IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED AUGUST 1998 SESSION January 8, 1999
Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) ) NO. 03C01-9708-CC-00367 Appellee, ) ) ANDERSON COUNTY VS. ) ) HON. JAMES B. SCOTT, JR., JEFFREY R. ALLEN and ) JUDGE JENNINGS MICHAEL COEN, ) ) Appellants. ) (Attempted Rape)
FOR THE APPELLANTS: FOR THE APPELLEE:
CHRISTOPHER VAN RIPER JOHN KNOX WALKUP (Attorney for Appellant Allen) Attorney General and Reporter 300 Market Street, Suite 200 Clinton, TN 37716 MICHAEL J. FAHEY, II Assistant Attorney General NANCY MEYER Cordell Hull Building, 2nd Floor (Attorney for Appellant Coen) 425 Fifth Avenue North Asst. District Public Defender Nashville, TN 37243-0493 101 S. Main St., Suite 450 Clinton, TN 37716 JAMES N. RAMSEY District Attorney General
JAN HICKS Assistant District Attorney General 127 Anderson County Courthouse Clinton, TN 37716
OPINION FILED:
REVERSED AND REMANDED
JOE G. RILEY, JUDGE OPINION
The defendants, Jeffrey R. Allen and Jennings Michael Coen, appeal as
of right their convictions of attempted rape by an Anderson County jury. Allen
was sentenced to ten (10) years as a Range III, persistent offender. Coen was
sentenced to four (4) years as a Range I, standard offender. On appeal, the
appellants raise the following issues for review:
(1) whether the proof adduced at trial was sufficient to sustain the attempted rape convictions;
(2) whether the defendants were denied exculpatory evidence;
(3) whether the trial court erred in denying a new trial based on newly discovered evidence;
(4) whether the trial court properly instructed the jury on the lesser offense of attempted rape;
(5) whether the trial court erred instructing the jury as to the release eligibility date for Allen;
(6) whether Allen was properly classified as a persistent offender; and
(7) whether facsimiles of certified judgments were properly admitted in Allen’s sentencing hearing.
Upon an extensive review of the record, we REVERSE the judgment of the trial
court and REMAND for a new trial.
I.
The victim lived in a duplex apartment. Her neighbor, Jerry Wilcox, invited
co-workers from a local restaurant to his apartment for a party on August 23,
1994. One of the defendants, Jennings Michael “Mike” Coen, was a co-worker
of Wilcox and attended the party with his friend Jeffrey Allen, the other
defendant. The victim arrived at the party at approximately 1:00 a.m.
The party was noisy, and neighbors called the police several times to
2 complain. After several visits by officers, the party ended. Everyone left the
apartment except for Wilcox, the victim, and a friend of Wilcox’s, Brian Fisher.
Wilcox and Fisher decided to buy more beer. They left the victim alone in the
apartment. As he was leaving, Wilcox noticed the defendants standing by
Coen’s car.
According to the victim, the defendants then re-entered the apartment and
accosted the victim. They forced her into Wilcox’s bedroom, and while Allen
held her down, Coen removed her shorts and underwear. The victim informed
the defendants that she was menstruating, and Coen responded by pulling out
the victim’s tampon and throwing it across the room. Allen placed his hand over
the victim’s mouth in order to quiet her cries for help. The victim testified she bit
Allen’s hand in an attempt to free herself. The victim further testified that both of
the defendants attempted to force her to perform oral sex, and that both
penetrated her vagina and anus with their fingers.
When Wilcox returned, he noticed the door to his bedroom was closed.
Initially thinking the defendants and the victim were engaged in a voluntary
sexual encounter, Wilcox did nothing. However, shortly thereafter, W ilcox heard
the victim scream. He forced open the door to his bedroom and found Allen
sitting on the floor, holding his hand over the victim’s mouth. Coen, who had
been blocking the door, stated to Wilcox, “We’re going to teach the whore a
lesson.”
Wilcox retreated to the kitchen to enlist the aid of Fisher. Wilcox returned
to the bedroom with Fisher, again having to force it open. Wilcox told the
defendants to leave, which they did. On their way out, the defendants instructed
Wilcox to remain quiet about the incident.
