State v. Demps, 022718 TNCRIM, M2017-00641-CCA-R3-CD

Docket Nº:M2017-00641-CCA-R3-CD
Opinion Judge:ROBERT L. HOLLOWAY, JR., JUDGE.
Party Name:STATE OF TENNESSEE v. STEPHEN D. DEMPS
Attorney:Richard M. Brooks, Carthage, Tennessee, for the appellant, Stephen D. Demps. Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Bryant C. Dunaway, District Attorney General; and Bret Gunn and Beth Willis, Assistant District Attorneys General, for the appellee, S...
Judge Panel:Robert L. Holloway, Jr., J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Timothy L. Easter, J., joined.
Case Date:February 27, 2018
Court:Court of Appeals of Tennessee, Court of Criminal Appeals of Tennessee
 
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STATE OF TENNESSEE

v.

STEPHEN D. DEMPS

No. M2017-00641-CCA-R3-CD

Court of Criminal Appeals of Tennessee, Nashville

February 27, 2018

Session January 17, 2018

Appeal from the Criminal Court for Putnam County No. 2014-CR-0436 Gary McKenzie, Judge.

Stephen D. Demps, the Defendant, was convicted of five counts of rape of a child and four counts of aggravated sexual battery. The trial court merged counts six and eight, aggravated sexual battery, into counts two and four, rape of a child.1 He received a total effective sentence of twenty-five years' incarceration. On appeal, he argues that: (1) his statement during his December 2013 interview with law enforcement should have been suppressed because he was in custody and was not informed of his rights under Miranda v. Arizona, 384 U.S. 436 (1966); (2) his statement during his January 2014 interview with law enforcement should have been suppressed because he was coerced into confessing; (3) the trial court erred in denying his motion for mistrial after individuals spoke to the sequestered victim during trial; and (4) the State failed to properly submit a bill of particulars and he was prejudiced by this failure. After a thorough review of the facts and applicable case law, we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed.

Richard M. Brooks, Carthage, Tennessee, for the appellant, Stephen D. Demps.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Bryant C. Dunaway, District Attorney General; and Bret Gunn and Beth Willis, Assistant District Attorneys General, for the appellee, State of Tennessee.

Robert L. Holloway, Jr., J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Timothy L. Easter, J., joined.

OPINION

ROBERT L. HOLLOWAY, JR., JUDGE.

I. Factual and Procedural History

On May 7, 2014, the Putnam County Grand Jury indicted the Defendant on six counts of aggravated sexual battery. On March 2, 2015, the Putnam County Grand Jury issued a superseding indictment charging the Defendant with five counts of rape of a child and five counts of aggravated sexual battery. The Defendant filed a motion to suppress his statements to law enforcement on April 6, 2015.

Suppression Hearing

Detective Roger Cooper testified that he had worked for the Putman County Sheriff's Department ("PCSD") for over seventeen years. In December 2013, Detective Cooper investigated J.A.'s2 complaint against the Defendant, J.A.'s great-uncle. On December 20, 2013, Detective Cooper called the Defendant and asked him to come to the PCSD for an interview ("the December interview"). The next day, the Defendant and his wife, Velma Demps, came to the PCSD to speak with Detective Cooper. Detective Cooper did not inform the Defendant of J.A.'s allegations prior to the interview. Detective Cooper stated that, during the December interview, the Defendant "didn't admit to what was being alleged, but did talk about some inappropriate contact." Detective Cooper made a video recording of the December interview. Detective Cooper did not tell the Defendant that he was under arrest or that he could not leave the PCSD, and the Defendant left at the end of the December interview. On January 14, 2014, Detective Cooper went to the Defendant's residence to interview the Defendant again ("the January interview"). Detective Cooper did not alert the Defendant or Mrs. Demps that he was coming to interview the Defendant. Mrs. Demps invited Detective Cooper to come inside the residence after he knocked on the door and introduced himself. Detective Cooper made an audio recording of the January interview with the Defendant.

