Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs at Knoxville June 23, 2015
Appeal from the Criminal Court for Davidson County No. 2012-A-159 Monte D. Watkins, Judge
Nicholas McGregor (on appeal) and Shaw Cunningham (at trial), Nashville, Tennessee, for the appellant, Doyale Montez Blacksmith.
Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; and Hugh Ammerman and Toli Rosenblum, Assistant District Attorneys General, for the appellee, State of Tennessee.
Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which Alan E. Glenn and Timothy L. Easter, JJ., joined.
ROBERT H. MONTGOMERY, JR., JUDGE
At the trial, the victim, V.N.,  testified that she had known the Defendant for several years and that by August 6, 2011, she and the Defendant had been involved in a periodic romantic relationship for about five years. She said that while she and the Defendant were dating, the Defendant also dated Bernice Williams, who was also known as Gina. V.N. and Ms. Williams were friends, and they each knew of the other's relationship with the Defendant. V.N. did not have an issue with the arrangement. The general tenor of the relationship was that the Defendant came to V.N.'s house after Ms. Williams went to work, that he spent time with V.N. during the day until Ms. Williams finished working, and that he usually stayed overnight at Ms. Williams's home. V.N. said the Defendant did not have a home of his own and only worked periodically. On occasions when the Defendant stayed overnight with V.N., the Defendant told Ms. Williams that he was staying with his brother. V.N. lived alone, and the Defendant was the only additional person who possessed a key.
V.N. testified that on August 6, 2011, at 3:00 a.m., she was home sleeping when the Defendant entered her home by using his key, woke her, and asked why she had called Ms. Williams. V.N. denied calling Ms. Williams, and V.N. and the Defendant argued. V.N. said that the Defendant became enraged and that she thought he was under the influence of something. She said the Defendant removed his belt and told her, "I'll tell you what . . . take your clothes off . . . strip your clothes." She complied. The Defendant said, "Stretch your hand out on the bed." As V.N. turned around, she said the Defendant struck her on her back with the belt. She said she jumped, and the Defendant ordered her to "turn around" and to place her hands on the bed again. She complied, and the Defendant struck her with the belt repeatedly. She yelled from the pain, and the Defendant left the bedroom and turned on the radio in the living room. She thought the Defendant did not want her neighbors to hear her screams. She said that when the Defendant returned to the bedroom, he said, "I'll tell you what . . . take your panties off. Have you had enough? Turn your legs out." V.N. said she sat on the bed and opened her legs. She said he wrapped the belt around his hand and struck her in the face. She said the Defendant then inserted his finger in her vagina to determine if she had engaged in sexual relations with any other men. After the Defendant's examination, he struck V.N. in the face with the belt buckle.
V.N. testified that the Defendant left the home long enough for her to put on her clothes, that he returned, and that he said, "Come go with me." She said that she told the Defendant she was not going anywhere with him and that the Defendant struck her with the belt. She then went with the Defendant and entered Ms. Williams's car that the Defendant was driving, and the Defendant drove to an abandoned lot. V.N. said that the Defendant told her to get out of the car and that she refused. She said that the Defendant threatened to "drag her a-- out of the car" and that he walked around the car, opened the door, and grabbed her by her clothes. She said the Defendant walked her to a building foundation in the lot and asked repeatedly why she called Ms. Williams. V.N. said that she denied calling Ms. Williams and that the Defendant struck her. She said that she attempted to run away but that the Defendant overpowered her, grabbed her, and said, "Are you trying to call the police? Get the police called on me?"
V.N. testified that the Defendant threw her on the foundation, that she fell to the ground, and that the Defendant kicked her in the head and buttocks and hit her with the belt. She recalled the Defendant's wearing work boots. She said that during the assault, she was crouched, that she "peeked through, " and that the Defendant took a cigarette from his mouth and burned her arm twice. She had marks on her arm from the burns at the time of her testimony, which was two and one-half years after the incident. She thought the Defendant stopped attacking her because he tired. She said the Defendant then drove her home. During the drive, she said the Defendant stated that Ms. Williams had never lied to him, that he loved V.N. "like a rock, " and that he would "kill a rock over" V.N. After they arrived home, the Defendant went outside for something, and she called 9-1-1 but hung up because she heard the Defendant returning. She said that the 9-1-1 dispatcher called her cell phone.
