State v. Kimbrell – 1
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
STATE OF TENNESSEE, )
) FENTRESS COUNTY CRIMINAL
JAMES KIMBRELL, )
ON APPEAL AS OF RIGHT FROM THE FENTRESS COUNTY CRIMINAL COURT
BRIEF OF APPELLANT
DAVID L. RAYBIN Attorney for Appellant
Raybin & Weissman, P.C. . Suite 2200, Fifth Third Center
424 Church Street – Nashville, Tennessee 37219
This record presents an appeal as of right by James Kimbrell from the judgment of the Fentress County Criminal Court, the Honorable Shayne Sexton presiding. The appellant asserts that ineffective assistance of counsel coupled with newly discovered material evidence warrants a new trial.
In this case Mr. Kimbrell was alleged to have had a sexual relationship spanning years with his adopted daughter. Mr. Kimbrell denied that any such thing occurred. There was no proof of this except his daughter’s “word” that “only” Mr. Kimbrell had ever had sex with her. There was medical evidence that the woman had engaged in sex with someone.
Following the trial, newly discovered evidence showed who this “someone” was. The defense produced a boy who testified he had had sex with Mr. Kimbrell’s daughter. A girlfriend testified that the alleged victim had confessed to having sex with this boy shortly after the act occurred. This was a great deal of post-trial testimony about sex-with-others. The trial judge said he did not believe any of it and denied a new trial. Given the quantity of evidence the trial judge had no right to dismiss this proof out of hand. The credibility of these witnesses is for another jury. Thus, this Court should reverse and grant a new trial.
STATEMENT OF THE ISSUES
I. WHETHER THE DEFENDANT IS ENTITLED TO A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE WHICH IS MATERIAL AND IS LIKELY TO CHANGE THE RESULT OF THE TRIAL IF ACCEPTED BY THE JURY.
II. WHETHER THE TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.
III. WHETHER THERE WAS IMPROPER PROOF OF ADDITIONAL SEXUAL OFFENSES.
IV. WHETHER THE CHARGED OFFENSES SHOULD HAVE BEEN SEVERED.
V. WHETHER THE TRIAL COURT ERRED IN FAILING TO CHARGE THE JURY ON ELECTION AND AS TO HOW TO CONSIDER THE “UNCHARGED ACTS.”
VI. WHETHER THE DISTRICT ATTORNEY IMPROPERLY ARGUED FACTS WHICH WERE NOT IN EVIDENCE.
STATEMENT OF THE CASE
James Kimbrell was indicted by the Fentress County Grand Jury on May 15, 1998 on charges of Rape of a Child (5 counts), Rape (5 counts), Incest (20 counts), and felonious reckless endangerment and reckless driving. (T.R. 1-8) These non-sexual offenses were severed out.
After he entered a plea of not guilty, James Kimbrell’s trial commenced on September 2, 1999, at which time the court announced that the parties had agreed that there were actually twenty five (25) complete counts – five (5) counts of rape of a child, five (5) counts of rape, and fifteen (15) counts of incest. (Volume II ,Trial, page. 4) These all related to 15 specific “factual” events. See Volume II, Trial, page 49-50, opening statement of the prosecutor: “These are fifteen incidents of the [in]numerable ones that occurred during the whole period of time.”
During the trial the judge granted acquittal on three counts and the state nolled other counts leaving 14 incidents. ( Volume II , Trial, page 141 )
On September 3, 1999, Mr. Kimbrell was convicted on four (4) counts of Rape of a Child, five (5) counts of Rape, and fourteen (14) counts of Incest. (T.R. 98)
On October 12, 1999, James Kimbrell retained David Raybin as additional counsel. ( T.R. 129 ).
On November 9, 1999, James Kimbrell was sentenced to forty years in prison.(T.R. 103-136). Sentencing is not an issue on appeal. The fairness of this trial is.
On May 15, 2000, a hearing was held on James Kimbrell’s motion for a new trial. At the hearing, the defense offered proof of, among other issues, ineffective assistance of counsel and newly discovered evidence. The trial court issued its ruling and denied the Motion for a New Trial on November 3, 2000. (T.R. 173) An oral ruling on the Motion appears as the final transcript in this record: Volume VI.
