State of Tennessee v. Ronnell Jason Leberry

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs August 10, 2004

STATE OF TENNESSEE v. RONNELL JASON LEBERRY

Direct Appeal from the Circuit Court for Montgomery County

No. 40000370 John H. Gasaway, III, Judge

No. M2003-01228-CCA-R3-CD - Filed March 28, 2005

A Montgomery County jury convicted the Defendant, Ronnell Jason Leberry, of aggravated assault,

extortion, especially aggravated kidnapping, and two counts of facilitation to commit aggravated

rape. The trial court sentenced the Defendant to an effective sentence of thirty-two years and six

months. On appeal, the Defendant contends that: (1) the trial court erred when it failed to instruct

the jury on accomplice testimony; (2) he was denied a unanimous jury verdict; (3) the trial court

erred by failing to recuse itself; (4) the evidence is insufficient to support his convictions; (5) he was

denied his right to an impartial jury because certain jurors considered evidence not admitted at trial;

(6) the trial court erred by failing to recuse the Assistant District Attorney General at trial; (7) he was

denied the right to a fair trial because he was required to wear leg-shackles during the trial; (8) he

was denied a fair trial due to the racial composition of the jury; and (9) the trial court erred by

enhancing the Defendant’s sentences and ordering consecutive sentencing. After thoroughly

reviewing the record, we affirm all of the Defendant’s convictions. Further, we hold that the trial

court improperly enhanced the Defendant’s sentences in light of Blakely v. Washington, 542 U.S.

__, 124 S. Ct. 2531 (2004), and we reduce the Defendant’s sentences in accordance with this opinion

to an effective sentence of twenty-eight years.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed in Part;

Reversed in Part and Remanded

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which DAVID H. WELLES, and

NORMA MCGEE OGLE, JJ., joined.

Hugh Poland (at trial); and Mark Olson (on appeal), Clarksville, Tennessee, for the appellant.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant, Assistant Attorney

General; John W. Carney, Jr., District Attorney General; Arthur Beiber, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

I. Facts

This case arises from sexual offenses that occurred against the victim, J.B,1 on May 15, 2000.

With respect to these crimes, the Defendant was indicted for seven counts of aggravated rape,

aggravated assault, extortion, and two counts of especially aggravated kidnapping, and he was

convicted of aggravated assault, extortion, especially aggravated kidnapping, and two counts of

facilitation of aggravated rape. The trial court sentenced the Defendant to an effective sentence of

thirty-two years and six months.

The following evidence was presented at the Defendant’s trial. The victim testified that she

worked at a computer parts store around the time of this crime, and she usually car-pooled to work

with her roommate, Lynequia Hawkins, or a member of Hawkins’s family, or her friend, Demetris

(“Dee”) Grant. The victim testified that Grant had a boyfriend named “Chug,” who she identified

as the Defendant. She explained that the Defendant is Hawkins’s brother.

The victim said that she usually drove her own car to work, which was a 1990 Mustang. On

Saturday, May 13, 2000, she was scheduled to work, and she car-pooled to work with Hawkins. The

victim testified that she was also supposed to take Grant to work, but she did not do so. She said

that, on the next day, Sunday, May 14, 2000, she spent the day at her mother’s and then returned to

her apartment around 11:00 p.m. She explained that, when she returned home, Hawkins’s mother’s

truck was outside, and she thought it was unoccupied. A short time later, she saw Grant and the

Defendant get out of the truck, and Grant said that “she was going to kick [the victim’s] ass” because

the victim did not take her to work. The victim said that Grant told her “to go inside to talk,” and,

when she went into her apartment with Grant, the Defendant was there too. She testified that Grant

swore at her, hit her in the face with a closed fist, and kicked her. She said that the Defendant talked

to Grant, but she did not know what they said. The victim testified that either Grant or the Defendant

then told her to undress. She testified that Grant said that she would hurt the victim with a knife, that

the victim described as having a serrated blade, if the victim did not do what they said. The victim

said that she undressed because she was scared that she was “going to die.”

The victim said that the Defendant and Grant took turns “heat[ing] up a fork over the stove

and burn[ing] [her] breasts and [her] vagina” while she was lying on her back on the floor. She

testified that one breast “had a fork burn on the nipple and the other one was just below the nipple.”

The victim testified that either the Defendant or Grant inserted a mop handle into her vagina. She

said that she did not remember any specific conversations between the Defendant and Grant, but she

remembered them swearing. The victim testified that Grant and the Defendant forced her, by

threatening her life, to “write a note saying that [she] owed [them] two hundred and fifty dollars and

until [she] got them that money, then [her] car was as collateral.” She said that she did not think that

she owed either the Defendant or Grant any money. The victim said that she did not know if her

clothes were on at this time, but she remembered that either the Defendant or Grant told her to get

dressed, and she put all her clothes on except for her bra, which she left on the kitchen floor.

1

It is the policy of this Court to refer to victims of sexual offenses by their initials only.

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The victim testified that she, Grant, and the Defendant left the apartment. She said that Grant

drove the Defendant’s mother’s truck, and the Defendant followed Grant, driving the victim’s car

with the victim in the passenger’s seat. She explained that she got into her car with the Defendant

because the attackers again threatened her life. She said that she and the Defendant followed Grant

to a gas station, Scott’s Market, but, because there was a police officer at the gas station, the

Defendant kept driving. The victim testified that the Defendant circled back to the gas station, but

Grant was not there, and the Defendant drove to Grant’s apartment. When they arrived, the

Defendant yelled that “if anybody wanted their d*** sucked or to have sex, to come there.” The

victim said that there were men who heard the Defendant, and these men went with her and the

Defendant inside Grant’s apartment. She said that, once inside the apartment, the Defendant and

Grant again threatened her and told her to undress, which she did. She said that, after undressing,

she was forced to have oral sex with multiple men, who were sitting on a piece of furniture. She said

that there was a light on in the kitchen, where she could see both the Defendant and Grant, but there

were no lights on in the living room, so she could not see how many men she had oral sex with. The

victim said that she only stopped having oral sex with the men because “[the Defendant] asked them

all if they w[ere] all satisfied and they said ‘yes.’” The victim said that she was in the kitchen, and

she vomited on Grant because she “was burned and [she] was sick and [she] was scared.” Grant

yelled at the victim to “clean it up,” and Grant had a “pail of water and a mop and [the victim]

cleaned [the vomit] up with that.”

The victim testified that, while in Grant’s apartment naked, she was forced to do jumping

jacks, sit-ups, and to stand in the corner with one leg raised, all of which she did because her life was

threatened. She said that the Defendant and Grant told her to get dressed and to leave, which she did.

The victim said that she did not know anyone in the apartment complex, but a man who she did not

know took her home. When she got home, her mother and stepfather were there, and she told them,

while crying, that she had been raped. The victim said that her parents told her that they were going

to call the police, and she told them not to because she was scared that the Defendant and Grant

would come and get her. The victim testified that her mother and stepfather took her to the

emergency room at Memorial Hospital, but she had no memory of this hospital visit. She said that

she was in pain for months after this incident and explained that “[t]he breasts, they healed quick[er]

than [the] vagina did.” The victim testified that her memory of the entire incident is “not very good”

because she has “blocked it out of [her] mind.” On cross-examination, the victim testified that, at

the time of the incident, she had only known the Defendant for a couple months, and she had

previously had intercourse with him. She conceded that she had previously testified that Grant

burned her breasts and picked up the knife.

James Bryant Huggins, the victim’s stepfather, testified that he had known the victim for

almost three years. He said that, on Monday, May 15, 2000, the victim arrived at his house in the

early morning and knocked at the door. Huggins said that the victim was shaking, crying, and

scared, and, when he saw that she was crying, he woke up the victim’s mother. He said that, after

he awoke the victim’s mother, the victim told them that she had been raped, and the victim’s mother

told her to call the police. Huggins said that the victim refused because she said that her attackers

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would kill her if she called the police. He said that he and the victim’s mother convinced the victim

to go to the emergency room.

Lynequia Hawkins testified that she is the Defendant’s sister. She testified that, at the time

of the offenses, she and the victim had been roommates for six months, and they car-pooled to work

together. She said that Grant was the Defendant’s girlfriend in May of 2000. Hawkins testified that

the victim and the Defendant had previously had sexual intercourse. She said that, on Saturday, May

13, 2000, she, her mother’s boyfriend, and the victim went to work in the victim’s car. She said that

they had overslept and were late to work, so, even though they were supposed to drive Grant, they

never picked her up because the victim “didn’t like her.” Hawkins testified that she saw Grant the

following weekend, and Grant threatened the victim because the victim did not pick her up.

Hawkins testified that, on Sunday, May 14, 2000, she returned to her apartment around 1:00

a.m., and all the lights were on, the door was unlocked, and the phone was not on its charger, all of

which were unusual. She said that there was no one in the apartment, and she did not see any cars

or trucks in front of the apartment. Hawkins testified that she smelled an unusual odor when she

entered the apartment that was similar to “something freshly burned,” and she noticed the victim’s

bra on the kitchen floor. Hawkins testified that she had recently purchased a long mop that was

white and green on the bottom, and she had both knives and forks in her home. Hawkins identified

burned pieces of the mop that she found on her kitchen floor, which she did not clean up because she

was tired. She said that she did not change anything in the kitchen and went to sleep, and she awoke

round 6:00 a.m. to find the police at her door.

