10/24/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs September 19, 2018
STATE OF TENNESSEE v. RANDY LOUIS ROE
Appeal from the Criminal Court for Sumner County
No. 2014-CR-940 Dee David Gay, Judge
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No. M2017-01886-CCA-R3-CD
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A jury convicted the Defendant, Randy Louis Roe, of three counts of rape of a child, one
count of especially aggravated sexual exploitation of a minor, two counts of sexual
exploitation of a minor, and one count of solicitation to commit rape of a child. He
received an effective sentence of thirty-five years in prison. A few days prior to trial, the
State alerted the Defendant to the existence of voluminous documents consisting of
emails between the Defendant and the victim which had not previously been produced in
discovery. The Defendant sought a continuance. The trial court denied the continuance
but ruled that the new materials would not be admissible unless the Defendant “opened
the door” during his testimony. On appeal, the Defendant seeks a new trial based on the
trial court’s ruling on the admissibility of the emails. After a thorough review of the
record, we discern no error and affirm the judgments.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which TIMOTHY L.
EASTER and J. ROSS DYER, JJ., joined.
Matthew Edwards (on appeal) and John Harding (at trial), Hendersonville, Tennessee, for
the appellant, Randy Louis Roe.
Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; L. Ray Whitley, District Attorney General; and Tara Wiley and
Sydney Preston, Assistant District Attorneys General, for the appellee, State of
Tennessee.
OPINION
FACTUAL AND PROCEDURAL HISTORY
The victim, who was twelve years old at the time of the crimes, was placed into
foster care in the Defendant’s home, along with two of her siblings. The Defendant raped
the victim while she was in his home as his foster child. He also set up an email account
for her, and he sent, asked for, and received various explicit messages after the victim had
been removed from his home. When the victim’s new foster parents became aware of the
emails, they changed her email password and turned the new password and other
materials over to police. Detective Ron Brawner of the Sumner County Sheriff’s Office
then provided the prosecutor with numerous printed emails and with copies of various
incriminating images and voice recordings attached to the emails.
Trial was scheduled to begin on Monday, August 15, 2016. According to the
prosecutor, on the Tuesday before trial, she noticed that only one printed email showed a
voice recording as an attachment, whereas she had received several voice recording files
from the Sumner County Sheriff’s Office. Suspecting that there were additional emails
that were missing from the file, she requested Detective Brawner to meet with her and
bring the password to the victim’s email account so that she could inspect the emails.
Although Detective Brawner told her he believed he had printed all the emails, the
prosecutor discovered that there were hundreds of pages of emails that had not been
printed. The prosecutor noted that law enforcement had printed “the worst of” the
emails.
On the Thursday before trial, defense counsel and an Assistant District Attorney
General spent several hours looking through the emails and attempting to identify the
ones that had not been previously produced. The appellate record shows that there were
over four hundred pages of previously unproduced emails. The bulk of these pages,
however, consisted of email “threads” with numerous lines of previously produced
content topped with one or two lines of previously unproduced responses. Defense
counsel was not provided with the attachments associated with the new emails until
Friday afternoon.
The defense sought a continuance. The trial court declined to reschedule the trial
but determined that, although the trial would begin as scheduled on Monday, there would
be a recess until noon the following day to give the defense extra time to evaluate the
late-provided discovery. The court also ordered that the new evidence would not be
admissible as part of the prosecution’s case-in-chief. Defense counsel noted, “I did find
something that … I believe may have some exculpatory value in this new evidence.” The
trial court ruled that any exculpatory material contained in the new discovery would be
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admissible and instructed the prosecution to inform the defense of anything exculpatory it
discovered. The court further determined that the new material could be used on cross-
examination only if the Defendant “opened the door” through his testimony.
At trial, the victim’s mother testified that in February 2014, the twelve-year-old
victim, her eleven-year-old sister, and her ten-year-old brother were placed in
government custody. A court had ordered the victim’s mother to prevent contact between
her boyfriend and her children. When it was discovered that she had moved with the
children to Texas in order to circumvent the order, her children were removed from her
custody and temporarily housed in Texas. They were placed into foster care in
Tennessee with the Defendant and his wife in March 2014.