On December 1, 2000, James Kimbrell filed a timely notice of appeal as of right to the Court of Criminal Appeals. (T.R. 175)
STATEMENT OF THE EVIDENCE
A. TESTIMONY AT THE SEPTEMBER 1999 TRIAL
Michelle (Kimbrell) Meadows
Michelle L. Meadows was eighteen (18) years old and married to William Chad Meadows at the time of the trial. Prior to her marriage, she was known as Michelle Kimbrell. Her adopted parents were James and Frances Kimbrell.
At the age of five (5), Michelle was put in foster care through the intervention of the Tennessee Department of Human Services (Volume II, trial, page 57). Eventually, Michelle and her biological sister, Bethany L. Kimbrell, came to live with James and Frances Kimbrell and their natural daughter, Julie, as foster children ( Volume II, trial, page 59). James and Frances Kimbrell subsequently legally adopted Michelle and Bethany.
In Michelle Kimbrell’s opinion, her parents were overly strict on her (Volume II, trial, page 109). In the Kimbrell home there was no television, nor was there a radio, other than the one which was tuned to Christian radio stations ( Volume II, trial, page 101). Moreover, Michelle was not allowed to listen to country music ( Volume II, trial, page 101). Michelle was not allowed to wear pants or jewelry, nor was she allowed to date boys before she was eighteen (18) years old ( Volume II, trial, page 101). Occasionally, however, Michelle would take additional articles of clothing, such as shorts, to school and change from what her parents thought she was wearing into other clothes when she got to school (Volume II, trial, page 102). Other than the gospel shows, Michelle was not allowed to attend the County Fair (Volume II, trial, page 102). Additionally, Michelle went to church two (2) or three (3) times a week ( Volume II, trial, page 102).
As she grew older, Michelle helped her father, James Kimbrell, with household chores. For example, she helped him do the paper work while he was employed by J & S Construction Company ( Volume II, trial, page 80). Michelle testified that she wrote the checks to pay the family bills (Volume II, trial, page 80). Additionally, Michelle testified that she did all the laundry and much of the cooking in the Kimbrell household ( Volume II, trial, page 80-81).
According to Michelle, her adopted father began fondling her when she was ten (10) years old ( Volume II, trial, page 66). Her adopted mother would usually be gone when this took place ( Volume II, trial, page 67). However, some of these acts occurred when Mrs. Kimbrell was in the house. According to Michelle, her adopted father would also molest her in the loft of the barn (Volume II, trial, page 68). Sexual intercourse became a regular thing, according to Michelle’s testimony at trial, between the ages of twelve (12) and sixteen (16).
Over the seven (7) year period, Michelle testified that the intercourse occurred fifty (50) times ( Volume II, trial, page 71). Michelle remembered the places that these acts took place (Volume II, trial, page 72). Sometimes James Kimbrell used a condom, but sometimes he did not (Volume II, trial, page 84).
On her direct testimony, Michelle stated that she had not had sex with anyone other than James Kimbrell up until January of 1998.
Q [By General Galloway]: “Now, up until that period of time, from the time that you were – had you had sex with any other person other than Mr. James Kimbrell?
A [By Michelle Kimbrell]: No, sir.” (Volume II, page 93).
( Volume II, trial, page 93). This is central to this appeal since the prosecutor used this fact to explain the medical testimony that Michelle had had sex with someone.
According to Michelle, James and Frances Kimbrell never got along very well (Volume II, trial, page 80). James Kimbrell would prevent his wife, Frances, from abusing the children by taking the children away from their adopted mother (Volume II, trial, page 79). According to Michelle, she was James Kimbrell’s favorite child and that caused her mother, Frances, not to like her ( Volume II, trial, page 79). However, on cross-examination Michelle Kimbrell testified that there was never any physical threats made against her (Volume II, trial, page 107). Eventually, Frances Kimbrell moved out of the house, but Michelle stayed. According to Michelle, her mother did not want her to go with her.