Gary Hodges, a detective with the Clarksville Police Department, testified that he was called

to the victim’s apartment on May, 15, 2000, and he photographed the crime scene and searched for

possible evidence. He said that he found a mop in the kitchen, and he found some burned pieces of

the mop on the kitchen floor.

Matthew Slight, who was an officer with the Clarksville Police Department at the time of this

incident, testified that he assisted in this investigation. He said that, while he was walking on the

sidewalk near the victim’s apartment, he found a fork with black markings laying in the grass

approximately twelve feet from the door of the victim’s apartment. Rick Stalder, a sergeant with the

Clarksville Police Department, testified that he searched the victim’s apartment, and he found a knife

on the kitchen counter that had a wood handle and a serrated edge.

Larry Boren, a detective with the Clarksville Police Department, testified that he searched

Grant’s apartment, and he found the victim’s car parked near her apartment, which he found

suspicious. Nicholas Newman, an investigator with the Clarksville Police Department, testified that

he learned that the victim had told police that Grant stopped at a gas station, and he obtained the

surveillance video from the gas station, which showed a woman who looked like Grant in the store.

Danny Bryant testified that he was the manager of Scott’s Market and he provided police with a

surveillance video from the night of May 14, 2000, to the morning of May 15, 2000.

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Latasha Duncan testified that, in May of 2000, she lived next door to Grant. She said that

on May 15, 2000, she heard a car pull up around 1:00 a.m., and she heard the Defendant yelling that

he had a “white girl” who wanted to engage in oral sex. She said that his voice was loud enough that

she could hear it from the street to her apartment. Duncan testified that, out of curiosity, she got out

of bed and looked outside and saw the Defendant in a maroon Mustang with a girl that she did not

know. Duncan testified that she saw other men outside “hanging out,” one of whom was the

boyfriend of her friend, Nisha Buck. She said that she went to Buck’s apartment, which is located

in the lower set of buildings, and, when she arrived, she told Buck what was happening. She and

Buck went back up to Duncan’s apartment and sat on the porch for about forty-five minutes to an

hour. She explained that no one was outside when they returned to her apartment, and she and Buck

were waiting to see if Buck’s boyfriend was going to come outside. She said that the Defendant and

Grant came outside and asked them why they were “worried about” what was going on in Grant’s

apartment. Buck replied that she was worried because her boyfriend was inside Grant’s apartment.

Grant confirmed that Buck’s boyfriend was in the apartment, and she asked if Buck would like her

to retrieve her boyfriend, and Buck responded “no.” Duncan testified that the Defendant mentioned

that he had a double-barreled shotgun, and Buck said that she was only worried about her boyfriend.

She said that the Defendant and Grant went back into the apartment, and, shortly thereafter, Buck’s

boyfriend came outside. Duncan testified that she never saw the “white girl” come out of Grant’s

apartment, and she did not know what time she went back to her apartment. She testified that, the

whole time, all she heard was music.

Dr. Robert Doty, an emergency medicine physician testified, as an expert, that he conducted

the victim’s general examination when she came to the emergency room. Dr. Doty testified that his

examination of the victim revealed the following: a small abrasion on the forehead; burns on both

breasts; bruises to the lower interior knees; a bruise on the left part of the pelvis; a bruise on the left

forearm; and a bruise on the right shoulder. Dr. Doty testified that the abrasion on the forehead and

the bruises on the arms and knees “were progressing,” which indicated that they were a few hours

old at the time of the examination. He testified that he thought that the victim’s breasts had been

burned between twelve to twenty-four hours prior to his examination, and the burns “were in the

perfect shape of a dinner fork.” He testified that the burns on that area would be extremely painful.

Dr. Doty testified that he was unable to administer a pelvic examination because of the

severity and extent of the victim’s injuries. He was, however, able to look at the labia, which were

reddened and swollen to the point that the opening was swollen shut. Dr. Doty testified that second-

degree burns on the labia were “the cause of the swelling and discoloration to the area.” He

estimated that the burns had occurred within twenty-four hours of his examination. Dr. Doty

testified that these burns would also be extremely painful. Dr. Doty testified that he and his nurse

attempted to do a rape kit on the victim, and the nurse obtained the victim’s medical history, as part

of the rape kit. He described the victim’s emotional condition as “extremely anxious.” Dr. Doty

testified that the victim indicated on her rape kit questionnaire that both fellatio and anal penetration

had occurred. Dr. Doty testified that the victim’s most pressing medical need was to be anesthetized

to allow the insertion of a catheter to avoid other medical complications.

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Dr. Lisa McIntosh, a physician specializing in obstetrics and gynecology, testified that Dr.

Doty contacted her in May of 2000 to examine and treat the victim. She said that, when she arrived

at the hospital, the victim was in the emergency room. She testified that the victim had “suffered

second-degree burn injuries to her vulva, which is the area surrounding the vagina.” She said that

the victim’s large “labia on either sides of the vagina were probably about three times swollen,” and

the small labia “were completely adherent together,” which obstructed the urethra and prohibited

urination. She said that the urethra appeared to be infected and blisters, located on the vulva, had

ruptured exposing the soft tissue and looking “like the entire genital area had been peeled of its

skin.”

Dr. McIntosh testified that these injuries must have been “excruciatingly painful” because

the victim would not allow her to touch the area, and the victim appeared to be in shock. She

testified that she had to give the victim general anesthesia before she could conduct a pelvic

examination because the injuries were so extensive and to such a sensitive area. Dr. McIntosh

testified that, after the anesthesia was given, she did a general examination to determine if there was

any trauma to the inside of the vagina. She said that the victim’s vagina had “a bloody discharge”

and a “pooling of vaginal secretions.” She testified that there was an abrasion, a scratch, and a

bruise, about the size of her thumbnail, on the victim’s cervix that encompassed about a third of the

cervix. Dr. McIntosh testified that this bruise was not consistent with traditional intercourse and was

more likely caused by “[s]omething hard [entering the vagina] . . . with some force.” Dr. McIntosh

testified that, during the surgery, she cleaned the wounds with “excruciating detail” and covered the

area with burn ointment. Dr. McIntosh testified that she removed a hair that she found at the top of

the patient’s cervix, and the hair indicated that the victim had recently had intercourse. She testified

that she also found and removed some secretions inside the victim’s vagina, and she gave the

secretions to the police officer. She said the victim tested positive for gonorrhea. She said the

victim was unable to urinate for a week, and the catheter was removed about a week later.

Dr. McIntosh testified that she performed a second surgery on the victim, that related to the

same injury to remove the dead tissue around the burn to get the blood supply back to that area. She

testified that the victim’s labia was elongated by two or three times, and it had a hole the size of the

doctor’s finger that penetrated the labia. The doctor opined that the elongation and hole were caused

by a burn. The doctor concluded that the burning instrument did not penetrate the victim’s vagina.

Dr. McIntosh testified that she had to cut and reattach the right labia to the vulva, but she was unable

to reconstruct it to its normal appearance and function. She said that there would probably be

permanent damage to that area. On cross-examination, Dr. McIntosh testified that she could not

determine the color or the shape of the hair found in the victim, and she could not determine if the

hair came from the victim or from another source.

Demarcus Smith testified that, in May of 2000, he was fifteen years old, and he was near

Grant’s apartment on May 14 and 15. He said that he went into the apartment where he saw the

Defendant, Grant, and three other men, “Mont,” “Rail,” and Walter Young, Jr. Smith testified that,

when he entered Grant’s apartment, he thought that he saw Young and “Mont” getting oral sex, but

he was unsure who was involved. Smith testified that he was inside the apartment for about fifteen

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to twenty minutes. He said that Young and “Mont” were having sex with the victim at the same

time, and they were “taking turns” having her perform oral sex on them. Smith testified that they

were in the living room, and the lights were off, but he was able to see what was happening because

there was a light on in the kitchen. He said that he went into the kitchen where Grant, the Defendant,

and “Rail” were sitting, and they talked for a short time before he left. He said that he thought he

saw the victim vomit in the sink, and she probably cleaned it up because “she made the mess.” He

testified that, as he was leaving, the victim came running naked out of the house. He said that the

Defendant told the victim to “kiss” Smith’s penis, but the victim never touched him. He testified

that the victim ran after him, and she wanted him to let her “kiss” his penis. Smith testified that the

victim was “shaking,” but he did not notice any unusual marks on her body. On cross-examination,

Smith testified that he did not have a good memory about what happened on that night.

Demetris (“Dee”) Grant testified that, in May of 2000, she was living with the Defendant and

her two children. She said that she was working in Lavergne, Tennessee, and she usually rode to

work with the Defendant’s grandmother. She said that the victim was supposed to take her to work

on Sunday, May 14, 2000, but the victim did not pick her up or call her. She said she called the

victim and asked her if she was coming to get her, and the victim said that she was on her way, but

she never arrived. Grant testified that the Defendant’s grandmother took her to work late, which

caused her to lose money. She said that the Defendant’s grandmother gave her a ride home from

work and took her to get groceries, while the Defendant washed their clothes at the victim’s

apartment. Grant testified that she went with the Defendant and her children, in the Defendant’s

grandmother’s truck, to the victim’s apartment to pick up the clothes on the night of May 14, 2000.