A neighbor had heard the earlier screaming and called the police. Shortly
3 after the defendants left, police officers arrived at the apartment.
The medical evidence offered by the state established the presence of
bruising on the victim’s inner thigh. The bruising was probably caused within two
(2) days of the examination. The medical examination did not reveal any
evidence of trauma to the vagina or anus.
The defense presented the testimony of Coen and several other persons
present at Wilcox’s apartment. Tressa Vowell and Aaron House testified that the
alleged victim was “very drunk” and “very flirtatious” that night. They described
her as wearing “short shorts” and a “tank top” that exposed her breasts. The
witnesses testified that the alleged victim was “flirting with, touching, whispering
things” to males in the apartment. Vowell further testified that she saw bruises
on the victim’s arms and inner thighs that night prior to the alleged sexual attack.
Both Vowell and House testified they remained outside the apartment until
Wilcox returned and heard nothing unusual from inside. Bronson Woods,
another party attendee, testified essentially the same as Vowell and House.
Defendant Coen testified that after everyone else left the apartment, the
victim waved him into Wilcox’s bedroom where she was kissing Allen. The victim
advised Coen she had a tampon. When Coen removed it, the victim began to
scream that she was being raped. Coen stated he and Allen panicked, and Allen
covered the victim’s mouth. Allen was trapped under the victim at this time. It
was at this time that Wilcox entered the room.
The jury was charged as to the indicted offense of aggravated rape and
the lesser offenses of attempted aggravated rape, rape, attempted rape and
assault. A guilty verdict was returned for attempted rape.
II.
4 The defendants initially challenge the sufficiency of the evidence. They
contend no rational trier of fact could have found them guilty of attempted rape
as there was no evidence presented at trial that they were cooperating in an
unlawful attempt to penetrate the victim.
In determining the sufficiency of the evidence, this Court does not reweigh
or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.
1978). A jury verdict approved by the trial judge accredits the state's witnesses
and resolves all conflicts in favor of the state. State v. Bigbee, 885 S.W.2d 797,
803 (Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). On appeal,
the state is entitled to the strongest legitimate view of the evidence and all
legitimate or reasonable inferences which may be drawn therefrom. Id. This
Court will not disturb a verdict of guilt due to the sufficiency of the evidence
unless the defendant demonstrates that the facts contained in the record and the
inferences which may be drawn therefrom are insufficient, as a matter of law, for
a rational trier of fact to find the accused guilty beyond a reasonable doubt.
State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996). Accordingly, it is
the appellate court's duty to affirm the conviction if the evidence, viewed under
these standards, was sufficient for any rational trier of fact to have found the
essential elements of the offense beyond a reasonable doubt. Tenn. R. App. P.
13(e); Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 2789, 61 L. Ed.2d
560 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994).
In order to convict the defendants of attempted rape, the state was
required to prove that the defendants acted with an intent to commit rape and
committed a substantial step towards the unlawful sexual penetration of the
victim through the use of force. Tenn. Code Ann. §§ 39-12-101(a)(3); 39-13-
503(a)(1). Whether a defendant has committed a “substantial step” depends on
the circumstances surrounding the offense. See State v. Reeves, 916 S.W.2d
5 909, 912 (Tenn. 1996).
In a light most favorable to the state, the evidence showed the defendants
held the victim down, stripped her from the waist down, and then removed her
tampon. According to the victim, both attempted to force her to perform oral sex.
This testimony was sufficient to support the conviction for attempted rape as to
both defendants. There was also testimony from the victim that the defendants
penetrated her vaginally and anally. It is no defense to a prosecution for criminal
attempt that the offense attempted was actually committed. Tenn. Code Ann. §
39-12-101(c).
Although the testimony presented by the defense was inconsistent with an
attempted rape, it was for the jury to determine the credibility of the witnesses.
In a light most favorable to the state, the evidence was sufficient to support the
convictions.
This issue is without merit.
III.
A.
The defendants’ second issue relates to their pre-trial motion for the
disclosure of any exculpatory information contained in records of the victim’s
treatment in mental health institutions. The records were subpoenaed by the
trial court. The trial court placed the records under seal, reviewed them in
camera, and found they could contain exculpatory information. The trial court
asked the prosecuting attorney to review the records in detail for exculpatory
evidence since the trial court did not have sufficient knowledge of the facts to
make a proper determination of relevancy.
