Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs February 19, 2015
Appeal from the Criminal Court for Knox County No. 98674 Mary Beth Leibowitz, Judge
Keith Lee Lieberman (on appeal, at sentencing, and at motion for new trial) and Mitch Harper (at trial), Knoxville, Tennessee, for the appellant, Kenneth Duane Hall.
Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel; Randall E. Nichols, District Attorney General; and Leslie Nassios, Assistant District Attorney General, for the appellee, State of Tennessee.
Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which Norma McGee Ogle and D. Kelly Thomas, Jr., JJ., joined.
ROBERT H. MONTGOMERY, JR., JUDGE
At the trial, L.B. testified that she was an alcoholic and that her problems with alcohol developed later in life. At the time of the trial, she had sought treatment for her addiction and was undergoing therapy. She said that at the time she met the Defendant, she was not sober. During their fourteen-month relationship, she worked at a department store and performed odd jobs with the Defendant. L.B. and the Defendant worked as part of the cleanup crew at Thompson-Bowling Arena and Neyland Stadium.
L.B. testified that she and the Defendant were each homeless when they met in April or May 2010. L.B. lived under a bridge behind Keener Lighting Company, but she eventually found housing through Helen Ross McNabb Center. She obtained an apartment at Isabella Towers on May 13, 2011, and on May 22, she and the Defendant moved furniture into her apartment. She said that the following day, the Defendant woke up "ranting" about L.B.'s not appreciating him. She said the Defendant slit the cushions on the sofa, smashed the television, and verbally belittled and degraded her. The Defendant told her, "You're just like the rest of them b ------ . You don't appreciate anything." Although L.B. did not recall what she said to the Defendant, she recalled the Defendant's saying, "Just because you get this apartment don't think that you run everything." She replied, "Well, God runs things, and all I ask is that you respect my apartment." She said the Defendant threw a drink on her, hit her on the back of the head with his fist, dragged her to the floor by her hair, and choked her with his hands. L.B. thought the Defendant was going to kill her.
L.B. testified that the Defendant abruptly stopped the attack and that she crawled to the foot of the bed after catching her breath. She said they exchanged words, and the Defendant pushed her on the bed. She said, "[He] tried to remove my shorts, which he did, and I was trying to fight him off." She told the Defendant, "No, stop; don't do this." She said that the Defendant penetrated her vagina with his penis, that he got up and pulled up his pants, and that he left after taking her only apartment key. She thought the Defendant stayed periodically with another woman.
L.B. testified that she called 9-1-1 and that she went to the hospital because she thought she had a concussion and broken fingers. At the hospital, she told the investigating officer that she was unsure if she wanted to prosecute the Defendant. She denied calling the officer after the night of the incident. She said a Sexual Assault Crisis Center (Center) employee photographed the bruises while she was at the hospital and asked if she wanted a rape kit examination performed. L.B. said that she refused the examination because she had consensual sex with the Defendant recently and because she did not want "to be invaded again" after being raped. She denied having any genital injuries. She said that she did not have a concussion and that her fingers were badly bruised but not broken.
L.B. testified that she returned home after leaving the hospital and that she next saw the Defendant one or two days later when he returned. She said the Defendant had the same demeanor, degraded her, and was belligerent. She allowed the Defendant to stay at her apartment because she feared him, she had low self-esteem, and he controlled her apartment key, money, and telephone. She said the Defendant always possessed her cell phone, monitored her calls, and called some of the telephone numbers to determine to whom she spoke. She was too afraid to call the investigating officer when the Defendant returned to her apartment. She said that she had been to the emergency room on three previous occasions because of the Defendant's physical abuse.
L.B. testified that the Defendant stayed at her apartment until July 2011, although she asked him several times to leave after the alleged rape and that the Defendant always replied that he would leave when he was ready, that she was his property, and that their relationship was over when he said it was over. She said that the abuse leading up to the end of their relationship became more severe and frequent. She recalled the Defendant's hitting and stabbing her, burning her with a cigarette, and cutting her hair with a butcher knife. She denied calling the police on those occasions and said she "made up [her] mind . . . to get away one way or another." L.B. realized she could not "fix" the Defendant's rage.
L.B. testified that in August 2011, she asked Carolyn Moore from the Center to help her obtain an order of protection. After L.B. obtained an order of protection against the Defendant, she spoke to Ms. Moore about reporting the rape that occurred in May. She said Ms. Moore spoke to the investigating officer, who told Ms. Moore it was still possible to pursue charges against the Defendant. L.B. provided a statement to the officer, and a warrant was issued for the Defendant's arrest. She admitted she cared about the Defendant and said her feelings for him also played a role in her hesitation to prosecute.
On cross-examination, L.B. testified that because the Defendant took her apartment key on the day of the incident, her door remained unlocked while she was treated at the hospital. She said that although the Defendant returned with her apartment key a couple of days later, the Defendant maintained control of the key. She said the Defendant brought the television to her apartment before he destroyed it on the morning of the incident.
L.B. testified relative to the previous incidents of physical abuse that she never called the police. She said in that June 2010, she was taken to the hospital and stayed overnight because of vaginal tearing she suffered after having consensual sex with the Defendant. Hospital staff advised her and the Defendant to refrain from sexual relations for two weeks. She did not recall the sexual assault nurse's telling her on the day of the incident that previous consensual sexual encounters were irrelevant for purposes of the rape kit examination.
On redirect examination, L.B. testified that in addition to the Defendant's stabbing and cutting her hair with a knife before the incident in this case, in January 2011 the Defendant hit her in the face, breaking four bones. She required eye surgery to repair the damage. She admitted she told hospital staff that she had been mugged. L.B. also said she was treated at the hospital after the Defendant bit her forehead during another incident.
On recross-examination, L.B. testified that the corrective eye surgery occurred in February but that she was uncertain if the Defendant took her to the hospital. She said, though, it would not have been unusual for the Defendant to have been with her.
Glenna Ford, a sexual assault nurse examiner at the Center, testified that the victim's left finger and upper and lower lips were bruised. The victim also displayed redness, swelling, and scarring around her right eyebrow, cheek, neck, and left ankle. Photographs of the injuries were received as exhibits.
On cross-examination, Ms. Ford testified that she did not perform the victim's sexual assault examination. She said the examining nurse responded to the hospital after the Center received a telephone call. She said if a victim told an examining nurse that she had consensual sex two days before an alleged assault, the nurse would document the information and provide the victim with information relative to the sexual assault examination.
On redirect examination, Ms. Ford testified that it was common for a victim to be reluctant to submit to an examination because of the trauma. She said that had the victim complained of vaginal pain, she would have been examined for trauma but that the victim did not complain of vaginal pain.
The hospital medical records were received as an exhibit. The records reflect that the victim reported that her boyfriend assaulted and raped her inside her apartment. The examination showed facial, scalp, and hand contusions but no broken bones. She was prescribed pain medication and instructed to return to the emergency room if her condition worsened.
Knoxville Police Investigator Brian Moran testified that he responded to the hospital regarding an alleged rape complaint on May 22, 2011. He said the victim reported that her boyfriend, the Defendant, assaulted and raped her inside her apartment. He said that the victim was unsure whether she wanted to prosecute the Defendant and that he told the victim to call him after her release from the hospital. She ...