She said that her children were asleep in the truck, and the victim was pulling up to the apartment

and going inside when she arrived.

Grant testified that, when she saw the victim, she asked her why she did not come and pick

her up, and the victim “laugh[ed] about it” and thought it was funny. She said that she argued with

the victim, and she “picked up a knife off the table and [she] called [the victim] a bitch” and told the

victim that she would “kick [her] ass.” She testified that she then put the knife down and slapped,

kicked, and fought the victim. Grant testified that she was not sure how many times she hit the

victim, but, when she pushed the victim, the victim hit the refrigerator and fell. She said that she

stood there for a minute and kicked her and then said “now, you don’t think its funny any more . .

. .” She testified that the victim started to get back up, and the Defendant said “no, you know, since

she thinks everything is funny, I am going to show her funny.” Grant testified that the Defendant

told the victim to get undressed, and she did. She said that she lit a cigarette on the stove, and the

Defendant handed her a fork and told her to “warm it up,” and then he took the fork and touched

both of the victim’s breasts with the hot fork. She testified that the victim “squirmed,” “kind of

shook,” and screamed when the fork touched her skin. She said that she “could hear it kind of sizzle

because it was a hot fork.” Grant said that the victim then said to “please stop” because she did not

think it was funny anymore, and Grant did not say anything because she was “somewhat in shock.”

She testified that she heated the fork the first time, but the Defendant heated the fork the second

time. She said that the victim’s reaction to the second burn was similar to the first burn, and she

heard the “sizzle sound,” and the victim screamed.

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Grant testified that the victim was “standing up shaking,” and the Defendant told her to “get

on the floor.” Grant testified that the victim got onto the floor in a sitting position, and the

Defendant told the victim to lay on her back and “to bend her legs.” She said that the Defendant

“stuck the fork back over the fire,” and he took the fork and “stuck the fork inside of her,” and the

victim screamed. She testified that she tugged on the Defendant’s arm and told him to stop but the

Defendant said “no, she thinks it is funny and I will show her funny.” Grant testified that the

Defendant later threw the fork in the “backyard” where they were parked. She testified that the

Defendant took a broom or mop that had a black handle, and he put it inside the victim’s vagina

slowly, and it reminded her of sex. The victim was “squirming at that point.” She testified that the

Defendant took the broom out and showed it to her and there was “a secretion on [the mop] from

[the victim’s] vagina,” and the Defendant said “look at the color [of] it. She has a sexual transmitted

disease.” Grant testified that the Defendant again inserted the mop into the victim’s vagina, and this

time “he shoved it hard and it made her scream.” She testified that the Defendant then gave the mop

to her, and she was holding it while the Defendant poured bleach over the mop over the sink. She

said that she had been in a lot of fights in her life, and she started this fight, which she would not

have done had she known what would happen. Grant testified that she never burned the victim’s

breast with a hot fork, she never inserted the mop handle into the victim’s vagina, and she never

burned the victim’s genitals with the heated fork.

Grant testified that the Defendant told the victim to get up and get dressed. She said that the

Defendant talked about the victim paying Grant back for missing work, and the victim stated she

would pay whatever they wanted. She testified that the Defendant told the victim to write on paper

that Grant could keep the victim’s car until the victim paid her. She said that the Defendant wanted

his name on the paper also because he would be the one driving the car. She testified that the victim

said, both during and after the argument, that she was going to pay them. Grant said that she did not

remember the exact amount for the notes.

Grant testified that, after the victim wrote the notes, the Defendant said that he wished he

“knew where Rail and [his friends] w[ere]” so that the victim could perform oral sex on them. She

said that “Rail’s” given name is Robert Wilson, and he is the Defendant’s cousin. Grant testified

that she got in the truck, and the Defendant told her to stop and get gas. She said that it was the

Defendant’s idea to go to her apartment because the Defendant wanted the victim to give his friends

oral sex. She testified that she did not want any of this to happen, but she did not say anything

because she did not want the Defendant to do to her what he was doing to the victim. Grant testified

that, when she got into the truck, her children were still asleep, and she drove to the gas station. She

said that the Defendant drove the victim’s car, and the victim was in the passenger’s side of the car.

She testified that, as they reached the gas station, there was a police car, and the Defendant stopped

next to the store and told her to go and get gas. She said that, when she left the gas station, she did

not stop at the police station because her children were asleep, she did not know where the police

station was, and she was trying to do what the Defendant wanted.

Grant testified that, after they left the gas station, they went to her apartment, she parked the

truck, and the Defendant went up the street to where some men were standing. She testified that the

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Defendant said “[the victim] was going to give . . . some free [oral sex].” She said that she took her

children inside the house and into their room. Grant testified that she went downstairs, and the

Defendant met her on the stairs, gave her a kiss, and told her to go to the kitchen. She said that she

went to the kitchen with the Defendant and sat on his lap, and some other men walked into the

apartment. She testified that she, the Defendant, “Rail,” Chris, and “Little Mont” all smoked

marijuana together in the kitchen while the victim was in the living room. Grant testified that she

could hear guys laughing and talking, and a man named Fred “came in the kitchen and he said ‘man,

I am in there trying to get a nut and [Young] is in there making love to her.’”

Grant testified that she went into the living room, and she saw Fred and some other men on

the couch, Young on the love seat, and “Fred was having sex with [the victim] from behind.” She

said that Young was “waiting to get some more oral sex from [the victim] and sex.” She testified

that she saw, at a different time, the victim giving Young oral sex. Grant testified that she saw the

victim give “Kerry” and “Little Monty,” or Marcus, oral sex. She said that “Little Monty” was

getting ready to leave, and the Defendant asked him if he was “sure [he] got enough” and to “[g]o

get you some more head.” She testified that, as “Little Monty” was leaving, the Defendant told the

victim to “go and give the man some more head.” She said that the victim followed “Little Monty,”

and she asked him “you want me to suck your d***,” and he responded “no,” but the victim, who

was naked, followed him outside the door. Grant testified that “Little Monty” was a younger guy,

around fifteen or sixteen, and she did not know his real name. Grant testified that the victim vomited

in her kitchen and on Grant. She said that the Defendant told the victim to clean it up, and he told

Grant to go upstairs and change.

Grant testified that she asked the Defendant to stop, and he said no “because [the victim]

thought it was funny.” She said that she did not want these things going on in her house, with her

children upstairs. She testified that the Defendant told the victim to do some sit-ups, and, after the

victim stopped doing sit-ups, “she went back to giving oral sex.” She said that she asked the

Defendant if the victim could get dressed, and “he finally let her get dressed.” She testified that the

Defendant was going to take the victim home, but “Kerry” asked if she needed a ride, and the

Defendant told “Kerry” to give her a ride home. She said that, as far as she knew, the victim left

with “Kerry,” and she did not know what happened to the victim after that.

Grant testified that, after the victim left her apartment, the other men also left. She said that

she was talking with the Defendant, and she told him that “this isn’t right,” and he responded “well,

yeah, come on, you’re right.” She testified that she and the Defendant then left in the victim’s car,

dropped her kids off, and then just rode around, stopped for food, and then went back to her

apartment. She said that it was getting light outside when they returned to her apartment, and they

got out of the victim’s car and into the Defendant’s mother’s truck, and rode around some more.

Grant testified that she did not try to contact the police after the victim left because she was afraid

of the Defendant. Grant testified that she was charged with these crimes, and she pled guilty to

kidnapping. She agreed that a condition for her ten-year sentence was that she tell the truth, which

she had done.

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On cross-examination, Grant testified that she did not tell the police what happened until she

gave a statement the week before trial. She said that she has been incarcerated since she was

arrested, and the Defendant could not get to her in jail. She testified that, anytime during the last

nine months, she could have contacted the police and told them that she was innocent, and the

Defendant was guilty, but her attorney told her not to speak with anyone. She admitted that, had her

case gone to trial, she would have been tried on the same charges as the Defendant: four counts of

aggravated rape; two counts of especially aggravated kidnapping; one count of aggravated assault;

and one count of extortion. Grant testified that her lawyer told her that “the worst case scenario”

would be one hundred sixty years in prison, and her decision to plead guilty was based on her

attorney’s advice. She said that she and the Defendant had been dating a couple of months at the

time of these events. She testified that the Defendant told her that he had previously had sex with

the victim. She said that she was angry with the victim for lying to her about not picking her up for

work on May 13, 2000.

Christy Clinton testified that, on May 14, 2000, she lived next door to the victim. She said

that, on that evening, she came home, and, as she was got out of her car, she saw the victim pull up

in her car hurriedly. She said that she saw the victim “jump out” of her vehicle and run into the

house, and the Defendant and his girlfriend, Grant, arrived in a truck. She testified that Grant exited

the Defendant’s vehicle, and she appeared upset “about a ride and . . . [the Defendant and the victim]

having sex before.” Clinton testified that Grant began to argue with the victim outside of the

victim’s apartment, and the argument continued as they walked into the apartment. She said that,

as the victim and Grant entered the apartment, she heard “[s]creaming and begging” from inside the

victim’s apartment. She stated that the victim was “screaming bloody murder,” and she was positive

that this noise came from the victim’s apartment. Clinton testified that, during this argument, the

Defendant was outside in the truck. She said that the Defendant then went into the apartment where

the victim and Grant were arguing. She testified that, after the Defendant went into the apartment,

she did not hear screaming but, rather, “[m]ore like moaning.”

