State of Tennessee v. Michael D. Hernandez

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
March 23, 2016 Session Heard at Lincoln Memorial University, Duncan School of
Law
STATE OF TENNESSEE v. MICHAEL D. HERNANDEZ
Direct Appeal from the Circuit Court for Anderson County
No. A9CR0883 Donald R. Elledge, Judge
No. E2015-01365-CCA-R3-CD – Filed September 27, 2016
An Anderson County Circuit Court Jury convicted the appellant, Michael D. Hernandez,
of one count of rape of a child, and he received a twenty-five-year sentence to be served
at 100%. On appeal, the appellant contends that the evidence is insufficient to support
the conviction; that the trial court erred by refusing to give him access to the victim‟s
statement in an investigator‟s notes; that the trial court erred by failing to conduct an in
camera review of the notes for exculpatory material; that the trial court erred by denying
his motion to suppress evidence found in his home; that the trial court erred by defining
“on or about” for the jury; that the trial court erred by giving sequential jury instructions;
and that cumulative error warrants a new trial. Based upon the oral arguments, the
record, and the parties‟ briefs, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which, TIMOTHY L.
EASTER, J., joined. JOHN EVERETT WILLIAMS, J., filed a separate opinion concurring in
part and dissenting in part.
J. Thomas Marshall, Jr., District Public Defender, Clinton, Tennessee, for the appellant,
Michael D. Hernandez.
Herbert H. Slatery III, Attorney General and Reporter; John H. Bledsoe, Senior Counsel;
Dave Clark, District Attorney General; and Victoria Bannach, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
In March 2013, the appellant was tried for four counts of rape of a child that
allegedly occurred “on or about” March 7, March 14, March 21, and March 28, 2009. At
trial, the then thirteen-year-old victim testified that she was nine years old in 2009. Her
grandmother was married to the appellant, and the victim had known him since she was a
baby. The victim lived with her grandmother; the appellant; her then ten-year-old
brother; and her then eight-year-old uncle, who was the son of her grandmother and the
appellant. The family resided in a three-bedroom home that was located very close to the
victim‟s elementary school. The victim had her own bedroom, her brother and uncle
shared a bedroom, and her grandmother and the appellant shared a bedroom.
The victim testified that two or three days after January 26, 2009, which was her
ninth birthday, the appellant began touching the inside of her “private” with his fingers.
The first incident occurred in the living room while her brother and uncle were in their
bedroom. The victim said the incident lasted a few minutes and “hurt a little.” The abuse
continued and always occurred on the weekends when the victim‟s grandmother was at
work. The victim stated, “Sometimes the boys would be there but they would most likely
be in the bedroom or the living room and when the boys were there he did it in the
bedroom with the door closed.”
The victim testified that the appellant also licked her “private” while her brother
and uncle were at a friend‟s house. On Sunday, March 29, 2009, the appellant came into
the victim‟s bedroom while she was getting ready for church. Her brother and uncle were
in their bedroom. The appellant told the victim to “drop” her pants, lay her on the bed,
and put his penis inside her vagina. The victim described the appellant‟s penis as “short”
and “fat.” The next day, Monday, March 30, the victim‟s grandmother “got called into
work.” After the victim got home from school, the appellant touched the inside of her
private with his fingers. She said that the appellant used lotion sometimes and that he
also put his penis in her mouth “a couple of times” on different occasions.
The victim testified that on Tuesday, March 31, 2009, she told two friends at
school about the incidents on Sunday and Monday. One of her friends told her that she
should tell a teacher, and the victim did so. The principal later “pulled” the victim out of
class and tried to talk with her, but the victim would not speak with him. An employee
from the Department of Children‟s Services (DCS) arrived and talked with the victim.
The DCS employee also spoke with the victim‟s grandmother, and the victim‟s
grandmother was surprised about the victim‟s allegations. After school, the victim‟s
grandmother took her to a hospital for a physical examination. The next day, the victim
spoke with an interviewer at the Child Advocacy Center (CAC). The victim stated that
after she revealed the abuse, her grades “started to go really, really bad,” and she went to
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therapy. The victim said she thought about committing suicide when she was eleven
years old.
On cross-examination, the victim testified that the appellant was employed but that
he usually worked on days when her grandmother was not working. The victim denied
telling anyone at the hospital that the abuse started in 2008 and said she did not remember
telling an interviewer that the appellant “did something to [her] butt.” The victim did not
remember the appellant‟s abusing her on Saturday, March 8. However, he began licking
her vagina on the weekend of March 14. The victim spent the weekend of March 20 with
her father. She said that she had a medical condition in which her urethra had not grown
since she was three years old and that the condition often caused her to wet the bed at
night. When the victim would wet the bed, she would get into bed with her grandmother
and the appellant.
Sarah Powell, an investigator with DCS, testified that she received a referral about
the victim on March 31, 2009, went to the victim‟s elementary school, and talked with
the victim. At first, the victim was “happy and talking about her friends.” However,
when Ms. Powell began asking the victim “certain questions,” the victim cried and “was
shaking a little bit.” Ms. Powell “determined that the child was very unsafe in her current
condition” and contacted Detective Vaughn Becker and the victim‟s grandmother. When
Detective Becker arrived at the school, Ms. Powell told him about the victim‟s
allegations. At that point, the appellant arrived, and Ms. Powell, Detective Becker, and
another officer spoke with him in the library. Detective Becker asked the appellant if he
knew why the officers were there, and the appellant said no. The appellant was calm, and
Detective Becker told him that allegations had been made about him abusing someone.
