State v. Terrence Davis ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JANUARY SESSION, 1997
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9511-CR-00343
)
Appellee, )
) SHELBY COUNTY
)
V. )
) HON. ARTHUR T. BENNETT,
TERRENCE L. DAVIS, ) JUDGE
)
Appe llant. ) (FIRST DEGREE MURDER)
FOR THE APPELLANT: FOR THE APPELLEE:
LESL IE I. BALL IN JOHN KNOX WALKUP
Attorney at Law Attorney General & Reporter
MARK A. MESLER WILLIAM DAVID BRIDGERS
Attorney at Law Assistant Attorney General
Ballin, Ballin & Fishman, P.C. 450 James Robertson Parkway
200 Jefferson Avenue Nashville, TN 37243-0493
Suite 1250
Memphis, TN 38103 JOH N W. P IERO TTI
District Attorney General
THOMAS D. HENDERSON
Assistant District Attorney General
JENNIFER NICHOLS
Assistant District Attorney General
201 Poplar Avenue, Suite 301
Memphis, TN 38103-1947
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
The Defendant, Terrence Davis, appeals as of right pursuant to Rule 3 of
the Tenn essee Rules o f Appella te Procedure. He was convicted by a jury of first
degree murde r in the Sh elby Co unty Crim inal Cou rt, and sen tenced to life
imprisonm ent. In addition to challenging the sufficiency of the evidence,
Defenda nt argues that the trial court comm itted reversible error by: (1) refusing
to suppress the statement given by Defendant on November 8, 1993; (2) refusing
to permit Defendant to introduce into evidenc e a lette r written by the v ictim’s
mother; (3) allowing certain photographs of the victim to be adm itted into
evidence; (4) allowing opinion te stimony of a no n-expert witness regarding
discipline to be admitted into evidence; (5) requiring Defendant to provide to the
State an investigative report prepared by a defense witness; and (6)
administering the oath to the grand jury foreperson in the jury’s presence during
the trial. W e affirm the judgm ent of the tria l court.
I. SUFFICIENCY OF THE EVIDENCE
Whenever the sufficiency of the evidence at trial is questioned, the
standard is whether, after reviewing the evidence in th e light most favo rable to
the prosecution, an y rational trier of fact could have found the essen tial eleme nts
of the crime beyond a reaso nable d oubt. Jack son v. V irginia, 433 U.S. 307, 319
(1979). This court may not reweigh or reevaluate the evidence. State v.
Cabbage, 571 S.W .2d 832 , 835 (T enn. 19 78). On appea l, the State is entitled
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to the strong est legitimate view of the evidence and all inferences therefrom.
Cabbage, 571 S.W .2d at 835 .
Questions concerning the credibility of the witnesses, the weight and value
to be given the evidence, as well as all factual issues raised by the evidence, are
resolved by the trier of fact, n ot this cou rt. State v. Pappas, 754 S.W.2d 620, 623
(Tenn. Crim. A pp.), perm. to appeal denied, id. (Tenn. 198 7). A jury verdic t
approved by the trial judge accredits the State’s witnesses and res olves all
conflicts in favor of the State. State v. Grace, 493 S.W .2d 474, 476 (Tenn. 197 3).
Because a verdict of guilt removes the presumption of innocence and replaces
it with a pres umptio n of guilt, the accused has the burden in this court of
illustrating why the evidence is insufficient to support the verdict returned by the
trier of fact. State v. Tug gle, 639 S.W .2d 913 , 914 (T enn. 19 82); Grace, 493
S.W.2d at 476.
At the time of the victim’s death, the Defendant was living with the victim,
Santana Goo dwin, th e victim ’s mother, V alerie G oodw in, and a two-m onth o ld
child, Tere nce D avis, Jr. W hile Terence Davis, Jr. was the child of the Defendant
and Ms. Go odwin, the Defen dant wa s not the b iological fath er of the victim.
During the State’s proof, the evidence presented was that on November 6, 1993,
an ambulance was dispatched to Defendant’s home. The emergency medical
technician who arrived on the sc ene, J anet K uhn, te stified a s to the victim’s
condition upon her arrival at 4190 Raleigh Woods, Apartment 3. When Kuhn first
arrived, the De fenda nt was holdin g the vic tim in his arms and told Kuhn that the
victim fell and hit her head on the fireplace. The victim was cool to the touch and
had no vital signs. After attempting to resuscitate the victim using various
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methods of CPR, intubation, and medication and receiving no response from the
victim, Kuhn transported the victim to LeBonheur Hospital. On the way to the
hosp ital, she noted that the victim’s abdomen was very tight and swollen, and that
she was co vered in b ruises with a hematoma on her forehead and a busted lower
lip.
