State v. Kimbrell – 3
The defense asserts here that there was abundant evidence that these prior sexual events took place. There is no question that some of this was hotly contested at the post-trial hearings. Nevertheless, if one utilizes the Burns-standard, it is sufficient if there are multiple witnesses to the events and there is some showing that they had their origin prior to trial.
The trial judge made his findings of fact but there is simply too much evidence to the contrary. Again, this does not deal with some question which the jury would never consider, such as whether a defendant has received his Miranda warnings or not. Instead, these issues were central to the fundamental question of guilt or innocence.
Lastly, the defense would ask this Court to return to State v. Brown, 29 S.W.3d 427 (Tenn. 2000) which concerned the admissibility of statements of a third person that the child had had sex with someone else. This hearsay testimony in Brown was identical to the testimony of Andrea Gunter. If the Supreme Court found that the denial of that testimony was fatal to the conviction in Brown, how could this Court conclude that the absence of identical testimony is irrelevant to Mr. Kimbrell’s appeal?
This Court should also consider that in Brown, the evidence was extremely close and the added testimony would have made a huge difference in the outcome of the trial. This is precisely why the Tennessee Supreme Court reversed the conviction in Brown.
A review of the facts in Brown disclose that the testimony of “other sex” consisted of proof by one person who observed the girl “engaging in kissing and fondling” as was the observation by another person. This person also stated that the girl had “mentioned to her a couple of times that she had been having sex.” State v. Brown, 29 S.W.3d 427, 431 (Tenn. 2000). Yet, this was more than enough evidence to justify a new trial. The identical result should occur here.
The trial judge’s findings of fact are contrary to the weight of the evidence when one considers all of the evidence. The trial judge made no direct finding of fact with respect to Andrea Gunter and thus this Court can safely conclude that her un-impeached testimony should be considered as sufficient to justify a new trial particularly given the supporting evidence of Danielle Kimbrell and Lonnie Kimbrell. That this evidence existed prior to trial is also important in ascertaining the weight to be given this proof.
This case boiled down to a credibility contest between Mr. Kimbrell and his adopted daughter. Mr. Kimbrell was denied the vital testimony which could well have impeached his daughter on the critical credibility questions.
Mr. Kimbrell will spend the rest of his life in prison if this conviction is not reversed. He has an absolute right to have all the facts presented to a jury. Accordingly, this Court should make appropriate findings as in Burns to reach the merits of the ineffective assistance of counsel issue.
In addition to the aforementioned instances of ineffective assistance of counsel, there were numerous other areas of the trial in which the defense attorney’s representation violated the Sixth Amendment. The defense attorney rendered ineffective assistance of counsel by failing to interview and call Frances Kimbrell to testify on behalf of Mr. Kimbrell. Ms. Frances Kimbrell was the former wife of the defendant and was quick to testify to the lack of credibility as to the alleged victim, her adopted daughter. Frances Kimbrell testified at the sentencing hearing concerning her opinion testimony regarding the alleged victim. (Volume IV, pages 34-39). Mr White said that he did not call her as a matter of trial tactics. (Volume IV, pages 87-88).
The defense attorney rendered ineffective assistance of counsel in failing to call James Kimbrell, the defendant’s son, as a character witness regarding his knowledge of his father. (Volume IV, page 48).
The defense attorney rendered ineffective assistance of counsel in failing to call Danny Kimbrell, the defendant’s brother, as a character witness for his brother. Mr. Kimbrell’s testimony appears at Volume IV, page 50. Mr White said that he did not call these witnesses as a matter of trial tactics. (Volume IV, pages 88-89).
The defense attorney rendered ineffective assistance of counsel in failing to interview the family members to learn that another brother, Lonnie Kimbrell, had been the victim of allegations of sexual abuse against his own adopted daughter which was very similar in nature to that of the alleged victim against Mr. Kimbrell here. The defense established at the hearing on the Motion for New Trial that the allegations occurred and were well known to family members regarding the similar motivations to bring such outrageous allegations as a means to leave the home. This was testified to by Mr. Danny Kimbrell at Volume IV, page 53. Further, Danielle Kimbrell testified at the sentencing hearing that she had actually spoken with the alleged victim in this case about that specific allegation regarding their uncle, Lonnie Kimbrell. (Volume IV, page 86).
