             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE             FILED
                           JULY 1996 SESSION
                                                      February 10, 1998

                                                     Cecil W. Crowson
                                                    Appellate Court Clerk
STATE OF TENNESSEE,              )    No. 01C01-9511-CC-00393
                                 )
      Appellee                   )
                                 )    MACON COUNTY
V.                               )
                                 )    HON. J. O. BOND,
JUDY C. LEATH,                   )    JUDGE
                                 )
      Appellant.                 )    (Rape of a Child; Aggravated Sexual )
                                 )     Battery; Child Abuse)
                                 )


For the Appellant:                    For the Appellee:

B.F. (Jack) Lowery                    John Knox Walkup
Lowery Building                       Attorney General and Reporter
Public Square
Lebanon, TN 37087                     Michael J. Fahey, II
                                      Assistant Attorney General
                                      450 James Robertson Parkway
                                      Nashville, TN 37243-0493


                                      Tom P. Thompson, Jr.
                                      District Attorney General

                                      John D. Wooten, Jr.
                                      Assistant District Attorney
                                      203 Greentop Street
                                      Hartsville, TN 37074



OPINION FILED: ___________________


REVERSED AND REMANDED


William M. Barker, Judge
                                        OPINION


      The appellant, Judy C. Leath, appeals as of right her convictions in the Macon

County Circuit Court of two counts of rape of a child, two counts of aggravated sexual

battery and two counts of child abuse. Appellant’s convictions were based upon jury

verdicts finding her criminally responsible for the actions of her husband. She was

sentenced to twenty (20) years for each count of rape of a child, ten (10) years for

each count of aggravated sexual battery, and eleven (11) months, twenty-nine (29)

days for the misdemeanor child abuse convictions. The felony sentences were

ordered to run consecutively for an effective sentence of sixty (60) years.

      Appellant raises ten issues on appeal. She argues that:

             (1) the trial court erred by failing to dismiss the indictment
             because it was vague and ambiguous, and in the
             alternative, by not requiring the State to provide appellant
             with a bill of particulars;

             (2) the evidence was insufficient to sustain the jury’s
             verdicts;

             (3) the trial court erred in overruling appellant’s motion for
             judgment of acquittal at the close of the State’s proof;

             (4) the trial court erred in refusing to order that appellant’s
             attorney be allowed to communicate with the victim in
             preparation for trial;

             (5) the trial court erred in admitting into evidence prejudicial
             photographs which were of no probative value and which
             were beyond the scope of the indictment;

             (6) the trial court erred in overruling appellant’s motion to
             suppress the introduction of a video tape recorded in the
             jail’s booking room by a news reporter;

              (7) appellant was denied a fair trial because the trial court
              failed to order the State to provide exculpatory evidence
              and because the State failed to provide her with
              exculpatory evidence;

              (8) the jury charge violated appellant’s constitutional right
              to due process of law;




                                            2
                  (9) the trial was unfair, prejudicial, and biased in favor of
                  the State and the trial judge erred by not recusing himself;
                  and

                  (10) the trial court failed to properly sentence appellant.



We have reviewed the record on appeal, the briefs of the parties, and the law

applicable to the case, and finding reversible error, we reverse appellant’s convictions

and remand this case for a new trial.

                                      I. FACTUAL BACKGROUND

         In the late spring and early summer of 1993, six-year-old D.L.1 was completing

her kindergarten year. She had a brother who was two and a half years old and they

both lived with their parents in Lafayette, Tennessee. Sometime in July, after school

was out for the summer, the Macon County Sheriff received information about

potential sexual abuse in D.L.’s home. After a thorough investigation, D.L.’s biological

parents were arrested and later indicted for sexual abuse of D.L. They were tried

separately and D.L. testified at both trials.

         At appellant’s trial, D.L.’s testimony revealed that she lived in a sexually

abusive environment. She testified that her mother, the appellant, and father often

walked around the house, and sometimes even ate meals, without wearing clothes.

On other occasions, D.L.’s father would dress up in women’s clothes, usually a skirt

and high heels. D.L. also explained that it was common for her parents to have sexual

intercourse without closing the bedroom door. During those occasions, D.L.’s parents

not only allowed D.L. to watch, they also talked to her and even asked her to assist by

getting her mother tissue to be used for clean-up. D.L. testified that “it [intercourse]

looked like fun.” On at least one occasion, the family gathered in the bathroom where

D.L.’s father shaved her mother’s “private part.” D.L. also stated that her parents had




         1
        It is the policy of this Court to re fer to m inor victim s of sex ual abus e by their initials only. State
v. Schimpf, 782 S.W .2d 186, 188 n.1 (Tenn. Crim . App. 1989).

                                                         3
taken nude photographs of her, two of which were introduced at trial. They depicted

D.L. in an obscene pose, similar to that of her mother in another picture.