After the victim arrived at LeBon heur Hos pital, she was treated by a
pedia tric em ergen cy room physic ian, Ma ry McG inty. Th e victim was c old upon
arrival, with no pulse or blood pressure and a distended abdomen. She was
observed to be a twen ty-two m onth o ld fem ale. W hile the victim ’s hea rt was s till
giving electrical impulses, there was no response to the various resuscitation
techniques adm inistere d to he r. Dr. Mc Ginty te stified th at the vic tim wa s, for all
practical purposes, dead when she arrived at the hospital. The victim was found
to have marks on her face, neck and abdomen, as well as bruises, broken blood
vesse ls and a cut on her low er lip. Th e victim ’s stoo ls cont ained both old and
new blood, and the tube used in an attempt to resuscitate the victim contained
blood from the victim’s abdomen. Wh ile Dr. McGinty did not list a cause of death,
she was suspicious of abuse immediately and recommended an autopsy be
performed.
James Madden, a crime scene investigation officer of the Memphis Police
Depa rtment, was called to LeB onhe ur Ho spital to investig ate the victim’s death
and to take photogra phs of her body. Later, Madden went to the victim ’s
home to investigate and take photographs. While at the home, he took photos
of a paper towel in the kitchen trash can with what appeared to be blood spots,
a sheet with what appeared to be blood spots, the bathro om w ith the vic tim’s
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house shoes lying in the floor, lumps of hair lying on the living room floor, and the
fireplace where the De fenda nt said the victim fe ll and hit her h ead. Madden then
collected some of the items he photographed, including the paper towel, shoes,
sheet and lum ps of hair. During cross-examination, Madden admitted that he
observed fresh bruises on the victim’s lips, bruises on her left jaw, marks on her
forehead, discolored spots on her neck and bruises on her side when he
photographed her at the h ospita l. He did not observe any blood on the fireplace
when he was investigating the scene.
Valer ie Goo dwin, th e victim ’s mother, testified that the Defendant was not
working during the week of November 1st through November 8th and cared for
the victim whenever she was working at Cracker Barrel during the evening hours.
Just prior to November 6, 1993, Goodwin observed a dark circle of bruises on the
victim’s jaw. When she asked the Defendant what happened to the victim, the
Defendant told her that the victim fell outside while playing.
On the evening of November 6, 1993, Goodwin was called in to work at the
Cracker Barre l. Wh ile working, she called the Defendant who told her that the
victim was sleeping. Later, th e Def enda nt calle d and told he r that the victim fe ll,
was not bre athing and a n am bulance was on its way to the apartment. After
getting a ride fro m on e of he r neigh bors, G oodw in arrive d at the apartm ent in
time to follow the ambulance to LeBonheur Hospital. While in the waiting room,
the Defe ndan t told he r that the victim fe ll after tripping on house shoes and hit her
head on the fireplace. Goodwin further testified that both she and the Defendant
sometimes spanked the victim on either her hands, legs, or bottom. On cross-
examin ation, she admitted that she never witnessed the Defendant abuse the
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victim and told others that she could not believe the Defendant would have done
something like this.
The Defendant was interviewed for the first time on November 7, 1993 by
Ronald Wilk inson , assig ned to the Ho micid e Bur eau a t the Me mph is Police
Depa rtment. W ilkinson tes tified that De fendan t told him th at the victim tripped
and fell on the fireplace. The victim stopped breathing, so the Defendant began
admin istering C PR.
Richard Roleson, also an officer of the Homicide Bureau, testified that he
interviewed the Defendant for the second time on November 8, 1993, and they
went over the events of November 6, 1993 several times. During this discussion,
the Defend ant change d his story several times, but ultimately admitted that on
November 3, 1993, he whipped the victim after she had broken a glass. When
the victim slid out of the Defendant’s grasp, he hit her until she got still and
grabbed her by the back of the neck. The Defendant said the victim fell, and he
kicked her in her left side. In his statement, the Defendant admitted to getting
out of con trol. The Defendant again spanked the victim on November 6, 1993,
the day of the victim’s death. On cross-examination, Roleson admitted that he
told Defendant that no one had been electrocuted in Tennessee since 1962 or
1963, but that the State might cra nk it up again an y day.