Ms. Powell said that the appellant‟s demeanor changed “significantly” and that he got a
trashcan. She said that he attempted to throw up in the trashcan but that “it wasn‟t like a
person that was really sick.”
Ms. Powell testified that voices were not raised during the meeting and that the
meeting was “very calm.” At some point, Ms. Powell left the library to set up a “safety
plan” for the victim. After she returned, Detective Becker ended the meeting by telling
the appellant that “they‟d set up something else to talk.” Ms. Powell spoke with the
victim‟s grandmother briefly at the school and told her to take the victim to East
Tennessee Children‟s Hospital (ETCH) for a rape kit. A couple of days later, the victim
had a forensic interview at the CAC, and Ms. Powell was present during the interview.
The victim‟s grandmother testified that she had had custody of the victim since the
victim was one year old and that she married the appellant in 2010. In 2009, the victim‟s
grandmother worked at Heiskell Market on Thursdays through Sundays. She said that
she “would pull five shifts in three days” on the weekends so that she could be at home
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with the children during the week.
The victim‟s grandmother testified that on the afternoon of March 31, 2009, she
was at home with the appellant. They were watching television when she received a
telephone call from the victim‟s elementary school. She thought one of the children had
done something wrong, so she sent the appellant to the school, which was across the
street from their home. About ten minutes later, the appellant telephoned and told her “to
get down here now.” The victim‟s grandmother went to the school office. Ms. Powell
introduced herself and said she needed to speak with the victim‟s grandmother about the
victim.
The victim‟s grandmother testified that she went into the library with Ms. Powell,
saw Detective Becker, and “was informed of what was going on.” She then “signed
some paper” and took the victim to ETCH for an examination. The victim‟s grandmother
said that although the victim had not said anything to her about the abuse, she believed
“something” had happened to the victim. After the examination, the victim‟s
grandmother arranged for the victim to receive therapy. The victim‟s grandmother said
that the victim loved the appellant “[w]ith all her heart” and that the appellant treated the
victim like his own daughter. She acknowledged that the appellant was diabetic and said
that she had seen him have episodes in which he would sweat and get dizzy.
The victim‟s grandmother testified that at some point, she told Detective Becker
about a jar of lotion in her home that was used to soften the heels of feet. The jar had a
“black and white spotted cow design on it.” Detective Becker asked for the jar, so the
victim‟s grandmother went to get it. The jar was usually in the bathroom, but she could
not find it.
On cross-examination, the victim‟s grandmother testified that in 2009, the
appellant worked full time. The victim‟s grandmother worked on Sunday, March 29, but
was home all day on Monday, March 30. The appellant was “off” on Tuesday, March 31.
The victim‟s father had visitation with the victim every other weekend, and the victim
spent the weekend of March 22 with him. The victim‟s grandmother said that she had
always had a good relationship with the victim and acknowledged that the victim talked
with her about what was going on in the victim‟s life. The victim‟s grandmother
identified two bedspreads that the police had collected from her home and labeled as
“item three” and “item four.” She said that she usually kept item three on the end of her
bed and that she would take item four out of the closet “if someone needed it.” On the
night of March 30, 2009, the victim wet her bed, so her grandmother removed the soiled
sheets and put the two bedspreads on the victim‟s bed. On redirect examination, the
victim‟s grandmother testified that the family put their dirty clothes into a blue laundry
basket. When the basket was full, she washed the clothes.
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Detective Vaughn Becker of the Clinton Police Department testified that about
3:30 p.m. on March 31, 2009, he received a call from Ms. Powell about a case involving
child sexual abuse and went to the victim‟s elementary school. The appellant was
standing in the lobby, and Detective Becker spoke with Ms. Powell in the library. Shortly
thereafter, Detective Russell Barker arrived, and the three of them met with the appellant
in the library. The appellant “acted like he was about to get sick” and put his head into a
trashcan. Detective Becker said the appellant attempted to throw up “even though he
didn‟t.”
Detective Becker testified that his conversation with the appellant was brief, that
he did not question the appellant about the facts or details of the allegations, and that he
did not reveal the accuser‟s identity. The appellant did not appear to be sweating or
shaking. The victim had alleged that the abuse occurred on Sunday, so Detective Becker
was concerned about collecting evidence before someone washed or discarded it.
Therefore, his “main conversation” with the appellant related to searching the appellant‟s
home. Detective Becker did not have a written consent form but asked the appellant for
permission to search the residence and advised him that he had a constitutional right to
refuse. Detective Becker said that he spoke with the appellant in a normal tone and that
he was not accusatory. The appellant consented to the search and “said you can look at
anything.”
Detective Becker testified that the victim‟s grandmother arrived at the school and
left with the three children. The appellant could not have contact with the children during
the investigation, so the officers offered to drive him home in order for him to collect
personal items. Detective Becker drove the appellant to the residence, and Detective
Barker rode with them. When they arrived, Detective Becker again asked the appellant
for permission to search, and the appellant gave consent. The three of them went inside,
and the appellant began collecting his belongings. Detective Becker said he saw the
appellant collect what “looked like a bottle of lotion that had cow spots on the outside”
from the bathroom. Detective Becker later tried to obtain the bottle from the victim‟s
grandmother, but she could not find it.