At the Defendant’s home, the victim and her sister shared a bed in an upstairs
bedroom. The Defendant’s adult son slept across the hall, and the Defendant and his wife
slept in a nearby bedroom. The victim’s brother and another foster child slept
downstairs. On the victim’s first night in the home, she awoke to find the Defendant
staring at her while she slept. She testified that he subsequently touched her vagina while
they were alone in the sunroom.
The victim testified that the Defendant assaulted her on several occasions at night
while his wife was at work. She stated that “multiple” times, while her sister was asleep
next to her in her bedroom, the Defendant’s tongue touched her vagina. She also testified
that the Defendant put his penis into her vagina “[s]everal times.” She testified that on at
least four nights when the Defendant’s wife was at work, the Defendant had sexual
contact with her. On one occasion, her sister was not in the room.
The victim’s sister confirmed that the Defendant would “say he needed to talk to
my sister a lot” and that the two were alone behind the closed door of the sunroom. One
night, the victim’s sister woke up to hear whispering and saw the Defendant and the
victim in the room. The victim told her sister to go back to sleep, but the victim’s sister
woke up again and saw the Defendant on the bed, with the crying victim in his arms. She
did not reveal this incident in a forensic interview because she did not know the purpose
of the interview and did not think the incident was important. The victim’s sister testified
that she was uncomfortable with the Defendant’s hugging and kissing. The victim’s
mother confirmed that the victim’s sister told her that the Defendant’s excessive hugging
made her uncomfortable, but the victim’s mother’s numerous attempts to address the
issue through various authorities yielded no results.
The children were ultimately removed from the home in June, approximately three
months after their arrival, in connection with some violent behavior exhibited by the
victim’s younger brother. In an attempt to keep the siblings together, they were placed in
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the home of Sandra and Ted Kearney. Mr. and Ms. Kearney both testified that the victim
was “obsessed” with the Defendant and that she continually talked about him. Mr.
Kearney also testified that the victim was “more sexually aware” than he would expect a
child who had not been exposed to a sexual relationship to be.
Several witnesses testified regarding the Defendant’s interest in the victim after
her removal from the home. Ms. Kearney testified that the Defendant called Ms.
Kearney several times in one day, and when she spoke to him, he stated that he wanted to
adopt the victim, although he did not want to adopt the victim’s siblings. Ms. Karen
Smith of the Department of Children’s Services testified that the Defendant was still
asking about the victim on August 18, 2014, during a home visit related to another child,
and she recommended a training program called “loving and letting go.” Ms. Connie
Meneese, a volunteer with Court Appointed Special Advocates, testified that she was
concerned with the victim’s behavior during a meeting at the Defendant’s home because
the victim was “sitting way too close” to the Defendant. When the children were
removed, the Defendant called Ms. Meneese several times regarding adopting the victim
and her sister. Mr. Rodney Compton, a family service worker at the Department of
Children’s Services, testified that the children were removed because of problems with
the victim’s brother and that after the removal, the Defendant “[w]anted constant
information on” the victim. He acknowledged that the Defendant and his wife had been
“good foster parents” who frequently took children who were otherwise difficult to place.
The victim testified that the Defendant gave her a telephone and set up an email
account for her and that the two communicated through email, Facebook, and a “calling
app” after she and her siblings were removed from the home. The victim authenticated
multiple electronic communications that she exchanged with the Defendant. The victim’s
school counselor and Ms. Smith confirmed that the Defendant’s email address used in the
communications with the victim was the same email address that the Defendant had listed
on the school contact form and on his foster parent resource home cover sheet.
The Defendant sent the victim multiple pictures of himself, including multiple
pictures of his penis, pictures of himself sticking out his tongue, and pictures of himself
in bed and shirtless. The Defendant sent multiple messages instructing the victim to
delete the communications between them. He also sent messages which the victim
testified were requests for nude photographs of her. The victim sent the Defendant nude
photographs of herself in response.
The Defendant’s incriminating emails included the following statements, which
have not been altered for spelling or clarity:
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“it’s a shame you didn’t get the voice recording it was hot and steamy you
know the pictures of you of the bed I would like to have one like that but all
lots more detail”
“I hope you’re getting my voice recordings at the pictures I’ve got 1 I’m a
little scared but I send it I love you if i if I send it you gotta get rid of it”
“you need to erase everything off your phone case they take it”
“suck this.” This statement accompanied a picture of the Defendant’s penis.