The defense attorney rendered ineffective assistance of counsel in failing to cross-examine the alleged victim with her diary which showed no references to any type of sexual abuse whatsoever. (Exhibit 5, Volume IV, page 83).
The defense attorney rendered ineffective assistance of counsel by failing to cross-examine the alleged victim with letters that she had written which in no way related to any sexual activity on behalf of Mr. Kimbrell in any way. (Exhibit 3, Volume IV, page 81). Mr White said that he did not use this evidence as a matter of trial tactics. (Volume IV, pages 89-90).
The defendant was denied the effective assistance of counsel by the failure of his trial lawyer to demand an election, to file a special request so that the Court could properly instruct the jury as to the reception of the proof as to the other offenses not specifically named in the indictment, and failing to file a special request so that the Court could properly instruct the jury as to the nature of the election so that the jury could return a unanimous verdict on each of the alleged allegations in the indictment.( The Election issue is raised later in Ground Number IV )
The defense attorney rendered ineffective assistance of counsel in failing to object to the proof of the thirty other unindicted sexual offenses or request some limiting instructions on the reception of this prejudicial proof. ( The substantive issue is addressed in Ground III ).
Finally, the defense attorney rendered ineffective assistance of counsel in failing to move to sever those offenses occurring in the house from those offenses occurring in other places such as caves and, in the woods and in the barn and totally unrelated locations. ( The substantive issue is addressed in Ground IV ). The alleged victim stated that she was touched in all manner of places in the dwelling. (Volume II, pages 72-74). The alleged victim testified that there was another alleged sexual event occurring on a fishing trip. (Volume II, page 74). Another alleged sex event occurred in a “brush pile.” (Volume II, page 76). Another alleged sex event occurred in the loft of the barn. (Volume II, page 77). Another alleged sex event occurred in an entirely separate dwelling. (Volume II, pages 81-82). Another alleged sex event occurred in a cave and in a walkway to the cave. (Volume II, page 83). These separate and distinct offenses would not have been admissible in a trial of one upon the other and there clearly was not such a unique activity as to permit proof of one upon the trial of the other. Accordingly, these entirely separate and distinct offenses should have been severed and the defense attorney rendered ineffective assistance of counsel in failing to move for a severance to the prejudice of his client. State v. Moore, 6 S.W.3d 235 (Tenn. 1999)(separate charges of rape against stepdaughter should not have been tried together).
Mr. White was unable to provide any reason why he did not object, or seek limiting instructions, or attempt to exclude in any manner the twenty (20) to thirty (30) additional unindicted charges against James Kimbrell (Volume V, Motion For New Trial, page 91-92).
The defense asserts that it has established both the deficient performance of prior counsel and has clearly established prejudice. Accordingly, Mr. Kimbrell was deprived of the effective assistance of counsel in violation of the Sixth Amendment to the Constitution of the United States and Article I, Section 9 of the Constitution of the State of Tennessee.
III. PROOF OF ADDITIONAL SEXUAL OFFENSES WAS IMPROPER
IV. THE CHARGED OFFENSES SHOULD HAVE BEEN SEVERED.
In the issue following these two companion grounds , Mr. Kimbrell asserts the related election problem in that the prosecutor was permitted to introduce proof of some fifty alleged sexual assaults where there was only fifteen “factual” allegations in the indictment. Before addressing the election problem, the defense asserts that the prosecutor should never have been permitted to prove these additional uncharged offenses. As a related problem the defense asserts here that the offenses which were charged should have been severed.
In this case there where twenty-five counts which 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 numerable ones that occurred during the whole period of time.” Yet, the prosecutor was able to prove well over fifty separate events. See Volume II, page 71 where the alleged victim claimed that these outrages occurred “more” than fifty times. There was no point to this.
The woman was able to relate the events. The alleged victim stated that she was touched in all manner of places in the dwelling. (Volume II, pages 72-74). The alleged victim testified that there was another alleged sexual event occurring on a fishing trip. (Volume II, page 74). Another alleged sex event occurred in a “brush pile.” (Volume II, page 76). Another alleged sex event occurred in the loft of the barn. (Volume II, page 77). Another alleged sex event occurred in an entirely separate dwelling. (Volume II, pages 81-82). Another alleged sex event occurred in a cave and in a walkway to the cave. (Volume II, page 83).
