Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs April 23, 2014
Appeal from the Criminal Court for Knox County No. 99042 Bobby R. McGee, Judge
J. Liddell Kirk, Knoxville, Tennessee, for the appellant, David Freeman Clay.
Robert E. Cooper, Jr., Attorney General and Reporter; Ahmed A. Safeeullah, Assistant Attorney General; Randall Eugene Nichols, District Attorney General; and Philip Morton, Assistant District Attorney General, for the appellee, the State of Tennessee.
Thomas T. Woodall, P.J., delivered the opinion of the Court, in which Alan E. Glenn and Roger A. Page, JJ., joined.
THOMAS T. WOODALL, JUDGE
Petitioner was originally tried in a jury trial on ten counts of aggravated rape and one count of especially aggravated kidnapping involving the August 2005 sexual assault of the victim. As noted above, the jury found Petitioner guilty of the lesser included offenses of two counts of sexual battery, a Class E felony, and three counts of Class B misdemeanor assault. Petitioner was acquitted of all other charges. On appeal, this court affirmed the convictions and the total effective sentence of nine years and six months to serve in the Department of Correction. State v. David Freeman Clay, No. E2009-00868-CCA-R3-CD, 2010 WL 3597219 (Tenn. Crim. App. Sept. 16, 2010). As relevant to the present appeal this Court summarized the facts in part as follows:
Rocky Rogers testified that during the late morning of August 5, he was cutting hair at his Knoxville barber shop when he looked up to see "a lady walking towards the building naked." He met her at the front door to tell her she could not come inside because there were children in the shop. She told him that "she was tied up and had been kidnapped and raped." However, Mr. Rogers said that there was not a rope around the woman's neck. He told the woman to go to the store next door and that he would call the police to meet her there. He tried to give her a coat to wear, but she had already left. Mr. Rogers also stated that there was a car wash a few doors down from his barber shop.
Knoxville Police Department (KPD) Patrol Officer Keith Lyon testified that on August 5 when his shift ended he took his patrol car to a car wash where an employee brought a woman to him who claimed she had been raped. Officer Lyon said that the woman had a t-shirt and towel "to put around her." Officer Lyon said that there was not a rope around the woman's neck. He said that the woman "appeared to be very traumatized and scared to death." The woman told Officer Lyon that she had been raped at a house about two doors from the car wash. He called for an ambulance and an on-duty officer. Officer Lem Clemons arrived to complete the investigation.
The victim, [D.R.], testified that she was living in Walter P. Taylor Homes, "the projects, " on August 5, 2005. She said that she walked to a nearby convenience store at around 10:00 p.m. to buy a beer. She was wearing jeans, clogs, and a blouse and was carrying a small change purse. As she was walking to the store, she saw "a black guy" walking towards her. As their paths met, the man said hello to her, grabbed her by the neck, and pulled her with him. The victim testified that the man put something around her neck that "felt like a shoe string" and pulled her into an abandoned house. She said that she tried to run, but the man was choking her. She said he stuffed something like "a bandana" in her mouth once they got inside the house. The victim said that as she struggled, the man told her "do you want me to kill you like I killed that last bitch." The man next instructed the victim to take off her clothes and "to walk up those nine steps and if you do what I say then I might let you live." The victim said that she could not remember whether she took her clothes off or the man did because she "kept blacking out and coming to" from the choking.
The victim testified that she next remembered being "hogtied" with a rope around her neck and her hands tied behind her back and attached to her legs. She said that she was laying on a dirty mattress on the floor with a sleeping bag nearby. She described the room as filthy with pornographic magazines and Milky Way wrappers all over the floor.