Detective Becker testified that after the appellant collected his personal items, he
asked to leave, and Detective Becker said yes. Detective Becker said that he never told
the appellant that the appellant could not leave and that the appellant “was free to come
and go as he pleased.” During the officers‟ search of the residence, Detective Becker
collected two bedspreads from the victim‟s bed. He stated that the first bedspread,
labeled by law enforcement as “item three,” was “spread out smooth on the bed like
somebody would sleep on it like a fitted sheet that would cover the mattress.” The
second bedspread, labeled as “item four,” was “crumpled up like maybe that‟s a blanket
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that would cover somebody up.” Detective Becker also collected two pairs of girls‟
panties from a blue laundry basket. One pair was on top of the pile of clothes in the
basket, and the other pair was under several layers of clothes.
Detective Becker testified that he later collected the victim‟s rape kit from ETCH
and delivered it to the Tennessee Bureau of Investigation (TBI). On April 6, 2009, the
appellant left a message on Detective Becker‟s voicemail, stating that he was rescinding
his consent to search. On June 22, 2009, the appellant consented to giving a DNA
sample, so Detective Becker obtained a buccal swab from him.
On cross-examination, Detective Becker testified that he did not try to interview
the appellant on March 31 and that he did not remember the appellant‟s asking to get
something to eat at the house. About two days after the victim‟s allegations surfaced, the
appellant hired an attorney, so Detective Becker was unable to ask the appellant about the
bottle of lotion. When Detective Becker later asked if the appellant would give a DNA
sample, the appellant agreed and was cooperative. Detective Becker acknowledged that
the clothes in the laundry basket were “all mixed together.”
On redirect examination, Detective Becker testified that he overheard the appellant
tell the appellant‟s wife at the school that the victim had made “an allegation.” Detective
Becker had not revealed the identity of the appellant‟s accuser to the appellant. On
recross-examination, Detective Becker testified that he did not know who talked with the
appellant prior to Detective Becker‟s arrival at the school.
Detective Russell Barker testified that on March 31, 2009, he assisted Detective
Becker with the investigation. Detective Barker, Detective Becker, and Ms. Powell went
into the library and spoke with the appellant, and the appellant “was advised that an
allegation had been made.” At that point, the appellant‟s demeanor changed, and he
“claimed to have become ill suddenly.” The appellant got a trashcan and spit into it a
couple of times but never vomited. Ms. Powell spoke with the appellant about a safety
plan, and Detective Becker “asked for consent to search his house, which he agreed to.”
Detective Becker told the appellant that the search was “completely voluntary and that he
didn‟t have to,” and the appellant agreed to the search. The officers never handcuffed the
appellant or raised their voices.
Detective Barker testified that he and the appellant rode with Detective Becker to
the appellant‟s home. The appellant opened the door of the residence, and Detective
Becker “again asked him if he was completely comfortable with us searching and again
advised him that it would be voluntary.” The appellant said they could search. The
appellant packed a bag, and the officers began searching the home. During the search,
the appellant asked if he could leave, and the officers said yes. The detectives collected
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two bedspreads from the victim‟s bedroom and two pairs of panties from a laundry
basket. On cross-examination, Detective Barker testified that he did not have a
conversation with the appellant about the appellant‟s blood sugar.
Kenneth David Wicker, an emergency room physician at ETCH, testified as an
expert in pediatric and internal medicine that he examined the victim on March 31, 2009.
The victim told him that the appellant “had done things to her” at different times during
the past year. The victim claimed that the appellant had touched her through her clothes,
made her take off her clothes, put her mouth to his penis, and touched her private parts
with his penis. The victim also said that the appellant‟s penis “went in her,” but Dr.
Wicker stated that “that‟s hard to know.” The victim‟s genitalia were normal, and Dr.
Wicker saw no bruises, tears, or lacerations. The victim‟s hymen, the membrane over the
opening of the vagina, was intact. He said that the victim had some redness around the
opening of her vagina but that such redness was not unusual for young girls. The victim
said the last incident occurred on March 29, so Dr. Wicker obtained forensic samples for
a rape kit.
On cross-examination, Dr. Wicker testified that he did not remember being told
that the victim had a short urethra. He stated that in most cases of child sexual abuse,
even those involving vaginal penetration, the victim‟s physical examination was normal.
Keith Proctor, a special agent forensic scientist for the TBI, testified as an expert
in serology and DNA analysis that he analyzed the evidence collected in this case. The
victim‟s vaginal swabs failed to show the presence of semen but did show the presence of
alpha amylase, a component of saliva. DNA analysis on the alpha amylase matched only
the victim‟s profile. Analysis on the panties found at the top of the laundry basket did not
show the presence of semen. Analysis on the panties found in the middle of the laundry
basket revealed the presence of semen, but not sperm, in the crotch area. A DNA profile
obtained from the crotch area was consistent with the victim. Agent Proctor found
semen, but not sperm, on the bedspread labeled “item three.” The DNA profile on the
bedspread was consistent with a mixture of genetic material. The appellant was the
major contributor to the mixture, and an “addition[al] allele” on the bedspread matched
the victim. Agent Proctor said that because the bedspread came from the victim‟s bed, “it
wouldn‟t be uncommon to have the victim‟s profile in the victim‟s bed.” Agent Proctor
did not find semen on the bedspread labeled “item four.”
