Assigned on Briefs December 2, 2014
Appeal from the Criminal Court for Shelby County No. 13-01115 Chris B. Craft, Judge
Stephen C. Bush, District Public Defender; and Harry E. Sayle III (on appeal) and Trent Hall (at trial), Assistant District Public Defenders, Memphis, Tennessee, for the appellant, Norman McDowell.
Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Christopher Judson Lareau, Assistant District Attorney General, for the appellee, State of Tennessee.
Roger A. Page, J., delivered the opinion of the court, in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ., joined.
ROGER A. PAGE, JUDGE
This case concerns the taking of $1200 and a cellular telephone from a man while the perpetrator pointed a gun at the victim and also concerns the subsequent rape of the male victim's niece the following day. Appellant was indicted on one count of aggravated robbery, two counts of aggravated rape, and one count of aggravated statutory rape. Appellant's trial began on July 1, 2013, and a jury convicted appellant as charged.
The State's first witness was James Hall, a fifty-year-old man who managed utility, gas line, and pipeline crews. Mr. Hall testified that in the early morning hours of May 9, 2010, he was at his mother's house in Shelby County. He stated that he was going to take his mother to gamble at some casinos for Mother's Day. Mr. Hall went outside, sat in the passenger seat of the car, and "laid back." He felt someone pull his legs out of the car. Mr. Hall looked up and saw appellant, who demanded that Mr. Hall give him money. Appellant had a gun in his hand, and when Mr. Hall reached for the weapon, appellant quickly pulled the gun back, breaking Mr. Hall's finger. Another man was standing behind appellant, and appellant handed the gun to the second perpetrator while appellant searched Mr. Hall's person, discovering Mr. Hall's wallet in his back pocket. Appellant removed $1200 from Mr. Hall's wallet and took his cellular telephone. Mr. Hall explained that he could see appellant's face because the car's interior light was on when appellant leaned inside the car to search him. After the two men ran away, Mr. Hall went back into his mother's home to summon help. Mr. Hall's mother, step-father, and two nieces were inside the home. Mr. Hall called 9-1-1 and provided the responding officers with a statement. Mr. Hall testified that the following day, he went back to his mother's home and that Mr. Hall's cousins told him that he had been set up for the robbery by his niece, B.H.,  who had been inside his mother's house on the night of the robbery. Mr. Hall called the investigating detective to inform him of the new information. Mr. Hall identified appellant in photographic lineups on May 16 and 29, 2010, and identified him in the courtroom on the day of trial. Mr. Hall admitted that "it took [him] awhile" to identify appellant from the photographic lineup on May 16.
During cross-examination, Mr. Hall stated that during the incident, he could not see the second perpetrator clearly because the second man was standing at the back of the car on the passenger side.
B.H., Mr. Hall's niece, testified next that she was fourteen years old at the time of this incident, that she was born on May 23, 1995, and that she was staying with her grandmother while her mother was at work. B.H. admitted that she knew about the robbery before it occurred from overhearing two of her relatives talking about it but that she did not tell anyone. B.H. was inside her grandmother's home when her uncle was robbed. The day after the robbery, appellant, whom she identified as "Pooh-Pooh, " told B.H. to come get her share of the money from the robbery. B.H. went to a nearby house where appellant was located and went into a back bedroom to retrieve her money. Appellant gave B.H. forty dollars, pushed B.H. on a bed facedown, told her to remain silent, held a gun to the back, right-hand side of B.H.'s neck, and vaginally penetrated her. B.H. explained that she could feel the gun on her neck and that the encounter lasted between five to ten minutes. B.H. explained that after the incident, she went home, showered, and cried. When asked if she had any injuries as a result of the sexual attack, B.H. responded, "No, sir, just throbbing inside." On May 14, 2010, B.H. told police officers about the robbery and identified appellant as one of the perpetrators. B.H. admitted that she was charged as an accessory after the fact and was prosecuted in juvenile court. On May 18, 2010, police officers came to her home and asked if she and appellant had previously had sex, and B.H. told the officers that she had been raped. B.H. asserted that she did not tell anyone about the rape prior to May 18 because she did not want to "keep on thinking about him and talking about him" and because she did not tell other people her secrets.
During cross-examination, B.H. stated that she had previously dated appellant's brother and that she had given appellant her cellular telephone number a couple of days prior to the robbery. B.H. asserted that the forty dollars that appellant gave her prior to their sexual encounter was to remain silent about the robbery and represented her proceeds from the robbery. B.H. denied that the money was for sex. B.H. stated that the two family members who told her about the robbery were Mr. Hall's daughter and the mother of one of her relatives. She stated that those two women set up the robbery and that the two women asked appellant to commit the robbery. B.H. stated that after she was adjudicated delinquent for being an accessory to the robbery, she was placed in a youth detention facility for nine months. During redirect examination, B.H. stated that appellant's younger brother was nineteen when she dated him.
Joseph Pearlman, a lieutenant with the Memphis Police Department, testified that on May 16, 2010, he interviewed appellant. At the interview, appellant waived his Miranda rights and, when providing his biographical information, stated that he was born on September 9, 1974. During the interview, appellant denied participating in the robbery but told the officers that he and B.H. had engaged in sexual relations in the past. However, appellant refused to give a written statement after he told the officers this information. During cross-examination, Lieutenant Pearlman agreed that appellant claimed that he did not know B.H.'s age when he had sex with her.
Juaquatta Harris, an officer with the Shelby County Sheriff's Department, testified that she was responsible for monitoring inmates' telephone calls. Through Officer Harris, the State introduced recorded telephone ...