The victim testified that the man then began to rape her. He penetrated her anally with his penis for about an hour. She described it as "horrible" and "very painful." She said that he talked "obscene" during each act and told her that she deserved what he was doing to her. He made the victim move into different positions and wanted her to "say obscene things to him." She said that the man had a pocket-knife and used it to penetrate her anally once. The victim said that the man "licked [her] . . . . used his penis in me, his hands, everything" both anally and vaginally. The victim said that the man forced her to perform oral sex on him also. The victim estimated that the man penetrated her "ten to twenty" times. She said that she acted like she enjoyed the rapes because when she did, the man did not hurt her so bad.
The victim testified that throughout the ordeal she "was just trying to think of how I was going to live through it. I didn't think I would live through it." The man told her not to try to escape to the next house because "he s[old] drugs for the people next door and they [would] kill [her]." She said that she finally gained his confidence so he untied her so that she could urinate. She said that he told her to urinate in a corner of the room and that each time she did, he would urinate in the same spot. The victim stated that the man eventually fell asleep. She said she was afraid to move initially, but when she realized that he really was asleep, she "got up and . . . ran." She said that the man woke up and tried to pull her back into the room to give her her clothes, but she jumped from the balcony and landed in the grass. She said that she ran "[b]arefooted and naked" to the barber shop. The man at the barber shop told her to go to the convenience store next door for help because there were kids in his shop. The victim said that she ran to the store where a man in the parking lot gave her a "big t-shirt" from his car and told her she could find a police officer at the car wash.
From the car wash, the victim went to the hospital in an ambulance. She said she was afraid that the man was following her the entire time. She described the rape kit examination as "very painful." In the courtroom, the victim identified the Defendant as the man who had assaulted her. She said that she had never met him before these offenses occurred.
On cross-examination, the victim admitted that she had consumed "a forty" before the Defendant assaulted her, but she said that she was sober throughout the incident. She acknowledged that she may have said hello to the Defendant when he approached her on the street that night. She also admitted that the arrest warrant contained no information about the Defendant putting a rope or shoe string around her neck; but, on redirect examination, she stated that there was not enough room on the warrant to include everything that happened to her that night. The victim said that Ray Cantrell was her neighbor at Walter P. Taylor Homes.
The fifty-three year old Defendant testified that he is divorced with two adult children. He said that he had a successful life as a computer programmer before he became addicted to cocaine following his divorce in 1985. His addiction led to a conviction for drug possession and sale of cocaine which caused the loss of his job at IBM.
Concerning the offenses, he testified that he and the victim went to the abandoned house to smoke crack cocaine that they had purchased from Mr. Cantrell. The Defendant indicated that he and the victim had a conversation about "what she wanted to get offered [in exchange] for some crack." The Defendant said that they agreed to go to the abandoned house. He contended that it would have been impossible for the victim to have walked through the house naked "without getting scratched or cut up." He said they went to the upstairs room where they drank vodka and smoked an "eight ball" of crack cocaine. He said that they discussed the sexual things she would do in exchange for the cocaine. He described the encounter as "almost like a business arrangement." He explained that cocaine "gives you an illusion that you can do more than you can" but that he was unable to maintain an erection due to the alcohol and cocaine. He said that the victim was "sexually aroused" and "was trying to get [him] to do things he couldn't do" - leading to the variety of sexual acts that occurred, including bondage. The Defendant said that the victim asked him to place a string around her neck and pull it while he performed oral sex on her. He testified that he was unable to penetrate her with his penis. He denied that he gagged the victim with a sock or bandana or that he "hogtied" her. He said that any sexual activity was "agreed upon . . . I paid for what I wanted, or she agreed on it."
The Defendant said that he fell asleep at around 6:00 in the morning. He awoke to a noise and discovered $340 dollars missing from his pants. He found the victim on the porch with his money in one hand and her clothes in the other. They struggled on the porch for some time before the Defendant, realizing that it would not look good to be seen struggling with a naked woman on the porch, took the victim's clothes from her and told her she would get her clothes back when she handed him his money. The Defendant decided that the victim was not going to give him his money so he went inside to finish getting dressed. He planned to confront the victim on her way out of the house, but when he ...