State v. Bowling

649 S.W.2d 281, 1983 Tenn. Crim. App. LEXIS 382
CourtCourt of Criminal Appeals of Tennessee
DecidedJanuary 3, 1983
StatusPublished
Cited by6 cases

This text of 649 S.W.2d 281 (State v. Bowling) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bowling, 649 S.W.2d 281, 1983 Tenn. Crim. App. LEXIS 382 (Tenn. Ct. App. 1983).

Opinion

OPINION

O’BRIEN, Judge.

Convicted of child abuse in violation of T.C.A. § 39-1019, in the Criminal Court for Hamblen County, defendant was sentenced to serve eleven months and twenty-nine days in the county jail and fined the sum of One Thousand Dollars ($1,000).

He appeals raising three issues which require a summary of the evidence heard at the trial.

Defendant was charged with inflicting injury upon a three-year-old male child by squeezing his penis causing it to become swollen, bruised, and to bleed. He was also charged with awakening the child in the middle of the night and making him stand in a comer, and with striking him upon the head with a spatula. The hard facts related to the injury to the child’s penis and we believe it is upon this evidence that the jury returned the verdict of child abuse.

Linda Booth, a woman of about twenty-four years of age, was the mother of the three-year-old child, Stephen Booth. Divorced from the child’s father she apparently was not able to acquire, or keep regular employment, living at intervals with her own parents, relatives of her former husband, and with Bowling. She had divorced the child’s father in the early part of 1980 and about that time had taken up a living relationship with the defendant. After several months they parted for a length of time and then in February, 1981, began living together again. This arrangement went on until April of that year when the events occurred which resulted in these charges.

According to defendant’s version of the relationship between him, Linda Booth, and the child, they lived together on more than one occasion. The first being from June until August of 1980. She left and went to New York until early in November of that year when he went after her at her request and they returned to Morristown where they subsequently resumed their relationship as previously related. He says this was to be on a temporary basis until she could find a job and get out on her own. It was not his plan to enter into any permanent or lasting relationship. Time went on and she did not make any effort to find employment or another place to live. This began to create tension between them which climaxed in a name calling argument in the course of which he struck her in the eye. He says he did not actually intend to hit her and it was his view that the child was a victim of circumstances because he was dependent on his mother for care. Although he was not particularly fond of children he felt sorry for him and assumed responsibility for his welfare, including food and shelter, and discipline when it was required. He confessed that he may have bruised the child’s face by grasping him to get his attention, occasionally spanked him, and made him stand in the corner. Although he felt some responsibility for the child because he was living there, he was not prepared to assume the father role until he was ready to have children of his own. In an initial interview with a police officer he denied any knowledge of how the child’s penis became bruised. He suggested' the child had pinched himself in some fashion. He denied he had awakened the child in the middle of the night but did say he had punished him by making him stand in a corner.

In his second interview a few days later he admitted squeezing the child’s penis but stated his belief that any bleeding which occurred was caused by the child himself with long fingernails. He admitted he [283]*283could have caused the bruise to the boy’s penis by shaking it when he was engaged in toilet training. He said he had been reluctant to tell the officer of this because he might conclude it had been done intentionally. He denied any intentional injury to the child.

Defendant raises issues related to the admission of the transcriptions of two tape recorded interviews between him and Detective Martin Coffey of the Hamblen County Sheriff’s Department. When objection was made by defense counsel to the admission of these two transcripts the trial judge read them and redacted some portions. He then allowed them to be read to the jury. These transcripts were long rambling interrogations in which the police officer made many extraneous inquiries regarding comments of other unnamed individuals accusing defendant of various offenses not charged in the indictment. This was an obvious effort to have defendant confess to the various offenses which the police office intimated had been related to him by these unnamed informants. Defendant says these irrelevant and prejudicial comments and questions should have been redacted because they were denied by him, not included in the indictment, and not established in any manner by the State’s evidence.

We are in accord with the views stated by defendant. State’s counsel should not have attempted to introduce these transcripts of the interrogation of defendant by the police officer, nor should the trial court have allowed their admission in the form in which they were offered. Clearly they went far beyond the pale of a confession by the defendant. They contained much inadmissible hearsay by unnamed informants, and had the effect of suggesting by innuendo that defendant had been guilty of a great many other acts of child abuse than those with which he was charged.

In Wilson v. State, 472 S.W.2d 235, 4 Tenn.Cr.App. 394 (1971), this Court clearly said that an attempt to communicate impressions by innuendo through questions which are answered in the negative, when the questioner has no evidence to support the innuendo, is an improper tactic which has often been condemned by the courts. The rule that prohibits the admission of the irrelevant evidence also prohibits the asking of questions which by innuendo places it before the jury, although the actual evidence itself is not admitted. See Wharton’s Criminal Evidence, 13th Edition, Torcia, Yol. 1, Sec. 164.

However we have concluded the erroneous admission of this evidence does not require that the case be reversed. Defendant himself admitted having committed the charges made in the indictment which were proven against him. Mrs. Carrie Keirsey, great-grandmother of the infant child, Stephen Booth, who indicated her disapproval of both the child’s mother and the defendant, testified to the presence of the bruises on the child’s face and on his penis. She observed both of these injuries while bathing Stephen shortly after the incident purportedly happened. Another witness who had no direct knowledge about how the injuries were sustained observed the condition of the child’s penis sometime during the month of April while visiting at the home of Mrs. Keirsey. The mother of the child testified, in pertinent part, that she had pled guilty to child neglect and had been sentenced to six months in the county jail. She said that on the morning after the incident occurred defendant informed her he had hurt Stephen. She identified the child’s shorts containing blood stains which he had worn on the night of his injury. After defendant told her he had injured the child she examined him and found his penis to be bruised and bleeding. Defendant said he had squeezed the child while trying to make him go to the bathroom and may have cut his organ with a fingernail. She related other incidents some of which coincided with the questions put to defendant by the police officer. She told of a time when the [284]*284child was returned from the hospital after an adenoid operation and was under medication.

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Related

State v. Reid
91 S.W.3d 247 (Tennessee Supreme Court, 2002)
State of Tennessee v. Paul Dennis Reid, Jr.
Court of Criminal Appeals of Tennessee, 2001
State v. James Young
Court of Criminal Appeals of Tennessee, 1998
State v. Philpott
882 S.W.2d 394 (Court of Criminal Appeals of Tennessee, 1994)
State v. Smith
751 S.W.2d 851 (Court of Criminal Appeals of Tennessee, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
649 S.W.2d 281, 1983 Tenn. Crim. App. LEXIS 382, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bowling-tenncrimapp-1983.