Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs August 20, 2014
Appeal from the Circuit Court for Sullivan County No. S58497 Robert H. Montgomery, Jr., Judge
Randall D. Fleming, Kingsport, Tennessee, for the appellant, Johnny Frank Royston, Sr.
Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Barry P. Staubus, District Attorney General; and Teresa Nelson, Assistant District Attorney General, for the appellee, State of Tennessee.
John Everett Williams, J., delivered the opinion of the Court, in which David A. Patterson, Sp.J., joined. Camille R. McMullen, J., filed a separate concurring opinion.
JOHN EVERETT WILLIAMS, JUDGE
FACTUAL AND PROCEDURAL HISTORY
The defendant was indicted for attempted first degree (premeditated) murder, two counts of aggravated rape, and two counts of especially aggravated kidnapping. The offenses were charged as a result of an attack during which the victim, whose blood tested positive for several depressants that she had not voluntarily consumed, lost consciousness and awoke to find that she was tied up and the defendant was raping her and strangling her with rope. The State introduced evidence regarding the victim's physical condition after the attack, as well as testimony that the defendant had been trying to purchase drugs earlier the same day for the stated purpose of drugging a woman.
The defendant lived in a rural area, in a camper located on the property of Danny Hunt. Mr. Hunt also owned a store in the city and, above the store, an apartment that was rented to Adam Sutton and Steven White. Mr. Hunt sometimes shared the apartment with his renters and sometimes stayed at a cabin on his rural property. The cabin was some distance from the camper and was accessible by a separate drive, and the two residences were linked by a grassy road. Mr. Hunt testified that the camper that the defendant lived in was about 300 square feet.
On the Saturday prior to the assault, Mr. Hunt introduced the defendant to Mr. White at a sports bar. The next day, around lunchtime, the defendant called Mr. White and asked if he knew where to get "mickeys, " "roofies, " or xanax. He explained he wanted to drug a woman and take pictures of her "to give to her husband to show that she was a whore." The defendant told Mr. White, who had prior convictions for theft and for the sale of dihydrocodone, that he had gotten Mr. White's phone number from "two guys." Mr. White testified that he had been on probation at the time, was trying to "stay clean, " had cut off his old friends, and did not give the defendant any drugs. Mr. White's phone records confirmed that the defendant telephoned him on August 22, 2010, at 10:21 and 10:28 a.m.
The victim, R.H.,  testified that she had known the defendant for about one year at the time the crimes were committed. She first became acquainted with him when her relatives allowed him to stay in a van on their property and in their garage. The victim had been in the camper that was the scene of the assault on two occasions prior to the night of the assault, helping the defendant clean in exchange for money on one occasion and cigarettes on another.
On Sunday, August 22, 2010, Mr. Hunt, Mr. Sutton, and the defendant were all at the cabin; Mr. Sutton and the defendant were doing odd jobs around the property for Mr. Hunt. The victim, who had been out of town, was on her way back to Bristol, and she spoke with the defendant on the phone regarding the possibility of cleaning Mr. Hunt's cabin or apartment for money. Accordingly, her friend dropped her off not at her home but at the end of the driveway leading to Mr. Hunt's cabin, and she walked down the driveway to the cabin. The victim was wearing white capris pants and a white t-shirt. Because she had been out of town, she carried in a plastic bag a change of clothing consisting of gray sweatpants, a gray t-shirt, a brown sweatshirt, and a windbreaker. The victim also had a pocketbook containing a phone with no minutes. When the victim arrived at the cabin, Mr. Hunt was sitting on the porch, and the defendant was assisting Mr. Sutton with repairs on the cabin. The defendant had arrived at the cabin at some point during the afternoon. Mr. Hunt testified that the victim arrived between 3:00 p.m. and 6:00 p.m., and the victim testified she arrived around 7:30 p.m. The victim had never met Mr. Hunt or Mr. Sutton, and Mr. Sutton had never met the defendant prior to that day.
While the victim, Mr. Hunt, Mr. Sutton, and the defendant were at the cabin, the victim, Mr. Hunt, and Mr. Sutton drank some alcohol. All the witnesses agreed that the defendant did not drink at all. The victim testified that she drank part of one beer and one and a half mixed drinks. The victim and Mr. Hunt testified that he mixed her one drink, and she mixed drinks for him and herself from then on. The victim testified she was drinking from a red Solo cup and that she never finished her first drink, although she "topped [hers] off" when fixing a drink for Mr. Hunt. Mr. Hunt testified they were drinking whiskey and soda, and the victim had a few drinks at the cabin. Mr. Hunt also testified that the victim had not drunk "a whole lot" at the cabin. Mr. Sutton testified that he saw the victim drink some alcohol and did not see her take any drugs. He believed she was drinking beer, and he testified they had two or three beers apiece. The victim had no visible injuries at this time.