The autopsy of the victim was performed b y a ped iatric fore nsic
patholo gist, Violette Hnilica. She testified that there were various abrasions and
contusions on the victim’s twenty-five (25) pound body, as well as a tongue
hemo rrhage. The fleshy tissue between the lip and the gum was to rn. Ce rtain
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injuries she observed were not consistent with a fall, but were consistent w ith
being hit at skin surface from some other angle. The victim’s lower abdominal
region had multiple contusions, with nineteen (19) separate contusions on the
trunk area of the victim’s bo dy. The contusions in the lower left chest region we re
of a consistent pattern . In her internal exam , Dr. Hnilica testified that there was
old blood in the abdomen, brownish and disintegrating. This was unusual as
there is no free blood in a healthy abdomen. The old blood in the abdomen was
indicative that the victim sustained the injuries approxim ately three (3) days prior
to her death. All the victim’s left organs had contusions. She had five broken
ribs. These injuries were of a pattern consistent with the inside part of the heel
of a shoe. Dr. H nilica found ove r fifty (50) impact sites on the child. The liver
was completely lacerated from the abdomen, which wa s consis tent with
compres sive frontal pressure to the body. While the liver laceration would
norm ally be fatal in and of itself, in Dr. Hnilica’s opinion, the victim d ied of m ultiple
blunt force injuries.
The defense offered various witnesses who testified as to seeing Valerie
Goo dwin spank the victim and grab other friends’ children on prior occasions.
Some defense witnesses testified that the Defendant was not at home on the day
of November 3, 1993, alone with the victim, but that the Valerie Goodwin was
there w ith the vic tim on that da te. Th e Def enda nt did n ot testify a t trial.
According to Tennessee Code Annotated section 39-15-4 02, a perso n is
guilty of agg ravate d child abus e whe n suc h abu se res ults in serious bodily injury
to the child. The offense of child abuse is defined as “ . . . any person who
knowingly, other than by accidental means, treats a child under eighteen (18)
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years of age in such a manner as to inflict injury or neglects such a child so as
to adver sely affect the child’s health an d welfare . . .” Tenn. Code Ann. § 39-15-
401(a). Under Tennessee Code Annotated section 39-13-202(a)(2), first degree
murder is the killing of another in the perp etration of o r the attem pt to perp etrate
aggravated child abuse.
By his own statement, Defendant admitted committing such acts of abuse
which ultima tely resulted in the dea th of the victim . Furthermore, the testimony
of Dr. Hnilica, the coroner who performed the autopsy of the victim, confirms that
the victim died of multiple blunt traum a injurie s, con sisten t with the Defe ndan t’s
statement that he kicked the victim and the pattern of injury consistent with a
shoe on the victim’s left side. There fore, there is sufficient evidence in the record
for a rational trier of fact to find the Defendant committed first degre e mu rder in
the perpetra tion of agg ravated c hild abus e resulting in the dea th of the victim.
The Defe ndan t has n ot me t his burden of proof regarding the insufficiency of the
evidenc e. This iss ue is witho ut merit.
II. ADMISSION OF DEFENDANT’S STATEMENT
The next issue the Defendant raises is that the trial court erred by refusing
to suppress his statement of November 8, 1993, in which he admitted that he “got
out of control” and kicked the victim in her left side on November 3, 1993. The
trial judge found at the suppression hearing that the statement was voluntary and
not due to any co ercion.
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The party which prevails in the trial court is entitled to the strongest
legitimate view of the e videnc e as w ell as all reasonable inferences drawn from
that evidence adduced at the suppre ssion he aring. State v. Odom, 928 S.W.2d
18, 23 (Tenn . 1996). The trial court’s findings will be upheld unless the evidence
prepon derates otherwis e. Id.It is the defe ndant’s d uty to have prepa red an ade quate record in order to
allow a meaning ful review on appea l. Tenn. R . App. P. 2 4(b); State v. Bunch,
646 S.W .2d 158 , 160 (T enn. 19 83); State v. R oberts, 755 S.W.2d 833, 836
(Tenn. Crim. App. 1988). While the Defendant failed to include the entire record
of the supp ressio n hea ring as part of th e reco rd on a ppea l, an ample account of
the proceedings were in clude d with th e Def enda nt’s ap peal fo r this Court to make
a fair and meaningful evaluation of such proceedings. Tenn. R. App. P. 24(b);
see State v. Ballard, 855 S.W .2d 557, 560 -61 (Tenn . 1993).
