Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs August 20, 2014
Appeal from the Criminal Court for Knox County No. 98676 Bobby R. McGee, Judge
Patrick T. Phillips (on appeal) and Mitchell Harper (at trial), Knoxville, Tennessee, for the Defendant-Appellant, Larry Lee Smith.
Robert E. Cooper, Jr., Attorney General and Reporter; Ahmed A. Safeeullah and John H. Bledsoe, Assistant Attorneys General; Randall E. Nichols, District Attorney General; and Leslie Nassios, Assistant District Attorney General, for the Appellee, State of Tennessee.
Camille R. McMullen, J., delivered the opinion of the court, in which John Everett Williams, J., and David A. Patterson, Sp. J., joined.
CAMILLE R. McMULLEN, JUDGE
On January 17, 2012, the Knox County Grand Jury returned a three-count indictment charging the Defendant, Larry Lee Smith, with aggravated rape and two alternative counts of aggravated kidnapping of S.J. The proof presented at trial was largely undisputed.
The twenty-year-old victim testified that she was from Atlanta, Georgia and that she currently lived in Georgia. When she was sixteen, the victim left school and moved to Knoxville with her boyfriend. The couple did not have stable housing and they lived at Christy Harris's apartment at Volunteer Studios in October 2011. On October 24, 2011, the victim returned to the apartments from the library and learned from the Defendant and Christy that her boyfriend had been arrested. The victim immediately began to cry, and Christy left to retrieve a cell phone for the victim to use.
While waiting for Christy to return, the victim sat in a green chair in the Defendant's one-room studio apartment. As she continued to cry, the Defendant attempted to console her. The victim accepted his offer of tea and cigarettes, but she did not want any food. The Defendant asked the victim if they could switch places so that he could sit in the chair and eat. The victim agreed and moved to the edge of the bed. The Defendant then proceeded to make peas and onions for himself and ate at the table. After eating, the Defendant turned on a movie and asked the victim to help him with something at the side of the bed. As the victim reached over to the edge, the Defendant placed a necktie around her wrist. When she pulled her hand away, the binding became tighter.
The victim testified that the Defendant told her to calm down, and he immediately dropped his pants. He then crawled between her legs and held them down with his body weight. The Defendant removed her leggings and told the victim he would kill her if she did not cooperate. He tried unsuccessfully to bind her left hand with another necktie. He placed his forearm on the victim's neck and she became light-headed and "could barely breathe[.]" The Defendant told the victim that he would "break [her] fing legs" if she kept her legs squeezed together. The victim testified that the Defendant's "face was red, his eyes were watery, he was sweaty, very sweaty, his sweat was dripping on [her]." She said that the Defendant made her feel "really nasty" and that he used three fingers to penetrate her vagina. She stated that he also hit her at one point.
The Defendant stopped the assault when someone knocked at his door. He "jumped off" of the victim to see who was at the door. He then stated, "[N]obody's here, come back later." The victim yelled, "somebody's here, " but she did not cry out for help because she thought that the Defendant would kill her. She immediately untied herself and began putting on her clothes. The Defendant then moved the green chair in front of the door, sat down, and said that she was not going anywhere. The victim told him that she would jump off the balcony. As she walked toward the door, the Defendant handed her a knife, which she took and placed on the table. The victim assumed that he wanted her to stab him, but she just wanted to leave. She was able to walk through the front door, but the Defendant asked her not to say anything.
The victim then used a resident's phone to call her boyfriend's sister, who told her to go to the front office and call the police. After the police arrived, the victim met with someone from the sexual assault crisis center. She did not go to the hospital because her mother said that she could see a nurse or doctor upon returning to Georgia. However, the victim did not seek treatment in Georgia. After the assault, she had some difficulty swallowing and limped for a few days. The victim also had vaginal discharge for a week. She identified various photographs of the Defendant's apartment from the day in question.
