Court of Criminal Appeals of Tennessee, Knoxville
Session Date October 21, 2014
Appeal from the Criminal Court for Knox County No. 99367 Steven Sword, Judge
Cameron D. Bell (at sentencing and on appeal), Knoxville, Tennessee; Mark Stephens, District Public Defender; and John Halstead, Assistant Public Defender (at trial), Knoxville, Tennessee, for the appellant, Terrence Lamont McDonald.
Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Senior Counsel; Charme Allen, District Attorney General; and Leslie Nassios, Assistant District Attorney General, for the appellee, State of Tennessee.
Robert L. Holloway, Jr., J., delivered the opinion of the Court, in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ., joined.
ROBERT L. HOLLOWAY, JR., JUDGE
This case stems from a violent sexual assault committed against the Defendant's wife, K.M.,  in January 2012. In April 2012, the Knox County Grand Jury indicted Terrence Lamont McDonald ("the Defendant") on four counts of aggravated rape, a Class A felony, and one count of aggravated assault, a Class C felony. Following a jury trial, the Defendant was convicted of four counts of aggravated rape and one count of reckless endangerment, a Class E felony, as a lesser-included offense of aggravated assault. At a sentencing hearing, the trial court merged the convictions for aggravated rape in counts two and four into the aggravated rape convictions in counts one and three. The trial court then sentenced the Defendant, as a Range I standard offender, to concurrent sentences of 25 years at 100% on each aggravated rape conviction and two years at 30% for reckless endangerment, for a total effective sentence of 25 years in the Department of Correction. The Defendant filed a timely motion for new trial, which the trial court denied after a hearing. This timely appeal followed.
I. Factual Background
Rule 404(b) Hearing
Before trial, the State filed a motion requesting that the trial court rule on the admissibility of certain evidence under Rule 404(b) of the Tennessee Rules of Evidence. During a hearing on the motion, K.M. ("the victim") testified about acts of physical abuse committed by the Defendant over the course of their five-month marriage. She explained that the incidents of abuse increased over time until they argued "daily." According to the victim, during arguments the Defendant would "grab [her] arms and hold [her] arms really tight and get on top of [her] to the point where [she] couldn't breathe." The victim recalled that about two months prior to the instant offenses, the Defendant had "head butted" her during an argument. The victim also claimed that three or four times a week, the Defendant would act like he was going to stab her with a knife. She did not report any of these prior incidents to police because the Defendant would "make [her] feel guilty" and tell her, "God wouldn't like that."
The victim also testified that during their marriage, the Defendant was "very, very controlling" and would coerce her into having sex. The Defendant would tell her, "The Bible says that you're mine so I can have sex with you whenever I want to, however, I want to."
At the conclusion of the victim's testimony, the State explained that it intended to introduce into evidence a report from the sexual assault nurse examiner ("SANE"), which was prepared after the nurse's examination of the victim. The SANE report contained a general statement under the heading "Forensic Nursing Narrative" that the "client reports domestic violence since 8/11." The Defendant objected to the introduction of the SANE report, arguing that because the victim never reported the prior incidents of domestic abuse there was "simply no clear and convincing evidence that these events occurred." The Defendant also expressed concern that the jury would be overwhelmed by allegations of prior abuse and think "something must have occurred with all of these allegations."
The trial court found that the State had established the Defendant's prior bad acts by clear and convincing evidence, as required by Rule 404(b). However, the court ruled that the victim could not testify about any specific, prior instances of actual physical violence by the Defendant. Under the court's ruling, the victim could not discuss the head-butting incident or the Defendant's sitting on her chest and pointing knives at her. However, the trial court allowed the victim to "talk about her fear, things about state of mind and in a general sense." The court found that this evidence was relevant to the issues of the Defendant's intent and state of mind and whether the victim consented to the sexual encounter with the Defendant. The court explained:
When you have a spousal rape situation like this, I think it's reasonable for a juror to be thinking, well, these are two individuals who obviously have consented to sex in the past, so consent, in my mind, and [the Defendant's] understanding on whether or not the–his wife is consenting to that sex at that time, too, I think, are material issues. And therefore, there is a large degree of relevance concerning these incidents that led up to each individual's understanding of where they found themselves, what was their–what was the [D]efendant's intent and what was her intention on consenting or showing lack of consent.
