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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE STATE OF TENNESSEE, ) vs. ) ) FENTRESS COUNTY CRIMINAL JAMES KIMBRELL, )
BRIEF OF APPELLANT DAVID L. RAYBIN Attorney for Appellant Hollins, Wagster, Weatherly & Raybin, P.C. Suite 2200, Fifth Third Center 424 Church Street - Nashville, Tennessee 37219 INTRODUCTION 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 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). Sue Ross 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). Bob Allred 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). Ed Hatfield 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 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. William Marshall Campbell(for the defense) William Campbell is a nineteen (19) year old resident of Fentress County. After Mr. Campbell's sixteenth (16th) birthday on May 26, 1996, he and Michelle Kimbrell engaged in sexual intercourse in the barn on James Kimbrell's property. After Mr. Campbell went home, he noticed that there was blood on his genitals (Volume IV, Sentencing Hearing, page 9). A few days later, thereafter, Michelle called Mr. Campbell on the telephone. During this conversation, Michelle requested that Mr. Campbell return to her house, whereupon she performed oral sex upon him (Volume IV, Sentencing Hearing, page 9). At this meeting, Michelle Kimbrell told Mr. Campbell that she had had sexually relations with three (3) other boys, Travis Stowers, Nathan Elliott, and Jessie Brown ( Volume IV, Sentencing Hearing, page 10). Prior to these two encounters, Michelle and Mr. Campbell had "fooled around" sexually, but "nothing serious" had happened ( Volume IV, Sentencing Hearing, page 7-8). The day before the trial of this matter, Mitch Stevens, the investigator from the District Attorney's office, spoke with Mr. Campbell ( Volume IV, Sentencing Hearing, pages 10-11). Mr. Stevens asked Mr. Campbell if he had sexual relations with Michelle Kimbrell. At the time Mr. Campbell denied having a sexual relationship with Michelle Kimbrell because he did not feel comfortable discussing the situation ( Volume IV, Sentencing Hearing, pages 11-12).(1) Danielle Faye Kimbrell (for the defense) Danielle Kimbrell is the twenty-one (21) year old niece of James Kimbrell residing in Muncie, Indiana. James Kimbrell would bring his adopted daughters, Michelle and Bethany, to visit Ms. Kimbrell and their family in Indiana twice a year. On one particular visit, Michelle told Danielle that she loved her parents, but she did not like the way she had been raised ( Volume IV, Sentencing Hearing, pages 21-22). On yet another occasion, Michelle approached Danielle about sex. Danielle was nineteen (19) years of age when this occurred in the summer of 1997 (Volume IV, Sentencing Hearing, page 21). Michelle and Danielle were on their way to the Wal-Mart store in Muncie, Indiana when Michelle asked Danielle if she ever had sex before. Since it was an "out of the blue" question, Danielle testified that she "sort of laughed about it". Michelle proceeded to tell Danielle that she had been having sex with her boyfriend at the time and she "had been letting him go down on her." Michelle asked for Danielle's advice regarding sexual techniques and positions ( Volume IV, Sentencing Hearing, pages 20-21). Danielle declined to answer Michelle's inquiry into her sexual background nor would she give advice about sexual techniques and positions. Travis Stowers(for the defense) At the time of the trial Mr. Stowers was an eighteen (18) year old resident of Fentress County. Mr. Stowers testified that he has never had sexual relations with Michelle Kimbrell. Jessie Lee Brown(for the defense) At the time of trial Mr. Brown was an eighteen (18) year old resident of Fentress County.Mr. Brown testified that he had sexual relations with Michelle Kimbrell when he was fifteen (15) years of age between two (2) oil tanks near a church in Clark Range, Tennessee (Volume IV, Sentencing Hearing, pages 26-27). He testified that the couple did not take all their clothes off, nor did they use condoms or any kind of prophylactics (Volume IV, Sentencing Hearing, pages 27). This was the only occasion he ever had sex with Michelle Kimbrell ( Volume IV, Sentencing Hearing, page 28). Frances M. Kimbrell (for the defense) Frances M. Kimbrell was married to James Kimbrell for over thirty-three (33) and a half years. The Kimbrell's had separated and Mrs. Kimbrell had filed for divorce when the allegations of sexual abuse arose involving her husband and their daughter, Michelle. (Volume IV, Sentencing Hearing, page 34). As grounds for the divorce, Mrs. Kimbrell stated that the two were incompatible, their marriage had simply deteriorated over the years, and they just no longer got along ( Volume IV, Sentencing Hearing, page 35). However, their relationship was still cordial ( Volume IV, Sentencing Hearing, page 36). Regarding Mr. Kimbrell impotence, Mrs. Kimbrell testified that he had gone to Livingston to see a doctor and that temporarily helped the situation. However, Mr. Kimbrell quit seeing the doctor and his sexual problems continued ( Volume IV, Sentencing Hearing, page 44). Mrs. Kimbrell testified that she had no knowledge of any sexual abuse by Mr. Kimbrell upon Michelle (Volume IV, Sentencing Hearing, page 38). Furthermore, Mrs. Kimbrell does not believe Mr. Kimbrell possesses the sort of character to have sexually abused Michelle ( Volume IV, Sentencing Hearing, page 38). There was an occasion when the Department of Human Services investigated Mrs. Kimbrell when Mrs. Kimbrell hit Bethany on the back with a plastic spoon. At that time, the Department of Human Services asked Ms. Kimbrell if she was willing to undergo counseling which she did (Volume IV, Sentencing Hearing, page 37). According to her adopted mother, there were many incidents over the years where Michelle did not tell the truth. Mrs. Kimbrell does not believe Michelle Kimbrell would tell the truth in a court of law (Volume IV, Sentencing Hearing, pages 38-39). Furthermore, Frances Kimbrell testified that she also believes that her other adopted daughter, Bethany, would lie in a court of law ( Volume IV, Sentencing Hearing, page 41). James R. Kimbrell(for the defense) James R. Kimbrell, the defendant's son, was thirty-four (34) years old at the time of trial. When Michelle came to live with the Kimbrell family, Mr. Kimbrell was married and living in Ohio, but he returned frequently and maintained a good relationship with his father. In Mr. Kimbrell's opinion, his father does not have the type of character to have molested Michelle or anyone else ( Volume IV, Sentencing Hearing, page 49). Mr. Kimbrell testified that he had never seen his father bare chested or without a shirt on in the house because of his modesty and his religious convictions ( Volume IV, Sentencing Hearing, page 50).
