IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT KNOXVILLE DECEMBER 1999 S ESSION

STATE OF TENNESSEE, ) ) Appellee, ) No. E1999-00922-CCA-R3-CD

) ) Sullivan County v. ) ) Honorable Phyllis H . Miller, Judge ) DONALD WAYNE MARSHALL, ) (Aggravated rape) ) Appellant. )
For the Appellant : For the Appellee : Stephen M. Wallace Paul G. Summers District Public Defender Attorney General of Tennessee and and Gale K. Flanary Michael J. Fahey, II Assistant Public Defender Assistant Attorney Gener al of Tennessee Post Office Box 839 425 Fifth Avenue North Blountville, TN 37617-0839 Nashville, TN 37243 (AT TRIAL) H. Greeley Welles, Jr. Mark H. Toohey District Attorney General 158 Cherokee Street and Kingsport, TN 37660 Barry P. Staubus (ON APPEAL) Assistant District A ttorney and Gregory A. Newman Assistant District A

ttorney Post Office Box 526 Blountville, TN 37617-0526

OPINION FILED:____________________

AFFIRMED Joseph M. Tipton Judge O P I N I O N

The defendant, Donald W ayne Marshall, appeals as of right from his conviction by a jury in the Sullivan County Criminal Court for aggravated rape, a Class 

# FILED
February 18, 20

00 Cecil Crowson, Jr. Appellate Court Clerk2

A felony. The defendant was sentenced as a Range II, m ultiple offender to forty years confinement in the custody of the Depar tment of Correction. He prese nts the following issues f or our revie w:

1. whether the evidence is sufficient to support the conviction; 2. whether the tria l court er red by denying his motions to suppress a knife found at the scene and D NA evidence; 3. whether the trial court err ed byruling that the defendant’s previousconvicti ons would be admissible for impeachment if he testified; 4. whether the “un truthful” testimony of state’s witnesses deprived the defendant of due process; 5. whether the trial co urt erred by failin g t o declare a mistrial when the defendant argued that a j uror was asleep; 6. whe ther hi s attorney was ineffectiv e for failing to file a motion for the admission of evidenc e pursuant to Rule 412, Tenn. R. Evid., and whether the trial c ourt err ed in its rulings on Rule 412 issues. We affirm the judgment of conviction.

At trial the victim testified that she had dated the defe ndant’s brother, Rocky Marshall, and that she and Mr. Marshall had previously li

ved together. She testified that around 7:00 p.m. on Aug ust 10, 1996, she went to The Pub, a bar/restaurant in Kings port, where she ate dinner and drank four beers. She said s he received several c

alls at The Pub from Mr. Mars hall, who was at the home of Paul Queen, a mutual friend. She said she went to Mr. Queen’s house at 11:30 p.m. She said the defendant; his brother, Mr. Marshall; Mr. Queen; and Mr. Queen ’s brother were at the house. She said she drank a beer, and everyone danced on the sidewalk in front of the house. She testified that she was wearing a tank top and shorts with a swimsuit underneath and that as she was dancing, Mr. Marshal l tried to pull off her top and shorts. She said she stopped M r. Marshall and went to the restroom. She said that when she came out, Mr. Mar shall had passed out.

The victim testified that she tried to awaken Mr. M arshall but was unsuccessful. She said the defendant then began touching her, and she t old him to leave her alone. She said the defendant becam e very upset. She said she tried to use a telephone inside the house but cou ld not dial the correct number s. She stated that she continued to try to aw aken Mr. Marshall and th at the defendant continued to try t o3

touch he r. She s

aid the d efendant finally told her she coul d go home , and she left around 2:00 a.m.