On cross-examination, Agent Proctor testified that it was impossible to know how
long the semen had been present on the bedspread labeled item three. However, under
the right circumstances and conditions, DNA could be present for an extended period of
time. The fact that Agent Proctor found semen, but not sperm, on the victim‟s panties did
not mean that sperm were not present on the panties but that sperm were not present on
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the portion of the panties he tested. Agent Proctor acknowledged that DNA could have
been transferred to the panties in the laundry basket, but he thought such a transfer was
“unlikely.” At the conclusion of Agent Proctor‟s testimony, the State rested its case and
dismissed the count of rape of a child on or about March 21, 2009.
The appellant testified that he was born in Texas in 1968 and served in the Army
for six years, including the Persian Gulf War. The appellant then lived in Chattanooga
and completed an electrical apprentice program to become an electrician. The appellant
attended the University of Tennessee in Knoxville from 1997 to 1999 and married the
victim‟s grandmother in 2001. They had one son.
The appellant testified that he and his wife had custody of the victim because the
victim‟s mother had “several different problems” and that the victim had “some anger
management issues” when she came to live with them. The appellant stated that he and
his wife were “not exactly sure what it transpired from” but that the victim received
therapy in 2002. The victim also had a shortened urethra that caused her to wet the bed.
When the victim would wet the bed, she would get into bed with the appellant and his
wife. However, when the victim was about eight years old, they told her that she was too
old to get into their bed. On the night of Monday, March 30, 2009, the victim wet her
bed, so her grandmother changed the bedding and put the two bedspreads on the bed.
The appellant testified that he never sexually abused the victim and that the
accusations in the library made him physically sick. He said Detective Becker never
asked for consent to search his home.
On cross-examination, the appellant testified that Detective Becker told him that
the victim had made allegations of sexual abuse and that the officers needed to
accompany him to his home in order to ensure he did not have any contact with his wife
or the children. The appellant said his lawyer later wrote a statement in which the
appellant rescinded “any search or seizures that may have been progressing up to that
point.” When the appellant left the message on Detective Becker‟s voicemail, he was
reading from the statement. At the time of the victim‟s allegations, the appellant was
working for Lowes. He said that when he was not working, the children were “[n]ot
necessarily” with him and may have been with the victim‟s mother or father.
The jury convicted the appellant of committing rape of a child on or about March
28, 2009, but found him not guilty of committing rape of a child on or about March 7 and
March 14, 2009. After a sentencing hearing, the trial court sentenced him to twenty-five
years to be served at 100%.
II. Analysis
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A. Sufficiency of the Evidence
The appellant contends that the evidence is insufficient to support the conviction
due to the victim‟s lack of credibility, as demonstrated by inconsistencies in her
testimony and her failure to report the alleged abuse prior to March 31, 2009, and her
normal medical examination. The State argues that the evidence is sufficient. We agree
with the State.
When an appellant challenges the sufficiency of the convicting evidence, the
standard for review by an appellate court 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 (1979); Tenn. R. App. P. 13(e). The State is entitled to the strongest
legitimate view of the evidence and all reasonable or legitimate inferences which may be
drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions
concerning the credibility of witnesses and the weight and value to be afforded the
evidence, as well as all factual issues raised by the evidence, are resolved by the trier of
fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This court will not reweigh or
reevaluate the evidence, nor will this court substitute its inferences drawn from the
circumstantial evidence for those inferences drawn by the jury. Id. Because a jury
conviction removes the presumption of innocence with which a defendant is initially
cloaked at trial and replaces it on appeal with one of guilt, a convicted defendant has the
burden of demonstrating to this court that the evidence is insufficient. State v. Tuggle,
639 S.W.2d 913, 914 (Tenn. 1982).
A guilty verdict can be based upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence. State v. Hall, 976 S.W.2d 121, 140
(Tenn. 1998). “The jury decides the weight to be given to circumstantial evidence, and
„[t]he inferences to be drawn from such evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence, are questions
primarily for the jury.‟” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting
Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958)). “The standard of review „is the
same whether the conviction is based upon direct or circumstantial evidence.‟” State v.
Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265,
275 (Tenn. 2009)).
Relevant to this case, rape of a child is defined as the “unlawful sexual penetration
of a victim by the defendant . . . if the victim is more than three (3) years of age but less
than thirteen (13) years of age.” Tenn. Code Ann. § 39-13-522(a). “„Sexual penetration‟
means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion,
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however slight, of any part of a person‟s body or of any object into the genital or anal
openings of the victim‟s, the defendant‟s, or any other person‟s body, but emission of
semen is not required.” Tenn. Code Ann. § 39-13-501(7).