Danny Lee Kimbrell(for the defense) Danny Lee Kimbrell testified that his brother, James Kimbrell, has always been an honest and moral person. Mr. Kimbrell testified that he had never even seen his brother do anything immoral (Volume IV, Sentencing Hearing, page 51). Furthermore, James Kimbrell is a very strict and religious individual. As to Michelle, Mr. Kimbrell testified he would not believe anything she said in a court of law (Volume IV, Sentencing Hearing, page 52). Mr. Kimbrell testified that one of their other brothers, Mr. Lonnie Kimbrell, had an adopted daughter, Margo, who made false sexual abuse allegations against her father a year or two prior to Michelle's claims (Volume IV, Sentencing Hearing, page 53). However, the allegations against Mr. Lonnie Kimbrell never resulted in any criminal prosecutions. (Volume IV, Sentencing Hearing, page 53). [ Michelle was aware of this as her cousin would later testify (Volume IV, Sentencing Hearing, page 87). ] H. Mitchell Stevens( for the State) Mr. Stevens is employed by the district attorney's office in Fentress County as a victim witness coordinator. Mr. Stevens spoke with Mr. William Campbell, prior to the trial, who told him that he never had sex with Michelle Kimbrell, nor had he ever even kissed her (Volume IV, Sentencing Hearing, page 58). Bethany Kimbrell( for the State) Bethany Kimbrell testified that as punishment her father, Mr. Kimbrell, made her eat soap on one (1) or two (2) occasions (Volume IV, Sentencing Hearing, pages 60-61). Bethany Kimbrell testified that on two (2) occasions, Mr. Kimbrell touched her in places he should not have, such as her breast (Volume IV, Sentencing Hearing, page 60). This occurred in the basement while passing up the stairs in the Kimbrell house (Volume IV, Sentencing Hearing, page 60). However, when Bethany spoke with her sister, Julie Kimbrell, about the allegations made by Michelle against her father and Julie asked her if anything like this had ever happened to her, Bethany replied nothing improper ever occurred (Volume IV, Sentencing Hearing, page 66). Michelle (Kimbrell) Meadows (for the State) Michelle (Kimbrell) Meadows testified that she never had sexual relations with Will Campbell, Jessie Brown, Nathan Elliot, or Travis Stowers (Volume IV, Sentencing Hearing, page 68). Michelle denied having the conversation about sexual techniques with Danielle on the way to the Wal-Mart in Indiana. Michelle denied telling Danielle that she ever had sex with her boyfriend or inquiring about Danielle's sexual history (Volume IV, Sentencing Hearing, page 76-77). Michelle admitted that she wrote letters to Mr. Kimbrell saying that he was her hero. ( Exhibit 3, Volume IV, Sentencing Hearing, page 80-81) Although Michelle acknowledged that she kept a personal dairy, she acknowledged that she never wrote anything in her diary that indicated that her father was abusing her in any manner ( Exhibit 5, Volume IV, Sentencing Hearing, page 83). Danielle Kimbrell(for the Defense ) Danielle had a conversation with her cousin, Michelle, about the false sexual abuse allegations made by Margo against her adopted father, Mr. Lonnie Kimbrell. Michelle asked Danielle if Margo had gotten any money out of the sexual abuse accusations. Danielle responded that she did not know whether or not Margo received any financial benefits (Volume IV, Sentencing Hearing, page 87). C. MAY 2000 MOTION FOR NEW TRIAL HEARING Jessie Lee Brown(called by the Defense) Jesse Brown confirmed his testimony that he gave at the sentencing hearing that he did in fact have sex with Michelle Kimbrell. However, Mr. Brown testified that the initial meeting with Michelle was not at a church, but was slightly "down the road" at another girl's house. Mr. Brown testified said that he and Michelle still went back behind the same oil tanks and had sex ( Volume V, Motion For New Trial, page 13). Mr. Brown said that the reason he did not disclose the initial meeting location with Michelle was because of the presence of a girl by the name of Andrea Gunter. Mr. Brown testified that Andrea Gunter was there and had knowledge of his having sex with Michelle. Mr. Brown said that he did not want to involve Andrea Gunter in this matter and so he did not disclose this earlier (Volume V, Motion For New Trial, page 12). Andrea Gunter (called by the Defense) Andrea Gunter was a friend of Michelle (Kimbrell) Meadows. On one occasion, Michelle was visiting Andrea Gunter's residence when Jessie Brown came over. Ms. Gunter testified that Michelle and Jessie went off alone near some oil tanks, about forty (40) feet from her house. When they returned together, Michelle kissed Jessie and told him that she loved him. Afterwards, Michelle told Ms. Gunter that she had sex with Jessie Brown (Volume V, Motion For New Trial, page 35: this testimony is reproduced verbatim later in this Brief). Subsequently, Ms. Gunter spoke with Jessie Brown, who confirmed that he had sexual relations with Michelle Kimbrell ( Volume V, Motion For New Trial, page 36). To Ms. Gunter's knowledge, Mr. Brown and Michelle Kimbrell only engaged in sexual relations once ( Volume V, Motion For New Trial, page 37). Jetta Fulmer(called by the Defense) Jetta Fulmer, James Kimbrell's sister, is a resident of Yorktown, Indiana. Ms. Fulmer testified that her brother, James, and his daughter, Michelle, would come to visit she and her family in Indiana. Ms. Fulmer testified that Michelle and Danielle Kimbrell were friendly with one another and had been together on approximately eight occasions (Volume V, Motion For New Trial, pages 47-49). Exhibits 1 and 2 to the Hearing on the Motion for a New Trial are photographs which show Michelle and Danielle together. [ This proof was to rebut the testimony of Michelle who said she had only seen Danielle three times in her whole life and thus could not know about the incident involving Margo. ] Lonnie Kimbrell(called by the Defense) Lonnie Kimbrell, James Kimbrell's brother, was fifty (50) years old at the time of the hearing. In March of 1993, his adopted daughter Margo made a false allegation of sexual abuse against him (Volume V, Motion For New Trial, page 54). None of the allegations made by Margo were true (Volume V, Motion For New Trial, page 67). Fortunately, no criminal charges were ever brought against Lonnie Kimbrell. However, it was a long, arduous, and difficult process for he and his family. This matter (the false sexual abuse allegation made by Margo) was common knowledge to his family. Furthermore, it was the topic of conversation and it was made public ( Volume V, Motion For New Trial, page 56). James D. White, Jr. (called by the Defense) James D. White Jr., a graduate from the University of Louisville Law School, is an attorney who has been practicing law for seventeen (17) years. Mr. White was aware of Danielle Kimbrell's knowledge about her conversations with Michelle and in fact, she was subpoenaed to testify at trial ( Volume V, Motion For New Trial, page 77). According to Mr. White, his decision not to use Danielle, even though he knew about her testimony, was a tactical decision on his part because of the state of the law at the time. ( Volume V, Motion For New Trial, page 79). Mr. White explained that he had discussed other-sex evidentiary issues with Mr. Kimbrell and felt that Rule 412 precluded inquiry into that area. Thus he did not pursue it prior to trial particularly since he could not anticipate that the District Attorney would "open the door." ( Volume V, Motion For New Trial, page 78). Mr. White also said that until the release of the Supreme Court case it was " less clear at the time" if the door had been opened so as to get into the issue of the proof of other sexual events. [ The trial took place in September, 1999 and State vs. Brown, 29 S.W.3d 427 (Tenn. 2000) was released on January 24, 2000 ]. Mr. White subpoenaed Will Campbell and his mother for trial (Volume V, Motion For New Trial, page 79). As a tactical decision, Mr. White did not use them ( Volume V, Motion For New Trial, page 80). However, Mr. White did not interview Will Campbell (Volume V, Motion For New Trial, page 82). Mr. White never had a conversation with Jessie Brown prior to trial (Volume V, Motion For New Trial, page 83). However, had he known about the testimony of Jessie Brown or Andrea Gunter, Mr. White testified that he would have used them at trial (Volume V, Motion For New Trial, page 84). Furthermore, Mr. White would have used Danielle Kimbrell's testimony if he would have known about Andrea Gunter and Jessie Brown (Volume V, Motion For New Trial, page 85). If he had known about the false sexual abuse allegations made against Lonnie Kimbrell by his adopted daughter, Margo, Mr. White testified that he would have used that at trial as well, because it would have provided a motive for why Michelle did what she did ( Volume V, Motion For New Trial, page 85). Mr. White was aware of the doctrine of election but never insisted on an election. (Volume V, Motion For New Trial, page 86). Mr. White said he made "tactical decisions" not to call Mr. Kimbrell's ex-wife, his son, or use Michelle's letters and diary against her. ( Volume V, Motion For New Trial, pages 87 - 91). Finally, 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 91-2). Michelle Kimbrell ( called by the Defense) Michelle Kimbrell was called by the defense. She admitted that she once worked at a church near to where the oil tanks are located where Jessie Brown said he sex with her. (Volume V, Motion For New Trial, page 112 ) Ms. Kimbrell said that Andrea Gunter is an honest person (Volume V, Motion For New