Mr. Hunt suggested they go to a sports bar, and the defendant drove the four into town. When the victim got in the car, she put the plastic bag with her change of clothes into the trunk. The victim estimated it was between 8:30 and 9:30 p.m., Mr. Sutton estimated it was 6:00 or 7:00 p.m., and all three of the State's witnesses testified it was beginning to get dark. Mr. Sutton decided not to go to the sports bar and went home to his apartment above Mr. Hunt's store. The defendant, the victim, and Mr. Hunt went to the sports bar and sat outside. Mr. Hunt bought the victim one beer; the defendant did not drink any alcohol. Both the victim and Mr. Hunt saw other acquaintances, and the victim left her beer unattended while she greeted friends. The victim had felt fine earlier in the evening, but she began to feel drowsy and disoriented at the bar. On the way out of the sports bar, the victim tripped on some lighting equipment. On cross-examination, Mr. Hunt explained a prior statement in which he had told detectives that he did not see her fall by noting that they had asked if she was "falling down drunk, " and he had seen her trip but not fall spontaneously. The victim had not eaten all day, and the three planned to go to a restaurant. The victim was cold, put on her brown sweatshirt, and lay down in the back of the car.
Mr. Hunt testified that the defendant drove them to a restaurant, which was closing as they arrived. When he turned to ask the victim where to go, she was asleep. They went to a different restaurant, and the victim did not respond or wake when he asked her if she wanted to come inside. Mr. Hunt and the defendant left the victim in the car while they ate, and they then went back to Mr. Hunt's rural property. Mr. Hunt fell asleep during the twenty to thirty minute ride back, and the defendant woke him when they arrived at the cabin around midnight or early the next morning. Mr. Hunt had forgotten about the victim, and he left the car and went to bed.
The victim woke to find herself naked on the floor of the camper with the defendant raping her. The victim testified that she was on a pink quilt, and as she started struggling, she became aware that her arms and legs were tied with rope. The victim was face-down and could see a roll of duct tape on the floor in front of her; she also saw duct tape on her wrists. The victim had three ropes around her neck. Some of the ropes she was tied with were yellow and black, and some were white. When she tried to move, the defendant pulled on a piece of the rope around her neck, cutting off her air supply. The victim demanded that the defendant get off of her, and he told her to shut up and lie still. When she would move or tell him to get off of her, he would pull on the ropes and cover her nose and mouth with his hand, choking and suffocating her. At one point when he tried to cover her airway, she bit him. The victim was afraid she would lose consciousness and that he would kill her and she would "never see the light of day." The victim also saw an elastic cord around her wrist. She asked if he had cut it off her windbreaker, and he told her it was from a tent.
The victim asked the defendant to let her up to use the bathroom. He refused, and she ultimately defecated on the blanket. Eventually, the defendant let her up. He held her by the rope on her neck and led her to the bathroom. The defendant's camper had no running water. The victim went into the bathroom and asked the defendant for something to clean herself with. He refused to give her anything other than a dirty towel. She asked for something to wet the towel, and he handed her a coffee pot with some water in it. She poured the water on the towel, and she set the coffee pot on the bathroom counter. The defendant was standing next to her holding the rope; because of the small size of the camper, he was able to reach into the kitchen while she was in the bathroom. The bedroom was also next to the bathroom. When the defendant looked away for a moment, the victim grabbed the coffee pot and hit him on the head, shattering the glass. The bleeding defendant fell into the bedroom; however, he held onto the rope around the victim's neck, bringing her down on top of him. The defendant was bleeding from the head. The victim began to jab the defendant in the stomach with the handle of the coffee pot. After a struggle during which the defendant was pulling on the rope and the victim was jabbing him in the stomach with the broken handle of the coffee pot, the defendant lay still for a moment. The victim tried to get up. The defendant then grabbed her throat with his left hand and began to choke her. The victim was afraid she would not be able "to walk away from there alive." The victim promised him that if he let her go, there would be no repercussions for the attack. The defendant let her go.
