State v. Greene ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
FEBRUARY SESSION, 1997 October 31, 1997
Cecil Crowson, Jr.
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9608-CC-00316Clerk
Appellate C ourt
)
Appellee, )
)
) BLOUNT COUNTY
VS. )
) HON. D. KELLY THOMAS, JR.
JIMMY GREENE, ) JUDGE
)
Appellant. ) (Direct Appeal)
FOR THE APPELLANT: FOR THE APPELLEE:
JULIE A. MARTIN JOHN KNOX WALKUP
P. O. Box 426 Attorney General and Reporter
Knoxville, TN 37901-0426
SANDY R. COPOUS
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
MIKE FLYNN
District Attorney General
KIRK ANDREWS
Assistant District Attorney
706 Walnut Street
Knoxville, TN 37901
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE
OPINION
Appellant Jimmy Greene appeals from a jury verd ict rend ered in the Blount
Coun ty Circuit Court finding him guilty of the aggravated rape of a person less
than thirteen years of age. As a Range I standard offender, Appellant received
a sentence of twenty-two years in the Tenn essee Depa rtment o f Correc tions. On
April 10, 1996, Appe llant filed a m otion for a n ew trial allegin g, inter alia , the
existence of newly discovered evidence. The trial court denied this motion on
May 21, 1996. Appellant presents three issues for consideration on this direct
appe al: (1) whe ther the eviden ce wa s sufficie nt to su stain th e con viction for
aggravated rape; (2) whether the prosecution's remarks made during closing
argument were improper and prejudicial; and (3) whether the trial court erred in
denying Appe llant's motion for a new trial based on the alleged existence of
newly discovered evidence.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.
I. FACTUAL BACKGROUND
The proof shows that on or about June 24, 1991, four-year-old A.L. first
revealed to her paternal grandmother that A.'s stepfather, Appellant Jimmy
Greene, had pe rformed certain se xual acts upon her. 1 At the time of the alleged
incidents, A. reside d with her mothe r and he r stepfathe r, Appella nt herein. On
June 28, 1991, A.'s grandmother took her to the emergency room at Blount
Memorial Hospital for a sexual abuse examination. As a result of the allegations
1
Pursuant to the policy of this Court, the minor victim of sexual abuse in this case will be
referred to by her initials rather than her full name.
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and subsequent investigation of sexual abuse, A.'s grandmother obtained legal
and physical custody of A.
At trial, the c ourt pe rmitted A. to us e ana tomic ally correct dolls to facilitate
her expla nation of th e sexua l acts to which she was subjected. A. testified that
her stepfather inserted his fingers into her vagina, which she referred to as her
"poopy-c at," and her rectum. A. further testified that Appellant "put his poopy-cat
[penis ] in my mouth and he played with my poopy-cat and bottom." Finally, A.
stated that Appellant inserted his penis into her mouth and "peed" and "made me
swallow it."
On October 3, 1991, four months subsequent to the last incident of sexual
abuse, Dr. Gerald Blossom examined A. a s part of the investigation into the
allegations of sexual abuse. By the time of the trial, Dr. Blossom was employed
at Children's Ho spital in Knoxville as an e mergen cy pediatrician. At trial, Dr.
Blossom testified that when examining A., he noted some thickening of the
hymenal membrane at approximately the four to five o'clock position. He stated
that the hymenal mem brane is typica lly thin and that the abnormal thickening of
A.'s hymena l memb rane would have been caused b y rubbing an object across
and against the membrane. Dr. Blossom further testified that his examination
also revealed that A.'s hymenal opening measu red one ce ntimeter in diam eter.
Dr. Blossom then proceeded to elaborate on the significance of this abnormal
meas ureme nt. "This is ap proxima tely twice the size you w ould exp ect to see in
a four-year-old girl." While acknowledging that normal variations exist in the
size, shape, and width of hymena l openings in four-ye ar-old females , Dr.
Blossom also e mph asize d, "Th is is about tw ice the ave rage to maxim um size . .
. . [T]his is much more than you would ever expect to find in a no rmal situa tion."
Dr. Blossom also explained that the only way in which the hymen could be
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stretched to a much larger diameter than normal, as was A.'s, is through direct
and forcible penetration. He further testified that the more times that the hymen
is stretch ed, the less like ly it is that the hym en will return to its normal condition.
Finally, Dr. Blossom opined that A.'s vagina had been forcibly penetrated.
II. SUFFICIENCY OF THE EVIDENCE
Appe llant's first contention on this direct appeal is that the evidence was
insufficient to sustain a conviction for aggravated rape. We disagree.