       The parade of horribles escalated as D.L. testified. She recounted her father’s

numerous attempts to vaginally penetrate her with his penis. These activities occurred

in D.L.’s bed, on the floor in her bedroom, or in her parents’ bed. D.L. also described

one instance when her father’s penis penetrated her. She stated that she never told

appellant about this incident. However, D.L. informed appellant about the other

numerous occasions and told her that it was painful. Appellant responded by

instructing D.L. to tell her father not to do that.

       D.L. also disclosed how she often slept in her parents’ bed because she was

afraid to sleep alone. She testified that on one particular night her father had no

clothes on and that she rubbed his penis. Appellant was in the same bed and was

fully aware that it was happening, but did not say anything. D.L. also related instances

of her performing oral sex on her father, but maintained that appellant never knew of

these incidents. She could not remember how many times this happened, but she

knew that it occurred more than once and that these encounters usually happened at

nighttime in a kitchen chair while appellant was asleep.

       D.L. stated that most of the foregoing events occurred just after she had gotten

out of kindergarten while her family was living on Days Road in Lafayette. As a result

of the abnormal atmosphere in the home, D.L. did not believe that these events were

wrong. On cross-examination, however, a small portion of D.L.’s testimony from her

father’s trial was read in which she stated that appellant told her it was wrong to do

these things. She denied any memory of making that statement.

       Appellant did not testify at trial. However, she gave two statements to law

enforcement officials during the investigation. The State introduced these statements

through the testimony of the Macon County Sheriff. In the first statement, given July

19, 1993, appellant admitted that she observed her husband and daughter lying on

the bed and that D.L. rubbed his penis. She stated that this occurred about “one

                                               4
month ago.” She further stated that her husband told her that D.L. was “oversexed

[and] that she is the hottest little girl he has ever seen.” Appellant then told him not to

have sex with D.L. because it would “kill her.” In response, her husband said he had

not penetrated D.L., but he had rubbed his penis through her vagina and that “she

liked it.” In her statement, appellant further said that D.L. enjoyed watching her and

her husband have sex.

       The following day, July 20, 1993, appellant gave a second statement that was

tape recorded. In that statement, appellant admitted that she was present when the

nude photos of D.L. were taken and that she may have made one of them. She

contended that the photos were made about six months before the interview.

Furthermore, appellant denied any knowledge of her husband and D.L. having oral

sex. Appellant admitted, however, that she saw the penis-rubbing incident and she

knew that her husband rubbed his penis through D.L.’s vagina. She stated that she

told him that he did not need to do that. However, she did not really think much about

it and it did not bother her. In her statement, appellant said that her husband often

slept in D.L.’s bed at night. However, she claimed no knowledge of what may have

occurred on those occasions, which were as often as once a week. Similarly,

appellant professed no knowledge of what occurred when the three of them slept in

the same bed together. According to appellant, she laid down and went to sleep

without turning around to see what they were doing.

       In her statement, appellant also confirmed that she and her husband walked

around nude in front of the children, but that her husband did it more often. She

stated that her husband often slept in her nightgowns. She further described an event

where the children took a bath with her husband and he was shaving his legs.

       When appellant was arrested, a television news reporter was present during

the booking procedure and videotaped appellant answering his questions about the

charges. The news reporter’s tape was played for the jury during the trial. During that

interview, appellant explained that she knew that these acts were occurring, but that

                                             5
she never assisted in them. She admitted to observing “some things;” however, she

felt that things would not get so serious and that she never understood who was

encouraging the behavior, her husband or D.L. She related to the reporter that her

husband had done many things of which she did not approve, but that she “just let it

ride.”

         The indictment charged appellant with three counts of rape of a child and three

counts of aggravated sexual battery. Each count of the indictment alleged appellant’s

responsibility for these crimes under a different section of the criminal responsibility

statute. See Tenn. Code Ann. §39-11-402 (1991). Prior to charging the jury, the trial

court ruled that counts five and six of the indictment, which charged criminal

responsibility under subsection (3) of the statute, were only misdemeanor charges of

child abuse. The jury instructions comported with that order. After deliberations, the

jury returned guilty verdicts on all six counts.

                                      II. INDICTMENT

         Appellant contends that the indictment was vague and ambiguous, thereby

preventing her from preparing a defense. She also argues that the trial court erred by

failing to order the State to file a bill of particulars, as she requested. Appellant

contends that these errors warrant dismissal of the indictments. While we agree with

appellant that the trial court erred in failing to order a bill of particulars, we do not find

that the indictment must be dismissed for ambiguity.

A. Sufficiency

         The indictment in this case is somewhat unusual. The two principal offenses

alleged were rape of a child and aggravated sexual battery. In alleging three counts of

each of these offenses, the State indicted appellant under different theories of criminal

responsibility. For example, count one of the indictment, charging rape of a child,

reads:

         Judy C. Leath . . . unlawfully acted with the intent to promote or assist in
         the commission of an offense; to-wit: rape of a child, and further the said


                                               6
       Judy C. Leath did direct or aid Paul Leath in his unlawful sexual
       penetration of [D.L.], age 6, in violation of the statute.

