State v. Herron
| Decision Date | 26 March 2015 |
| Docket Number | No. W2012–01195–SC–R11–CD,W2012–01195–SC–R11–CD |
| Citation | 461 S.W.3d 890 |
| Parties | State of Tennessee v. Frederick Herron |
| Court | Tennessee Supreme Court |
Neil Umsted, Memphis, Tennessee, for the appellant, Frederick Herron.
Robert E. Cooper, Jr., Attorney General and Reporter; Joseph F. Whalen, Acting Solicitor General; Jeffrey D. Zentner, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Terri Fratesi, Assistant District Attorney General, for the appellee, State of Tennessee.
Daniel A. Horwitz, Nashville, Tennessee, for the amicus curiae, Tennessee Association of Criminal Defense Lawyers.
JEFFREY S. BIVINS, J., not participating.
OPINION
The defendant was charged with and convicted of rape of a child, and he received a twenty-five-year sentence. The defendant appealed, raising seven issues. The Court of Criminal Appeals held that the trial court erred by (1) allowing the prosecution to introduce the child's prior consistent statement, a recorded forensic interview, during its case-in-chief before the child's credibility had been challenged; and (2) ruling that if the defendant chose to testify the prosecution would be permitted to ask him whether he had been previously arrested or convicted of an unnamed felony. Nevertheless, in a divided decision, two judges of the Court of Criminal Appeals concluded that these errors were neither individually nor cumulatively prejudicial. The dissenting judge opined that the second error alone was prejudicial and entitled the defendant to a new trial. We affirm the Court of Criminal Appeals' conclusions that the evidence is sufficient to support the conviction and that the election is sufficiently specific and definite. We hold that the cumulative effect of the two conceded trial errors is prejudicial and entitles the defendant to a new trial. Because of the remand for a new trial, we do not address the defendant's other allegations of evidentiary errors. Accordingly, the judgment of the Court of Criminal Appeals is reversed in part; the defendant's conviction is vacated; and this matter is remanded to the trial court for a new trial, consistent with this decision.
On June 28, 2011, a Shelby County Grand Jury returned a single count indictment charging the defendant, Frederick Herron, with rape of a child.1 The indictment alleged that the rape occurred between July 1, 2002, and July 5, 2006, when the child, born October 14, 1994, was greater than three but less than thirteen years of age. The abuse was not reported to law enforcement authorities until September of 2010. The defendant's trial occurred from March 26 to March 30, 2012.
The child, who shall be referred to as MM,2 was seventeen years old and in the eleventh grade at the time of trial. She had nineteen siblings, ranging in age from ten to forty-two years old.3 When MM was six years old, she and eight of her siblings were removed from the custody of their biological mother because she abused drugs and neglected them. MM moved in with one of her unmarried adult sisters, Takyra Shields.4 Ms. Shields had no children, so she and MM initially lived alone together in an apartment in Memphis.
Ms. Shields obtained legal custody of MM on July 13, 2001, shortly before MM turned seven. Toward the end of 2001, Ms. Shields met and began dating the defendant. The couple married on September 1, 2002, prior to MM's eighth birthday. MM's nephew, D.J., lived with them awhile and shared a bedroom with MM. After he moved out, his mother, MM's sister Treliesia, and her minor daughter lived with them for about two months and shared MM's bedroom. After they moved out, the household consisted of MM, the defendant, and Ms. Shields. The family moved frequently, about every eighteen months, causing MM to change schools often. MM recalled attending four or five different elementary schools.5
Unlike Ms. Shields, whom MM described as “always mean to [her],” the defendant was “always really nice to [her],” “bought [her] things,” “treat[ed her] better than” Ms. Shields did, took “the time to talk to [her]” rather than “yell [ ]” at her, was not verbally abusive, and never cursed or talked down to her. According to MM, the defendant seemed to treat her as his own daughter, genuinely appeared to care for her, and had taken her to and from school more than anyone else in her “whole life.” MM characterized the defendant as a “[n]ice, kind, caring,” and “generous” person, on whom she had relied a great deal to supply her daily needs, such as food, clothing, shelter, and school supplies.
