STATE of Tennessee, Appellee, v. Lawtis D. RHODEN, Appellant.
No. 86-263-III
Court of Criminal Appeals of Tennessee, at Nashville
April 16, 1987
Rehearing Denied May 12, 1987
Permission to Appeal Denied by Supreme Court Oct. 5, 1987.
Disposition by this Court of the issues presented by appellants as to actions and findings of the trial court with respect to Joe F. Robertson is held in abeyance in this Court until such time as the Court is properly advised by one or more of the parties that stay of further action pursuant to the bankruptcy laws is no longer in effect as to Joe F. Robertson, or as to such time as the Court is of the opinion that it should properly dispose of said issues.
One-half the costs of this appeal are taxed against appellees, Yeates-Gaskill-Rhodes, Architects, Inc., for which let execution issue, if necessary. Judgment as to payment of the remainder of the costs will await the disposition of the issues raised by appellants with respect to the appellee Robertson.
CRAWFORD and HIGHERS, JJ., concur.
W.J. Michael Cody, Atty. Gen. & Reporter, Robert Conley, Asst. Atty. Gen., Thomas H. Shriver, Dist. Atty. Gen., Cheryl Blackburn, Tom Thurman, Asst. Dist. Attys. Gen., Nashville, for appellee.
OPINION
JONES, Judge.
The appellant, Lawtis D. Rhoden, was convicted of rape and the use of a minor for an obscene purpose by a jury of his peers. The trial court sentenced the appellant to a term of twenty (20) years in the
In this Court the appellant raises nineteen (19) issues. The appellant challenges (a) the sufficiency of the convicting evidence, (b) the constitutionality of
SUFFICIENCY OF THE EVIDENCE
Since the appellant challenges the sufficiency of the convicting evidence, we will set forth the salient facts contained in the record.
The appellant instructed his girl friend, Cornelia “Connie” Widmann, to travel to Nashville, take custody of an automobile that was in storage there, and make arrangements to rent a furnished room in the Nashville area. After arriving in Nashville Ms. Widmann obtained the automobile and rented a room in the Wright household.
When the appellant discovered there was a thirteen-year-old child in the home with Ms. Widmann, he asked Ms. Widmann to inquire if the child, the victim, would be interested in being a model and having her picture taken by the appellant. The appellant talked to the victim by telephone about a photographic session. The victim was told that the pictures were to be taken for a photography class.
During the first week in December of 1984 the appellant went to Nashville, and met Ms. Widmann. They went to a local store where they purchased cameras, film and clothes to be worn by the victim. The following day Ms. Widmann went to the victim‘s school, obtained her release without the permission of her parents, and took the victim to a local motel where the appellant was residing. The victim took a shower, and Ms. Widmann assisted her with makeup and her hair. When the victim tried on some of the clothes purchased by the appellant, it was discovered the clothes did not fit. The appellant ordered Ms. Widmann to return to the store and exchange the clothes. She left the motel.
While Ms. Widmann was away from the room, the appellant first took pictures of the victim in her clothes. He also lifted her dress and took pictures of her. Subsequently, the appellant removed the victim‘s clothing except for her bra while she was on a bed. He performed cunnilingus on the victim, and attempted to insert his penis into her vagina on three separate occasions. The victim testified the appellant penetrated her on one occasion. He then took pictures while she laid on a bed and sat in a chair in an unclothed state. He placed her legs in various positions, including separating her legs so that her genitals were visible, as he took pictures. When he finished taking photographs, the victim dressed; and the appellant prepared to leave for the airport. He told the victim he would give her a computer and $500.00 if she would not tell her mother about what had transpired at the motel.
Ms. Widmann took the appellant to the airport while the victim waited in the motel room. The appellant told Ms. Widmann that he had a client who would pay a considerable sum of money to see a little girl
A medical examination of the victim revealed the presence of sperm. It also revealed recent trauma to the hymenal area inside the vagina and a hematoma. According to the doctor, there had to be some type of penetration of the labia to cause this trauma. The slides made by the doctor revealed the presence of a small amount of sperm.
When the appellant challenges the sufficiency of the convicting evidence, this Court must review the record to determine if the evidence adduced at trial is sufficient “to support the findings by the trier of fact of guilt beyond a reasonable doubt.”
