Court of Criminal Appeals of Tennessee, Nashville
Session October 28, 2014
Appeal from the Criminal Court for Davidson County No. 2012-B-955 Monte D. Watkins, Judge
Manuel B. Russ, Nashville, Tennessee, for the appellant, Roger Wayne Henry, Jr.
Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Victor S. (Torry) Johnson III, District Attorney General; and Hugh T. Ammerman II and Tali Rosenblum, Assistant District Attorneys General, for the appellee, State of Tennessee.
Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which John Everett Williams and Roger A. Page, JJ., joined.
ROBERT H. MONTGOMERY, JR., JUDGE
At the trial, Metropolitan Police Officer Sean Williams testified that on January 22, 2012, at 2:19 a.m., he responded to a possible rape call. He said the victim reported that she was raped at gunpoint. The victim was visibly shaken but composed and not crying at the scene. Officer Williams did not think the victim was under the influence of drugs or alcohol. The victim was alert and coherent. The victim provided consistent statements to two additional officers, and she identified the Defendant as her attacker from a photograph obtained by Officer Williams from the police computer system.
Officer Williams testified that he took the victim to the hospital for an examination, that he spoke to Metro Police Detective Heather Baltz at the hospital, and that he left for the Defendant's residence. He and additional officers arrived at the Defendant's house around 5:20 a.m. He said that they received information that the Defendant was home but that he would not answer the door when the officers knocked and announced their presence. The Defendant's wife arrived about forty-five minutes later and consented to a search of the house. As the Defendant's wife opened the door, the Defendant "appeared out of the doorway, " and the Defendant was arrested.
On cross-examination, Officer Williams testified that the victim did not appear to have been experiencing withdrawal symptoms. He observed her for about two hours. He agreed that the Defendant opened the door to the house and came outside. He recalled the Defendant was holding his child at the time.
The victim testified that she was previously convicted of burglary, theft of property, filing a false police report, three counts of criminal impersonation, theft of services, and identity theft. She also had a pending theft charge and said the prosecutor had not offered anything in exchange for her testimony in the present case. The victim had a history of bipolar disorder with acute anxiety, severe paranoia, and post-traumatic stress disorder. She was diagnosed when she was a teenager and had received treatment regularly since her diagnoses. She stated that she was taking her prescribed medications on the night of the incident but that it had been forty-five days since she last took her medications because of her arrest in the pending theft case. She said she was able to recall the events on the night of the incident.
The victim testified that she knew the Defendant before the incident. She had seen the Defendant on two previous occasions. On the first, the Defendant paid her for oral sex. On the second, the Defendant gave her a ride to her friend's house. She said the Defendant was not violent on those occasions, which occurred a few months before the incident.
The victim testified that at 1:00 a.m. on January 22, 2012, she was walking down the street to her friend's house to borrow money when she saw the Defendant drive by two or three times. She said that although she did not recognize the driver at first, she noticed the Blazer made a distinctive noise like the Defendant's Blazer. She said the Blazer stopped, and the driver asked if she wanted a ride. She told the driver she wanted a ride to her friend's house, opened the door, and saw the Defendant in the driver's seat. She said she had engaged in prostitution regularly and knew when a car was circling her. She admitted she wanted to borrow money from her friend to purchase crack cocaine. She said she last used cocaine two days before the incident.
The victim testified that she told the Defendant she was "dope sick" and needed to purchase drugs. She asked him for $10, and the Defendant responded, "That's fine. . . . Do you have a problem with me going by my house first?" The Defendant's baby was in the backseat, and the Defendant said he needed to change the baby's diaper and to get a bottle. The victim agreed to go to the Defendant's house. The Defendant gave her the money before they arrived at his house. She said no agreement existed for sex in exchange for the money, and she did not anticipate having sex with him because she was sick.