The victim went back to the living room, where she found several knives and a pair of scissors on the floor. She used a knife to cut the ropes from her arms and legs, and she removed the ropes around her neck by pulling them over her head. She realized that her bra was half-on, hanging from her arm, and bloody. She tried to dress in the clothing she had been wearing but realized these clothes had been cut off of her and could not be worn. The plastic bag with her change of clothes had been moved into the camper, and the victim put on her gray sweatpants and a gray t-shirt. The victim saw one of her earrings lying in a puddle of blood and put it in her ear. At that time, the defendant was using a t-shirt to wipe blood off his face. The victim ran from the camper carrying her cut-up clothing and her pocketbook.
The victim ran to Mr. Hunt's cabin, which he testified was about half a mile from the camper. She slid down a steep embankment and knocked on his door. Eventually, she was able to wake him and took shelter in the cabin. Mr. Hunt testified that the victim was shaken up and hysterical. She had blood on her bra and in her hair, and she was wearing different clothes from the night before. Her wrists and ankles had marks around them, and she had rope marks around her neck. The defendant then drove up Mr. Hunt's drive. Mr. Hunt testified that the victim started shaking when she saw the defendant coming. Mr. Hunt stepped out and told the defendant that the police were on their way and that he should leave. At the victim's behest, however, Mr. Hunt had not actually called the police. The defendant left.
Mr. Hunt and the victim drove down to the lake where he habitually went swimming in the mornings. The victim washed the blood out of her hair in the lake. A man Mr. Hunt had hired to drive him around arrived, and the three went to the camper. The victim testified there was still blood on the walls and broken glass on the floor. The handle of the coffee pot and some broken glass were tied in a plastic bag, which was outside the camper. There was a University of Tennessee t-shirt with blood on it in the tub. However, the knives, scissors, and duct tape had been moved. There were also now two folding camp chairs set up in the living room that had not been there during the attack, and the pink blanket was folded on the couch. The victim testified that outside the camper, she saw some rope that did not match the ropes she was tied up with but also saw black rope with yellow in it and some white rope, which did look like the ropes she had been tied up with. Mr. Hunt confirmed that there was blood on the walls of the bedroom and on the bed. He saw a broken coffee pot but did not recall blood or glass in the hall. He did not see rope, scissors, knives, or duct tape. Mr. Hunt testified that the victim showed him some black electrical wiring that she said was used to tie her up. They left the wire there. Mr. Hunt took some of the defendant's property because he felt the defendant owed him money for staying in the camper. Mr. Hunt then changed the lock at the gate of the drive leading to the camper.
Mr. Hunt's driver took them to Wal-Mart, where Mr. Hunt gave the victim money to buy clothing and to buy minutes for her phone. Mr. Hunt then bought her lunch and took her to his apartment above the store around 12:00 or 1:00 p.m. The victim testified that she wanted to be somewhere the defendant could not find her. She did not feel safe going home because the defendant knew where she lived and where her parents were. The victim testified that she had asked Mr. Hunt not to call the police because she was "scared to death" of the defendant, because he knew where she might be found, and because she herself had a warrant for violation of probation and was "in no shape or condition to go to jail at that time."
The victim showered and changed clothing at the apartment. Mr. Hunt testified that the victim's wrists still had marks and that her eyes were very bloodshot, even worse than right after the assault. Mr. Sutton testified that the victim was badly beaten, bruised, and shaken and that the whites of her eyes were completely red. He thought she had on a sweatshirt and the same jeans she had worn the previous night, but he then testified he did not recall if she wore jeans when he first met her. Mr. White met the victim for the first time when Mr. Hunt brought her to the apartment. The blood vessels in her eyes were burst, and she had handprints on her neck and scrapes and bruises on her arms and legs. Mr. White gave the victim an over-the-counter pain reliever.
The victim called her mother that evening and told her mother what had happened but was afraid to reveal her location. She then spoke with her brother and agreed to meet him at a theater close by. Her brother photographed her injuries in his car at the theater. The next day, August 24, 2010, Detective Pascu called her, and her family took her to meet the detective. The detective took her to the hospital, where physical evidence was collected. The victim gave a statement to the detective and then went to her brother's home after learning the defendant was in custody. She gave a second statement to police.
The victim testified that she had prescriptions for oxycodone, tramadol, zanaflex, and valium. She last took prescription medication on the Thursday before leaving town. She did not knowingly take any medication between the time she left town on Thursday and the rape on Monday morning. She took one prescription valium and some pain reliever while staying at Mr. Hunt's apartment on Monday. She did not knowingly take meth, darvocet, klonopin, or xanax.