At the time that Frances Kimbrell left her husband, Michelle was working at Little Pumpkin Child Care ( Volume II, trial, page 87). Cynthia Cheryl was Michelle’s boss at Little Pumpkin Child Care ( Volume II, trial, page 89). One morning when Michelle had to leave early for work Mr. Kimbrell tried to fondle her. Once she arrived at the Little Pumpkin Child Care, Michelle told Ms. Cheryl about her father’s sexual abuse ( Volume II, trial, page 89). That night she went to the home of Ron and Nancy Kington, where she stayed for a period of time. Michelle never lived with Mr. Kimbrell after this point ( Volume II, trial, page 89). After telling Ms. Cheryl about the abuse, the Tennessee Department of Human Services began to investigate the matter.
Over the years Michelle had talked to other Department of Human Service workers on severally occasions. Specifically, Michelle talked to Shane Lyttle (Volume II, trial, page 90). However, Michelle never told Mr. Lyttle about the abuse, because, according to Michelle, she had “been beat.” According to her testimony at trial, Michelle and her sister, Bethany, were punished for talking to the Department of Human Services (Volume II, trial, page 91). However, as previously noted, on cross-examination, Michelle Kimbrell testified that there was never any physical threats made against her ( Volume II, trial, page 107).
A month or two after she left the Kimbrell’s home, Michelle was examined by a doctor or nurse practician in Nashville during the course of Department of Human Services investigation (Volume II, trial, page 93).
In Michelle’s interview with Ann Austin for the Department of Children’s Services, she did not tell Ms. Austin about the sex in the cave, nor did she tell about the sex on the trail on the way to the cave (Volume II, trial, page 107). However, according to Michelle, she told her sister, Julie Kimbrell, about her father’s abuse ( Volume II, trial, page 104).
Bethany Kimbrell was sixteen (16) years old at the time of trial. She is the younger, biological sister of Michelle (Kimbrell) Meadows. Bethany was two (2) years of age when she and Michelle went to live with the Kimbrell family as foster children (Volume II, trial, page 117).
Bethany testified that she found condoms in the loft of the barn on several occasions. Some of them were used and some of them were not ( Volume II, trial, page 119). Bethany would find two (2) or three (3) condoms at a time (Volume II, trial, page 119). Bethany never mentioned finding the condoms to anyone ( Volume II, trial, pages 122-3). [No condoms were produced at trial ]
Bethany never told Shane Lyttle of the Tennessee Department of Human Services, about finding the condoms in the barn, (Volume II, trial, page 123), even though she knew Mr. Lyttle was interviewing her about the allegations that Michelle made against their father (Volume II, trial, page 123). During her interviews with the other Department of Children Services workers, Dwayne Wakefield and George Stevens, while she was still living with the Kimbrell family and allegedly suffering physically abuse, Michelle did not reveal this information to personnel of the Department of Children Services ( Volume II, trial, page 124). Moreover, Bethany did not even tell her sister, Michelle, about finding the condoms in the loft ( Volume II, trial, page 124).
Bethany’s first contact with the Department of Human Services was through George Stevens. This involved an allegation of physical abuse by Bethany’s mother, Frances Kimbrell (Volume II, trial, page 125). As a result of talking to the Department of Human Services, Bethany testified that she was punished by her parents (Volume II, trial, page 126).
Ms. Ross is employed by Our Kids Center in Nashville. The Our Kids Center is a clinic of the Metro General Hospital established 1987 to do evaluation of children alleged to have been sexually abused. Since August of 1990, Ms. Ross has been doing medical emanations of possibly abused children (Volume III, trial, page 128). Ms. Ross is licensed by the State of Tennessee. She is a registered nurse and is certified by the American Nurses Association as a pediatric nurse practitioner (Volume III, trial, page 130).
On January 30, 1998 Ms. Ross examined Michelle Kimbrell. Michelle Kimbrell’s examination revealed past penetration trauma (Volume III, trial, page 133). According to Ms. Ross, whether it is consensual penetration trauma or non-consensual trauma, it makes no difference ( Volume III, trial, page 134). Ms. Ross was unable to say whether the penetrating trauma occurred six (6) years ago or six (6) weeks ago ( Volume III, trial, page 136).