6 The prosecuting attorney did not comply with the trial court’s request,
subsequently citing her concern for the victim’s privacy. Defense counsel
continued to request exculpatory evidence in these records at subsequent
hearings. The prosecuting attorney never examined them. As a result, the
records remained under seal and were never made available to defense counsel.
B.
Records of patients in mental health facilities are to be kept confidential,
subject to certain exceptions. Tenn. Code Ann. § 33-3-104(10)(A)(Supp. 1998).
One exception allows a court to order disclosure where the failure to make
disclosure would be contrary to public interest or detrimental to either party to the
proceedings. Tenn. Code Ann. § 33-3-104(10)(A)(iv)(Supp. 1998). Due process
requires the disclosure of any exculpatory evidence that might be contained in
such records. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d
215 (1963).
Before an accused is entitled to relief for the state’s failure to reveal
evidence, the accused must establish several prerequisites: (a) the prosecution
must have suppressed the evidence; (b) the evidence suppressed must have
been favorable to the accused; and (c) the evidence must have been material.
See United States v. Bagley, 473 U.S. 667, 674-75, 105 S. Ct. 3375, 3379-80,
87 L. Ed. 2d 481, 489 (1985); Brady v. Maryland, 373 U.S. at 87, 83 S.Ct. at
1196-97; State v. Edgin, 902 S.W.2d 387, 390 (Tenn. 1995). Evidence is
considered material only if there is a reasonable probability that, had the
evidence been disclosed to the defense, the results of the proceeding would
have been different. Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131
L.Ed.2d 490 (1995); State v. Edgin, 902 S.W.2d at 390.
C.
7 We have examined the records under seal and conclude they contain
exculpatory evidence of an impeaching nature that is favorable to the
defendants. See United States v. Bagley, 473 U.S. at 674, 105 S.Ct. at 3379, 87
L.Ed.2d at 489. The medical and psychological history of the victim was relevant
to the defense raised by the defendants. The facts of this case as well as the
nature of the records are very similar to those in State v. Brown, 552 S.W.2d 383
(Tenn. 1977). Just as in Brown, the defendants were entitled to see the records.
Some of the medical records were subpoenaed from private sources.
However, one source, Lakeshore Mental Health Institute, is a state facility. See
Tenn. Code Ann. §§ 4-3-1603(a); 33-2-101(a)(1). Records from this agency
contain exculpatory information. Ordinarily, the trial court has the obligation to
examine the records of private agencies. See State v. Fox, 733 S.W.2d 116,
118 (Tenn. Crim. App. 1987). However, the District Attorney General represents
the state and Lakeshore is a state agency. Brown, 552 S.W.2d at 385. Thus,
the state had a responsibility to examine those records for any exculpatory
evidence upon being requested by the trial court to do so. Id.; see also Foster v.
State, 942 S.W.2d 548, 550 (Tenn. Crim. App. 1996).
For the above reason, this Court need not address the issue of whether
the trial court had the authority to request that the District Attorney General’s
office review the records of private institutions for exculpatory evidence once
they were subpoenaed and were within the jurisdiction of the court. Regardless,
the trial court could properly request the District Attorney General’s office to
review the records of the state institution for exculpatory information.
A “hear no evil, see no evil” attitude is inconsistent with prosecutorial
responsibilities. As the United States Supreme Court noted in Kyles v. Whitley,
. . . a prosecutor anxious about tacking too close to
8 the wind will disclose a favorable piece of evidence. See Agurs, 427 U.S. at 108, 96 S.Ct. 2392, 49 L.Ed.2d 342 (“[T]he prudent prosecutor will resolve doubtful questions in favor of disclosure”). This is as it should be. Such disclosure will serve to justify trust in the prosecutor as “the representative . . . of a sovereignty . . . whose interest . . . in a criminal prosecution is not that it shall win a case, but that justice shall be done.” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed.2d 1314 (1935). And it will tend to preserve the criminal trial, as distinct from the prosecutor’s private deliberations, as the chosen forum for ascertaining the truth about criminal accusations. See Rose v. Clark, 478 U.S. 570, 577-78, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986); Estes v. Texas, 381 U.S. 532, 540, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); United States v. Leon, 468 U.S. 897, 900-901, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)(recognizing general goal of establishing “procedures under which criminal defendants are ‘acquitted or convicted on the basis of all the evidence which exposes the truth’”(quoting Alderman v. United States, 394 U.S. 165, 175, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969)). The prudence of a careful prosecutor should not therefore be discouraged.
