State v. Matthew Douglas Cox ( 2000 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
June 27, 2000 Session
STATE OF TENNESSEE v. MATTHEW DOUGLAS COX
Direct Appeal from the Criminal Court for Knox County
No. 61381, 66755 Richard Baumgartner, Judge
No. E1999-00351-CCA-R3-CD
October 20, 2000
The appellant, Matthew Douglas Cox, appeals his convictions by a jury in the Knox County
Criminal Court of two counts of aggravated rape and one count of incest. The trial court imposed
concurrent sentences of twenty years incarceration in the Tennessee Department of Correction for
the aggravated rape convictions and three years incarceration for the incest conviction. On appeal,
the appellant presents the following issues for our review: (1) whether the evidence adduced at trial
supports his convictions of aggravated rape and incest; (2) whether the trial court erroneously
admitted into evidence a tape recording of the victim’s 911 telephone call; (3) whether the trial court
erred in effectively limiting defense counsel’s cross-examination of the State’s expert witness
concerning the results of a DNA analysis of semen samples obtained from the victim; (4) whether
the trial court erred in admitting into evidence testimony concerning the circumstances of the
appellant’s arrest; (5) whether the State committed prosecutorial misconduct during closing
argument; and (6) whether the cumulative effect of these errors requires the reversal of the
appellant’s convictions. Following a review of the record and the parties’ briefs, we affirm in part
and reverse in part the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed in Part
and Reversed in Part.
NORMA MCGEE OGLE , J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR.J.,
joined. DAVID G. HAYES, J. not participating.
Mark E. Stephens, District Public Defender, and R. Scott Carpenter, Assistant District Public
Defender, for the appellant, Matthew Douglas Cox.
Paul G. Summers, Attorney General and Reporter, R. Stephen Jobe, Assistant Attorney General,
Randall E. Nichols, District Attorney General, and G. Scott Green, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
The appellant’s convictions of aggravated rape and incest arose from the rape of his
1
sister, PC, on March 2, 1996, at the appellant’s home in Knoxville, Tennessee. At the appellant’s
trial, PC testified that, although separated during their childhood due to their parents’ divorce, she
and the appellant developed a close sibling relationship during the 1990s. PC recounted that she
frequently visited her brother at his home and, in January of 1996, only months before the instant
offenses, she and the appellant traveled together to Gatlinburg to attend a friend’s wedding and also
stayed overnight together in Cherokee, North Carolina, staying in a single hotel room but sleeping
on different beds. Moreover, in mid- to late-February 1996, following her brother’s separation from
his wife, PC and the appellant agreed that she would move from her home in Bristol, Tennessee, to
the appellant’s home in Knoxville. PC intended to assist her brother with his plumbing business,
which he was currently conducting from his home, and also intended to launch a career with Mary
Kay Cosmetics. She was particularly pleased about this arrangement because her son, Ray Pope,
lived in Knoxville.
PC arrived at the appellant’s home on March 2, 1996, at approximately 2:00 a.m. The
appellant was asleep on the couch in the living room. However, he awoke upon his sister’s arrival,
and the two siblings talked for approximately one and one half hours. During this time, PC
consumed two beers, and the appellant consumed a mixed alcoholic beverage. Afterwards, at
approximately 3:00 a.m. or 3:30 a.m., PC went to sleep in the master bedroom.
PC was awakened at approximately 4:00 a.m. or 5:00 a.m., when the appellant began
fondling her vagina. PC asked the appellant to stop, whereupon the appellant apologized for his
conduct and promised that he would not touch his sister again. Extremely disturbed, PC went to the
living room where she sat on the couch and waited for her brother to fall asleep. At some point, PC
fell asleep on the couch, only to be awakened at approximately 7:00 a.m. by her brother, who was
once again fondling her vagina. PC again asked the appellant to stop, and the appellant again
apologized.
Following the second incident, PC brewed a pot of coffee and went outside to get the
newspaper. As she was picking up the newspaper, she noticed the appellant’s next-door neighbor
and waved at him. She then took the newspaper and a cup of coffee and sat beside the appellant’s
swimming pool. When she returned inside the house, the appellant inquired whether she still
intended to live with him. PC refused to talk with the appellant and, instead, prepared to go out for
the day, intending to go to a beauty salon and also visit her son. PC recalled that, at approximately
10:30 a.m., she took a shower, cleaning herself thoroughly.
When PC emerged from the shower, the appellant was standing in the bathroom. He
was naked and was holding a knife. PC asked the appellant what he was doing, and he responded,
“You have always said, ‘I hate you.’ Well, I am going to make it true.” The appellant grabbed the
back of PC’s head and held the knife to her throat, insisting that she cooperate with him. He then
1
It is the policy of the author of this opinion to refer to all victims of sexual o ffenses by their initials.
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threw his sister across the hallway into one of the bedrooms. PC recalled that the appellant dropped
the knife in the hallway.
In the bedroom, the appellant pushed his sister down onto the bed and attempted to
climb on top of her. PC struggled with the appellant, using her arms and legs. At trial, she related
to the jury that
I was trying to kick his personals; because I thought, if I could kick
him hard enough, I would have a chance to get out of there, but I
couldn’t kick him. I finally got him kicked off to the side in the bed.
It sounded like he hit aluminum - - aluminum siding, aluminum
windows or something. So I took off out the door. And I got to the
front door, and I tried to get it open, and I remember screaming,
‘Rape,’ and then he come behind me and slammed the door shut and
grabbed me by the hair again and took me back to the bedroom.
***
He said, “If you try running again, I will kill you,” and then he
throwed me on the bed, and he started choking me, and choking me,
and choking me.
When the appellant released PC’s neck, she requested something to drink. The
appellant agreed but insisted that he accompany PC to the kitchen and that he hold her hand. In the
kitchen, PC poured vodka and orange juice into a glass and drank the mixture. At trial, PC
explained, “I figured, if I was going to die, I might as well not feel a lot of it.” The appellant also
made himself a drink.
Afterwards, the appellant and PC returned to the bedroom where the appellant
grabbed PC by the ears and attempted to force PC to perform oral sex upon him. When his attempts
proved unsuccessful, the appellant performed oral sex upon PC, penetrating her vagina with his
tongue. According to PC, she had “lost the will to fight” at this point. The appellant next rubbed
PC’s vagina with an object, possibly a vibrator, and placed the object in PC’s rectum. PC recalled
that she experienced some pain and bit her own arm. Finally, the appellant attempted to engage in
penile penetration of PC’s vagina. Initially, the appellant had some difficulty achieving penetration
because he did not have an erection. PC confirmed, however, that the appellant did ultimately
penetrate her vagina with his penis. PC could not recall whether the appellant ejaculated during
intercourse.
Following the rapes, the appellant informed his sister that she could leave. However,
before PC departed, the appellant and PC drank coffee together. PC then collected all her belongings
and carried them to her car. PC also briefly returned inside the appellant’s home to retrieve her Mary
Kay Cosmetics bag and a bottle of vodka. PC testified at trial that at no time did she indicate to the
appellant that she intended to report the rapes to the police. She explained that she was afraid that
the appellant would kill her. In parting, the appellant stated to PC that “he wasn’t worth living; that
he thought he would kill himself.”
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As PC drove out of the appellant’s driveway, she heard a sound that was similar to
a gunshot. She then called 911 on her cellular telephone. At trial, the State introduced into evidence
a tape recording of PC’s conversation with the 911 operator at approximately 1:00 p.m. on March
2, 1996. During this conversation, PC identified herself and asked that an officer be sent
immediately to her brother’s address because she believed that her brother had committed suicide.
