Today’s decision in State v. James Thomas brings the third reversal, in about the last month, for prosecutorial misconduct in cases tried in Davidson County. (Notably, none of the DAs that argued any of these cases are still employed with the District Attorney’s office in Nashville.) It’s nice to see the Court of Criminal Appeals setting limits to what prosecutors can argue, because once these statements are made to jurors, you can't un-ring the bell.
To me, this case seems less egregious than the others, but you can decide.
Here are the facts:
M.B., the victim, testified that she dated the defendant for approximately two years when they broke up. During that time, he had been accused of domestic assault, and they had separate and reunited. During December 2009, they were living together, but the victim had plans to move out, and the understanding was that they were no longer in a romantic relationship.
M.B. stated that the Defendant would text her requesting sex when he was on the couch and she was in the bedroom. She stated that during the month of December 2009, she was forced to have nonconsensual sex with the Defendant on five separate occasions. On the night of December 27, 2009, she testified that the Defendant came into the bedroom and when she refused his requests, he retrieved a gun, and said he had a bullet in the gun for each of them. The Defendant put away the gun, returned to the bed, and engaged in nonconsensual sex with M.B.
The next day, M.B. went to the doctor who diagnosed her with pneumonia, but she never mentioned the rape. That night, the Defendant beat her up, but when taking out the order of protection, the victim never mentioned the rape. After telling a police officer during a domestic disturbance call, M.B. was interviewed by a sex crimes unit detective, who testified that the victim was very emotional during the interview, and it is the detective’s job to determine which victims are credible so the case can be prosecuted.
The State presented texts from the defendant to the victim, but the victim’s texts to him were “unavailable.” The State played the interview of the Defendant, where he denied nonconsensual sex, but agreed that he and the victim had fought. The Defendant testified at trial that the incident did not occur in the way the victim had described. The Defendant was convicted and sentenced to 16 years.
The CCA reversed on two grounds: the detective should not have been permitted to testify (over the objection of trial counsel) regarding the victim’s credibility, and the prosecutor made improper statements during Closing Argument.
First, the CCA disagreed with the State’s argument that, asking a sex crimes detective about the cases she chooses to prosecute and the legitimacy of the case before the jury, fell under Tennessee Rule of Evidence 105. The CCA found that such a line of questioning is inadmissible, and “whether or not a crime was committed and the Defendant’s guilt are legal determinations...” (This language is great, because it can be used to prevent an officer from testifying about the credibility of the defendant or the victim, or the legitimacy of the officer’s determinations, regarding any type of offense.) Though the police officer did not directly say, “I believe M.B.,” the CCA found that her testimony about credibility was clear to the jury, and it was not harmless error.
Second, the CCA found that the State’s closing argument violated the law in Judge and Goltz, even under a plain error analysis. Trial counsel did not object at trial. The CCA found that six separate statements made by the prosecutor were intended to express his personal belief in the credibility of the victim, the sex crimes detective’s personal belief in the credibility of the victim, or the prosecutor’s personal disbelief of the Defendant. Because this was a case of “he said, she said,” without any other corroborating evidence of a rape, the CCA found that these comments of personal belief were more powerful to a jury than if there had been significant evidence of guilt.
Again, I don’t think the misconduct in this case is overwhelmingly egregious, but it’s there. When combined with the line of questioning designed to show that the sex crimes detective is selective about what cases she prosecutes, and she chose to prosecute this case, I think the misconduct becomes notable. Read the FULL OPINION HERE.
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