The victim testified that on Sunday, March 29, 2009, the appellant came into her
bedroom, told her to lower her pants, lay her on the bed, and penetrated her vagina with
his penis. Although the appellant claims that the victim was not credible, determining the
credibility of witnesses is within the purview of the jury. See State v. Millsaps, 30
S.W.3d 364, 368 (Tenn. Crim. App. 2000) (stating that “[t]he weight and credibility of
the witnesses‟ testimony are matters entrusted exclusively to the jury as the trier[ ] of
fact”). As to the victim‟s having a normal physical exam, Dr. Wicker testified that in
most cases of child sexual abuse, even those involving vaginal penetration, the victim‟s
physical examination was normal. We note that forensic analysis of the evidence showed
the presence of semen on the crotch area of a pair of the victim‟s panties and a blanket
from her bed, both of which were collected just two days after the alleged crime. Taken
in the light most favorable to the State, the evidence is sufficient to support the
conviction.
B. Victim‟s Statement
The appellant claims that the trial court erred by refusing to give him access to the
victim‟s March 31 statement to Ms. Powell, which was included in Ms. Powell‟s notes.
He contends that he was entitled to the victim‟s statement pursuant to Tennessee Rule of
Criminal Proceure 26.2. The State argues that the trial court properly denied the
appellant‟s request because the victim‟s statement to Ms. Powell did not qualify as a
“statement” under the Rule. We agree with the State.
During cross-examination of Ms. Powell, defense counsel asked if she wrote a
report regarding her interview with the victim on March 31, 2009. Ms. Powell answered,
“Yes, I jot down notes when we are talking and then I type those up.” During a bench
conference, counsel requested her notes. The State argued that the notes were
confidential pursuant to Tennessee Code Annotated section 37-1-612, which makes all
reports of child sexual abuse confidential, and, in any event, were not discoverable under
Tennessee Rule of Criminal Procedure 26.2, which governs the production of witness
statements, because the notes did not qualify as the victim‟s “statement.” The trial court
ruled that the defense was not entitled to the notes pursuant to Tennessee Code Annotated
section 37-1-612.
Rule 26.2(a), Tennessee Rules of Criminal Procedure, provides,
After a witness other than the defendant has testified on direct
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examination, the court, on motion of a party who did not call
the witness, shall order the attorney for the state or the
defendant and the defendant‟s attorney to produce, for the
examination and use of the moving party, any statement of
the witness that is in their possession and that relates to the
subject matter of the witness‟s testimony.
A “statement” is defined as “[a] written statement that the witness makes and signs, or
otherwise adopts or approves” or “[a] substantially verbatim, contemporaneously
recorded recital of the witness‟s oral statement that is contained in a stenographic,
mechanical, electrical, or other recording or a transcription of such a statement.” Tenn.
R. Crim. P. 26.2(f)(1), (2).
The trial court allowed Ms. Powell‟s notes to be filed under seal with the appellate
record. Upon review of the victim‟s statement, we cannot say that it meets the definition
of a “statement” requiring disclosure under Rule 26.2(f). Ms. Powell‟s notes include a
narrative of her actions on March 31 and quoted statements made by the victim during
the victim‟s interview with Ms. Powell. The notes were not signed, approved, or adopted
by the victim, and nothing indicates that they were a verbatim account of the events given
by the victim to Ms. Powell. See State v. Biggs, 218 S.W.3d 643, 662 (Tenn. Crim. App.
2006) (holding that summary of forensic interview was not subject to production as
witness statement); see also State v. Terrence L. Davis, No. 02C01-9511-CR-00343,
1997 WL 287646, at *8 (Tenn. Crim. App. at Jackson, June 2, 1997) (holding that private
investigator‟s notes, made while interviewing witness, do not qualify as “substantially
verbatim recital” of the witness‟s oral statement under Rule 26.2). Therefore, we
conclude that the State was not required to disclose the victim‟s statement to the appellant
under Rule 26.2, Tennessee Rules of Criminal Procedure.
In his separate opinion, Judge Williams agrees that Ms. Powell‟s notes do not
qualify as the victim‟s “statement” pursuant to Rule 26.2 but concludes that the trial court
erred by failing to determine whether Ms. Powell‟s notes qualified as Ms. Powell‟s
“statement” pursuant to the Rule. We acknowledge that while an interviewer‟s notes
frequently will not qualify as an interviewee‟s “statement” for the purpose of impeaching
the interviewee, as in this case, the notes may be discoverable pursuant to Rule 26.2 for
the purpose of impeaching the interviewer. See State v. Robinson, 618 S.W.2d 754, 758-
59 (Tenn. Crim. App. 1981). However, the appellant does not argue on appeal that he
needed Ms. Powell‟s notes for the purpose of impeaching Ms. Powell. See Tenn. R. App.
P. 36(b). Instead, he repeatedly argues in his brief that he needed Ms. Powell‟s notes for
the purpose of impeaching the victim with inconsistencies in her trial testimony and her
statement to Ms. Powell. Accordingly, the trial court did not err by refusing to give the
appellant access to the victim‟s statement.
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C. In Camera Review
In a related argument, the appellant contends that the trial court erred by failing to
conduct an in camera review of Ms. Powell‟s notes for exculpatory information. The
State appears to acknowledge that the trial court erred. However, the State argues that
the appellant is not entitled to relief because the only value of the notes would be
inconsistent statements made by the victim, and defense counsel already had the victim‟s
forensic interview that he could use to cross-examine her. We conclude that the appellant
is not entitled to relief.