The victim testified that she began walking aw ay from the house. She said she had been walking for a couple of minutes when the defendant came from behind and knocked her into a field . She said the defendant held a butcher knife to her throat and pinned her down, telling her he would cut her if she were not quiet. She said the defendant put the knife in the ground and began choking her and tel ling her to shut up. She said he then turned her over, pulled down her shorts and swimsuit bottoms, and penetrated her. She said that when the defendant finished, he got up and walked away. She said that as he was walking, he asked her if she was g oing to call the police. She said that because she was afraid, she told hi m that she would not.

The victim testified that she then went to The Pub to find her frien d, Irene Shipley. She said she ar rived at about 3:00 a.m. and tol d Ms. Shipley what had happened. She said Ms. Shipley took her to Ms. Shipley ’s house, and they called the police. The victim said the officers talked to her and then t ook her to Holston Valley Hospital.
Irene Shipley testified that she was working

at The Pub on the night of the incident. She said the victim had been receiving telephone calls at The Pub bef ore leaving around 11:30 p.m. S he said the victim came back around 3:00 a.m., was cry ing and wet, had grass all

over her, and had cuts and s cratches. She said the v ictim was crying so hard she could not talk, but eventually the victim stated, “Wayne raped m e.” She said the police were called, and the victim was taken to the hospital.

Dr. Shane Adams testified that he w as working in the emer gency room of Holston Valley Hospital when the victim arrived around 4:30 a.m. He said the victim was disheveled, nerv

ous and anxious. He said she had a bruise and some scrapes and scratches. He testified that he performed a rape kit test on the victim. He said that he found no vaginal trauma but that this was not necessarily inconsistent with rape. Dr. Adams testified that he saw the victim the following day for a follow-up v

isit and that the4

victi m had bru ises on both kne es. He s aid the v ictim a lso had b ruisin g aroun d her le ft eye that was consist

ent with the type of injur y caused by a slap or

a hit.
Officer Ray McQueen, wi th the Kingsport Police Department, testified that he was dispatched to Ms. Shipley’s house on the rep ort of a possible rape. He sa id the victim had red scratc

h marks on her face, neck and arms. He said the victim w as crying and appeared distraught.

Detective David C

ole, with the Kingspor

t Police Department, testified that he was dispatched to the sc ene of the incident for investi gation. He said he found purple strips of cloth and a k nife stuck in the ground. H e said he then went to the hospital to interview

the victim. He said the victim was dist raught and had scratches on her body and grass in her hair.

Kelly Smith testified that she is a forensic serolog ist with the Tennessee Bureau of Investigation (TBI) Crime Laboratory. She testified that she examined DNA collected from the victim’ s vaginal swabs during the rape kit test and compared it to blood samples from the victim and defendant. She said that the vag inal swabs contained sperm and that the DNA profile of the sperm from the swabs was consistent with the defendant’s DNA pr ofile. She testified that the profil e is found in less than .02 percent of the white population

.

Linda Littlejohn testified that she is a forensic scientis t with the TBI. She said she examined the bathing suit the victim was wearing at the time of the offense and compared it to the cloth str ips found at the scene. She said the bathing suit was missing several cl oth strips that were c onsistent with the ones found at the scene. Upon the foregoing eviden ce, the jury convic ted the defendant of aggravated rape.

I. SUFFICIENCY OF THE EVIDENCE The defendant contends that the evidence is insufficient to support his conviction for aggr

avated rape. Initially , we note that the defendant fails to make any argument or cite to anything in the record. “I ssues which are not suppo rted by argument, citation to authori ties, or appropriate referenc es to the record will

be treated5

as waived in this court.” Tenn. Ct. Crim. A pp. R. 10(b). Howev

er, because insufficient evidence would voi d the conviction, we will address the meri ts of the issue.

Our standard of review when the sufficiency of the ev idence is questioned on appeal is “whether, after viewing the ev

idence in the light most fav orable to the prosecution, any

rational trier of fact could have found the essential elements o f the crime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This means that w e do not reweigh the ev idence but presume that the jury has resolv

ed all conflicts in the test imony and drawn all r easonable inferences from the evidence in favor of the s tate. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978).