The victim testified that after they arrived at the Defendant's house, he placed the baby carrier in one of the bedrooms. She noticed that the only furniture inside the house was the bed. She said she sat on the edge of the bed, and the Defendant placed his jacket on the floor. She said that the Defendant began to stand over her and that he made her nervous. She said the Defendant unzipped his pants and told her he wanted her to perform oral sex. She said the Defendant had "changed" and was no longer nice to her. She performed oral sex on the Defendant and said she felt as though the Defendant forced her to do it. She said that afterward, the Defendant said he wanted her to have sex with him. She told the Defendant no. She said that at that point, the baby was screaming and crying but that the Defendant did not check on the baby.
The victim testified that she asked the Defendant, "What are you going to do, rape me?" and that the Defendant said, "You might as w[e]ll give it to me. What are you going to do, call the police? You're a prostitute." She said the Defendant reached for his jacket and pulled out a gun. She said that he told her to remove her pants, and she complied. She said he taped her hands behind her back with blue painter's tape. The victim pleaded for her life, and the Defendant told her that he would not harm her if she cooperated. He first wanted her to lie on her stomach, but he permitted her to lie on her back when she expressed fear that he would anally penetrate her. She said the Defendant wore a condom and penetrated her for about one to one and one-half minutes. She said that afterward, the Defendant allowed her to get up, and he removed the tape. He left the bedroom to check on the baby.
The victim testified that the gun was semi-automatic, was "thick, " and was a dull-black color and that the gun remained within the Defendant's reach during the incident. She asked the Defendant if she could leave, and the Defendant told her that she could not leave and that he would drive her where she wanted to go. As they walked to the Blazer, the Defendant asked if she was going to run. She said she knew the Defendant still had the gun and told him that she would not run. The Defendant placed the baby inside the Blazer and the gun inside the driver's door, although she was not certain that was where he placed it. She said that during the drive to her friend's apartment, the Defendant threw the blue tape and the condom out the window. She said that he asked her several times if she was going to call the police and that she told him she would not call them. She said that she thought the Defendant would have killed her if he thought she was going to report him to the police. The Defendant pointed to his son in the backseat and told the victim that if she reported him to the police, the authorities would take away his son.
The victim testified that when she got out of the Defendant's Blazer, she was able to get a partial license plate number. She walked to her friend's apartment, told her friend what happened, and they walked to a pay phone to call 9-1-1. The pay phone was not operational, and they walked to Advanced Financial, where an employee called the police. When the police arrived, she gave them directions to the Defendant's house. The police officers drove to the Defendant's house based on the victim's directions, and she identified the house after seeing the Defendant's Blazer in the driveway. The officers identified the Defendant based on the license plate number from the Blazer, obtained a photograph of the Defendant, and showed it to the victim. The victim identified the Defendant from the photograph and told the police that he raped her. They left the area and drove the victim to the hospital for an examination.
The victim testified that she did not know the responding officers or the woman at Advanced Financial who called the police. She said she spoke with Detective Baltz at the hospital. She denied telling the detective that she did not feel as though she was "totally forced to perform oral sex" and said she told the detective that she was "uncomfortable and, kind of, nervous and scared, that's why I performed oral sex." The victim said that at that time, she did not feel like the Defendant was going to force her but that she felt as though something bad might happen if she did not cooperate based on her previous experiences. She agreed she did not tell the Defendant no until he told her that he wanted to have intercourse and displayed a handgun.
The victim testified that in 1993 or 1994, she met a woman named Belinda, who was married to her friend, John "J.J." Poindexter. She said she knew the couple in passing but was not close to them. She said she last saw Belinda six to ten years before the incident in this case and was unaware that Belinda previously lived in the Defendant's house. She said her "ex, " Robert Foster, lived in the neighborhood previously but not in the area where the Defendant lived. She said she only stayed with Mr. Foster a few times and did not know anyone who lived in the area. She said that Mr. Foster was sentenced to prison in 2005 and that she had not been to his house since then.
A recording of the 9-1-1 call was played for the jury. In the recording, the victim said she was walking to visit a friend when a man driving a Chevy Blazer offered to give her a ride. She identified three digits of the license plate number. The victim said the man drove to a house. She said it looked as though the residents were moving. The man took the victim into the house, placed a condom on himself, and made her perform oral sex. The man had a baby, whom the man called Noah, in the Blazer and brought the baby inside the house. She said the man pulled out a black nine-millimeter handgun and pointed it at her. She said the man laid down the gun, taped her hands behind her back with blue tape, and raped her. The victim said she was scared and cooperated. She said the man was Caucasian and wore a black jacket, jeans, and a cap. She said her friend, John Poindexter, knew the man.
