State of Tennessee v. Thomas Dee Huskey

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

April 11, 2001 Session

STATE OF TENNESSEE v. THOMAS DEE HUSKEY

Appeal from the Criminal Court for Knox County

No. 49828 Richard Baumgartner, Judge

AND

STATE OF TENNESSEE v. THOMAS DEE HUSKEY

Appeal from the Criminal Court for Knox County

Nos. 49829, 49830, 50090 Richard Baumgartner, Judge

No. E1999-00438-CCA-R3-CD1

June 28, 2002

The defendant, Thomas Dee Huskey, appeals as of right from his convictions and sentences for

aggravated rape, rape, aggravated robbery, robbery, especially aggravated kidnapping, and

aggravated kidnapping, for which he received an aggregate sentence of sixty-six years. The

convictions relate to four victims and result from two trials that were consolidated for this appeal.

The defendant raises numerous issues. Although we conclude that several errors occurred, only one

requires reversal of any convictions. Because of improper consolidation, we reverse the judgments

for the three aggravated rape convictions and one especially aggravated kidnapping conviction

relating to the victim, D.C., but we affirm the remaining judgments of conviction.

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

and Reversed in Part

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which DAVID H. WELLES AND DAVID G.

HAYES, JJ., joined.

Herbert S. Moncier and Gregory P. Isaacs, Knoxville, Tennessee, for the appellant, Thomas Dee

Huskey.

1

Trial court Case Number 49828 was originally docketed for app eal as E1999-00481-C CA-R 3-CD . This court

ordered that E1999-00481-CCA-R3-CD be consolidated with E1999-00438-CCA-R3-CD for appeal and that the

consolidated appeal proceed under number E1999-00438-CCA-R3-CD.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Erik W.

Daab, Assistant Attorney General; and Randall E. Nichols, District Attorney General, for the

appellee, State of Tennessee.

OPINION

The defendant was convicted in the Knox County Criminal Court in two cases, which will

be referred to as the first rape case and the consolidated rape case. On October 20, 1995, the

defendant was convicted by a jury in the first rape case for two counts of aggravated rape, a Class

A felony, and one count of aggravated robbery, a Class B felony. The trial court sentenced the

defendant as a Range I, standard offender to twenty-two years for each aggravated rape and eleven

years for the aggravated robbery, ordering the sentences to run concurrently for an effective sentence

of twenty-two years.

On May 24, 1996, in a consolidated trial, the defendant was convicted by a jury on three

counts of aggravated rape and one count of especially aggravated kidnapping, a Class A felony, of

one victim; two counts of rape, a Class B felony, and one count of aggravated kidnapping, a Class

B felony, of a second victim; and two counts of rape and one count of robbery, a Class C felony, of

a third victim. The jury deadlocked on charges relating to a fourth victim. The trial court sentenced

the defendant as a Range I, standard offender to twenty-two years for each aggravated rape and

twenty years for the especially aggravated kidnapping of the first victim, ordering the sentences to

run concurrently for an effective twenty-two-year sentence. It sentenced the defendant to eleven

years for each rape and ten years for the aggravated kidnapping of the second victim, ordering the

sentences to run concurrently for an effective eleven-year sentence. For the third victim, the trial

court sentenced the defendant to eleven years for each rape and three years for the robbery, ordering

the sentences to run concurrently for an effective eleven-year sentence. The trial court also ordered

the sentences relating to each victim in the consolidated rape trial to run consecutively to each other

as well as to the sentence from the first rape trial, establishing an effective sentence of sixty-six

years.

On appeal, the defendant raises the following issues, many of which relate to both the first

rape case and the consolidated rape case and many of which have several subissues.2 We will first

address the issue of whether the trial court properly consolidated all of the cases in the consolidated

rape case because our holding affects our analysis of many of the other issues before us. We will

next address the issues that relate to both cases, then the issues that relate only to the first rape case,

and finally the issues that relate only to the consolidated rape case.

I. Whether the trial court erred in consolidating the cases in the consolidated rape

trial.

2

Judge Ray L. Jenkins initially presided over the defen dant’s cases but recused himself on October 18, 1995

before opening statements in the first rape trial. Judge Richard Baumg artner replaced Judge Jenkins and presided over

both rap e trials.

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ISSUES RELATING TO BOTH CASES

II. Whether the trial court erred in denying the defendant’s motion to dismiss for the

denial of a speedy trial.

III. Whether the trial court erred in denying his motion to suppress evidence

obtained as the product of his unlawful arrest and the illegal search of his

home.

IV. Whether the trial court erred in denying his motion to suppress his

statements.

V. Whether the trial court erred in allowing the state to determine the order of

his trials.

VI. Whether reversible error occurred because the state failed to provide him

with timely discovery and whether the trial court erred in refusing to review

discovery materials.

VII. Whether the state withheld exculpatory evidence.

VIII. Whether the trial court erred by refusing to hear certain of his pretrial

motions.

IX. Whether the trial court erred in limiting his proof regarding his insanity

defense.

X. Whether the trial court erred in denying him a change of venue.

XI. Whether the trial court improperly denied him access to various records

relating to the victims.

XII. Whether the trial court erred by allowing the state to use improper leading

questions on direct and redirect examination and by allowing improper

redirect examination.

XIII. Whether the trial court erred in admitting evidence not disclosed to him in

discovery and not listed in the state’s notice of intention to use evidence.

XIV. Whether the trial court erred by prohibiting the testimony of Henrietta Ogle

regarding the character traits of persons addicted to cocaine.