Count one alleged appellant’s culpability under subsection (2) of Tennessee Code

Annotated section 39-11-402. The language of this count follows the exact statutory

language. Similarly, count two alleged aggravated sexual battery of D.L. using the

same language from subsection (2) of the criminal responsibility statute. Tenn. Code

Ann. §39-11-402 (1991). Counts three and four alleged appellant’s culpability for the

two principal offenses following the language of subsection (1) of the statute: “acting

with the culpability required for the offense, the person causes or aids an innocent or

irresponsible person to engage in the conduct prohibited by the . . . offense.” Id.

Counts five and six then alleged appellant’s culpability for child rape and aggravated

sexual battery under the language of subsection (3) of the statute: “having a duty . . .

voluntarily undertaken to prevent the commission of the offense and acting with intent

to benefit in the proceeds or results of the offense, or to promote or assist its

commission, the person fails to make a reasonable effort to prevent commission of the

offense.” Id. We do not find that this method of charging the offenses violated the

appellant’s constitutional rights.

       Under Tennessee law, an indictment is required to meet three basic purposes:

       (1) provide notice to the defendant of the precise charges against which
       he or she has to defend;

       (2) notify the trial court of the charges against the defendant so the trial
       court can enter an appropriate judgment and sentence; and

       (3) protect the defendant against double jeopardy.

State v. Trusty. 919 S.W.2d 305, 309 (Tenn. 1996); State v. Haynes, 720 S.W.2d 76,

82 (Tenn. Crim. App. 1986). The indictment here fulfilled all three requirements. It

provided appellant notice of the charges against her. Although complex, the

instrument provided appellant with a statement of her criminal responsibility for these

offenses. The indictment placed the appellant on notice that she was charged with

three counts of child rape and three counts of aggravated sexual battery committed


                                             7
upon her minor daughter and the precise nature of her culpability as the State

believed it occurred.

       Furthermore, the indictment sufficiently notified the trial court of these charges

permitting it to enter appropriate judgment and sentence. The indictment informed the

trial court that the State was pursuing a theory of criminal responsibility, thus making it

aware that if the jury returned guilty verdicts, appellant was deemed convicted of the

principal offenses. Tenn. Code Ann. §39-11-401(b) (1991). It also protected

appellant from double jeopardy. By its terms, the indictment alleged six different

instances of misconduct during a particular time frame, between June 1, 1993, and

July 19, 1993. An accused is protected from double jeopardy for the type of offenses

charged during the entire time period covered in the indictment. State v. Shelton, 851

S.W.2d 134, 137 (Tenn. 1993). Thus, the indictment fulfilled the necessary

constitutional requirements and dismissal is not warranted.

B. Bill of Particulars

       A bill of particulars may be ordered to adequately identify the offense charged.

Tenn. R. Crim. P. 7(c). The function of a bill of particulars is to provide a defendant

with information about the details of the charge that are necessary in the preparation

of his or her defense and to avoid prejudicial surprise at trial. State v. Hicks, 666

S.W.2d 54, 56 (Tenn. 1984) (quoting 1 C. Wright, Federal Practice and Procedure,

Criminal, §129 p. 434 (1982)). See also State v. Stephenson, 878 S.W.2d 530, 539

(Tenn. 1994). The defendant should be given enough information about the events

charged so that he or she may diligently prepare for trial. Id. Where the indictment is

not sufficiently detailed, a bill of particulars will serve this purpose. An abuse of

discretion must be shown to demonstrate error in denying a bill of particulars.

Stephenson, 878 S.W.2d at 539. W hen considered in conjunction with other errors

committed in the record, we conclude that the trial court’s denial of appellant’s motion

for a bill of particulars was an abuse of its discretion.



                                              8
         Appellant filed a motion for a bill of particulars shortly after the indictment was

returned. Appellant’s counsel strenuously argued the motion before the trial court and

it was denied. A second motion was later filed and argued. In numerous

appearances before the court, counsel stressed his need for such a document. He

requested the State to enumerate the time and place of the offenses, the precise acts

of the defendant in committing the offense, and any persons witnessing the offense.

We do not find it necessary for the appellant to know the exact time and place of each

offense 2 or the persons witnessing the offense in order to prepare her defense.

