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State v. Onyiego

Court of Criminal Appeals of Tennessee, Jackson

May 10, 2018


          Assigned on Briefs October 3, 2017

          Appeal from the Criminal Court for Shelby County No. 15-00352 Glenn Ivy Wright, Judge

         A Shelby County Criminal Court Jury convicted the Appellant, Justus Onyiego, of two counts of aggravated rape, a Class A felony. After a sentencing hearing, the trial court merged the convictions and sentenced him to seventeen years in confinement. On appeal, the Appellant contends that the trial court denied his right to due process by failing to dismiss the indictment due to the State's ten-year preindictment delay, that the trial court erred by failing to strike the testimony of two police officers, that the trial court erred by refusing to admit evidence of the victim's prior sexual behavior under Tennessee Rule of Evidence 412, and that a prosecutor's failure to correct false statements during closing arguments violated Napue v. Illinois, 360 U.S. 264 (1959), and constituted prosecutorial misconduct. Based upon the record and the parties' briefs, we find no reversible error and affirm the judgments of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

          Claiborne H. Ferguson (on appeal) and Shannon McKenna (at trial), Memphis, Tennessee, for the appellant, Justus Onyiego.

          Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Abby Wallace, and Samuel Winnig, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which John Everett Williams and Alan E. Glenn, JJ., joined.



         I. Factual Background

         In January 2015, the Shelby County Grand Jury indicted the Appellant for two counts of aggravated rape based upon alternative theories. The indictment alleged the rapes occurred in September 2004, and the Appellant's jury trial began on June 1, 2016. Although the Appellant does not contest the sufficiency of the evidence, we will summarize the evidence presented at trial.

         The thirty-seven-year-old victim testified that in September 2004, she lived in an apartment in Memphis with her mother, sister, and children. On the morning of Sunday, September 5, the victim was sitting on the steps outside her apartment and noticed that a four-door, green car kept driving by the apartment. At some point, the car stopped, and the driver, whom the victim identified at trial as the Appellant, asked if she knew where he could buy some powder cocaine. The victim had seen the Appellant in the neighborhood previously and "kind of recognized who he was" but did not know his name. The victim told the Appellant that she did not know where he could buy cocaine, and he told her that "I was really trying to see could I date you, get with you." The victim knew he was talking about prostitution. The victim asked how much money he had, and he asked what he could get for forty dollars. The victim told him "[m]aybe both, " meaning oral and vaginal sex. The victim wanted money to buy drugs, so she got into the Appellant's car.

         The victim testified that the Appellant claimed he knew "a good spot" and that he pulled onto a ramp at a warehouse where trucks loaded and unloaded. The victim was scared someone would see them and told him she did not like that location. She also told him she wanted the money first. The Appellant told the victim, "I ain't got no change. I give it to you afterwards." The victim said she responded, "You ain't got no change? But we just passed by the store." The Appellant then told the victim, "I'm going to give it to you, I'm going to give it to you." The victim told the Appellant, "Man, no, that's okay. I want to go home." The Appellant acted as if he did not want to take to the victim home, so the victim opened the door to get out of the car. The Appellant grabbed her hair and pulled her back inside the car. The victim turned around and started hitting the Appellant, and they began "fighting and tussling." The victim said that the car was constantly moving on the ramp while they were fighting and that "the front two wheels went over the ramp and [the car] got stuck." The Appellant began choking the victim and put a knife to her throat, and the victim passed out. She said that when she awoke, the Appellant's penis was inside her vagina, and he was having sex with her. She saw a screwdriver in the car, grabbed it, and started "sticking him with it." She got out of the car and ran to a gas station.

         The victim testified that when the police came to the gas station, she told them that a man had raped her and that his car was stuck on a ramp at a warehouse. The police went to the warehouse and brought the Appellant to the gas station, where the victim identified him as her attacker. The victim went to the Rape Crisis Center and spoke with a nurse. She told the police and the nurse that the Appellant used a knife during the attack but did not tell them that she was working as a prostitute that day. The victim identified photographs of scratches and cuts on her neck and the Appellant's car stuck on the ramp for the jury.

         The victim testified that she was scared to cooperate with the police because the Appellant knew where she lived and that she did not have any further contact with law enforcement after September 5, 2004. Years later, though, a police officer contacted her, and she told him about what happened in September 2004. The officer showed the victim a six-photograph array, and she selected the Appellant's photograph. The victim acknowledged that she originally agreed to have sex with the Appellant but that she changed her mind because she did not like the location he chose and because he did not have any money.

         On cross-examination, the victim denied telling the police that she was walking home after a night of partying and smoking crack cocaine when the Appellant stopped his car to talk with her. She acknowledged that she did not tell the police she was prostituting herself on September 5 and that she may have told them she was raped at gunpoint. She also acknowledged that she was addicted to crack cocaine at the time of the incident, that she agreed to get into the Appellant's car, and that she agreed to have sex with him for money. However, he would not give her the money prior to the sex, so she changed her mind and told him no. She testified that they started "fight and tussling" and that she began "sticking" him with the screwdriver. She acknowledged that she broke his glasses and that she may have "bust[ed]" his lip.