On cross-examination, the victim denied that she and the Defendant had discussed selling his prescription medication to raise $500 to help the victim and her boyfriend. She said that she was crying about the arrest and did not think about anything else.
Kathy Brown testified that she was the manager at Volunteer Studios in Knoxville and that the Defendant was a tenant in 2011. She said that on October 24, 2011, the Defendant came down to the front desk "a couple of times" and that he appeared red-faced and sweaty. She stated that the victim, who was "visibly upset, " later came down to the front desk and reported being raped by the Defendant in his apartment. Ms. Brown then brought the victim to her office, and they called the police. A recording of the 911 call was played for the jury without objection. Ms. Brown was uncomfortable with the situation and asked another employee, Scott Brown, to come down to the front desk. She then stayed in her office with the victim until the police arrived.
Scott Brown testified that on October 24, 2011, his manager called for him to come to the office where he observed the victim "crying hysterically[.]" He remained at the front desk because Ms. Brown was worried. While he was waiting for the police, the Defendant returned to the front desk appearing "beet red" and "out of breath[.]" The Defendant asked to speak with the manager, and Mr. Brown told him that the best thing to do was to wait for the police. Mr. Brown then accompanied the Defendant when he went outside to smoke a cigarette. The Defendant "was saying how [the victim] wanted him to and stuff, " and Mr. Brown told him that he was not taking sides. He stayed with the Defendant until the police arrived. He acknowledged on cross-examination that the Defendant did not try to leave after learning that the police had been called.
Investigator Patricia Tipton of the Knoxville Police Department testified that she was the lead investigator in the Defendant's case. She interviewed the Defendant at the police station after the assault. Investigator Tipton said that the Defendant was calm and did not want to speak at first but then changed his mind. He consented to DNA swabbing of his hands and advised Investigator Tipton that the victim's DNA would be present because he had touched her. The Defendant also consented to a search of his apartment. After Investigator Tipton advised the Defendant that the victim reported being tied down, the Defendant asked Investigator Tipton for his cell phone so that he could show her images of consenting women bound in neckties. The Defendant told Investigator Tipton that the victim had been staying with Christy Harris and that he had previously paid Christy to be bound with ties. After receiving the phone, Investigator Tipton wrote and executed a search warrant to obtain the photos that she saw. However, the Defendant had deleted the bondage images while the phone was still in his possession.
A redacted video recording of the interview was played for the jury. At the start of the recording, the Defendant told Investigator Tipton, "Whatever she says happened happened." During the DNA swabbing, Investigator Tipton advised the Defendant that she was looking for the victim's vaginal secretions on his hands. The Defendant responded, "Her DNA will be on my hands because I have touched her." The Defendant later told Investigator Tipton that he was being set up. He subsequently stated, "I guess the comment I made about being able to take care of her better than a crack dealer really really set her off." According to Investigator Tipton, the Defendant "couldn't decide which version of events he wanted to go with."
Investigator Tipton also interviewed the victim on the day of the assault. She said that the victim was "[u]pset" and "shaken" at first but was "exceptionally articulate" during the interview. After searching the Defendant's apartment, Investigator Tipton found many facts that corroborated what the victim had reported. She also verified that the victim's boyfriend had been arrested that day.
The fifty-two-year-old Defendant testified on his own behalf. He said that he moved to Volunteer Studios in May 2011 after sustaining an injury in a car accident. He met the victim and her boyfriend when they were staying with Christy Harris, who lived downstairs. On the morning of October 24, 2011, the Defendant went to court to testify against a man who had robbed him. The Defendant believed that this man may have set him up.
Shortly after the Defendant returned to his apartment at around noon, Christy arrived and told him that the victim's boyfriend had just been arrested. About ten minutes later, the victim knocked on his door. The Defendant considered the victim to be a friend so he comforted her as she cried about her boyfriend's arrest. He testified that Christy then left to use a phone because she "was looking for an excuse to leave." He said that Christy did not want the victim ...