514 U.S. at 439-440, 115 S.Ct. at 1568-1569, 131 L.Ed.2d at 509.
At the very least the District Attorney General’s office should have
examined the Lakeshore records and revealed exculpatory evidence. Likewise,
the trial court should have revealed to defense counsel the Lakeshore and other
records subpoenaed as their impeaching character was evident. The
defendants were in a “catch-22.” The defendants did everything possible to
secure this exculpatory evidence but were unsuccessful.
D.
Although the evidence was sufficient to support the convictions when
viewed in a light most favorable to the state, we note the case primarily turned on
the credibility of the victim. The medical evidence was inconclusive. According
to the testimony, the bruising could have been caused up to two (2) days before
the examination. Furthermore, there was no medical evidence of trauma to the
vagina or anus. The jury was charged as to aggravated rape, the elements of
9 which were established by the testimony of the victim. The jury was also
charged as to the lesser offenses of attempted aggravated rape, rape, attempted
rape, and assault. Yet, the jury rejected the first three charges and found the
defendants guilty of attempted rape.
We conclude the reports withheld from the defendants were material.
Admittedly, we do not know if the jury would have reached a different result with
the additional evidence. However, the defendants have shown a reasonable
probability that, had this evidence been disclosed, the results of their trial would
have been different. See Kyles v. Whitley, 514 U.S. at 419; 115 S.Ct. at 1566,
131 L.Ed.2d at 518; State v. Edgin, 902 S.W.2d at 390.
The trial judge predicted before the trial that these records might contain
exculpatory evidence which could lead to a reversal of a conviction. The trial
judge was correct. The defendants were deprived of evidence material to their
defense. Accordingly, we must reverse and remand for a new trial on the charge
of attempted rape. All records currently under seal shall be disclosed to the
defendants.
IV.
In their next issue, the defendants contend the trial court erred in failing to
grant a new trial based on newly discovered evidence. We agree.
Following the trial of this case, but before the hearing on the motion for
new trial, the victim appeared in court for a preliminary hearing on a DUI charge.
At that hearing, the victim’s attorney stated to the court that the victim has had
“no less than six specific diagnoses of a mental health nature,” to include
psychotic behavior. At the hearing on the motion for new trial, defendants
argued this newly discovered evidence warranted a new trial. The trial court
10 disagreed, stating:
But basically I understand what you are saying to me as it relates to this victim, who comes in here with a mental profile. As to whether or not that victim’s mental profile should be made available so you could cross-examine her about maybe any delusions or hallucinations or any other reports or anything like that. I don’t believe it was available in her file - those things are under seal. The court of appeals can look at them.
The issues of failure to divulge exculpatory evidence and newly
discovered evidence are intertwined. The newly discovered evidence is a part of
the same exculpatory evidence sought by the defendants pre-trial. The newly
discovered evidence relating to the psychiatric and mental health history of the
victim was contained in the records under seal.
In seeking a new trial based on newly discovered evidence, there must be
a showing that defendant and his counsel exercised reasonable diligence in
attempting to discover the evidence, and that neither the defendant nor his
counsel had knowledge of the alleged newly discovered evidence prior to trial.
State v. Nichols, 877 S.W.2d 722, 737 (Tenn. 1994); State v. Singleton, 853
S.W.2d 490, 496 (Tenn. 1993). In addition, there must also be a showing of the
materiality of the testimony, and the trial court must determine whether the result
of the trial would likely be changed if the evidence were produced. Nichols, 877
S.W.2d at 737; Singleton, 853 S.W.2d at 496. The granting or refusal of a new
trial on the basis of newly discovered evidence rests within the sound discretion
of the trial court. State v. Walker, 910 S.W.2d 381, 395 (Tenn. 1995); State v.