During the bench conference in which defense counsel asked for Ms. Powell‟s
notes, counsel also asked that the trial court review the notes in camera “to determine
exculpatory or contradictory to what the child testified to or what [Ms. Powell] testified
to.” The court refused, concluding that it could not conduct an in camera review pursuant
to State v. Gibson, 973 S.W.2d 231 (Tenn. Crim. App. 1998).
The Due Process Clause of the Fourteenth Amendment to the United States
Constitution and article I, section 8 of the Tennessee Constitution afford every criminal
defendant the right to a fair trial. See Johnson v. State, 38 S.W.3d 52, 55 (Tenn. 2001).
As such, the State has a constitutional duty to furnish a defendant with exculpatory
evidence pertaining to the defendant‟s guilt or innocence or to the potential punishment
faced by a defendant. See Brady v. Maryland, 373 U.S. 83, 87 (1963). Moreover, in
Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987), the United States Supreme Court stated
that a defendant‟s constitutional right to confront witnesses against him includes the right
to conduct meaningful cross-examination.
In Gibson, upon which the trial court relied, this court held that pursuant to
Tennessee Code Annotated section 37-1-612, a criminal defendant had no right to records
related to child sexual abuse investigations. 973 S.W.2d at 244. However, in State v.
Gwendolyn Hagerman, No. E2011-00233-CCA-R3-CD, 2013 WL 6729912, at *37
(Tenn. Crim. App. at Knoxville, Dec. 19, 2013), a panel of this court held that “the
overriding concern is protection of a defendant‟s confrontation rights at the trial” and that
“the majority‟s holding in Ritchie provides an additional mechanism for protecting a
defendant‟s confrontation rights via in camera review of statutorily protected records.”
See Charles Ritter v. State, No. E2008-01278-CCA-R3-PC, 2009 WL 3711991 at *8
(Tenn. Crim. App. at Knoxville, Nov. 6, 2009) (stating that “[u]nder Pennsylvania v.
Ritchie, a DCS file may be submitted to a trial court for in camera review, and if a
defendant is aware of specific information in the file, he may request it from the court
and argue its materiality”). The Gwendolyn Hagerman court went on to say that
decisions such as the one in Gibson “did not consider the issue in light of Ritchie, and we
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do not consider them authoritative.” Thus, this court concluded that the trial court should
have conducted an in camera review of the records. We also conclude that the trial court
should have conducted an in camera review of Ms. Powell‟s notes.
That said, the appellant will be entitled to relief only if the notes contained
information that probably would have changed the outcome of his trial. Gwendolyn
Hagerman, No. E2011-00233-CCA-R3-CD, 2013 WL 6729912, at *38 (citing Ritchie,
480 U.S. at 58). We have carefully reviewed the notes, and they contain information that
was admitted at trial. While they do contain inconsistencies between what the victim told
Ms. Powell and the victim‟s testimony, defense counsel explored those inconsistencies
for impeachment on cross-examination, presumably from the victim‟s forensic interview
at the CAC. Thus, we conclude that despite the trial court‟s failure to review the notes,
they do not contain information that probably would have changed the outcome of the
appellant‟s trial and that the appellant is not entitled to relief on this issue.
D. Motion to Suppress
The appellant contends that the trial court erred by denying his motion to suppress
the evidence found in his home because he did not consent to the warrantless search. The
State argues that the trial court properly denied the motion. We agree with the State.
Before trial, the appellant filed a motion to suppress the evidence found in his
residence. At the suppression hearing, Detective Becker testified for the State that on
March 31, 2009, he went to the victim‟s elementary school and made contact with the
appellant and Ms. Powell. The appellant was sitting in the school library when Detective
Becker arrived. Detective Becker said the appellant seemed nervous, acted as if he were
going to get sick, and asked for a trashcan but never vomited. Detective Becker spoke
with the appellant for ten to fifteen minutes. Detective Barker also was present but did
not talk with the appellant.
Detective Becker testified that he asked the appellant if he could search the
appellant‟s house and that he advised the appellant that the appellant could refuse
consent. Detective Becker said the appellant told him that he could “look at anything
[he] wanted to.” The appellant did not ask Detective Becker any questions, and Detective
Becker did not have any concerns about the appellant‟s mental capacity. DCS would not
allow the appellant to stay in the home, so Detective Becker offered the appellant a ride
home in order for the appellant to get some clothing and personal items. The appellant
accepted the offer and rode with Detective Becker in the detective‟s unmarked patrol car.
The appellant and Detective Becker walked to the side door of the home, and Detective
Becker again asked the appellant for permission to search. He also told the appellant that
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the appellant had the right to refuse consent. Detective Becker said the appellant “let us
in” and was very cooperative and helpful.
Detective Becker testified that the appellant was allowed to move freely around
the home but that he and Detective Barker watched him and were in close proximity to
him for their safety. The appellant gathered clothing and personal items. He was free to
leave the residence and did so before the officers finished searching it. During the
search, Detective Becker photographed the victim‟s bedroom and collected two
bedspreads from her bed. He also collected two pairs of the victim‟s panties from the
laundry room. He said he and Detective Barker were in the home for twenty to thirty
minutes. On April 6, the appellant left a message on Detective Becker‟s voicemail,
“stating that he rescinded his consent to search his property without a warrant.”