When asked about her first memory of the defendant behaving inappropriately toward her, MM described an incident that occurred after Ms. Shields had scolded her. MM had been walking upstairs toward her bedroom, crying, when the defendant, who was already upstairs in the master bedroom, called for her to come into his room. MM complied. The master bedroom was dark when she went inside, and the defendant was seated on the side of the bed opposite the door, dressed in his boxer shorts, with his pants around his ankles. MM stood between the defendant's legs, with her back towards him, and his legs touching either side of her body. With his hands, the defendant rubbed MM “on [her] back and kind of like on [her] stomach and like down [her] leg a little bit.” As he touched her, the defendant asked MM, “Are you my baby?” When she responded, “I don't know,” the defendant replied, MM replied, “I don't know—I guess.” About this time, Ms. Shields ascended the stairs, and the defendant told MM she could go. As MM was leaving, Ms. Shields stopped her and asked why she had been in the master bedroom with the defendant and if the defendant's pants were down. MM told Ms. Shields that the defendant had called her into the room and that, although his pants were down, he was wearing his boxer shorts. Ms. Shields replied, “Okay,” asked no more questions, and allowed MM to go to her own room. MM recalled thinking that the defendant's behavior was “real weird,” but she did not mention the incident to anyone, aside from her responses to Ms. Shields's questions.
When asked how far the defendant's touching had gone, MM testified that, beginning when she was in second grade and seven years old, the defendant came into her bedroom “all the time,” “always” at night, and on each occasion, he “would always go to the bottom of [her] bed, and he would, like, fling the covers back, and he would start moving [her] legs to like try to get in between [her] legs” and “do[ ] what he wanted.” MM testified that if she were lying on her side or stomach, the defendant would turn her onto her back, move her legs apart, pull down her pants and underwear, and “hav[e] sex with [her].” MM explained that by this term she meant the defendant would penetrate her vagina with his penis. MM had tried to “keep [her] legs closed” and would “clench up so he couldn't move [her].” Although MM could not recall the defendant touching her with his hands, she remembered him “breathing on [her],” and she stated that his breath smelled of beer “[j]ust about every time.” MM was unsure whether the defendant ejaculated inside her vagina, but she recalled sometimes feeling a “wet,” “sticky” substance on her bed and thigh. MM testified that the defendant never spoke during these episodes, which “never really stopped until fifth grade.” Although MM was awake during these assaults, she ordinarily feigned sleep.
MM also testified about an incident that occurred when her cousin, Keyla Walker, who was visiting from out of town, spent the night with her. After the girls were in bed but before they were asleep, a person entered the room, walked to the foot of the bed, lifted the covers, and tried to get into bed with them. The girls did not scream or call out for help, but at Ms. Walker's suggestion, they “started kicking” their feet, and the intruder ran from the room. As he left, MM realized it was the defendant and that he was naked. MM remarked to Ms. Walker that this was not the first time the defendant had come into her room. Neither Ms. Walker nor MM told an adult about the incident. Ms. Walker left the next day and never spent the night at MM's home again when the defendant was present.
MM acknowledged, however, that the defendant had not assaulted her every night. Except for the incident involving Ms. Walker, the defendant had not entered her room when other family or friends were staying with them. MM also could not recall the defendant assaulting her before he and Ms. Shields married, or while the family lived in a loft-style apartment when MM was in second or third grade, or during the marriage when the defendant and Ms. Shields were separated.
The abuse ended, MM explained, when she confronted the defendant. This confrontation occurred, according to MM, when the defendant entered her bedroom around 2:00 or 3:00 a.m. on July 4th of the summer after she had completed fifth grade, while the family was living “[o]n Hacks Cross.” After the defendant moved her legs apart and removed her pants on this occasion, MM asked him why was he on top of her. The defendant replied, “What?” MM repeated the question, and the defendant stood and asked, “What do you mean?” MM again repeated the question, but the defendant “just started talking about other stuff.” When MM picked up a cigarette lighter and stated, “Well, how about I just burn you,” the defendant “snatched” the lighter from her and admonished her for “playing” with it. MM left her bedroom and went into the living room, but the defendant followed her. When MM told him that she was “going to go tell” Ms. Shields about the abuse, he asked if she wanted “to mess with [his] marriage.” When MM replied, “No,” the...
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