The State rested.
James Kimbrell( for the defense)
At the time of trial, James Kimbrell was fifty-three (53) years old and had been living in Clark Range, Tennessee since August 15, 1997. Over the course of his life, Mr. Kimbrell has been employed as a contractor and a construction worker, as well as a carpenter (Volume III, trial, page 145). Mr. Kimbrell was married to Frances Kimbrell for thirty-three (33) and a half years. They had two (2) natural children, Jimmy and Julie. Additionally, they kept foster children.
Over a period of eight (8) years the Kimbrell’s had forty (40) to forty-three (43) foster children stay in their home (Volume III, trial, page 147). Never in his life has James Kimbrell ever used alcoholic beverages or tobacco ( Volume III, trial, page 149). James Kimbrell testified he never had sexual intercourse with his adopted daughter, Michelle (Kimbrell) Meadows ( Volume III, trial, page 152).
Mr. Kimbrell testified that he and his wife would take their children to church “every time the door was open” according to Mr. Kimbrell (Volume III, trial, page 148). The Kimbrell children also went to a Christian school. Mr. Kimbrell never allowed any of his daughters to wear slacks (Volume III, trial, page 148) nor did they wear jewelry or cut their hair. The Kimbrell daughters wore their dresses and skirts below their knees. His daughters were not allowed to date until they were eighteen (18) years old or wear make up (Volume III, trial, page 149-150). The Kimbrell household did not have a television. Although they had a radio, it was only tuned to gospel stations.
As she grew older, James Kimbrell began having behavioral problems with Michelle (Volume III, trial, page 151). When Michelle was around fourteen (14) she began to carry make-up and wanting to date boys ( Volume III, trial, page 151).
At the time they were married, Mr. and Mrs. Kimbrell, each shared strong religious beliefs in the word of God. However, as time went on, Frances Kimbrell started rebelling a little bit according to her husband. Frances Kimbrell wanted a television and credit cards ( Volume III, trial, page 159-60). Subsequently, Frances Kimbrell began to threaten to leave sometime before the Kimbrell’s adopted Bethany and Michelle (Volume III, trial, page 160).
At the time of trial, James and Frances Kimbrell were divorced (Volume III, trial, page 150). James Kimbrell believes his wife had planned to leave for a long time (Volume III, trial, page 150).
For many years, James Kimbrell had problems performing sexually (Volume III, trial, page 154). James Kimbrell sought treatment through his regular doctor who referred Mr. Kimbrell to Dr. Steven Goryl, who is a specialist in that field. Mr. Kimbrell saw Mr. Goryl two (2) or three (3) times. The doctor gave Mr. Kimbrell a shot and told him that if that did not work, then come back within a month. Mr. Kimbrell returned and informed the doctor that the shot had no effect. The doctor told him that he would show Mr. Kimbrell a procedure that he would have to go through thirty (30) minutes or so prior to intercourse. Mr. Kimbrell informed the doctor that he was not interested in that procedure and he never returned to the doctor about that matter (Volume III, trial, page 155). Mr. Kimbrell testified that he has had sex with wife, Frances, very few times since 1994 ( Volume III, trial, page 156).
Dr. Steven Goryl
Dr. Goryl has been board certified in the speciality of urology for the past twenty-two (22) years. He is licensed to practice medicine in the State of Tennessee. Mr. Kimbrell was originally referred to Dr. Goryl when he complained of erectile dysfunction. Mr. Kimbrell told Dr. Goryl that he had had the problem for about ten (10) years, and at that time, he no longer had a desire for sex (Volume III, trial, page 169). Mr. Kimbrell told Dr. Goryl that he never woke up with an erection. Mr. Kimbrell was on no medications nor was he a diabetic ( Volume III, trial, page 170). Following the treatment, Mr. Kimbrell told Dr. Goryl that he did not have any results from the treatment prescribed by the doctor (Volume III, trial, pages 170-71).