Questions concerning the credibility of witnesses, the weight and value to be given the evidence as well as all factual issues raised by the evidence are resolved by the trier of fact, not this Court. State v. Cabbage, supra; Braziel v. State, supra; State v. Grace, supra. In Grace our Supreme Court said: “A guilty verdict by the jury, approved by the trial judge, accredits the testimony for the State and resolves all conflicts in favor of the theory of the State.” 493 S.W.2d at 476.
There is sufficient evidence contained in the record from which a rational trier of fact could conclude that the appellant is guilty of the offenses of rape and use of a minor for an obscene purpose beyond a reasonable doubt.
CONSTITUTIONALITY OF STATUTE
The appellant challenges the constitutionality of the statute proscribing the use of minors for obscene purposes,
Our review of the record reveals the appellant did not file a pre-trial motion attacking the indictment on the ground the statute was unconstitutional. The appellant raised this issue for the first time post-trial in his motion for a new trial.
In this jurisdiction “[d]efenses and objections based on defects in the indictment, presentment or information” must be raised prior to trial.
FAILURE TO CHARGE LESSER INCLUDED OFFENSES
The appellant contends the trial court committed error of prejudicial dimensions because it failed to charge the lesser offenses included in the crime of using a minor for obscene purposes. The appellant
A court is not required to charge the jury on lesser included offenses when there is no evidence in the record to support a finding of guilt of the lesser offenses. State v. Mellons, 557 S.W.2d 497 (Tenn. 1977); State v. Davis, 649 S.W.2d 12, 14 (Tenn. Crim. App. 1982); State v. Lee, 618 S.W.2d 320, 323 (Tenn. Crim. App. 1981). In this case “the proof clearly makes out the offense for which the defendant was convicted, and there was no credible view of the evidence under which the defendant could have been found guilty of a lesser offense.” State v. Wright, 649 S.W.2d 22, 24 (Tenn. Crim. App. 1983). This issue is without merit.
EVIDENCE OF OTHER CRIMES
Cornelia Widmann, the girl friend of the appellant, testified during redirect examination that the appellant forced her to have sexual intercourse with him following an argument. The appellant contends the admission of this evidence was highly prejudicial and entitles him to a new trial. We disagree.
This issue has been waived. The appellant failed to make a contemporaneous objection to the admission of the testimony when it was offered. See Harless v. State, 189 Tenn. 419, 225 S.W.2d 258, 259 (1949); Floyd v. State, 1 Tenn. Crim. App. 106, 430 S.W.2d 888, 892 (1968); Hill v. State, 513 S.W.2d 142, 143 (Tenn. Crim. App. 1974).
SUMMATION OF THE ASSISTANT DISTRICT ATTORNEYS GENERALS
The appellant contends the assistant district attorneys general made improper, misleading and inflammatory remarks during final summation. The appellant sets forth several passages from the arguments of counsel, states these passages were improper and highly prejudicial, and this error entitles the appellant to a new trial. We disagree.
The appellant failed to make a contemporaneous objection to the statements attributed to the assistant district attorney generals. Thus, this issue has been waived. State v. Wooden, 658 S.W.2d 553, 559 (Tenn. Crim. App. 1983); Almonrode v. State, 567 S.W.2d 184, 186 (Tenn. Crim. App. 1978).
LIMITATIONS ON CROSS-EXAMINATION OF WITNESSES
The appellant next contends the limitations placed upon defense counsel‘s cross-examination of the victim effectively denied him the constitutional right to confront his accusers. He specifically claims the trial court effectively prohibited counsel from examining the victim regarding her use of makeup, physical appearance, and willingness to testify. We disagree.
We have examined the portions of the record where the appellant contends the error occurred, but we do not find a single instance where the trial judge restricted or limited defense counsel‘s examination of the victim. The record reflects the State made objections to certain questions propounded by counsel on the grounds of relevancy. These objections were sound as the evidence sought to be elicited from the victim was not relevant. However, the trial judge required the witness to answer most of the questions. This issue is without merit.
The State called Cornelia Widmann as a prosecution witness. Defense counsel was permitted to cross-examine Ms. Widmann at length; and, following redirect examination, defense counsel was again permitted to cross-examine the witness. The witness was then excused.
