State v. Boyd
| Decision Date | 31 March 2023 |
| Docket Number | M2021-01057-CCA-R3-CD |
| Parties | STATE OF TENNESSEE v. JOHNNY DEWAYNE BOYD |
| Court | Tennessee Court of Criminal Appeals |
On Remand from the Supreme Court, February 10, 2023
Appeal from the Circuit Court for Giles County No. 2019-CR-15099 Stella L. Hargrove, Judge
Defendant Johnny DeWayne Boyd, was convicted by a jury of rape of a child and incest. The trial court imposed an effective thirty-year sentence in the Department of Correction. On appeal, Defendant contends (1) the trial court erred in denying his motion to dismiss due to the State's failure to file a bill of particulars, and (2) that the trial court abused its discretion in denying Defendant's motion to continue trial after a court security officer tested positive for COVID-19 and by failing to comply with the Tennessee Supreme Court's Order on COVID-19 protocol. Following a review of the record, the briefs and oral arguments of the parties, we affirm the judgments of the trial court.
Tenn R. App. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
John S. Colley, III, Columbia, Tennessee, for the appellant Johnny DeWayne Boyd.
Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Assistant Attorney General, Benjamin A. Ball, Senior Assistant Attorney General; Brent A. Cooper, District Attorney General; and Emily Crafton, Assistant District Attorney General, for the appellee, State of Tennessee.
JILL BARTEE AYERS, J., delivered the opinion of the court, in which ROBERT L. HOLLOWAY, JR., and JOHN W. CAMPBELL, SR., JJ., joined.
This case arose from the sexual abuse of a ten-year-old child by Defendant. A jury convicted Defendant of rape of a child and incest as charged in a superseding indictment. Defendant was sentenced to thirty years at 100 percent by operation of law on the rape of a child conviction and three years as a Range I offender on the incest conviction. The trial court ran the two counts concurrently with each other for an effective thirty-year sentence.
Defendant appealed alleging that the State's bill of particulars was inadequate and that the trial court failed to follow COVID-19 protocol at trial. This court dismissed the appeal because the record showed that the motion for new trial was untimely filed which in turn rendered the notice of appeal untimely. Neither party raised the timeliness of the motion for new trial or notice of appeal as an issue on appeal. Defendant filed an application for permission to appeal to the supreme court. After Defendant filed his application for permission to appeal, the trial court supplemented the record with an order and an affidavit from the Giles County Clerk indicating that the clerk's office was closed due to inclement weather on the day the motion for new trial was to be filed, Friday, February 19, 2021. Because Defendant filed the motion for new trial on Monday, February 22, 2021, the next available day for filing, the motion for new trial was timely filed. Based on the supplemented record, the supreme court granted Defendant's application for permission to appeal and remanded the case to this court for consideration of Defendant's issues as mentioned above.
On December 12, 2018, the Giles County Grand Jury returned an indictment against Defendant charging him with rape of a child, a Class A felony, and incest, a Class C felony "on or about the 8th of October 2018." See T.C.A. §§ 39-13-522, 39-15-302. The case was set for trial on December 2, 2019. However, on November 27, 2019 the State moved to amend its indictment. The court granted the motion and re-set the case for trial. On December 11, 2019, the State obtained a superseding indictment identifying the commission of both offenses during a period of time on or about October 1, 2018 to November 1, 2018.
On January 16, 2020, Defendant filed a motion for bill of particulars requesting "the location, the means of penetration, and date of each alleged crime." Following a case status hearing on February 25, 2020, the State signed an agreed order "to provide bill of particulars within 10 days setting forth the manner of penetration and date (according to victim) for each incident alleged under count 1." On April 27, 2020[1], the court held a status conference. It was discovered during that conference that the State had failed to comply with the order granting the motion for a bill of particulars. The prosecutor denied ever receiving Defendant's motion for bill of particulars despite "defense counsel having a copy of a fax transmission to the District Attorney General's Office" and the prosecutor's signature on the February 25, 2020 order agreeing to respond to the motion within ten days. However, the State did identify the manner of penetration as "penile penetration [by Defendant] of the minor victim's genital openings" but did not include a date of the offense. When questioned by the trial court, the prosecutor stated that she had talked to the victim since the February status hearing but was unable to provide any additional time period other than the time period identified in the indictment. Based on the foregoing, Defendant made an oral motion to dismiss the indictment. The trial court entered a written order[2]denying Defendant's motion to dismiss; however, relying heavily on State v. Byrd, 820 S.W.2d 739, 741 (Tenn. 1991), the trial court held that it could not determine whether deficiencies in the State's response hampered Defendant's defense or otherwise inured to his prejudice until the case had been tried.
