State v. McMillan

Decision Date23 March 2022
Docket NumberE2020-00610-CCA-R3-CD
CourtTennessee Court of Criminal Appeals
PartiesSTATE OF TENNESSEE v. FRANKLIN MONROE MCMILLAN

STATE OF TENNESSEE
v.

FRANKLIN MONROE MCMILLAN

No. E2020-00610-CCA-R3-CD

Court of Criminal Appeals of Tennessee, Knoxville

March 23, 2022


Session October 27, 2021

Appeal from the Circuit Court for Blount County No. C25589 Tammy M. Harrington, Judge.

Defendant, Franklin Monroe McMillan, was convicted by a jury of two counts of rape of a child and was sentenced by the trial court to a total effective sentence of eighty years. On appeal, Defendant contends that the forensic interview of the child victim was erroneously admitted, that the trial court improperly denied his motion to exclude DNA evidence, and that the prosecutor made improper statements during closing rebuttal argument. Following our review of the entire record, the briefs of the parties, and the arguments of counsel, we affirm the judgments of the trial court.

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

Benjamin James Reed, Maryville, Tennessee, (at trial and on appeal) for the appellant, Franklin Monroe McMillan.

Herbert H. Slatery III, Attorney General and Reporter; Edwin Alan Groves, Jr., Assistant Attorney General; Mike L. Flynn, District Attorney General; and Tyler Parks and Ashley Salem, Assistant District Attorneys General, for the appellee, State of Tennessee.

Jill Bartee Ayers, J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and Camille R. McMullen, JJ., joined.

OPINION

JILL BARTEE AYERS, JUDGE.

Factual and Procedural Background

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The underlying crimes came to light during a family gathering hosted by Defendant and his wife in their new home in Maryville on September 17, 2017. In order to protect the minor victim, she will be referred to solely throughout this opinion as "the victim." Additionally, we will refer to the victim's mother and other members of the victim's immediate family by their relationship to the victim.

Pretrial Hearing on State's Motion to Enter the Victim's Forensic Interview Video - July 11, 2018

Christina Copland, the forensic interviewer at the New Hope Blount County Children's Advocacy Center ("CAC"), testified to her professional background, duties as a forensic interviewer, and the CAC's services for child sex abuse victims. See T.C.A. § 24-7-123(b)(3). Ms. Copland stated that she interviewed the victim on September 18, 2017, based on a complaint of child sex abuse. The interview was conducted the day after the incident had reportedly occurred. Ms. Copland interviewed the victim alone in a room equipped with audio and video devices dedicated to forensic interviews. Prior to her testimony at the hearing, Ms. Copland had watched the recording of the victim's forensic interview. She testified that the recording clearly identified the victim and her visually and audibly, that the recording was unaltered, and that the recording accurately documented the entire interview.

The victim, age seven at the time of the offense, testified that she understood the difference between telling the truth and telling a lie. She recalled watching a video in the prosecutor's office the week before the hearing. The video was of herself and "Ms. Shannon." She had watched this video twice. She testified that she was telling the truth when talking to "Ms. Shannon." On cross-examination, the defense tried to clarify the name of the forensic interviewer. When asked whether she talked to Ms. Copland, the victim answered, "no," and testified that she was interviewed by "Ms. Tina." In the video, Ms. Copland introduces herself as "Tina." The victim recalled that her parents took her to the interview and that the interview occurred in the afternoon.

The defense did not challenge Ms. Copland's professional background, the adequacy of the CAC's facilities, or the authentication of the interview "given the proof that the State presented" at the hearing. However, the defense indicated that it "may have some argument" for "limiting the use of the forensic interview at trial" depending on the trial court's findings. The trial court stated that it would bifurcate the proceeding as follows: "[L]et me look at the video, and then we'll come back and I'll allow you to argue further before I make a final ruling." The State agreed that if the court's ruling allowed the video to be admitted, portions of the interview would need to be edited before exhibiting it at trial. If there was another hearing regarding the admissibility of the victim's forensic

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interview, there is no transcript in the record; nor is there an order from the trial court ruling on the State's motion.

However, when later ruling on Defendant's motion for new trial, the trial court held:

[W]e had a pretrial hearing and this Court determined that all of the pretrial requirements were met, including the child authenticating the statement as true and authentic. And the other requirement - in addition to other requirements[.]

