# FILED
May 30, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE SEPTEMBER 1996 SESSION STATE OF TENNESSEE, * C.C.A. # 01C01-9512-CC-00404 Appellee, * LAWRENCE COUNTY VS. * Hon. Jim T. Ham ilton, Judge TERRY ALLEN DOMINY, * (Spousal Rape-3 Counts) Appellant. *

DISSENTING OPINION I fully agree with the majority's concl usion that our court has the authority to modify the conv ictions from aggravat

ed rape to spousal rape. Giv en that excellent resoluti on of the primary issue, it is tempting to concur i n the modification

of the convi ctions without contex tualized r

eview of other issues.In my view, however, there were other errors: (1) by allowing into evidence the full content of the victim's taped s tatement; and (2) by refusing to admit evidence that the victi m previous ly had accu sed her brot her of persona lly commit ting this same unusual crime. Because the leg itimacy of the charges depen ds entirely upon the credibility of the v

ictim, I cannot conclude that the errors had no effect upon the verdict. See State v. Kendricks , 891 S.W.2d 597, 604 (Tenn. 1994) (where "[t]he essential issue was credibility," erroneo us introduction of evidence w as not harmless); Tenn. R. App. P. 36(b).

Initially, the defendant had adeq uate notice that he faced charges for spousal rape. The indictments c harged aggravated r

ape. In State v. Trusty , 919 S.W.2d 305 (Tenn. 1996), the defendant was indicted for a ttempted first degree murder. Id. at 312. Our supreme court held that "[t]his indictment ... cou ld ... form1 The majority concl udes the jury found the "el ements necessary to constitute aggravated rap e by use of a deadl

y weapon." slip op. at 5. Nei ther aggravat ed rape nor spousalrape requir es that t he sexual penetr

ation be achi eved by use of a deadly weapon.Both offenses onl y requi re that t he "defe nda nt is a rm ed w ith a w eap on or any ar ticle u sed or fas hione d in a m ann er to le ad th e victim reason ably to believe it to b e a wea pon." Te nn. Cod e Ann. § § 39-13 -502(a) (1), 507(b )(1)(A). "Dea dly we apo n" is s tatuto rily defin ed as a wea pon that is capa ble of caus ing "d eath or se rious bodily injury ." Tenn. Code Ann. § 39-11-106(5) (A),(B). Thus for spousal r ape, it is not necessar

y that the dog was capable of causi ng serious bodi ly i njury or death. Al l that

is necessary

is that the vict im was threatened by

the dog or reaso nably bel ieved she was i n danger from the dog. 2 the basis for a convictio n, if the evidence is sufficient for that offense, for any offenses which are lesser g rades or classes of attempted firs t degree murder ... or for any lesser included offenses. ..." Id. Because spousal rape is a l esser grade offense of aggravated rape, the in dictment charging agg ravated rape was suffici ent for a conviction of spousal r ape.

Furthermore, the majority 's modification of the convict ions has not precluded the right to a j ury trial. Because the defendant was found guilty of aggravated rape, the j ury determined beyond a r easonable doubt that the sexual penetration was accompanied by "[f]orce or coercion ... and the defendant [was] armed with

a weapon or

any article used or fas hioned in a ma nner to lead the victi m reasonably to believe

it to be a weapon." Tenn. Code An n. § 39-13-502(a)(1). Spousal rape is the "unlaw ful sexual penetration of one spous e by the other [and]...[t]he defendant is armed wi th a weapon or any arti cle used or fashioned in a manner to lead the victim to reasonably believe i t to be a weapon." Tenn. Code Ann. § 39-13-507(b)(1)(A) . The only remaining ele ment of spousal rape is the lega l marriage. Their marriage certificate was evi dence at trial. Thus a modificati on rather than a retrial w

ould have been warranted,absent other error. See State v. Thornton , 730 S.W.2d 309 (Tenn. 1987) (reducing first d egree murder convicti on to voluntary manslaught

er where evidence i nsufficient for first degree murder but overwhelmingly established manslaughter). 1

The defendant also contended that the trial court erred by allow

ing the3 jury to hear an audiotape of the victim's interv iew with the Depar

tment of Human Services. The majority concludes "the issues reg arding the DHS tape are ei ther meritless or have been waived." slip op. at 9. On August 2, 1994, more than six months after the last assault and less than a mon th after the indictment, the victim gave a statement to DHS. The defendant used po rtions of the statement to crossexamine the victim:

Q: Didn't you have a conversation, with your mother being present, and Mr. Workman an d Mrs. Mickie Pierce of D.H.S., and it was taped w ith a tape recorder, and they tape recorde

d what you

told them? A: (No response) Q: Do you remembe r that happeni ng? A: No. I don't remember it. Q: Now, when you testified about this February incident, you said it happened in the living room on the floor, didn't you? A: Yes. Q: And you told Mrs. Pierce and Mr. Workman back in August that it happened on the couc h. Do you remember telling them that? A: Yes. With the dog. Q: You didn't tell them any thing about it happening on the floor, or anything happening on the floor, on the third event, in this transcr

ipt, did you? A: No. Q: And when you talked t o them, back in August, yo u told about how your husband left you for almost an hour-- 45 minutes each time--and left the hou se. Got in the car and left. And you didn't make any attempt to leave at that time, did you? A: I went out there in the horse field.