On cross-examination, Detective Becker testified that the appellant was sitting in
the library when he arrived at the school and that he did not know if anyone from DCS
had ordered the appellant to stay there. He said that he did not have the appellant sign a
consent to search form, that he considered the residence a crime scene, and that he would
not have allowed the appellant to return to the house alone. Detective Becker never told
the appellant that he was free to leave. On redirect examination, Detective Becker
testified that he never told the appellant that the appellant was not free to leave.
The appellant testified that on the afternoon of March 31, he walked to the
elementary school to pick up the children. When he arrived, the principal told him that
“there was a situation” and that he “needed to go ahead and take a seat.” The principal
went into his office, and the appellant sat outside the office. About fifteen minutes later,
the principal went into the library. After waiting another ten minutes, the appellant asked
what was going on and was “informed that there was a situation with [the victim] and that
until they got to a certain point with it, [he] had to just sit and wait.” The appellant then
saw the principal and Detective Becker open the library door. The appellant went into
the library and saw Detective Becker, Detective Barker, and Ms. Powell. Ms. Powell
“took the actual lead” and talked with the appellant, and the officers told him about an
investigation regarding child sexual abuse. No one read him his rights. The appellant
said that he was “quite confused” but that Detective Barker said the appellant did not
have to talk with them. Ms. Powell had the appellant sign a “no-contact order” and left
the room, and the detectives questioned the appellant “about what was going on with [the
victim].”
The appellant testified that he was diabetic, was hypoglycemic, and asked for a
trashcan. Ms. Powell, who had spoken with the appellant‟s wife, returned to the library
and gave him a copy of the no-contact order. The appellant told the officers that he
needed to get some items from his house, and Detective Becker said the officers would
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have to go with him. They did not say anything about searching the appellant‟s
residence. Detective Becker drove the appellant to the home, and Detective Barker
escorted the appellant to his bedroom and watched the appellant collect his belongings.
The appellant‟s blood sugar was low. He asked Detective Becker if he could get
something to eat, but Detective Becker said no. The appellant asked the officers if he
could leave, and they said yes. The appellant left through the side door while the officers
were in the kitchen. They never asked to search the residence.
On cross-examination, the appellant testified that he never asked to leave the
library. He said he felt like he had no choice but to leave his home because DCS was
going to remove the children from the house if he did not leave. The appellant later
telephoned Detective Becker and told him that “any consent to search was being
rescinded.” He also told the officer that he was not going to consent to an interview or
take a polygraph examination.
Detective Barker testified on rebuttal for the State that when he arrived at the
school on March 31, he went into the library with Detective Becker, Ms. Powell, and the
appellant. Detective Barker stated, “I think we all walked in at the same time. I don‟t
recall anyone being in there ahead of us.” The officers did not question the appellant
about the allegations. Detective Becker asked to search the appellant‟s home, and the
appellant said yes. Detective Barker stated that Detective Becker “explained to [the
appellant] that it was voluntary and he didn‟t have to” and that the appellant said the
officers could search. The three of them went to the appellant‟s residence. When they
arrived, Detective Becker “described the process” to the appellant and “again made sure
that he was comfortable with the search and that it was voluntary.” The appellant told the
officers that he “didn‟t have a problem with it.” Detective Barker said the appellant was
free to leave the home and did so “when he got ready.”
At the conclusion of the hearing, the trial court accredited Detective Becker‟s
testimony that he asked for permission to search the home, that he advised the appellant
that the appellant could refuse consent, and that the appellant consented to the search.
The court noted that Detective Barker‟s testimony was “consistent and credible” with
Detective Becker‟s testimony and concluded that the appellant freely and voluntarily
consented to the search while he was at the elementary school and again when he and the
officers arrived at the home. Accordingly, the court denied the appellant‟s motion to
suppress.
In reviewing a trial court‟s determinations regarding a suppression hearing,
“[q]uestions of credibility of the witnesses, the weight and value of the evidence, and
resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier
of fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, “a trial court‟s findings
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of fact in a suppression hearing will be upheld unless the evidence preponderates
otherwise.” Id. Nevertheless, appellate courts will review the trial court‟s application of
law to the facts purely de novo. See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001).
Furthermore, the State, as 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 that evidence.” Odom, 928 S.W.2d at 23.
Moreover, we note that “in evaluating the correctness of a trial court‟s ruling on a pretrial
motion to suppress, appellate courts may consider the proof adduced both at the
suppression hearing and at trial.” State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998).
Both the Fourth Amendment to the United States Constitution and article I, section
7 of the Tennessee Constitution provide protection for citizens against “unreasonable
searches and seizures.” Generally, a warrantless search is considered presumptively
unreasonable and, thus, violative of constitutional protections. See State v. Walker, 12
S.W.3d 460, 467 (Tenn. 2000). However, “one of the exceptions to the warrant
requirement is a search conducted pursuant to consent.” State v. Bartram, 925 S.W.2d
227, 230 (Tenn. 1996) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973), and
State v. Jackson, 889 S.W.2d 219, 221 (Tenn. Crim. App. 1993)). “The sufficiency of
consent depends largely upon the facts and circumstances in a particular case.” Jackson,
889 S.W.2d at 221. Whether consent exists and “„whether it was voluntarily given are
questions of fact.‟” State v. Ashworth, 3 S.W.3d 25, 29 (Tenn. Crim. App. 1999)
(quoting State v. McMahan, 650 S.W.2d 383, 386 (Tenn. Crim. App. 1983)). The
prosecution bears the burden of proving that the Appellant freely and voluntarily gave
consent. See McMahan, 650 S.W.2d at 386.
