State v. Francis
| Decision Date | 02 April 1984 |
| Citation | 669 S.W.2d 85 |
| Parties | STATE of Tennessee, Plaintiff-Appellee, v. Robert D. FRANCIS, Defendant-Appellant. |
| Court | Tennessee Supreme Court |
William M. Leech, Jr., Atty. Gen. & Reporter, Raymond S. Leathers, Asst. Atty. Gen., Nashville, of counsel, for plaintiff-appellee.
Eugene D. Lyne, Leland Carter, Memphis, for defendant-appellant.
In this appeal from a conviction of sexual battery, defendant contends, inter alia, that the State's use of the missing witness inference during closing argument was prejudicial error. We granted defendant's Rule 11 application for permission to appeal in order to determine whether the State's comment on the failure of the defendant to call his six-year-old daughter as a witness was a proper subject matter of argument. We hold that the trial court erred in allowing the State to make this argument before the jury. We reverse the conviction and remand the case for a new trial.
This case arose in 1981 when a Shelby County grand jury returned three indictments against the defendant, Robert D. Francis, for sexual battery of three girls under the age of thirteen. The defendant, a 43 year-old father of two, was alleged to have committed the unlawful acts upon the three neighborhood children while they played in his back yard during a period between May 1, 1980 and August 26, 1981. The trial judge granted the State's motion to consolidate the three indictments pursuant to Rule 13 of the Tennessee Rules of Criminal Procedure. At trial a jury found the defendant guilty of sexual battery as to each of the indictments. The defendant was sentenced to a total of four to seven years imprisonment in the state penitentiary. The defendant's motion for a new trial and a petition for a suspended sentence were both denied. The Court of Criminal Appeals affirmed the conviction.
During the summer of 1980 and 1981, Kelli Dobry, her sister Denise, and Cassandra Rene Cobb visited the defendant's home several times each week to play with his two children. 1 The children usually played in the defendant's back yard where a gym set and metal shed were located. The defendant, who worked for the Memphis fire department, often played with the children during the days when he was off from work.
Kelli Dobry testified at trial that the defendant touched her buttocks and breasts. These acts took place on several occasions and usually occurred in the metal shed. Additionally, she stated the defendant exposed himself and touched his private parts in her presence. The incidents complained of took place in the summer of 1980 and 1981.
The testimony of Denise Dobry and Cassandra Rene Cobb was similar to Kelli's account. Denise Dobry testified that the defendant touched her private parts and exposed himself in her presence on several occasions. Cassandra Rene Cobb testified that the defendant placed his hand in her vagina. A pediatrician, who had treated Cassandra for several years, testified that she examined the child on August 27, 1981 and found that Cassandra's hymenal ring had been torn. While the injury could have been caused in numerous other ways, it was consistent with the insertion of an object like a finger into the vagina.
The children did not immediately notify their parents of these incidents because they were afraid of how their parents would react. On August 26, 1981, Kimberly Scott, a thirteen year old who also lived in the neighborhood, placed a letter, which she had typed, in the Dobry's mailbox. After receiving the letter, the parents of these children asked them about the defendant's conduct and the children told them what had happened. As a result of this discussion, the parents went to the police.
While the defendant denied these charges, there was considerable testimony from the three girls that the defendant's children were present when the acts took place. The defendant's son, Robert Donald Francis, Jr., who was eight years old at trial, testified that he had never seen his father expose himself in his presence or in the presence of other children. Donald also stated he had never seen his father touch any of the girls under their shorts.
Heather Francis, who was six years old at the time of the trial and was four years old when the incidents were said to have taken place, was not called as a witness at trial. On cross-examination by the State, Helen Francis, the defendant's wife, testified that she and her husband were in the process of training Heather to tell the truth and not to tell lies. Helen Francis initially testified she did not know whether her daughter knew the difference between truth and untruth. She went on to say, however, that while Heather was "very immature," she thought Heather knew the difference between telling the truth and telling lies. The State avers that the "mother's testimony did not conclusively establish that [Heather] did not know the difference between truth and untruth." Mrs. Francis further testified that she had never seen her husband mistreat any of the children.