Trial, page 113) but that she never told Ms. Gunter about having sex with Jessie Brown. (Volume V, Motion For New Trial, page 114) Mitchell Stephens( called by the State in rebuttal) Mr. Stephens said he was a former sheriff and now works for the District Attorney's Office. He took a statement from Will Campbell which is Exhibit 14 in the record (Volume V, Motion For New Trial, page 117) In this statement Will Campbell says he only had oral sex with Michelle. Mr. Stephens said that Will Campbell was in Florida. (Volume V, Motion For New Trial, page 118) On cross-examination Mr. Stephens admitted that while Will Campbell had been given a polygraph test one was also administered to Jesse Brown. ( Volume V, Motion For New Trial, page 125). He also spoke with Andrea Gunter's mother. Shane Lyttle(called by the State in rebuttal) Mr. Lyttle testified that he had interviewed Fran Kimbrell who was Mr Kimbrell's ex-wife. The former wife had said at the beginning of the investigation that Mr Kimbrell could move Michelle into his bedroom because "she was practically there anyway." (Volume V, Motion For New Trial, page129) Linda Reagan(called by the State in rebuttal) Mrs. Reagan said that Jessie Brown was put into her foster care in 1996. (Volume V, Motion For New Trial, page 133) She said that Jessie told her he had had sex with Michelle in her bedroom. (Volume V, Motion For New Trial, page 133) She said that she had called Mr. Kimbrell about the sexual allegation involving Jessie Brown and Michelle. ( Volume V, Motion For New Trial, page 137). Mrs Reagan admitted that someone from the Kimbrell house had called her home but did not know it was Michelle Kimbrell at the time.(Volume V, Motion For New Trial, page 137). ARGUMENT I. MR. KIMBRELL 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. A. Mr. Kimbrell was charged with thirty counts of alleged sexual abuse against his adopted daughter. The government alleged approximately fifteen separate factual occurrences wherein Michelle Kimbrell claimed to have been sexually abused by Mr. Kimbrell. She testified, however, that there were far more than twenty sexual assaults. Michelle said that this had happened to her more than fifty times! (Volume II, Trial, page 71). Michelle claimed that she had been assaulted in just about every room in the house. She said she had been assaulted in the barn, in the bushes and in caves. She said this occurred in all manner of places in Fentress County. However, there was not one scrap of physical evidence to support her claim. There were no witnesses to any of this. The State repeatedly told the jury that this case boiled down to just the credibility of the witnesses, one side or the other. The State advised the jury that what little extra evidence that they might have would come in the nature of expert testimony that Michelle had had sexual intercourse. But of course, that expert could not say whether the intercourse had occurred six weeks prior to the examination or six years prior to the examination. (Volume III, page 136). The following statements of the District Attorney to the jury repeatedly focused on the fact that there was no other evidence other than Michelle's claim that she had had sex with someone and that the case was simply a matter of the credibility of the witnesses: GENERAL GALLOWAY: "Ladies and gentlemen, in these kinds of cases, you know, we all hope for, I guess, if there is a smoking gun or some kind of fingerprint, or something like that in some other kinds of crimes that - you know, is kind of conclusive proof which you can rely on, you don't have to evaluate all the credibility of all of the witnesses, and I will tell you know that that will not be the fact. There was a medical examination done of the victim and this is not the kind of rape case where something - an examination was done right after something happened, and you have got some kind of DNA - and will say, that is his fingerprint and it is him that done it. There will be no such proof. There will be some medical proof that will show that the findings of the nurse were consistent with what the child says happened, but they will be consistent with other things. Now, the fact that there is not any absolute, concrete, one hundred (100%) percent medical proof that the defendant did this in this case, the fact that that's not there, would you just - like the other situation, would you just simply be unable to convict anybody in the absence of that kind of proof, even if you are otherwise convinced - and just say - well, there ought to have been some medical proof, and there wasn't any, so whatever I believe otherwise, I can't find him guilty? Anybody fall in that category?" (Volume II, pages 16-17). "And the lady from Our Kids Clinic in Nashville who examined her, will tell you that this young lady of seventeen (17) had had sexual intercourse on doing the pelvic examination. And Michelle will tell you - I have had no sex with anyone else before that examination but with the defendant, James Kimbrell." (Volume II, page 50). "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). "Now, Michelle tells you that prior to January 7th, 1998, when I was examined by Sue Ross, I never had sex with anyone but that man right there, James Kimbrell. That is the only man I ever had sex with before I was examined." (Volume III, page 206). With regard to her trial testimony Michelle stated that she had not had sex with anyone other than the defendant: 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). There was a single reference in the trial to Michelle Kimbrell having sex with others but this drew an immediate objection from the District Attorney: Q [By Mr. White]: "No problems about her passing out condoms at school? A [By Shane Lyttle]: Yes, now he did say that.
THE COURT: Gentlemen, would you approach? (WHEREUPON, there was an off the-record bench conference between Court and counsel, out of the hearing of the jury.) THE COURT: Ladies and gentlemen, I sustain the objection made, that is to be stricken from the record, and is not to be considered proof of anything, or as any evidence or have any value to you in your deliberations at all, do you understand that? All right. You may proceed." (Volume III, pages 193-194). The defendant testified in this case that he did not sexually assault his daughter in any way. While he had some witnesses who supported his credibility, the defendant had no evidence to attack the credibility of Michelle Kimbrell. Mr. Kimbrell was convicted on 22 counts of sexual abuse and was sentenced to 40 years in prison. Given his age, Mr. Kimbrell will die in prison absent a new trial. The evidence at the Sentencing Hearing and at the hearing on Motion for New Trial established that following Mr. Kimbrell's conviction, Mr. Kimbrell's family retained the undersigned counsel to investigate the case. The undersigned counsel found out the names of some of the acquaintances of Michelle Kimbrell. The undersigned counsel summoned these boys and girls to court through the process of subpoena or through the assistance of the prosecutor.(2) Two of the three male acquaintances swore under oath that they had had sex with Ms. Kimbrell and both withstood rigorous cross-examination. Jessie Brown testified both during the sentencing hearing and again at the hearing on the motion for a new trial that he had sex with Michelle near some oil tanks. See, Volume IV, Sentencing Hearing, pages 26-27 and Volume V, New Trial Motion Hearing, pages 6-15. It is true that the other boy, Will Campbell, retracted part of his testimony about his own sexual adventure with Michelle but he still confirmed that he had had "oral sex" with her. See Exhibit 14 to the Motion for New Trial. Apart from the proof of Jessie Brown, the most telling testimony was that of Michelle's girlfriend, Andrea Gunter, who had heard Michelle admit to the sex with Jesse Brown at the oil tanks:
Q How long were they gone? A About ten (10) minutes Q . Now, when they came back, just tell me what happened. A. Okay. They came back together. Michelle kissed Jessie, told him that she loved him and she ran inside my house. Q. Okay. Did you have a conversation with Michelle about what had happened over there by the oil tanks? A. She told me. Q. What did she tell you? A. She told me they had sex. Q, When did she tell you that? A. When I came back inside. Q. I beg your pardon. A . ..When I came back inside my house, 'cause she was already in there Q. How did the conversation come up? A. She just told me. Q. Okay. Did you say anything to her? A. I was shocked. Q. And you saw her kiss Mr. Brown and say I love you? A. Yes, I did. Q. And then she ran in the house? And you questioned her - said she just had sex with Mr. Brown? A. I didn't question her, she just told me. Q. She just came out with it - okay. Did you talk to Mr. Brown about any of this? A. Yes, I did. Q. When did you talk to him? A. Later on. Q. Huh? A. Later on. I don't remember when, but it was later. Q. Later that same day or later No, later on. - days or weeks later? A. Probably. Q. Okay. What kind of conversation did you have with Mr. Brown about this? A. He just told me what happened and then recently we talked about it, because all of this came up. Volume V, New Trial Motion Hearing, pages 35-36. The proof at the hearing on the Motion for New Trial established further that prior counsel had interviewed Michelle Kimbrell before the trial and she told him in an interview that she had never had sex with anyone else other than Mr. Kimbrell according to her. (Volume IV, New Trial Motion, page 72 ) There was no further inquiry on that