Parchman, 973 S.W.2d 607, 610 (Tenn. Crim. App. 1987).
Again, we find the defendants are entitled to a new trial. The defendants
exercised reasonable diligence in seeking this information, but it was denied
them. The case must be remanded for a new trial.
11 V.
In their fourth issue, the defendants contend the trial court erred in
charging the jury, sua sponte, on the lesser offenses of attempt to commit
aggravated rape and attempt to commit rape.
A trial judge has a mandatory duty to charge a lesser included offense,
whether requested or not, if the facts so justify. Tenn. Code Ann. § 40-18-
110(a); State v. Jones, 889 S.W.2d 225, 230 (Tenn. Crim. App. 1994). A
defendant can be convicted of “an offense necessarily included in the offense
charged or of an attempt to commit either the offense charged or an offense
necessarily included therein if the attempt is an offense." Tenn. R. Crim. P. 31(c);
State v. Dale Nolan, C.C.A. No. 01C01-9511-CC-00387, Sequatchie County
(Tenn. Crim. App. filed as corrected July 23, 1997, at Nashville).
The attack upon charging attempted aggravated rape is without merit
since the defendants were not convicted of that offense; thus, they could not
have been prejudiced.
As to attempted rape, we first note that rape is a proper lesser included
offense of the indicted charge of aggravated rape. Thus, pursuant to Tenn. R.
Crim. P. 31(c), attempted rape may be charged if there is evidence to support a
conviction. We have previously determined the evidence was sufficient to
support the guilty verdict for attempted rape. Thus, attempted rape was properly
charged to the jury.
VI.
12 The last three issues presented for review are raised only by the
defendant, Jeffrey Allen. First, the defendant alleges the trial court erroneously
instructed the jury as to range of punishment and minimum release eligibility
dates. Second, the defendant contends the trial court improperly sentenced him
as a Range III, persistent offender. Third, the defendant claims the trial court
erred allowing the state to present facsimiles of certified judgments as proof of
his persistent offender status. Although the issues are pretermitted by our
remand for a new trial, we will address them in the event of an appeal to the
Tennessee Supreme Court.
Defendant Allen complains the trial court erroneously instructed the jury
as to the range of punishment and minimum release eligibility dates. The trial
court instructed the jury as follows:
1. Aggravated rape. A penitentiary sentence in the penitentiary for fifteen to twenty-five years, and a fine may be imposed not to exceed $50,000.
2. Attempt to commit aggravated rape. A penitentiary sentence of eight to twelve years, and a fine may be imposed up to $25,000.
3. Rape. A penitentiary sentence of eight to twelve years, and a fine may be imposed up to $25,000.
4. Criminal attempt to commit rape. A penitentiary sentence of three to six years, and a fine may be imposed up to $10,000.
5. Assault, Part A. A jail sentence may be imposed on Assault, Part A, of eleven months and twenty-nine days, and a fine may be imposed up to $2,500.
6. Assault, Part B. A jail sentence may be imposed of up to six months, and a fine may be imposed not to exceed $500.
You are further informed that the minimum number of years a person sentenced to imprisonment for these offenses . . . must serve before reaching the earliest release eligibility date is:
1. Aggravated rape: 4.5 years.
13 2. Criminal attempt to commit aggravated rape: 2.4 years.
3. Rape: 2.4 years.
4. Criminal attempt to commit rape: 2.4 years.
5. Assault, Part A: Up to seventy-five percent of eleven months and twenty-nine days in jail, or two hundred, seventy-three days in jail.
6. Part B. Up to seventy-five percent of one hundred, eighty days, or one hundred, thirty-five days in jail.
1. Range of Punishment
Defendant Allen was convicted of attempted rape. The trial court’s
instruction regarding the range of punishment for that crime was three (3) to six
(6) years in the penitentiary with a fine up to $10,000. The defendant was
actually facing a much greater sentence as the prosecution had filed a notice to
seek enhanced punishment as a persistent offender based upon Allen’s prior
felony convictions. See Tenn. Code Ann. § 40-35-202. Allen was eventually
found to be a persistent offender, a status which raised the range of possible
punishment to not less than ten (10) years up to fifteen (15) years. Tenn. Code
Ann. § 40-35-112(c)(3).