The victim testified that she had been in a car accident on August 10, 2010, approximately two weeks before the assault. She had sustained a ruptured disk in her neck during the accident. She testified that the other injuries she sustained were the result of the defendant's actions. The victim testified that she lost her voice for four days and had rope marks around her neck, arms, and legs. She had bruises and abrasions on her chin, face, shoulder, arms, and legs. The victim stated that she broke off one tooth biting the defendant and had to have another pulled as well. She also sustained injuries to her eyes, including the loss of peripheral vision for two and a half weeks and extreme pain. She had to use steroids and antibiotics in her eyes daily.
The victim identified her cut up shirts, the sweatpants she put on after the attack, which were stained with feces, the stained pink blanket where the rape occurred, her windbreaker, which had been cut along the bottom, two shirts from the defendant's camper, and photographs documenting her injuries. She also identified the ropes recovered from the camper, which she stated were consistent with the ropes used to tie her arms and legs. She identified where the ropes had been cut with a knife to remove them and stated that these were not the ropes around her neck, which she had slid off and had not cut.
Susie Cusick, the nurse who treated the victim on August 24, 2010, testified that the victim had blood in her eyes, abrasions to her neck, pain in her neck, hips, legs, and forearms, and bruising to her legs, arms, and chin. She had abrasions consistent with rope around her neck. The victim was scared and upset. Nurse Cusick administered a sexual assault kit and drew blood, which she gave to law enforcement. Dr. Jonathan Wireman also noted abrasions and bruising in various places on the victim's body, pain in the victim's neck, and subconjunctival hemorrhages in her eyes. He stated that the eye injury could have been caused by strangulation or a direct blow to the face. He agreed that his report noted she had no dental injury. He testified that he noted no injuries during a pelvic exam and elaborated that a rape victim would not necessarily have such injuries.
Detective Matt Price collected evidence from the defendant's camper on August 24, 2010. Detective Price collected into evidence a pink blanket from the bed, a roll of duct tape from the closet, another roll of duct tape, a bloody t-shirt from the couch, a University of Tennessee t-shirt from the bathtub, ropes and a nylon strap, a rag from the bathroom, and broken glass along with a coffee pot handle. Detective Price testified that he did not see any knives but was not looking for them. Detective Price saw blood on the bedroom wall but did not recall seeing blood in front of the bathroom and testified he would have photographed any blood he found. Detective Price acknowledged having moved several items of evidence while at the camper, including a blue cloth or shirt on the couch, and a chair. Detective Price agreed that police "poured some things out on the couch." He acknowledged a cushion from the couch was also moved.
Detective George Ann Pratt testified that when she spoke with the victim on the phone on August 24, 2010, the victim sounded shaky, nervous, and afraid. After meeting the victim, Detective Pratt photographed the victim's injuries, including a bruise on her jaw, rope burn marks around her neck, injuries to her arms, hip, ankles, and knees, and the injuries to her eyes. Detective Pratt testified that the photographs did not capture the extent of the injuries. She also photographed the victim on subsequent days to show the duration of the injuries. Detective Pratt accompanied the victim to the hospital where a sexual assault kit, a blood sample, and the victim's clothing were collected. Detective Pratt took buccal swabs from both the victim and the defendant, and she sent the evidence to the Tennessee Bureau of Investigation "TBI" laboratories. Detective Pratt testified that the defendant had injuries to his head and a bite mark on his arm, and she photographed these. Detective Pratt testified on cross-examination that Detective Price brought the pieces of the broken coffee pot to her and she did not recall the defendant or his daughter bringing them. She testified about a second stained rag that was collected into evidence. She also acknowledged that she never visited the camper during her investigation, and waited until the week before trial to visit the site.