point except for the fact that prior counsel did interview Michelle's first cousin, Danielle Kimbrell, who gave information to prior counsel about her conversations with Michelle Kimbrell about sex. (Volume IV, New Trial Motion, page 77 ) Yet, prior counsel did not use that testimony even though he was aware of same at the trial. Danielle Kimbrell was subpoenaed to testify at the trial and, in fact, appeared at the trial but was never used. (Volume IV, New Trial Motion, pages 78-79 ) Further investigation by the undersigned counsel disclosed that Mr. James Kimbrell has a brother, Lonnie Kimbrell, who also had an adopted daughter who also made similar allegations against Mr. Lonnie Kimbrell. This was a matter of common knowledge in the family and Danielle Kimbrell testified that she had had actually discussed this matter with Michelle Kimbrell ! (Volume IV, Sentencing Hearing, page 87) Apparently the girl in the other matter (Margo) had made up these allegations so as to get away from her adopted father. This all sounds very familiar. Mr. Lonnie Kimbrell appeared at the Motion for a New Trial hearing and testified about the allegations against him made by Margo, none of which resulted in any criminal prosecution whatsoever but which were subject to criminal investigation for quite some period of time on dates prior to the surfacing of the allegations by Michelle Kimbrell against Mr. James Kimbrell here. ( Volume V, Motion For New Trial, page 56) Lonnie Kimbrell's adopted daughter, Margo, claimed she was sexually abused "from the age of ten" and that she was "whipped and beaten." The false allegations made by Lonnie Kimbrell's adopted daughter became very public when Lonnie Kimbrell and his wife testified in committee of the Indiana legislature about their ordeal. Newspaper accounts of this ordeal were exhibited at the hearing of the Motion for New Trial in Mr. James Kimbrell's case. See, Defense Exhibit 4 at New Trial Motion Hearing. As noted, Michelle was well aware of all this (Volume IV, Sentencing Hearing, page 87) and could well have cooked up a similar scheme to get away from her adopted father and his strict religious beliefs which she believed were oppressive. This is more than enough motive here for her to lie. In summary, the defense showed that post-trial investigation established that Michelle Kimbrell had various sexual exploits with two other boys. Not only had the defense produced the credible testimony of the boys but there was the testimony of the Gunter girl who said that Michelle had admitted this to her! There was additional testimony available that Michelle Kimbrell had made statements about having sex with her boyfriend to Danielle Kimbrell but that testimony was not made known to the jury. The defense asserts that the testimony about Michelle's sex with others either constitutes newly discovered evidence or that, in the alternative, the defense attorney rendered ineffective assistance of counsel in failing to acquire this proof and present it to the jury. B. Assuming this Court does not find "deficient performance" on the part of the prior trial counsel for Sixth Amendment purposes ( as will be argued in the next issue), the defense then asserts here the alternative ground that the testimony of the two boys and the girl constitutes newly discovered evidence. Under Tennessee law, newly discovered evidence requires that the defense establish (1) reasonable diligence, (2) that the newly discovered evidence is material, and (3) that such evidence is likely to change the result of the trial if accepted by the jury. State v. Goswick, 565 S.W.2d 355 (Tenn. 1983). It is absolutely clear here that the testimony of the two boys and the Gunter girl is "material" to the defense. It is absolutely clear that, given the closeness of the proof, this testimony could well have resulted in a reasonable doubt being raised which could have avoided a conviction either by hung jury or an outright acquittal. The materiality component of the newly discovered evidence rule is self-evident in this case. One has but to examine the comparable harmless error doctrine to see how slight evidence can make a significant difference in a close case.(3)The government can make no claim that this proof is not highly material. The proof about Michelle's sex with others would clearly have been admissible both to explain the expert testimony of Nurse Ross and also, of course, to destroy Michelle Kimbrell's credibility when she claimed that she had never had sex with anyone but Mr. Kimbrell. The defense agrees with the District Attorney that this case "boiled down" to the credibility of witnesses. However, Michelle Kimbrell's credibility may well have evaporated in the "boiling process" by this most important rebuttal proof which went to the very heart of her allegations against Mr. Kimbrell. That critical evidence clearly could have constituted the reasonable doubt necessary for a much different verdict. Rule 412, Tennessee Rules of Evidence is extremely restrictive as to collateral proof of sexual misconduct on the part of alleged rape victims. This rule, also known as the "rape shield rule" provides for a host of procedural protections designed to keep a woman's character from being paraded in front of a jury when such has very little relevance as to some other alleged sexual assault. The rule, of course, is not without its limitations and exceptions. Rule 412(c), Tennessee Rules of Evidence provides in Subsection (4)(i) that evidence of sexual behavior with persons other than the accused may be admissible to "rebut or explain scientific or medical evidence." Michelle Kimbrell said that she did not have sex with anyone else except Mr. Kimbrell. Nurse Ross said that Michelle Kimbrell had been penetrated by someone on some date prior to the examination. Thus, evidence of sexual relations with persons other than the defendant would clearly have been admissible to explain or rebut this scientific evidence introduced by the State. In State v. Howard Brown, 29 S.W.3d 427 (Tenn. 2000) the Supreme Court considered the admissibility of prior sexual behavior with another person in a case very similar to our case here. In Brown the defendant was indicted on four counts of sexual abuse of an 11-year-old family member. The girl was examined by a physician who testified that the girl had been penetrated. The judge would not allow testimony concerning prior sexual behavior "to provide the jury with an alternative explanation for the complainant's medical condition." The specific testimony at issue in Brown was that of other witnesses who had heard the girl make statements that she had had sexual intercourse with an adolescent male during the time the defendant allegedly committed aggravated rape on her. The Supreme Court opinion spent a great deal of time as to whether this type of testimony constituted admissible hearsay, in light of the fact that the defendant did not have the actual boy there in court but was only seeking to introduce the victim's statements to others about her collateral sexual behavior. Even though this testimony constituted hearsay the Supreme Court found that "the State's interest in enforcing the hearsay rule to exclude the evidence is substantially less than Brown's compelling interest in presenting the evidence." The Supreme Court found that the evidence was admissible in language which is entirely relevant here: "Considering the foregoing analysis, we conclude that Brown's constitutional right to present a defense was violated by exclusion of the proffered hearsay evidence. Excluding the proffered evidence essentially deprived Brown of an opportunity to present to the jury critical evidence of an alternative explanation for the complainant's hymenal injury. In the absence of this evidence, the jury no doubt attributed the complainant's physical condition to Brown's alleged criminal conduct. As previously noted, when the prosecution relies upon evidence of a complainant's physical condition in a sexual assault/abuse case involving an underage rape complainant, defense evidence that provides an alternative explanation for the condition is particularly critical. Indeed, the only evidence which made this case more than a pure credibility contest was the State's expert proof of physical injury to the complainant. Significantly, the State's own medical expert conceded on cross-examination that the physical injury he observed was consistent with the complainant engaging in a consensual sexual encounter with an adolescent male. Under such circumstances, depriving the defendant of the right to present critical, reliable hearsay evidence of an alternative explanation for the injury is constitutional error. We are unable to conclude that error was harmless beyond a reasonable doubt in this case. (emphasis added). State v. Howard Brown, 29 S.W.3d 427, 435-436 (Tenn. 2000) The Brown analysis applies with even greater force here because, unlike Brown, the defendant here does not just rely upon hearsay statements of third persons as to whether Michelle had engaged in sex with others; the defense actually produced the other boys. As in Brown the defense produced Michelle's girlfriend Andrea Gunter who testified that Michelle admitted her sexual encounter with Jesse Brown at the oil tanks minutes after it occurred ! Now this, in the words of the Supreme Court, is "critical evidence of an alternative explanation" for the medical proof. Brown also found that the case should be reversed and that the error was not harmless because the medical evidence was the only additional proof that the State had apart from the