On cross-examination, Clinton testified that she called the police when she heard the

screaming, and she called the police again when there was no noise. She said that she did not know

if there was anyone in the apartment the first time she called the police. Conversely, she testified

that she never called the police when she heard the screams from the apartment. She clarified that

she made the first call to the police as the people in the victim’s apartment were leaving. Clinton

testified that she refused to give her name to the police, and she told the police that she “did not want

to be involved.” She testified that she was upset when the police discovered her name and came to

interview her because she did not want anyone to think she was a “snitch.”

Based upon this evidence, the jury found the Defendant guilty of two counts of facilitation

to commit aggravated rape, aggravated assault, extortion, and especially aggravated kidnapping. The

trial court sentenced the Defendant, as a Range I standard offender, at thirty percent, as follows:

Count 1, facilitation to commit aggravated rape, a Class B felony, ten years

Count 2, facilitation to commit aggravated rape, a Class B felony, ten years

-10-

Count 4, aggravated assault, a Class C felony, six years

Count 5, extortion, a Class D felony, four years

Additionally, in Count 6, especially aggravated kidnapping, a class A felony, the trial court sentenced

the Defendant to twenty-two years and six months, as a violent offender. The trial court ordered the

sentences for facilitation to commit aggravated rape, aggravated assault, and extortion to run

concurrently with each other, but consecutively to the especially aggravated kidnapping conviction,

for an effective sentence of thirty-two years and six months.

II. Analysis

On appeal, the Defendant contends that: (1) the trial court erred when it failed to instruct the

jury on accomplice testimony; (2) he was denied a unanimous jury verdict; (3) the trial court erred

by failing to recuse itself; (4) the evidence is insufficient to support his convictions; (5) he was

denied his right to an impartial jury because certain jurors considered evidence not admitted at trial;

(6) the trial court erred by failing to recuse the Assistant District Attorney General at trial; (7) he was

denied a fair trial because he was required to wear leg-shackles during the trial; (8) he was denied

a fair trial due to the racial composition of the jury; and (9) the trial court erred by enhancing the

Defendant’s sentences and ordering consecutive sentencing.

A. Accomplice Jury Instruction

The Defendant asserts that the trial court committed reversible error when it failed to instruct

the jury on the law regarding accomplice testimony. A criminal defendant cannot be convicted

solely on the uncorroborated testimony of an accomplice. State v. Bigbee, 885 S.W.2d 797, 803

(Tenn. 1994). An accomplice is a person who knowingly, voluntarily and with a common intent

unites with the principal offender in the commission of a crime. State v. Allen, 976 S.W.2d 661, 666

(Tenn. Crim. App. 1997). This Court has stated:

The question of who determines whether a person is an accomplice depends upon the

facts of each case. When the facts of a witness’ participation in a crime are clear and

undisputed it is a question of law for the court to decide. When such facts are in

dispute or susceptible of an inference that a witness may or may not be an

accomplice, it then becomes a question of fact for the jury to decide.

State v. Lawson, 794 S.W.2d 363, 369 (Tenn. Crim. App. 1990); Bethany v. State, 565 S.W.2d 900,

903 (Tenn. Crim. App. 1978). Whether the testimony of an accomplice has been sufficiently

corroborated is a question for the jury. State v. Heflin, 15 S.W.3d 519, 524 (Tenn. Crim. App.

1999). However, corroborating evidence need not be sufficient in and of itself to support a

conviction, but it must fairly connect the defendant with the commission of the crime. State v.

Gaylor, 862 S.W.2d 546, 552 (Tenn. Crim. App. 1992). In the absence of a special request, the trial

court does not err by failing to instruct the jury about accomplice testimony even if the circumstances

of the case warrant such an instruction. State v. Anderson, 985 S.W.2d 9, 17 (Tenn. Crim. App.

-11-

1997); see also State v. Roy Chisenhall, No. M2003-00956-CCA-R3-CD, 2004 WL 1217118, at *9-

10 (Tenn. Crim. App., at Nashville, June 3, 2004), no perm app. filed.

At the motion for new trial hearing, the court found, “The evidence of [the Defendant’s] guilt

as to each count for which he was convicted, was compelling evidence and the omission of the

accomplice instruction even if erroneous was . . . harmless.” We conclude that the trial court did not

err by failing to instruct the jury on accomplice testimony. First, we note that the Defendant was not

convicted solely on accomplice testimony, and there were multiple other witnesses to the

Defendant’s actions, including the victim, who also testified. The jury accredited and based the

Defendant’s conviction, at least in part, upon, the victim’s testimony. Grant, the accomplice,

corroborated much of the victim’s testimony, and she provided more detail about some of the crimes.

Furthermore, the Defendant failed to request an accomplice testimony instruction. Under these

circumstances, as stated above, although an instruction on accomplice testimony would certainly

have been warranted considering the testimony of Grant, we conclude that any error by the trial court

with regard to this issue is harmless. This issue is without merit.

B. Unanimous Verdict

The Defendant contends that the jury did not unanimously convict him for two reasons. First,

the trial court did not ensure a unanimous verdict because it did not properly poll the jurors on counts

one and two. Second, the State failed to elect facts upon which it was relying for the two counts of

rape. The State contends that the record shows that the jurors were polled for both counts. Further,

the State asserts that counts one and two did not require election.

1. Jury Poll

Tennessee Rule of Criminal Procedure 31(d) provides “[w]hen a verdict is returned and

before it is recorded the jury shall be polled at the request of any party or upon the court’s own

motion. If upon the poll, there is not unanimous concurrence the jury may be directed to retire for

further deliberations or may be discharged.” Tennessee appellate courts have concluded that “no

particular form of answer is essential on the polling of a jury, it being sufficient if the answer of the

juror . . . indicates with reasonable certainty that the verdict is his [or her] own.” See Dixon Stave

& Heading Co. v. Archer, 40 Tenn. App. 327, 291 S.W.2d 603, 608 (1956); see also State v.

Clayton, 131 S.W.3d 475, 479 (Tenn. Crim. App. 2003).

Initially, we note that, in the case under submission, the Defendant did not request that the

jury be polled. The trial court did, however, poll the jury in the following exchange:

THE COURT: All right. Ladies and Gentlemen, let me get an indication of your –

of your agreement. I’ll take these one at a time. As to count one, guilty of

facilitation of aggravated rape. Is this the verdict of each of you; if so raise your

hands.

(All jurors raise their hands.)

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THE COURT: The verdict is unanimous. Count two guilty of facilitation of

aggravated rape. Is this your verdict?

(Some jurors raise their hands and other jurors say: Yes.)

THE COURT: You either have to – you have to raise your hands. I’m getting an

indication for the record.

(All jurors raise their hands.)

THE COURT: Let the record reflect it is unanimous.

The trial court proceeded in the same manner to determine that the jury’s verdicts as to all the

additional counts were also unanimous. Clearly, based on the record, the jurors were polled to

determine that their decision was unanimous for each count. Therefore, this issue is without merit.

2. Election of Offenses

The Tennessee Supreme Court “has consistently held that the prosecution must elect the facts

upon which it is relying to establish the charged offense if evidence is introduced at trial indicating

that the defendant has committed multiple offenses against the victim.” State v. Johnson, 53 S.W.3d

628, 630 (Tenn. 2001) (citing State v. Kendrick, 38 S.W.3d 566, 568 (Tenn. 2001); State v. Brown,

992 S.W.2d 389, 391 (Tenn. 1999); State v. Walton, 958 S.W.2d 724, 727 (Tenn. 1997); Tidwell

v. State, 922 S.W.2d 497, 500 (Tenn. 1996); State v. Shelton, 851 S.W.2d 134, 137 (Tenn. 1993)).

The election requirement “safeguards the defendant’s state constitutional right to a unanimous jury

verdict by ensuring that jurors deliberate and render a verdict based on the same evidence.” Id. at

631 (citing Brown, 992 S.W.2d at 391); see Kendrick, 38 S.W.3d at 568. The Tennessee Supreme

Court explained that “‘[a] defendant’s right to a unanimous jury before conviction requires the trial

court to take precautions to ensure that the jury deliberates over the particular charged offense,

instead of creating a “patchwork verdict” based on different offenses in evidence.’” Kendrick, 38

S.W.3d at 568 (quoting Shelton, 851 S.W.2d at 137). Moreover, the election requirement serves

other interests as well: “it enables a defendant to prepare for a specific charge; it protects a defendant

against double jeopardy; it enables the trial court to review the weight of the evidence in its capacity

as thirteenth juror; and it enables the appellate court to review the legal sufficiency of the evidence.”

Id.