In determ ining whe ther a sta tement is made voluntarily, this court must
look to the totality of the circumstances surrounding the confession, and the
standard is whether “the behavi or of the state’s law enforcement officials was
such as to overbear petitioner’s will to resist and bring about confessions not
freely self-determined .” State v. Kelly, 603 S.W .2d 726, 728 (Tenn. 198 0). In the
case sub judice, the Defendant was told after being read his Miranda rights by
Roleson, the police officer interrogating him, that the possible penalties for first
degree murder were either death or life imprisonment. The police officer further
informed Defendant that the death penalty had not been carried out in Tennessee
since 19 62 or 19 63, but tha t it might start b eing carr ied out at a ny time.
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The Defendant refers to an earlier case which was cited in Kelly in which
the defendan t was prom ised by a police officer that if he were to confess, the
prosecution would not ask for the “electric chair.” See Ford v. S tate, 201 S.W.2d
539 (Tenn . 1947). T he state men t the offic er ma de to D efend ant is
disting uisha ble in that such a stateme nt regar ding th e pos sible p enaltie s cou ld
not be interpreted as a promise of leniency in exchange for the Defendan t’s
confession. In fact, the officer m ade n o ass uranc es reg arding the pro bable
punishment for the Defendant if he were to be convicted. The totality of the
circumstances surrounding the Defendant’s confession were n ot suc h that w ould
overbear the Defe ndan t’s will. Gr eat de ferenc e is give n to a tria l judge ’s
determination that a confession was given voluntarily and without coercion
because the trial judge sees and hears the witnesses while appe llate courts
examine only a “cold record.” Lowe v. S tate, 584 S.W.2d 239, 241 (Tenn. Crim.
App. 1979). The trial judge found that the Defendant’s confession was not
coerced, and th at the s tatem ent the officer to ld to Defendant regarding the
poss ible punishment did not make Defendant incriminate himse lf in his
statem ent. A care ful revie w of the record in this case fails to convince us that the
evidence preponderates against the findings of the trial judge.
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III. LETTER WRITTEN BY VICTIM’S MOTHER
The Defenda nt argues that the trial court erred by refusing to allow a letter
written by the victim’s m other to be admitted into evidence. It is well established
that the decision to admit or exclude evidence is left to the sound discretion of the
trial judge and the trial court’s decision will not be disturbed unless it has been
arbitra rily exercise d. State v. Baker, 785 S.W .2d 132, 134 (Tenn. Crim. App.
1989); State v. Hawk, 688 S.W .2d 467 , 472 (T enn. C rim. App . 1985).
The letter which Defendant sought to have admitted into evidence read:
To Whom it May Concern:
I am writing this letter asking for leniency in the matter of Mr.
Terrence LeRoy Davis. I am the mother of the deceased. I feel this
whole case is being blown out of proportion. I don’t feel it is a
murder case. I feel tha t what h appe ned if anythin g was accide ntal.
I would g reatly app reciate this if the Cou rt took this into
consideration.
Thanks,
/s/ Ms. V alerie G oodw in
The letter fro m Va lerie G oodw in dea ls with tw o sub jects, le nienc y and g uilt
or innocence, respectively. Any language in the letter regarding leniency is
irrelevant as to g uilt or inn ocen ce an d inste ad is re levant to pun ishme nt.
There fore, the contents of the letter regarding leniency are irrelevant and were
correctly ex cluded from trial.
During the trial, D efend ant ca lled Va lerie Goodwin to the stand as his own
witness, but no evidence was introduced to show that she had personal
knowledge of the matters surrounding the victim’s death on the night of
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November 6, 199 3. The witnes s’s opinions about whether the victim’s death was
an accident a re irrelevan t. Furtherm ore, Go odwin w as allowe d to testify
regarding her opinion that “[she] could not believe [Defendant] could do
something like that,” and “if anything had happened [to the victim], it was an
acciden t.” Defendant argues that the letter the trial court ruled inadmissible was
necessa ry for his theory of defense. The letter would only be cumulative to her
statem ents already introduced into evidence by the Defendant. These
statem ents were heard by the jury and the trial judge, thereby allowing the
Defendant to provide evidence in the record of his theory of defense. This issue
has no merit.