On cross-examination, Detective Cooper testified that, during the December interview, the Defendant stated that J.A. had pushed up against him and that "he had pinched her on the boob to get her off of him . . . when they would wrestle around." Detective Cooper did not recall whether he informed the Defendant that he recorded the December interview, but he stated that the video camera was visible in the corner of the interview room. Detective Cooper did not inform the Defendant of his Miranda rights at the December interview because the Defendant was not under arrest.

Detective Cooper stated that he went to the Defendant's house in January to photograph the Defendant's basement, where J.A. alleged the incidents had occurred. He agreed that his investigation was focused on the Defendant based on J.A.'s allegations. Regarding the January interview, Detective Cooper stated that the Defendant was friendly and answered his questions. He stated that, if the Defendant had asked him to leave the residence, he would have left. Detective Cooper explained that, while he was in the Defendant's basement, the Defendant voluntarily allowed him to look at the Defendant's computer files and search history. Detective Cooper agreed that he mentioned religion to the Defendant during the January interview, but he denied that he used the theme of religion to coerce a confession from the Defendant. He explained that, after he observed that the Defendant's basement was unfinished and did not look like an area where J.A. would have been wrestling with the Defendant, he asked the Defendant more questions. Detective Cooper agreed that he told the Defendant to do the "right thing" and discussed sexual urges with the Defendant.

The trial court denied the Defendant's motion to suppress. The trial court credited Detective Cooper's testimony and found that the Defendant freely and voluntarily came to the PCSD for the December interview. The trial court also found that Detective Cooper informed the Defendant that he was not under arrest and that the Defendant denied any criminal activity during that interview. The trial court found that the location of this interview at the PCSD weighed in favor of suppression. The trial court found that the majority of the December interview was not accusatory or confrontational in nature and that the Defendant drove himself to the interview, which weighed against suppression. Additionally, the trial court found that Detective Cooper did not restrain or limit the Defendant's movement during the December interview; Detective Cooper was not in uniform and did not sit between the Defendant and the door. The trial court found that the Defendant was aware that he was not under arrest and could leave at any time. Thus, the trial court concluded that "based upon the totality of the circumstances, a reasonable person in the [Defendant]'s position would not consider himself deprived of freedom of movement to a degree associated with a formal arrest during the interview conducted by Detective Roger Cooper on December 21, 2013."

The trial court found that, during the January interview, the Defendant consented to Detective Cooper coming into his house to further discuss the allegations, take photographs of the basement, and inspect his computer. The trial court found that Detective Cooper twice mentioned something to the effect that the Defendant needs to tell the truth so that J.A. does not appear to be a liar. The Defendant then confessed to criminal behavior. The trial court noted that the Defendant was a healthy, intelligent, and articulate adult, which weighed against suppression of the Defendant's confession. The trial court also noted that there was no evidence that the Defendant had previous interaction with law enforcement, other than the December interview, which weighed in favor of suppression. The trial court found that, while Detective Cooper's questions "were definitely accusatory and definitely confrontational, " Detective Cooper's questioning was not repeated or prolonged, which weighed against suppression. The trial court found that Detective Cooper did not promise anything in exchange for a confession, which weighed against suppression. The trial court found that there was no evidence that the Defendant was deprived of food, sleep, or medical attention, which weighed against suppression. The trial court found that Detective Cooper's statements about religion and making J.A. out to be a liar were not coercive. The trial court concluded that "the statement of the Defendant to Detective . . . Cooper on January 14, 2014[, ] was freely and voluntarily given" and that "the [s]tatement was not extracted by any sort of threat, or violence, nor obtained neither by any direct or implied promises nor by the exertion of any improper influence."

Jury Trial

Detective Cooper testified that, in 2010, he became a detective for the PCSD in the Crimes Against Children Division. He explained that he worked with the Child Advocacy Center ("CAC")3 in Cookeville. Detective Cooper stated that J.A., her mother, and a family friend came to the PCSD on...

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