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State v. Smartt

Court of Criminal Appeals of Tennessee, Knoxville

October 3, 2019


          Session July 23, 2019

          Appeal from the Criminal Court for Hamilton County No. 294713 Don W. Poole, Judge

         A Hamilton County jury found Defendant, Diontae Smartt, guilty of aggravated sexual battery, for which he received a sentence of eight years' incarceration. On appeal, Defendant contends that the trial court erred by denying his motion to admit the video recording of his statement to police in its entirety, pursuant to Tennessee Rule of Evidence 106, after the State questioned Defendant about inconsistencies between the statement and Defendant's trial testimony. Defendant further contends that the trial court erred by denying his request to instruct the jury on self-defense as the defense was fairly raised by the proof at trial. Following a thorough review, we affirm the judgment of the trial court.

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

          Steve E. Smith, District Public Defender; and Erinn Rene O'Leary and Christian Coder, Assistant District Public Defenders, for the appellant, Diontae Smartt.

          Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant Attorney General; Neal Pinkston, District Attorney General; and Jason Demastus and AnCharlene Davis, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which Camille R. McMullen and Timothy L. Easter, JJ., joined.



         I. Factual and Procedural Background

         In March 2015, the Hamilton County Grand Jury indicted Defendant for aggravated rape.[1] The indictment alleged that Defendant:

on September 29, 2014, in the County aforesaid, did unlawfully and intentionally or knowingly engage in sexual penetration of [the victim] and . . . [D]efendant caused bodily injury to the victim, in violation of Tennessee Code Annotated [section] 39-13-502[.]

         Trial Testimony

         Defendant's case was first tried in August 2017; however, the trial court declared a mistrial after the jury could not reach a unanimous verdict on the charged offense. The case proceeded to trial for a second time in April 2018. The victim's daughter testified that on the morning of September 29, 2014, the victim called her around 7:00 a.m. The victim sounded "[s]haken and upset" and said that he needed to go to the emergency room because he had been raped. The victim's daughter drove to the victim's residence, which was about two or three minutes from her home. When she arrived, she saw that the victim had been "beaten up." She testified that she tried to hug the victim, but he was "very standoffish" and did not want to be touched. She took the victim to the emergency room at Parkridge Medical Center ("Parkridge"). She testified that they arrived around 7:30 a.m. and did not leave until 12:30 or 1:00 p.m. The victim's daughter stated that the victim's injuries required immediate medical attention but agreed that neither she nor the victim called 911. She stated that she later learned that Defendant's residence was "four doors down" from the victim's home.

         The victim's son testified that he received a call from his sister on the morning of September 29, 2014, informing him that the victim had been raped. The victim's son explained that he worked as a dispatch operator for Hamilton County 911 and that, after learning about the offense, he called dispatch and spoke to his supervisor. He told his supervisor that the victim had been raped and was being taken to Parkridge. The victim's son then went to the hospital where he saw the victim. The victim's demeanor was unusual as he seemed "glum" and "sad."

         Delight Chandler testified that she was working as a nurse in the emergency room at Parkridge on the morning of September 29, 2014. Ms. Chandler recalled that the victim came in and stated that he had been sexually assaulted. Ms. Chandler took the victim back to a private room, noting that he had an abrasion on his head. The victim described "some pain to the ribs." Ms. Chandler testified that she notified the police department and the Partnership Rape Crisis Center ("Rape Crisis Center"), as per hospital policy. Ms. Chandler testified that the victim's son had already reported the offense to the Chattanooga Police Department.

         Rebecca Ammons testified that she was a nurse practitioner employed at the Rape Crisis Center as a sexual assault nurse examiner. On September 29, 2014, she interviewed and examined the victim at Parkridge. The victim reported that the sexual assault occurred between 6:30 a.m. and 6:45 a.m. He stated that he did not know the perpetrator. He stated that he was "held down by the suspect and that he was injured and beaten[.]" The victim denied having sexual relations with anyone in the seventy-two hours preceding the sexual assault and stated that he had no injuries prior to the sexual assault. Ms. Ammons testified that she noted both non-genital and anal-genital injuries to the victim. The victim stated that he was "penetrated by the [perpetrator's] penis[.]" Ms. Ammons stated that the victim suffered a "long laceration" on his head, and his abdomen had an "abrasion and some tenderness upon palpitation." The victim reported that the entire right side of his abdomen was tender and sore when he moved. The victim had lacerations on his arms and abrasions "from the hips down." The victim also had a large contusion on his left upper arm and a large abrasion on the buttocks. Ms. Ammons testified that she performed a rape kit on the victim, during which she collected anal swabs and buccal swabs from the victim. She explained that the victim had "a large[, ] bigger-than-two-centimeter[s], contusion on the anal tissue of the rectum." Ms. Ammons testified that the victim's injuries were consistent with forcible penetration. She photographed the victim's injuries and gave the victim's clothing to police.

         Sergeant Joe Montijo with the Chattanooga Police Department testified that on September 29, 2014, he received a call from lead investigator Lucas Fuller. Investigator Fuller advised that he was at Parkridge with an elderly male who had been raped and assaulted. He requested that Sergeant Montijo come to the hospital to document the victim and collect evidence.

         Sergeant Montijo testified that he took photographs of the victim, documenting any visible injuries. He recalled that the victim had on a soiled white t-shirt and had injuries to the back of his head. He had a large laceration on the back of his head, a scrape mark on his neck, and both of his elbows were "skinned up." The victim also had abrasions on his back and a "scraped up" abdomen. Sergeant Montijo collected the victim's shirt, jogging shorts, and underwear, as well as the completed rape kit. He also took swabs of the victim's hands, underneath his fingernails, and a buccal swab. After leaving the hospital, Sergeant Montijo located the crime scene on Mississippi Avenue. He found a red stain on the sidewalk that was consistent with a blood. He stated, "There was quite a bit of blood and skin and debris[.]"