However, we find that the appellant’s efforts to adequately prepare a defense were

hindered by her lack of knowledge of what specific acts constituted the different

offenses enumerated in the indictment. Not only was she unaware of what factual

circumstances constituted the rape and sexual battery counts, she was also not

informed of the actions constituting her criminal responsibility. The trial court must

make every effort to see that the prosecution supplies information critical to

preparation of a defense in a bill of particulars, and the court failed to do so here. See

State v. Byrd, 820 S.W.2d 739, 741 (Tenn. 1991). The trial court erred in denying

appellant’s motion for a bill of particulars. 3

         The sufficiency of an indictment is irrelevant in determining whether to order a

bill of particulars. Hicks, 666 S.W.2d at 56 (quoting 1 C. Wright Federal Practice and

Procedure, Criminal, §129 p. 434 (1982)). The sufficiency of an indictment does not

militate against ordering a bill of particulars for more specific details about the

charges. Id. Thus, although the indictment was legally sufficient to put the defendant



         2
          The indictment alleged that the offenses o ccurred “between Jun e 1, 1993 and July 19, 1993.”
This is a rather limited time frame and differs from the type of case in which no dates were specified
over a pe riod of one or mo re years a nd m ore partic ular inform ation was neces sary in a bill of pa rticulars.
See e.g. State v. Byrd, 820 S.W .2d 739, 7 41-42 (T enn. 199 1). More over, app ellant’s statem ents to
police and the television reporter fully comported with the time frame of the indictment, acknowledging
that a ppe llant w as aw are o f this in form ation . Thu s, the re wa s no r isk o f unf air su rpris e at tria l.

         3
           This error is compounded by the fact that appellant’s counsel could not interview the victim prior
to trial. See IV b elow. Althou gh app ellant had D .L.’s testim ony from her fathe r’s trial, this did little to
enligh ten th e nat ure o f app ellant ’s culp ability.

                                                         9
on notice of the charges against her, a bill of particulars was necessary in this case to

permit the defendant to prepare an adequate defense and avoid prejudicial surprise at

trial.

C. Election of offenses

         Our conclusion that the denial of the bill of particulars was error is influenced by

another error committed at trial; namely, the State’s failure to elect offenses. This

error was not raised by the appellant in her brief, nor did she request election of

offenses at trial. However, an appellate court may consider issues not presented for

review if they rise to the level of “plain error.” See Tenn. R. Crim. P. 52(b); Tenn. R.

App. P. 13(b). The doctrine of plain error should only be invoked in the face of an

egregious error which affects the substantial rights of the accused. State v. Adkisson,

899 S.W.2d 626, 639-40 (Tenn. Crim. App. 1994). A substantial right is a right “of

fundamental proportions . . ., a right to the proof of every element of the offense, and

is constitutional in nature.” Id. at 639 (citations omitted). Election of offenses is

necessary to ensure unanimity of the jury verdict, a fundamental right protected by our

state constitution. State v. Brown, 823 S.W.2d 576, 583 (Tenn. Crim. App. 1991).

Recognition of this error is necessary to prevent manifest injustice and to do

substantial justice. State v. Adkisson, 899 S.W.2d 626, 638-39 (Tenn. Crim. App.

1994); see also State v. Hoyt, 928 S.W.2d 935, 946 (Tenn. Crim. App. 1995) (finding

that State’s failure to elect offenses was plain error); State v. Phillip Franklin Moore,

No. 01C01-9409-CC-00317, slip op. at 1 (Tenn. Crim. App., Nashville, Aug. 9, 1996)

(finding that the State’s failure to elect offenses constituted plain error). As an

exercise of our discretion, we have chosen to address this issue. Tenn. R. Crim. P.

52(b); Tenn. R. App. P. 13(b).

         Election of offenses is necessary to protect several important interests of a

defendant. It enables a defendant to prepare and defend against the specific

charges; it protects the defendant from double jeopardy; and election ensures



                                              10
unanimity of the jury verdict. State v. Burlison, 501 S.W.2d 801, 804 (Tenn. 1973).

While all of these interests are crucial, the true import of this doctrine is its protection

of a defendant’s constitutional right to jury unanimity. See Tidwell v. State, 922

S.W.2d 497, 501 (Tenn. 1996). Entitlement to jury unanimity encompasses not only a

right that the jury be unanimous as to which offense constitutes the crime for which

the defendant is convicted, but also a right to unanimity regarding the specific act or

acts which constitute the offense. Brown, 823 S.W.2d at 582. To protect this right of

the defendant, a trial court has a duty to require the State to elect the particular

offenses upon which it relies for conviction and to instruct the jury so that the verdict of

every juror will be united on one offense. Burlison, 501 S.W.2d at 804. See also

Shelton, 851 S.W.2d at 136.

       Often challenges to jury unanimity arise in the context of child sexual abuse

cases where the evidence suggests that a defendant has committed many sexual

crimes against the victim, but the proof lacks specific, identifying details. See e.g.

Tidwell, 922 S.W.2d 497; Shelton, 851 S.W.2d 134; Burlison, 501 S.W.2d 801; State

v. Hoyt, 928 S.W.2d 935 (Tenn. Crim. App. 1995). When the State presents proof on

many offenses within an alleged time period, but neglects election, the jury is allowed

to “reach into the brimming bag of offenses and pull out one for each count.” Tidwell,

922 S.W.2d at 501. In such cases, the trial court must require the State to elect the

particular offenses for which convictions are sought. Shelton, 851 S.W.2d at 137.