“The necessity of requiring the State to make an election of the particular offense it will rely

on for conviction . . . is . . . fundamental, immediately touching the constitutional rights of an

accused, and should not depend upon his demand therefor.” Burlison v. State, 501 S.W.2d 801, 804

(Tenn. 1973). Although the federal constitution’s requirement of unanimity among jurors has not

been imposed on the states through the Fourteenth Amendment, “there should be no question that

the unanimity of twelve jurors is required in criminal cases under our state constitution.” State v.

Brown, 823 S.W.2d 576, 583 (Tenn. Crim. App. 1991). The Tennessee Supreme Court held that

“where the indictment charges that sex crimes occurred over a span of time, evidence of unlawful

sexual contact between the defendant and the victim allegedly occurring during the time charged in

the indictment is admissible,” but, at the close of proof, the State must elect the facts upon which it

is relying for conviction. State v. Rickman, 876 S.W.2d 824, 828 (Tenn. 1994).

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The requirement of election and a jury unanimity instruction exists even though the defendant

has not requested them. Burlison, 501 S.W.2d at 804. Failure of the State to elect offenses when

the proof requires an election is considered an error of constitutional magnitude and will result in

reversal of the conviction, absent the error being harmless beyond a reasonable doubt. See State v.

Adams, 24 S.W.3d 289, 294 (Tenn. 2000); Shelton, 851 S.W.2d at 138-39.

In this case, the Defendant contends that counts one and two are separate allegations of

aggravated rape and the State failed to elect facts upon which it was relying to support these

convictions. The indictment, which the State read to the jury at the beginning of the trial, set forth

the charges as follows:

COUNT 1:

That on or about the 14th day of May, 2000, and in the State and County aforesaid,

RONNELL JASON DUPREE LEBERRY . . . unlawfully, feloniously,

intentionally and knowingly did sexually penetrate [the victim,] and at the time of

said sexual penetration, the said Defendant[] did cause the said victim to suffer

bodily injury, by inserting a mop handle in her vagina, in violation of TCA 39-13-502

and against the peace and dignity of the State of Tennessee . . . .

COUNT 2:

And the Grand Jurors aforesaid, upon their oath aforesaid, do further present and say

that on the date aforesaid, and in the State and County aforesaid, the said RONNELL

JASON DUPREE LEBERRY . . . unlawfully, feloniously, intentionally and

knowingly did sexually penetrate [the victim,] and at the time of said sexual

penetration, the said Defendant[] did cause the said victim to suffer bodily injury, to-

wit: by inserting a mop handle in her vagina, in violation of TCA 39-13-502 and

against the peace and dignity of the State of Tennessee . . . .

The trial court gave the following jury instruction regarding unanimity of verdicts:

MULTIPLE COUNTS: FINDING ON EACH REQUIRED

The crime charged in each count of the indictment is a separate and distinct

offense. You must decide each charge separately on the evidence and the law

applicable to it. The defendant may be found guilty or not guilty of any or all of the

offenses charged. Your finding as to each crime charged must be stated in your

verdict.

JURY: DELIBERATION

The verdict must represent the considered judgment of each juror. In order

to return a verdict, it is necessary that each juror agree thereto. Your verdict must be

unanimous . . . .

-14-

The Defendant contends that the State failed to elect facts upon which to establish separate

acts of aggravated rape by the Defendant. Further, the Defendant asserts that the testimony presented

at trial did not establish separate acts of aggravated rape. The State argues that no election issue

arose as to the two aggravated rape counts because, in both counts, the indictment specifically

charged sexual penetration by the insertion of a mop handle into the victim’s vagina. Further, the

State asserts that the evidence at trial clearly showed two separate acts of aggravated rape. After

thoroughly reviewing the record, we agree with the State that no election issue arose as to the two

aggravated rape counts.

A careful examination of the trial transcript shows that Grant testified about two separate and

distinct incidents of aggravated rape. Grant testified that the Defendant inserted a mop handle into

the victim’s vagina slowly and then removed the mop handle to show to Grant. Grant testified that

the Defendant penetrated the victim a second time with the mop handle and this time “he shoved it

hard and it made her scream.” Therefore, we conclude that no election issue arose regarding the two

counts for aggravated rape because Grant’s testimony about the two incidents corresponded exactly

with the charges of aggravated rape in the indictment, thereby ensuring unanimous verdicts on those

counts.2 Thus, we conclude that the State was not required to elect offenses for the two aggravated

rape counts, one and two, because the convictions in these counts were clearly based on the evidence

of the two incidents involving sexual penetration of the victim’s vagina with a mop handle. In our

view, there is no danger that the jury created a “patchwork” verdict based on different offenses in

evidence. This issue is without merit.

C. Recusal of Trial Judge

The Defendant next contends that the trial court erred when it refused to recuse itself upon

the Defendant’s motion. Specifically, the Defendant asserts that the trial judge witnessed an assault

committed by the Defendant against his previous counsel, which raised the question of the court’s

impartiality through the trial and at sentencing. The State contends that there is no evidence that the

trial judge witnessed an assault, and, further, there is no evidence that the trial judge was biased.

At the hearing on the motion for new trial, the court stated:

With respect to . . . the claim that the Court was biased and should not have

conducted the trial, there simply just isn’t any evidence to that. It is [the

Defendant]’s contention, he surmises, he speculates that if the Court witnessed him

assaulting [the Assistant Public Defender] in a case unrelated to the case that went

to trial, that just because the Court saw that that somehow that just means that the

Court is bias[ed] and should not preside in the trial in which he was convicted of the

2

The jury convicted the Defendant of the lesser-included offense of facilitation to commit aggravated rape

in each of the two counts alleging aggravated rape.

-15-

conviction that he is now complaining about. That is just what he thinks must be in

the Court’s mind, but there is absolutely nothing that the Court said or did, there is

no evidence presented here, there is no legal argument that the court has heard that

convinces the Court that it should not have presided or in the way that it presided

somehow that [the Defendant] was denied due process and equal protection, there

just simply - - I haven’t heard it.

A trial judge should recuse himself or herself whenever the judge has any doubt as to his or

her ability to preside impartially or whenever his or her impartiality can reasonably be questioned.

State v. Pannell, 71 S.W.3d 720, 725 (Tenn. Crim. App. 2001). This is an objective standard. Alley

v. State, 882 S.W.2d 810, 820 (Tenn. Crim. App. 1994). “Thus, while a trial judge should grant a

recusal whenever the judge has any doubts about his or her ability to preside impartially, recusal is

also warranted when a person of ordinary prudence in the judge’s position, knowing all of the facts

known to the judge, would find a reasonable basis for questioning the judge’s impartiality.” Id. The

trial judge retains discretion over his or her recusal. State v. Smith, 906 S.W.2d 6, 11 (Tenn. Crim.

App. 1995). Unless the evidence in the record indicates that the failure to recuse was an abuse of

discretion, this court will not interfere with that decision. State v. Hines, 919 S.W.2d 573, 578

(Tenn. 1995).

The record in this case contains “nothing more than circumstances from which it might be

inferred that the [t]rial [j]udge might have some reason to have . . . [an] unfavorable opinion” of the

Defendant. Wiseman v. Spaulding, 573 S.W.2d 490, 493 (Tenn. Ct. App. 1978). The facts alleged

are insufficient to warrant a finding by this Court that the trial judge committed reversible error by

refusing to recuse himself. There is no evidence in the record to support this claim. Thus, we cannot

conclude that the trial judge abused his discretion by denying the Defendant’s motion to recuse the

trial judge. This issue is without merit.

D. Sufficiency of the Evidence

The Defendant contends that the evidence was insufficient to support his convictions for

facilitation of aggravated rape, aggravated assault, extortion, and especially aggravated kidnapping.

When an accused challenges the sufficiency of the evidence, an appellate court’s standard of review

is whether, after considering the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Tenn.

R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324 (1979); State v. Carter, 121 S.W.3d 579,

588 (Tenn. 2003); State v. Smith, 24 S.W.3d 274, 278 (Tenn. 2000). This rule applies to findings

of guilt based upon direct evidence, circumstantial evidence, or a combination of both direct and

circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).

In determining the sufficiency of the evidence, this Court should not re-weigh or re-evaluate

the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor may this

Court substitute its inferences for those drawn by the trier of fact from the evidence. State v. Buggs,

995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956). Questions

-16-

concerning the credibility of the witnesses, the weight and value of the evidence, as well as all

factual issues raised by the evidence are resolved by the trier of fact. Liakas, 286 S.W.2d at 859.

This Court must afford the State of Tennessee the strongest legitimate view of the evidence

contained in the record, as well as all reasonable inferences which may be drawn from the evidence.

State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Because a verdict of guilt against a defendant

removes the presumption of innocence and raises a presumption of guilt, the convicted criminal

defendant bears the burden of showing that the evidence was legally insufficient to sustain a guilty

verdict. Id.; see State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).

1. Facilitation to Commit Aggravated Rape

The Defendant contends that the evidence was insufficient to support his conviction for

facilitation to commit aggravated rape. The aggravated rape statute provides, in pertinent part, as

follows, “Aggravated rape is unlawful sexual penetration of a victim by the defendant or the

defendant by a victim accompanied by any of the following circumstances: . . . (2) The defendant

causes bodily injury to the victim . . . .” Tenn. Code Ann. § 39-13-502 (a)(2) (1997). Tennessee

Code Annotated section 39-11-403(a) defines “facilitation” as follows:

A person is criminally responsible for the facilitation of a felony if, knowing that

another intends to commit a specific felony, but without the intent required for

criminal responsibility under § 39-11-402(2), the person knowingly furnishes

substantial assistance in the commission of the felony.