Aggravated rape is defined, in pertinent part, as follows:

. . . unlawful sexual penet ration of a victim by the defendant or the defendant by a victim accompani ed by any of the following circumstances: (1) Force or coercion is used to accomplish the act and the defendant is armed with a weap on or any article used or fashioned in a manner to lead the victim reasona bly to beli eve it to be a weapon[.] Tenn. Code Ann. § 39-13-502(a)(1) . The victim testified that the defendant attacked her, wielded a knife, forced her to the ground, and penetrat ed her. Ms. Shipley, Dr. Adams, Officer McQueen, and Detective Cole testified that after the incident, the victim was covered with grass and had scratches , cuts and bruises. A butcher knife was found at the scene, along with strips of cloth that wer e determined to be consistent w ith the victi m’s bathing

suit. Fina lly, the v

ictim’s rape kit test r

evealed spe rm of the same profile as the defendant’s DNA. We hold that the ev idence is sufficient to support the defendant’s conviction.

II. MOTIONS TO SUPPRESS

The defendant contends that the trial cour t erred by denying

his motions to suppress the knife found at the scene and the DNA evidence prese nted by Agent Smith. The state contends that the ev idence was properly

admitted.
With respect to the knife, the defendant argues that it was improperly identified and irrelevant.He further argues that the trial court had previ ously ruled that6

it was admissible for i dentification only. The recor d shows that the vict im examined the knife discovered by D etective Cole and testifie d that it looked the same as the but cher knife used by the defendant. At that poi nt, the trial court admitted the knife into evidence for identification. Detective Cole later identified the knife as the one he recovered at the sce ne, and t he knife was admitt ed into e vidence. The recor d shows that the knife was properly identified and authenticated. See Tenn. R. Evid. 901.
Regarding the defendant’s r elevancy argument, R ule 401, Tenn. R. Evid., provides that relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determ ination of the action more or less probable than it would be without the evidence.” In light of the fact that the victim testified that the defendant wielded a butcher knife, and a butcher kni fe was found at the scene, the evidence is relevant to proving the charge of aggrav

ated rape.
With respect to the admission of the DNA ev idence, the defendant argues that the evidence was irrelevant because there are too many other people whose profiles would match the DNA. He further argues that t he evidence was tainted by Detective Cole. These issues are without merit. DNA evidence is generally admissible pursuant to Tenn. Code Ann. § 24-7-117, and in th is case, the evidence is relevant to prove that the defendant was th e perpetrator. The defendant’s arg ument goes to the weight of the evidence and not to its admissibility. The defendant provides no support for his contention that Detecti ve Cole contaminated the ev idence, and our review of the record reveals none.

III. PRIOR CONVICTIONS

The defendant contends that the trial cour t erred by ruling that his prior convictions for armed robbery, aggravated assault and filing a false income tax return would be admissible for impea chment purposes if he testified. See Tenn. R. Evid. 609. He argues that the probativ e value of the convictions was substantially

outweighed by the danger of unfair prejudice and that two of the con victions were more than ten years old. See Tenn. R. Evid. 403, 609(b).7 We hold that the trial court did not e rr by ruling that the convictions were admissible.With respect to t he convict ions for armed robbery a nd filing a fa lse income tax return, these conv

ictions are probative in that they are crimes of dishonesty that would reflect on the defendant’s c redibility. Althoug h the aggravated assaul t conviction is less probative on the issue of the defendant’s honesty, i t still reflects his i nability to conform his conduct to the requi rements of the law. See generally State v. Farmer , 841 S.W.2d 837, 841 (Tenn. Crim. App. 1992). Furthermore, because the prev ious convictions are for cr

imes of a different nature than aggr avated rape, they are not unduly prejudicial. See State v . Ratliff , 673 S.W.2d 884, 885 (Tenn. Crim. App. 1984) (“Where the prior offense is substantially different from the crime charged, t he prejudicial effect is minimal.”).