In State v. Rickman, 786 S.W.2d 824 (Tenn. 1994), the Supreme Court of Tennessee said that there is no “sex crime” exception to the rule against proof of uncharged misconduct. As a limited exception to that rule, the Court allows the State to prove additional allegations within the time-frame of the indictment where there is a prosecution of a sexual assault against a young child where the young child cannot remember specific dates. Here, of course, we were not dealing with a child who was three, four, five or six years old. We were dealing with a teenager which in no way could be construed as “young child” who could not remember dates.
Dates, of course, are not the test. All that is required is that the alleged victim be able to specify with some certainty the factual event and be able to describe it in terms of location and proximity in general time.
The State improperly was allowed to introduce testimony at the trial that the alleged victim was “fondled” in Putnam County. (Volume II, page 64). Although there was an objection and a curative instruction, this testimony prejudiced the defendant and a new trial should be granted.
Additionally, the State improperly introduced evidence that the defendant allegedly assaulted or harmed the alleged victim’s sister. (Volume II, page 91). Although there was a curative instruction, the damage was done and this defendant should be granted a new trial. The trial judge should have granted a mistrial as requested by the defense based on the highly improper proof of other alleged bad acts regarding the alleged fondling in Putnam County and the alleged assault on the alleged victim’s sister. (Volume II, pages 94-96).
Ms. Michelle Kimbrell was able to identify the 15 or so “sexual assaults” in this case and thus the proof of all these other uncharged events was totally unnecessary and was contrary to the holding in Rickman.(5) There was, quite simply, no purpose in getting into all of these additional thirty-odd alleged events.
What this “extra proof” did, of course, was prejudice this defendant. Related to this problem is the proposition that there were no limiting instructions on how the jury was to consider all this extra proof. The jury was given no guidance whatsoever. The defense attorney failed to submit any special instructions on these “extra assaults” so that the jury could put them in context. Of course the defense should have objected to all of this extra proof anyway since it was clearly inadmissible in violation of the Rickman doctrine.
Courts have found improperly introduced evidence to warrant a reversal in other cases where the extraneous proof was far less significant than that presented here. See, Shockley v. State, 585 S.W.2d 645 (Tenn.Crim.App. 1978)(testimony of sister of victim regarding another sexual assault as to the sister was reversible error); Young v. State, 566 S.W.2d 895 (Tenn.Crim.App. 1978)(proof of another burglary in a burglary case was prejudicial); State v. Hooten, 735 S.W.2d 823 (Tenn.Crim.App. 1987)(sexual advances against other girls was “inherently prejudicial”); State v. Rounsaville, 701 S.W.2d (Tenn. 1985)(evidence of attempting to pass a forged instrument at the same bank two days before the incident giving rise to the indicted charge was inadmissible and was “quite prejudicial”); State v. Luellen, 867 S.W.2d 736 (Tenn.Crim.App. 1992)(evidence of other drug offenses in a drug prosecution was highly prejudicial and thus the chance of the defendant “receiving a fair trial became remote”). In short, the State engaged in nothing short of impermissible “overkill.” Armstrong v. State, 555 S.W.2d 870 (Tenn. Crim. App. 1977) (proof of another drug sale).
The extraneous proof introduced against this defendant was inadmissible. The error was clearly not harmless in light of the enormously prejudicial nature of this proof. In State v. Dutton, 896 S.W.2d 114 (Tenn. 1995), the Tennessee Supreme Court reversed the conviction because of the collateral misconduct, and found that it was extremely prejudicial and that error was not harmless because there was no evidence of sexual misconduct other than that from the alleged victim: “Essentially, the jury had to determine who to believe and was faced with a credibility contest between the victim and the defendant.” Under those circumstances, the Court found that the prior sex acts between the defendant and the alleged victim “more probably than not affected the judgment” in the case. 896 S.W.2d, 117. This is EXACTLY the case here given that this was just a swearing match between two people. One cannot improve upon the prosecutor’s characterization of the state of the evidence:
“As I said, ladies and gentlemen, – and this is – it is pretty clear to you after sitting through this trial, that there is – it is not a case where I have got DNA proof. He’s the one that done it. I don’t have fingerprints at the scene of the crime. There are no ballistics tests that this is the gun that fired – to say that this is the gun that fired the bullets that killed the person. In these kind of cases, you don’t have that. And it is not here either. It becomes a question of – your determination of who – based on – on the Judge’s instruction about what you are to consider about credibility of witnesses. Who is telling the truth.” (Volume III, page 204)(emphasis added).