After the lunch recess defense counsel advised the court the appellant had requested that he “propound some questions which he [the appellant] didn‘t have at the close of the cross-examination.” These were questions which the appellant had “reflected upon during the noon recess that would throw some light upon the situation.” However, defense counsel never revealed the questions he wanted to ask Ms.
Defense counsel suggested to the trial court his inquiry would concern a topic which would be “in the nature of a direct examination.” Counsel conceded he might have to call Ms. Widmann as a defense witness since he had closed his cross-examination. He told the trial court he was “willing to do that, and to forego further cross-examination.”
As the appellant correctly states in his brief, whether a witness should be recalled to the witness stand at the request of a party is a matter which rests within the sound discretion of the trial court. McFarlin v. State, 214 Tenn. 613, 381 S.W.2d 922, 925 (1964). We do not think the trial court abused its discretion when defense counsel suggested that he possibly should and was willing to call Ms. Widmann as a defense witness.
ABSENCE OF APPELLANT DURING CHAMBERS CONFERENCE
Prior to trial defense counsel moved the court for an in camera conference outside the presence of the appellant. The purpose of this conference was to permit the victim‘s mother to relate to the trial judge her objection to the trial of the appellant. She related that the victim as well as herself were emotionally upset about (a) the district attorney general “releasing Connie [Cornelia] Widmann the way it had been done“, (b) an assistant district attorney general had “talked kind of hateful” to her at times, and (c) the veiled “threat” of the prosecution that she would be “investigated” if she changed her mind about prosecuting the appellant. She wanted the prosecution against the appellant terminated and the appellant returned to Florida where he had an outstanding sentence. The victim and the witness “were emotionally upset” and “have been through too much.”
Contrary to the contentions of the appellant, his constitutional right to confront the witnesses against him was not violated. First, it was defense counsel who requested the trial judge to conduct the conference outside the presence of the appellant. In permitting the conference the trial court waived the presence of the appellant at the request of his own privately retained counsel. See
RESTRICTIONS ON MENTIONING CONSENT DURING VOIR DIRE AND OPENING STATEMENT
Prior to trial the State filed a motion in limine seeking to prevent defense counsel from alluding to the prior sexual activity of the minor victim. While this motion is not contained in the record, it appears the motion was predicated upon the rape shield statute,
This issue has been waived.
ADMISSIBILITY OF OPINION EVIDENCE
The appellant challenges the testimony of Ronald E. Bledsoe, a medical doctor. Dr. Bledsoe examined the victim after the sexual contact with the appellant. While the basis of the appellant‘s challenge
The appellant did not challenge the introduction of Dr. Bledsoe‘s testimony at the trial. His qualifications were not challenged. Thus, this issue has been waived.
We have reviewed the qualifications of Dr. Bledsoe and are of the opinion the doctor was qualified to testify as an expert witness. See State v. Fears, 659 S.W.2d 370, 377 (Tenn. Crim. App. 1983).
In this jurisdiction the allowance of expert testimony, the qualifications of expert witnesses, and the relevancy and competency of expert testimony are matters which rest within the sound discretion of the trial court, Murray v. State, 214 Tenn. 51, 377 S.W.2d 918, 920 (1964); Bryant v. State, 539 S.W.2d 816, 819 (Tenn. Crim. App. 1976); State v. Holcomb, 643 S.W.2d 336, 341 (Tenn. Crim. App. 1982); and this Court will not interfere with the trial court‘s exercise of its discretion absent clear abuse. Murray v. State, supra; State v. Williams, 657 S.W.2d 405, 411-412 (Tenn. 1983); State v. Taylor, 645 S.W.2d 759, 762 (Tenn. Crim. App. 1982).
COMPETENCY OF VICTIM AS A WITNESS
Although the victim was thirteen years of age when she testified in this case, the trial court did not make a determination as to whether the victim understood the obligation of an oath. The appellant argues this was highly prejudicial and entitles him to a new trial. We disagree.