Two agents with the TBI testified regarding the substances found in the victim's blood. Agent Adam Gray testified that the victim's blood contained tramadol, which is a synthetic opioid, and propoxyphene, commonly known as darvocet. He testified that the victim's blood also contained a metabolite of propoxyphene. He explained that a metabolite was a substance produced by the body after ingestion of a substance and that its presence was an indicator that the propoxyphene had been ingested and there had then been a passage of time. Agent Gray testified that "mickey" and "roofie" were terms for drugs used in drug-facilitated assault and that both the drugs he found in the victim's blood could be associated with drug-facilitated assault. He testified that the drugs together would have a synergistic effect, compounding the effects of the drugs, which included drowsiness. He testified that combining drugs could mean that rather than having twice the normal effect, the drugs would be seven times as powerful. The victim's blood also contained less than .05 micrograms per milliliter of methamphetamine. The blood was sent to a different TBI laboratory for further testing. Agent April Bramlage testified that the victim's blood also contained xanax, a metabolite of valium and a metabolite of klonopin, all of which were nervous system depressants. Agent Bramlage also testified these drugs taken together, as well as these drugs taken with the drugs found by Agent Gray, would have a compounded effect and that alcohol would add a depressant effect. She testified on cross-examination that all the drugs were present at sub-therapeutic levels.
Agent Lisa Wessner, a serologist at the TBI testified that she identified the defendant's DNA on the bloody broken glass and the defendant's sperm on the pink blanket. She tested a nylon rope for the presence of DNA but was not able to obtain a profile; the white rope had been placed into plastic while wet and was moldy, so she did not test it because she would expect any DNA to have broken down. She testified that the pink blanket with the defendant's sperm also had a stain that looked like fecal matter, but the TBI does not test for fecal matter. Agent Wessner found no sperm in the sexual assault kit taken from the victim but explained that the presence of sperm would be affected by cleaning, urination, defecation, showering, and the passage of time. The victim's bra, which had a blood stain, contained DNA that was consistent with the victim's profile. Agent Wessner explained that she would expect to find the wearer's DNA on intimate clothing and could not determine if the DNA she obtained came from the clothing or the blood on the clothing. No DNA but the donor's was found in fingernail clippings taken from both the victim and the defendant.
Dr. Mark Bowers testified regarding the victim's eye injuries. Dr. Bowers described the victim's severe subconjunctivial hemorrhages and iritis, which is an internal inflammation that is very painful and causes light sensitivity and blurred vision. He testified the pain was typically between a five and eight on a scale of one to ten. The victim was suffering from a loss of peripheral vision, and she could have suffered vision loss without treatment. He testified that her injuries were consistent with choking or strangulation or tremendous blunt force injury. The victim was given medication, including a steroid, and returned for a follow-up visit on September 2, 2010, when she was still suffering from blurred vision and loss of peripheral vision. A CT scan taken that day was normal.
On the first day of trial, the trial court spoke to the jury about the potential duration of the proof:
First of all I think there is a possibility that this case might go into Thursday. Does anybody have a problem on Thursday they're aware of if we have to go into Thursday? I'm just thinking that's a possibility. I don't want to because I've got a full docket, some other things, but I also don't want to wear you out as this case proceeds. You can only take so much information in a day so anyway, but there's a possibility that it might go into Thursday so just be aware of that and let your family know that that's a possibility.
The trial continued into the Thursday mentioned by the court.
At the close of the State's proof, the defendant moved for judgment of acquittal. The trial court, concluding that the State had not established serious bodily injury, declined to charge especially aggravated kidnapping in Count 5, reducing the charge to aggravated kidnapping. The defense did not put on any evidence.
During closing argument, the State argued that it had established especially aggravated kidnapping and aggravated kidnapping based on the victim's testimony that the defendant prevented her from going to the bathroom and only eventually allowed her to go to the bathroom by leading her down the hall with a rope tied around her neck. The State noted she was confined from the time she was led down the hall until she fell into the bedroom and the defendant eventually released the rope. Regarding the rape charges, the State noted that it did not have to prove ejaculation but penetration and that the victim had testified to this element of the crime. The prosecutor, however, later stated, "Now[, ] we know he penetrated her because there's semen on that blanket and there is no other explanation for it. You've heard no other proof for how it got there than what she said." The prosecution, in its final argument, noted that the victim had testified to the elements of the crimes and concluded, "[I]f you believe [the victim] beyond a reasonable doubt[, ] that's all the case the State has to establish[, ] if you believe her." The prosecution summarized certain aspects of her testimony, stating, "And you think about the details that she says. They all ring of credibility." There were no objections to the State's closing argument.
The trial court noted that it had added new instructions regarding whether the confinement that constituted the kidnapping was incidental to either the attempted first degree murder or the aggravated rape. The defense did not object to the instructions. The trial court instructed the jury:
To find the defendant guilty of this offense [y]ou must also find beyond a reasonable doubt that the removal or confinement was to a greater degree than that necessary to commit the offense of attempted first degree murder as charged in ...