Assigned on Briefs August 5, 2014
Appeal from the Criminal Court for Shelby County No. 11-03083 James M. Lammey, Jr., Judge
Stephen C. Bush, District Public Defender; and Phyllis L. Aluko (on appeal) and Jennifer Case (at trial), Assistant District Public Defenders, Memphis, Tennessee, for the appellant, Terrance McCracken.
Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Amy P. Weirich, District Attorney General; and Cavett Osner and Abby Wallace, Assistant District Attorneys General, for the appellee, State of Tennessee.
Roger A. Page, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Alan E. Glenn, J., joined.
ROGER A. PAGE, JUDGE
This case concerns the rape of the victim after appellant entered her Shelby County home under the guise of using her telephone. Appellant was indicted for aggravated rape and aggravated kidnapping. The jury found him guilty of the lesser-included offense of rape and not guilty of aggravated kidnapping.
A. Facts from Suppression Hearing
The trial court held a suppression hearing on July 5, 2012. Kerby Windless, an officer with the Memphis Police Department, testified that on October 12, 2010, he responded to a forcible rape call. He stated that when he arrived, the victim told him that appellant had become upset when her telephone rang and that he had held a knife to her throat and made her perform oral sex. She then explained that appellant was inside her home attempting to kill himself. Officer Windless observed "some redness around [the victim's] throat and forehead." Officer Windless and several other officers entered the home and saw appellant stabbing himself with a knife. Officer Windless ordered appellant to drop the knife, which he did. Appellant was then taken to receive medical attention in the responding ambulance.
During cross-examination, Officer Windless conceded that the call he heard on the radio was regarding a suicide rather than a forcible rape, describing it as an "armed party call." The incident occurred in Foote Homes in Shelby County. Between four and six officers responded to the scene, and they all arrived at approximately the same time. Officer Windless stated that the victim did not tell him she had been smoking crack cocaine and that she did not appear as if she had been so doing. Officer Windless described the victim as being "emotional, " "hysterical, " and "in distress" when he arrived at her home. When the officers went upstairs, appellant had several cut wounds in the center of his chest, which were bleeding, and he appeared upset. Officer Windless arrested appellant at 12:22 p.m. The officers did not gather any information at the scene indicating the occupants had used narcotics. Officer Windless stated that he was at the crime scene for approximately thirty minutes and that he completed his crime scene report while other officers transported appellant.
In response to the court's questions regarding the sequence of events, Officer Windless clarified that when they arrived,
[appellant] was in the house. He got upset due to [the victim] had a phone call from another male and he got upset. That he got a knife, took it to her throat. She pretty much tried to wrestle the knife out of his hand but he overpowered her. And then she performed oral sex in fear of her life and then at that time[, ] he became upset because he couldn't get an arousal . . . .
Sergeant Melvin Amerson, Jr., an investigator with the Memphis Sex Crimes Bureau, testified that on October 12, 2010, he interviewed the victim at 4:10 p.m. The victim told Sergeant Amerson that after appellant came over, he became angry and began choking her. Appellant requested fellatio, which the victim refused, and a fight ensued. The victim also stated that appellant attempted to kill himself. Sergeant Amerson described the victim's injuries, stating that the victim "had some markings in the neck area and forehead and face area and on her arms were [sic] marked up pretty good." Following the interview, Sergeant Amerson interviewed appellant at 7:30 p.m. Sergeant Amerson explained that he advised appellant of his Miranda rights and reviewed those rights with appellant in writing and verbally. Sergeant Amerson testified that appellant did not seem to have a problem understanding why he was there or what was occurring. On his advice of rights document, appellant indicated that he understood his rights and wished to speak with law enforcement, initialed beside his affirmative answers, and signed the document. Appellant then confessed to using a knife to force the victim to perform oral sex. After taking appellant's statement, Sergeant Amerson obtained a forty-eight-hour hold while he attempted to contact the sex crimes prosecutor. Sergeant Amerson asserted that there was "most definitely" probable cause to arrest appellant at that time. In order to obtain the forty-eight-hour hold, Sergeant Amerson presented a form to the judicial commissioner stating the relevant facts, when the crime occurred, and the justification for the forty-eight-hour hold. The hold document was signed and dated October 12, 2010, at 10:12 p.m. Appellant was formally charged the following day after officers spoke with the prosecutor and canvassed the crime scene area.
During cross-examination, Sergeant Amerson stated that appellant was free to leave the police station until the forty-eight-hour hold was issued; however, Sergeant Amerson stated that appellant was in custody during his interview, which occurred prior to obtaining the forty-eight-hour hold. Sergeant Amerson conceded that he was not present at the crime scene and, therefore, did not know whether appellant was placed in handcuffs at the scene. Sergeant Amerson first saw appellant when appellant was sitting inside the police station. Sergeant Amerson explained that when presenting an arrestee with the advice of rights form, he allows the arrestee to read the document, he informs the arrestee of the pending charges, and then he asks the arrestee to read the document aloud. If the arrestee agrees to speak with Sergeant Amerson, the arrestee answers the questions on the form affirmatively and initials beside the responses. Sergeant Amerson described appellant's demeanor as "real calm." Appellant told Sergeant Amerson that he was thirty-five years old and had a seventh grade education. Appellant also told Sergeant Amerson that he and the victim had been smoking crack cocaine together before appellant was arrested. Sergeant Amerson did not recall appellant's saying that he suffered from a mental disability and was unaware that a caller had told dispatch that appellant was a "mental patient who was off his medications." Sergeant Amerson recalled that appellant had a bandage on his forehead and some "scratch marks." Sergeant Amerson stated that while appellant was in the police station, Sergeant Amerson and several other officers asked appellant whether he needed any food or water and whether he needed to use the restroom.
Sergeant Amerson agreed that the purpose of the forty-eight-hour hold was to continue investigating the incident and that he and his partner went to the crime scene to canvas the area on October 13, the day following appellant's arrest. Appellant was then formally charged in this case at 4:37 p.m. on October 13. Sergeant Amerson went back to the judicial commissioner and made an affidavit of complaint, which is a statement of probable cause, against appellant.
Judicial Commissioner John Marshall testified that his core function as a judicial commissioner was to make probable cause determinations that began the "charging process." He stated that on October 12, 2010, at 10:12 p.m., he authorized a forty-eight-hour hold for appellant based on probable cause.
Appellant testified that in October 2010, he was thirty-five years old, had a seventh grade education, and had not obtained his GED. Appellant had been diagnosed with schizophrenia and prescribed Prozac and Trazodone in 2005. However, appellant had not taken his medication for "a month or two" prior to the incident involving the victim. Appellant also stated that he had been using crack cocaine for approximately eight years prior to October 2010 and that he and the victim smoked eight rocks of crack cocaine on October 12, 2010. Appellant explained that when the police arrived, he was "poking [himself] with scissors in [his] stomach" because he "felt depressed." The officers handcuffed appellant and escorted him outside. An ambulance responded to the scene and bandaged appellant's stomach, forehead, and elbow; however, appellant stated that he was not given the option to go to the hospital. Appellant asserted that one of the officers told him that he was not going to jail and that they were going to get appellant "some help." Appellant was ...