This Court is o bliged to re view cha llenges to the sufficiency of the
convicting evidenc e acco rding to certain we ll-settled princ iples. A verdict of gu ilty
by the jury, appro ved by the trial ju dge, a ccred its the te stimo ny of the State's
witnesses and res olves all co nflicts in the tes timony in favor of the State. State
v. Cazes, 875 S.W.2d 253, 259 (Tenn . 1994); State v. Harris , 839 S.W.2d 54, 75
(Tenn. 1992). Although an accused is originally cloaked with a presumption of
innocence, a jury verdict removes this presumption and replaces it with one of
guilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the
burden of proof re sts with Appellant to demonstrate the insufficiency of the
convicting evidenc e. Id. On appeal, "the [S]tate is entitled to the strongest
legitimate view of the evidenc e as well as all reasonable and legitim ate
inferences that may be drawn therefrom ." Id. (citing State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978)). Where the sufficie ncy of th e evide nce is
contested on appe al, the relevant question for the reviewing court is whether any
rational trier of fact could have found the accused guilty of every element of the
offense beyond a reaso nable d oubt. Harris , 839 S.W .2d at 75; Jackson v.
Virgin ia, 443 U .S. 307, 3 19, 99 S .Ct. 2781 , 2789, 61 L.Ed.2d 560 (19 79). In
conducting our evaluation of the convicting evidence, this Court is precluded from
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reweighing or reconsidering the evidence. State v. Morgan, 929 S.W.2d 380, 383
(Tenn. Crim. App. 19 96); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.
App. 1990). Moreover, this Court may not substitute its own inferences "for those
drawn by the trier of fact from circu mstan tial evidenc e." Matthews, 805 S.W.2d
at 779. Fina lly, T ENN. R. A PP. P. 13(e) provides, "Findings of guilt in criminal
actions wheth er by th e trial co urt or jur y shall b e set a side if th e evide nce is
insufficient to support the findings by the trier of fact of guilt b eyond a reas onab le
doubt." See also Matthews, 805 S.W.2d at 780.
W e stated in Matthews that "A criminal offense may be established
exclus ively by circumstantial evidence. However, before an accused may be
convicted of a criminal offense based upon circumstantial evidence alone, the
facts and circumstances ``must be so strong and cogent as to exclude every other
reasonable hypothesis save the guilt of the defendant.'" 805 S.W.2d at 779-80(quoting State v. Crawfo rd, 470 S.W .2d 610, 612 (Tenn. 197 1)).
Viewing the evidence in light of the above-stated criteria, we ho ld that a
rational trier of fact could have concluded beyond a reasonable doubt that
Appellant comm itted aggravated rape. First, the jury heard the compelling
testimony of young A.L., age eight at the time of the trial in December 1995. A.
precis ely described for the jury what had occurre d betwe en hers elf and A ppellant.
Moreover, she acknowledged that she could readily distinguish between a "good
touch" and a "bad tou ch." Clear ly, a ration al trier of fa ct cou ld reas onab ly credit
A.'s testimony.
Second, the prosecution presented the testimony of Dr. Gerald Blossom,
the physician who examined A. Dr. Blossom testified that although A.'s hymenal
opening was in tac t at the time of the e xamin ation, th e diam eter ac ross A .'s
hymen measured one centimeter--twice the size which one would expect to find
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in a typical fou r-year-old g irl. Furtherm ore, Dr. B lossom testified that his
examination of A. revealed some thickening in her hymen at approximately the
four to five o'clock position. After explaining that the usual appearance of the
hymen is that of a very thin membrane, Dr. Blossom opined that the thickening
of A.'s hymen was caused by the repeated rubbing of an object against her
hymenal membrane.
Finally, the State introduce d the testimony of A.'s paternal gran dmothe r.
She related the manner in which A. first disclosed to her the sexual interactions
betwee n A. and Appella nt.
In urging this Court to hold that the evidence is insuff icient to susta in his
conviction, Appellant places great emphasis on the fact that A. was acquainted
with three men whose names were James: A.'s biological father, James (called
"Jimbo"); her stepfather, James (called "Jimm y") Greene; an d her grand father,
James L. Appellant's primary contention is that A. was confused about who
perpetrated the sexual acts upon her and thus wrongly accused Appellant.
However, the reco rd is clear th at A. unfa ilingly referred to her step father as
"Jimm y". Furtherm ore, whe n show n photo graphs of her family mem bers by a
police detective, A. positively identified Appellant as the pe rpetrator. Given the
foregoing, the jury w as m ore tha n justifie d in co nclud ing Ap pellant was the
perpetrator of the rapes.
III. ALLEGED IMPROPRIETY OF PROSECUTION'S REMARKS DURING
CLOSING ARGUMENT
Appellant urges this Court to find that certain remarks made by Assistant
Attorney General Kirk Andrews so prejudiced the outcome of Appellant's trial as
to rise to th e level o f revers ible error. First, Appellant objects to Ms. Andrews'
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statement that, as the victim of a childhood rape, A. always would be "serving
her time" and that the facts could lead the jury only "to the emotio n of outra ge."