PC also reported that, earlier that morning, her brother had assaulted her with a knife as she was
coming out of the shower and had raped her. PC stated that her brother had held her hostage for a
total of approximately two hours. Finally, PC indicated that she was driving to her son’s residence.
PC was crying during the conversation and had difficulty recalling her son’s address or telephone
number.
Ray Pope, PC’s son, also testified at the appellant’s trial. He recounted that, on
March 2, 1996, he arrived home to find his mother “curled up in a fetal position” on the couch in his
living room. According to Pope,
[PC] was crying. She was shaking all over. She didn’t look like she
had herself put together - - you know, like hair and makeup. When
I approached her, she jumped and flinched like she was afraid of me.
“[T]hrough tears and sobs,” PC explained to her son that the appellant had raped her. Soon
thereafter, the police arrived and, after speaking with PC, transported her and Pope to the Emergency
Department at the University of Tennessee Hospital. During the trip to the hospital, PC “was crying,
and she seemed very scared. Every little movement made her jump, and she just cried a lot.”
At trial, Pope also described his mother’s condition during the week following the
appellant’s offenses:
She was just terrified the whole time. Like I said, every movement
scared her. She cried all the time. Anytime that she did go to sleep,
which wasn’t very often, she would wake up screaming, “Please
stop,” and “Help me,” and, “Don’t,” just continuously.
Moreover, Pope testified that, during that week, he noticed that his mother had several bruises,
including bruises around her ears, bruises on her throat, and a bruise on her arm that looked like
“finger marks.”
Several police officers, including Officer Savannah Ayub and Detective Ed Stair of
the Knoxville Police Department, spoke with PC at her son’s home immediately following these
offenses. At trial, Ayub confirmed that, at that time, PC “was curled up, and crying, and distraught.”
Stair similarly confirmed that PC was “real emotional.” Ayub transported PC and her son to the
University of Tennessee Hospital. Like Pope, Ayub testified at trial that, during the trip to the
hospital, PC was “crying the whole time, very upset, and in shock.”
PC arrived at the hospital at approximately 3:30 p.m. on March 2, 1996. At the
hospital, Dr. Christopher Brooks, an Emergency Department physician, examined PC. He observed
that she was “very agitated and tearful, but was awake, alert, oriented, and cooperative.” According
to Dr. Brooks, PC provided the following account of the appellant’s offenses:
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She told me that she had been raped at about 10:30 a.m. that morning.
She said that she was penetrated vaginally and also that there was
rectal penetration by an unknown object. She said the perpetrator was
using a vibrator, so this could have been the object that penetrated her
rectum. She was not aware of whether the perpetrator ejaculated or
not. She said she was choked one time. Her hair was pulled, and she
was hit on the left side of her head, but she did not lose
consciousness. She denied any trauma to her chest or abdomen or her
extremities, and she did remark that she had bitten her own right
forearm during the attack.
Dr. Brooks’ physical examination of PC revealed a small bruise on the left side of
her neck and a bite mark on her right forearm. The doctor did not observe any other obvious external
injuries but noted that, depending upon an assault or rape victim’s physical characteristics and the
amount of force applied by a defendant, different victims will bruise to varying degrees and will
develop bruises at different rates, sometimes over several hours and sometimes over several days.
The doctor also did not observe any trauma to PC’s rectum. However, the doctor testified that the
absence of trauma was not inconsistent with rectal penetration. Finally, while the doctor did not
observe any trauma to PC’s external genitalia, he did notice “a few scattered areas of apparent
abrasions at the vaginal cuff, but no active bleeding.” The doctor opined that the abrasions were
consistent with the insertion of a penis into PC’s vagina within the preceding two or three days.
Dr. Brooks also obtained at least five vaginal swabs from PC and, at approximately
4:00 p.m. on March 2, examined one of the swabs under a microscope. He observed “very rare [i.e.,
a small number of] nonmotile sperm.” The parties stipulated at trial that the appellant is capable of
producing motile sperm. Nevertheless, Dr. Brooks testified that various factors can affect the
motility of one’s sperm, including a common cold or the ingestion of certain drugs. Moreover, the
doctor noted that most sperm lose motility in as few as three hours after the sperm has left the male
body.
PC returned to the Emergency Department at the University of Tennessee Hospital
on March 4, 1996, for a follow-up examination. At that time, PC complained of pain in her neck,
and the attending physician noted that her trapezius or “the muscular structure on the lateral side of
. . . [her neck]” was slightly tender. The physician did not record his observation of any other
physical injuries. The physician did, however, diagnose PC with “situational anxiety.” At trial, Dr.
Brooks opined that situational anxiety is a common phenomenon in rape victims.
Kelly Smith, a forensic serologist employed by the Tennessee Bureau of
Investigation, testified at the appellant’s trial that she had examined the vaginal swabs obtained from
PC during her examination by Dr. Brooks. Smith stated that she detected semen on the vaginal
swabs. Additionally, Joe Minor, an expert in RFLP (restriction fragment length polymorphism)
DNA analysis employed by the Tennessee Bureau of Investigation, testified that he performed an
RFLP DNA analysis of the semen and of blood samples obtained from the appellant, but, due to the
small quantity of semen, the results of his analysis were inconclusive. In response to questioning
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by the State, Minor further stated that the inconclusive results did not exclude the appellant as the
possible source of the semen.
Sergeant Larry Grant, an officer with the Knoxville Police Department, testified at
trial that he visited the appellant’s residence on March 2, 1996, pursuant to PC’s report of a possible
suicide. According to Grant, he did not intend to arrest the appellant, as PC had not yet indicated
whether she wished to file a complaint. Grant’s visit to the appellant’s residence occurred at
approximately 1:50 p.m. When he arrived, Grant knocked on the appellant’s front door but received
no response. Grant then spoke with the appellant’s next-door neighbor, who indicated that, if the
appellant’s truck was parked beside the appellant’s house, the appellant was at home. Because the
appellant’s truck was indeed present, Grant knocked on the appellant’s front door once again. This
time, the appellant opened the door. According to Grant, the appellant appeared to be intoxicated
but, in response to the sergeant’s inquiry, indicated that he was fine. Having ascertained that the
appellant had not committed suicide, Grant departed.
On March 4, PC filed a complaint with the Knoxville Police Department, providing
a formal, written statement to Detective Stair, which statement was largely consistent with PC’s
testimony at trial. Upon receiving this statement, Stair telephoned the appellant and left a message
on the appellant’s answering machine asking that he call the police department as soon as possible.
The appellant returned the detective’s call, and the detective asked the appellant to come to the
police department for questioning. The detective explained that PC had accused the appellant of
raping her. At this point, the appellant responded, “Well, I probably did, but I don’t remember it,”
and refused to come to the police department for an interview. Stair recalled at trial that the
appellant sounded intoxicated during their conversation.
On March 6, 1996, Kelvin Reed, an officer with the Knoxville Police Department,
was instructed to execute a warrant for the appellant’s arrest. Accordingly, he and another Knoxville
police officer, Anthony Guida, drove to the appellant’s residence. The officers parked in front of
a next-door neighbor’s house and walked to the appellant’s front door. As Officer Reed knocked
on the appellant’s front door, he also looked through a window in the door and observed the
appellant running through the house carrying a rifle. Officer Reed and Officer Guida immediately
retreated and radioed for assistance. Numerous police officers responded to the officers’ request for
assistance and surrounded the appellant’s house. During the ensuing stand-off, the appellant exited
a rear door of his house and briefly spoke with several officers before withdrawing into the house
once again. Shortly thereafter, the appellant exited the front door of his house and surrendered to
the police. Approximately twenty minutes passed between the officer’s knock on the appellant’s
front door and the appellant’s surrender to the police.