testimony of the alleged victim there. In our case, as the prosecutor continuously reminded the jury, there was no other evidence other than the credibility of witnesses back and forth. There is of course an additional reason why the testimony of the two boys and the Gunter girl in our case makes a new trial compulsory: their testimony directly rebutted not only the Nurse's proof but in addition rebutted Michelle Kimbrell's testimony that she did not have sex with anyone other than Mr. Kimbrell. Materiality leaps from the pages of the record. Under any definition this clearly constitutes newly discovered evidence which directly impeaches the trial testimony of Michelle. Indeed, the statements by Andrea Gunter that Michelle actually told her that she had just had sex with Jesse Brown is factually identical to the holding in State v. Brown, supra. In addition, Andrea Gunter's testimony in conjunction with the testimony of Mr. Brown leaves no doubt that there is significant evidence that Michelle Kimbrell had sex contrary to her trial testimony. This goes directly against her credibility and also fully explains the medical testimony. The testimony of Danielle Kimbrell that Michelle had made statements to her about boyfriends and sexual positions and the like added additional proof that Michelle Kimbrell had engaged in sex with others. Michelle denied the statements that Danielle related in open court. This, again, was a question of credibility but the jury never heard this testimony. Clearly Danielle's testimony would have been admissible. The prosecutor made the following argument to the jury here: "Sue Ross, who is an expert in the area of doing physical examinations on abused children, to determine what injuries and how they were suffered, and how - she can explain that and how that relates to whether or not a crime has been committed. She told you that on the 7th of January of 1998, after this was reported, that she examined Michelle. And she can say - she has suffered a penetrating injury, trauma to the vagina. Which indicates that she has had sexual intercourse. So, this - we know that she has had sexual intercourse. Now, Michelle tells you that prior to January 7th, 1998, when I was examined by Sue Ross, I never had sex with anyone but that man right there, James Kimbrell. That is the only man I ever had sex with before I was examined. There has not been one iota of proof that she had sex with anyone before that date, except James Kimbrell." (Volume III, pages 205-206). This prosecutor will never again be able to make that argument to another jury. The point is, of course , that another jury must hear this case anew and allow the State to argue what it will but to also allow the defense the opportunity of presenting all the facts. In summary, then, it is absolutely clear that the testimony and proof of sex with others as well as the statements by Michelle to Danielle about a "boyfriend" and "sexual positions" would have been admissible in this trial. It was critical evidence particularly given the fact that the State was relying almost entirely upon the word of Michelle Kimbrell. The only remaining inquiry is whether the defense has established that "due diligence" would not have produced these witnesses. This, of course, is the mirror image of the Sixth Amendment question. If the State contends that the trial lawyer was not deficient in failing to uncover the two boys and the Gunter girl then due diligence was exercised and the "newly discovered evidence" rule applies with full force. If the State argues that "due diligence" would have produced these witnesses, then the original defense attorney was deficient in failing to uncover them which is a Sixth Amendment violation. As will be discussed later in the Sixth Amendment argument, the trial lawyer did not explore the proof of Michelle's sex with others because he could not see how that could have been admissible at the trial given the strictures of the rape shield law. He was certainly told by Mr. Kimbrell and his family about some of these maters both before and during the trial. When the prosecutor arguably opened the door to this proof at the end of the trial Mr. White tried to get into this but was cut off by the judge. Q [By Mr. White]: "No problems about her passing out condoms at school? A [By Shane Lyttle]: Yes, now he did say that. Q [By Mr. White]: All right. About her having sexual relations with someone else. GENERAL GALLOWAY: I object to that. He knows good and well - that that violates Rule 412, now he has complained every time about me. THE COURT: Gentlemen, would you approach? (WHEREUPON, there was an off the-record bench conference between Court and counsel, out of the hearing of the jury.) THE COURT: Ladies and gentlemen, I sustain the objection made, that is to be stricken from the record, and is not to be considered proof of anything, or as any evidence or have any value to you in your deliberations at all, do you understand that? All right. You may proceed." (Volume III, pages 193-194). Mr. White testified that when the family wanted him to pursue this he explained to them that he would be in contempt if he did. (Volume IV, New Trial Motion, pages 83 ) Mr. White was of the view that it was not absolutely clear to him that the prosecutor had opened the door to the other-sex-evidence given the law at the time and thus he did not pursue the issue with the family or Mr. Kimbrell. In short, he never investigated further and never asked the critical questions which would have lead to the truth of the matter. Mr. White used sufficient diligence given the legal standard prevailing at the time. State v. Howard Brown, 29 S.W.3d 427 (Tenn. 2000) did not exist at the time of this trial which took place in late 1999. Mr. White testified that the "release of the recent Supreme Court case" made in clear in retrospect that the district attorney had well opened the door. (Volume IV, New Trial Motion, pages 75- 76 ) Hindsight is forbidden in a Sixth Amendment inquiry; it is mandatory in a newly discovered evidence evaluation. It is easy to say in hindsight that Mr. White should have inquired further and thus he failed to use due diligence. But due diligence is only necessary if it was apparent that further inquiry would have resulted in ADMISSIBLE evidence. See, State v. Newsom, 995 S.W.2d 129 ( Tenn. Crim. App. 1998) (allegedly newly discovered evidence consisting of testimony of witnesses who overheard third party confess to murder for which defendant was convicted was inadmissible hearsay evidence), State v. Poole, 462 S.W.2d 256 (Tenn. Crim. App. 1970) (statements of unidentified person that while in jail, two men stated to him that they had stolen an automobile and had a flat tire and that person with same initials as defendant stopped to help out and that they left him with automobile would have been inadmissible in prosecution of defendant for grand larceny and did not, therefore, constitute newly discovered evidence). Our case represents an instance where legal diligence at the time would have arguably produced nothing since Brown was still four months away. Thus due diligence was exercised given the prevailing state of the law at the time and that the arguable "door opening" occurred during the trial and the defense was precluded even asking about this at the end of the trial. Further discussion of the "due diligence" issue is unnecessary. As has been and will be noted, if the lawyer failed to use due diligence in anticipating the law, he rendered ineffective assistance of counsel and thus a new trial should be granted on that ground. If he did exercise due diligence then the newly discovered evidence rule applies with full force. C. Given the fact that there was no other evidence apart from her "word" to support her claims that the Mr. Kimbrell sexually assaulted her, the proof which damaged Michelle's credibility becomes profound and thus this Court should grant a new trial under the doctrine of newly discovered evidence, ineffective assistance of counsel, due process, and clearly in the interest of justice. In the final analysis it matters not why these witnesses were not summoned to court: the point is that they should have been and indeed must appear before another jury so that this Court can conclude that justice is done. Indeed, the absence of this critical testimony constitutes a Due Process violation. In State v. Singleton, 853 S.W.2d 490 ( Tenn. 1993) the Supreme Court found that "[g]iven the minimal evidence of guilt and the importance of the officers' credibility to the conviction, we are convinced that justice requires a new trial" in light of newly discovered evidence impeaching the primary officer's credibility. Accordingly, this Court should reverse this conviction and grant a new trial based on the Sixth Amendment violation or the newly discovered evidence rule. II. THE TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL. Mr. Kimbrell's convictions are invalid in light of the ineffective assistance of his trial counsel in violation of Article I, Section 9 of the Tennessee Constitution and the Sixth Amendment to the United States Constitution by the specific errors and omissions of his trial counsel; hereinafter referred to as "ineffective assistance of counsel." Mr. Kimbrell's convictions are also invalid in light of the violations of his Fifth and Sixth Amendment rights as well as comparable provisions of the Tennessee Constitution under Article I, Section 9 as well as the Due Process provisions of the United States and Tennessee Constitutions. Mr. Kimbrell asserts that the original trial lawyer's