The defendant also contends that the armed r obbery and aggrava

ted assault convictions are inadmissible because they are over ten years old. Rule 609(b),Tenn. R. Evid., pr ovides that “[e]viden ce of a conviction under thi s rule is not admissible if a period of more than t en years has elapsed betw een the date of release from confinement and commencement of the action or prose cution.” (Emphasis added). The record reflects that the defendant was convicted of armed robbery in 1981 and aggravated assault in 1986. However, the record further reflects that the defendant was not released from pris on for these offenses until 1990 and 1993, res pectively. Thus, the convictions were within the ten-year period permitted by Rule 609(b).

IV. TESTIMONY OF ST ATE’S WITNESSES The defendant contends that the “untruthful” testimony of state’s witnesses

deprived h im of due proce ss. He arg ues that the t estimony of t he victim, Detective Cole and Ms . Shipley was contr adictory and, thus, untruthful such that he was deprived of a fair trial. This issue is without merit. No evidence ex ists that the witnesses were bei ng untruthful. The credibili ty of the witnesses and th e weight to be given to their testi mony are issues to be res olved by the trier of fact, not this court. State v. Pappas , 754 S.W.2d 620, 62 3 (Tenn. Crim. App. 1987).

V. SLEEPING JUROR8 The defendant contends that the trial cour t erred by failing to declare a mistrial after the defendant pointed out that one of the jurors had appeared t o be asleep. The trial court per mitted the attorneys to qu estion the juror outside the presence of the other jury member s. The juror explained t hat she had not been asleep but had only closed her eyes for a moment to rest them. She state d that she had paid attention and listened to all of the evidence and that she had nev er been asleep during the trial. The trial cour

t denied the defendant’s motion. We note that the mere fact that a juror becomes drowsy for a short time is not of itsel f a ground for a new trial;the defendant must show prejudice. See State v. Chestnut , 643 S.W.2d 343, 346 (Tenn. Crim. App. 1982). In lig ht of the juror’s testimony that she had been awake and had not missed any evidence, the defendant has failed to make this showing. This issue is without merit.

VI. ISSUES RELA TING TO TENN. R. EVID . 412 The defendant raises several i ssues relating to Rul e 412, Tenn. R. Evid. Specifically, he argue

s that (1) his attorney

was ineffective for failing to follow the procedural requirements of Rule 412(d); (2) the trial court should have granted his motion for a mistrial or to w ithdraw upon learning

that his attorney failed to follow the procedures of Rule 412(d), w hich resulted in the exc lusion of evidence of prior consensual sex between the defendant and the victim; and (3) the trial court erred b

y redacting a portion of the v ictim’s medical records relating to the vic

tim’s last reported
consens ual sexua l activity.

Rule 412, Tenn. R. Evid., l imits the admissibility of evidence about the prior sexual behavi or of a victim of a sexual offense and establishes procedures for determining when such ev idence is admissible. The r ule provides, in perti nent part, as follows: Evidence of specific instances of a victim’s sexual behavior is inadmissible unless admitted in accordance with the procedures in subdivision (d) of this rule, and the evidence is: (1) Required by the Tennessee or United States Constitution, or (2) Offered by the defenda nt on the issue of credibility of the victi m, p rovided the prosecutor or victim has presented ev idence as to the vi ctim’s se xual beha vior, and o nly t o th e extentneeded to rebut the specific evidence presented by the prosecutor or victi m, or9 (3) If the sexual behavior w as with the accus ed, on the issue of consent[.] Tenn. R. Evid. 412(c). The rule mandates the following procedures:

(1) The pe rson must file a written motion to offer such evidence. (i) The motion shall be fil ed no lat er than te n days before the date on which the tri al is scheduled to begin, except the court m ay a llow the motion to be made at a later date, including during t rial, if the court determines either that the evidence is newly discov ered and could not have been obtained earlier through the ex ercise of due diligence or that th e issue to which such evidence relates has newly aris en i n the case. (ii) The mo tion shall be served on a ll parties, the prosecuting attorney, and the vict im; service on the victim shall be made through the prosecuting attorney’s office. (iii) The motion shall be accompanied by a wri tten offer of proof, describing the specific evidence and the purpose for introducing it. Tenn. R. Evid. 412(d). The r ule further provides that the trial court must conduct a nonpublic hearing to consider the admissibility of the evidence and, if ot herwise admissible, must determine w hether the probative val ue of the evidence outweig hs the unfair preju dice to the v ictim.
In the present case, the state fil ed a motion during trial to prevent the defendant from introducing any ev idence of the victim’s sex ual history, argui ng that the defendant had filed no motion and had failed to compl y with any of the other

procedural requirements of Rule 412(d). The defendan t’s attorney admitted that he failed to file the motion but argued that the ev idence was neverthele

ss admissible because it w as evidence of prior consensual sex between the defendant and the v ictim. See

Tenn. R. Evid. 412(c)(3). The t rial court determined that the attorney had failed to comply with the procedures of Rule 412(d) an d further determined that the propose d evidence was not newly discov

ered. See Rule 412(d)(1)(i). Thus, the trial court ruled the evidence inadmissible. In an offer of proof, the defendant t estified that he had lived w ith the victim and his brother and that during this time, h e and the victim had consensual sex. The defendant’s brother testified that he had witnessed the defendant and v ictim having sex twice.

A. Ineffective Assistanc e of Counsel The defendant contends that his attorney ’s failure to follow the pr ocedural requirements of Rule 412(d) resulted in the ineffect ive assistance of counsel in that it10

precluded him from asserting c onsent as a def ense and forc ed the attorne y to change strategies in the middle of the trial. The state contends that the defendant has not demonstrated prejudice.

Under the Sixth Amendment, w hen a claim of ineffective assist ance of counsel is made, the burden is upon the petitioner to sho w (1) that counsel’s performance was deficient and (2) that the deficiency w as prejudicial in terms

of rendering a reasonable pr obability that the resul

t of the trial was unrel iable or the proceedings fundamentally unfair

. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); see Lockhart v. Fretwell , 506 U.S. 364, 368-72, 113 S. Ct. 838, 842-44 (1993). The Strickland standard has been applied to the r ight to counsel under Article I, Section 9 of the Tenness ee Constitution. State v. Melson , 772 S.W.2d 417, 419 n. 2 (Tenn. 1989).

In Baxter v. Rose , 523 S.W.2d 930, 93 6 (Tenn. 1975), our supreme court decided that attorneys shoul d be held to the general standar d of whether the servic es rendered were withi n the range of competence demanded of attorney s in criminal cases. Further, the court stated that the range of competence w as to be measured by the duties and criteria se t forth in Beasley v. United St ates , 491 F.2d 687, 696 (6th Cir. 1974) and United States v. DeCost er , 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Also, in reviewing c

ounsel’s conduct, a “fair as sessment of attorney performance r equires that every effort be made to eliminate the distorting eff ects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to ev aluate the conduct from counsel’s perspective at the time.” Strickland , 466 U.S. at 689, 104 S. Ct. at 2 065; see Hellard v. State , 629 S.W.2d 4, 9 (Ten n. 1982).

We also note that the ap proach to the issue of the ineffective assistance of counsel does not have to start with an analysis of an attorney’s conduct. If preju dice is not shown, we need no t seek to determine the vali dity of the allegations ab out deficient performance. Strickland , 466 U.S. at 697, 104 S. Ct. at 2 069.