When election does not occur, there is no assurance that the jury will deliberate over

the particular charged offenses, thereby creating a risk that the jury will render a

“patchwork verdict” based on different offenses in evidence. Id. (citing Brown, 823

S.W.2d at 583). In essence, the jury is permitted to select for itself the offenses on

which it will convict, resulting in a “grab-bag theory of justice” where juror unanimity is

questionable. See Shelton, 851 S.W.2d at 137; Tidwell, 922 S.W.2d at 501. This is

contrary to contemporary notions of justice. See id. at 501-02. A conviction that is not

unanimous as to the defendant’s specific illegal action is no more justifiable than a

                                             11
conviction by a jury that is not unanimous on a specific count. Brown, 823 S.W.2d at

583 (quoting United States v. Beros, 833 F.2d 455, 462 (3d Cir. 1987)).

       In appellant’s case, the only mention of unanimity in the trial court’s charge was

one sentence advising that “the verdict must be unanimous.” The trial court failed to

ensure that the jury would deliberate over the particular charged offense. Shelton,

851 S.W.2d at 137. When, as here, the State presents evidence of numerous

offenses, the trial court must augment the general unanimity instruction to insure that

the jury understands its duty to agree unanimously to a particular set of facts. Brown,

823 S.W.2d at 583. A skeletal instruction on unanimity ferments a strong possibility of

a composite jury verdict in violation of an appellant’s constitutional rights. State v.

Forbes, 918 S.W.2d 431, 447 (Tenn. Crim. App. 1995).

       As recently as December 22, 1997, our supreme court, in a case involving

multiple sexual offenses alleged to have been committed upon a young female, found

it to be plain error requiring a new trial where the State failed to properly elect the

offenses for which convictions were sought. State v. Walton, No. 02S01-9606-CC-

0002 (Tenn. at Jackson, Dec. 22, 1997). Speaking for a unanimous court, Justice

Birch said:

       In cases such as this one where the evidence suggests that the
       defendant has committed many sexual offenses against a victim, the trial
       court must require the State to elect the particular offenses for which
       convictions are sought in order to ensure that the jury verdict is
       unanimous. State v. Shelton, 851 S.W.2d 134, 137 (Tenn. 1993). This
       requirement is “fundamental, immediately touching the constitutional
       rights of an accused . . . .” Burlison v. State, 501 S.W.2d 801, 804
       (Tenn. 1973). As we stated in Shelton, “the purpose of election is to
       ensure that each juror is considering the same occurrence. If the
       prosecution cannot identify an event for which to ask a conviction, then
       the court cannot be assured of a unanimous decision.” Shelton, 851
       S.W.2d at 138.

See slip op. at 5. As an inferior court, we are bound by the rulings of our supreme

court. Therefore, a new trial is mandated for this appellant.

       Moreover, the criminal responsibility theory pursued by the State magnifies this

error. In charging under this theory, the State predicated appellant’s liability upon


                                             12
three different sections of the statute, each requiring proof of different elements of

culpability. When considered in this light, this court is unable to conclude that the jury

unanimously agreed on each count as to the factual proof and the requisite level of

mental culpability required under the statute. The permutations that support valid

convictions here are varied and several, and such potential for variation does not

satisfy the constitutional requirement for jury unanimity. Brown, 823 S.W.2d at 583

(quoting Beros, 833 F.2d at 462).

                               III. SUFFICIENCY OF THE EVIDENCE

        Appellant also challenges the sufficiency of the convicting evidence presented

at trial. She alleges that the proof did not support the requisite mental state for each

instance of criminal responsibility as charged in the indictment. We are unable to

make a determination on this issue.

         When the State fails to elect offenses, it hinders appellate review of the

sufficiency of the evidence. See Tidwell, 922 S.W.2d at 501; Shelton, 851 S.W.2d at

138; Brown, 823 S.W.2d at 584. Neither the trial court functioning as a thirteenth

juror, nor this court on review, can be certain which evidence was matched by the jury

to each count. Tidwell, 922 S.W.2d at 501. Perhaps it would have been possible in

this case for a rational trier of fact to find the elements of at least one or more of the

offenses beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979). However, this possibility alone does not tell us whether

the jury was unanimous on what evidence justified the convictions. Brown, 823

S.W.2d at 584. Thus, we cannot discharge our function properly and we decline to

address this issue.4 For the same reason, we also decline to review the propriety of

the trial court’s overruling the appellant’s motion for acquittal.


        4
          On retrial, the State should be guided by the principles of criminal responsibility as stated by our
supreme court in State v. Jubal Carson, No. 03-S-01-9606-00063 (Tenn. at Knoxville, August 4, 1997)
(for publication). In Carson, the supreme court adopted the “natural and probable consequences rule”
from the c om mo n law perta ining t o aide rs an d abe ttors . Slip o p. at 1 0. Th e cou rt also state d tha t in
order to sustain a conviction under subsection (2) of the criminal responsibility statute, the defendant
“must knowingly, voluntarily, and with common intent unite with the principal offenders in the commission
of the crime.” Slip op. at 7 (quoting State v. Foster, 755 S.W .2d 846, 8 48 (Te nn. Crim . App. 198 8)).