failure to interview Will Campbell (who was subpoenaed to the trial) or locating Jessie Brown and interview him, as well as the failure to present the testimony of Andrea Gunter and Danielle Kimbrell deprived Mr. Kimbrell of the effective assistance of counsel. For the reasons expressed in the preceding issue, the absence of this critical evidence severely prejudiced Mr. Kimbrell because this testimony would have contradicted the alleged victim as to her credibility and would have also explained the medical proof of penetration. A. It is true that the defendant has the burden of establishing that the advice given or services rendered by the prior attorney fell below the range of competency demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975). However, given the facts in the entire record, the defense can sustain that burden here. Under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984) there is a two-prong test which places the burden on the defendant to show that (1) the representation was deficient, requiring a showing that counsel made serious errors and, (2) that the deficient representation prejudiced the defense to the point of depriving the defendant of a fair trial with a reliable result. Prejudice is shown by demonstrating a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. There is no requirement, however, that the defense demonstrate that the result actually would have been different. As will be noted, the possibility of raising a reasonable doubt is sufficient to constitute prejudice. State v. Burns, 6 S.W.3d 453 (Tenn. 1999). In this case the defense attorney testified that he asked Michelle Kimbrell if she had ever had sex with anybody other than Mr. Kimbrell and she said that she did not. The defense attorney was aware of and had interviewed Danielle Kimbrell but made no further inquiry regarding the sexual past of Michelle Kimbrell. In this case, given the fact that there was medical evidence showing penetration, the only alternative explanation for this medical evidence would have been that Michelle had engaged in sex with other persons. Thus, it was absolutely vital that the defense attorney make a reasonable effort to inquire further. "Reasonable efforts" depend to a great degree upon the facts and circumstances of the case. Here, the two boys lived in the community and one had but to simply ask them about their involvement with Ms. Kimbrell to have learned the answer to the question. Indeed, there was nothing magical about how these two boys came to testify at the sentencing hearing. One of the boys was subpoenaed and the other one was summoned to court through the good offices of the district attorney. See Affidavits in Support of New Trial Motion. Technical Record pages 164 - 169. The boys were asked right on the courthouse square about this situation. See, Volume V, Motion For New Trial, page 84 , testimony of Mr. White that Jessie Brown was interviewed just prior to the sentencing hearing "out in the courthouse yard." They were then brought into the courtroom and testified in open court about what they knew. This testimony, of course, opened up a world of other evidence such as the testimony of Andrea Gunter and Danielle Kimbrell. A criminal case is like an onion: the lower layers are only revealed after pealing off the top. Mr. White testified that he would have used Danielle Kimbrell's testimony if he would have known about Andrea Gunter and Jessie Brown (Volume V, Motion For New Trial, page 85). If he had known about the false sexual abuse allegations made against Lonnie Kimbrell by his adopted daughter, Margo, Mr. White testified that he would have used that at trial as well, because it would have provided a motive for why Michelle did what she did ( Volume V, Motion For New Trial, page 85). The defense established at the hearing on the Motion for New Trial that Will Campbell was actually subpoenaed to the original trial but apparently defense counsel never actually interviewed him. If the defense attorney had interviewed the boy, he would have learned what we all now know.(4) Again it is true that Will retracted some of his testimony, yet, he led to Jesse Brown and the Gunter girl. It is elementary that a lawyer has a duty to "conduct appropriate investigations into both the facts and the law to determine what matters of defense can be developed." McBee v. State, 655 S.W.2d 195 (Tenn. Crim. App. 1983). The duty to investigate requires the development of defense proof. Hellard v. State, 629 S.W.2d 49 (Tenn. 1982). See also, Goad v. State, 938 S.W.2d 363 (Tenn. 1996) where the Court determined that the failure to present defense witnesses prejudiced the defendant's right to competent counsel. The failure to even interview Will Campbell and to simply find Mr. Brown and Andrea Gunter was below the standard required of lawyers in criminal cases. See, State v. Zimmerman, 823 S.W.2d 220 (Tenn. Crim. App. 1991). Having established that trial counsel breached his duty to adequately investigate the case so as to fully develop the proof, the question remains as to whether this worked to the prejudice of the defendant. With regard to ineffective assistance of counsel claims, the courts in effect, equate prejudice with whether the failure to put on the missing proof was material to the defense. This is discussed in great detail in Zimmerman, supra where the Court found that the failure to call certain witnesses constituted deficient performance of trial counsel. The Court further concluded there that the absence of the material evidence caused by the lawyer's deficient performance prejudiced the defendant in a homicide prosecution. The same result should apply here. In determining prejudice, this Court must consider the strength or weakness of the State's case as it existed prior to the disclosure of the "missing proof." In Strickland v. Washington, 104 S.Ct. 2052, 2069 (1984) the Court found that: "Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture and some will have had an isolated, trivial effect. Morever, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming support." When measured against this standard, it is clear that the testimony of the two boys as well as that of Andre Gunter and Danielle Kimbrell significantly alters the entire evidentiary picture in a case where there was virtually no additional evidence beyond that of the complaining witness. There can be no suggestion here that the failure to use these witnesses was some pre-trial "tactical decision" given that the trial attorney did not speak to either boy or the Gunter girl. See, Goad v. State, 938 S.W.2d 363 (Tenn. 1996)(the failure to summon critical defense witnesses "was not a tactical decision; it was a mistake - a grievous error.") The preceding analysis was applied in State v. Brenda Burns, 6 S.W.3d 453 (Tenn. 1999). While better known for the lesser-included offense question, Burns also involves a successful claim of ineffective assistance of counsel. In Burns the defendant was accused of soliciting a "hit man" to kill her former husband. There was very little evidence in the case apart from the testimony of the actual killer that Mrs. Burns had anything to do with the killing in any way. Following the trial, newly retained counsel located two witnesses who testified at the hearing on a motion for new trial that they were present when other persons were discussing the death of Mr. Burns and that Mrs. Burns was not a party to these conversations. The trial judge gave no credit to this new testimony and denied any relief. Both this Court and the Supreme Court reversed the conviction finding that the defense attorney was deficient in failing to interview either witness and that this materially prejudiced the defense. In Burns, the Supreme Court made it clear that a trial lawyer "has a duty to make a reasonable investigation." The Court concluded that the failure to investigate the two other witnesses constituted deficient performance of counsel. As to the materiality of the additional proof, the Supreme Court found that: "If these witnesses had substantiated the existence of a separate conspiracy to kill Mr. Burns, the defense could have offered the jury an alternative theory about how Burns was killed. This Court cannot fathom why counsel chose to ignore this avenue of defense." 6 S.W.3d, at 462-463. As to the critical issue of "prejudice," the Supreme Court found the "corroborating evidence" was "scant." Thus, "given the minimal corroborating evidence, we believe a reasonable possibility exists that admission of the evidence of an alternative plot by [others] to kill Burns would have raised a reasonable doubt in the jurors' minds as to the defendant's involvement in the scheme." 