Pretrial Hearing on Defendant's Motion in Limine to Exclude DNA Evidence - March 5, 2019

The parties stipulated that on September 17, 2017, the victim was in the presence of three male relatives: Defendant, the victim's stepfather who was Defendant's biological adult son ("Stepfather"), and Defendant's biological minor son, and that the victim was in the presence of Stepfather in their shared residence on September 18, 2017. The parties further stipulated that the victim's clothes were received by the Blount County Sheriff's Office ("BCSO") on September 18, 2017, and subsequently tested by Special Agent Terra Asbury, an expert in forensic biology and DNA serology at the Tennessee Bureau of Investigation ("TBI").

Special Agent Asbury testified that she tested two pairs of underwear and one pair of shorts using autosomal and Y-STR testing. For comparison, Agent Asbury received DNA samples from the victim, Defendant, and Stepfather. Agent Asbury testified that she conducted the tests for the purpose of "looking for touch DNA and not bodily fluids[.]" She explained that it is "a lot harder" to obtain a DNA profile from touch DNA than from bodily fluids:

Touch DNA is from skin cells. Everybody deposits skin cells everybody sheds skin cells. Bodily fluids contain a much greater source of DNA because they are concentrated with white blood cells and other sources of DNA. But skin cells are - you're limited to what is actually shed. So it's a lot harder to get a touch DNA profile than it is from bodily fluid

In order to obtain touch DNA, Agent Asbury scraped the underwear and shorts to "release any cellular material" and "swabbed it to collect the cells onto the swab." She then processed what was collected on the swabs to generate a DNA profile.

Agent Asbury explained that autosomal testing "look[s] at 23 different chromosomes within a person and different locations on these chromosomes" and that

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autosomal testing is not effective at identifying male DNA where female DNA "overwhelm[s]" the male DNA profile as it occurred in this case. For this reason, Agent Asbury conducted Y-STR testing which identifies and analyzes the Y chromosome, which is passed down from father to male child. She testified that barring random mutations, all men in a paternal lineage will possess the same Y-STR DNA profile. Thus fathers, sons, brothers, uncles, and paternal cousins cannot be distinguished from one another through a Y-STR DNA profile. For this reason, Y-STR testing is somewhat limited in that it does not positively identify an individual; however, Y-STR testing is useful in excluding someone since an individual cannot be the source of the DNA if the profiles do not match. If the Y-STR DNA profiles do match, then all that can be said is that the individual cannot be excluded as the DNA donor.

Agent Asbury testified that in this case, the results of the autosomal tests were inconclusive and only showed evidence of the victim's DNA profile. The Y-STR test was more definitive and yielded a Y-STR DNA profile on one pair of underwear and one pair of shorts. This profile matched both Defendant and Stepfather. The DNA profile found on the second pair of underwear matched the victim's DNA profile and the DNA profile of Defendant and Stepfather. Agent Asbury reiterated that one would "expect from any parental lineage that the Y-STR profiles would be the same because it's an exact copy that's passed down from father to son."

On cross-examination, Agent Asbury confirmed that but for one pair of underwear, the Y-STR profile was consistent with a mixture of at least two males of unknown DNA profile meaning that the mixture was a "completely separate profile" from Defendant and Stepfather. Agent Asbury testified that "a casual touch" is not likely to generate a full DNA profile.

Kelly Hoard, a detective in the criminal investigation division of the BCSO testified that he answered the call on September 17, 2017, regarding the sexual assault allegation in the case and instructed an officer to request a referral for the victim to be forensically interviewed. Detective Hoard did not advise the officer to collect any evidence because he was under the impression that the assaults occurred "outside of the clothes" and did not involve penetration. Detective Hoard learned that the assault involved penetration from watching the victim's forensic interview. Detective Hoard explained that when evidence needs to be collected, he will order a crime scene investigator to the relevant location and collect anything that needs to be collected. In this case, the victim's mother handed him a bag of the victim's clothes immediately following the victim's forensic interview. The victim's mother told Detective Hoard that the bag contained the clothes the victim wore the previous day: two pairs of underwear and a pair of shorts. He did not recall asking her why there were two pairs of underwear and did not recall the victim's mother offering an explanation. He...

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