Additio nally, A ppella nt take s issue with the Assis tant At torney Gen eral’s
comment that the jury's responsibility was to "relieve a little girl's mind" of
remembering what Appellant had done to her and to "put a final legal seal on a
little girl's pain and suffering." Appellant also asserts that the prosecutor
conducted herself impro perly by imploring the jury to give Appellant "his just
desse rts." Lastly, Appellant urges this Court to c onclu de tha t the Sta te's
assertion made during closing argument that as a child sex abuse sp ecialist, Dr.
Gera ld Blossom was "the definitive doctor... to make the definitive examination"
constitute d impro per pros ecutorial c onduc t.
Rather than contemporaneously objecting to any purportedly improper
remarks made during the State's closing argum ent, Ap pellan t's couns el opted to
raise all objections to the foregoing remarks at the conc lusion of the S tate's
rebuttal argument. The trial court then issued curative instructions to the jury,
informing them that "argu ments are not evidence," bu t that they merely are
arguments based upon the evidence. The court further instructed the jury that
the arguments of counsel also contain reasonable inferences which may be
drawn fro m the e vidence .
Appellant has waived his right to rais e this iss ue on appe al due to his
failure to contem porane ously ob ject to the prosecution's allegedly improper
remar ks at trial. See State v. Byerley, 658 S.W.2d 134, 139 (Tenn. Crim. App.
1983) (citing State v. Sutton, 562 S.W .2d. 820, 825 (T enn. 1978 )).
Nevertheless, we will b riefly examine the merits of Appellant's complaints.
In Ten ness ee, it is well-settled that in reviewing allegations of prosecutorial
misco nduct, the test to be applied by the appellate court is to ascertain "whether
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such condu ct could h ave affec ted the ve rdict to the p rejudice o f the defen dant."
State v. Smith, 803 S.W .2d 709, 710 (Tenn. Crim. App. 1990) (citing Judge v.
State, 539 S.W .2d 340, 344 (Tenn. Crim. App. 1976)). In Judge v. State, 539
S.W.2d at 344, this Cou rt articulated five factors to be utilized by appe llate courts
when evaluating claims o f prosecu torial misc onduc t during clo sing argu ment.
The Tennessee Supreme Court approved of and adop ted this five-fac tor ana lysis
in State v. Buck, 670 S.W.2d 600, 609 (Tenn. 1984). These five factors include:
"``(1) the cond uct com plained o f viewed in c ontext an d in light of the facts and
circumstances of the case; (2) the c urative meas ures unde rtaken by the co urt
and the prosecution; (3) the intent of the prosecutor in making the improper
statem ent; (4) the cumulative effect of the imprope r conduct an d any other erro rs
in the record; and (5) the relative strength or weakness of the cas e.'" Id. (quoting
Judge v. State, 539 S.W .2d at 344).
In Coke r v. State, this Court explained that "Trial courts have substantial
discretionary autho rity in determining the propriety of final argument. Although
counsel is generally given wide latitude, courts must restrict any improper
comm entary." 911 S.W .2d 357, 368 (Tenn. Crim. App. 1995) (citing Sparks v.
State, 563 S.W.2d 564 (Tenn. Crim. App. 1978)). The broad discretion accorded
to trial cou rts in co ntrolling the arg ume nt of co unse l "will not be reviewed absent
abuse of that discre tion." Smith v. S tate, 527 S.W .2d 737 , 739 (Tenn . 1975).
See also State v. Payton, 782 S.W .2d 490, 496 (Tenn. Crim . App. 1989 ).
In the case sub judice, the offending rem arks were ne ither length y nor
repeated. Second, once Appellant's counsel made known to the court her
objections to certain portions o f the State's closing a rgumen t, the trial court
issued curative instructions to the jury to rectify any perceived impropriety. Third,
nothin g in the record indicates that these remarks were made maliciously in an
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attempt to und uly pre judice the jury. Fourth, the cumulative effect of the
purported prosecutorial improprieties do not rise to the level of reversible error.
The trial court prudently gave curative instructions to the ju ry in which it described
the meaning and significance of closing arguments. Finally, the testimony of the
victim, her grandmother, and the medical proof form the basis of a compelling
case against Appellant. Under the circumstances, we find no reversible error
with respect to this issue.
IV. NEWLY DISCOVERED EVIDENCE
Finally, Appellant argu es that the trial court abuse d its discretion in denying
his motion for a new trial on the basis of newly d iscovere d eviden ce. We
disagree.