IV. ADM ISSIO N OF PHO TOG RAP HS O F TH E VICT IM
Defendant argues that the trial court erred by perm itting the Sta te to
introduce into evid ence certain photo graph s of the victim, including o ne pho to
of the victim when she was a live and several autopsy photographs. The
admissibility of photographs is in the sound discretion of the trial court, and,
absent a show ing of clea r abuse , this Cou rt is not to interfe re with the trial cou rt’s
exercise of that discre tion. See State v. Van Tran, 864 S.W.2d 465, 477 (Tenn.
1993). A photo must be relevant to an issue that the jury must decide and the
probative value of the photograph must outweigh any prejudicial effect that it may
have upon the trier of fact befo re a pho tograph may be admitted into evidence.
State v. Auco in, 756 S.W .2d 705 , 710 (T enn. C rim. App . 1988), cert. denied, 489
U.S. 1084 (1 989); State v. Braden, 867 S.W .2d 750, 758 (Tenn. C rim. App.
1993).
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A. IDENTIFICATION PHOTOGRAPH OF VICTIM
Defendant contends that the photograph of the victim , used by the State
for identification purposes and admitted into evidence, constitutes reversible error
by the trial court as any of the other photog raphs use d by the State co uld have
been used for identification purposes. Defendant argues that such a picture of
the young victim w as un duly pr ejudic ial as it motivated the jury to seek vindication
for the victim’s d eath. Upon review by th is court, the final judgment of conviction
shou ld not be set aside unless the error m ore probably than not affected the
judgment or resulted in prejudice to the judicial pro cess. Ten n. R. App. P. 3 6(b).
W hile it would have been better if the “before” picture of the victim had
been exclud ed from eviden ce, it ad ded little or nothing to the sum total of
knowledge of the jury. See State v. Dicks, 615 S.W .2d 126 , 128 (T enn.), cert.
denied, 454 U.S. 933 (1981); see also State v. S trouth, 620 S.W.2d 467, 472
(Tenn. 1981); State v. Richardson, 697 S.W.2d 594, 597 (Tenn. Crim. App.
1985). The photograph in question is nothing more than a snapshot of the victim.
Defendant has failed to provide a basis for finding that this photograp h wou ld
generate sym pathy or prejudice him. After a review of the en tire reco rd, and in
consideration of the profuse evidence of the Defendant’s guilt, the introduction
of this photograp h of the victim was no t prejudicia l error. See, e.g., State v.
Horton, Lexis 105, Shelby County (Tenn. Crim. App., Jackson, filed Feb. 10,
1988) (perm. to appeal denied); State v. Beckham, C.C.A. 02C01-9406-CR-
00107, Sh elby County (T enn. Crim. A pp., Jackson , Septemb er 27, 1995).
B. AUTOPSY PHOTOGRAPHS
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The Defendant next argues that the trial court erred by admitting three
different autop sy pho tograp hs of th e victim into evid ence which he c laims are
overly preju dicial. The State sought to introduce into evidence four autopsy
photographs. While three of the photographs were admitted into evidence, one
photograph showing an incision from the victim’s mid- chest to the navel and the
old, brown blood inside the victim ’s bod y was ru led ina dmis sible by the trial judge.
This photograph was determined as more prejudicial than probative by the trial
judge. Photographs of a corpse are admis sible in murder prosecutions, if they
are relevant to is sues o n trial, notwiths tanding their gruesome and horrifying
character. State v. Banks, 564 S.W.2d 947 (Tenn. 1978). If they are not relevant
to prove som e part of the prosec ution’s ca se, they m ay not be admitted solely to
inflame the jury and prejudice them against the defendant. Id. For the co urt to
determine wheth er the p rejudic ial effec t of the p hotog raphs outwe ighs th eir
probative value, the matters to be considered include the value of the
photographs as evidence, that is, their accuracy and clarity, whether they w ere
taken prior to the corpse being moved . . . the inadequacy of testimonial evidence
relating facts to the jury and the need for evidence to establish a prima facie case
of guilt or to reb ut defen dant’s co ntentions . Id. at 948.
