Shortly before midnight on July 30, 1992, Bernice Vann called 911 to report that her eight-year-old daughter, Necia, had fallen in her bedroom with a rope around her neck and was not breathing.
When paramedics arrived at the mobile home near Riceville, Tennessee, Bernice was weeping hysterically outside. Inside, her husband, Gussie, 42, was holding Necia, clad only in underpants, on his lap attempting to perform CPR. He was nude.
Gussie, who was nude, said not long before, he had gone to a store to purchase cigarettes and candy. After he returned, he said he undressed to take a shower when his wife found Necia and he attempted to revive her.
The girl, who had been previously diagnosed with dwarfism, was pronounced dead on arrival at the hospital. When the girl’s underpants were removed, a broken gold necklace fell out.
Doctors observed bruises on the girl’s neck, a slight tear to the opening of her vagina and no muscle tone in the girl’s anus, indicating multiple episodes of anal penetration.
The girl, according to the doctors, had been strangled.
Questioned by police, Gussie said he and his wife and four children had watched a movie earlier in the evening and ate popcorn—possibly Necia had choked. He said Necia had never given any sign she wanted to commit suicide.
Based on the physical condition of the body, Gussie and Bernice, 28, were charged two weeks later with capital murder, rape and incest.
While the cases were pending, a 12-year-old niece of Gussie came forward and alleged he had raped her twice in 1991. Gussie was charged with two counts of aggravated rape. Bernice was also charged for allegedly helping get the girl into his bedroom.
He went on trial on the rape charge first. He denied raping the girl. He was convicted in January 1994 based on the testimony of his niece and his wife. Bernice, who had an IQ of 62, struck a plea agreement with prosecutors in return for leniency. She then testified that her husband forced her to watch the rape. Gussie was sentenced to 50 years in prison.
The murder charges against Gussie and Bernice were severed and Gussie went on trial first in McMinn County Circuit Court in 1994.
Police testified that they found a strip of a bed sheet tied to a knob on a drawer of the dresser in a knot that was extremely tight and therefore believed to have been tied by an adult. A torn sheet that appeared to match the strip was found in another bedroom. A search of the mobile home also turned up a rope tied in a noose, a pornographic videotape, pornographic magazines, and unopened packages of condoms.
An analysis of the girl’s clothing worn on the day she died turned up no evidence of blood, semen or saliva. However, the sheets taken from the victim’s bed contained semen stains that, based on DNA testing, matched Gussie.
Ronald Toolsie, a state medical examiner, testified that a depression in the girl’s neck indicated strangulation and that the depression was consistent with the rope found in the home. He also found evidence of repeated sexual abuse—including anal penetration—although the girl’s hymen was intact. The most recent sexual abuse had occurred around the time of death, Toolsie testified. Further, nothing resembling popcorn was found in her stomach, he said.
A neighbor of the family testified that he believed Gussie was doing everything he could to try to save the girl’s life.
The jury found Gussie guilty of felony murder and two counts of incest.
At the sentencing hearing, Gussie testified that he was one of 15 children born to a tenant farmer. He quit school after the third grade and his IQ was measured at 69 in the second grade. He said he began working the farm at the age of 10. He later worked in a carpet mill and as a truck driver. Injured on the job, he began taking pain medication and became addicted, leading to hospitalization for a nervous breakdown. He married Bernice in 1982 and ultimately took over the household chores and child care when Bernice “went to pieces.”
He said he suffered severe head injuries when he was beaten during an attempted hijacking of his truck in 1989 and as a result began to suffer recurrent seizures.
Gussie denied killing or sexually abusing his daughter.
One of Gussie’s brothers testified that their father had beaten Gussie with a broom handle and that he had taken good care of his siblings.
The jury sentenced Gussie to death in August 1994.
In July 1995, Bernice pled guilty to resolve both cases brought against her. She pled to charges of aggravated child abuse, facilitation of aggravated rape and accessory after the fact. She was sentenced to 25 years in prison. She served her sentence, was paroled and died shortly after.
Vann’s sentence and conviction were upheld by the Tennessee Supreme Court in September 1998.
The Tennessee Office of the Post-Conviction Defender was appointed to represent Vann in 1999 and filed an amended post-conviction petition in May 2003.
An evidentiary hearing was begun in May 2007. At the hearing, Knox County Deputy Medical Examiner Darinka Mileusnic-Polchan testified that based upon her review of the autopsy report, Necia died an accidental death. She said that Toolsie’s conclusion that the girl was strangled was non-existent.
Further, she also testified that there was no evidence of any anal penetration and that Toolsie and the emergency room physician who examined the girl’s body the night she died had mistaken a normal physical reaction after death—the loosening of muscle tone in anus—for sexual abuse.
Another expert retained by the defense, Dr. William McCormick agreed that there was no convincing evidence of vaginal or anal penetration at or near the time of death.
Evidence was presented showing that the torn bed sheet had been tied to a knob on the top drawer of the dresser so it could be used as a pull to open the drawer. The evidence suggested that it was possible that the girl had been standing on the edge of the bottom drawer to reach something on top of the dresser when she slipped and fell and the sheet was entangled around her neck, asphyxiating her.
In June, 2008, McMinn County Senior Judge Donald P. Harris set aside Vann’s conviction, ruling that Vann had received an inadequate legal defense because his trial lawyers had failed to retain or even consult a medical expert to counter the state’s trial evidence. Essentially, Harris found, Vann’s defense lawyers conceded that the girl had been raped.
Harris also found that, based on medical evidence presented at the hearing, that because the girl suffered from dwarfism, she lacked a part of the anatomy that connects the head to the spinal column, leaving her head unstable.
The judge found that the “most damaging” piece of medical testimony at Vann’s trial—that the girl had been vaginally and anally raped just before her death—was “nothing more than inconclusive post-mortem anatomical findings.”
Judge Harris ruled that the failings of Vann’s trial attorneys were “not only prejudicial, but disastrous” and led to Vann being convicted on the basis of “inaccurate, exaggerated and speculative medical testimony.”
Prior to a retrial, Vann’s attorneys filed a motion to dismiss the is indictment and to bar jury instructions for lesser included offenses of felony murder, arguing that double jeopardy precluded the state from prosecuting Vann on any lesser included offense of felony murder.
The lawyers noted that the Tennessee Supreme Court, in affirming Vann’s conviction in 1998, found that the trial court had properly refused to give such instructions at his trial.
Harris agreed and barred retrial on any lesser included offenses.
The state appealed and in March 2011, the Tennessee Court of Criminal Appeals reversed.
The case did not to come to retrial, however. The prosecution dismissed the charges on September 29, 2011.
Vann remains in prison, serving the 50 year sentence on the 1994 rape conviction.
– Maurice Possley