“you know if anybody find surf I will go to jail”
“send me 1 spread open close up you need to delete all messages”
“I wish we could run off together somewhere”
“I need a good close up”
“you make a sound like you’re breaking up with me”
Some of the Defendant’s emails to the victim included incriminating voice
recordings as attachments. The victim testified that she believed she had contracted a
sexually transmitted disease (“STD”) from the Defendant and that the Defendant and his
wife did not take her for treatment while she lived with them. One of the Defendant’s
recordings stated, “And I hope you get over your STD. I don’t have one. Of course, I was
wearing…Make sure you erase this. I love you.” The Defendant also expressed concern
about his criminal conduct, stating, “It might scare me to death because of how old you
are, and I really don’t want to go to jail.” In the voice recordings, the Defendant
expressed his desire to touch the victim “all over your body” and to perform cunnilingus
on her. He referenced touching the victim’s breasts and having sexual intercourse with
her.
The victim told Mr. Kearney about the abuse in September 2014. She gave her
email password to Mr. Kearney, and he looked at her email to confirm that the Defendant
engaged in inappropriate communications with her. Mr. Kearney changed the victim’s
email password and gave the police the new password and the victim’s Facebook
information.
The victim went for a forensic interview, but she testified at trial that she “lied
quite a bit” in the interview because she expected to be “in trouble.” In her forensic
interview, the victim expressed trepidation about being adjudicated delinquent as a result
of having had sexual contact with the Defendant. The victim was reluctant to speak but
wrote, “We kind of had sex,” on a piece of paper. She explained during the interview
that the Defendant “didn’t fully inject me. He tried to and I told him no.” The victim
stated that the Defendant kissed her genital area on multiple occasions and tried to
penetrate her vaginally but did not penetrate her. She told the interviewer that on one
occasion when the Defendant performed cunnilingus, her sister was not there, but on
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several occasions, her sister was asleep in the bed. The victim described the electronic
communications she exchanged with the Defendant. At trial, the victim testified that by
“inject,” she meant “ejaculate.”
The victim acknowledged that, while she lived with the Kearneys, she had written
the Defendant a letter which stated, “You’ve never tried molesting me.” She explained
that she wrote the letter hoping that the Kearneys would find it, because she was worried
that the Kearneys were suspicious about her relationship with the Defendant.
The victim and her mother both acknowledged that the victim had previously
falsely accused the victim’s mother’s boyfriend of molesting her. The victim explained
that her mother’s boyfriend was innocent and that the accusation had been an attempt to
bring attention to her relationship with the Defendant. She stated that she made the
accusation while she was living with the Defendant and “couldn’t talk to my mom
without someone standing over my shoulder.” The victim’s mother denied that her
boyfriend had touched the victim inappropriately, and both the victim and her mother
stated that the victim had never been sexually assaulted prior to her placement in the
Defendant’s home. Although the victim never testified against her mother’s boyfriend,
she was scheduled to do so, and one of the Defendant’s emails to her stated, “I’m glad
you’re not testifying against me.”
The victim also acknowledged that she had told two medical providers that in
December 2013, she had engaged in consensual sex with a thirteen-year-old boy. At
trial, she testified that she had not had intercourse prior to being raped by the Defendant
and that she made the statements because she was embarrassed by the fact that the
Defendant had had sexual contact with her.
After revealing the abuse, the victim was examined by Ms. Hollye Gallion, a
pediatric nurse practitioner. Ms. Gallion testified that she would not expect to find any
physical evidence of a rape that had occurred months prior to the exam and that the
victim’s exam was “normal.” The victim believed that she had contracted a sexually
transmitted disease from the Defendant. Ms. Gallion testified that the victim’s medical
records indicated that she was diagnosed in late June with a bacterial infection, which
would be more common in sexually active women but could also occur in children who
were not sexually abused.