Finally, the trial court concluded that the probative value of the evidence was not outweighed by the danger of unfair prejudice. The trial court did not rule on the admissibility of the SANE report.
At the beginning of voir dire, the trial court introduced the Defendant to the venire and asked if anyone knew the Defendant. One juror, Ms. Griffin, indicated that she knew the Defendant. Ms. Griffin explained that she was the supervisor for Knoxville Area Transit and that she had talked to the Defendant while he rode her bus. She then commented that she did not know the Defendant "personally." Ms. Griffin denied that knowing the Defendant would make it difficult for her to be fair and impartial.
Later, during the prosecutor's questioning of potential jurors, the following exchange took place:
STATE: Do any of you believe that the law should require the State to prove more than just the verbal account of the witness, the victim in the case? You're gonna require the State to prove anything else–can you consider her testimony alone? Does anybody have any difficulty with that? I think you may have heard anecdotally of cases of rape where it's called he said, she said. Are you familiar with that term? Does anybody have a problem with–if this were that sort of case, would you have a problem being on this jury?
MR. WADE: Repeat that question, please. Explain what you mean.
STATE: If the only proof that you were to hear in this case was just the testimony of the victim, do you believe that you could consider her credibility and judge whether or not you believe she's telling the truth without hearing any other evidence? Is her testimony alone enough for you?
MR. WADE: No.
STATE: Okay. And so, you're–what you're telling us is you would require the State to give you something else?
MR. WADE: Yes.
STATE: And you can't consider just the testimony alone of the victim no matter how credible you find her?
MR. WADE: (no audible answer).
STATE: Well, in a situation where the parties are married and where they had consensual relations in the past, do you agree that it really wouldn't be material to have DNA evidence in a case like that?
MR. WADE: Yes, but you asked the question if I needed more evidence other than just her testimony, and I said yes.
STATE: Right, okay. And DNA evidence is typically the type of evidence–
MR. WADE: That's more evidence so yes.
STATE: Well, what if it was a situation where–that the defense was consent and the defendant says, well, she consented? Do you see that DNA evidence wouldn't really be material in a case of that nature? Because we're not trying to establish identity in that situation. Do you understand that, Mr. Wade?
MR. WADE: Yes.
STATE: Okay. Very well. Well, let me ask you, what other evidence would you want to hear in a case involving an allegation of rape?
MR. WADE: I'm not trying the trial. I don't know. You know, that's a burden that's yours.
MR. WADE: Not me.
STATE: If you heard medical proof that there were injuries that were consistent with what the victim alleged, would you be able to consider that–
MR. WADE: Yes.
STATE: –as corroboration?
MR. WADE: Yes.
At another point during voir dire, the prosecutor asked if it would bother anyone that the victim did not immediately call police and report the rape. One juror, Mr. Minefield, responded, "Well, it brings up questions of why didn't she leave. Is there children involved, or what was the circumstances for her not to leave? I would have left right away if someone assaulted me." The following colloquy then took place:
STATE: Can you imagine a situation where a victim might be smaller and more physically vulnerable than her assailant that might affect–
MR. MINEFIELD: Nowadays, there are so many different sources that she could reach out to–she could have used a telephone and called–well, did she call the law right away? Did she call family members? I'm sure there is certainly someone she could have turned to.
STATE: Well, let's say that she–she did the next day. You are saying that that would keep you from being able to assess her credibility completely?
MR. MINEFIELD: No, I'm not saying that. I was just answering your question–
MR. MINEFIELD: –with my question. Why didn't she leave? Why wait?
While questioning other jurors about why a victim might delay reporting a rape, the prosecutor noted that Mr. Wade "look[ed] troubled." This exchange then took place between the prosecutor and Mr. Wade:
MR. WADE: Oh, I didn't say nothing.
STATE: I know you didn't.
MR. WADE: I'm listening. I'm listening.
STATE: Well, maybe I'm reading too much into ...