                                                       13
                                IV. ACCESS TO VICTIM

       The appellant next argues that it was error for the trial court to refuse her

counsel access to the victim in preparation for trial. The record reflects that counsel

attempted to interview the victim, but was not permitted by the child’s custodians to do

so. He then petitioned the court for an order allowing him access to her. The court

refused to order the victim to communicate with counsel against the foster parent’s

wishes.

       All prospective trial witnesses have the discretion to talk or not to talk with

counsel of either side. State v. Singleton, 853 S.W.2d 490, 493 (Tenn. 1993). This

prevents a trial court from ordering a witness to communicate with counsel. However,

it is necessary for opposing counsel to have “access” to the witness. Id. (quoting

Gammon v. State, 506 S.W.2d 188, 190 (Tenn. Crim. App. 1974)). This does not

ensure an actual interview, but permits counsel to request one and the witness to

decide independently. Id. Here, the trial court properly declined to order the victim to

communicate with appellant’s counsel, as it did not have authority. To order such

communication, however, the trial court protected appellant’s right of “access” to the

victim by advising the victim’s foster parents that they had the discretion to permit an

interview. The foster parents’ decision to refuse to grant an interview was fully within

their discretion and the trial court committed no error.




                       V. ADMISSIBILITY OF PHOTOGRAPHS

       Appellant also contests the admission of several photographs. During the

Sheriff’s testimony, the State introduced several pornographic photos depicting both

appellant and the victim exposing intimate body parts in identical poses. These

pictures were taken approximately six months prior to the time frame in the indictment

and appellant argues that they are irrelevant. In the alternative, she argues the



                                            14
probative value of the photos was substantially outweighed by the danger of unfair

prejudice. We find no error.

        The admissibility of photographic evidence is within the sound discretion of the

trial court. State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978). Admissibility, of

course, hinges upon relevance and also a determination that the probative value of

the photographs is not outweighed by the danger of unfair prejudice. Id.; see also

Tenn. R. Evid. 401, 403. The photographs were relevant in proving the mens rea of

the offenses because they demonstrate that appellant was aware, over a period of

time, that sexual abuse and irregular activities were occurring in her home.

Appellant’s knowledge of such activity and the atmosphere in the home was relevant

to prove her culpability under the criminal responsibility statute.

        We do not believe the probative value was outweighed by the risk of prejudice.

From the testimony, the jurors learned that the photos were taken outside the time

specified in the indictment. The trial court instructed the jury that the photographs

were relevant for a limited purpose only and that it should consider them only in

relation to the charged offenses and not as evidence of other crimes. This instruction

minimized the risk of prejudice and was relevant in considering admissibility of

evidence under Rule 403. Neil P. Cohen et al, Tennessee Law of Evidence §403.7 at

156 (3d. ed. 1995). We find no abuse of discretion.5

        Appellant also asserts that the pictures were not properly authenticated.

Authentication is achieved if there is evidence sufficient to demonstrate to the trier of

fact that the matter in question is what its proponent claims. Tenn. R. Evid. 901(a).

One permissible method of authentication is by a witness with knowledge. Tenn. R.

Evid. 901(b)(1). The photographs here were properly authenticated.

        In order to authenticate the photographs, it was necessary to demonstrate that

they were actually of appellant and her daughter. The Sheriff testified that he


        5
         Had the appellant objected to the admissibility of the pictures because they were evidence of
other crimes, i.e. child pornography, this would be a closer question. Tenn. R. Evid. 404(b).

                                                  15
discovered the pictures during a search of the Leath home and found them in a

drawer in the master bedroom. Appellant was questioned about the pictures during

her statements and she admitted that the pictures were of her and her daughter and

that she had taken at least one of them. This proof was sufficient to ensure the

pictures were authentic. State v. Williams, 913 S.W.2d 462, 465 (Tenn. 1995).

                 VI. ADMISSIBILITY OF VIDEOTAPED INTERVIEW

      Appellant alleges that the trial court committed error by allowing the introduction

of a videotaped interview conducted by a news reporter while she was in the booking

room of the jail. She claims that the videotape was inadmissible due to irrelevancy

and a lack of authentication. Additionally, she asserts that the news reporter was

acting as an agent of the state in questioning her, thus subjecting her to custodial

interrogation without the benefit of Miranda warnings. On this basis, she argues that

the tape should have been suppressed. This issue is without merit.

      First, the videotape was properly authenticated. At trial, the Sheriff, who was

present during the taping of the interview and is depicted on the tape, served as a

witness with personal knowledge of the tape’s contents to provide the necessary

foundation and authentication of the videotape. See Tenn. R. Evid. 901(b)(1);

Williams, 913 S.W.2d at 465. Furthermore, the videotape was relevant. It included

several admissions by the appellant concerning the occurrence of knowledge of

sexual criminal conduct, as well as providing the time frame covered by the

indictment.