On cross-examination, the victim testified that she did not know Mr. Poindexter and his wife Belinda were related to the Defendant and that she did not meet the Defendant through the Poindexters. When asked if she met the Defendant while at Mr. Poindexter's apartment, she said that she was not certain whether she met him and that the incident to which trial counsel referred occurred ten years before the incident in this case. She denied having conversations or a sexual relationship with the Defendant ten years previously. She admitted that she "had been with" the Defendant on other occasions in 2011 and 2012.
The victim testified that on the night of the incident, she knew the Defendant's voice before she entered his Blazer. She said that she did not use cocaine on the night of the incident, that she last used drugs twenty-four to forty-eight hours previously, and that she was dope sick during and after the incident. She agreed she was "shaky, " agitated, irritable, and sick to her stomach and wanted to sleep. She denied, though, that the symptoms affected her thought process or made her angry. She admitted to regular use of cocaine.
Relative to the victim's criminal charges for making a false police report, she testified that she pleaded guilty to one count and that another count was dismissed. She agreed her theft of property conviction was a misdemeanor and said she gave the police a false name on three occasions because she feared outstanding warrants for her arrest. Relative to the identity theft conviction, the victim explained that she was scared and hiding from an abusive boyfriend, that she used someone else's identification at the hospital, and that she was attempting to prevent her boyfriend from learning her location. She denied having entirely fake identification and said the information belonged to her sister. She said all of her previous convictions occurred before the incident in this case. She agreed she was a witness for the State in a pending homicide case.
The victim testified that her bipolar disorder caused periodic aching, depression, mood swings, stress, anxiousness, and excitement. She said that her post-traumatic stress disorder caused flashbacks of past experiences but that she knew the difference between a flashback and reality. She agreed her stress disorder amplified the bipolar disorder symptoms. She had clinical anxiety and paranoia, which caused her to think someone was watching and talking about her. She said her paranoia was worse since the incident in this case. She said that when her disorders were active, she ran and hid from people. She described herself as a loner and said she stayed to herself and avoided confrontation.
The victim testified that she did not recall previously telling trial counsel that she was not taking her psychiatric medications at the time of the incident and said she had been taking her medications at that time. She agreed she used drugs while taking her medications. She said cocaine numbed her body and slowed her thoughts. She said cocaine only calmed her. She said Depakote and cocaine affected her the same way. She said she took Zoloft before taking Depakote.
The victim testified that the Defendant did not permit her to stay in the Blazer while he and the baby went inside the house. She said that the Defendant did not know her well and that she would not have permitted someone she barely knew inside her car unattended. She said, though, that the Defendant did not force her inside the house and that he told her to come inside because it was cold.
The victim testified that although the Defendant did not force her to perform oral sex, she felt uncomfortable and scared. She said that the look in the Defendant's eye scared her and that she did not know what would happen if she refused. She agreed she told the detective that the Defendant did not force her and that the Defendant did not threaten her or display a gun at that time. She said the Defendant pulled out the gun when he began talking about intercourse. She agreed the Defendant put on a condom after he tied her hands but did not recall telling the nurse or testifying at the preliminary hearing that the Defendant wore a condom during oral sex. She said, though, that she was pretty sure he did not put it on until after she performed oral sex. She agreed some details were unclear.
The victim testified that the Defendant bound her hands with painter's tape three or four times and that she was unable to break free because she had very little strength in her arms as a result of a car accident. She said she had red marks on her wrists from the tape for about thirty minutes after it was removed. She agreed she took her clothes home after the medical examination and burned them because she did not want to see them again. She denied becoming angry with the Defendant, demanding more money, and threatening him if he did not give her more money. She denied "looking for work" on the street when the Defendant picked her up. On redirect examination, the victim testified that she was not charged in the pending homicide case in which she was a witness.
