The Dark (Of) Night: Tennessee Court Finds Attorney Did Not Err In Failing To Object To Testimony About Defendant's Lack Of Church Attendance In Batman Related Case

In honor of the opening of Christopher Nolan's "The Dark Knight," (currently 92% fresh on Rotten Tomatoes), I thought I would do a Batman-related post (after all, they did a "Harvey Dent for District Attorney" demonstration outside of my law school).

In Webb v. State, 2007 WL 2570201 (Tenn.Crim.App. 2007), the Court of Criminal Appeals for Tennessee granted portions of Floyd "Butch" Webb's petition for post-trial relief and denied other portions.  Webb had been convicted of child sexual abuse and sexual assault charges in connection with alleged acts he committed against his stepdaughter.  The acts which the court gave details about consisted of:

     -Webb coming into his stepdaughter's room one night (ostensibly at 1:00 a.m.) after he got home from work, getting into her bed, and touching her breasts and vagina;

     -Webb again arriving home at 1:00 a.m., coming into his stepdaughter's bedroom, getting under her covers, and touching her breasts and vagina;

     -Webb coming into the victim's room wearing a Batman mask around Thanksgiving 2005, scaring her, coming back to apologize after she was consoled by her mom and aunt, and rubbing the victim's breasts and vagina; and

     -Webb getting his stepdaughter in a headlock around Christmas, 2005, acting like he was tickling her, and then rubbing her breasts and vagina.

After Webb was convicted, he petition for post-trial relief, claiming, inter alia, that he was not given the effective assistance of counsel.  Specifically, he claimed that his trial attorney was ineffective in failing to prevent the admission of testimony regarding the Webb's lack of church attendance and failure to work.  Webb argued on appeal that this evidence was unfairly prejudicial to him because it created the risk that the jury would infer that he was lazy and irreverent toward religion.  He thus contended that the testimony was inadmissible under Tennessee Rule of Evidence 403, which provides that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

His trial attorney countered that the testimony was admissible because it was relevant to show opportunity, i.e., that Webb had opportunities to be alone with his stepdaughter at home.  The Court of Criminal Appeals for Tennessee detemined that "[b]ecause this evidence was arguably admissible at trial, it was properly a matter of trial strategy for Counsel to refrain from objecting." Really?

Looking at the first two acts, they allegedly occurred after Webb returned home from work at 1:00 a.m.  I thus don't see how evidence that Webb had periods of time where he allegedly failed to work was relevant to prove opportunity in these instances because it was averred that he was working.  Furthermore, I'm not sure how lack of church attendance was relevant to prove opportunity when these acts allegedly occurred at 1:00 a.m.

Looking at the third act, it allegedly occurred when the stepdaughter's mom and aunt were home, so clearly testimony about Webb's lack of employment church attendance was not admissible to prove that he was he had the opportunity to be with his stepdaughter at home.  Also, based upon the proximity of the act to Thanksgiving, it's likely that Webb's lack of employment was irrelevant because he wouldn't have been working anyway.

Looking finally at the fourth act, the opinion doesn't reveal whether anyone else was home at the time of the alleged act, but again, based upon the proximity of the act to Christmas, it's likely that Webb's lack of employment was irrelevant because he wouldn't have been working anyway (and it's quite probable that other people were home).

Thus, I'm not sure that the testimony at issue had any probative value on the issue of opportunity, and I would contend that any such probative value was substantially outweighed by its unfairly prejudicial effect.  Tennessee Rule of Evidence 610 proscribes the introduction of "[e]vidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness's credibility is impaired or enhanced."  And while this Rule does not strictly prevent the type of testimony presented against Webb, I've noted before that any evidence concerning an individual's religious beliefs or lack thereof is highly prejudicial and should only be admissible if it has a direct bearing on a case.  Thus, while the court properly granted part of Webb's petition on other grounds, it should have also done so on the ground that his trial attorney improperly failed to object to this testimony.

-CM