*** Q: Isn't it true that you told Mickie Pierce, back in August, when you talk

ed about your husband, you s aid, "I tried to scare him, y

ou know?"4 A: Yes. Q: So, how did you try to scare him? By bringing these false charg es against him?

*** Q: How did you try to scare him? You told Mrs. Pierce you tried to scare him. What did you do? A: He gonna hit me. Q: What did you do to try to s care him? A: I can't understand. Q: Well. You agree you told her that. You told Mrs. Pierce that you tried t

o scare your husband, Terr y, Right? A: Yeah, I' m scared of Terry. Yes, I am.

Later in the trial, w

hen the victim was no l onger present, the state called Mickie Pierc

e, who conducted the interv iew. Ms. Pierce authenticated the audio cassette of the intervi ew, which was then played in its entir ety. The transcription is tw

enty-eight pages of tex t. The statement includes her detai led accounting of each of the three assaul ts; she did not refer to the occurrences as on the floor. The victim contended that the defendant routinely raped and beat her and, on less frequent occasions , attempted to starve her. The interview was conducted at the request of the Di strict Attorney. M any of the questions sugg ested an answer supportive

of the state's theory.

The defendant objected to the tape on hearsay grounds and arguedthat, at worst, the jury should be limited to the portions referred to on the prior crossexamination of the victim. A cross-examination may open the door to other parts of the statement. In State v. B oyd , 797 S.W.2d 589 (Te nn. 1990), our supreme court cited the following r

ule: The general rule is, subj ect to certain exceptions , that2 Neither par ty has cont

ended the stat

ement was admissible as a f resh complaint. It i s doubtful if thi s complaint was made soon enough aft er the att

ack to so qualify. I n Stat e v. Ke ndri cks , 891 S.W.2d 597, 604 (Tenn. 1994), our supreme court hel d that "Tennessee con tinues t o require t he complaint to be timely ... but whether a complai nt [i s] timely depends upon an assessment of al l the facts and ci rcumstances." The stat ement does not need to be spo ntaneous but it does need to be timely. Id. A statem ent m ade six m onths a fter the attac k is not tim ely. See Johns on v. State , 296 S.W .2d 832 ( Tenn . 1956) (s tatem ent m ade less than one hour afte r incident w as time ly); Carroll v. State , 370 S.W.2d 523 (Tenn. 1963) (statement made soon after i ncident was t imely) ( both cases cited wi th approval

in Kendri cks , 891 S.W .2d at 605.) See also State v . Brown , 871 S.W.2d 492, 494 (Tenn. Crim. App. 1993 ) (state ment made eleven months after t he offense was "st ale wit hin the meaning of fresh complai nt.") More importantly, the Kendri cks rule is that , "[i] f the q ues tionin g is clearly leading or

overly suggestive, ... t he resulti ng statement would not, i n all l ikeli hood, be the victi m's product. Rathe r it woul d be questioner 's product. In such case, t he statement shoul d, obvious ly, be exclud ed." Kendri cks , 891 S.W .2d at 605 . Here, the question s were c learly sugge stive. For example, the f

ollowi ng exchange occurred: Q: He tied y

our arms up. A: Uh-huh. Q: He tied y

our ankles. A: Yeah. Q: He pushed you on the floor. A: Yeah. Q: And he brought t he dog in? In my view , the statem ent wou ld not qua lify as a fresh com plaint. 5 evidence of prior consistent statements may not be used to rehabilitate an impeached witness . ... The State [is] allowed to place in proper context supposedly inconsistent statements broug ht into evidence by defendant. Where specific questions and answer s taken out of context do not convey the true picture of the prior statement alleged to be inconsistent, it is unfair to permit reference to isolated, unexpl ained responses by the witness and there is no error in allowing the statements to be placed in context. Id. at 593-94 (emphasis added). Und er this rule, the state sh ould be allowed to "convey the true picture of the prior statement alleged to be inconsistent "; however, the rule, in my view, does not form a basis for permitti ng subjects not a part of the cross-examination. These facts are almost identical to State v. Braggs , 604 S.W.2d 883 (Tenn. Crim. App. 1980). In Braggs , the defendant cross-examined the victim with a statement she had gi ven the police; 2 thereafter, the assistant dis trict attorney general "offered the entire statement,which when read in its entirety reflect[ed] no significant inconsistenc ies ...." Id. at 885. This court found error:

Althoug h prior

inconsi stent st

atements

of a witness may be admissible for impeachment purposes,6 the general rule, subjec t to certain exceptions,is that evidence of prior consis tent statements may not be used to rehabilitate the impeached witness. Id.