Detective Heather Baltz testified that she worked in the sex crimes unit and that she first met the victim at the hospital. She said the victim was disheveled, upset, hungry, cooperative, and articulate. She said that although the victim was coherent, she was unable to determine if the victim was under the influence. She obtained a statement from the victim, and the victim underwent a medical examination and a drug screen. The victim's urine was positive for cocaine. The evidence collected during the examination was taken to the Tennessee Bureau of Investigation (TBI) Crime Laboratory for analysis. She said a swab from the victim's mouth was taken before the victim was permitted to eat. She said the Defendant's DNA was not found on any of the swabs obtained during the examination.
Detective Baltz testified that she recorded the victim's interview at the hospital. In the recording played for the jury, the victim stated that she walked to a friend's house but that her friend was not home. She was walking down the street when she noticed a vehicle circling the block. The driver eventually stopped and asked if she needed a ride. She recognized the man because he had given her a ride previously and because she had "oral business" with him previously. She told the man she needed a ride, got in the Blazer, and saw a baby in the backseat. The man told her that he lived nearby and that he needed to check on something. She described the inside of the man's house and where he placed the baby. The man told her that she could sit on the bed in his bedroom because that was the only furniture inside the house. She noted that it looked like the residents were moving.
The victim stated that she asked the man if she could borrow $10, and the man gave her the money. She said that after he gave her the money, he told her he wanted something in exchange for it. The victim asked what the man wanted, and he told her that he wanted oral sex. She said she was nervous and uncomfortable. She told him no, and the man grabbed her arm, told her to sit down, and told her to take off her jacket and shirts. She told the man she did not want to take off her clothes, and the man told her to pull up her shirts and her bra. The victim said that the man put on a condom and "made [her] do oral." She clarified that he did not force her but that she was scared not to cooperate. She denied there was an agreement for sex in exchange for money.
The victim stated that after she performed oral sex, the man told her that he wanted intercourse. The victim told him no, and the man said, "You might as well give it to me anyway. What are you going to do, call the police? You're a prostitute." She said the man grabbed his jacket from the floor and pulled out a gun. The man told her to place her hands behind her back, and he taped her hands together. The man wanted her to lie on her stomach, but she did not want to because she feared being raped anally. He allowed her to lie on her back but required her to sit on her hands. She said that the gun was at the foot of the bed under a sheet and that the man acted as though he was going to grab the gun during the incident. Afterward, she learned that she knew someone who knew the Defendant.
The victim stated that after the man finished, the baby began to cry. The man went to pick up the baby while holding the gun. The victim wanted to leave and said she was willing to walk. The man would not permit her to walk and said he did not trust her. The victim told him that she was not going to run from him and that he could drive her to a friend's apartment. They walked to the Blazer. She said that the man "reached" for something and that she did not know if he put the gun in the door. The man asked if she was going to call the police, and the victim said she would not. She got out of the Blazer as quickly as she could, and he left.
The victim did not know the man's name but was later told the Defendant's name by a police officer. She said her friend John "J.J." Poindexter knew the man. She said that she last saw the Defendant in October, when he gave her a ride. She said she had performed oral sex on the Defendant sometime before October. She said, though, that the Defendant probably saw her with Mr. Poindexter. The victim said the man was nervous but did not seem drunk or intoxicated. She agreed to conduct a "controlled" telephone call. She said that the man threw out the tape he used to bind her hands but that some of the tape was left inside the house.
Detective Baltz testified that she asked the victim to participate in a controlled telephone call during which the victim would contact the Defendant at the direction of the police and attempt to obtain admissions from him. The victim wanted to participate and did not hesitate in providing her consent. Detective Baltz said, though, that a controlled call was never made because the Defendant was arrested later that night.
Detective Baltz testified that she went to the Defendant's house after the victim's interview. When she arrived, other officers were already there. She said they knocked on the door several times, announced their presence, turned on their blue lights, used a police cruiser's loud speaker to talk to the Defendant, and obtained a telephone number for the house. She said that they called the number, that someone answered, that the person hung up, and that the person turned off the phone. She said the Blazer described by the victim was in the driveway. When the Defendant did not exit the house, she left to obtain a search warrant. She said that while she was gone, an officer told her that the Defendant's wife, Sunshine Henry, arrived and that she had access to the house. The Defendant's wife signed a waiver and consented to the police's entering the house and the vehicle. When Detective Baltz returned to the scene, the Defendant was inside a police cruiser.