While it is the duty of a trial judge to examine a child under the age of fourteen years to ascertain whether the child understands and appreciates the nature and meaning of an oath, and capable of knowing and accurately communicating the facts perceived, see Ball v. State, 188 Tenn. 223, 219 S.W.2d 166, 168 (1949), the failure of the trial judge to voir dire the minor witness and make the requisite determination does not, as a matter of law, compel this Court to reverse a conviction and order a new trial. State v. Grady, 619 S.W.2d 139, 143 (Tenn. Crim. App. 1980).
This error can be waived by the accused.
The victim was almost fourteen years of age when she testified. Contrary to the statements contained in the appellant‘s brief, the victim‘s credibility and determination to tell the truth was not questioned by her mother. She was able to relate the facts logically and consistently. And her testimony as well as her actions, which are noted on the face of the record, indicate without question the victim was competent to testify as a witness. Therefore, this issue is without merit.
REBUTTAL EVIDENCE
The appellant contends the trial court committed error in permitting Linda Taylor, the victim‘s neighbor, to testify in rebuttal. He argues that the purpose of calling the witness was to reiterate the victim‘s testimony for the jury. We disagree.
The appellant called the victim‘s mother as a defense witness. She testified the victim never mentioned that the appellant had taken photographs of her without clothing when she returned home. Ms. Carter, who was present when the victim related what had transpired at the motel, testified the victim did tell her mother pictures were taken of her nude. Thus, Ms. Carter‘s account of what the victim related following her return home conflicted with that of the victim‘s mother.
ADMISSIBILITY OF VICTIM‘S PANTIES AS EVIDENCE
The appellant contends the trial court committed error of prejudicial dimensions in permitting a pair of girl‘s panties to be introduced into evidence. He states the panties were never identified as having been worn by the victim.
The police seized two pair of girl‘s panties, among other items of clothing, from the trunk of Ms. Widmann‘s vehicle. The panties had been purchased by the appellant for the victim to wear during the photograph session. One pair of the panties “appeared to have some type of stain” and the second pair “appeared to be badly stained.” The victim told the doctor who examined her she had noticed a drop of pinkish bloody fluid on the panties she had worn home.
This issue has been waived. Defense counsel failed to object when the panties were admitted into evidence,
FAILURE TO PRESERVE A RECORD OF TAPE RECORDINGS
The appellant asserts that he is being denied meaningful appellate review of his conviction because the trial court failed to preserve a record of certain tape recordings which were admitted into evidence. It appears that the telephone conversations between the appellant and Ms. Widmann were taped by law enforcement officers with the consent of Ms. Widmann. During the course of these conversations the appellant made several statements, which, when taken with the testimony of other witnesses, were tantamount to an admission of guilt.
While it is true the conversations are not contained in the transcript of the trial, the record does contain transcripts of the telephone conversations. These transcripts were admitted into evidence and authenticated by the trial judge. However, the appellant does not tell us what errors, if any, were committed in admitting all or any portion of the recordings into evidence.
It is the duty of the appellant to prepare a record which conveys a fair, accurate and complete account of what transpired with respect to the issues which form the basis of the appeal, and will enable the appellate court to determine the issues.
The record transmitted to this Court does not contain a designation of the transcript showing the appellant requested this portion of the trial proceedings be included in the transcript. See
FAILURE TO DISCLOSE INTERVIEWS WITH VICTIM AND A WITNESS
The officers who interviewed the victim preserved the interview by audio and video recordings. The interview of Cornelia Widmann was preserved by an audio recording. Defense counsel moved the court for discovery of these recordings. The assistant district attorney general advised the trial court and counsel these recordings would not be introduced as evidence by the State; and stated transcriptions of the interviews would be furnished to defense counsel after the direct examination of the witnesses had been completed. See
As a general rule, statements made by prosecution witnesses are not discoverable by the accused prior to trial. See State v. Williams, 645 S.W.2d 258, 260 (Tenn. Crim. App. 1982); State v. Robinson, 618 S.W.2d 754, 757 (Tenn. Crim. App. 1981).
The appellant contends in his brief that “the entire contents of the taped video interview were discoverable as exculpatory evidence” and the “State‘s refusal to disclose [the] taped interview denied [the] defendant his due process rights.” However, the appellant does not tell us what the nature of the exculpatory evidence nor how he was prejudiced by the State‘s failure to reveal this evidence. Prior to trial defense counsel advised the trial court he was seeking the tapes “because—and certainly you can‘t make any statement other than the fact that this is pure speculation that in the video tape that there might be something exculpatory....” [Emphasis added.]