An instruction on facilitation addresses the Defendant’s role in the crime as a facilitator and

not as a party to the offense. See Locke, 90 S.W.3d at 672-73. In order for reasonable minds to find

the Defendant guilty of facilitation of aggravated rape, the jury would have to conclude that the

Defendant, although neither acting with the intent to promote aggravated rape nor benefitting in the

results, provided substantial assistance knowing that Demetris Grant intended to commit aggravated

rape. See Tenn. Code Ann. § 39-11-403(a).

After considering the evidence in the light most favorable to the State, we conclude that

sufficient evidence exists in the record to support the Defendant’s convictions for facilitation of

aggravated rape. At trial, the victim testified that either the Defendant or Grant inserted a mop

handle into her vagina. Grant testified that the Defendant inserted the mop handle into the victim’s

vagina twice. The record contains expert medical testimony that overwhelmingly supports the

State’s assertion that the victim suffered bodily injury from the incidents involving the mop handle.

Further, the evidence presented at trial showed that Grant was charged with these crimes and

received a ten-year sentence in exchange for her pleading guilty to kidnapping and testifying at the

Defendant’s trial. Further, Grant admitted that she started a fight with the victim because the victim

failed to give Grant a ride to work, and the fight escalated into the criminal episode that became the

basis for this trial. A reasonable jury could conclude that Grant was the principal party of the

offense, and that the Defendant was the facilitator of the aggravated rape and provided substantial

assistance in the commission of the offense. We conclude, therefore, that the evidence was sufficient

-17-

to support the Defendant’s convictions for facilitation of aggravated rape.

2. Aggravated Assault

The Defendant next contends that the evidence is insufficient to sustain his conviction for

aggravated assault. A person commits aggravated assault who ‘“intentionally . . . knowingly . . . or

recklessly commits an assault” and either “causes serious bodily injury” or “uses or displays a deadly

weapon.” Tenn. Code Ann. § 39-13-102 (1997). A person commits assault who “[i]ntentionally,

knowingly or recklessly causes bodily injury to another. . . .” Tenn. Code Ann. § 39-13-101(a)(1)

(1997). “Serious bodily injury” means bodily injury which involves: a substantial risk of death;

protracted unconsciousness; extreme physical pain; protracted or obvious disfigurement; or

protracted loss or substantial impairment of a function of a bodily member, organ or mental faculty.

Tenn. Code Ann. § 39-11-106(a)(34) (1997).

Viewing the evidence in the light most favorable to the State, we conclude that a rational trier

of fact could have found the essential elements of aggravated assault beyond a reasonable doubt. At

trial, the victim testified that both the Defendant and Grant took turns heating a fork on the stove and

burning her breasts and vagina while she was on the floor. Grant testified that the Defendant ordered

the victim to get undressed and the victim did. Grant said that while she lit a cigarette on the stove,

the Defendant handed her a fork and told Grant to place it on the stove. Grant testified that the

Defendant then pressed the heated fork to the victim’s breast. Grant’s testimony was corroborated

by the testimony of the victim and the medical evidence that was presented. Dr. Doty testified that

the injuries to the victim’s breasts would be extremely painful. We conclude, therefore, that the

evidence was sufficient to support the Defendant’s conviction for aggravated assault and this issue

is without merit.

3. Extortion

The Defendant contends that the evidence is insufficient to support his conviction for

extortion. A person commits extortion who “uses coercion upon another person with the intent to:

(1) Obtain property . . . .” Tenn. Code Ann. § 39-14-112 (1997).

In the case under submission, the victim testified that the Defendant and Grant forced her,

by threatening her life, to write a note to the Defendant and Grant that she owed them $250.00. She

said that she was forced to agree that, until she could get them the money, her car would be used as

collateral. Grant testified that the Defendant said that the victim should pay Grant back because the

victim was the reason Grant missed work. She said that the Defendant told the victim to write down

that Grant could keep the victim’s car until the victim paid her. She also testified that the Defendant

wanted his name on the paper because he would be driving the car. We conclude, therefore, that the

evidence was sufficient to support the Defendant’s conviction for extortion.

4. Especially Aggravated Kidnapping

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The Defendant contends that the evidence is insufficient to sustain his conviction for

especially aggravated kidnapping. Especially aggravated kidnapping is defined as “knowingly

remov[ing] or confin[ing] another unlawfully so as to interfere substantially with the other’s liberty

. . . where the victim suffers serious bodily injury.” Tenn. Code Ann. § 39-13-302, -305 (1997).

After considering the evidence in the light most favorable to the State, we conclude that

sufficient evidence exists in the record to support the Defendant’s conviction for especially

aggravated kidnapping. The victim testified that the Defendant and Grant forcibly confined her to

her home, and she suffered serious bodily injury as a result, that being burns to her breasts and

vagina. Dr. Doty and the victim testified that the victim’s burns resulted in extreme physical pain

for the victim, which is a form of “serious bodily injury.” Tenn. Code Ann. § 39-11-106(a)(34)

(1997). Further, the victim testified that the Defendant and Grant placed her in fear for her life and

then the Defendant drove the victim, in the victim’s own vehicle, to Grant’s apartment where the

victim was forced to perform various sexual acts. We conclude there is sufficient evidence to sustain

the Defendant’s conviction for especially aggravated kidnapping and, therefore, this issue is without

merit.

E. Impartial Jury

The Defendant contends that jurors considered evidence not submitted at trial, and, therefore,

he was denied his right to trial by an impartial jury. The State asserts that the trial court did not

abuse its discretion by determining that the jury did not act improperly. At the hearing on the motion

for new trial, the Defendant testified that he was seated on the other side of the jury room wall and

heard conversations from the jury room. The Defendant testified as follows:

They were talking. I don’t know if they were a juror or not, whoever was in that

room right there, which is the jury room, you could hear them because the bench

sits right against the wall right there.

....

When I was sitting right there, there was a male and female, they got to talking and

they was deliberating, they got loud, she said - - well, I know, my Mama was raped -

- and I said . . . who was that? Then somebody made a comment like he said well my

hand was burned. So I know how it feels to be burned. So I said all right, and I said

I know who that is? That’s a . . . juror.

At the hearing on the motion for new trial, the trial court found there was no extraneous prejudicial

information or outside influence that was improperly brought before the jury. The trial court also

stated:

[E]ven if you look at what [the Defendant] said [the jurors] said, and even if you give

- - assume that [the Defendant] is completely truthful about what he says he heard,

-19-

what he says he heard doesn’t cause any concern about the validity of the verdict.

There just simply isn’t any evidence here today that would support setting aside a

conviction on a claim that the jury did not deliberate properly and legally.

Article I, § 9 of the Tennessee Constitution provides that an accused has the right to be tried

by “an impartial jury.” The burden is on the defendant to establish jury misconduct. State v.

Blackwell, 664 S.W.2d 686 (Tenn. 1984). While the defendant is entitled to a verdict untainted by

extraneous, prejudicial information, there is also the importance of “maintaining inviolate the nature

of jury deliberations.” State v. Robert Emmet Dunlap, Jr., No. W1999-00027-CCA-R3-CD, 2000

WL 135754, at *2 (Tenn. Crim. App., at Jackson, Feb. 2, 2000), no perm. app. filed; see also

Maldonado v. Missouri Pac. Ry., 798 F.2d 764, 770 (5th Cir. 1986). The trial court has the

discretion to determine whether a jury has acted impartially. State v. Sammons, 656 S.W.2d 862,

869 (Tenn. Crim. App. 1982). Findings of fact made by the trial court regarding jury impartiality

may only be overturned for “manifest error.” State v. Cazes, 875 S.W.2d 253, 262 (1994); see also

Dunlap, 2000 WL 135754, at *2. In the present case, the trial court found that no evidence of jury

misconduct or jury impartiality existed. There is no evidence in the record to support the

Defendant’s contentions. We agree with the trial court’s decision and conclude that the trial court

did not abuse its discretion in determining that the jury did not act improperly. This issue is without

merit.

F. Recusal of Assistant District Attorney General

The Defendant next contends that the trial court erred when it denied his motion to recuse

the Assistant District Attorney (“ADA”) and the ADA should have recused himself because the

ADA witnessed the Defendant assault his lawyer during an earlier part of the proceedings. In

determining whether to disqualify a prosecutor in a criminal case, the trial court must determine

whether there is an actual conflict of interest, which includes any circumstances in which an attorney

cannot exercise his or her independent professional judgment free of “compromising interests and

loyalties.” See Tenn. R. Sup.Ct. 8, EC 5-1. If there is no actual conflict of interest, the court must

nonetheless consider whether conduct has created an appearance of impropriety. See Tenn. R.