The appellant testified on his own behalf at his trial. The appellant testified that he
is a master plumber and currently lives in Knoxville with his wife. The appellant further recounted
that, in 1996, he and his wife temporarily separated. The appellant then began drinking heavily on
a regular basis. More specifically, the appellant recalled that, on March 1, 1996, he began drinking
at approximately 1:00 p.m. or 2:00 p.m. in the afternoon and continued to drink during that evening
until he fell asleep or passed out. He asserted at trial that, therefore, he could not recall any of the
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events that occurred on March 2, 1996. He could not recall his sister’s arrival at his home at 2:00
a.m., he could not recall his subsequent offenses, and he could not recall his sister’s departure.
According to the appellant, he did not even discover that PC had visited his home until March 3.
The appellant also testified at his trial that he could not recall speaking with Detective
Stair on March 4. However, he was able to recall his arrest on March 6. He explained to the jury
that he did not immediately surrender to the police because he was frightened and because, when the
police arrived, he spoke on the telephone with a friend, Dan Acosta, who instructed the appellant to
remain inside his house until Acosta’s arrival. The appellant surrendered to the police as soon as his
friend arrived at the house.
The appellant suggested at his trial that his sister had fabricated her accusations of
rape, noting that, prior to these offenses, his sister had threatened revenge against the appellant due
to an incident at the appellant’s home in 1993, during which her son was arrested and incarcerated
in jail. However, the appellant conceded that, prior to these offenses, he had had a “decent
relationship” with PC and that she had visited his home at least once every three months between
the 1993 arrest of her son and the instant offenses. The appellant also confirmed that he had traveled
with PC to Gatlinburg in January of 1996 and that he and his sister had discussed her possible
relocation to Knoxville and, more specifically, her move into his home. Finally, the appellant
conceded that, following the 1993 incident and prior to these offenses, he regularly ate dinner with
PC’s son.
Dan Acosta, a friend and business partner of the appellant, testified that he had known
the appellant for eight years. According to Acosta, in December of 1995 and in early 1996, the
appellant became very depressed and began drinking excessively. As a result of his drinking, the
appellant also began to miss work. On March 1, 1996, the appellant again failed to appear at work,
and Acosta spoke with him at his home. At that time, the appellant was drunk but was also cleaning
his house in preparation for his sister’s imminent arrival.
Acosta next spoke with the appellant on March 4 when the appellant once again failed
to appear at work. Acosta visited the appellant’s home during the late morning hours. According
to Acosta, the appellant was drunk and appeared to be distraught. The appellant informed Acosta
that his mother or one of his sisters had telephoned him and told him that he had raped his sister.
The appellant admitted to Acosta that he could recall his sister arriving in the early morning hours
of March 2 and could recall speaking with her over drinks. However, he asserted that his last
memory of March 2 was his sister going to the kitchen to get him a drink.
After listening to the appellant’s account and providing some encouragement to the
appellant, Acosta departed for work. However, he returned to the appellant’s house later that day.
The appellant was still drinking, although he appeared to be somewhat less intoxicated, and was still
distraught. The appellant informed Acosta that a detective was attempting to contact him and that,
therefore, he was refusing to answer his telephone. Acosta convinced the appellant to speak with
the detective over the telephone and was present during the ensuing telephone conversation. Acosta
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denied at trial that he ever overheard the appellant state to the detective, “I probably did, but I don’t
remember.”
Acosta next visited the appellant on March 6. The appellant was still refusing to
answer his telephone, and, before departing, Acosta again advised the appellant to communicate with
the police. As Acosta was driving away from the appellant’s home, however, the thought occurred
to him that the police might soon attempt to arrest the appellant at his home. Accordingly, he called
the appellant on his cellular telephone. The appellant informed Acosta that the police were currently
surrounding his home. Acosta then instructed the appellant to remain inside his home until Acosta
arrived. Acosta testified at trial that, when he arrived at the appellant’s home, there were numerous
police officers surrounding the home and shouting conflicting instructions at the appellant. Acosta
obtained instructions from the officer in charge and relayed those instructions to the appellant. At
that point, the appellant surrendered to the police.
James Leffew, the appellant’s friend and next-door neighbor, also testified on the
appellant’s behalf. He related to the jury that his house is only twenty or twenty-four feet apart from
the appellant’s house. Leffew recalled that, on March 2, 1996, he was awake all night and, at 2:00
a.m., heard a man’s and a woman’s voices talking and laughing. The voices were coming from the
direction of the appellant’s home, but the man’s voice did not belong to the appellant. The voices
persisted until approximately 3:30 a.m. Subsequently, at 5:00 a.m., Leffew observed a car leaving
the appellant’s house. At approximately 9:00 a.m., Leffew also observed the appellant’s sister, PC,
outside the appellant’s house, placing clothes and other belongings into the trunk of her car. By
approximately 10:00 a.m., PC’s car was gone.
Between 10:00 a.m. and 11:00 a.m., Leffew heard a loud noise, “like a cannon going
off,” which came from the direction of the appellant’s home. Leffew walked to the appellant’s home
and knocked on the door. When the appellant failed to respond, Leffew opened the unlocked door
and entered the house, discovering the appellant alone inside. The appellant was intoxicated and
wearing the same clothes that he had been wearing on the previous day. Upon investigation, Leffew
determined that the loud noise had been caused by “dividers” falling and striking hardwood flooring.
Leffew then assured himself that the appellant was all right and returned to his own home.
According to Leffew, the police arrived at the appellant’s home later that day, at approximately
12:00 p.m. The police spoke with Leffew and, upon learning that the appellant was intoxicated,
departed.
Lorene Leffew, James Leffew’s ex-wife, testified at trial that she lived with her ex-
husband next door to the appellant. She testified that, although she could generally hear noises
coming from the appellant’s house when she was inside her own house, she heard nothing on the
morning of March 2, 1996. She also confirmed that, on the night of March 1, 1996, and in the early
morning hours of March 2, her ex-husband was having difficulty sleeping. She confirmed that her
ex-husband spoke with the appellant’s sister, PC, between 10:00 a.m. or 10:30 a.m. on March 2.
Finally, Ms. Leffew confirmed that, later that morning, she and her ex-husband heard a loud noise
that came from the direction of the appellant’s home, and her husband visited the appellant to ensure
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that he was all right. At trial, Ms. Leffew could not recall seeing any police officers on March 2 nor
could she recall her husband mentioning any police officers to her.
The appellant was indicted by a Knox County Grand Jury on September 18, 1996,
for three counts of aggravated rape. On November 4, 1998, upon agreement by the appellant, the
State additionally filed an information charging the appellant with one count of incest. On the same
day, the appellant proceeded to trial on the above charges. Following the State’s case-in-chief, the
trial court granted the appellant’s motion for a judgment of acquittal with respect to one count of
aggravated rape. At the conclusion of the trial, the jury found the appellant guilty of the remaining
two counts of aggravated rape and one count of incest. The trial court imposed concurrent sentences
of twenty years incarceration in the Tennessee Department of Correction for the aggravated rape
convictions and three years incarceration for the incest conviction.
