Court of Criminal Appeals of Tennessee, Nashville
CHRISTOPHER M. BLACK,
STATE OF TENNESSEE
Assigned on Briefs February 11, 2015.
Appeal from the Criminal Court for Davidson County No. 2004-A-246 Monte Watkins, Judge.
In 2006, the Petitioner, Christopher M. Black, was convicted by a Davidson County jury of two counts of aggravated rape and two counts of aggravated robbery, for which the Petitioner received an effective sentence of 50 years in the Department of Correction. On direct appeal, this Court affirmed the Petitioner's convictions and sentence. Thereafter, the Petitioner filed a petition for post-conviction relief, which was denied following a hearing. On appeal from the denial of post-conviction relief, the Petitioner contends that he received ineffective assistance of counsel based upon trial counsel's failure to hire a DNA expert to analyze the evidence against the Petitioner. Following our review, we affirm the judgment of the post-conviction court.
Elaine Heard, Nashville, Tennessee, for the appellant, Christopher M. Black.
Herbert H. Slatery, III, Attorney General and Reporter; Leslie E. Price, Senior Counsel; Victor S. Johnson, District Attorney General; Roger Moore, Assistant District Attorney General, for the appellee, State of Tennessee.
Robert L. Holloway, Jr., J., delivered the opinion of the Court, in which Thomas T. Woodall, P.J., and Timothy L. Easter, J., joined.
ROBERT L. HOLLOWAY, JR., JUDGE.
I. Facts and Procedural History
On February 6, 2004, the Petitioner was indicted on two counts of aggravated rape, a Class A felony, and two counts of aggravated robbery, a Class B felony. Following a jury trial, the Petitioner was convicted as charged. For each aggravated rape conviction, the Petitioner received a 20-year sentence to be served consecutively to one another. For each aggravated robbery conviction, the Petitioner received a 10-year sentence to be served concurrently with one another but consecutively to the aggravated rape convictions, for an effective 50-year sentence. The facts underlying the Petitioner's convictions, as summarized by this Court on direct appeal, are as follows:
This case stems from a brutal attack upon a female victim, L.P., and a male victim, D.B., beginning in the late hours of February 12, 1999, and ending in the early morning hours of February 13, 1999. The victims had been friends for several years. Around 11:30 p.m. on the night of the offense, the female victim drove to the male victim's parent's home where the male victim lived to borrow a movie. She pulled her vehicle in front of his home and paged him to come outside. The male victim came outside, gave her the movie, and sat inside her vehicle to talk. About fifteen minutes later, the male victim was getting out of the vehicle when he and the victim saw two men with hoods coming through his yard.
The female victim stated that the two men came around from behind her vehicle, over to the driver's side, and knocked on the window. Neither victim knew the two men. The female victim cracked the window, and a revolver was stuck in the window to her temple. The men screamed at the female victim, "Get out of the car, bitch. Get out of the car bitch." The vehicle was still running, and she unlocked the door and opened it. The female victim said that a chrome revolver was put to her head. She stated, "[I]t looked like it had a pearl, or like, an engraved handle. Looked more like a collector's gun."
When the female victim began to get out of the vehicle, the men pushed her back inside. At this point, she stated that she was in the front seat of her vehicle. The male victim had gotten out of the vehicle and was on the ground. The men went through the vehicle and told the victim they wanted her wallet and money. She told them that she only had ten dollars, and they yelled at her for not having more money. The men looked through the trunk twice and took the female victim's credit cards.
The female victim differentiated between the two men by their skin tone. After the men asked for the female victim's money, the female victim stated that the man with the dark complexion demanded that she perform oral sex on him. She testified that he said, "'[Y]ou're going to suck my d.'" She said that she complied because she had a gun to her head and was terrified. She stated, "It started in the street. He made me get on my knees in the street and perform oral sex. And they both switched back and forth between four to six times." Both men forced her to perform oral sex against her will and consent by threatening her with a weapon.
The female victim testified that after the men forced her to perform fellatio on them, the man with the lighter complexion said, "'I want to f this b*.' And they made [her] pull down [her] pants and bend over in the street. And they took turns raping [her] from behind." When one man was raping her, the other was watching for oncoming cars. After being vaginally raped, the female victim was forced back inside the car to perform oral sex. Initially, the female victim could not recall if either man ejaculated. However, she later stated that, at some point, one of the men ejaculated in her mouth. She could not recall where she was physically positioned but she gagged, and spit the ejaculate outside the vehicle on the pavement of the street.
The female victim recalled that the male victim begged the men to stop. The men began to leave, but came back. They ordered the male victim to run down the street while they held the female victim by her hair at gunpoint. The men then pushed the female victim, and told her to run and not to look back. The female victim found the male victim, and they ran down the street knocking on doors until someone gave them a phone to call 911. The male victim's father came to pick them up and later took them to the crime scene to wait on the police. When the female victim returned to the scene, her vehicle was still there with the four doors open.
At trial, the female victim identified photographs from the crime scene. She specifically identified a photograph of the ejaculate that she spit out onto the pavement. It was admitted into evidence as collective exhibit 1G. She recalled that the police officers marked exhibit 1G as significant. She described both men as in their early twenties. She also estimated that the attack lasted around thirty to forty-five minutes. She stated that the men were dressed alike. They wore masks, black jeans and sweatshirts, but one man had on a red shirt and the other a blue shirt. The man with the blue shirt had a dark complexion and the man with the red shirt had a light complexion.
The female victim was not missing any of her credit cards, but the men took her ten dollars. She told the police what happened and was given a gynecological examination that night. The police obtained internal vaginal swabs and swabs of her mouth. A black light was placed over her naked body to determine the existence of any pubic hairs or semen. The police also took the female victim's clothes. The female victim stated that she did not discuss what she was going to tell the police with the male victim.
The female victim recalled that, at some point, the two men took their masks off. However, she could only remember seeing the lighter complected man's face. She and the male victim provided the police with a sketch; however, she had no input in the sketch developed by male victim. She stated that she did not remember anything about the man with the dark complexion.
On cross-examination, the female victim acknowledged that she had trouble remembering the sequence of events; specifically, whether she was forced to perform oral sex or was vaginally raped first. In regard to the events leading up to the man's ejaculating in her mouth, she said she could not remember whether both men or only one man forced her to perform oral sex. She further conceded that she was unsure if the man with the lighter complexion ejaculated in her mouth. She also admitted that she had previously misidentified a busboy that she saw at a ...