caused by the back of the
victim’s head hitting a flat or edged surface. Drs. Starling and Smith both testified that the
defendant’s claim that the victim fell against the bathtub did not account for the victim’s extensive
injuries. The jury heard the inconsistencies and alternate theories raised by the state and the
defendant and decided to accredit the state’s theory of the crime. Based upon the medical testimony
and Keshonte’s Porter’s eyewitness account of the defendant dropping the victim, the evidence is
more than sufficient to support the defendant’s conviction for first degree felony murder.
II. FELONY MURDER BY AGGRAVATED CHILD ABUSE AND NEGLECT
STATUTE
The defendant makes several arguments relating to the felony murder by aggravated child
abuse and neglect statute. First, he claims that the wording of the statute resulted in an indictment
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that did not sufficiently inform him of the charged offense. Specifically, he contends that the
indictment failed to inform him of the charge because it alleged that he committed first degree
murder by aggravated child abuse or aggravated child neglect, and he did not know which underlying
felony to defend. Second, he claims that the statute’s separating aggravated child abuse and
aggravated child neglect into two separate underlying felonies causes the felony murder statute to
be unconstitutionally vague. As a final and related issue, he argues that the statute resulted in his
being convicted without a unanimous verdict because some jurors may have found him guilty of
felony murder by aggravated child abuse while other jurors may have found him guilty of felony
murder by aggravated child neglect. The state claims that the indictment provides the defendant with
sufficient notice, that the felony murder by aggravated child abuse statute is not unconstitutionally
vague, and that the jury’s verdict was unanimous. We agree with the state.
A. Sufficiency of the Indictment
The indictment charges the defendant as follows:
The Grand Jurors of the State of Tennessee, duly elected, impaneled,
sworn and charged to inquire in and for the body of the County of
HENRY, in the State aforesaid, upon their oath present:
That DIALLO JAMEL LAUDERDALE, heretofore, to-wit: On or
about the 29th DAY OF MAY, 2000, in the County aforesaid, then
and there did intentionally kill DOMINIQUE PORTER in the
perpetration of or attempted perpetration of aggravated child abuse or
aggravated child neglect, thereby committing the offense of FIRST
DEGREE MURDER, in violation of T.C.A. 39-13-202(a)(2), against
the peace and dignity of the State of Tennessee.
Tenn. Code Ann. § 40-13-202 provides that an indictment “must state the facts constituting
the offense in ordinary and concise language, without prolixity or repetition, in such a manner as to
enable a person of common understanding to know what is intended, and with that degree of
certainty which will enable the court, on conviction, to pronounce the proper judgment . . . .” Our
supreme court has concluded that an indictment will be deemed valid so long as it provides sufficient
information to enable the defendant to know the accusation to defend, to furnish the trial court an
adequate basis for entry of a proper judgment, and to protect the defendant from double jeopardy.
See State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997). It also has stated that “indictments which
achieve the overriding purpose of notice to the accused will be considered sufficient to satisfy both
constitutional and statutory requirements.” State v. Hammonds, 30 S.W.3d 294, 300 (Tenn. 2000).
To this end, “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).
The defendant claims that the indictment charged two separate offenses, first degree felony
murder by aggravated child abuse and first degree felony murder by aggravated child neglect, and
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that he did not know which underlying felony to defend. However, aggravated child abuse and
aggravated child neglect are not separate offenses in our code. See Tenn. Code Ann. § 39-15-402.
Instead, aggravated child abuse and neglect is one crime that can be satisfied by two different courses
of conduct, serious bodily injury caused by physical abuse or serious bodily injury caused by neglect.
See Tenn. Code Ann § 39-15-402(a); State v. Hodges, 7 S.W.3d 609, 622 (Tenn. Crim. App. 1998)
(providing that Tenn. Code Ann. § 39-15-401, the child abuse and neglect statute, creates only one
crime). Thus, because aggravated child abuse and aggravated child neglect are not separate felonies,
the indictment in this case alleged only one crime, first degree felony murder with the underlying
felony being aggravated child abuse and neglect prescribed in Tenn. Code Ann. § 39-15-402(a). We
note that “[when] the offense may be committed by different forms, by different means or with
different intents, such forms, means or intents may be alleged in the same count in the alternative.”
Tenn. Code Ann. § 40-13-206(a).
The defendant’s brief also claims that the indictment is insufficient because it uses the term
“intentionally kill” for premeditated murder but then uses statutory language for felony murder.