The trial was scheduled for Monday, October 15, 2020. As will be discussed in more detail below, Defendant filed a motion to continue the trial when it was revealed that a court security officer had tested positive for COVID-19 on October 12, 2020, the Friday before the scheduled trial date. When the trial court denied the motion to continue, Defendant filed an extraordinary appeal to this court pursuant to Rule 10 of Tennessee Rules Appellate Procedure. This court denied the application for extraordinary appeal, and the trial commenced as scheduled on October 15, 2020.
The State began its proof with Lieutenant Shane Hunter, an officer in the Giles County Sheriff's Department. Lieutenant Hunter testified that on the evening of November 9, 2018, he was notified by the Department of Children's Services ("DCS") of an allegation of sexual abuse. Lieutenant Hunter assisted a DCS representative, Amy Moore, in gathering basic information, and together they went to the victim's residence. The victim lived with her mother, her brother, and Defendant who was her mother's husband. Lieutenant Hunter spoke with Defendant and the victim's mother while Ms. Moore spoke with the victim in another room Based on her conversation with the victim, Ms. Moore recommended a forensic interview for the victim.
The forensic interview occurred the next morning at A Kid's Place, a satellite DCS office. The victim was accompanied to the forensic interview by her mother and her brother, but they were not present, nor did they watch the victim's interview. Lieutenant Hunter observed the forensic interview from another room. Lieutenant Hunter spoke briefly with the victim's mother at the sheriff's department after the interview and asked her to contact Defendant to request that he come to the sheriff's department for questioning.
Defendant arrived at the sheriff's department "late afternoon" the same day. Lieutenant Hunter recalled that Defendant was "walking perfectly fine" and was not using a wheelchair or a walker to get around. After being advised of his rights, Defendant agreed to talk. When asked whether he was on any medication that might impair his ability to understand his rights, Defendant revealed that he had been taking prescription pain medication for a back surgery but had stopped taking them because he had a "high tolerance to pain." Lieutenant Hunter testified that he is "very cautious" when interviewing someone who might be in pain or uncomfortable. Lieutenant Hunter testified that the interview lasted between an hour and an hour and a half and that Defendant did not appear to be in pain or in any discomfort.
Defendant told Lieutenant Hunter that the victim's mother told him about the victim's allegations the night before he had come in for the interview. Defendant denied that he had touched the victim inappropriately, but that if he had, it was accidental. Defendant believed the victim had made up the allegations because she had recently spoken with her biological father whom Defendant described as "a deadbeat." Lieutenant Hunter was aware that Defendant was not working during the time period of the victim's claim. The victim's mother was the primary provider of the family.
Because the allegation involved penile penetration, Lieutenant Hunter asked Defendant questions about his sex life and whether his anatomy had identifying characteristics. Defendant revealed that he and the victim's mother had engaged in sexual acts since his surgery. Defendant denied having any unusual characteristic about his body until Lieutenant Hunter asked him whether he had three testicles. Defendant admitted that he did. Lieutenant Hunter explained that he had this information about Defendant before interviewing him, but he was not asked how he gained this information
Because the victim had tested positive for chlamydia, Lieutenant Hunter obtained a warrant for a urine sample from Defendant. The warrant was obtained November 20, 2018, but the sample was not acquired until December 17, 2018. Although Defendant tested negative for chlamydia, he was not ruled out as a suspect. On November 27, 2018, Lieutenant Hunter...
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