After the victim revealed the abuse, law enforcement arrested the Defendant and
obtained a search warrant for his home. Among other items, the Defendant’s cellular
telephone, a laptop computer, and a USB drive were seized. Special Agent Chet Mason
retrieved two images from the laptop, both of which were photographs of the victim
nude. He testified that these images were the same as some of the images contained on
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the Defendant’s telephone and that someone would have had to have taken an affirmative
action to transfer the images onto the laptop. The USB drive also contained multiple
images of the victim nude which matched the emailed images. Special Agent Mason
again testified that the images would have had to be extracted onto a computer and then
saved onto the USB drive.
Detective Brawner investigated the offenses and interviewed the Defendant after
his arrest. He testified that the Defendant declined to make a statement but subsequently
volunteered that the victim had sent him images, that he had deleted them, and that he
had not had sexual intercourse with her.
The Defendant presented the testimony of the Defendant’s adult son, who stated
that he lived in the home at the time the victim and her siblings were there. The
Defendant’s son recalled that numerous other people were living at the home, including
the Defendant and his wife, another foster child and her small son, and the Defendant’s
two grandchildren on the days that the Defendant’s son had custody of them. The
Defendant’s son testified that the downstairs bathroom was not functioning and that the
entire family was sharing the one upstairs bathroom which was close to the room the
victim and her sister shared. The Defendant’s son slept across the hall from the victim
and her sister, and he kept his door open all night. The Defendant’s son testified that the
doors in the house were hung low and made a noise when they were opened or closed as
they swept across the carpet. He also testified that the doors were old and the latches
“popped a little bit when you latched it.” He did not see or hear anything inappropriate
happen between the Defendant and the victim or any other foster child. He testified that
his parents first became foster parents when he was eight years old. They ultimately
adopted their first foster daughter. The Defendant and his wife had fostered
approximately twenty-five children, and the Defendant had never before been accused of
sexual impropriety.
The Defendant’s wife testified that approximately thirty to forty foster children
had been placed in their home and that no prior allegations of sexual misconduct had
surfaced against the Defendant. She testified that she never saw the Defendant do
anything inappropriate. She also stated that she took the victim to the doctor twice while
the victim was in her home.
The State elected to base the first count of rape of a child on an act of cunnilingus,
the second on penile penetration that occurred while the victim’s sister was in the bed,
and the third on penile penetration that occurred while the victim’s sister was not in the
bed. The basis for the especially aggravated sexual exploitation of a minor charge was
one of the emails instructing the victim to send a picture of her vagina, and the two sexual
exploitation of a minor charges were based on the Defendant’s possession of one nude
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photograph of the victim and one photograph of the victim’s vagina. The solicitation for
rape of a child charge was based on the email stating, “suck this,” and attaching a
photograph of the Defendant’s penis.
The jury convicted the Defendant on all counts. The trial court sentenced the
Defendant to thirty-five years for each count of rape of a child, ten years for the
solicitation conviction, ten years for the conviction for especially aggravated sexual
exploitation of a minor, and three years for each conviction for sexual exploitation of a
minor. The sentences were ordered to be served concurrently for an effective sentence of
thirty-five years.
The Defendant moved for a new trial on the basis that the trial court erred in
denying a continuance and ruling that the late-produced emails would be admissible
should the Defendant “open the door.” The Defendant argued that two of the numerous
emails could have been used to support the “possible defense theory” that the sexual
relationship between the Defendant and the victim was “sexting” and “fantasy” rather
than actual physical contact.
The prosecutor created a meticulously documented exhibit which included all of
the emails, with new material highlighted. The email regarding “sexting” referenced by
defense counsel was sent by the victim to the Defendant and reads: “This Is sapost to be
funny but I have an idea. :) get this phone fixed and we can sex t lol or you can
masterbait. Trust me its fun lol love you.” The second relevant email from the victim to
the Defendant declares, “I think I’ll sleep all day and dream about fantasy sx life lol love
you do you love me daddy.” The other emails in the late-produced discovery contain
numerous incriminating messages sent by the Defendant to the victim. The victim and
Defendant exchange several emails regarding her belief that she has a sexually
transmitted disease, with the Defendant asking her repeatedly what kind of infection she
has. He then writes, “I did get checked out & I don’t.” In response to the victim’s
inquiry regarding what he would do if she were pregnant, the Defendant responds, “I
wouldn’t let that happen to you because I love you that doesn’t have to happen but I’d
probably be dead.” The Defendant sends several emails instructing the victim to delete
their communications and expressing fear that the communications will be discovered. In
one email, he describes the victim as “sexy” and references kissing her lips and touching
her breasts. The trial court found that the new material contained “absolutely nothing
exculpatory” and denied the motion for a new trial.