         Two days later, when Investigator Fuller brought Defendant to the police department for an interview, Sergeant Montijo photographed Defendant, took fingerprints, and collected a DNA sample. Sergeant Montijo explained that Defendant had visible injuries. He had "very pronounced bruises" on his shoulders; a laceration on his arm; abrasions, bruises, and scrape marks on his knees; an abrasion on his elbow; and a raised abrasion on the bridge of his nose.

         Investigator Lucas Fuller testified that he worked as a criminal investigator at the Chattanooga Police Department in September 2014. On September 29th, he responded to Parkridge to interview the victim. After speaking to the victim, Investigator Fuller conducted a neighborhood canvas as Sergeant Montijo collected evidence. Investigator Fuller explained that he received a tip that identified Defendant as a suspect. Investigator Fuller learned that Defendant was a student at Red Bank High School. After locating photographs of Defendant on Facebook, Investigator Fuller noted that Defendant's age, build, and hairstyle matched the victim's description of the perpetrator. Investigator Fuller went to Red Bank High School and obtained video footage from the morning of September 29, 2014, that showed Defendant arrived late to school. Investigator Fuller explained that Defendant's residence was on Federal Street, "less than a half mile" from the crime scene. Investigator Fuller testified that he interviewed Defendant and collected a DNA sample, which Defendant willingly provided. Investigator Fuller recalled that Defendant had scrapes on his knees and scrapes to his back. He stated that Defendant had a "stutter or speech impediment" and that he was crying uncontrollably at times during the police interview.

         Special Agent Chad Johnson, a forensic biologist in the DNA unit of the Tennessee Bureau of Investigation, testified that he tested several items of evidence in connection with Defendant's case. He first tested anal swabs taken from the victim's rape kit and found that the victim's "DNA [was] there on the anal swab as part of the sperm fraction, but there [was] a second individual that [was] inconclusive as to [Defendant][.]" Agent Johnson explained that he also found the presence of spermatozoa on the "inside back area" of the victim's underwear. He obtained a partial DNA profile from the sperm fraction, and the partial profile matched Defendant's DNA profile in a percentage "greater than the world population[.]" Agent Johnson further testified that he found a bloodstain on the back side of the victim's underwear; he obtained a DNA profile from the stain and found that it matched Defendant's DNA profile. Agent Johnson stated that he also obtained a DNA profile from a bloodstain collected at the crime scene on Mississippi Avenue, which matched the victim's DNA profile.

         The victim testified that in September 2014, he lived on Federal Street and that he was sixty-nine years old. The victim explained that he ran three miles every morning between 5:00 and 7:00 a.m. He said that his practice at the end of every run was to "walk a little bit to cool down." The victim testified that on the morning of September 29, 2014, he finished his run around 6:30 or 6:45 a.m. and began walking in an area near his home. He stated that, when he turned onto West Mississippi, he saw Defendant walking from Forest Avenue towards East Mississippi. The victim explained that, the next thing he knew, Defendant was "right behind" him. Defendant tried to put his arm around the victim, and the victim pushed it away. The victim testified, "He asked me if I wanted to engage in a homosexual act with him and I told him no." Defendant "kept walking beside [the victim] and asking [him] why not, why don't you want to." The victim responded, "I don't do things like that" and repeatedly told Defendant "no." The victim did not want Defendant to follow him home, so he stopped and confronted Defendant. Defendant then "charged him," knocked the victim to the ground, and began pulling the victim's shorts and underwear down. The victim fell onto his back, and the back of his head landed against the bottom of a set of steps. The victim recalled:

The first thing I did, I kicked him in the chest, I guess one of my feet, and it knocked him back off of me. And at that time, I tried to pull my shorts back up because they're down around my knees and I can't do much. He was immediately back on me, just like he's energized. And, you know, I'm exhausted, he's energized. So he pulls the pants back down again.

         The victim explained that Defendant held him in a position where his shoulders and part of his back were still on the ground but his legs were "lifted up." The victim recalled that his head was pushed up against the step in a position where he could not move much. The victim testified that Defendant "took his penis and pushed it into [the victim's] rectal area." The victim recalled:

I tried to scream a couple of times, maybe it was three or four, you know. There was nobody around. He kind of looked around to see what was going on. And then the pain from the force was more, I couldn't hardly scream anymore. So, you know, finally, he finished up, he pulled out, and then he said "one more time." So then he forced his penis into my rectal area again the second time. The pain became even more intense and I just, all I could do was beg him to quit and leave. So, finally, he finishes up and he steps back out in the street and, I guess, getting himself together again, and he walks off and says "have a sweet day."

         The victim testified that, after the assault, he returned home but began to feel pain in his chest. The victim called his daughter and asked her to take him to the emergency room at Parkridge. The victim recalled that he spoke to Investigator Fuller the next day. The victim testified that he had never seen Defendant before that morning but agreed that he could see Defendant's front door from the deck of his home.

         Defendant testified that he was hit by a car three weeks prior to September 29, 2014, and that he had a sprained ankle that necessitated the use of crutches for several weeks. He stated that he stopped using the crutches a day or two before the offense. Defendant testified that he lived on Federal Street and that he was walking to his bus stop at the corner of Liberty and Mississippi Avenue on the morning of September 29. He stated that he left his residence around 6:10 a.m. because his bus arrived at 6:20 a.m. Defendant said that he saw the victim run past him, and he said "hi" to the victim but kept walking towards the bus stop. Defendant claimed that the victim "circled back around[, ]" put his arms ...

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