Court of Criminal Appeals Reverses Child Rape Conviction Due to Ineffective Assistance of Counsel

A Tennessee defendant, Joel Ernest Blanton, was convicted of one count of rape of a child and two counts of aggravated sexual battery and sentenced to 24 years in prison. Blanton appealed the conviction, citing several instances of ineffective assistance of counsel, particularly, that his attorney was ineffective for failing to obtain visitor logs from the Tennessee Department of Correction that could have been used to impeach the primary witness against him. The Court of Criminal Appeals heard the case and in an unusual decision, ultimately agreed with Blanton, reversing and remanding his case for a new trial.

By way of background, a 12-year-old girl said that Blanton was a friend of her family whom she had known for years. After having to spend the night at his house one day she says she awoke to find Blanton fondling her until she told him to stop and said that “it hurt.” The defendant remained in bed with the girl until the morning when he told her to be quiet about the incident. The girl’s sisters also later admitted to their mother that they too had inappropriate contact with Blanton after Blanton had crawled into bed with them on a previous occasion that same weekend.

Blanton, who was 20 year old at the time of the incident, always vehemently denied touching the girls, though he did admit that they were in the same house on the night in question.

The Court of Criminal Appeals held that the case turned solely on the issue of the witnesses’ credibility. One of the victims testified that her mother was snowed in overnight while visiting their father in prison. On cross-examination, the girl said she was “certain” her mother was away. However, in the videotaped interview with DCS, she said that her mother was at home when the incidents occurred. The other two victims testified that their mother was away from home on the night in question. The mother also said that she was away at the time of the incident. The Court said that whether the mother was home during the alleged incidents was a pivotal fact used by the children and their mother in establishing the time frame relied upon by the State.

The Court of Criminal Appeals found that this case turned completely on the credibility of the State’s witnesses versus the defendant’s witnesses. The evidence of prison visitation records would have irrefutably impeached the mother and her daughter’s credibility regarding where the mother purported to be the night of the incident.

Because the conviction in this case rested solely on the credibility of witnesses, defendant’s counsel should have obtained the available impeachment evidence for use at trial. The Court could not clearly say that the attorney’s failure to do so did not affect the outcome. Given that, Blanton suffered prejudice as a result of his attorney’s failure to request the prison visitation logs.

To read the full opinion, click here.
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The CCA, Tenn. R. Evid. 803(26), and Prior Inconsistent Statements as Substantive Evidence

By Stevie Phillips

In State v. Ackerman, the Tennessee Court of Criminal Appeals addressed Tennessee Rule of Evidence 803(26), a hearsay exception adopted in 2009 that allows admission of some prior inconsistent statements as substantive evidence. 

The Rule states that the following are not excluded by the hearsay rule:

A statement otherwise admissible under Rule 613(b) if all of the following conditions are satisfied:      

(A) The declarant must testify at the trial or hearing and be subject to cross-examination concerning the statement.                                                                                                                                                                    

(B) The statement must be an audio or video recorded statement, a written statement signed by the witness, or a statement given under oath.                                                                                                             

(C) The judge must conduct a hearing outside the presence of the jury to determine by a preponderance of the evidence that the prior statement was made under circumstances indicating trustworthiness.

The CCA emphasized that

[t]o be admissible as substantive evidence via Rule 803(26), a statement must first be admissible as a prior inconsistent statement via Rule 613(b). That rule provides that ‘[e]xtrinsic evidence of a prior inconsistent statement by a witness is not admissible unless and until the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require.

The admissibility of a prior inconsistent statement as substantive evidence will often turn, therefore, on whether the witness testifies in an inconsistent manner.  As the CCA explained, the witness must deny the statement, equivocate about having made the statement, or testify inconsistently and then testify that he or she does not recall making the prior inconsistent statement.  Finally, the court noted that nothing in Rule 803(26) “permits the admission of a witness’s prior statement in its entirety.”