Julie Darlene Townsey
At the time of the trial Mrs. Julie Townsey, the natural daughter of James and Frances Kimbrell, was thirty-one (31) years of age. Michelle and Bethany had been adopted by the Kimbrell family before Mrs. Townsey left the Kimbrell home. Mrs. Townsey lived in the same home with Michelle Kimbrell until June of 1993, when she got married at the age of 25 (Volume III, trial, page 175).
According to Mrs. Townsey, there was never a television in the Kimbrell house. Mrs. Townsey did not wear pants while living in the Kimbrell home, nor did she use alcohol or tobacco (Volume III, trial, page 176). She was allowed to make-up and jewelry and date boys once she reached seventeen (17) years of age ( Volume III, trial, page 176-7).
Mrs. Townsey testified that Michelle had problems with some of the things that the children were to do in the Kimbrell household. Michelle did not like the basic rules in the Kimbrell house ( Volume III, trial, page 177). Specifically, Michelle wanted to wear pants and listen to rock-n-roll music.
Contrary to Michelle’s testimony, Mrs. Townsey stated that Michelle never approached Mrs. Townsey to tell her that James Kimbrell was doing anything improper to her(Volume III, trial, page 178). If Michelle had approached her, Mrs. Townsey testified that she would have sought out the truth of the allegations (Volume III, trial, page 179).
In the twenty-five (25) years that she lived in the Kimbrell household, Mrs. Townsey never saw her father wear just a T-shirt around the house. Mr. Kimbrell would always be fully clothed with pants and shirt. He would never go around with just a T-shirt on ( Volume III, trial, page 178).
Mr. Allred has known James Kimbrell since 1992. The two men went to church together ( Volume III, trial, page 182). However, Mr. Allred also knew Mr. Kimbrell outside of church. The two were friends and Mr. Allred had been to the Kimbrell home (Volume III, trial, page 183). Mr. Allred always found Mr. Kimbrell to be truthful. Mr. Kimbrell’s general reputation in the community is that of a truthful person (Volume III, trial, page 183).
Mr. Hatfield has been a resident of Fentress County since 1972. He has known Mr. Kimbrell for thirty (30) to thirty-five (35) years. Mr. Hatfield would take Mr. Kimbrell’s word as the truth. As far as he knows, James Kimbrell is a very truthful person ( Volume III, trial, page 184-5).
The Defense rested
Michelle (Kimbrell) Meadows
Michelle testified in rebuttal that Mr. Kimbrell told her that he had no sexual problems with his wife. ( Volume III, trial, pages 186-7).
Shane Lyttle is employed by the Tennessee Department of Human Services. Mr. Lyttle formally worked for the Department of Children’s Services. Mr. Lyttle was the Child Protective Services worker and a child abuse investigator. Mr. Lyttle was assigned to investigate the case involving James and Michelle Kimbrell. Mr. Lyttle spoke with James Kimbrell on November 10, 1997, at which Mr. Kimbrell denied any impropriety ( Volume III, trial, pages 190-191).
The defense attorney asked Mr. Lyttle if Mr. Kimbrell had discussed with him that Michelle was ” having sexual relations with someone else.” ( Volume III, trial, page 193). This drew an immediate objection from the prosecutor which the judge sustained. ( Volume III, trial, page 194).
As will be noted later in this Brief, there was evidence about this but the lawyer did not use what he had or pursue other investigation in the area because of the perceived limitations of the Rape Shield Law. State v. Brown, 29 S.W.3d 427 (Tenn. 2000) would not be released for another four months.
This Concluded the Trial Testimony
B. NOVEMBER 1999 SENTENCING HEARING
Appellate Counsel’s Note:By the time of the Sentencing Hearing Mr. Kimbrell had retained new counsel. The “sentencing hearing” testimony primarily involved proof that Mr. Kimbrell was innocent of the charges in that his daughter had fabricated her claims against him. This included testimony that the daughter had engaged in sex with others in direct contradiction to her sworn trial testimony that “only Mr. Kimbrell” had ever had sex with her. In addition, witnesses testified to certain facts that the original lawyer should have elicited at the trial. This testimony was preserved for later use at the hearing on the Motion for New Trial and now on appeal concerning the issues of newly discovered evidence and ineffective assistance of counsel.