The Tennessee Supreme Court has held that whatever rights or benefits
the legislature intended for criminal defendants when it passed Tenn. Code Ann.
§ 40-35-201(b)(repealed 1998), would be lost if the defendant were sentenced to
a punishment greater than what the jury finding guilt was instructed would be
imposed. State v. Cook, 816 S.W.2d 322, 327 (Tenn. 1991). The Court held
that to deny a defendant this statutory right constitutes prejudice, rendering the
error reversible.
Thus, the trial court should have instructed the jury that the range of
punishment was three (3) to fifteen (15) years.
14 2. Release Eligibility Date
Similarly, defendant Allen complains the trial court erred in instructing the
jury that the minimum release eligibility date for attempted rape is 2.4 years.
Actually, attempted rape is a Class C felony with a minimum release eligibility
date of 0.9 years less other authorized credits.
Regardless of the trial court’s error, we find Allen suffered no prejudice in
this regard. Allen was convicted of and sentenced to the lowest felony offered to
the jury. The jury was correctly instructed as to the proper misdemeanor
sentences and rejected them. As the defendant faced a possible release date
earlier than the jury was instructed, we find that he is unable to show prejudice
as a result of the instruction. Tenn. R. App. P. 36(b).
Defendant Allen further contends the trial court erred in classifying him as
a Range III, persistent offender. Specifically, he contends the trial court
improperly based his persistent offender status on a Giles County theft charge
which was adjudicated after the instant offense was committed.
The defendant is correct, and the state concedes, that the trial court could
not use his subsequent Giles County conviction to categorize him as a persistent
offender. A “prior conviction” refers to a conviction that has been adjudicated
prior to the commission of the offense for which the sentence is to be imposed.
Tenn. Code Ann. § 40-35-107(b)(1); State v. Blouvett, 904 S.W.2d 111, 113
(Tenn. 1995).
It is clear the prosecutor intended that the subsequent conviction only be
considered for enhancement purposes under Tenn. Code Ann. § 40-35-114.
15 Use of the conviction for that purpose would be entirely proper. This Court has
previously held that a sentencing court can consider criminal convictions or any
other criminal behavior which occurred prior to the sentencing hearing as
constituting a previous history of criminal convictions or criminal behavior,
regardless of whether the convictions or behavior occurred before or after the
criminal conduct under consideration. State v. Burl Jarrett, C.C.A. No. 02C01-
9710-CC-00418, Hardeman County (Tenn. Crim. App. filed August 21, 1998, at
Jackson); State v. Chad Douglas Poole, C.C.A. No. 02C01-9506-CC-00178,
Hardeman County (Tenn. Crim. App. filed January 31, 1996, at Jackson),
affirmed on other grounds, 945 S.W.2d 93 (Tenn. 1997).
Firstly, we are unable to definitely determine from the record whether the
trial court applied the Giles County conviction to establish the persistent offender
status. Although it appeared the trial court was adopting the state’s argument,
the trial court at one point stated “it’s not required in the class 3 that this offense
actually have been committed prior to conviction.”
Secondly, although defendant had seven other prior felony convictions,
three of these were committed on the same date and two others were likewise
committed on the same date. The state was required to prove five or more prior
felony convictions; however, felonies committed as part of a single course of
conduct within twenty-four hours constitute one conviction unless they involve
bodily injury or threatened bodily injury. Tenn. Code Ann. § 40-35-107(a)(1),
(b)(4). All prior offenses were property crimes; thus, the state did not establish
five prior felonies. The state did establish four prior felonies, qualifying
defendant as a Range II, multiple offender.
Should defendant be convicted upon retrial, the defendant can be
sentenced as a Range III, persistent offender, only if the state properly
establishes the prior convictions in accordance with the dictates of Tenn. Code
16 Ann. § 40-35-107.
Defendant Allen’s third sentencing issue is whether the trial court
improperly admitted unverified facsimile copies of his prior convictions. The
convictions were also included in the pre-sentence report prepared by the
probation officer.
Where summary information about the qualifying convictions was
contained in the presentence report but was not otherwise proven by certified
copies of conviction records or otherwise, we have held that the state has proven
range enhancement beyond a reasonable doubt, "'absent a showing that the
report is based on unreliable sources or is otherwise inaccurate.'" State v.