Detective Baltz testified that Ms. Henry lived with the Defendant at the house and that she consented to the search of the Blazer. The detective saw a few personal items and furniture inside the house and said it looked as though the residents were moving. She found blue tape inside the house and found a roll of tape and a "wad" of blue tape in garbage near the roadway. She said a gun was not found inside the house or Blazer. She denied any of the officers looked under the house. During her investigation, Detective Baltz spoke with the Defendant's father and sister about the gun's possible locations, but a gun was never found. Relative to the items the victim said the Defendant threw out the window of his Blazer, Detective Baltz said officers searched the probable route driven by the Defendant but found nothing.
Detective Baltz testified that she spoke with the Defendant while he was in the backseat of the police cruiser. The Defendant agreed to speak with her, and she recorded the interview. In the recording, the Defendant was told that the woman whom he spent time with that night had alleged he raped her. He was told that the police were there to process his house as a potential crime scene and to look for evidence related to the alleged rape. The Defendant said nobody had been in his house. The detective read the Defendant his Miranda rights. He denied picking up a woman earlier that night or having a woman in his Blazer. The detective noted that the front seat did not have any items on it, and the Defendant said his baby sat in the front seat. He denied his son sat in the backseat. The Defendant denied knowing the location where the victim said she was dropped off after the incident.
The Defendant refused to acknowledge whether he saw the victim and said his version did not matter. The detective explained that a portion of the victim's conduct was consensual and that she was undergoing a medical examination. The detective told the Defendant that if the victim's DNA were found on his body or if his DNA were found on the victim's body, she would know the Defendant was lying. He said he was confident no DNA would be found. The detective told him that she found blue tape inside the house, which was consistent with the victim's allegation. The Defendant denied previously paying for intercourse or oral sex. He denied "hanging out" with any known prostitutes.
The Defendant stated that he had been home packing that night because they were being evicted. They were moving to a hotel until they received a tax refund. He said he drove his wife to work at 9:00 p.m. He stayed "up there" until 10:30 or 10:45 p.m. He came home, cleaned, and put their belongings in boxes in order to take them to their storage unit. He said he took one load to the storage unit before taking his wife to work. He denied leaving the house after returning home from taking his wife to work. He said he stopped at the Exxon station after dropping off his wife.
When asked why a random girl would tell the police she was picked up by the Defendant, brought to the Defendant's house, be able to provide a description of his Blazer and his license plate number, and claim he raped her at gunpoint, the Defendant asked if she was "serious." He asked if the woman was a prostitute and a "crack head." When asked if he wanted to prove that he did not have the victim's DNA on his body, he said yes. The Defendant consented to a medical examination, and the interview ended.
Detective Baltz testified that the Defendant initially denied any involvement with the victim, involvement with a prostitute, and possessing a gun. The Defendant agreed to a medical examination. She drove the Defendant to the hospital where swabs were taken and submitted to the TBI laboratory for analysis. She told the Defendant that if DNA were found, it would look bad for the Defendant, given his statement that he had never seen the victim.
On cross-examination, Detective Baltz testified that she was present for the search of the Defendant's house. She agreed blue tape was found in two rooms but primarily in the bedroom. She said Ms. Henry stayed inside the house while she interviewed the Defendant, but she admitted it was possible Ms. Henry left the house without her knowledge.
Detective Baltz testified that the only information she had about J.J. was the information provided by the victim. She said the victim claimed J.J. knew the Defendant, but the victim did not explain their relationship. She agreed some furniture was inside the house. She said the Defendant seemed surprised that the allegation was rape while using a weapon. She said that although she did not have an arrest warrant, she clearly told the Defendant that he was in police custody and read the Defendant his Miranda rights. She said that her decision to arrest the Defendant depended on his statement and that if the Defendant had a reasonable explanation, she would have consulted the district attorney's office the following morning to determine if a ...