II. Analysis
a. Sufficiency of the Evidence
The appellant first challenges the sufficiency of the evidence underlying his
convictions of aggravated rape and incest. When the sufficiency of the evidence is challenged on
appeal, our standard of review is whether any “reasonable trier of fact” could have found the
essential elements of the offenses beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 2789 (1979); Tenn. R. App. P. 13(e). In other words, the appellant carries the
burden of demonstrating to this court why the evidence will not support the jury’s findings. State
v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). In contrast, the State is entitled to the strongest
legitimate view of the evidence and all reasonable inferences which may be drawn therefore. State
v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983). Questions concerning the credibility of witnesses
and the weight and value to be given the evidence, as well as all factual issues raised by the
evidence, are resolved by the trier of fact and not the appellate courts. State v. Pruett, 788 S.W.2d
559, 561 (Tenn. 1990). These rules are applicable to findings of guilt predicated upon direct
evidence, circumstantial evidence, or a combination of both. State v. Nesbit, 978 S.W.2d 872, 898
(Tenn. 1998), cert. denied, 526 U.S. 1052, 119 S. Ct. 1359 (1999).
In order to find the appellant guilty of the aggravated rape offenses charged in the
indictment, the jury was required to find beyond a reasonable doubt that (1) the appellant engaged
in sexual penetration of PC; (2) the appellant used force or coercion to accomplish the penetration;
(3) the appellant was armed with a weapon; and (3) the appellant acted intentionally. Tenn. Code
Ann. § 39-13-502(a)(1) (1997).2 For the first count, the State relied upon the appellant’s penetration
of PC’s vagina with his tongue. For the second count, the State relied upon the appellant’s penile
penetration of PC’s vagina.
In order to find the appellant guilty of incest, the jury was required to find beyond a
reasonable doubt that (1) the appellant engaged in sexual penetration of PC; (2) PC is the appellant’s
2
Although the offense of aggravated rape generally entails an intentional, knowing, or reckless mental state,
Tenn. Code Ann. § 39-11-301(c) (1997), the State specifically charged an intentional mental state in the indictment, and
the trial court so instructed the jury.
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sister; (3) the appellant knew that PC is his sister; and (4) the appellant acted intentionally,
knowingly, or recklessly. Tenn. Code Ann. § 39-15-302(a)(2) (1997). We note that the State failed
to elect the specific incident of penetration upon which it was relying to establish incest.
Initially, we need not address the sufficiency of the evidence underlying the
appellant’s conviction of incest because, although the appellant has not raised in this appeal the
State’s failure to elect a specific incident of penetration for the charge of incest, the State’s omission
and the trial court’s failure to require an election constitute plain error. State v. Walton, 958 S.W.2d
724, 727-728 (Tenn. 1997); State v. Keen, No. 01C01-9804-CR-00192, 1999 WL 254384, at *2
(Tenn. Crim. App. at Nashville, April 30, 1999); Tenn. R. Crim. P. 52(b). As noted previously, the
evidence adduced at trial established three separate incidents of penetration within a two hour period
of time: penetration of PC’s vagina by the appellant’s tongue; penetration of PC’s anal opening by
an unidentified object; and penile penetration of PC’s vagina. Each penetration could have
supported a separate conviction of incest. Cf. State v. Phillips, 924 S.W.2d 662, 664-665 (Tenn.
1996); cf. also State v. Hoxie, 963 S.W.2d 737, 742-743 (Tenn. 1998). The State only charged one
count of incest. We have previously observed that “[i]n cases where there are more instances of
criminal behavior proven than there are counts to accommodate them, the state must match specific
conduct to a specific count.” State v. Hallock, 875 S.W.2d 285, 292-293 (Tenn. Crim. App.1993);
see also Walton, 958 S.W.2d at 727; Tidwell v. State, 922 S.W.2d 497, 501 (Tenn. 1996); Burlison
v. State, 501 S.W.2d 801, 804 (Tenn.1973); Keen, No. 01C01-9804-CR-00192, 1999 WL 254384,
at *2. Accordingly, we must reverse the appellant’s conviction of incest and remand that case to the
trial court for a new trial. State v. Brown, 992 S.W.2d 389, 392 (Tenn. 1999).
As to the appellant’s convictions of aggravated rape, the appellant’s challenge to the
sufficiency of the evidence is predicated, in part, upon the credibility of PC’s testimony.
Specifically, the appellant argues that “[t]he assault as described by . . . [PC] cannot be judged
credible given the objective observations of the state’s expert testimony concerning the scant injuries
sustained by . . . [PC].” Moreover, the appellant notes the parties’ stipulation that the appellant is
capable of producing motile sperm and Dr. Brooks’ observation of nonmotile sperm on a vaginal
swab obtained from PC.
In essence, the appellant appears to be invoking the “physical facts rule,” a limited
exception to the general rule that questions concerning the credibility of witnesses are exclusively
within the province of the jury. See State v. Hornsby, 858 S.W.2d 892, 894-895 (Tenn. 1993). In
Hornsby, 858 S.W.2d at 894-895 (citations omitted), our supreme court explained the parameters
of the “physical facts rule”:
The so-called “physical facts rule” is the accepted proposition that in
cases where the testimony of a witness is entirely irreconcilable with
the physical evidence, the testimony can be disregarded. That is,
where the testimony of a witness “cannot possibly be true, is
inherently unbelievable, or is opposed to natural laws,” courts can
declare the testimony incredible as a matter of law and decline to
consider it. . . . [T]he facts used to negate testimony must be “well-
established and universally recognized physical laws.”
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The supreme court in Hornsby cautioned that the power to disregard oral testimony should be used
sparingly, reaffirming that “[w]hen the testimony is capable of different interpretations, the matter
should be left for the jury to decide as the sole arbiter of credibility.” Id. at 895; see also, e.g., State
v. McBride, No. M1999-00319-CCA-R3-CD, 2000 WL 374912, at **5-6 (Tenn. Crim. App. at
Nashville, April 7, 2000), perm. to appeal denied, (Tenn. 2000); State v. Martin, No. 03C01-9803-
CR-00103, 1999 WL 692864, at **3-4 (Tenn. Crim. App. at Knoxville, August 26, 1999), perm. to
appeal denied, (Tenn. 2000); State v. Bacon, No. 03C01-9608-CR-00308, 1998 WL 6925, at *8
(Tenn. Crim. App. at Knoxville, January 8, 1998).
In this case, the appellant is unable to cite a “well-established and universally
recognized physical law” that renders PC’s account of the appellant’s offenses inconsistent as a
matter of law with the evidence adduced at trial concerning her injuries. Indeed, as noted previously,
Dr. Brooks concluded at trial that the extent of bruising resulting from an assault or rape and the rate
at which the bruising develops varies depending both upon the amount of force applied by the
assailant and upon various physical characteristics of the victim.
Similarly, the parties’ stipulation concerning the appellant’s ability to produce motile
sperm and Dr. Brooks’ observation of nonmotile sperm on a vaginal swab obtained from PC in no
way precluded the jury’s accreditation of PC’s testimony pursuant to the “physical facts rule.”
Again, Dr. Brooks examined the vaginal swab obtained from PC more than three hours after the
appellant’s offenses. At trial, he testified that most sperm lose their motility in as few as three hours
after the sperm has left the male body. Although Dr. Brooks conceded that some motile sperm
would remain after three hours, Dr. Brooks examined only one of at least five vaginal swabs
obtained from PC, and the examined vaginal swab contained a very small amount of sperm. Under
these circumstances, this court will not disturb the jury’s findings.
We note in passing that the appellant additionally argues that “the unimpeached,
unbiased testimony of Lorene and James Leffew . . . proves that . . . [PC’s] testimony was false.”