Anthony D. Hines, C.C.A. No. 01C01-9406-CC-00189, Montgomery County
(Tenn. Crim. App. filed May 25, 1995, at Nashville). We also note the probation
officer testified as to the numerous prior convictions. Their accuracy was not
challenged.
For the reasons outlined in the opinion above, the judgment of the trial
court is REVERSED and the case REMANDED for a new trial on the charge of
attempted rape.
_________________________ JOE G. RILEY, JUDGE
CONCUR:
___________________________
17 JOSEPH M. TIPTON, JUDGE
___________________________ THOMAS T. WOODALL, JUDGE
18 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) ) Appellee, ) No. 03C01-9708-CC-00367 ) ) Anderson County v. ) ) Honorable James B. Scott, Judge ) JEFFREY R. ALLEN and ) (Attempted Rape) JENNINGS MICHAEL COEN, ) ) Appellants. )
CONCURRING OPINION
I concur in the results reached and most of the reasoning used in the majority
opinion. However, I question its implication that the district attorney general is
authorized to review medical/mental health records regarding a criminal victim’s
treatment in a state mental health facility without having either prior authorization from
the trial court under T.C.A. § 33-3-104(10)(A)(iv) or prior consent of the victim. The
confidentiality provided by the statute is for the benefit of the mental health patient.
There is no exception for prosecutors when the patient becomes a victim of crime.
Also, I believe that the cases upon which the majority opinion relies do not
authorize the prosecutor to review a victim’s records that are otherwise privileged by
law. In Foster v. State, 942 S.W.2d 548, 550 (Tenn. Crim. App. 1996), this court noted
that a prosecutor has a duty to search reasonable sources for materially exculpatory
information. However, it said nothing about the prosecutor being allowed to invade
confidential records.
19 In State v. Brown, 552 S.W.2d 383 (Tenn. Crim. App. 1977), our supreme court
dealt with the then existing statutory privilege regarding communication between
psychiatrist and patient that allowed disclosure in a criminal case if the mental condition
of the patient was an issue or the trial court determined that the interests of justice
required that the privilege be withheld. The state’s primary witness had been
hospitalized for an extended period of time in a state mental health facility. The issue
related to whether the defendant was entitled to discovery of those records. The
records reflected that she had been treated repeatedly for emotional disturbances of
psychotic proportions.
First, the supreme court determined that the statutory exceptions to the privilege
had been met, partly because the conviction rested upon the testimony of the witness
and her twelve-year-old grandson, and her mental condition would be an issue. It noted
that the psychiatric records had impeachment value. 552 S.W.2d at 385. Then, the
court discussed various options that the trial court had once the defendant’s discovery
motion was presented. Id. at 385-86. Finally, it stated that the trial court should
conduct an in camera inspection of the requested records to determine whether they
have any probative value to the defendant in the preparation of his defense and to the
trial of the case. “The trial judge, in his sound judicial discretion, must be the arbiter of
the probative value -- either as direct evidence or as a source of cross-examination -- of
the findings contained in the report of [the state mental health facility]. Id. at 387.
I believe that the duty in the present case was upon the trial court to determine
by a review of the records whether disclosure was proper under T.C.A. § 33-3-
104(10)(A)(iv). The statutory confidentiality is for the benefit of the victim, and it does
not depend upon whether the victim received treatment in a private or pubic mental
health facility. In this respect, I do not believe that the trial court can delegate its
responsibility to review the records in any fashion to the prosecutor. Obviously, when
20 the prosecution and the defense cooperate procedurally with the trial court, they may
aid the trial court’s understanding of the relevant issues in the case in order that it may
make a more informed review of the records. However, disclosure of the records to
either side pursuant to the statute must follow -- not precede -- the trial court’s
determination that “disclosure is necessary for the conduct of proceedings before it and
that failure to make such disclosure would be contrary to public interest or to the
detriment of either party to the proceedings.” T.C.A. § 33-3-104(10)(A)(iv).