ANALYSIS
On appeal, the Defendant asserts that the trial court erred in its resolution of the
dispute regarding the late-produced emails. The Defendant premises relief on the
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prosecutor’s duty to disclose exculpatory material under Brady v. Maryland, 373 U.S. 83,
87 (1963), and on the State’s discovery obligations under Tennessee Rule of Criminal
Procedure 16. The State responds that the Defendant has failed to establish the elements
of a Brady claim and that the trial court did not abuse its discretion in remedying the late
production of evidence by excluding the evidence from the State’s case-in-chief.
I. Failure to Disclose Exculpatory Material
The Defendant argues that the late production of the additional emails amounted to
the suppression of exculpatory evidence. The suppression of evidence favorable to the
accused is a due process violation when the evidence is material to guilt or punishment.
Brady, 373 U.S. at 87. In order to establish a violation based on the withholding of
favorable evidence, the defendant must demonstrate that: (1) the defendant requested the
evidence or that it was obviously exculpatory; (2) the State suppressed evidence in its
possession; (3) the evidence that was suppressed was favorable to the accused; and (4)
the evidence meets the standard of materiality. State v. Jackson, 444 S.W.3d 554, 594
(Tenn. 2014). The defendant has the burden of proving a violation by a preponderance of
the evidence. State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995), as amended on
rehearing (Tenn. July 10, 1995). We conclude that the Defendant has failed to
demonstrate that the evidence was exculpatory, that it was suppressed by the State, or that
it was material.
First, while the Defendant strains to put a favorable construction on the late-
produced evidence, the record supports the trial court’s finding that the evidence was
inculpatory. The State’s Brady obligations reach all “favorable information,” regardless
of its admissibility. Jordan v. State, 343 S.W.3d 84, 96 (Tenn. Crim. App. 2011).
“Information that is favorable to the accused may consist of evidence that ‘could
exonerate the accused, corroborate[] the accused’s position in asserting his innocence, or
[contain] favorable information that would have enabled defense counsel to conduct
further and possibly fruitful investigation regarding’” a potential defense. Johnson v.
State, 38 S.W.3d 52, 56 (Tenn. 2001) (quoting State v. Marshall, 845 S.W.2d 228, 233
(Tenn. Crim. App. 1992)). Evidence which permits the defense to impugn the reliability
of the State’s investigation, impeach the credibility of witnesses, or bolster the defense’s
position amounts to favorable evidence. Jordan, 343 S.W.3d at 96. Here, the emails
overall strengthen the inference, which could already be drawn from the prior electronic
communications, that the Defendant engaged in sexual conduct with the victim. The
Defendant’s inculpatory responses to the victim’s concerns about pregnancy and a
sexually transmitted disease are particularly damning. We presume that the Defendant’s
Brady claim concerns only the two emails cited by the defense. Although these emails do
not refer to a physical relationship, neither do they support the inference that the
relationship between the victim and the Defendant existed only in the ether. Instead, they
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primarily show that the communications between the victim and Defendant were
extremely inappropriate and of a sexual nature. We conclude that the late-produced
evidence was not favorable to the Defendant.
Furthermore, the Defendant has not demonstrated that the State suppressed
evidence in its possession. The rule in Brady applies “not only to evidence in the
prosecution’s possession, but also to ‘any favorable evidence known to the others acting
on the government’s behalf in the case, including the police.’” Jackson, 444 S.W.3d at
594 (quoting Strickler v. Greene, 527 U.S. 263, 275 n.12 (1999)). This includes
“evidence in police possession which is not turned over to the prosecution.” Id.; see
Wearry v. Cain, 136 S. Ct. 1002, 1007 n.8 (2016) (noting that an inmate’s statement
made during trial to police required disclosure even if it was not known to the
prosecutor). Accordingly, awareness of the late-produced emails, which were accessible
to Detective Brawner, is imputed to the prosecutor.