6 S.W.3d, at 463. Thus, the conviction was reversed. Burns applies with equal force here. Just like in Burns, there were additional witnesses who could have been acquired with relative ease. Just like in Burns, the testimony of these additional witnesses was absolutely critical to the defense not only to negate the single piece of expert testimony which the government produced, but to directly contradict the credibility of the only alleged "witness." As in Burns, the evidence against Mr. Kimbrell is "scant" apart from the testimony of his adopted daughter. There is virtually no "corroborating evidence." Thus, given the facts here, the proof of sex with other boys would, in the words of Strickland, "have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture." At this point it is important to note that the sex-with-others is something that came up "during the trial." Mr. White testified that he did not investigate this issue prior to trial because he said he did not anticipate that the prosecutor would ask Michelle if she had only had sex with Mr. Kimbrell. ( testimony of Mr. White, Volume V, Motion For New Trial, page 82 ) This Court should refer to the trial record at Volume III, pages 193-194 to see that the prosecutor objected to Mr. White's question to the DHS worker about Mr. Kimbrell's inquiry to the worker about Michelle's sex with others. Obviously what information the defendant had told the DHS worker about this area could not be pursued at the trial. Mr. White testified that when the family asked him to get into that issue he responded that the judge had ordered him not to and that he could be held in contempt if he pursued that area. (Volume V, Motion For New Trial, page 83). Thus, the lawyer's lack of investigation and further inquiry of Mr. Kimbrell and his family could be explained by the perceived evidentiary restrictions. When the trial was over Michelle's testimony that she had only had sex with Mr. Kimbrell became much more relevant with the release of State v. Brown on January 24, 2000. As discussed earlier, Brown made clear that the rape shield law was not an absolute bar to proof of sex-with-others. Mr. White testified that, prior to trial, Mr. Kimbrell had wanted Mr. White to pursue Michelle's sex with other people. (Volume V, Motion For New Trial, page 75 ) However, Mr. White did not pursue this area because he did not think the District Attorney would "open the door." (Volume V, Motion For New Trial, page 76). The undersigned counsel learned about this same evidence from Mr. Kimbrell and his family after the trial. See, affidavit of David L. Raybin, Technical Record pages 164 - 169. The undersigned counsel could review the record and see that the prosecutor had opened the door very wide. It did not take a great deal of effort to see that one could then drive the proverbial truck through the portal particularly since the Brown decision had cleared the right-of-way. As noted, Mr. Kimbrell himself had asked about this prior to trial. The family asked Mr. White to pursue this further during the trial. Apparently Mr. White did not question Mr. Kimbrell or the family further because of the trial judge's ruling and the perceived state of the law at the time. It is true that the end of a trial is not the time to do an investigation into an area the judge has foreclosed. Arguably, Mr. White should have inquired further but he was concerned with contempt ( Volume IV, New Trial Motion, page 83) and his failure to pursue this is understandable given that Brown may well be a perceived sea change in the interpretation of the rape shield law. This discussion of Mr. White's perception of the law ( and thus failing to pursue the facts ) leads to an inquiry of whether this scenario actually raises a Sixth Amendment violation. Appellate counsel is compelled by his duty to his client to assert the ineffective assistance of counsel ground in this determinative issue. In reality this may well be the office of newly discovered evidence as alleged in the first issue in this brief. The diligence component of the newly discovered evidence doctrine is certainly satisfied if Mr. White's failure to pursue the factual trail of other-sex-evidence was due to the prevailing state of the law at the time. If the government claims that Mr. White should have foreseen the Brown result then this is a Sixth Amendment violation. If he could not, then this is the realm of newly discovered evidence. Either way, the evidence is more than material. It is crucial and thus a new trial is inevitable. B. Now is a good time to address the trial judge's "finding of fact" in denying the new trial motion. (Volume VI, Findings of Fact Transcript) and (Technical Record, page 173). The judge's pertinent findings of fact are as follows:
[The Court] On the first Amended Motion for New Trial, Number Three, essentially sets the summary basis for ineffective assistance of counsel, so that one will be answered by the responses in the remaining counts. Number Four, defendant's attorney rendered ineffective assistance because he failed to adequately interview Mr. Will Campbell. According to the transcript, there was little, if anything, to go on by counsel at trial, Jimmy White, concerning Mr. Campbell. Let me, let me make sure that the record is clear about that. This Motion for New Trial alleges two (2) grounds on this. Number One, that the defendant's attorney was ineffective assistance, rendered ineffective assistance as counsel. Number Two, that this is newly discovered evidence. As to Mr. Campbell's evidence, I find it is incredible. I don't, I don't believe that it would have changed the jury verdict, in fact, if Mr. White had, had called this witness. It would not have changed the jury's ruling. Mr. Campbell was impeached numerous ways at the time that he testified at the Motion for New Trial previous to this. The next ground was failing, was Mr. White's failure to adequately investigate the allegations that were made after trial by Mr. Jessie Brown, concerning having sex with the victim. And, and back to Mr. Campbell, he was, also, alleging that he had had sexual relations with the victim. I found Mr. Brown's testimony incredible, and I don't believe that it would have changed the jury's verdict; and, therefore, it doesn't reach the criteria of newly discovered evidence and would not have changed the verdict; thereby, no prejudice is shown by Mr. White's failure to, to call this witness. Six and Seven, I've really answered those questions. The, Number Eight, failure to call Danielle Kimbrell, Mr. White explained during his testimony at the Motion for New Trial that he had made a tactical decision as to how, how he was going to try this case. He did so very forcefully and, in a great many ways, effectively. Certain counts that had been indicated were dismissed, and I don't think that Danielle Kimbrell's testimony, on behalf of the defendant, would have affected the jury verdict. So, I will find that that ground is overruled. The -- He, also, explained in Number Nine, Allegation Number Nine, Mr. White explained at, at the Motion for New Trial why he failed to call her, and it was a tactical decision; and there's been no prejudice showing that the failure to call her would have changed the verdict. Number Ten, the failure to call James Kimbrell (the son) as a character witness, he explained very clearly in the transcript why he did not call family members for the purpose of -- and that would, also, address Number Eleven, Danny Kimbrell, the defendant's brother. Ten and Eleven, both Mr. White made the tactical decision not to call a family member for the purposes of supporting the credibility of, of the defendant; and the Court accepts that and finds the failure to call would not have prejudiced, did not create prejudice to the, to the trial or to his client. Number Twelve, the allegation that a brother had been accused of the same thing, the same type of action that Mister, that James Kimbrell was accused of, and if I'm not, and that - The allusion was made that, that this would have been the motivation for the complaints in this case, I find very tenuous and I don't, I don't believe that they are supportive of any, any type of ground for new trial. Number Thirteen, failure to cross-examine the victim with her diary, again, it was consistent that that - That non-action was consistent with the defense theory at trial. It was a tactical decision, and there's been no showing, from review of the diary or any other, any other evidence, that this would, this would have prejudiced Mr. Kimbrell or the, or the case at all. . . . *********** Number Twenty, the question of election, I feel that that ground was covered at great length during the trial by, by each party. The Court, as always, gave the instruction that each, each ground, each count stands on its own evidence, that a jury is entitled to acquit on each charge, convict on each charge, or acquit and convict based on the evidence that goes to support each count. So, I do think that there was a proper instruction given there, and I'm overruling that motion, or that ground. That's also, Number Twenty-One, would, would be answered the same way. Number Twenty-Two, the Court failed to give limiting instruction as to how the jury was to consider, I don't think, I don't think that that failure would rise to the level of a ground, a sufficient ground to give this defendant a new trial. Twenty-Three, defense counsel not, not demanding an election, I think that's been covered by my rulings. That was covered by my rulings during the trial, and I don't believe that that failure to demand such an election rises to the level of ineffective assistance of counsel; and that ground is overruled. Number Twenty-Four is overruled. All right. The Court feels that the evidence was clear, that the Bill of Particulars, or that the evidence used in support of each particular count was specific and clear enough for a jury to return their verdict, based on the evidence alone; and I'm not going to assume that the jury was prejudiced by other possible activity. The Court gave curative instructions as the trial went on as to how the jury was to consider extraneous evidence that had nothing, that had very little to do with, with the actions that the defendant was accused of. Number Twenty-Five, failure to object, I don't find any, I don't find sufficient prejudice that would support ineffective assistance of counsel, and, therefore, grounds to give a new trial; so that one is overruled. Number Twenty-Six, as