      Further, the record provides no reason to suppress the videotape. It is true that

statements which are a product of custodial interrogation given without the proper

warnings must be suppressed. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602,

16 L.Ed.2d 694 (1966). However, the type of interrogation prohibited by Miranda must

be initiated by a law enforcement official. State v. Anderson, 937 S.W.2d 851, 853

(Tenn. 1996). The questioning in the videotape was performed by a television news



                                           16
reporter, not a law enforcement official. W e find no evidence to support appellant’s

claim that the news reporter was acting as an extension of the Macon County Sheriff’s

Department. Appellant made no showing that the reporter acted at the behest of the

Sheriff or any other State agent. Therefore, the tape was properly admitted.




                                          17
                                VII. EXCULPATORY EVIDENCE

        Appellant maintains that the trial court failed to order the State to provide her

with exculpatory evidence. This assertion is incorrect. The trial record indicates that

the trial court issued an order for the State to provide appellant with exculpatory

evidence. Additionally, appellant contends that the State failed to provide certain

exculpatory evidence. Specifically, appellant argues that the State possessed

information that she had told someone in the community that she suspected her

husband of abusing her daughter. She argues that this statement was exculpatory

evidence and the State’s failure to disclose it violated her right to a fair trial under

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

        In order to substantiate a due process violation under Brady, an appellant must

demonstrate: (1) the State suppressed information; (2) the information must have

been favorable to the accused; and (3) the information must have been material. 6

State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995) (citations omitted); see also State

v. Philpott, 882 S.W.2d 394, 402 (Tenn. Crim. App. 1994); State v. Marshall, 845

S.W.2d 228, 232 (Tenn. Crim. App. 1992).

        Appellant asserts that the Sheriff initially learned of improper sexual activity in

the Leath household from a man named John Kenney. Purportedly, appellant told

Kenney that she believed her husband was “messing with” D.L. Apparently, the

State’s investigation followed the disclosure of appellant’s comments to Mr. Kenney.

Appellant claims the State never told her that it possessed that information, which, she

says, is tantamount to suppression of exculpatory evidence. We fail to see how the

information was exculpatory of appellant. If anything, it implicated the appellant by

revealing her knowledge of these offenses, which was relevant in assessing her

criminal responsibility. Furthermore, it is unusual that appellant would claim that the

        6
          An additional requirement, that the defendant request the information, was also discussed by
our sup rem e court. Edg in, 902 S.W.2d at 389. The record reflects that appellant did request such
information. Moreover, the necessity for such a request has been obviated somewhat by the United
States S uprem e Cou rt. Kyles v. Whitley, 514 U.S. ___, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (holding
that the tes t for ma teriality applies irres pective o f a reque st).

                                                  18
State suppressed information that she provided to Kenney. If appellant made the

statement to Kenney, she obviously was aware of it. The prosecution has no duty to

disclose evidence that the defendant already possesses. Marshall, 845 S.W.2d at

233 (citations omitted). Therefore, no Brady violation occurred in appellant’s case.

                               VIII. JURY INSTRUCTIONS

       Appellant also maintains that the jury charge violated her constitutional right to

due process of law. Appellant failed to lodge an objection to the jury charge at trial.

Her counsel was given an opportunity to review the charge and made no objection on

the record. Therefore, we must consider the issue waived. State v. Black, 924

S.W.2d 912, 916 (Tenn. Crim. App. 1995), perm. to app. denied (Tenn. 1996); see

Tenn. R. App. P. 36(a). Furthermore, appellant’s discussion of this issue in her brief is

wholly inadequate. She has failed to cite specific portions of the charge and makes

blanket assertions not supported by authority. We decline to review the issue. Ct.

Crim. App. R. 10(b); State v. Killebrew, 760 S.W.2d 228, 231 (Tenn. Crim. App. 1988).

                                      IX. RECUSAL

       Appellant contends that the trial judge erred in failing to recuse himself. She

alleges that he was biased in favor of the State and failed to adequately rule on

motions filed by the appellant. In addition, she argues that the trial was unfair,

prejudicial, and biased. There is no merit to this issue.

       The decision to grant a motion of recusal rests within the sound discretion of

the trial judge. State v. Smith, 906 S.W.2d 6, 11 (Tenn. Crim. App. 1995) (citations

omitted); Caruthers v. State, 814 S.W.2d 64, 67 (Tenn. Crim. App. 1991) (citations

omitted). A clear abuse of this discretion must appear on the face of the record before

we will interfere with the trial court’s decision. Id. Recusal is proper if the judge’s

impartiality might reasonably be questioned, if he has personal bias or prejudice

concerning a party, or if he has personal knowledge of disputed evidentiary facts.