In my view, the st ate should have been allow ed to place the alleged inconsistencies into conte xt; however, the r

emaining portions of the statement should have been excluded as hearsay. "If extrinsi c evidence of a prior inc onsistent statement is used, the trial court has the discretion t o screen it and excise irrelevant or otherwise inadmiss ible portions. This will prevent the jury from being exposed to inadmissible proof." Neil P . Cohen, Tennessee Law of Evidence , § 613.4 (3d Ed. 1995). The trial court shoul d have redacted signific ant portions of the tape; it w as error not to do so.

Next, the defendant argues that he should have been allowed to crossexamine the victim about a prior claim that her br

others raped her by use of a dog

. The majority has reasoned that the defendant has not established a pr ior pattern of conduct and that a "prior noncons ensual act" is not evidenc e of consent in this case.

The dispute was whether the rapes ever took place. Wh ile acknowledging that the dog was involv ed in their sexual acti

vities, the defendant claimed the victim w

as a willing participant. The defendant claimed this p articular activity had occur

red twice, the last ti me being four months before the vic tim claimed the first assault occurred.The state's case depended upon the cr edibility of the victim. Outside of the pres ence of the jury, the vic tim testified that when she w as thirteen, one of her brothers forced her to have intercourse with a dog. She also claimed that her brothers had raped her and that she had become preg nant. Her brothers denied the accusation s. Apparently, the matters were not prosecuted. The7 trial court refused to allow the defendant to cross-examine the victim abou t these prior allegations. The defendant contended that if the victim had made false allegations in the past against her brothers, those facts would be relevant in this trial.

In State v. Reid , 882 S.W.2d 423, 42 7 (Tenn. Crim. App. 1994), this court ruled that "it was error for the trial court to prohibit the defendant f rom crossexamining the [female] victim" about criminal charges against her son; the victim had offered to drop the charges aga inst the defendant in exchange for dismissal of the charges against her son. These facts were adjudg ed to have possibly moti vated the victim to testify fal sely against the defendant. I n Reid , the only question w as whether the victim or the defendant had testified truthf ully about the events. This court ruled that because the i mpeachment of the victim would be so significant to the issue of guilt that the tr ial court, when it ex

cluded the evidence, "went beyond reasonable limits giv

en the importance of the victi m as a witness." Id. at 430.

The policy behind the rape shi eld statute is to protect v ictims of rape from "unnecessary, degradin g, and embarrassing inv asion of sexual privac

y." Tenn. R. Evid. 412 Advisor

y Commission Comment [1991]. That legislation must be considered as a part of my sepa rate analysis. The rati onale for the statute does recognize that there are exceptional circumstances when "the accused can only have a fair trial if permitted to introduce evidence of the alleged victim's sexual history." Id. This policy follows that expressed in Olden v. Kentucky , 488 U.S. 227 (1988). In Olden , the defendant wanted to cross-examine the victim about h er relationship with a man.The defendant contended that there was a motive for the victim to lie in ord er to protect her present r elationship. The trial cour t denied the cross-examination and the appellate court affirmed stating that "the petitioner's rig ht8 to effective cross-examin ation was outweigh ed by the danger that rev ealing [the victim's] inter-r

acial relationship w

ould prejudice the jury

against her." Id. at 232. The Supreme Court reversed s tating that "[t]he Kentucky Court of Appeals failed to accord proper weight to petitioner's Six th Amendment right 'to be confronted with the witnesses against hi m.'" Id. at 231.

In my view, whether or not the victim had been raped before would have no probative value for the jury in this case; however, the fact that the victim may have made false accusations in the prior instance g oes to the core of hercredibility. There is a likelihood that the defense should have been allowed to crossexamine the victim about h er past allegations. Y et the trial court did not allow the defense to offer proof ou tside the jury's presence for the appellate record. This court has held in the past that trial courts do not hav

e to allow such an offer of proof where there is no basis to believe that the evi dence is relevant. Alley v. State , 882 S.W.2d 810, 816 (Tenn. Crim. App. 1994). If, howev er, the court cannot conclusively deter

mine that the evidence is i rrelevant, "it is er ror to exclude any reasonable offer which demonstrat es the ... general import o f the excluded evidence." Id. Because of the possible merit to the claim, I believe the trial court here should have allow ed an offer of proof. In my opinion, the failu re to allow that
was error.

In my opinion, the cumulative effect of the evident iary errors would ordinarily war

rant a new trial.

__________________________________ Gary R. Wade, Judge