Sup.Ct. 8, EC 9-1, 9-6. If disqualification is required under either theory, the trial court must also

determine whether the conflict of interest or appearance of impropriety requires disqualification of

the entire District Attorney General’s Office. See State v. Tate, 925 S.W.2d 548, 550 (Tenn. Crim.

App. 1995). The determination of whether to disqualify the office of the District Attorney General

in a criminal case rests within the discretion of the trial court. Appellate review of such a ruling is

limited to whether the trial court has abused its discretion. See id. at 50; State v. Culbreath, 30

S.W.3d 309, 312 (Tenn. 2000).

After thoroughly reviewing the record, we conclude that this issue is waived. The Defendant

carries the burden of ensuring that the record on appeal conveys a fair, accurate, and complete

account of what has transpired with respect to those issues that are the bases of appeal. Tenn. R.

App. P. 24(b); see also Thompson v. State, 958 S.W.2d 156, 172 (Tenn. Crim. App. 1997). The

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failure to do so results in a waiver of such issues. Id. Furthermore, the Defendant fails to make any

citations in his brief to the record to support his contentions. See Tenn. Ct. Crim. App. R. 10(b)

(stating “Issues which are not supported by argument, citation to authorities, or appropriate

references to the record will be treated as waived in this court.”). The Defendant did not supplement

the record on appeal with the motion to recuse the Assistant District Attorney. The record supplied

contains only the motion to recuse for the trial judge. Therefore, the Defendant has waived our

review of this issue.

Further, even if the Defendant had not waived this issue, we could not grant him the relief

he seeks. At the hearing on the motion for new trial, the trial court stated, “With respect to the other

grounds, the claim that there was a conflict of interest with the District Attorney’s office . . . there

simply just isn’t any evidence to that.” There is no evidence presented before us that shows that the

trial court abused its discretion with regard to this issue.

G. Defendant in Shackles During Trial

The Defendant contends that he was denied his right to a fair trial because he was required

to wear shackles during trial. Specifically, he asserts that because he was restrained he was

discouraged from testifying at his trial. The record contains no evidence about whether the

Defendant was in shackles at trial. At the hearing on the motion for new trial, the trial court stated:

[The Defendant] complains about wearing shackles. Again, whether he - - I don’t

specifically remember whether he had shackles on but I will just assume that he did.

The fact that he had on shackles does not in and of itself, by itself, mean that he

didn’t get a fair trial. There has been nothing presented here today that would

indicate that he was denied equal protection, due process, or that he was not given

a fair trial because he had shackles on.

The Defendant bears the responsibility of presenting to this Court an adequate record from

the trial court as to issues raised by the Defendant on appeal. Tenn. R. App. P. 24(b); State v. Bunch,

646 S.W.2d 158, 160 (Tenn. 1983). In the absence of an adequate record, this Court must presume

that the trial court’s ruling was supported by the evidence. State v. Roberts, 755 S.W.2d 833, 836

(Tenn. Crim. App. 1988). There is no evidence in the record concerning whether or not the

Defendant was in shackles at his trial. Therefore, we must presume the trial court’s determination

was correct. Further, the Defendant fails to make any citations in his brief to the record to support

his contentions. See Tenn. Ct. Crim. App. R. 10(b) (stating “Issues which are not supported by

argument, citation to authorities, or appropriate references to the record will be treated as waived in

this court.”). Accordingly, this issue is waived.

Nevertheless, even if we presume that the Defendant was in shackles during his trial and he

did not waive this issue, there is no evidence that the trial court abused its discretion by restraining

the Defendant with shackles. The decision of whether a defendant should be shackled during trial

is left to the sound discretion of the trial court and will not be disturbed on appeal absent an abuse

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of that discretion. State v. Perry Thompson, No. 03C01-9606-CC-00228, 1997 WL 135408 (Tenn.

Crim. App., at Knoxville, Mar. 25, 1997), no perm. app. filed. This issue is without merit.

H. Racial Composition of the Jury

The Defendant contends that he was not tried by a jury of his peers because he is African-

American and all of the jurors were Caucasian. We find nothing in the record that indicates the

racial composition of the jury. Again, it is the Defendant’s responsibility to present this Court with

an adequate record from the trial court as to issues raised by the Defendant on appeal. Tenn. R. App.

P. 24(b); State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983). “When a party seeks appellate review

there is a duty to prepare a record which conveys a fair, accurate and complete account of what

transpired with respect to the issues forming the basis of the appeal.” State v. Ballard, 855 S.W.2d

557, 560 (Tenn. 1993); see also James David Alder v. State, No. M2003-02767-CCA-R3-PC, 2004

WL 2984845, at * 6 (Tenn. Crim. App., at Nashville, Dec. 16, 2004), no perm. app. filed. In the

absence of an adequate record, this Court must presume that the trial court’s ruling was supported

by the evidence. State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988). Further, the

Defendant has failed to cite authority in support of his argument. See Tenn. R. App. P. 27 (a)(7).

Accordingly, this issue is waived.

I. Sentencing

Finally, the Defendant contends that the trial court erred when it sentenced him. When a

defendant challenges the length or manner of service of a sentence, it is the duty of this Court to

conduct a de novo review of the record with a presumption that “the determinations made by the

court from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d) (2003). This

presumption is “‘conditioned upon the affirmative showing in the record that the trial court

considered the sentencing principles and all relevant facts and circumstances.’” State v. Ross, 49

S.W.3d 833, 847 (Tenn. 2001) (quoting State v. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999)); State

v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The presumption does not apply to the legal

conclusions reached by the trial court in sentencing a defendant or to the determinations made by the

trial court which are predicated upon uncontroverted facts. State v. Dean, 76 S.W.3d 352, 377

(Tenn. Crim. App. 2001); State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v.

Smith 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994). In conducting a de novo review of a sentence,

we must consider: (a) any evidence received at the trial and/or sentencing hearing; (b) the

presentence report; (c) the principles of sentencing; (d) the arguments of counsel relative to

sentencing alternatives; (e) the nature and characteristics of the offense; (f) any mitigating or

statutory enhancement factors; (g) any statements made by the defendant on his or her own behalf;

and (h) the defendant’s potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann.

§ 40-35-210 (2003); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001). The party

challenging a sentence imposed by the trial court has the burden of establishing that the sentence is

erroneous. Tenn. Code Ann. § 40-35-401(d), Sentencing Comm’n Cmts. Due to the trial court’s

sentencing errors, as set forth in this opinion, we must apply a de novo review without the

presumption of correctness in this case.

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1. Blakely v. Washington

The United States Supreme Court’s recent opinion in Blakely v. Washington, 542 U.S. __,

124 S. Ct. 2531 (2004), calls into question the continuing validity of our current sentencing scheme.

In that case, the Court, applying the rule in Apprendi v. New Jersey, 566 U.S. 466, 490 (2000),

struck down a provision of the Washington sentencing guidelines that permitted a trial judge to

impose an “exceptional sentence” upon the finding of certain statutorily enumerated enhancement

factors. 124 S. Ct. at 2537. The Court observed that “the ‘statutory maximum’ for Apprendi

purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in

the jury verdict or admitted by the defendant.” 124 S. Ct. at 2537. Finally, the Court concluded that

“every defendant has a right to insist that the prosecutor prove to a jury [beyond a reasonable doubt]

all facts legally essential to the punishment.” Id. at 2539.

The Defendant asserts that his sentence is excessive in light of the United States Supreme

Court decision in Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004). The State counters

that the Defendant has waived this argument by not raising it in his original brief on appeal to this

Court.

First, we note that the Defendant has not waived this issue. In State v. Chester Wayne

Walters, we held that, because Blakely announced a new rule, any defendant whose case was still

on direct appeal could raise this issue. State v. Chester Wayne Walters, No. M2003-03019-CCA-

R3-CD, 2004 WL 2726034, at *19 (Tenn. Crim. App., at Nashville, Nov. 30, 2004). We explained

that, although Blakely was the Supreme Court’s explanation of its prior decision in Apprendi v. New

Jersey, 566 U.S. 466, 490 (2000), the Tennessee Supreme Court had previously announced that the

rule in Apprendi did not affect our State’s sentencing scheme. As a result, the mandate of Blakely

created a new rule in Tennessee. Furthermore, in Walters, this Court held that Blakely could be

raised in all cases on direct appeal, because a violation of this mandate was plain error arising from

the deprivation of the Constitutional right to a jury trial. See also State v. Charles Benson, No.

M2003-02127-CCA-R3-CD, 2004 WL 2266801, at *7–10 (Tenn. Crim. App., at Nashville, Oct. 8,

2004).

Thus, the question becomes whether the sentence imposed by the trial court violates the

United States Supreme Court mandate in Blakely. At the Defendant’s sentencing hearing, the trial

court applied multiple enhancement factors to the Defendant’s sentence, including the following: (3)

that the defendant was a leader in the commission of an offense involving two or more criminal

actors; (6) that the defendant treated or allowed a victim to be treated with exceptional cruelty during

the commission of the offense; (7) that the personal injuries inflicted upon or the amount of damage

to property sustained by or taken from the victim was particularly great; and (17) that the crime was

committed under circumstances under which the potential for bodily injury to a victim was great.