Suffice it to say that “‘[t]he improbability of the truth of testimony, which justifies rejection under
the physical facts rule, cannot rest upon any theory involving the consideration of the comparative
credibility of the witnesses.’” Hornsby, 858 S.W.2d at 896.
Finally, in challenging the sufficiency of the evidence underlying his convictions of
aggravated rape, the appellant contends that the State failed to establish that he was armed with a
weapon as required by Tenn. Code Ann. § 39-13-502(a)(1). Moreover, he asserts that, regardless
of the requirements of Tenn. Code Ann. § 39-13-502(a)(1), the indictment charged him with sexually
penetrating PC “while armed with a weapon.” We agree with the State that, to the extent that
language in the indictment, i.e., “while,” exceeds the requirements of aggravated rape set forth in
Tenn. Code Ann. § 39-13-502(a)(1), such language is mere surplusage and did not add to the State’s
burden of proof at trial. See, e.g., State v. Irick, 762 S.W.2d 121, 128-129 (Tenn. 1988); State v.
Culp, 891 S.W.2d 232, 236 (Tenn. Crim. App. 1994); State v. Hopper, 695 S.W.2d 530, 535 (Tenn.
Crim. App. 1985). Moreover, we agree with the State that Tenn. Code Ann. § 39-13-502(a)(1) does
not require the State to establish that the appellant was armed with a weapon during his penetration
of PC but only to establish that the appellant’s possession of a weapon “occurred in association with
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the unlawful sexual penetration, whether . . . [the possession] occur[red] before, during, or after the
actual sexual penetration.” Cf., e.g., Locke v. State, 771 S.W.2d 132, 136 (Tenn. Crim. App. 1988);
State v. Suggs, No. 02C01-9703-CR-00089, 1998 WL 43310, at *2 (Tenn. Crim. App. at Jackson,
February 5, 1998). In this case, the appellant initiated his two-hour sexual assault upon his sister by
holding a knife to her throat and insisting that she cooperate with him. We conclude that the
evidence was sufficient to support the jury’s verdicts of guilt of aggravated rape. This issue is
without merit.
b. 911 Telephone Call
The appellant next challenges the trial court’s admission at trial of a tape recording
of PC’s 911 telephone call on March 2, 1996. Specifically, the appellant challenges the trial court’s
admission of the contents of the recording, asserting that PC’s statements to the 911 operator were
admissible neither as excited utterances nor as a fresh complaint. Moreover, the appellant argues
that the contents of the recording were needlessly cumulative of PC’s testimony at trial, and the
emotional impact of the recording was unfairly prejudicial, substantially outweighing any probative
value.
At trial, the appellant submitted a pre-trial motion to exclude from evidence the
contents of the 911 tape recording, citing grounds identical to those raised in this appeal. Following
a pre-trial hearing, the court concluded:
Now, with regard to the 911 tape, I believe the 911 tape is an excited
utterance. . . . It is clear, after listening to that tape, that she was under
the stress of this event that had just occurred. She is extremely
emotional. She relates the events without any questioning or any
leading questioning by the E-911 operator. I believe that to be an
excited utterance.
The trial court did not expressly address the cumulative nature of the contents of the recording or
otherwise weigh their probative value against any danger of unfair prejudice.
The admissibility of the contents of the 911 tape recording was a matter subject to
the sound discretion of the trial court, and this court will not reverse the court’s ruling absent a clear
showing of abuse of discretion. State v. Hall, 976 S.W.2d 121, 151 (Tenn. 1998); State v. Chearis,
995 S.W.2d 641, 645 (Tenn. Crim. App. 1999). Accordingly we will first address the admissibility
of PC’s statements to the 911 operator pursuant to Tenn. R. Evid. 803(2). That rule provides that
an excited utterance is excluded from the general rule prohibiting the introduction into evidence of
hearsay statements and defines an exited utterance as “[a] statement relating to a startling event or
condition made while the declarant was under the stress of excitement caused by the event or
condition.” Id. One noted authority has described the rationales underlying this exception:
First, since this exception applies to statements where it is likely there
was a lack of reflection - and potential fabrication - by a declarant
who spontaneously exclaims a statement in response to an exciting
event, there is little likelihood, in theory at least, of insincerity. Rule
803(2) requires that the declarant must labor under the stress of
excitement while speaking. . . . Second, ordinarily the statement is
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made while the memory of the event is still fresh in the declarant’s
mind. This means that the out-of-court statement about an event may
be more accurate than a much later in-court description of it.
COHEN , SHEPPEARD , AND PAINE, TENNESSEE LAW OF EVIDENCE § 803(2).1, at 532 (Michie ed., 3d
ed. 1995).
Thus, in order to justify reliance upon the excited utterance exception to the hearsay
rule, the State was required to establish three elements. First, it was required to demonstrate that
there was a startling event. State v. Gordon, 952 S.W.2d 817, 820 (Tenn. 1997).
Although the “startling event” is usually the act or transaction upon
which the legal controversy is based, such as an assault or accident,
the exception is not limited to statements arising directly from such
events; rather, a subsequent startling event or condition which is
related to the prior event can produce an excited utterance.
Id.; State v. Snider, No. W1999-01849-CCA-R3-CD, 2000 WL 1224758, at *8 (Tenn. Crim. App.
at Jackson, August 18, 2000). In any event, “the ‘event must be sufficiently startling to suspend the
normal, reflective thought processes of the declarant.’” Id. (citation omitted).
In this case, the record reflects that, shortly before the 911 telephone call, PC was
raped by her brother. To say the very least, rape is a startling event. State v. Rucker, 847 S.W.2d
512, 517 (Tenn. Crim. App. 1992); State v. Edmonds, No. 02C01-9708-CC-00334, 1998 WL
527232, at *8 (Tenn. Crim. App. at Jackson, August 25, 1998). Moreover, following the rape, the
appellant communicated to PC his intention to commit suicide because he had raped her. As PC was
driving away from the appellant’s house and immediately prior to her 911 telephone call, she heard
a loud noise that was similar to a gunshot issue from the appellant’s house. The loud sound was
clearly a “subsequent startling event or condition which [wa]s related to the [rape].” Gordon, 952
S.W.2d at 820.
Second, the State was required to establish that PC’s statements to the 911 operator
were related to the startling events. Gordon, 952 S.W.2d at 820. “[C]onsiderable leeway is
available” in the application of this requirement. Id. In this case, there is no dispute that PC’s
statements were related to both of the above startling events.
Third and finally, the State was required to establish that PC’s statements were made
while she was under the stress or excitement of the startling events. Id. In this regard, the appellant
argues in his brief that, at the time of the 911 telephone call, PC’s “reason ha[d] returned.” He notes
that PC was capable of dressing herself following the rape, collecting her belongings, and departing
the appellant’s residence. Moreover, she was able to call 911 and speak with the operator while
driving to her son’s residence. However, the appellant cites no authority for the proposition that the
declarant of an excited utterance must be completely bereft of reason. Indeed, our supreme court and
this court have previously held that the return of a measure of calm to a declarant prior to making
a statement does not preclude the application of Tenn. R. Evid. 803(2). See, e.g., State v. Smith, 868
S.W.2d 561, 574 (Tenn. 1993); State v. Johnson, No. 03C01-9901-CR-00009, 1999 WL 1052006,
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at *4 (Tenn. Crim. App. at Knoxville, November 12, 1999), perm. to appeal denied, (Tenn. 2000);
State v. Bacon, No. 03C01-9608-CR-00308, 1998 WL 6925, at *11 (Tenn. Crim. App. at Knoxville,
January 8, 1998).