To receive a new trial on the ground of newly discovered evidence,
Appellant must demonstrate "(1) reasonable diligen ce in se eking the ne wly
discovered evidence; (2) materiality of the evidence"; and (3) that the evidence
will likely change the outcome of the trial. State v. Nicho ls, 877 S.W.2d 722, 737
(Tenn. 1994) (citing State v. Goswick, 656 S.W .2d 355, 358 -60 (Tenn . 1983)).
The trial cou rt is accorded broad discretion in deciding whether to grant or deny
a motion for a new trial predica ted on n ewly disco vered ev idence . State v.
Walker, 910 S.W.2d 381, 395 (Tenn. 1995 ). More over, th e trial co urt is
authorized to ascertain the credibility of newly discovered evidence for which the
new trial is desired, and the motion should be denied unless the court has
assured itself that the testimon y would b e worthy o f belief by the jury. Id. (quoting
Rose nthal V. S tate, 292 S.W .2d 1, 5, cert. denied, 352 U.S. 934, 77 S.Ct. 222,
1 L.Ed.2d 160 (19 56)). As a general rule, "newly discovered impeachment
evidence will not constitute grounds for a new trial. But if the impeaching
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evidence is so cruc ial to the defen dant's guilt or in noce nce th at its ad miss ion will
proba bly result in an acquittal, a new trial may be ordered ." State v. Singleton,
853 S.W.2d 490, 496 (Tenn. 1993) (citing State V. Ro gers, 703 S.W.2d 166, 169
(Tenn. Crim. A pp. 198 5); Rose nthal v. Sta te, 292 S.W.2d at 4-5; Evans v. State,
557 S.W .2d 927, 938 (Tenn. Crim . App. 1977 )).
At the hearing on the motion for n ew trial, Appellant pro ffered as newly
discovered evidence the testimony of two witnesses, Kevin Shepherd and Vilma
Mimi Lane y.
Shephe rd is an attorney who had repre sented Appellant initially when
Shephe rd worked at the Public Defender's Office. Mr. Shepherd testified that he
had attem pted u nsuc cess fully to co ntact V ilma M imi La ney at a telephone
numb er which he had discover ed while e ndeavo ring to loca te witness es.
Ms. Lane y, a frien d of A.'s mother., testified that shortly after Appellant was
indicted in 1991, she accompanied A.'s mother to the Department of Human
Services to visit A. During that visit, Ms. Laney allegedly overheard A. tell her
mother "that her [the mother's] Jimmy didn't do it." Ms. Laney explained that
although she resided ne xt to Appe llant and A .'s mothe r in 1991 , she m oved to
another residence in Blount County in 1992. She further stated that she had
resided at app roxim ately five different residences, all being w ithin Bloun t Coun ty
save one, between 1991 and 1996 and that she had neglected to m aintain
continuous telephone service during this time. Additionally, Ms. Laney indicated
that she was unaware that Appellant's trial had been scheduled for December
1995 but manifested her willingness to testify as to the conversation between A.
and her m other if a new tria l were granted. When the State asked Ms. Laney
whether she had reported this information to anyone at the time, she responded:
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"No. I just didn't think to, you know, at the time, and everything. I didn't think
anything was--at th e time, I did n't report it."
The trial court correctly found this was not newly discovered evidence
because Appellant's attorney was aware o f it before the trial. The ap propriate
remedy for a miss ing witn ess is a continuance. Appellant failed to seek such a
continuance and ca nnot no w be he ard to co mplain . See State v. Dorning, 682
S.W.2d 221, 22 3 (Ten n. Crim. App. 1984 ) (holdin g that th e trial co urt pro perly
denied a motion for new trial on the basis of the alleged newly discovered
evidence of an unavailable witness where no du e diligenc e was exercis ed in
procuring witness and denying relief on appeal where Appellant failed to file a
motion for continu ance); King v. Sta te, No. 01C01-9603-CR-00086, slip op., 1,
7 (Tenn. Crim. App. June 6, 1997) (holding that "Continuances may be granted
for the pu rpose of sec uring th e pres ence of iden tifiable w itness es if the ir
testim ony is material and admissible.").In any event, there appears to be a lack
of due diligence in ende avorin g to loc ate M s. Lan ey. A fe w telep hone calls ha rdly
satisfies this criterion. Second, the evidence is at most impeachment mate rial in
the nature of a prior inconsistent statement. Under these circumstances, the trial
court prope rly den ied Ap pellan t a new trial on the ba sis of alle gedly n ewly
discovered evidence.
Accordingly, the judgment of the trial court is affirmed.
____________________________________
JERRY L. SMITH, JUDGE
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CONCUR:
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JOSEPH M. TIPTON, JUDGE
___________________________________
THOMAS T. WOODALL, JUDGE
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