State v. Speck

IN THE SUPREME COURT OF TENNESSEE
AT JACKSON

FOR PUBLICATION

Filed: April 28, 1997

STATE OF TENNESSEE, )
)
Appellee, ) SHELBY CRIMINAL
)
)
Vs. ) HON. L. T. LAFFERTY, JUDGE
)
)
BARRY L. SPECK, ) No. 02-S-01-9601-CR-00001
)
Appellant. )
FILED
April 28, 1997

For Appellant: For Appellee: Cecil Crowson, Jr.
Appellate C ourt Clerk

C. Anne Tipton John Knox Walkup
Memphis, Tennessee Attorney General & Reporter

A. C. Wharton, Jr. Michael E. Moore
Public Defender Solicitor General

Walker Gwinn Gordon W. Smith
Assistant Public Defender Associate Solicitor General
Memphis, Tennessee Nashville, Tennessee

At Trial: John W. Pierotti
B. Alan Newport District Attorney General
Assistant Public Defender
Memphis, Tennessee Jennifer Nichols
Assistant District Attorney General
Memphis, Tennessee

OPINION

AFFIRMED. ANDERSON, J.
 We granted this appeal to review two issues: first, whether the bill of

particulars sufficiently informed the defendant of the charges against him, and

second, whether reversible error was committed when the trial court, applying

the “fresh complaint” doctrine, ruled that the victim’s out-of-court statements to

his mother regarding sexual acts committed by the defendant were admissible to

corroborate his in-court testimony.

The Court of Criminal Appeals concluded that the defendant failed to

show he was prejudiced by the prosecution’s bill of particulars and that the

victim’s out-of-court statements were admissible under the fresh complaint

doctrine. The court, therefore, affirmed the defendant’s conviction for

aggravated rape of a victim who was less than thirteen years of age.

We agree that the defendant was not prejudiced when the prosecution

elected an offense that occurred on a date that differed from the specific dates

set forth in the bill of particulars. With respect to the admissibility of the victim’s

out-of-court statements, this Court held in State v. Livingston, 907 S.W.2d 392

(Tenn. 1995), that the doctrine of “fresh complaint” does not apply in child sexual

abuse cases.1 Accordingly, although we find that admission of the victim’s out-

of-court statements was error, we conclude that the error was harmless in light of

the victim’s trial testimony and the overwhelming evidence of the defendant’s

guilt. Tenn. R. App. P. 36(b). Accordingly, while we employ somewhat different

reasoning, we affirm the judgment of the Court of Criminal Appeals.

1
In fairness to the trial judge, this case was tried prior to our decision in Livingston, and the
trial judge correctly applied the then-existing law to this case.

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 BACKGROUND

The victim’s proof is summarized as follows: The victim was in the

second grade when he met the defendant, Barry Speck. With the permission of

his mother, he began spending time with Speck watching movies, playing

baseball and putt-putt golf, and attending scouting events. During the third and

fourth grades, the victim occasionally spent the night with the defendant and

slept with him on a couch.

Near the end of the victim’s fourth grade school year, and during the

summer of 1991, Speck started touching the victim’s penis. The behavior

escalated to mutual touching, and Speck and the victim masturbated one

another. Although the victim was “confused” by the sexual acts, Speck told him

not to tell anyone what was occurring because he would be “locked up in prison.”

During the fifth grade, and the summer of 1992, the victim stayed with the

defendant three or four nights per week. Speck began committing acts of fellatio

on the victim, and eventually, he asked the victim to perform fellatio on him.

Although he “didn’t feel right about it,” the victim complied because Speck acted

“real cold and mean” if he refused. The victim’s mother became concerned

about the time the victim was spending with Speck and initially placed limits.

Speck’s response was anger and hurt. Later, in August of 1992, the mother told

the victim he could no longer see the defendant. The victim responded by telling

his mother about the sexual acts committed by Speck.