However, under Brady, the prosecution is not under a duty to disclose information
that the accused either possesses or is able to obtain. Johnson, 38 S.W.3d at 56; State v.
Caldwell, 656 S.W.2d 894, 896 (Tenn. Crim. App. 1983) (declining to find a Brady
violation in failing to turn over police records where the defendant was aware of the
content of the witness’s testimony). The emails in question were either sent or received
by the Defendant. Accordingly, the Defendant presumably knew of their existence and
was aware that he was profiting by the prosecution’s initial failure to discover the emails.
At no time did the Defendant introduce any evidence that these two allegedly exculpatory
emails had been deleted or were otherwise unavailable to him through his own email
account. The Defendant accordingly failed to establish by a preponderance of the
evidence that the evidence was otherwise unavailable to him. See State v. Leon Davis,
No. 03C01-9307-CR-00239, 1995 WL 105328, at *3 (Tenn. Crim. App. Mar. 14, 1995)
(concluding there was no Brady violation when the defendant did not establish why he
could not have subpoenaed the relevant information prior to trial).
Moreover, there is no suppression when the material is disclosed in time for the
defendant to use it effectively at trial. See United States v. Davis, 306 F.3d 398, 421 (6th
Cir. 2002) (finding no Brady violation where the material was disclosed at trial and the
defendant refused an opportunity to postpone the trial). “Although the complete non-
disclosure of significant exculpatory evidence often makes an easy case for a due process
violation, delayed disclosure requires an inquiry into whether the delay prevented the
defense from using the disclosed material effectively in preparing and presenting the
defendant’s case.” State v. Caughron, 855 S.W.2d 526, 548 (Tenn. 1993) (Daughtrey, J.,
dissenting). Here, defense counsel was provided with over four hundred pages of emails
on the Thursday prior to trial, and he spent approximately six hours reviewing them with
the prosecutor on that day. The bulk of the pages contained previously produced content
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and a previously unproduced reply at the top of the email “thread.” For the motion for a
new trial hearing, the prosecutor created an exhibit which consisted of only the
previously unproduced replies, and this exhibit was a little over twenty pages. Counsel
told the trial court on the morning of trial that he “did find something that … [he believed
might] have some exculpatory value in this new evidence.” The trial court then
specifically ruled that anything exculpatory would be admitted at trial and held the trial in
abeyance the following morning to provide more time to review the discovery. The
Defendant did not introduce the two emails, which illustrated a sexual relationship
between the victim and Defendant, at trial. The defense posited at the time of the motion
for a new trial that the two emails in question might have supported the inference that the
Defendant’s relationship with the victim was virtual only, but the Defendant did not
allege that he did not discover these emails prior to trial due to the late production of the
discovery. Accordingly, we conclude that the Defendant did not establish that the
material was not disclosed in time for him to use it effectively at trial.
Neither does the evidence meet the standard of materiality. Evidence is material if
there is a reasonable probability that the result of the proceeding would have been
different had the evidence been disclosed. State v. Cureton, 38 S.W.3d 64, 77 (Tenn.
Crim. App. 2000). “The question is not whether the defendant would more likely than
not have received a different verdict with the evidence, but whether in its absence he
received a fair trial, understood as a trial resulting in a verdict worthy of confidence.”
Kyles v. Whitley, 514 U.S. 419, 434 (1995). A violation is established “by showing that
the favorable evidence could reasonably be taken to put the whole case in such a different
light as to undermine confidence in the verdict.” Id. at 435. Here, the two emails only
bolster the State’s proof that the Defendant committed the offenses against the victim.
Accordingly, the Defendant has not established that he is entitled to relief under Brady.
II. Tennessee Rule of Criminal Procedure 16
The Defendant asserts that the State violated its discovery obligations under
Tennessee Rule of Criminal Procedure 16. He argues that he was denied his preferred
remedy – a continuance – in error. The State responds that the trial court did not abuse
its discretion in excluding the evidence from the State’s case-in-chief rather than granting
the continuance.
