State of Tennessee v. Frederick Herron, 2015 Tenn. LEXIS 246

Background

Defendant Frederick Herron was indicted for rape of a child (victim "MM"), alleged to have occurred while she was between 3 and 13; trial occurred March 2012 and resulted in a guilty verdict and 25-year sentence.
MM (born 1994) testified to repeated vaginal rapes beginning in second grade and ending after a July 4, 2006 confrontation; reported abuse to a counselor in 2010 and gave a recorded forensic interview in November 2010.
The prosecution played MM’s entire 2010 recorded forensic interview during its case-in-chief (over defense objection); MM’s trial testimony contained more detail than the interview.
Prior to trial, the State gave notice of Herron’s 1996 court-martial convictions; the trial court barred use of those convictions but ruled that if Herron testified the State could ask whether he had ever been arrested or convicted of a crime (unnamed), and impeach for untruthfulness.
Defense theory emphasized inconsistencies, delay in reporting, family dynamics, and the diary containing a single reference to abuse; the defense did not call Herron to testify after the trial court’s cross-examination ruling.
The Tennessee Court of Criminal Appeals (majority) found the conceded errors harmless; the Tennessee Supreme Court accepted the State’s concession of error as to the two rulings but held the cumulative effect prejudicial and ordered a new trial.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Herron)	Held
Admission of MM’s recorded prior consistent statement during State’s case-in-chief	Admission was harmless; interview consistent with trial testimony and admissible for rehabilitation	Prior consistent statement inadmissible as bolstering because MM’s credibility had not yet been attacked	Court: Error to admit prior consistent statement during direct before any attack on credibility; admission was conceded erroneous
Trial court ruling permitting prosecution to ask defendant about prior arrests/unnamed convictions if he testified	Ruling appropriate only as to impeachment for untruthfulness; harmless here	Ruling violated Rule 609 and controlling precedent forbidding questioning about unnamed felonies or arrests	Court: Ruling erroneous—prosecution may not ask about unnamed arrests/convictions; trial court abused discretion
Sufficiency of evidence and State’s election of offense (single date unspecified)	Evidence was sufficient; election adequate to ensure unanimity	Insufficient/ election defective because of temporal vagueness and weaknesses in proof	Court: Affirms Court of Criminal Appeals—evidence sufficient and election adequate (no further discussion)
Cumulative error and remedy	Conceded errors were individually harmless and not prejudicial cumulatively	Cumulative effect of the two errors prejudiced Herron’s right to a fair trial (bolstered victim, chilled defendant’s decision to testify)	Court: Cumulative non-constitutional errors were prejudicial; conviction vacated and case remanded for a new trial

Key Cases Cited

State v. Galmore, 994 S.W.2d 120 (Tenn. 1999) (prosecution may not impeach a defendant by asking about an unnamed felony conviction)
State v. Taylor, 993 S.W.2d 33 (Tenn. 1999) (prior conviction must be identified to the trier of fact when used for impeachment under Rule 609)
State v. Livingston, 907 S.W.2d 392 (Tenn. 1995) (recorded prior consistent statement inadmissible to rehabilitate a child witness when credibility not sufficiently attacked)
State v. Benton, 759 S.W.2d 427 (Tenn. Crim. App. 1988) (prior consistent statements admissible only to rebut charges of recent fabrication or improper influence)
State v. Bigbee, 885 S.W.2d 797 (Tenn. 1994) (cumulative non-constitutional errors can require reversal when their aggregate effect is prejudicial)
State v. Hester, 324 S.W.3d 1 (Tenn. 2010) (framework for cumulative error review)
Arizona v. Fulminante, 499 U.S. 279 (1991) (a defendant’s confession/testimony is highly probative and potentially highly damaging when offered against him)