However, we believe that the indictment in this case sufficiently apprises the defendant of the
charged offense. First degree felony murder is the “killing of another committed in the perpetration
of or attempt to perpetrate any . . . aggravated child abuse, aggravated child neglect.” Tenn. Code
Ann. § 39-13-202(a)(2). The allegations in the indictment closely track the wording in the felony
murder statute, and the indictment cites to the specific section of the code for that offense. The
indictment is sufficient, and the defendant is not entitled to relief.
B. Vagueness
Next, the defendant claims that the first degree felony murder statute as applied in this case
is unconstitutionally vague because the statute’s separating aggravated child abuse and aggravated
child neglect into two separate underlying felonies “[leads] to a guess as to which theory or which
conduct is alleged to have been committed.” However, in State v. Rhoden, 739 S.W.2d 6, 10 (Tenn.
Crim. App. 1987), this court held that the failure to raise a constitutional challenge to a statute in a
pretrial motion results in a waiver of the issue on appeal. Tenn. R. Crim. P. 12(b)(2). See also State
v. Farmer, 675 S.W.2d 212, 214 (Tenn. Crim. App. 1984). Our review of the record reflects that the
defendant did not attack the constitutionality of the statute until his motion for a new trial.
Therefore, this issue is waived. Rhoden, 739 S.W.2d at 10. In any event, as noted, the statute does
not separate aggravated child abuse and neglect into two separate underlying felonies.
C. Verdict Unanimity
The defendant claims that the wording of the first degree felony murder by aggravated child
abuse statute denied him the constitutional right to a unanimous verdict. He argues that some jurors
may have convicted him based upon Keshonte Porter’s testimony that he slammed the victim onto
the floor whereas other jurors may have convicted him based upon his failure to seek medical
treatment for her. We conclude that the defendant is not entitled to relief.
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The supreme court has held that in cases involving a single offense but alternate theories for
the defendant’s committing that offense, a jury unanimity problem is not implicated. See State v.
Keen, 31 S.W.3d 196, 208 (Tenn. 2000) (stating that “research reveals no case . . . in which we have
held that the right to a unanimous jury verdict encompasses the right to have the jury unanimously
agree as to the particular theory of guilt supporting conviction for a single crime”); State v. Lemacks,
996 S.W.2d 166, 170-71 (Tenn. 1999) (holding in a driving while under the influence case that a
general verdict of guilty did not present a unanimity problem even though some evidence indicated
that the defendant was driving the car while other evidence indicated that he was criminally
responsible for another person driving the car); State v. Cribbs, 967 S.W.2d 773, 787 (Tenn. 1998)
(jury’s finding the defendant guilty of first degree murder raised no verdict unanimity problem even
though some jurors may have believed the defendant committed felony murder while others believed
he committed premeditated murder).
In this case, the defendant was guilty of first degree felony murder if the jury was satisfied
that he killed the victim during the perpetration of or attempt to perpetrate aggravated child abuse
or neglect prescribed by Tenn. Code Ann. §§ 39-15-401(a), -402. Thus, he was not denied his
constitutional right to a unanimous verdict.
III. MOTION TO SUPPRESS
The defendant contends that the trial court erred by denying his motion to suppress his
statement to the police. He claims that the statement was inadmissible because he requested an
attorney and because it is “simply not logical to believe that the Appellant never requested an
attorney.” The state claims that the trial court correctly denied the motion. We agree with the state.
At the suppression hearing, Investigator Jacque Dartanion Bass testified that on May 30,
2002, the police wanted to speak to the defendant. He said he found the defendant at the Department
of Children’s Services (DCS) and told him that the police wanted to speak with him. He said that
he offered to drive the defendant to the police station but that the defendant said someone else was
going to give him a ride. He said that the defendant later told him that he did not have a ride to the
station and that he again offered to drive the defendant. He said that the defendant used a pay
telephone outside of the DCS and that he did not hear the defendant’s conversation. He said that he
drove the defendant to the station in his unmarked police car, that the defendant was not under arrest,
and that he did not handcuff the defendant. He said that when they arrived, the defendant sat in the
station lobby for about ten minutes and never indicated that he wanted to leave. He said he took the
defendant into an office, read the defendant his rights, and asked the defendant if he understood
them. He stated that the defendant said yes, that he read a waiver of rights form to the defendant,
and that the defendant signed the form. He said that he began questioning the defendant and that the
defendant never asked to leave or requested an attorney. He said that after the defendant gave an oral
statement, the defendant gave a videotaped statement. He said that after the defendant gave the
videotaped statement, the defendant asked to make a telephone call. He said the defendant used the
telephone, but he did not think anyone answered the defendant’s call. He said no one threatened or
coerced the defendant.