We hold that although the attorney should hav e filed the appropriate motion under Rule 412(d), the de fendant has failed to demonstrate prejudi ce. First, the11

record shows that the defendant was not precluded from p resenting consent as a defense. The defendant’s attorney ques tioned the victim about w hether she had previously had consen sual sex with the defendant, and he continued to argue consent. The record shows that the att orney did not abandon strateg ies in the middle of trial but rather presented alternate the ories to the jury. F urthermore, the state presented strong evidence of aggravate

d rape. The victim’s tes timony that the sex w

as not consensual was supported by her physical and emotional condition after the attack. Dr. Adam s, Ms. Shipley, Officer Mc Queen and Detective Cole al l testified that the victi m had scratches, bruises and r ed marks on her body. They testified that she had grass in her hair and clothes and that she was crying and distraught. In addition, Detective Cole testified that he found a butcher knif e in the ground at the location of the attack, supporting the victi m’s testimony that she w as forced to have sex at k nifepoint. In light of the ample proof of force presented by the s tate, the defendant has failed to demonstrate that he was prej udiced by his attorney ’s failure to follow the r

equirements of Rule 412(d).

B. Motion for a M istrial or to Withdraw

The defendant contends that the trial cour t erred by failing to declare a mistrial or to allow his attorney to withdraw upon learning of his attorney’s failure to file the motion pursuant to Rule 412(d ), Tenn. R. Evid. The recor d shows that after the trial court found the evidence to be in admissible for failing to co mply with the procedur al requirem ents of t he rule, t he defe ndant’s attorne y requeste d a mistri al or to with draw, arguing that his inability to present evidence of prior consensual sex between the victim and the defendant essentially pr ecluded him from effectively defending the case. The trial court denied the motion s and specifically found that no manifest necessity exi sted to require a mistrial

. See State v. Millbrooks , 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991).
The decision of whether to gr ant a mistrial is wi

thin the sound discretion of the trial court. State v. McKinney , 929 S.W.2d 404, 40 5 (Tenn. Crim. App. 1996). This court will not dist urb that decision unless ther e is an abuse of discretion. State v. Adkins , 786 S.W.2d 642, 644 (Tenn. 1990); State v. Willia ms , 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996). With respect to moti ons to withdraw, the trial court may, upon12

good cause shown, permit the withdrawal of an atto rney appointed to represent an indigent defendant. Tenn. Code Ann. § 40- 14-205(a). The trial cour t has wide discretion in matters regarding the appointment and r elief of counsel, and its decisi on will not be set aside on appeal unless the defendant shows an abuse of discretion. State v. Rubio , 746 S.W.2d 732, 737 (Tenn. Crim. App. 1987).

We hold that the defendant has not shown that the tri al court abused its discretion in denying the motions. He has shown no manifest necessity that would require a mistrial nor has he shown good cause that would require withdrawal, particularly in light of our previous holding that he was not prejudiced by his attorney’s inability to present ev

idence of prior consensual sex

.

C. Redacted Medical Records The defendant contends that the trial cour t erred by redacting

a portion of the victim’s medical r

ecords that were admitted i nto evidence. The record r eflects that the defendant sought to introduce medi cal records from Holston Val ley Hospital relati ng to the victim’s treatment for the rape. The records incl uded a portion filled out by the victim wherein she

reported her last consensual sexual intercourse w

ith a different partner to be at 1:00 a.m. on August 9, 1996. The defendant argued that the evidence was admissible pursuant to Rule 412(d)(4)(ii ), Tenn. R. Evid., wh ich provides for limit ed admissibility of evi dence of sexual activity with persons other than the defendant to rebut or explain scientific or medical evidenc e. The state sought to have th at portion of the reco rds red acted be cause of the defendant’s failure to follow the procedural requirements of Rule 412(d) . The trial court determined that the defendant’s failure to comply with the rul e required redaction. The d efendant has not shown that the tri al court erred, and the record supports its determination.
In consideration of the foregoing and the record as a whole , we affirm the judgment of conviction.

________________________________ Joseph M. Tipto n, Judge CONCUR:13

______________________________ David H. Wel les, Judge

______________________________ Jerry L. Smith, Judge