State v. Shelton

• Decision Date: 22 March 1993
• Citation: 851 S.W.2d 134
• Parties: STATE of Tennessee, Appellee, v. William SHELTON, Appellant.
• Court: Tennessee Supreme Court

Page 134

851 S.W.2d 134

STATE of Tennessee, Appellee, v. William SHELTON, Appellant.

Supreme Court of Tennessee at Knoxville.

March 22, 1993.

Michael A. Walcher, D. Clifton Barnes, Office of the Public Defender, Morristown, for appellant.

Charles W. Burson, Atty. Gen. & Reporter, John B. Nisbet, III, Asst. Atty. Gen., Nashville, for appellee.

OPINION

DAUGHTREY, Justice.

Defendant William Shelton appeals his conviction for two counts of aggravated sexual battery and one count of aggravated rape. Because the state was permitted to present evidence of many instances of his sexual abuse of the victims, he challenges the state's failure to elect the particular offenses for which it sought convictions. We conclude that the trial court erred by not requiring an election as mandated by Burlison v. State, 501 S.W.2d 801 (Tenn.1973). As to one count, the error was harmless, because the proof establishes a single incident, thereby obviating the necessity of an election by the prosecutor. We cannot say, however, that the error as to the other two counts was harmless, and the judgments of conviction based on those charges must therefore be reversed.

The indictment charged William Shelton with the unlawful sexual penetration of one of his three step-granddaughters and unlawful sexual contact with the other two "on or about the ___ day of _____, 1989." In response to the defendant's motion for a bill of particulars, the state narrowed the time of the offenses to the period between April 7 and September 6, 1989. The defendant objected to the absence of more specific dates, both at the pretrial hearing and at the close of the state's proof. However, rather than requiring the state to elect the offenses for which it sought convictions, the trial court permitted the evidence to go to the jury with the following instruction:

Should you find from the evidence and beyond a reasonable doubt that the alleged offense (Aggravated Rape or Aggravated Sexual Battery) charged in any or all counts of the indictment occurred to any or all alleged victims but that the alleged offense occurred more than once to any or all alleged victims, you must focus in your verdict on one event in each count as to each alleged victim. You cannot in your verdict find that the defendant committed more than one offense against each alleged victim. The law requires that every juror be united on the one alleged offense in each count of the indictment. If you find beyond a reasonable doubt that there has been more than one alleged offense to an alleged victim you must isolate your verdict on the first alleged occurrence after April 7, 1989, and before September 6, 1989, as to each victim.

We conclude that this instruction is an inadequate substitution for Burlison's explicit requirement that the prosecution identify the specific offenses for which it seeks convictions.

In Burlison, this Court held that "it was the duty of the trial judge to require the State, at the close of its proof-in-chief, to elect the particular offense of carnal knowledge upon which it would rely for conviction, and to properly instruct the jury so that the verdict of every juror would be united on the one offense." 501 S.W.2d at 804. This insistence that the state choose the offense it is prosecuting arises because of a unique exception to the general rule prohibiting proof of a defendant's other crimes. In Jamison v. State, 117 Tenn. 58, 61, 94 S.W. 675, 675-66 (1906) (following Sykes v. State, 112 Tenn. 572, 82 S.W. 185 (1903)), this Court established that

... in prosecutions for violation of the age of consent law and cognate crimes, evidence of other acts of intercourse both prior and subsequent to the act charged in the indictment is competent, as tending to establish the commission of the special act under examination, as corroborative of the evidence ..., and for the purpose of showing the relation of the parties....

Although this exception permits evidence of a defendant's other sexual crimes against a victim to be admitted into the record, in Jamison the Court carefully acknowledged that "each unlawful act of carnal knowledge is a separate, substantive offense," rather than a continuous offense. Id. 117 Tenn. at 62, 94 S.W. at 676. Thus, to avoid the prosecution of uncharged crimes in cases involving age of consent laws and other sexual crimes, the state is required to "elect the specific offense upon which a verdict of guilty would be demanded." Burlison, 501 S.W.2d at 803.

Burlison cites three reasons for the election requirement:

First, to enable the defendant to prepare for and make his defense to the specific charge; second, to protect him from double jeopardy by individualization of the issue, and third, so that the jury's verdict may not be a matter of choice between offenses, some jurors convicting on one offense and others, another.

501 S.W.2d at 803. In practice, however, election at the end of the state's proof does little to aid the defendant in preparing his defense. A defendant is obviously better served by requesting a bill of particulars before trial, pursuant to Tenn.R.Crim.P. 7(c). See generally State v. Hicks, 666 S.W.2d 54 (Tenn.1984). Moreover, the second concern is largely moot, because an accused is protected from double jeopardy for the type of offense or offenses charged during the entire period of time covered in the indictment. See State v. Hardin, 691 S.W.2d 578, 580-81 (Tenn.Crim.App.1985). The third Burlison rationale addresses the most serious concern: the well-established right under our state constitution to a unanimous jury verdict before a criminal conviction is imposed. For this reason, when evidence suggests that a defendant has committed many sexual crimes against a victim, the court must require the state to elect the particular offenses for which convictions are sought.

This requirement of election is "fundamental, immediately touching on the constitutional rights of an accused...." Burlison, 501 S.W.2d at 804; State v. Brown, 762 S.W.2d 135, 137 (Tenn.1988). ¹ Although the federal constitution's requirement of unanimity among jurors has not been imposed on the states through the Fourteenth Amendment, "there should be no question that the unanimity of twelve jurors is required in criminal cases under our state constitution." State v. Brown, 823 S.W.2d 576, 583 (Tenn.Crim.App.1991). A defendant's right to a unanimous jury before conviction requires the trial court to take precautions to ensure that the jury deliberates over the particular charged offense, instead of creating a "patchwork verdict" based on different offenses in evidence. Id. (citing United States v. Duncan, 850 F.2d 1104, 1110 (6th Cir.1988)). When a jury is charged, as here, to elect for itself the incidents on which it will convict, the court cannot be assured of the unanimity of the jury's verdict. Hence, when asked to function as "thirteenth juror" and assess the weight of the evidence to support the jury's verdict, the trial court cannot be certain which evidence was considered by the jury in reaching its verdict. Moreover, an appellate court asked to review the legal sufficiency of the evidence can hardly be confident that it has discharged its function properly, in the absence of an election.

By insisting upon election, we emphasize that the state is not required to identify the particular date of the chosen offense. The time of an offense is often immaterial in the bringing of an indictment. See T.C.A. § 40-13-207. Moreover, such a requirement would make impossible the prosecution of criminal acts committed against young children who are the frequent victims of cognate crimes and crimes involving the age of consent. However, a particular offense can often be identified without a date.

If, for example, the evidence indicates various types of abuse, the prosecution may identify a particular type of abuse and elect that offense. See e.g., State v. Fears, 659 S.W.2d 370, 374 (Tenn.Crim.App.1983). Moreover, when...