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On cross-examination, Investigator Bass denied that the defendant was a suspect when he
first approached the defendant at the DCS on May 30. He denied suggesting to the defendant that
the defendant ride with him to the police station. He said that during the drive to the police station,
he had a conversation with the defendant but that they did not discuss the case. He denied that
during the ride to the station the defendant said, “Maybe I need to talk to an attorney; I want to talk
to an attorney before I go down to the police station?” He also denied that the defendant said at the
station that he wanted to leave or that a police officer was posted by the station door to prevent the
defendant from leaving. He said the defendant did not ask to make a telephone call before the
interview, and he denied that the defendant asked to speak to an attorney after Investigator Bass read
the waiver of rights form to him. He said that he read the form to the defendant at 3:35 p.m. and that
after the videotaped interview, he thought the defendant telephoned his mother. He said he did not
remember hearing the defendant’s telephone conversation.
The defendant testified that his children had been taken away from him and that he and
Alecia Porter were at the DCS on May 30 trying to get the children back. He said Investigator Bass
arrived and asked him to come to the police station. He said that Investigator Bass wanted to drive
him to the station and that he asked Detective Bass if he could make a telephone call. He said that
Investigator Bass said yes, that he telephoned his brother, and that Detective Bass was only five to
ten feet away during the call. He said he asked his brother to contact his mother in order for his
mother to get in touch with his attorney. He said that while he was in the patrol car, he asked
Investigator Bass if he was under arrest and that Investigator Bass said no and that he was free to
leave. He said he told Investigator Bass he needed to telephone his mother in order for his mother
to get him an attorney. He said that when they arrived at the station, he sat in the lobby for twenty
to thirty minutes and decided to leave. He said that he told Investigator Bass, “I think it would be
better if I came back when I had an attorney” and that Investigator Bass replied, “No, I would prefer
you stay.” He said he felt like he had to stay at the station. He said that he was taken to an interview
room and that Investigator Bass handed him a piece of paper and told him to sign it. He said that
Investigator Bass did not read the paper to him and that he signed it. He said that after his
videotaped statement, he asked to make a telephone call. He said that Investigator Bass dialed the
number for him and that he talked to his aunt at 4:30 p.m. He said he asked his aunt to get him an
attorney.
On cross-examination, the defendant testified that Investigator Bass never handcuffed him.
He acknowledged that during the drive to the station, Investigator Bass told him that he could walk
away when they arrived at the station. He acknowledged that he can read and that his signature was
on the waiver of rights form.
Marilyn Sweat, the defendant aunt, testified that on May 30, she was at work from 8:00 a.m.
to 4:30 p.m. She said that the defendant telephoned her as she was getting ready to leave work and
that he said, “Will you call my mom and get me an attorney?” She said that the defendant told her
he was at the police station and that the police would not let him leave.
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Juwan Cortez Lauderdale, the defendant’s brother, testified that on May 30, he got a collect
telephone call from the defendant. He said that the defendant told him the police were taking the
defendant to the police station for questioning. He said that the defendant did not know if he was
under arrest and that he asked the defendant if the defendant wanted him to call their mother in order
for her to get the defendant an attorney. He stated that the defendant said yes.
Sergeant Tom Lankford of the Paris Police Department testified that he was present during
the defendant’s first interview and part of the defendant’s videotaped interview. He said that the
defendant’s videotaped statement ended about 4:30 or 5:00 p.m. On cross-examination, he said that
before Investigator Bass questioned the defendant, Investigator Bass read the defendant a waiver of
rights form. He said that the defendant indicated he understood the form and signed it. He said that
he never heard the defendant ask for an attorney and never heard anyone tell the defendant he could
not leave the station. He said that after the defendant’s videotaped statement, the police arrested the
defendant for aggravated child abuse and the defendant was allowed to make a telephone call. He
said that it would not surprise him to learn that the videotaped statement ended at 4:58 p.m. On
redirect examination, he said that the defendant’s first interview lasted about twenty to thirty minutes
and that the videotaped interview lasted about eight to twelve minutes.
The trial court stated that the defendant was an articulate man with above average
intelligence. It determined that once Investigator Bass took the defendant to the police station, the
defendant “was in some form of custody.” It held, though, that the police advised the defendant of
his rights and that the defendant knowingly, intelligently, and voluntarily gave the statements. The
trial court denied the defendant’s motion.