We have listened to the audio tape and watched the video tape transmitted to this Court under seal. The content of the video tape is identical to the audio tape recording of the victim‘s interview. We have also listened to the audio tape recording of the witness, Cornelia Widmann. Neither interview contains any “favorable” or exculpatory evidence. Furthermore, the statements of the witnesses are consistent with their respective trial testimony. This issue is without merit.
FLIGHT INSTRUCTION
When Ms. Widmann returned to the motel room, the appellant asked her to take him to the airport. He stated he was in a hurry to catch a flight. Ms. Widmann was surprised the appellant was in such a “rush” to leave. They left immediately for the airport. The victim was left unattended in the motel room.
While enroute to the airport, the appellant told Ms. Widmann he had “a client that pays a lot of money to see little girls in their underwear.” He also instructed her to return to the motel, clean the room, make sure “he hadn‘t left anything behind“, and take the victim home.
There are sufficient facts in the record to support an instruction concerning flight. See Ledune v. State, 589 S.W.2d 936, 940 (Tenn. Crim. App. 1979), [defendant left Tennessee and went to California the day following the homicide]; Rogers v. State, 2 Tenn. Crim. App. 491, 455 S.W.2d 182 (1970), [defendant left Tennessee and was later
FAILURE TO PROVIDE APPELLANT WITH MEANINGFUL PSYCHIATRIC EVALUATION
The appellant contends the failure of the trial court to order meaningful psychiatric evaluation deprived the appellant of his state and federal constitutional right to the effective assistance of counsel. According to the appellant, this impaired the appellant‘s ability to adequately prepare his defense.
The record is silent on this issue. The appellant‘s motion for additional psychiatric evaluation, a transcript of the hearing where the motion was argued, and the “pro forma” report, which was alluded to in the appellant‘s brief, are not contained in the record. The record transmitted to this Court does not reveal any evidence, outburst or other conduct which would cause the trial court to believe the appellant was incompetent or was suffering from a mental deficiency or disease. See Williams v. Bordenkircher, 696 F.2d 464 (6th Cir. 1983), cert. denied, 461 U.S. 916, 103 S.Ct. 1898, 77 L.Ed.2d 287 (1983); Pate v. Smith, 637 F.2d 1068, 1072 (6th Cir. 1981).
This Court has held that the applicable statute,
As we have stated hereinabove, it is the duty of defense counsel to prepare a record which conveys a fair, accurate and complete account of what transpired with respect to the issues which form the basis of the appeal, and will enable the appellate court to determine the issues.
This issue is without merit.
DE NOVO REVIEW OF SENTENCES
When the accused challenges the length, range, or the manner of service of sentences, it is the duty of this Court to conduct a de novo review of the sentences without a presumption that the determinations made by the trial court when sentencing the accused are correct.
In conducting the de novo review mandated by the Tennessee Criminal Sentencing Reform Act of 1982 this Court must consider (a) any evidence received at the trial and/or sentencing hearing, (b) the presentence report, (c) the principles of sentencing, (d) the arguments of counsel relative to sentencing alternatives, (e) the nature and characteristics of the offense, (f) any mitigating or enhancing factors, (g) any statements made by the accused in his own behalf, and (h) the accused‘s potential or lack of potential for rehabilitation or treatment. See
The appellant committed extremely aggravated offenses within the meaning of
There are no mitigating factors contained in the record. See
This Court finds the appellant lacks the characteristics, traits and desire necessary for one to rehabilitate himself.
Two of the purposes of the Tennessee Criminal Sentencing Reform Act of 1982 are (1) the assessment of punishment in relation to the seriousness of an offense, and (2) the prevention of crime and the promotion of respect for law by providing an effective deterrent to others likely to commit similar offenses.
The appellant should be required to serve these two sentences consecutively as well as consecutively to the outstanding
The judgments of the trial court are affirmed.
O‘BRIEN and DAUGHTREY, JJ., concur.
ORDER ON PETITION TO REHEAR
A petition for rehearing has been filed on behalf of the appellant, Lawtis D. Rhoden.
The petition has been thoroughly reviewed, and this Court is of the opinion the petition should be denied.