The Defendant contends that under Tennessee Rule of Criminal Procedure
16(a)(1)(B)(i) and 16(a)(1)(F), the State was obligated to disclose the emails. The State
does not dispute that the items were subject to discovery, but instead asserts that the trial
court granted the Defendant a proper remedy for the delayed production of the
documents. Under Tennessee Rule of Criminal Procedure 16:
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If a party fails to comply with this rule, the court may:
(A) order that party to permit the discovery or inspection; specify its
time, place, and manner; and prescribe other just terms or conditions;
(B) grant a continuance;
(C) prohibit the party from introducing the undisclosed evidence; or
(D) enter such other order as it deems just under the circumstances.
Tenn. R. Crim. P. 16(d)(2). The “open[]-ended” language of the Rule provides for a
variety of sanctions, including dismissal of the indictment. State v. Downey, 259 S.W.3d
723, 737 (Tenn. 2008). “A trial court has wide discretion in fashioning a remedy for non-
compliance with a discovery order, and the sanction should fit the circumstances of the
case.” Id. (citing State v. Collins, 35 S.W.3d 582, 585 (Tenn. Crim. App. 2000)).
Accordingly, the trial court should fashion relief which is effective and appropriate.
Collins, 35 S.W.3d at 585. Any prejudice accruing to the accused is a factor in
determining what remedy is appropriate. State v. Giles, 493 S.W.3d 504, 521 (Tenn.
Crim. App. 2016). The trial court may choose to exclude evidence which was not
disclosed, but “[e]xclusion of evidence is a ‘drastic remedy and should not be
implemented unless there is no other reasonable alternative.’” State v. Gann, 251 S.W.3d
446, 457 (Tenn. Crim. App. 2007) (quoting State v. Smith, 926 S.W.2d 267, 270 (Tenn.
Crim. App. 1995)).
Here, finding that the late production of the discovery hampered the Defendant’s
ability to prepare for a trial in which the materials would be introduced, the trial court
granted the “‘drastic remedy’” of excluding the emails. Gann, 251 S.W.3d at 457
(quoting Smith, 926 S.W.2d at 270). The trial court also granted additional time to
review the materials, ordering a recess for the morning of the second day of trial. The
trial court ruled that any exculpatory emails discovered in the newly produced materials
would be admissible. The Defendant wisely chose not to introduce any of the new
emails, which were uniformly inculpatory.
The Defendant argues that because his review of the materials was hurried, he was
hesitant to exercise his right to testify, fearing that the new materials would come in to
rebut his testimony. However, had the trial court granted the Defendant’s chosen remedy
of a continuance, all of the materials would have been admissible. The new emails
contained material that was inculpatory, including the Defendant’s responses to the
victim’s worries over an STD and pregnancy.
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The Defendant contends that the trial court erred in ruling that the materials would
come in if the Defendant should “open the door” during his testimony. “‘[O]pening the
door’ is an equitable principle that permits a party to respond to an act of another party by
introducing otherwise inadmissible evidence.” State v. Gomez, 367 S.W.3d 237, 246
(Tenn. 2012). In order to “open the door,” the party against whom the evidence is
offered must introduce the matter or put the matter at issue. Id. The evidence which is
admitted must be relevant to the same subject matter as the evidence introduced by the
party against whom it is offered. Id. at 247 (holding that introducing evidence that the
defendant was not violent toward the witness’s daughter did not open the door to
evidence that he was violent toward the witness); State v. Riels, 216 S.W.3d 737, 746
(Tenn. 2007) (holding that statement of remorse did not open the door to cross-
examination regarding the details of the murders). The Defendant cites to no particular
evidence that would have been admitted had he testified, and he cites to no authority
questioning the validity of the equitable principle of “opening the door” in Tennessee.
Accordingly, we cannot conclude that the trial court erred in informing the Defendant
that if he chose to present testimony which was at odds with the evidence, the evidence
would become admissible.
We conclude that the trial court did not abuse its discretion in crafting a remedy
for the late production of the emails by excluding them from the State’s case-in-chief,
allowing a recess for review of the emails, and ruling admissible only materials which
would be exculpatory or responsive to any testimony which might “open the door” to
further proof. The Defendant is not entitled to relief
CONCLUSION
Because the Defendant has not shown that the State improperly withheld
exculpatory material or that the trial court abused its discretion in fashioning a remedy for
late-produced discovery, we affirm the judgments of the trial court.
____________________________________________
JOHN EVERETT WILLIAMS, PRESIDING JUDGE
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