Tenn. S. Ct. R. 10, Code of Judicial Conduct, Canon 3(C)(1)(a); Smith, 906 S.W.2d at



                                             19
11-12. We find nothing in the record to indicate that the trial judge had any personal

knowledge about the disputed facts in appellant’s case, that his impartiality was

questionable, or that he exhibited any personal bias or prejudice. Furthermore, it is

relevant that the trial judge specifically denied his bias on the record. See Omohundro

v. State, 109 S.W.2d 1159, 1164 (Tenn. 1937) (holding that a trial judge’s denial of

such allegations under his official oath ends the inquiry). See also Caruthers, 814

S.W.2d at 67 n.11. The trial court did not commit error in denying this motion.

Similarly, our review of the record does not demonstrate that the trial was unfair,

prejudicial, or biased.



                                     X. SENTENCING

       Finally, appellant argues that her sentence is improper. She asserts that the

trial court failed to apply appropriate mitigating factors, improperly applied

enhancement factors, and erroneously ordered consecutive sentences. To assist the

trial court in the event the new trial results in a conviction, we will address this issue to

the extent possible given the present state of the record on appeal.

       When a defendant challenges his or her sentence, we must conduct a de novo

review of the record. Tenn. Code Ann. §40-35-401(d) (1990). The sentence imposed

by the trial court is accompanied by a presumption of correctness and the appealing

party carries the burden of showing that the sentence is improper. Tenn. Code Ann.

§40-35-401 Sentencing Commission Comments. This presumption, however, is

conditioned upon an affirmative showing in the record that the trial court considered

the sentencing principles and all relevant facts and circumstances. State v. Ashby,

823 S.W.2d 166, 169 (Tenn. 1991).

       The trial court sentenced appellant, a Range I offender, to an effective

sentence of sixty (60) years in the Department of Correction. On the two counts of

child rape, she received twenty (20) years each and on the two counts of aggravated



                                             20
sexual battery, she received ten (10) years each. The sentences for these Class A

and Class B felonies are at the midpoint of their appropriate ranges. See Tenn. Code

Ann. §40-35-112 (1990). As reflected on the record, the trial court considered

mitigating and enhancing factors. It found no evidence of mitigating factors, but

applied three enhancement factors. The trial court held that appellant was a leader in

the commission of the offenses, that she abused a position of private trust, and that

the crimes were committed under circumstances where the potential for bodily injury

to the victim was great. See Tenn. Code Ann. §40-35-114(2), (15), (16) (Supp. 1996).

The trial court’s order of consecutive sentences was supported by the sexual offender

section of the statute. Tenn. Code Ann. §40-35-115(a)(5) (1990).

       We find, as the trial court did, that no mitigating factors are applicable.

Appellant argues that she played a minor role in the offenses and that she acted

under the domination of her husband. See Tenn. Code Ann. §40-35-113(4), (12)

(1990). There simply is no evidence in the record to support her position. W ith regard

to the enhancement factors, there is no question that appellant abused a position of

private trust. Tenn. Code Ann. §40-35-114(15) (Supp. 1996). Appellant is the victim’s

mother and entrusted with her care.

       Unfortunately, we are unable to determine whether other enhancement factors

would apply due to the nature of the convictions. For example, the trial court stated

that the circumstances of the offense reflected that the potential for bodily injury was

great where an adult male achieved penile penetration of a six-year-old child. While

we agree with that reasoning, there is nothing in the record to reflect that the jury so

found. As discussed, none of the verdicts indicate that the jury convicted appellant of

her criminal responsibility for her husband’s vaginal rape of a child. If the conviction

reflected such factual findings, this factor would certainly be applicable. In addition,

we do not find that the record supports a finding that appellant was a leader in the

commission of the offenses. Finally, consecutive sentencing may be appropriate if

appellant is again convicted of two or more sexual crimes and there is proof

                                            21
supporting the circumstances outlined in this enumerated factor. See Tenn. Code

Ann. §40-35-115(a)(5) (1990).

                                   XI. CONCLUSION

       We find that the cumulative errors that occurred at the trial court below require

reversal of the convictions and that appellant receive a new trial. From a thorough

review of the record, we are unable to determine what factual allegations supported

each count of the indictment and therefore supported the jury’s verdicts. The lack of a

bill of particulars and the State’s failure to elect offenses deprived appellant of her

constitutional right to a unanimous jury verdict, thus warranting reversal of her

convictions. If the appellant could legally be convicted of these offenses based on

evidence that she was a totally irresponsible mother who incredibly allowed atrocious

acts to be perpetrated against her child, we would have no hesitation in affirming her

convictions and her sentences. Nevertheless, the Constitution guarantees every

citizen of our state, including Judy C. Leath, a fair trial. Although the members of this

Court are shocked and sickened by the moral depravity reflected in this record, our

function is to determine whether appellant violated the statutes under which she was

convicted and whether she was afforded the constitutional safeguards to which she is

entitled. State v. VanArsdall, 918 S.W.2d 626, 629 (Tenn. Crim. App. 1995). Under

the circumstances of appellant’s case, we cannot so conclude and a new trial is

ordered.




                                            22
                                    _______________________________
                                    William M. Barker, Judge



____________________________
David H. Welles, Judge



____________________________
Jerry L. Smith, Judge




                               23