As the majority opinion notes, the record reflects that the trial court reviewed the
records and indicated that it believed them to contain exculpatory information, although
it did not know much about the case. Given the nature of the records, I agree with the
majority opinion that the trial court, at that point, should have disclosed the records to
the parties. However, if the trial court was unsure as to the exculpatory nature of the
records, it was not authorized to disclose them to either party. Obviously, under such
circumstances, it is, as a practical matter, the responsibility of the parties to provide the
trial court with sufficient information to allow it to consider the relevance of the
____________________________ Joseph M. Tipton, Judge
21 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) ) Appellee, ) No. 03C01-9708-CC-00367 ) ) Anderson County v. ) ) Honorable James B. Scott, Judge ) JEFFREY R. ALLEN and ) (Attempted Rape) JENNINGS MICHAEL COEN, ) ) Appellants. )
I concur in the results reached and most of the reasoning used in the majority
opinion. However, I question its implication that the district attorney general is
authorized to review medical/mental health records regarding a criminal victim’s
treatment in a state mental health facility without having either prior authorization from
the trial court under T.C.A. § 33-3-104(10)(A)(iv) or prior consent of the victim. The
confidentiality provided by the statute is for the benefit of the mental health patient.
There is no exception for prosecutors when the patient becomes a victim of crime.
Also, I believe that the cases upon which the majority opinion relies do not
authorize the prosecutor to review a victim’s records that are otherwise privileged by
law. In Foster v. State, 942 S.W.2d 548, 550 (Tenn. Crim. App. 1996), this court noted
that a prosecutor has a duty to search reasonable sources for materially exculpatory
information. However, it said nothing about the prosecutor being allowed to invade
22 In State v. Brown, 552 S.W.2d 383 (Tenn. Crim. App. 1977), our supreme court
dealt with the then existing statutory privilege regarding communication between
psychiatrist and patient that allowed disclosure in a criminal case if the mental condition
of the patient was an issue or the trial court determined that the interests of justice
required that the privilege be withheld. The state’s primary witness had been
hospitalized for an extended period of time in a state mental health facility. The issue
related to whether the defendant was entitled to discovery of those records. The
records reflected that she had been treated repeatedly for emotional disturbances of
First, the supreme court determined that the statutory exceptions to the privilege
had been met, partly because the conviction rested upon the testimony of the witness
and her twelve-year-old grandson, and her mental condition would be an issue. It noted
that the psychiatric records had impeachment value. 552 S.W.2d at 385. Then, the
court discussed various options that the trial court had once the defendant’s discovery
motion was presented. Id. at 385-86. Finally, it stated that the trial court should
conduct an in camera inspection of the requested records to determine whether they
have any probative value to the defendant in the preparation of his defense and to the
trial of the case. “The trial judge, in his sound judicial discretion, must be the arbiter of
the probative value -- either as direct evidence or as a source of cross-examination -- of
the findings contained in the report of [the state mental health facility]. Id. at 387.
I believe that the duty in the present case was upon the trial court to determine
by a review of the records whether disclosure was proper under T.C.A. § 33-3-
104(10)(A)(iv). The statutory confidentiality is for the benefit of the victim, and it does
not depend upon whether the victim received treatment in a private or pubic mental
health facility. In this respect, I do not believe that the trial court can delegate its
responsibility to review the records in any fashion to the prosecutor. Obviously, when
23 the prosecution and the defense cooperate procedurally with the trial court, they may
aid the trial court’s understanding of the relevant issues in the case in order that it may
make a more informed review of the records. However, disclosure of the records to
either side pursuant to the statute must follow -- not precede -- the trial court’s
determination that “disclosure is necessary for the conduct of proceedings before it and
that failure to make such disclosure would be contrary to public interest or to the
detriment of either party to the proceedings.” T.C.A. § 33-3-104(10)(A)(iv).
As the majority opinion notes, the record reflects that the trial court reviewed the
records and indicated that it believed them to contain exculpatory information, although
it did not know much about the case. Given the nature of the records, I agree with the
majority opinion that the trial court, at that point, should have disclosed the records to
the parties. However, if the trial court was unsure as to the exculpatory nature of the
records, it was not authorized to disclose them to either party. Obviously, under such
circumstances, it is, as a practical matter, the responsibility of the parties to provide the
trial court with sufficient information to allow it to consider the relevance of the