Rather, a determination that a declarant was under the stress or excitement of startling
events depends upon a court’s consideration of all of the following factors: (1) the time interval
between the startling event and the statement; (2) the nature and seriousness of the event; (3) the
appearance behavior, outlook, and circumstances of the declarant; and (4) the contents of the
statement itself, which may indicate the presence or absence of stress. Gordon, 952 S.W.2d at 820.
Again, the primary startling event in this case, PC’s rape by her brother, had occurred,
approximately, within the two hours preceding the 911 telephone call, and there are few more serious
events than one’s rape by a close family member. Moreover, the impact of the rape upon PC was
undoubtedly enhanced by the second, closely related startling event, i.e., the loud noise, and PC’s
consequent belief that her brother had committed suicide because of the rape. Indeed, the tape
recording of PC’s telephone conversation with the 911 operator reveals that PC was crying during
the conversation and was unable to recall the name of the street on which her son lived, the name
of the apartment complex in which he lived, or her son’s telephone number. Shortly after PC’s 911
telephone call, PC’s son arrived home and discovered his mother “curled up in a fetal position” on
his couch. She was crying and shaking. Under these circumstances, we conclude that the trial court
could find that, at the time of PC’s statements to the 911 operator, she was operating under the stress
or excitement both of her rape by her brother and of her brother’s possible suicide as a result of the
rape. Accordingly, we decline to disturb the trial court’s application of Tenn. R. Evid. 803(2).
Having concluded that the contents of the 911 tape recording were admissible as
substantive evidence pursuant to Tenn. R. Evid. 803(2), we need not address whether the contents
of the recording qualified for admission as corroborative evidence pursuant to the fresh complaint
doctrine. Nevertheless, a brief discussion of the doctrine is warranted as it relates, if only by virtue
of contrast, to our subsequent discussion concerning the relevance of the 911 tape recording and its
potential for unfair prejudice.
In State v. Kendricks, 891 S.W.2d 597, 603 (Tenn. 1994), our supreme court held that
the fresh complaint doctrine allows a prosecutor to enter into evidence in the State’s case-in-chief
the fact of a victim’s complaint of a sexual offense. Cf. State v. Livingston, 907 S.W.2d 392, 394
(Tenn. 1995)(eliminating the doctrine of fresh complaint when a child is the victim of sexual abuse).
In so holding, the court specifically rejected the previous rule set forth in Phillips v. State, 28 Tenn.
246 (1848), which permitted the introduction during the State’s case-in-chief of both the fact of the
complaint and the details thereof. Kendricks, 891 S.W.2d at 603. The court concluded that any
admission of the details of the complaint must be preceded by impeachment of the accuracy of the
victim’s direct testimony. Id. As the appellant correctly observes in his brief, our supreme court
offered the following explanation in rejecting the broader Phillips rule:
A very real danger lurks in prematurely admitting the details of the
victim’s complaint as evidence in the state’s case-in-chief. The
victim may be impeached on grounds other than the accuracy of his
or her direct testimony. For example, if a victim were shown to have
harbored a pre-complaint motive to falsely accuse the defendant of
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rape, the fact that the details of the victim’s complaint are consistent
with the in-court testimony would be irrelevant in rebuttal of the
impeachment testimony. Thus, the Phillips rule clearly invites the
risk that the jury would be allowed to hear an irrelevant repetition of
the victim’s testimony that could not be subject to prompt cross-
examination. This potential prejudice threatens the defendant’s right
to a fair trial as guaranteed by the Fifth and Sixth Amendments to the
United States Constitution and Article I, Section 9 of the Tennessee
Constitution.
Id. Similarly, in articulating the closely related rule governing the admissibility of prior consistent
statements, this court has held that, when an opponent attempts to show that a witness was motivated
to lie or slant testimony, we allow evidence of the witness' previous statement that was made before
the motive to lie arose and that is consistent with the in-court testimony. State v. Tizard, 897 S.W.2d
732, 746 (Tenn. Crim. App. 1994); see also State v. Thompson, No. 03C01-9807-CC-00238, 1999
WL 160961, at *7 (Tenn. Crim. App. at Knoxville, March 24, 1999), perm. to appeal denied, (Tenn.
1999), cert. denied, U.S. , 120 S. Ct. 1164 (2000). In this case, PC’s statements to the 911
operator were made after PC had allegedly developed the motive to lie. Thus, under both the fresh
complaint doctrine and the prior consistent statement rule, the fact that those statements were
consistent with PC’s in-court testimony was irrelevant in rebuttal of attempts by the appellant to
demonstrate that PC was motivated to fabricate her accusations.
However, while we agree that consistencies between the contents of the 911 tape
recording and PC’s in-court testimony were irrelevant to the primary issue of whether PC fabricated
her “accusations out of whole cloth,” we do not agree that the contents of the recording were
otherwise irrelevant to that issue. To explain, we now turn to the appellant’s contention that the
contents of the 911 tape recording were inadmissible pursuant to Tenn. R. Evid. 403. Specifically,
the appellant asserts that PC’s emotional condition during the conversation “was extremely
inflammatory and . . . [the tape recording] added nothing relevant that . . . [PC] did not testify to in
the courtroom.”
Preliminarily, Tenn. R. Evid. 401 broadly provides that “‘[r]elevant evidence’ means
evidence having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the evidence.”
Relevant evidence is admissible pursuant to Tenn. R. Evid. 402. Two aspects of the 911 tape
recording were highly relevant to the issue of whether PC fabricated her accusations of rape: (1)
PC’s report to the 911 operator of her brother’s possible suicide before mentioning her rape by her
brother and PC’s expression of concern for her brother; and (2) PC’s emotional condition throughout
her conversation with the 911 operator.
Of course, Tenn. R. Evid. 403 prohibits the introduction of even relevant evidence
“if its probative value is outweighed by the danger of unfair prejudice . . . or by considerations of
. . . needless presentation of cumulative evidence.” With respect to the cumulative nature of the 911
tape recording, PC’s brief account to the 911 operator of the events of that morning was indeed
cumulative of her testimony at trial; however, the manner in which she delivered her account,
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including the two aspects of her account mentioned above, was not. Nevertheless, the appellant
argues that the manner in which PC delivered her account to the 911 operator was unfairly
prejudicial. “Prejudice becomes unfair when the primary purpose of the evidence at issue is to elicit
emotions of ‘bias, sympathy, hatred, contempt, retribution, or horror.’” State v. Collins, 986 S.W.2d
13, 20 (Tenn. Crim. App. 1998)(citation omitted)(emphasis added). We must agree with the State
that the primary purpose in introducing the 911 tape recording was, to the contrary, to provide the
jurors with the best possible view of PC’s demeanor immediately following these offenses and so
enhance the jurors’ ability to judge the credibility of PC’s accusations of rape. Cf. State v. Henry,
No. 01C01-9505-CR-00161, 1999 WL 92939, at **25-26 (Tenn. Crim. App. at Nashville, February
25, 1999), perm. to appeal granted, (Tenn. 2000). This issue is without merit.
c. DNA Analysis
The next issue raised by the appellant concerns the trial court’s admission into
evidence of Agent Minor’s testimony concerning the inconclusive results of his RFLP DNA analysis
of semen samples obtained from the victim and of blood samples obtained from the appellant.
Although not entirely clear from his brief, the appellant appears to argue that the trial court erred in
allowing Minor to testify that his analysis did not exclude the appellant as a source of the semen
because the trial court prevented defense counsel from inquiring whether the analysis included the
appellant. More specifically, the appellant appears to argue that the trial court erred in ruling that
any inquiry by defense counsel during cross-examination concerning the appellant’s inclusion as a
source of the semen would “open the door” to otherwise inadmissible testimony by Minor.