The first picture is a photograph of an incision cut into a bruise on the
victim’s buttocks. While the photograph is quite vivid in its details of a gruesome
crime, it is not rende red ina dmis sible m erely beca use th e sub ject po rtrayed could
be describe d in word s or the ph otograp h may b e cum ulative. Collins v. S tate,
506 S.W.2d 179, 185 (Tenn. Crim. App. 1973). The State used this particular
photograph for the expert witness to illustrate to the jury that the bruise on the
victim’s buttocks was deep, indicating a more extensive injury, and that it was an
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older bruise due to the depth of the blood as shown in the incision. Expert
testimony of the State placed the fatal injuries occurring from two to five days
prior to the victim’s date of death, and the illustration of the age and severity of
the bruises is cons istent with the State’s theo ry of aggravated child abuse by the
Defen dant. While such a photograph may be visually disturbing, the photograph
was not so prejudicial as to outweigh its probative value in determining the age
and severity of the bruise.
The two other photographs the Defend ant arg ues w ere err oneo usly
admitted into evidence are pictures of the victim’s live r. The trial court found that
such photos were not so disturbing as to b e und uly prejudicial, and the photos of
the liver were probative in the proof of the elements of aggravated child abuse.
The State’s ex pert witne ss used these ph otograp hs to demo nstrate the severity
of the victim’s in juries, and to illustrate tha t the tear which oc curred two to five
days prior to the victim’s death was consistent with the Defendant’s statement
abou t beatin g and kicking the victim on No vemb er 3, 199 3. The admis sion into
evidence of these photographs by the trial court was not an abuse of discretion,
and this iss ue is witho ut merit.
V. ADMISSION OF LAY OPINION TESTIMONY
The Defendant contends that the trial court e rred by perm itting a c ousin of
the victim to testify as to her opinion of the Defendant’s discipline of the victim.
If a witness is not testifying as an expert, the witness’s testimony in the form of
opinions or inferences is limited to those opinion s or inferences w hich are
rationa lly based on the perception of the witness and helpful to a clear
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understanding of the w itness ’s testimony or the determination of a fact in issue.
Tenn. R. Evid. 701. If the testimony of the witness describes his or her
observations in the form of an opinion because it is the only way in which they
can be clearly d escribed , then there is an exce ption to this g eneral ru le. National
Life & Accident v. Follett, 168 Tenn. 647, 80 S.W.2d 271, 274 (Tenn. 1935)
(testimony that a footprint in the snow looked like som eone h ad slippe d); State
v. Brown, 836 S.W.2d 530, 550 (Tenn. 1992) (nurse’s testimony that an injury on
the victim’s foot looke d like a ciga rette burn ); State v. Mabon, 648 S.W.2d 271,
274 (Tenn. Crim . App. 1982 ) (testimony that a su bstance ap peared to be blood).
At trial, the victim’s cousin testified that while she lived with the victim she
witnessed several incidents where the Defendant disciplined the victim. She
ultima tely told other family members that such discipline by the Defendant was
too strict. This testimony fits within the parameters of the exception to the
general rule; her opinion of the Defe ndan t’s disciplin e of the victim w as the only
way for her to clearly describe her observances. This Court cannot find this as
revers ible error, particularly in light of this cousin’s earlier testimony in which she
described the Defendant’s repeated discipline of the victim for every little thing
she did. There was no abuse of discretion by the trial judge in allowing such
testimon y.
VI. ADMISSION OF JENCK S ACT MATER IAL
OF DEFENSE INVESTIGATOR
Defendant argues that the trial co urt erred b y requiring the Defe ndant to
provide a copy of his private investig ator’s repo rts to the S tate as “Je ncks A ct”
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materials. After a witness has testified, the party who offered the witness, on
motion of the o ther pa rty, mu st prov ide the movin g party with an y witnes s’s
statement the offering party has in their possession that relates to the testimony
of the witness. Tenn. R. Crim. P. 26.2(a). A statement includes:
(1) a written statement made by the witness that is signed or
otherwise ad opted or app roved by the witne ss; or
(2)a substantially verbatim recital of an oral statement made by the
witness that is recorded contemporaneously with the making of the
oral statement and that is conta ined in a sten ograp hic, m echa nical,
electrical, or o ther reco rding or a transcriptio n thereo f.