Tamara Carly, a friend of the victim’s mother, testified that she initially

thought Speck was like a “big brother” to the victim. After observing Speck and

the victim in the summer of 1992, she began to think that the defendant’s public

behavior in touching and hugging the victim was excessive and inappropriate.

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After Speck was arrested, he left several taped telephone messages on Carly’s

answering machine in which he professed his love for the victim and his distress

over the charges. According to Carly, he also left several audio tapes containing

messages for the victim. In one message, Speck stated that the love between

he and the victim was not “perverted” and that “had [he] known [he] was going to

be accused of being perverted, [he] would have found another kid.” In another

tape, Speck described how he would spread his legs while urinating to allow the

victim to urinate from behind him at the same time. Finally, Speck also said that

he “was the only person who knew how many hairs the victim had on his

testicles.”

The defendant, Barry Speck, testified and admitted a close relationship

with the victim, but denied that he had committed sexual acts. He acknowledged

that the victim often stayed overnight at his apartment, but denied that any

sexual acts were committed. The defendant admitted leaving the phone

messages and tape recordings with Tamara Carly.

BILL OF PARTICULARS

The indictment alleged that the offense of aggravated rape was

committed between July 1, 1990, and July 31, 1992. In response to the

defendant’s motion for a bill of particulars, the prosecution supplied the following

information:

The victim, [M.W.], whose birth date is June 12, 1981, alleges that
between July 1, 1990 and July 31, 1992, the defendant did engage
the victim in repeated acts of fellatio whereby the defendant would
perform the act on the victim and the victim would perform the act
upon the defendant. Additionally, the defendant engaged the
victim in masturbation whereby the defendant would masturbate
the victim and the victim would masturbate the defendant.

These acts occurred repeatedly between July 1, 1990 and July 31,
1992, including on or about June 12, 1992 and on or about June

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 29, 1992. Said acts occurred at the defendant’s residence and in
the defendant’s car.

At trial, the victim testified that numerous sexual acts consisting of mutual

touching and masturbation were committed beginning near the end of his fourth

grade year in 1991. He also testified that, beginning in the fifth grade, the

defendant committed acts of fellatio upon him and that he performed fellatio

upon the defendant. These acts continued through the summer of 1992.

In order to protect the defendant’s right to a unanimous jury verdict under

article I, section 6 of the Tennessee Constitution, the trial court, at the close of

the State’s proof, ordered the prosecution to elect a single offense upon which it

sought the aggravated rape conviction. See State v. Shelton, 851 S.W.2d 134

(Tenn. 1993). The prosecution elected to predicate the aggravated rape

conviction on the first incident in which the victim committed fellatio at the

defendant’s apartment. The incident occurred between August of 1991 and May

of 1992, when the victim was in the fifth grade.

The defendant maintains on appeal that the prosecution’s bill of

particulars did not provide sufficient information about the charged offense.

Moreover, the defendant argues that he was misled when the prosecution

predicated the offense on an incident that did not occur on either June 12, 1992,

or June 29, 1992, the specific dates provided in the bill of particulars. The Court

of Criminal Appeals held that the defendant failed to show that he was

prejudiced by the prosecution’s election of a date that differed from the specific

dates set forth in the bill of particulars. We agree.

The rules provide that upon a defendant’s motion, “the court may direct

the filing of a bill of particulars so as to adequately identify the offense charged.”

Tenn. R. Crim. P. 7(c). The purpose of the bill of particulars is to provide

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information about the details of the charge when necessary for a defendant to

prepare his or her defense, to avoid prejudicial surprise at trial, and to enable the

defendant to preserve a plea of double jeopardy. Information that may be

required in the bill of particulars includes, but is not limited to, details as to the

nature, time, date, or location of the offense. See State v. Byrd, 820 S.W.2d

739, 741-42 (Tenn. 1991).