The recording of the 9-1-1 call was played for the jury. In the recording, the caller hung up after the 9-1-1 dispatcher identified herself. The 9-1-1 dispatcher called the number and a female answered the phone. The dispatcher stated that she received a 9-1-1 from the number. The female identified herself as the victim, stated, "Yes, " and provided her address. The victim told the dispatcher that she had to hurry and get off the phone. When asked what occurred, the victim stated, "Domestic. I have to hurry and get off the phone." The victim stated that the incident involved her boyfriend, whom she identified as the Defendant. When asked if the Defendant assaulted her, she stated, "Yes. Yes, come on. Hurry up. I got to hang up now."
V.N. testified that after she ended the 9-1-1 call, she removed the battery from her cell phone and hid the battery and the phone under a dresser. She said that before the police arrived, she told the Defendant that she was going to save his and her lives in Jesus's name. She said three officers responded to her home. She said one of the officers, who appeared to know the Defendant, asked the Defendant if he had assaulted her. She said that the Defendant denied any wrongdoing and that the officer asked the Defendant again if he had hit her. The Defendant admitted assaulting her. The officer told the Defendant, "You know the procedure, stand up and put your hands behind your back." She told the officers that she wanted to prosecute the Defendant, but the officers did not ask whether the Defendant had sexually assaulted her. She said that after the Defendant admitted hitting her, the police stopped questioning him. She said the officers did not ask to photograph her injuries or ask her to detail the events of the evening.
V.N. read from the arrest warrant, which stated that she and the Defendant argued, that the Defendant struck her during the argument, that she had a small abrasion and bleeding inside her mouth, that the Defendant admitted hitting her, and that she was assisted with obtaining an order of protection. She agreed that she signed the affidavit and said nothing in the narrative was false. She obtained an order of protection not long after the incident and identified the narrative in the application. She agreed that in the narrative, she explained all of the events on August 6, 2011, not just the Defendant's hitting her. Relative to the order of protection, she could not recall if she or someone else indicated her relationship to the Defendant on the application. She said that if she had completed the application, she would have marked that she and the Defendant were dating. When asked why the application did not reflect that the Defendant sexually assaulted her, she said, "Everything was going so fast and plus sometimes I don't understand words when it comes to the law." She said, though, she felt degraded and violated when the Defendant penetrated her vagina with his finger.
V.N. testified that at her home, the Defendant gave her a choice of being struck with his belt or his fist. She was resisting when the Defendant made the statement because she did not want the Defendant to hit her. She screamed and told the Defendant, "No, " and the Defendant chose the belt. She grabbed the belt, and the Defendant told her to let go of it.
V.N. testified that her daughter and the Defendant's two nieces took photographs of her injuries the day of the Defendant's arrest. She said that the Defendant's niece did not provide the photographs she took. She identified the photographs taken by her daughter, which showed her injured lip, marks on her back and legs from the belt, and marks on her buttocks from the Defendant's boots.
V.N. testified that the Defendant called her from jail on the day after his arrest. A recording of the telephone conversation was played for the jury, but it was not included in the record.
V.N. testified that although she had obtained an order of protection, she felt helpless because the Defendant called her from jail. She said additional arrest warrants were obtained during the six days after the Defendant posted bond on the domestic assault charge. She said she called the police because the Defendant came to her home and taped an Al Green compact disc to her door. She had loaned the compact disc to the Defendant. She said that the Defendant continued calling her home and that she called the police. She recalled a telephone call in which an officer who responded to her home spoke to the Defendant by telephone. She kept records of when the Defendant called and said she received multiple calls on ...