Tenn . R. Crim . P. 26.2(g ).
W hile this Court concludes that requiring the Defendant to provide these re ports
to the State was erro r, such err or was h armles s in that the re was n o prejud ice to
the De fendan t.
The statements at issue were notes a private investigator took as she
interviewed witnesses for the Defenda nt. These n otes were later transcribed as
a record of her interviews of these witnesses. There is no evidence in the re cord
that the statement was adopted or approved by the witness. Rule 26.2 was
forme rly a part of Rule 16. In an earlier c ase u nder R ule 16 , this Co urt held that
a summ ary of a witness’s pre-trial statement would only be subject to inspection
under the “Je ncks Act” if it was in writing and was signed, adopted or approved
by the witnes s. See State v. Robinson, 618 S.W.2d 754, 759 (Tenn. Crim. App.
1981). The notes the investigator made while interviewing the witness do not
qualify under the definition of a “substantially verbatim recital” of a witness’s oral
statement under Te nnessee Rules of Crim inal Procedu re 26.2(g). See State v.
Payton, 782 S.W.2d 490, 494-95 (Tenn. Crim. A pp. 198 9); see State v. Farmer,
No. 88-282 -III, Davidson County (Tenn. Crim. App., Nashville, filed November 17,
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1989) (Rule 11 application denied, January 29, 1990 ). Wh ile the private
investig ator’s report should not ha ve been subject to the “Jencks Act,” any such
error by the trial court was harmless. Defendant’s attorney stated to the trial
court that the report was not detrimental to the Defendant. Therefore, Defendant
did not suffer any prejudice in turning over the report to the State.
VII. ADMINISTRATION OF OATH TO GRAND JURY FOREPERSON
The final issu e Def enda nt raise s is that the trial c ourt er red by swea ring in
a grand jury forepe rson in view of the jury. The Tennessee Rules of Criminal
Procedu re provide fo r an oath to be adm inistered to all members of the grand
jury, including the foreperson. T enn. R. Crim . P. 6(a)(4). A separate subsection
of Rule 6 provides that every member of the grand jury shall keep secret the
proceedings of that body. Tenn. R. Crim. P. 6(k)(1). Defendant argues that the
swearing in of the foreperson of the grand jury by the trial judge in the presence
of the Defendant’s jury wa s preju dical a nd in vio lation o f the rule of sec recy in
proceedings.
The purpose of secrecy for grand jury proceedings is to
imbue the grand jurors with a sense of confidence and security so
that they may discharge their duties without apprehension of any
hurt from an accused or some other person; to secure the utmost
freedom of disclosure of alleged crimes by prosecutors; to conceal
the fact that an indictment has been found against an accused who
is not yet in custody; to prevent perjury and subornation of perjury
to the exten t that, if testimony given before the grand jury we re
known, the accused or a confederate might attempt to disprove it by
procuring false testimony; and to protect an accused citizen from
public disgrace in a case where th ere is not e nough evidenc e to
support a criminal charge.
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Rippy v. State, 550 S.W.2d 636, 642 (T enn. 19 77), (quoting 1 Wharton, Criminal
Procedu re (Torcia 12th Ed. 1974), § 2 21 at 488, 48 9).
Obviously, the sw earing in of the grand jury fore perso n is no t within the
purpose of the rule for secrecy. Therefore, there was no error by the trial judge
when he administered the oath to the foreperson of the grand jury in view of the
Defe ndan t’s jury. Furthermore, we find that the adm inistration of s uch an oath
in the presence of the Defen dant’s jury was not prejudical to the trial of the
Defendant in any way. The jury was instructed that the indictment against the
Defendant issued by the g rand jury was n ot eviden ce of the D efenda nt’s guilt.
It is presum ed that the jury followed the trial cour t’s instruction s. State v. Lawson,
695 S.W .2d 202 , 204 (T enn. 19 85). Th is issue ha s no m erit.
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We affirm the ju dgme nt of the trial co urt.
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THOMAS T. W OODALL, Judge
CONCUR:
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JOSEPH B. JONES, Presiding Judge
___________________________________
PAUL G. SUMMERS , Judge
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