Prior to the appellant’s trial and in accordance with Tenn. R. Crim. P. 16(a)(1)(D),
the State provided defense counsel with a report by Minor indicating that he had performed an RFLP
DNA analysis of semen samples obtained from the victim and blood samples obtained from the
appellant and that the results of his analysis were inconclusive. On the day before trial, however,
the State additionally notified defense counsel that it intended to elicit testimony from Minor that,
although the results of his DNA analysis were inconclusive, he had extracted two faint bands of
DNA from the semen and had visually compared the bands with the appellant’s DNA. According
to the State, the agent would testify that the two faint bands of DNA appeared to match the
appellant’s DNA, although the agent was unable to assign any statistical significance to the
similarities.
Defense counsel strenuously objected to the admission of Minor’s testimony
concerning the two matching bands of DNA. Defense counsel argued, in essence, that the testimony
was inadmissible pursuant to Tenn. R. Evid. 702. Moreover, defense counsel noted that the
information concerning the two faint, matching bands was not included in Minor’s report, and,
accordingly, he was not prepared to rebut Minor’s testimony. The court ruled that, in light of the
lack of any notice to the appellant and Minor’s inability to assign statistical significance to the
matching bands, Minor could only testify that the results of his analysis were inconclusive, and those
results did not exclude the appellant as the possible source of the semen.
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Subsequently, however, during Minor’s testimony, the trial court further ruled that,
if defense counsel asked Minor whether his analysis conclusively included the appellant, the trial
court would permit Minor to testify concerning the matching bands of DNA. The court explained:
As I understand, what he would have testified to is that there was
evidence that would have included him - - or that suggested that there
were some similarities, but it wasn’t sufficient enough to make it a
conclusive test, and what I warned you about . . . if you asked that
question, you are going to be opening the door to his testifying to
something that I previously ruled he couldn’t testify to.
So that is the reason I told you that. You know, I didn’t tell you that
you couldn’t ask it. I told you, if you asked it, in essence, you would
be opening the door, and he would be allowed then to testify that two
of these bands indicated to him or were similar . . . in other words,
there was some evidence that it could include him, but it wasn’t
conclusive evidence.
Notwithstanding the above ruling, the court did permit defense counsel to argue to the jury in closing
that the DNA analysis did not conclusively include the appellant.
Following the appellant’s trial, at the hearing on the appellant’s motion for new trial,
defense counsel challenged the trial court’s ruling effectively precluding him from inquiring of
Minor whether the results of his DNA analysis conclusively included the appellant as the source of
the semen obtained from the victim. In support of his argument, the appellant submitted to the trial
court an affidavit by Dr. Ronald T. Acton, currently a professor of medicine at the University of
Alabama at Birmingham, Alabama and the director of the Department of Medicine’s
Immunogenetics Program and Immunogenetics/DNA Diagnostic Laboratory. Dr. Acton concurred
in Minor’s conclusion that the results of his RFLP DNA analysis were inconclusive. However, he
noted that, in conducting the visual comparison of DNA bands or “autorads,” Minor had failed to
follow the recommendations of the National Research Council’s publication, “DNA Technology in
Forensic Science,” “a learned treatise regarding the technical issues in RFLP analysis.” Moreover,
the agent did not follow the guidelines of the Technical Working Group on DNA Analysis Methods,
“a group established under the auspices of the FBI and includ[ing] forensic scientists and laboratory
directors.” Finally, the agent did not comply with the Tennessee Bureau of Investigation Crime
Laboratory’s “Procedures for the Detection of Restriction Fragment Length Polymorphisms in
Human DNA.” In any event, the doctor noted that
a visual observation of the one or two possible matching bands is
insignificant in the absence of a statistical basis for interpretation.
The National Research Council’s report, DNA Technology in
Forensic Science, states that: “To say two patterns match, without
providing any scientifically valid estimate (or, at least, an upper
bound) of the frequency with which such matches might occur by
chance, is meaningless.”
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Upon reviewing the above affidavit, the trial court indicated that it might have ruled
differently had the appellant submitted at trial the information contained in the affidavit. However,
the court further concluded that Minor’s testimony was “innocuous” and had “no weight.”
Accordingly, the court declined to grant any relief to the appellant.
In reviewing the trial court’s actions in this appeal, we believe it will be helpful to
first identify those issues that are not before this court in this appeal. For example, neither party
contests the admissibility of Minor’s testimony that the results of his RFLP DNA test were
inconclusive. Moreover, the appellant conceded at trial and concedes in his brief on appeal that
“inconclusive . . . by definition means that the appellant was neither included nor excluded by the
test.” Thus, the appellant conceded to the trial court that “[t]o allow the State to . . . ask whether or
not . . . [the appellant] was excluded, I do not think, in and of itself, is error on the Court’s part.”
The appellant does not argue otherwise with any clarity in this appeal.3 Finally, neither party
contests the trial court’s ruling that Minor’s testimony concerning the matching bands of DNA was
generally inadmissible. As noted above, the only issue before this court is whether the trial court
erred in ruling that the appellant would open the door to otherwise inadmissible testimony
concerning the matching DNA bands if defense counsel inquired of Minor whether his analysis
conclusively included the appellant.
In State v. Land, No. M1999-01023-CCA-R3-CD, 2000 WL 678787, at *11 (Tenn.
Crim. App. at Nashville, April 28, 2000), this court expressly acknowledged our prior implicit
adoption of the “doctrine of curative admissibility.” See also State v. Chearis, 995 S.W.2d 641, 645
(Tenn. Crim. App. 1999). In Land, we explained this doctrine:
Most often employed in criminal cases where the “door” to a
particular subject is opened by defense counsel on cross-examination,
the doctrine of curative admissibility permits the State, on redirect, to
question the witness to clarify or explain the matters brought out
during, or to remove or correct unfavorable inferences left by, the
previous cross-examination. This doctrine provides that “[w]here a
defendant has injected an issue into the case, the State may be
allowed to admit otherwise inadmissible evidence in order to explain
or counteract a negative inference raised by the issue defendant
injects.” In other words, “[i]f A opens up an issue and B will be
prejudiced unless B can introduce contradictory or explanatory
3
The appellant has entitled this issue, “THE TRIAL COURT ERRED BY ALLOWING THE STATE TO
PRESENT EVIDENCE CONCERNING DNA ANALYSIS IN THE PRESENCE OF THE JURY WHICH WAS
INACCURATE AND UND ULY PREJU DICIA L TO THE APPE LLA NT.” A gain, the o nly evidenc e presente d to the
jury was M inor’s testim ony tha t the results of his DN A analy sis were inc onclusiv e, and the results of his a nalysis did
not exclude the ap pellant as a possible source of the semen obtained from the victim. Because the appellant has declined
to challeng e the adm issibility of M inor’s testim ony tha t the results of his analysis were inconclusive and in light of the
appellant’s concession that “inconclusive” results, by definition, mean that the appellant was not excluded as the source
of semen, we fail to comprehend how Minor’s testimony was “inaccurate.”
-18-
evidence, then B will be permitted to introduce such evidence, even
though it might otherwise be improper.”
No. M1999-01023-CCA-R3-CD, 2000 WL 678787, at *11 (citations omitted). The court cautioned,
however, that “[s]ince the application of the doctrine of curative admissibility is based on the notion
that the jury might be misled if contradictory evidence was excluded, the doctrine should not justify
admission of that evidence when it is likely to do more harm in this respect than good.” Id. This
court reviews a trial court’s application of the doctrine under an abuse of discretion standard. Id. at
*12.