         Lieutenant Mark Wojcicki of the Memphis Police Department (MPD) testified that about 7:30 a.m. on September 5, 2004, he was dispatched to the Tiger Mart Exxon on the corner of Third and Crump and was the first officer on the scene. The victim was "very frantic, " had been "beat up really bad, " and told Lieutenant Wojcicki that "she asked a dude for a ride and he pulled around some building, and then hit her with something and tried to force her to have sex with him." The officer said that the victim's clothes were torn and that "[y]ou could see all of her bra." He identified photographs of the victim taken at the gas station and said the photographs showed "ligature marks around her neck and just redness and bruising." Lieutenant Wojcicki left the gas station, went "down the street, " and saw a car "halfway off" a loading dock. He saw the Appellant walking toward the Tiger Mart Exxon, and the Appellant matched the description given by the victim. Lieutenant Wojcicki transported the Appellant to the gas station, and the victim shouted, "That's him, that's him."

         On cross-examination, Lieutenant Wojcicki acknowledged that the victim claimed that she had been walking home "after a night of partying, smoking crack"; that the Appellant stopped his car and asked if she wanted a ride home; and that he raped her at gunpoint. Lieutenant Wojcicki said he did not find any weapons on the Appellant.

         Officer William Goetsch of the MPD testified that he responded to the Tiger Mart Exxon on September 5, 2004. The Appellant was in custody when he arrived, and the victim said the Appellant raped her. The victim claimed the Appellant used a gun "to traumatize or to hold her at bay while [the] rape had occurred." Officer Goetsch said the victim was "battered, " had injuries to her neck, and "was very sincere and genuine in how she spoke about that she had just been raped." Defense counsel asked if the victim admitted to Officer Goetsch that she had been working as a prostitute that day, and he answered, "I believe so." On cross-examination, though, Officer Goetsch acknowledged that he wrote the police report for this case and that he did not mention the victim's working as a prostitute in the report. He explained that he would not have included information in the report that was not relevant to the case.

         Sergeant Lavern Jones of the MPD testified that he went to the Tiger Mart Exxon and photographed the victim. He then went to the warehouse on Crump and photographed a car "hanging off the dock." A cellular telephone and a condom were on the driver's side floorboard inside the car, and clothing, including a pair of men's boxer shorts, was on the backseat. Sergeant Jones said that the police found some of the Appellant's personal property, including his wallet, inside the car and that a condom wrapper was on the ground outside the car.

         Kristine Gable, the Nursing Coordinator for the Rape Crisis Center, testified as an expert in forensic sexual assault examination that a nurse examined the victim at 9:30 a.m. on September 5, 2004, and that she had reviewed the nurse's report. The victim was twenty-five years old and reported that she had been raped at 6:30 a.m. The nurse described the victim as "agitated, cooperative, sobbing, and tearful, " and the victim told the nurse the following: The victim had been walking home when the Appellant pulled up beside her and asked if she needed a ride. The victim got into the car, the Appellant parked between two trailer trucks, and the victim tried to get out of the car. The Appellant hit the victim on the head with a gun, choked her, tore off her panties, and raped her. According to the nurse's report, the Appellant vaginally penetrated the victim one time, ejaculated, and did not use a condom.

         Ms. Gable testified that the nurse collected vaginal swabs and slides for a rape kit and that the nurse did not see any vaginal or anal injuries. However, the nurse reported redness and three lacerations to the victim's neck and swelling and redness to the victim's left eye. The victim complained of a headache and abdominal pain.

         Sergeant Israel Taylor of the MPD testified that he used to work as an investigator for the MPD's DNA Unit and was responsible for investigating "old" rape and sexual assault cases. In October 2014, Sergeant Taylor received and began investigating the victim's case, which had been closed by the original investigator because the investigator could not locate the victim. Sergeant Taylor stated, "The original investigators made several attempts to try and locate her, relative's houses, phone numbers, and it was just everything was a dead end, basically, for lack of a better term." As a result, the police released the Appellant from custody.

         Sergeant Taylor testified that he contacted the victim, that she agreed to cooperate, and that he took a formal statement from her in December 2014. He said the victim "was just a range of emotions when we met with her: part relief, part anger, part sadness." He showed her a six-photograph array, and she "eventually" selected the Appellant's photograph. The victim told Sergeant Taylor that she was "positive" the Appellant was the perpetrator. The grand jury indicted the Appellant, and the police arrested him and collected a buccal swab from him.

         Jennifer Millsaps of the Tennessee Bureau of Investigation's Serology and DNA Unit testified as an expert in forensic DNA analysis that in June 2011, she analyzed the swabs and slides in the victim's rape kit and found sperm. In January 2015, she received a "standard" from the Appellant and compared the DNA from the Appellant's sample to the sperm DNA. The DNA profiles ...

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