Although a court should make every effort to see that the prosecution

supplies critical information in the bill of particulars, we have observed that in

cases involving child sexual abuse, the prosecution may be unable to supply

specific dates on which alleged offenses occurred. In such cases, however,

where the victim is too young to recall specific dates, “the child may be able to

define the time of the offense by reference to such memorable occasions in a

child’s life as birthdays, seasonal celebrations and holidays, the beginning or end

of the school year, or visitations by relatives.” State v. Shelton, 851 S.W.2d at

137; State v. Byrd, 820 S.W.2d at 741-42. If the State is truly unable to provide

even an approximate time or date of the offense by means of a descriptive

reference, “a conviction may nonetheless be affirmed if in the course of trial it

does not appear that the defendant’s defense has been hampered by the lack of

specificity.” Id. We explained in Byrd that

it is only by post hoc examination of the matter that the court will be
able to determine whether deficiencies in the bill of particulars
prevented the defendant from preparing an adequate defense,
caused undue and prejudicial surprise, or made untenable a later
plea of double jeopardy. In other words, the trial court cannot
determine whether or not the defendant has been hampered in his
defense until the court knows what proof the state will offer as to
time and place of the offense, and how this evidence relates to the
actual theory of defense.

Id. at 741.

In this case, the trial judge found that additional information was

necessary to assist the defendant in preparing for trial, and correctly ordered the

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prosecution to supplement the skeletal charge contained in the indictment. The

prosecution supplied details with regard to the nature of the sexual acts, the

locations in which the acts occurred, and the range of time, including dates on

which acts may have occurred. The defendant does not argue that the

particulars were inadequate to preserve a plea against double jeopardy.2

Instead, he contends that he was prejudiced at trial when the State failed to

adhere to the two specific dates set forth in the bill of particulars. We disagree.

Preliminarily, we observe that the trial judge’s painstaking effort to ensure

that the prosecution complied with its duty to elect a single offense successfully

narrowed the time frame of the offense. We also observe that there is no

indication in the record that the prosecution intentionally sought to mislead the

defense. Although the State listed two specific dates in the bill of particulars, it

did not limit the offenses to those two days; to the contrary, the bill of particulars

stressed that the offenses were ongoing. When the victim testified at trial that

numerous offenses occurred during a time frame that encompassed the June of

1992 dates set forth in the bill of particulars, the prosecution elected to proceed

on an offense described in the victim’s testimony by reference to his grade in

school and summer vacations. This procedure was entirely consistent with that

prescribed by State v. Shelton, supra, and State v. Byrd, supra.

Moreover, the defendant failed to show either during or after trial that he

was prejudiced by the prosecution’s election of an offense that occurred on a

day that differed from the dates in the bill of particulars. The defendant

categorically denied the charges, and there is no indication that he was misled or

prejudiced by the State’s bill of particulars. For instance, the defendant did not

present an alibi defense for the specific dates in June of 1992, nor did he offer

2
Our cases indicate that the defendant is protected from being placed in jeopardy for any
similar offenses committed during the entire time period charge d in the indictm ent, i.e., July 1, 1990
to July 31, 199 2. State v. Byrd, 820 S.W.2d at 742, n.1 (c iting, State v. Anderson, 748 S.W.2d 201,
204 (Tenn. Crim . App. 1985)).

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any other defense geared toward those specific dates. Similarly, the defendant

did not offer any defenses post-trial that he would have used at trial were it not

for the specific dates set forth in the bill of particulars. Accordingly, we conclude

that the defendant has failed to show that he was prejudiced in his defense at

trial.

FRESH COMPLAINT

The fresh complaint doctrine as applied in Tennessee traditionally allowed

a victim’s out-of-court statements regarding a sexual offense to be introduced at

trial to corroborate the victim’s in-court testimony. See Phillips v. State, 28 Tenn.

246 (1848); Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523, 528 (1963); State

v. Dies, 829 S.W.2d 706 (Tenn. Crim. App. 1991). Under Phillips, the fact of a

victim’s complaint, as well as the details, was admissible during the prosecution’s

case in chief. 28 Tenn. at 251.