“Prejudice” is an inadequate word to describe the damage done to the defendant’s right to a fair trial. This error was so pervasive that it compromised the defendant’s right to due process under the federal and state constitutions. This Court should reverse and remand this matter for a new trial.
On a related point concerning issue number II in this Brief, the defense also asserts that the defense attorney at trial should have moved to sever many of these offenses from one another so that the multitude of allegations would not have been pyramided on top of one another to the prejudice of this defendant. Some of these sexual events occurred at one residence. Other events occurred at another residence. Other events allegedly occurred in a barn. Other events allegedly occurred in the bushes. Other events allegedly occurred in a cave. Simply because they all allegedly occurred in Fentress County in no way established the common thread that would have allowed these offenses to have all been tried together. In State v. Moore, 6 S.W.3d 235 (Tenn. 1999), the Tennessee Supreme Court addressed this issue where there were two separate allegations of sexual assault against the same victim occurring several months apart. They all occurred in the same residence yet, the Supreme Court held that the charges should not have been consolidated for a single trial because evidence of one would not have been admissible in a trial of the other. The Court found that the error was harmless only because the jury was able to discriminate among the several counts and, indeed, acquitted the defendant of some of these charges.
In the instant case, the jury convicted the defendant of everything that they could. The error here could not possibly be harmless. The various “groups” of offenses should have been severed, or a the very least narrowed to only the indicted charges. (6)
V. THE TRIAL COURT ERRED IN FAILING TO GIVE THE JURY INSTRUCTIONS ON THE ELECTION ISSUE AND AS TO HOW TO CONSIDER THE “UNCHARGED ACTS.”
The defense asserts that the trial court should have given the jury instructions on how to consider the fifty separate allegations of sexual assault in conjunction with the 25-odd counts of the indictment as it related to approximately 15 separate allegations which appeared in several counts for each alleged sexual assault. The jury instructions appear in Volume III at pages 228-245 and there is nothing in these instructions concerning any election nor is there anything about how the jury was to consider all the unrelated events. There is no question that the district attorney made a good attempt at having Ms. Kimbrell try to identify some of the alleged factual events surrounding some of the several counts. Indeed, the prosecutor did an admirable job of trying to “sort this out” during his closing argument to the jury. The problem, of course, is that arguments of counsel are not substitutes for evidence and certainly do not substitute for jury instructions.
The doctrine of “election” requires that the government specify the factual events as it relates to each separate count but also that the judge properly instruct the jury so that the jury can understand the election. The purpose of this rule is so that the jury will know how they are to consider the various allegations in conjunction with those factual events which are not the subject of an actual count of the indictment. There is nothing new about this doctrine: it has been around for years. In Burlison v. State, 501 S.W.2d 801, 804 (Tenn. 1973), the Supreme Court said that “We hold that it was the duty of the trial judge to require the State, at the close of its proof-in-chief, to elect the particular offense of carnal knowledge upon which it would rely for conviction, and to properly instruct the jury so that the verdict of every juror would be united on the one offense.”
As a related issue, there were no instructions as to how to consider the “uncharged” misconduct. This is raised as ineffective assistance in Ground Number II but is renewed here as a substantive issue. It is elementary that the judge charge the jury on how to consider uncharged misconduct. See e.g State v. Dutton, 896 S.W.2d 114 (Tenn. 1995). See in particular, State v. Little, 854 S.W.2d 643 (Tenn. Crim. App. 1992). There were no instructions on this vital issue.