to severance, I don't find there was sufficient evidence to support a severance. These actions involved the same defendant, the same victim, and it was a continued course of conduct, and I don't, I don't believe that requesting severance - First of all, I would not have granted a severance and, therefore, I don't think that failure to do so would have created any prejudice. All right. Now, as to Twenty-Seven, that is, that, essentially, goes back to the newly discovered evidence, found that Jess Brown, Jessie Brown, his testimony was not credible and would not have, would have certainly been impeached in front of a jury, and I don't find sufficient evidence to support a new trial in that regard. ************** Volume VI, Trial Judge's Ruling, pages 2-9. Two things are immediately apparent here. First, the judge stated that he did not find Mr. Will Campbell to be credible and stated that if Mr. White had called Mr. Campbell that it would not have changed the ruling of the jury. The judge also found that Jessie Brown was not credible and "would certainly have been impeached in front of a jury." Significantly, the judge did not make any finding of fact whatsoever with respect to Andrea Gunter. As the court will recall, Ms. Gunter said that Michelle admitted to her having sex with Jessie Brown near the oil tanks some short time after the sexual encounter with Mr. Brown occurred. See, Volume V, Motion for New Trial Transcript, pages 34-37. When the judge was making his findings of fact, he was reviewing the first Amended Motion for New Trial which appears in the Technical Record at pages 141-146. The second Amended Motion for New Trial appears in the Technical Record at pages 170-171. In this second Amended Motion for New Trial, the defense alleged in ground 27 the newly discovered evidence concerning Mr. Jessie Brown and the female girl "A.P." This was also related in great detail in the second Affidavit in Support of Motion for New Trial appearing in the Technical Records at pages 167-169. As noted, A.G. is, of course, Andrea Gunter who testified at the new trial hearing. While the judge made credibility findings regarding Will Campbell and Jessie Brown, he made no finding whatsoever with regard to Andrea Gunter. In Fields v. State, 40 S.W.3d 450 (Tenn. 2001), the Supreme Court discussed the standard of review which applied to ineffective assistance of counsel claims. With respect to issues of law, the standard of review is de novo. In matters of fact, the appellate court is to accord "those factual findings a presumption of correctness, which is overcome only when the preponderance of the evidence is contrary to the trial court's finding of fact." 40 S.W.3d, at 456. In footnote 5 to the Fields opinion, the Supreme Court stated that when the "trial judges fail to make specific findings of fact, [the appellate court] will review the record on its own to determine the preponderance of the evidence." 40 S.W.3d, 457, footnote 5. Given the state of the record here, the defense arguably must show that the evidence preponderates against the finding that both Will Campbell and Jessie Brown were not credible. The defense suggests, however, that more is involved than just a "mere" factual finding such as where a suspect has either been given his Miranda warnings. The defense suggests that this may be more in the nature of a mixed question of law and facts because the trial judge here is, in realty, trying to assess what the jury would have done with the testimony of Will Campbell and Jessie Brown. This is a different question. It should be noted that Fields discussed State v. Burns, 6 S.W.3d 453 (Tenn. 1999) at great length. Apart from addressing the standard of review, Burns is also very helpful here because the case also involved an instance where there were two witnesses whom the trial judge found to be incredible. Yet, the Supreme Court rejected the trial judge's "factual" finding and found that the lawyer rendered ineffective assistance of counsel in failing to call these witnesses. In Burns, the lawyer had available to him information about two witnesses both of whom testified at the hearing on the motion for new trial in that case. The Supreme Court held that: In our view, the evidence preponderates against the trial court's diminution of Blankenship's credibility. Whatever the [trial] court's impression of her on the witness stand, her prior reports to law enforcement and the additional affidavit from Decker cannot be ignored. State v. Burns, 6 S.W.3d , 463, Footnote 6. Several points are evident here. The Supreme Court apparently allowed one witness to support the other in that there were two witnesses who were relevant to the additional facts. In addition, one of the witnesses in Burns had discussed some of these issues with law enforcement even prior to the death of the deceased. Thus, there was some independent indication of the validity of this post-trial testimony. By analogy, both Jessie Brown and Will Campbell tended to support one another with regard to the "sex near the oil tanks." Even the State itself introduced testimony that Jessie Brown's foster mother had told Mr. Kimbrell about some sexual adventure before the trial even occurred. See, Volume V, Motion for New Trial, page 137. Immediately after the trial, Mr. Kimbrell discussed with undersigned counsel his adopted daughter's sex with others which is how the undersigned counsel learned about all of this in the first place: I interviewed Mr. Kimbrell in the Fentress County Jail in October, 1999. At that time, he advised me that he believed that Michelle had sex with boys while she was growing up. I asked him for the names of some of her friends. He gave me the name of Will Campbell who had already been subpoenaed to the trial by Mr. White. He gave me the name of Jessie Brown but I did not have any better information than that. I advised Mr. White in correspondence to try and track down Will Campbell to see about where Jessie Brown might be. Technical Record, page 164, Affidavit of David L. Raybin. Mr. White testified at the Motion for New Trial hearing that the family members and Mr. Kimbrell had discussed with him the issue of Michelle's sex-with-others. See, Volume V, Motion for New Trial, page 75. As has been noted previously, the defense lawyer apparently dismissed all of this and did not pursue any further investigation into this area because he was of the view that it would never be admissible anyway, both because of the status of existing law and because he did not think that the prosecutor would "open the door." See, Volume V, Motion for New Trial, page 76. The defense vigorously asserts here that there is more than enough indication that these matters were in existence prior to the trial and simply did not appear out of thin air months later after the trial. In short, where the appellate court can see that the "missing evidence" or the evidence that the "defense attorney did not use" has some independent origin, then, as in Burns, the appellate court may reject the contrary findings by the trial court. This is the lesson we can learn from Burns and which should be applied here. We also must consider the fact that the trial judge made no findings of fact whatsoever with respect to Andrea Gunter. As noted earlier, the appellate court may then "review the record to determine where the preponderance of the evidence lies without employing a presumption of correctness." Fields v. State, 40 S.W.3d 450, 458, Footnote 5 (Tenn. 2001). The defense can already anticipate the government's argument here that if the trial judge had rejected the testimony of Will Campbell and that of Jessie Brown then, this Court may "infer" that the trial court also rejected the testimony of Andrea Gunter. The defense is confident that this Court will reject any such suggestion about "inferring" the credibility of witnesses. The defense asserts here that Andrea Gunter was not impeached by any third party. It is true that Michelle denied telling Andrea Gunter about any sex near the oil tanks. However, Michelle Kimbrell testified that she once worked at a church near to where the oil tanks were located which would have given her access to this location. Michelle Kimbrell also conceded that Andrea Gunter is an honest person. See, Volume V, Motion for New Trial, pages 112-114. The defense has also shown here that Michelle Kimbrell ,had discussed sex with her boyfriend with Danielle Kimbrell. See, Volume IV, Sentencing Hearing, pages 20-22. There is no doubt that this testimony existed prior to trial because Mr. White was well aware of this but elected not to call Danielle because he did not have any additional proof beyond her testimony. See, Volume V, Motion for New Trial, pages 84-85. This certainly lends even more support to the defense argument that the critical missing testimony was not newly minted. Lastly, we must also remember that Michelle had a cousin who made virtually identical allegations against her adopted father because that other girl wanted to get away from what was perceived to be a hostile environment. Michelle could well have used this same ruse to get away from Mr. Kimbrell. Certainly she had the motive. See, the Testimony of Lonnie Kimbrell. Volume V, Motion for New Trial, pages 54-57. We also know that Michelle denied all of this contrary proof which obviously existed well before the trial. See, Volume IV, Sentencing Hearing, pages 76-77. 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. C. 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 p |
Saturday, May 17, 2008
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