The appellant contends that the trial court erred by denying his motion to suppress
because he testified that the officers never asked for consent to search his residence;
therefore, he never gave consent. However, Detectives Becker and Barker testified at the
suppression hearing and at trial that Detective Becker asked the appellant for consent to
search twice: first in the school library and again when the officers and the appellant
arrived at the home. The trial court specifically accredited the officers‟ testimony. We
note that although the appellant claims that he never gave consent to search on March 31,
2009, he acknowledges that he later left a message for Detective Becker in which he
“rescinded” any consent. We conclude that the evidence does not preponderate against
the trial court‟s finding that the appellant consented to the search. Thus, the trial court
did not err by denying the appellant‟s motion to suppress.
E. “On or About” Jury Instruction
The appellant contends that the trial court erred by defining “on or about” for the
jury. The State argues that the trial court did not err. We agree with the State.
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The indictment alleged that the appellant committed rape of a child “on or about”
March 7, March 14, March 21, and March 28, 2009. During jury deliberations, the jury
asked that the trial court define “on or about.” Defense counsel suggested that the court
“tell them that they have to use their common sense what on or about means,” but the
State recommended that the court use a dictionary definition and instruct the jurors that
they could “either go by that [definition] or they can go by their common sense.” The
trial court agreed with the State and provided the following supplemental instruction to
the jury:
Let me direct you that you should, frankly, use common sense
in trying to define common words. However, under the
Black‟s Law Dictionary it says, and I‟m going to give you a
copy of this, on or about is defined as a phrase used in
reciting the date of an occurrence or conveyance or the
location of it to escape the necessity of being bound by the
statement of an exact date or place. Approximately. About.
Without substantial variance from and near. . . . That may or
may not answer your question. Again, use common sense.
That‟s the Black‟s Law Dictionary definition of it.
The appellant claims that the definition given by the court, which included the
words “approximately” and “near,” did not assist the jury and “merely substitute[ed] one
vague term for another.” He notes that Dr. Wicker testified that the victim told him that
the abuse began in 2008 and argues that “[h]ad the jury been told just to use its common
sense as to the meaning of the term „on or about‟, we would have no fear that Mr.
Hernandez was convicted [of] some incident in 2008 of which he had no notice to
defend.”
“It is well settled that a defendant has a constitutional right to a complete and
correct charge of the law, so that each issue of fact raised by the evidence will be
submitted to the jury on proper instructions.” Dorantes, 331 S.W.3d at 390. “A trial
court has the authority to respond to jury questions with a supplemental instruction.” Id.
at 451. This court “must review the entire [jury] charge and only invalidate it if, when
read as a whole, it fails to fairly submit the legal issues or misleads the jury as to the
applicable law.” State v. Forbes, 918 S.W.2d 431, 447 (Tenn. Crim. App. 1995).
“Whether jury instructions are sufficient is a question of law appellate courts review de
novo with no presumption of correctness.” State v. Clark, 452 S.W.3d 268, 295 (Tenn.
2014).
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Here, the appellant does not contend that the definition given by the trial court was
incorrect. Moreover, the supplemental instruction stated that the jury was to consider it
and “common sense.” The indictment alleged that the appellant committed the offense
on March 28, but the victim testified that the offense occurred one day later on March 29,
2009. The supplemental instruction did not mislead the jury as to the applicable law, nor
did it fail to fairly submit the legal issue. Thus, we conclude that the trial court did not
err.
F. Sequential Jury Instructions
Next, the appellant contends that the trial court erred by giving sequential jury
instructions, i.e., advising the jury that it could not consider lesser-included offenses until
it unanimously acquitted him of rape of a child. Counsel for the appellant acknowledges
that he has raised this issue unsuccessfully previously but believes he is “bound to
continue to raise this issue.” The State argues that the trial court properly gave sequential
jury instructions. We agree with the State.
The appellant objected to the sequential jury instructions at trial. However, our
supreme court has concluded that “acquittal-first instructions” do not violate a
defendant‟s right to trial by jury. State v. Davis, 266 S.W.3d 896, 912 (Tenn. 2008).
Therefore, while we can appreciate counsel‟s wanting to preserve the issue, we conclude
that the appellant is not entitled to relief.
G. Cumulative Error
Finally, the appellant contends that cumulative error warrants a new trial. We
have concluded that the trial court erred by failing to conduct an in camera review of Ms.
Powell‟s notes concerning her interview with the victim on March 31, 2009. We have
also concluded, though, that the notes do not contain information that probably would
have changed the outcome of the appellant‟s trial. Finding no other error, cumulative
error does not warrant relief.
III. Conclusion
Based upon the record and the parties‟ briefs, we affirm the judgment of the trial
court.
_________________________________
NORMA MCGEE OGLE, JUDGE
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