The defendant claims that the trial court erred by denying his motion. He claims that he
“obviously requested counsel and the officer continued to [question] and tape his statement despite
his request for counsel.” He claims that Investigator Bass and Sergeant Lankford lied when they
testified that the defendant never requested an attorney. In support of this claim, he points out that
the officers testified he made a telephone call after his videotaped statement, which ended at 4:58
p.m., but that his aunt testified he telephoned her at 4:30 p.m. Thus, he contends that the officers
could not be telling the truth when they said the defendant waited until after the videotaped statement
to telephone his aunt and that the evidence shows he called her before the videotaped statement.
Moreover, he contends that it “is not logical that the Appellant calls his aunt and tells her he needs
an attorney and does not tell the officers.” The state claims that the trial court’s ruling shows that
it accredited the officers’ testimony that the defendant did not request an attorney. We agree with
the state.
A trial court’s factual findings on a motion to suppress are conclusive on appeal unless the
evidence preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996); State v.
Jones, 802 S.W.2d 221, 223 (Tenn. Crim. App. 1990). The application of the law to the facts as
determined by the trial court is a question of law which is reviewed de novo on appeal. State v.
Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997). Further, questions of the “credibility of the witnesses,
the weight and value of the evidence, and resolution of conflicts in the evidence are matters entrusted
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to the trial judge as the trier of fact.” Id. at 628. The prevailing party “is entitled to the strongest
legitimate view of the evidence adduced at the suppression hearing as well as all reasonable and
legitimate inferences that may be drawn from the evidence.” Odom, 928 S.W.2d at 23. Finally, both
the proof adduced at the suppression hearing and the proof adduced at trial may be considered in
reviewing the trial court’s decision on the motion to suppress. State v. Henning, 975 S.W.2d 290,
299 (Tenn. 1998).
In Miranda v. Arizona, the United States Supreme Court held that pursuant to the Fifth and
Fourteenth Amendments’ prohibition against compelled self-incrimination, police officers must
advise a defendant of his or her right to remain silent and right to counsel before they may initiate
custodial interrogation. 384 U.S. 436, 479, 86 S. Ct. 1602, 1630 (1966). If these warnings are not
given, statements elicited from the individual may not be admitted for certain purposes in a criminal
trial. Stansbury v. California, 511 U.S. 318, 322, 114 S. Ct. 1526, 1528 (1994). A waiver of
constitutional rights must be made “voluntarily, knowingly, and intelligently.” Miranda, 384 U.S.
at 444, 86 S. Ct. at 1612. The state has the burden of proving the waiver by a preponderance of the
evidence. State v. Bush, 942 S.W.2d 489, 500 (Tenn. 1997). In determining whether a defendant
has validly waived his rights, courts must look to the totality of the circumstances. State v.
Middlebrooks, 840 S.W.2d 317, 326 (Tenn. 1992).
Our review of the record supports the trial court’s determination that the defendant
knowingly, voluntarily, and intelligently waived his rights and gave his statements. Investigator Bass
testified that he read the defendant his rights before the interviews, that the defendant read and
signed a waiver of rights form, and that the defendant never requested an attorney. Investigator Bass
further testified that nobody coerced or threatened the defendant. Similarly, Sergeant Lankford
testified that he was present when Investigator Bass read the defendant his rights and said that the
defendant indicated he understood his rights, signed a waiver of rights form, and never requested an
attorney. The defendant claims that he asked for an attorney but that the officers continued to
question him. However, the trial court’s ruling demonstrates that it accredited the officers’ testimony
over that of the defendant and concluded that the defendant did not request an attorney. We
conclude that the evidence does not preponderate against the trial court’s finding and that the trial
court properly denied the motion to suppress.
IV. FAIR TRIAL
The defendant claims that these cumulative errors denied him the right to a fair trial. In
addition, he contends that he was denied the right to a fair trial because a juror failed to reveal that
she was a friend of the victim’s family until after the jury had been sworn. The state claims that the
defendant received a fair trial. We agree with the state.
First, having found no errors, there is no merit to the defendant’s claim that cumulative errors
denied him the right to a fair trial. Regarding his claim that a juror’s withholding information during
jury voir dire denied him the right to a fair trial, we note that the defendant has failed to cite to
authorities as required by Rule 10(b), Tenn. Ct. Crim. App. R, and has waived the issue. See also
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T.R.A.P. 27(a)(7). In any event, our review of the record reveals that after the jury had been sworn,
Juror Number Eight told the trial court that she had gone to school with a friend of the victim. The
trial court asked if this would affect her judgment in the case, and she indicated that it would not.
The defense did not object to her remaining on the jury, and we conclude that the defendant was not
denied the right to a fair trial.
Based upon the foregoing and the record as a whole, we affirm the judgment of conviction.
___________________________________
JOSEPH M. TIPTON, JUDGE
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