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See Tenn. Code Ann. § 40-35-4-114 (3), (6), (7), (17) ( 2003).3 The trial court then sentenced the

Defendant as follows: Count 1, facilitation to commit aggravated rape, a Class B felony, ten years;

Count 2, facilitation to commit aggravated rape, a Class B felony, ten years; Count 4, aggravated

assault, a Class C felony, six years; Count 5, extortion, a Class D felony, four years; Count 6,

especially aggravated kidnapping, a Class A felony, twenty-two years and six months. The trial court

ordered that the Defendant must serve the sentence for the especially aggravated kidnapping

conviction, as a violent offender pursuant to Tennessee Code Annotated section 40-35-120 (2003),

which requires that the sentence be served at 100%. The trial court ordered that Count 1, Count 2,

Count 4, and Count 5 run concurrently to one another but consecutively to Count 6. Thus, the

Defendant was sentenced to an effective sentence of thirty-two years and six months.

The sentence range for Class A felony, Range I offenders is fifteen to twenty-five years.

Tenn. Code Ann. § 40-35-112(a)(1) (2003). In calculating the sentence for a Class A felony, the

presumptive sentence is the midpoint of the range, in the absence of enhancement and mitigating

factors. Tenn. Code Ann. § 40-35-210 (c) (2003). If there are enhancement factors but no mitigating

factors, the sentence must be set at or above the midpoint of the range. Tenn. Code Ann. § 40-35-

210(d). If there are mitigating factors but no enhancement factors, the trial court must set a sentence

at or below the midpoint of the range. Tenn. Code Ann. § 40-35-210(d). If there are both mitigating

and enhancement factors, the trial court must adjust the sentence based on the weight it assigns to

each factor. Tenn. Code Ann. § 40-35-210(d).

In calculating the sentence for a Class B, C, or D felony conviction, the presumptive sentence

is the statutory minimum for a Range I offender if there are no enhancement or mitigating factors.

See Tenn. Code Ann. § 40-35-210 (c). If there are enhancement but no mitigating factors, the trial

court may set the sentence above the minimum, but still within the range. Tenn. Code Ann. § 40-35-

210(d). A sentence involving both enhancement and mitigating factors requires an assignment of

relative weight for the enhancement factors as a means of increasing the sentence. Tenn. Code

Ann.§ 40-35-210(e). The sentence must then be reduced within the range by any weight assigned

to the mitigating factors present. Tenn. Code Ann. § 40-35-210(e). The sentence range for a Range

I offender for a class B felony is not less than eight years or more than twelve years, for a class C

felony is not less than three years or more than six years, and for a class D felony is not less than two

years or more than four years. Tenn. Code Ann. § 40-35-112 (2003).

None of the enhancement factors used by the trial court to enhance the Defendant’s sentence

were submitted to a jury or admitted by the Defendant. Therefore, the rule in Blakely precludes

application of any of these factors, and the Defendant’s sentence must be modified, unless the error

was harmless beyond a reasonable doubt. See Walters, 2004 WL 2726034, at *22.

In Walters, this Court held that Blakely violations are subject to a Constitutional harmless

3

Beginning July 4, 2002, “the 2002 amendment [to Tennessee Code Annotated section 40-35-114] added

present [enhancement factor] (1) and redesignated former (1) through (22) as present (2) through (23), respectively.”

Tenn. Code Ann. § 40-35-114, Amendments (Supp. 2002).

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error analysis. Id. at *24. “While it is true that Blakely concerns the inviolate right to a jury trial,

the cornerstone upon which our criminal justice system was constructed, we cannot say that a jury’s

failure to determine an enhancement factor ‘necessarily render[s] a criminal trial fundamentally

unfair or an unreliable vehicle for determining guilt or innocence.’” Id. (quoting Needer v. United

States, 527 U.S. 1, 9 (1999)). Thus, before we modify the Defendant’s sentence, we will “review

the Blakely errors to determine whether they were harmless beyond a reasonable doubt.” Id.; see

Chapman v. California, 386 U.S. 18, 24 (1967).

We conclude that none of the enhancement factors used by the trial court to enhance the

Defendant’s sentence were submitted to a jury or admitted by the Defendant. Therefore, the rule in

Blakely precludes application of any of these factors, and the application of each of these factors was

error. Furthermore, none of these errors were harmless beyond a reasonable doubt. The Defendant’s

sentences must be modified under Blakely as follows: Count 1, facilitation to commit aggravated

rape, a Class B felony, is modified from ten years to eight years; Count 2, facilitation to commit

aggravated rape, a Class B felony, is modified from ten years to eight years; Count 4, aggravated

assault, a Class C felony, is modified from six years to three years; Count 5, extortion, a Class D

felony, is modified from four years to two years; Count 6, especially aggravated kidnapping, a class

A felony, is modified from twenty-two years and six months to twenty years. Therefore, we hold

that the Defendant must serve an effective sentence of twenty-eight years, with the twenty year

sentence for especially aggravated kidnapping to be served as a violent offender at 100%.

2. Consecutive Sentencing

The Defendant argues that the trial court erred by ordering his sentences to run consecutively.

When sentencing the Defendant, the trial court stated the following:

In conjunction with weighing the enhancement factors the [c]ourt considers 40-35-

115, which has to do with whether sentences should be served concurrently or

consecutively. Under subsection four the [c]ourt is authorized to order sentences to

be served consecutive.

....

Over a period of hours the victim was ordered to remove her clothes, to lie on a

kitchen floor. She was vaginally penetrated on two separate occasions with a mop

handle. A red-hot dinner fork was placed to each breast. She was branded in that

fashion. It was reheated. It was then placed in the vaginal area where it caused a

burn so severe that swelling took place to the point that the victim was unable to

[urinate]. The labia was penetrated, burned, if you will, and it required reconstructive

surgery.

She had to be placed under general anesthetists so that she could be treated because

of the extreme sensitivity when doctors tried to work on her.

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She was forced in the car. Driven across town, or driven to a different location where

she was forced to engage in numerous sex acts.

She was the victim of behavior that indicated little or no regard for human life; where

there was no hesitation about committing a crime in which the risk to human life was

high; and the offender was certainly dangerous during the period of time.

The trial court then ordered “The [c]ourt orders counts one, two, four and five to be served

concurrently but consecutive to count six for an effective sentence of thirty-two and a half years.”

Pursuant to Tennessee Code Annotated section 40-35-115(a), if a defendant is convicted of

more than one criminal offense, the court shall order the sentences to run either consecutively or

concurrently. The trial court may order sentences to run consecutively if the court finds by a

preponderance of the evidence certain criteria enumerated in Tennessee Code Annotated section 40-

35-115(b)(1)-(7). Tennessee Code Annotated section 40-35-115(b)(4) provides that a trial court may

find that consecutive sentencing is proper where: “The defendant is a dangerous offender whose

behavior indicates little or no regard for human life, and no hesitation about committing a crime in

which the risk to human life is high.” In addition to the specific criteria in Tennessee Code

Annotated section 40-35-115(b), consecutive sentencing is guided by the general sentencing

principles providing that the length of a sentence be “justly deserved in relation to the seriousness

of the offense” and “no greater than that deserved for the offense committed.” Tenn. Code Ann. §§

40-35-102(1) and -103(2); State v. Imfeld, 70 S.W.3d 698, 707 (Tenn. 2002).

In Kern, this Court held that, for a defendant to qualify as a dangerous offender, the record

must establish that:

(1) the defendant’s behavior indicates little or no regard for human life and he did not

hesitate in committing a crime in which the risk to human life is high; (2) the

circumstances surrounding the commission of the offense are aggravated; (3)

confinement for an extended period of time is necessary to protect society from the

defendant’s unwillingness to lead a productive life and his resort to criminal activity

and furtherance of his anti-societal lifestyle; and (4) the aggregate length of the

sentences reasonably relates to the offenses for which the defendant stands convicted.

Kern, 909 S.W.2d 5, 8 (citing State v. Woods, 814 S.W.2d 378, 380 (Tenn. Crim. App. 1991)); see

State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995); Gray v. State, 538 S.W.2d 391, 393 (Tenn.

1976).

After thoroughly reviewing the evidence presented at the sentencing hearing, we conclude

that the trial court properly sentenced the Defendant to consecutive sentences based upon the fact

that the Defendant is a dangerous offender whose behavior indicates little or no regard for human

life, and no hesitation about committing a crime in which the risk to human life is high. The crimes

-26-

committed against the victim were severe and showed a lack of regard for human life and the

circumstances surrounding the crimes were aggravated. Further, the trial court stated:

The Court is mindful that sentences imposed be no greater than that deserved for the

offense committed, and that the sentence imposed should be the least severe measure

to achieve the purposes for which the sentence is imposed. The Court has also

considered the potential or lack of potential for rehabilitation of the Defendant.

The trial court did not err by ordering that the Defendant’s conviction for especially aggravated

kidnapping run consecutively to the other concurrent sentences. This issue is without merit.

III. Conclusion

In accordance with the foregoing reasoning and authorities, we affirm all of the Defendant’s

convictions. Further, we modify the Defendant’s sentence to an effective sentence of twenty-eight

years, twenty of which for the especially aggravated kidnapping conviction must be served at 100%.

___________________________________

ROBERT W. WEDEMEYER, JUDGE

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