In its closing argument, the State called the jury's attention to the fact that the appellant had failed to call his six-year-old daughter as a witness. In pertinent part, the argument was as follows:
The defendant contends that the trial court erred in allowing the State to make this argument before the jury, and that this error substantially affected the verdict. The Court of Criminal Appeals concluded there was no error, stating that a proper foundation for the argument was laid. Specifically, the appellate court noted "there was evidence that the daughter had knowledge of material facts; that a relationship existed that would naturally incline the witness to favor the defendant; and that the daughter was in the courtroom and was therefore available."
It is well-established that a prosecutor may comment upon the failure of a defendant to call an available and material witness whose testimony would ordinarily be expected to favor the defendant. 2 The United States Supreme Court recognized this common law rule in Graves v. United States, 150 U.S. 118, 14 S.Ct. 40, 37 L.Ed. 1021 (1893), stating that "if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would have been unfavorable." 150 U.S. at 121, 14 S.Ct. at 41. Similarly, this Court has held that a party may comment about an absent witness when the evidence shows that " the witness had knowledge of material facts, that a relationship exists between the witness and the party that would naturally incline the witness to favor the party and that the missing witness was available to the process of the Court for trial." Delk v. State, 590 S.W.2d 435, 440 (Tenn.1979). While the Graves Court spoke of the missing witness rule in terms of creating a "presumption," the rule is now generally characterized as authorizing a permissive inference. State v. Jones, 598 S.W.2d 209, 224 (Tenn.1980); State v. Sanderson, 550 S.W.2d 236, 238 (Tenn.1977); National Life & Accident Ins. Co. v. Eddings, 188 Tenn. 512, 518, 221 S.W.2d 695 (1949); See C. McCormick, McCormick's Handbook of the Law of Evidence § 272, at 658 (2d ed. 1972). The mere fact that a party fails to produce a particular person who may have some knowledge of the facts involved does not justify application of the inference against him. 3 However, when it can be said "with reasonable assurance that it would have been natural for a party to have called the absent witness but for some apprehension about his testimony," an inference may be drawn by the jury that the testimony would have been unfavorable. Burgess v. United States, 440 F.2d 226, 237 (D.C.Cir.1970). Due to the potentially critical effect of the missing witness rule, the Delk requirements set out above are to be strictly construed, particularly when the rights of a criminal defendant may be affected.
The reason for this caution is that there are several dangers inherent in the operation of the missing witness rule. The adverse inference may add a "fictitious weight to one side of the case, for example, by giving the missing witness an undeserved significance." Dent v. State, 404 A.2d 165, 171 (D.C.App.1979). Repeated arguments about an absent witness may also create a false impression of the witness' value in the eyes of the jury. Id. Furthermore, since the missing witness inference is usually invoked in closing argument the opposing party is foreclosed from offering the jury any evidence regarding the decision not to produce the witness. Id. Thus, in...
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State v. Middlebrooks
...him, the failure to call that witness creates an adverse inference that the testimony would not favor his contentions. State v. Francis, 669 S.W.2d 85, 88 (Tenn.1984); State v. Jones, 598 S.W.2d 209, 224 (Tenn.1980). Before the missing witness rule can be invoked, however, the evidence must......
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...State v. Rodriguez, 254 S.W.3d 361, 372 (Tenn. 2008) (citing State v. Toliver, 117 S.W.3d 216, 231 (Tenn. 2003) ; State v. Francis, 669 S.W.2d 85, 91 (Tenn. 1984) ).CONCLUSIONFor the foregoing reasons, we reverse the decision of the Court of Criminal Appeals and reinstate the defendant's co......
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State v. Brewer
...the absent witness was competent to testify before any inference may be asserted against the noncalling party. See, e.g., State v. Francis, 669 S.W.2d 85 (Tenn.1984). Although we agree with defendant that the State's attempted cross-examination and jury argument with regard to both individu......
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State v. Reynolds , No. M2003-02991-CCA-R3-CD (TN 2/28/2005)
...necessary, can be held to establish whether the requirements for laying a proper foundation under Delk have been met." State v. Francis, 669 S.W.2d 85, 90 (Tenn. 1984). In State v. Francis, our supreme court stated that "the Delk requirements . . . are to be strictly construed, particularly......