The doctrine evolved from an “expectation” that the victim would make an

“immediate outcry” following a sexual offense. State v. Kendricks, 891 S.W.2d

597, 600-601 (Tenn. 1994). As we discussed in Kendricks:

Because juries were allowed -- sometimes even instructed -- to
draw negative inferences from the [victim’s] failure to complain after
an assault [citation omitted], the doctrine of ‘fresh complaint’
evolved as a means of counterbalancing these negative inferences.
Used in this way, the ‘fresh complaint’ doctrine allowed the
prosecutor to introduce, during the case in chief, evidence that the
victim had complained soon after the rape. Its use thereby
forestalled the inference that the victim’s silence was inconsistent
with her present formal complaint of rape.

Id. at 601. Although we recognized that any “expectation” that a victim of sexual

abuse should react in a prescribed manner is fundamentally flawed, we retained

a modified form of the doctrine in cases where the victim is an adult: in such

cases, the fact of the victim’s complaint is admissible during the prosecution’s

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case in chief, but the details of the incident are not admissible unless and until

the credibility of the victim is attacked. Id. at 603.

In State v. Livingston, 907 S.W.2d 392 (Tenn. 1995), we revisited the

fresh complaint doctrine as applied in cases where the victim is a child. In so

doing, we distinguished the rationale which led us to retain the modified doctrine

in Kendricks:

Retention of the fresh complaint doctrine in cases involving adult
victims of sexual offenses furnishes no justification for extending
the rule to cases involving child victims. The expectation that
‘normal’ women will complain after a sexual offense, if ever
applicable to anyone, is certainly not applicable to child victims of
sexual offenses. . . .

[U]nlike the presumptions regarding adult victims, juries do not
necessarily presume that children fabricate, nor do they presume
that a child will complain immediately. Having reluctantly retained
the doctrine of fresh complaint in the fact of its many shortcomings
in cases involving adult victims, we cannot reach the same result
for child victims. The historic premises which supported our
retention of the rule in adult victim cases simply do not support the
application of the doctrine in child victim cases.

Id. at 394-95 (emphasis added). While abandoning the fresh complaint doctrine

in such cases, we recognized that many out-of-court statements made by the

victim, such as prior consistent statements, excited utterances, and statements

made for medical diagnosis and treatment, will still be admissible under the

existing rules of evidence. Id. at 394.

Having held that the fresh complaint doctrine is no longer applicable in

cases where the victim is a child, it follows that the admission of the victim’s

statement to his mother pursuant to the doctrine was error. The next question is

whether the admission of these statements constitutes reversible error. The

statements made by the victim to his mother were brief, contained few details,

and were accompanied by a limiting instruction to the jury. By contrast, the

victim’s testimony at trial clearly described his relationship with the defendant

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over a period of years, as well as the nature and extent of the sexual acts

committed by the defendant. The jury obviously accredited this testimony over

the defendant’s blanket denials of wrongdoing. Moreover, when the victim’s

testimony is coupled with the remaining evidence of guilt and the record as a

whole, we do not find that the admission of the victim’s out-of-court statement

more probably than not affected the jury or prejudiced the judicial process.

Tenn. R. App. P. 36(b).

CONCLUSION

We conclude that the defendant was sufficiently informed of the charges

against him and was not prejudiced by the prosecution’s election of an offense

occurring on a date other than the specific dates set out in the bill of particulars.

We also conclude that the admission of the victim’s out-of-court statements to

his mother constituted error, but it was not reversible error because of the

overwhelming evidence of the defendant’s guilt. The Court of Criminal Appeals’

judgment upholding the conviction for aggravated rape is affirmed.

________________________________
E. RILEY ANDERSON, JUSTICE

Concur:
Birch, C.J.
Drowota and Reid, JJ.

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