In State v. Ford, 861 S.W.2d 846 (Tenn. Crim. App. 1992), the State introduced collateral evidence of sexual misconduct in a rape case. This Court held that the collateral evidence was prejudicial. The error was not harmless because the proof of the defendant’s guilt “was far from overwhelming.” Further, the appellate court determined that the trial judge did not give a limiting instruction of any sort. The combination of collateral misconduct evidence and the failure of a limiting instruction “more probably than not affected the judgment” and, thus, the conviction was reversed.
Given that there were no jury instructions on the manner in which the jury was to consider the several counts in conjunction with the “extra allegations of abuse” there was no proper election and no information about how to consider the “proof-of-other-crimes” evidence. The defense also renews the argument here that the trial lawyer was deficient in failing to tender special requests on these issues. Whatever the source of the problem, it is clear that the jury was not properly charged on the election and “proof-of-other-crimes” evidence questions and thus a new trial should be granted.
VI. THE DISTRICT ATTORNEY IMPROPERLY ARGUED FACTS WHICH WERE NOT IN EVIDENCE.
The district attorney improperly argued to the jury that the defense attorney “needs to explain the situation that we read about all of the time in the papers where women have – who are in their 30’s, their 40’s, finally come forward and talk about how they were sexually abused for years… .” (Volume III, pages 210-211). Said argument was improper and there was no evidence whatsoever about these “other women.” It is elementary that the prosecutor cannot argue facts outside the record. State v. Pappas, 754 S.W.2d 620 ( Tenn. Crim. App. 1987). Given the closeness of the proof here, the prosecutor’s “testimony” explaining about how woman come forward after years of abuse was highly prejudicial and justifies a new trial.
The defendant, James Kimbrell, respectfully submits that this Court should grant him a new trial. He was clearly deprived of critical witnesses who could have raised a reasonable doubt as to his guilt by discrediting the only witness against him and offering an alternative explanation for the medical proof. The missing evidence should be heard by another jury and, thus, this Court should reverse these convictions and grant a new trial.
DAVID L. RAYBIN (#3385)
Attorney for James Kimbrell
Suite 2200, Fifth Third Center
424 Church Street
Nashville, Tennessee 37219
1. As the Court will learn Mr. Campbell later retracted part of his testimony about the penile sex but maintained that he and Michelle had engaged in oral sex.
2. It is important to note here that the male and female friends of Michelle Kimbrell were physically located by the undersigned counsel, in part, through the excellent efforts of Assistant District Attorney John Galloway. See, First and Second Affidavits in Support of New Trial Motion. Technical Record pages 164 and 168. This Court would do the gentleman honor to mention his participation.
3. Where the evidence is not overwhelming and the issues are close, a prejudicial error will not be considered harmless. State v. Francis, 669 S.W.2d 85, 90-91 (Tenn. 1984) (sexual battery conviction); State v. Martin, 702 S.W.2d 560 (Tenn. 1985); State v. Suttles, 767 S.W.2d 403 (Tenn. 1989) (issues were very close and, thus, the procedural errors assume an importance which they might not have if the proof of the State against the defendant was overwhelming); and State v. Deuter, 839 S.W.2d 391 (Tenn. 1992). An “evidentiary error” will be deemed harmless in direct proportion to the degree of the margin by which the proof exceeds the standard to convict. Delk v. State, 590 S.W.2d 435, 442 (Tenn. 1979).
4. Indeed, only the prosecutor had sent an investigator to talk to Will Campbell prior to the trial. The investigator said that Will denied having sex with Michelle. This is not remarkable. Who would want to admit to having sex with a girl who was crying “rape!”?
5. The State was able to provide a detailed Bill of Particulars which designated the specific events around each count. See Technical Record Page 34. Ms. Kimbrell’s testimony pretty much followed the list.
6. The issue of severance is the one area where reasonable minds could differ as to the proper course of action. Some lawyers might want to resolve all the charges at one time so the prosecution could not change tactics with every subsequent trial. Other lawyers might prefer to have the charges resolved piecemeal. The point here is that the severance issue again demonstrates that proof of the thirty “extra” uncharged sexual assault were highly prejudicial and could have been blocked by a proper objection since they would not have been admissible even if all the charges were tried at one time.