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State v. Forrester4/29/1999
In December of 1996, Appellant David J. Forrester was indicted by the Humphreys County Grand Jury for attempted rape of a child and for aggravated sexual battery. On July 25, 1997, Appellant filed a motion to suppress a pretrial statement that he gave to state investigators. The trial court denied the motion after a hearing on August 25, 1997. On August 28, 1997, Appellant was convicted of aggravated sexual battery. After a sentencing hearing on December 9, 1997, the trial court sentenced Appellant to a term of ten years in the Tennessee Department of Correction. Appellant challenges both his conviction and his sentence, raising the following issues:
"1) whether the trial court erred when it admitted his pretrial statement into evidence;
2) whether the evidence was sufficient to support his conviction;
3) whether the trial court should have instructed the jury on lesser included offenses, including child abuse;
4) whether the trial court's response to a question from the jury about the severity of the charged offenses prejudiced Appellant; and
5) whether the trial court imposed an excessive sentence."
After a review of the record, we affirm the judgment of the trial court.
I. FACTS
Sharon Stump testified that on September 14, 1996, her car tire went flat in front of the home of Appellant and his wife, Julie Forrester. As Stump approached the back door of Appellant's home in order to use the telephone, she looked through some glass patio doors and saw Appellant rubbing his penis on the buttocks of Appellant's naked four-year-old daughter. Stump subsequently reported the incident to the Tennessee Department of Human Services and to Julie Forrester.
On November 20, 1996, Appellant voluntarily took a polygraph test that had been arranged by his attorney. After the polygraph test had been administered, Appellant participated in a post-polygraph interview conducted by Agent Mike Smith of the Tennessee Bureau of Investigation, Investigator Ted Tarpley of the district attorney general's office, and Norma Williams of the Tennessee Department of Children's Services. During this interview, Appellant gave a signed statement in which he admitted that after he took his daughter out of the bathtub on September 14, 1996, she touched his penis and he had an erection. Appellant then admitted that when his naked daughter lay down on the floor, he took his penis out and rubbed it on her buttocks for approximately two to five minutes in order to obtain sexual gratification.
At trial, Appellant testified that his pretrial statement was untrue and that the only reason he gave the statement was because his interviewers told him that if he told them what they wanted to hear, he would get custody of his children back and he would receive counseling instead of having to appear in court.
II. ADMISSION OF APPELLANT'S PRETRIAL STATEMENT
Appellant contends that the trial court erred when it admitted his pretrial statement into evidence. Specifically, Appellant contends that the statement was inadmissible because he was not properly Mirandized, the statement was given involuntarily, and the statement was obtained in violation of Appellant's right to counsel.
A. Miranda
Appellant contends that his pretrial statement was inadmissible because the police did not properly administer the Miranda warnings. Appellant concedes that he was given Miranda warnings before he took the polygraph test, however, he claims that the police should have given the Miranda warnings again before he participated in the post-polygraph interview.
In Mirand
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