The full opinion can be found here. 

Tennessee Child Rape Suspect Granted New Trial

• STATE OF TENNESSEE v. EMOE ZAKIAYA MOSI BAKAR

The Tennessee Court of Criminal Appeals has awarded child rape suspect Emoe Zakiaya Mosi Bakari a third trial, ruling that his conviction of attempted rape of a child must be overturned because of various prejudicial errors during Bakari’s second trial.

Bakari was indicted by a Davidson County grand jury in 2008 and was accused of raping an ex-girlfriend’s daughter and nephew in 2002 and 2003 while he lived with the family. Bakari allegedly told police the allegations were not true and stemmed from his ex-girlfriend’s “jealousy.”

Bakari was first tried in August 2009, but the jury could not reach a verdict and the court declared a mistrial. Bakari was tried again in December 2009, convicted of attempted rape of a child and sentenced to 12 years in prison.

On appeal, Bakari argued that Davidson County Criminal Judge J. Randall Wyatt Jr. erred by (1) allowing a State witness to testify about “delayed disclosure” in child sexual abuse cases; (2) allowing a police detective to give testimony suggesting the appellant was uncooperative during the investigation; (3) allowing the State to introduce a photograph of the victims into evidence; and (4) allowing the prosecutor during rebuttal closing argument to give personal examples in an attempt to vouch for the victims’ credibility.

For example, prosecutor Kristen Menke was allowed “to give personal examples in an attempt to vouch for the victims’ credibility,” stating in part that the children should not be expected to perfectly recall “something that happened half of their lifetime ago,” when she couldn’t remember every sexual encounter she’d had with her own husband in the past year.

The Court ultimately agreed with the defense, ruling that the trial court erred by allowing a witness to testify about “delayed disclosure,” by allowing a police detective to give testimony suggesting the appellant was uncooperative during the investigation, and by allowing the prosecutor to give personal examples in an attempt to vouch for the victims’ credibility. The Court concluded that the cumulative effect of the errors warrants reversal of the appellant’s conviction and remanded the case to the trial court for a new trial.

The full opinion can be found here.

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State's Failure to Elect Offenses Results in Reversal of 100 Year Sentence

• STATE OF TENNESSEE v. ROBERT CHARLES BROWN

Charlie Brown was convicted at trial of child rape from multiple counts and sentenced to a 100 year sentence. He asserts on appeal that the trial court should have required the State to make an election of offenses as required by the Tennessee Supreme Court in this child rape case. The State acknowledges that the trial court should have required the prosecution to make an election of offenses but argues that the error was harmless because the victim “recounted a single set of facts constituting the crime and testified that the same facts happened every time she visited the [appellant].” However, the State also acknowledges that this argument was squarely rejected by our supreme court in Tidwell v. State, 922 S.W.2d 497 (Tenn. 1996). Trial Courts are required to strictly follow the law as set forth by our Supreme Court and cannot rule contrary to precedent established by that court even if they wish to do otherwise.

Here, the victim testified to repeated rape by the defendant but could not provide a single detail that differentiated one offense from another.  Since the state did not elect which counts that they were relying upon for the evidence, it violated precedent when it was submitted to the jury.

The State also argues that to require an election of offenses in this type of case “prevents the State from prosecuting defendants who have been successful in delaying disclosure of their crimes.” However, the TN Supreme Court has rejected this argument, stating, the rules of evidence and the rules of procedure have been relaxed to some extent to accommodate very young witnesses. Nevertheless, the constitutional protections guaranteed a criminal defendant, who is presumed by law to be innocent until proven guilty, cannot be suspended altogether because of the victim’s age or relative inability to testify. In cases such as this one, the state must either limit the testimony of prosecuting witnesses to a single event, or prepare the case so that an election can be made before the matter is submitted to the jury to decide. 

The Court concluded that the trial court committed reversible error by failing to require the State to make an election of offenses.