We note that, in this case, there was no danger that the jury would be misled by
defense counsel’s elicitation of testimony by Minor that the results of his analysis did not
conclusively include the appellant. This testimony, like Minor’s testimony that the results of his
analysis did not exclude the appellant, would have been accurate. Moreover, the introduction of
Minor’s testimony concerning the matching DNA bands would not have clarified his testimony
concerning the appellant’s inclusion because the State conceded prior to trial that Minor’s
observation of the matching DNA bands had no measurable significance. Thus, testimony
concerning the matching DNA bands was likely to do more harm than good. Land, No. M1999-
01023-CCA-R3-CD, 2000 WL 678787, at *11. We conclude, therefore, that the trial court abused
its discretion by ruling that defense counsel would “open the door” to Minor’s testimony concerning
the matching bands of DNA if defense counsel inquired whether the results of Minor’s analysis
conclusively included the appellant. However, we agree with both the trial court and the State that
any error committed by the trial court was entirely harmless. Tenn. R. Crim. P. 52(a); Tenn. R. App.
P. 36(b). Again, defense counsel was permitted to argue in closing that Minor’s DNA analysis did
not conclusively include the appellant as the source of the semen. Indeed, as conceded by the
appellant, an “inconclusive” DNA analysis by definition means that the appellant was neither
included nor excluded. Thus, Minor’s testimony that the appellant was not excluded by his analysis
was merely a reiteration of his testimony that the results of his analysis were inconclusive. In sum,
the trial court correctly observed at the hearing on the appellant’s motion for new trial that Minor’s
testimony was innocuous. This issue is without merit.
d. Testimony Concerning the Appellant’s Arrest
The appellant next contends that the trial court erred in admitting at trial testimony
concerning the circumstances of his arrest. Prior to trial, the appellant submitted a motion to the trial
court arguing that this evidence was irrelevant, Tenn. R. Evid. 401 and 402, and any probative value
of the testimony was substantially outweighed by the danger of unfair prejudice, Tenn. R. Evid. 403.
The trial court denied the appellant’s motion. We conclude that the trial court did not abuse its
discretion in admitting the disputed testimony. DuBose, 953 S.W.2d at 653-654; State v. Kennedy,
7 S.W.3d 58, 68 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1999).
In concluding that testimony concerning the circumstances of the appellant’s arrest
was admissible pursuant to Tenn. R. Evid. 401 and 402, we note our supreme court’s prior
acknowledgment of the following “well recognized principle of criminal law”:
“The actions and behavior of accused when charged with the crime,
or when confronted with the consequences or with the scene or
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surroundings of the crime with which he is charged, or when brought
before the prosecuting witness for identification, or at the trial, are
peculiarly relevant. In receiving evidence of this kind, it is not easy,
if at all possible, for courts to draw any line segregating those acts
which to some minds may seem significant of guilt from those which
are irrelevant because justifying no such inference. Any ex post facto
indication by accused of a desire to evade prosecution may be shown
as one of series of circumstances from which guilt may be inferred.”
Marable v. State, 313 S.W.2d 451, 459 (Tenn. 1958)(citation omitted); see also State v. Harris, 839
S.W.2d 54, 71 (Tenn. 1992)(inferring guilt from a defendant’s refusal to provide court-ordered
handwriting samples). The above principle has existed for more than 150 years and was not affected
by the enactment of the Tennessee Rules of Evidence. State v. Johnson, No. 02C01-9504-CC-
00097, 1997 WL 80970, at *5 (Tenn. Crim. App. at Jackson, February 27, 1997). The principle
encompasses proof concerning the circumstances of a defendant’s arrest, including efforts by a
defendant to resist arrest. Id. at *6; see also State v. Zagorski, 701 S.W.2d 808, 813 (Tenn.
1985)(holding that evidence that defendant, at the time of his capture, rammed a police car and
opened fire on police officers inside was relevant as one of several circumstance from which a jury
could infer guilt); State v. Braggs, 604 S.W.2d 883, 886 (Tenn. Crim. App. 1980)(holding that
testimony concerning the appellant’s arrest in which he attempted to hide in the basement of a house
was relevant to show his consciousness of guilt).
Accordingly, proof of the appellant’s knowledge that the police were attempting to
contact him concerning PC’s accusations, his refusal to answer the police officers’ knock on his door
on March 6, 1996, his acquisition of a rifle upon the officers’ arrival at his home, and his refusal to
surrender to the police for twenty minutes were circumstances relevant to his guilt of the charged
offenses. Moreover, contrary to the appellant’s arguments in his brief, we do not believe that the
testimony at issue posed any danger of “elicit[ing from the jury] emotions of ‘bias, sympathy, hatred,
contempt, retribution, or horror.’” Collins, 986 S.W.2d at 20 (citation omitted); Tenn. R. Evid. 403.4
This issue is without merit.
d. Prosecutorial Misconduct
The appellant next asserts that the prosecutor in this case committed prosecutorial
misconduct during closing argument. We agree with the State that the appellant has waived this
issue due to his failure to proffer a contemporaneous objection to the challenged remarks. State v.
Green, 947 S.W.2d 186, 188 (Tenn. Crim. App. 1997); State v. Smith, No. E1999-00386-CCA-R3-
4
In support of his argument, the appellant cites Detective Stair’s reference to the appellant “barricad ing him self
in the hou se” on M arch 6, 19 96. The appellant arg ues in his b rief that this statem ent by D etective Stair “ was high ly
prejudicial and elicited by the state for the sole purpose of inflaming the jury.” In fact, Detective Stair’s comment was
not elicited by the State at all but occurred during defense counsel’s cross-examination of the detective and in the
context of defense counsel’s attempts to ascertain the extent of the detective’s knowledge concerning events on March
6. Moreo ver, the de tective stated to the jury that he wa s not present at the time o f the appellant’s arrest. Finally, defen se
counsel did not request any curative instruction by the trial court concerning the detective’s characterization of the
appellant’s conduct at the time of his arrest. Tenn. R. App. P. 36(a).
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CD, 2000 WL 690159, at *10 (Tenn. Crim. App. at Knoxville, May 23, 2000); State v. Dodson, No.
M1998-00067-CCA-R3-CD, 2000 WL 378347, at *13 (Tenn. Crim. App. at Nashville, April 14,
2000); Tenn. R. App. P. 36(a). Moreover, we find no plain error warranting relief. See, generally,
State v. Smith, 24 S.W.3d 274, 282-283 (Tenn. 2000); Tenn. R. Crim. P. 52(b).
e. Cumulative Error
Finally, the appellant contends that the combination of errors committed during his
trial denied him a fair trial. See State v. Brewer, 932 S.W.2d 1, 28 (Tenn. Crim. App. 1996). We
have carefully reviewed the record in this case and have considered those issues that have not been
waived by the appellant or that are otherwise subject to review by this court. We have concluded
that, with respect to the appellant’s incest conviction, one error occurred in the trial court’s failure
to require an election of offenses by the State, and we have remedied that error by reversing the
appellant’s conviction and remanding that case to the trial court for a new trial. As to the appellant’s
convictions of aggravated rape, we find no cumulative error warranting further relief. This issue has
no merit.
III. Conclusion
For the foregoing reasons, we reverse the appellant’s conviction of incest and remand
that case to the trial court for a new trial. We otherwise affirm the judgments of the trial court.
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NORMA McGEE OGLE, JUDGE
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