State v. Suttles

Citation767 S.W.2d 403
CourtTennessee Supreme Court
Decision Date13 February 1989
PartiesSTATE of Tennessee, Appellee, v. Mark SUTTLES, Appellant. 767 S.W.2d 403

James W. Greenlee, Charles S. Sexton, Sevierville, for appellant.

Bettye Springfield-Carter, Asst. Atty. Gen., W.J. Michael Cody, Atty. Gen. & Reporter, Nashville, for appellee.

OPINION

HARBISON, Chief Justice.

Appellant was indicted on several counts of sexual molestation of his ten-year-old nephew. At the time of trial appellant was nineteen years old. All of the counts of the indictment were dismissed voluntarily by the State or by the jury at trial except for one count of crime against nature, T.C.A. Sec. 39-2-612. Appellant was convicted on this count and sentenced to serve five years as a Range I standard offender.

The case was tried in a single day, much of which was spent in chambers conferences. Primarily the case revolved itself into an issue of credibility between the child victim and the youthful defendant. There were no witnesses to the alleged offense. The child alleged that it occurred on August 3, 1984. The appellant vehemently denied the offense on that day or any similar offense at any other time. There was no history of any other misconduct by the appellant toward his nephew, nor was there any showing that appellant had any prior criminal record. Several long-time residents of the community testified favorably as to his character, and several of them testified unfavorably as to the reputation or character of the accuser. The victim's own father obviously did not believe the charges and testified in favor of the appellant, who was his younger brother. A medical examiner could not corroborate the occurrence of the event. His examination of the victim seven days later revealed no trace of physical injury or any other evidence of sexual abuse. On the other hand, there was no evidence of any ill-will of the child toward his uncle or any motive on the part of the child to make a false accusation of sexual molestation.

The issues were classic ones for resolution by a jury. Taken most favorably to the State, the evidence was sufficient to convict beyond a reasonable doubt, but the issue was very close. Much more is required to sustain a criminal conviction than some material evidence. The evidence must be sufficient to sustain a finding of guilt beyond a reasonable doubt, T.R.A.P. 13(e), and the proof in this case is such that an objective examination of the record places it on the borderline.

Under these circumstances, the other procedural events surrounding the trial of this case assume an importance which they might not have if the proof of the State against the appellant were overwhelming. "The line between harmless and prejudicial error is in direct proportion to the degree of the margin by which the proof exceeds the standard to convict beyond a reasonable doubt." State v. Carter, 714 S.W.2d 241, 248 (Tenn.1986).

The child victim testified that he and his first cousin, who was about ten years old, took a short automobile ride with appellant, their uncle, who had been called to assist his sister in starting her stalled automobile. The sister's young child also accompanied them. After appellant was able to start her mother's automobile, this child rode home with her mother. On the way home appellant and the two boys stopped at a grocery store for soft drinks. The victim testified that his uncle stopped again in a secluded area in order to urinate. The victim accompanied him while the cousin remained in the automobile, and it was at that time that the victim said the sexual offense occurred.

Appellant admitted taking the two boys and the young child with him to assist his sister and bringing the two boys back home with him. He admitted stopping at a grocery store but denied any other stop or any misconduct of any kind.

At a jury-out conference prior to the beginning of trial, the trial judge found that the first cousin of the victim who had ridden in the car was not competent to testify as a witness. The child had a learning disability, and the trial judge concluded, after examining him in chambers, that the boy could not comprehend the significance of the oath or properly distinguish truth from falsehood. The trial judge, therefore, excluded the testimony of that witness, and it was never presented to the jury. The child, however, was not an eyewitness to any alleged sexual misconduct. He simply would have testified that he remained in the car while appellant and the victim left to urinate. Insofar as the record discloses, this was the extent of his knowledge of the matter.

At the same chambers conference, the trial judge examined the child prosecuting witness briefly and determined that he was competent to give evidence. After a jury had been selected and sworn, however, and after opening statements of counsel, when the State attempted to call the child as its first witness he appeared to be extremely uncooperative and unwilling to testify. The District Attorney asked for a chambers conference to which the trial judge agreed. A further lengthy chambers conference occurred with the District Attorney, the child's mother, the victim's therapist, appellant and defense counsel all present.

The transcripts of these chambers conferences are somewhat garbled and at places the reporter simply summarized what occurred. It is rather clear from the transcript, however, and from later remarks of the trial judge, that the child was not only interviewed in the presence of the persons above referred to, but that at some point the trial judge excused all of them and had a private conversation with no one present except himself, the child and the child's mother. The record shows the following:

The Court: Everybody get out. (all out) Let the record show in Chambers now with the defendant and his attorney. State's attorney. Gentlemen, the young man indicated he would talk to me. Wouldn't let anybody else in here. I let his mother stay. He was nervous about you all. He told me ... as a matter of fact, he talked to me. He opened up. Back here. (Emphasis added.)

The trial judge then proceeded to relate to counsel the substance of some threats which the child said had been made against him by the appellant. There was no transcript made of the judge's interview with the witness. The judge stated, however, that fear of his uncle was not the real reason that the child was refusing to testify. He said that the child was frightened of all of the people in the courtroom and was embarrassed to testify in the presence of a number of spectators. The judge stated that the child's mother asked him if he could tell his story to the jury, and the child replied affirmatively.

The trial judge then stated that he had concluded that the child could testify if the courtroom were closed and the public excluded, except for members of the press. It developed that there were no members of the press present.

Defense counsel objected to this procedure, but over that objection the trial judge proceeded to close the courtroom and to let the child testify with only the parties and their attorneys and the jury present. The exact number of persons who were excluded is not clear, but the trial judge stated later in the record that he had counted several persons who returned to the courtroom after the partial closure had been concluded.

The Court of Criminal Appeals held that the actions of the trial judge in this connection were appropriate and were justified by the unusual circumstances presented. It is, of course, true that a trial judge may under some circumstances exclude members of the public from part of the proceedings. State v. Drake, 701 S.W.2d 604 (Tenn.1985). We do not reach the constitutional issue of a public trial raised by appellant, however, because we believe that reversible error occurred when the trial judge undertook to explain to the jury what had occurred. He did this both at the time he excluded the members of the public and again after the child had testified and the courtroom was reopened.

Appellant has assigned as error in the Court of Criminal Appeals and in this Court the remarks of the trial judge to the jurors as unduly commenting upon the...

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  • State v. Adkisson
    • United States
    • Tennessee Court of Criminal Appeals
    • December 8, 1994
    ...488 (Tenn.1993) (whether issues which were not raised in the trial court should be considered in the appellate court); State v. Suttles, 767 S.W.2d 403, 405-06 (Tenn.1989) (whether remarks of the trial court should be considered when no contemporaneous objection was made); State v. Ogle, 66......
  • State v. Hall
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    • Tennessee Supreme Court
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    ...to the degree of the margin by which the proof exceeds the standard to convict beyond a reasonable doubt. See also State v. Suttles, 767 S.W.2d 403 (Tenn.1989). Given the fact that the trial judge advised the jury that no portion of the Pallay statement could be considered against appellant......
  • Quintero v. Carpenter, 3:09-cv-00106
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    • U.S. District Court — Middle District of Tennessee
    • December 12, 2014
    ...to the degree of the margin by which the proof exceeds the standard to convict beyond a reasonable doubt.See also State v. Suttles, 767 S.W.2d 403 (Tenn.1989).Given the fact that the trial judge advised the jury that no portion of the Pallay statement could be considered against appellant Q......
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    • Tennessee Court of Criminal Appeals
    • April 3, 2009
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