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XV. Whether the trial court erred in denying his motions for a mistrial.

XVI. Whether the state made improper comments in its opening statements and

closing arguments.

XVII. Whether the trial court properly sentenced him.

XVIII. Whether the trial court erred in delaying and/or failing to rule on his post-

trial motions.

XIX. Whether the trial court erred by failing to rule on his motions in arrest of

judgment.

XX. Whether the trial judge was disqualified from presiding over the cases.

XXI. Whether the misconduct of the prosecutor requires dismissal of the charges

or that the prosecutor be disqualified.

ISSUES RELATING ONLY TO THE FIRST RAPE TRIAL

XXII. Whether the trial court erred in staying all other proceedings against him until

completion of the first rape case.

XXIII. Whether the trial court erred in limiting his questioning on voir dire and in refusing

to dismiss for cause potential jurors who knew about his cases.

XXIV. Whether the trial court erred by refusing to have a hearing during trial on

his motion to suppress a photographic line-up.

XXV. Whether the trial court erred in admitting into evidence the victim’s

statements that were contained in a hospital record.

XXVI. Whether the trial court erred in allowing the state’s improper cross-

examination of Officer Chuck Whitson, whom the defendant had called as

an adverse witness.

XXVII. Whether the trial court erred by failing to rule as the thirteenth juror.

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ISSUES RELATING ONLY TO THE CONSOLIDATED RAPE TRIAL

XXVIII. Whether the trial court erred in denying his motion to sever his factual defenses

from his insanity defense.

XXIX. Whether the trial court erred in the number of peremptory challenges it

allowed the parties.

XXX. Whether the trial court erred by allowing jurors to have telephone contact

while sequestered.

XXXI. Whether the trial court erred by allowing the state to elicit new testimony

in its redirect examination of Detective Tom Pressley.

XXXII. Whether the trial court erred in failing to grant his motion for judgments of

acquittal due to the variance between the dates in the bill of particulars and

those proven by the state and to instruct the jury on the dates alleged in the

bill of particulars.

XXXIII. Whether the trial court erred in denying his motions for judgment of

acquittal.

We hold that some error exists with regard to Issues I, III, VI, XVI, XVII, XXV, and XXVI.

With respect to these errors, only the consolidation error requires reversal.

FACTS

A. First Rape Trial

The victim testified that on July 17, 1992, she spent the night at the East Fifth Avenue

apartment of Tina Kelly, a friend. The morning of July 18, she walked to the Krystal on Magnolia

Avenue to buy breakfast. She said that as she was walking back to her friend’s apartment, the

defendant, who was driving in the opposite direction, stopped his car and asked her for directions

to Esau’s Auction Company. She gave him directions, but the defendant said that he could not hear

her. She went to the driver’s side of the car, and as she raised her right arm to point the direction,

the defendant pointed a gun under her arm. The defendant then pulled her through the window of

his car and drove away while her legs were hanging outside the window. The defendant told her that

he would kill her if she did not get her feet into the car. Although she tried to lift her head, the

defendant kept pushing her down into the seat.

The victim testified that when the defendant stopped the car, she recognized that they were

at a barn in Chilhowee Park. The defendant told her to get out of the car, but when she opened the

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passenger’s door, the defendant became very angry. The defendant told her that if she did not do

everything he told her to do, he would kill her. The defendant, who called her derogatory names

throughout, told her that she was going to perform oral sex on him and that he was going to have

sexual intercourse with her. The defendant ran to the passenger’s side of the car and told her to get

on her knees. When she did not comply, the defendant, who had her hair wrapped in his hand, threw

her against the car and then forced her to her knees. She began praying, and the defendant told her

to shut up and grabbed her necklace, bearing a cross. The defendant then said, “Even God can’t help

you now.” The defendant exposed his penis and put it in her mouth. The defendant was not satisfied

and told her to do it right or he would kill her. She then performed oral sex on the defendant.

The victim testified that she had a pocketknife in her shorts pocket and that after she had left

the car, she took the knife out of her pocket and opened the blade. However, when the blade locked,

the knife clicked, which the defendant heard. She swung the knife at the defendant, but the

defendant threw her to the ground, causing her to drop the knife. The defendant picked up the knife,

told her that she had made a big mistake, and threw the knife behind him.

The victim testified that the defendant forced her to crawl into the barn, where he took $42.55

and a diamond tennis bracelet from her. The defendant had her take off her clothes, except for her

socks and shoes, and crawl into a stall, where he vaginally raped her. The defendant made her

change positions several times and had her stay in each position for the same amount of time, using

his watch to keep time. The defendant attempted to rape her anally but was unsuccessful. The

victim said that she did not see the defendant’s gun after she got out of the car.

The victim testified that a rope was hanging from a board in the stall and that the defendant

tried to put it around her throat. The rope, which she identified, was introduced into evidence. She

said that the rope was too short for the defendant to put it around her throat, which upset him greatly.

The defendant continued to rape her, and at some point, the defendant saw a shadow on the wall,

causing him to stand and pull up his pants. The defendant said, “If it’s the law, I’ll protect you.”

The defendant then left the barn, and when she heard his car start, she opened the door and ran. Still

nude, she ran through the parking lot next to the zoo, past the children’s museum, and out the

Beaman Lake gate. Before she got to Fifth Avenue, she stopped and put on her clothes, which she

had been carrying. She said that she left her underwear in the barn.

The victim testified that she ran to Ms. Kelly’s apartment and that she did not see a person

from the time that she ran from the barn until she got to the apartment, where she passed Ms. Kelly’s

boyfriend on the steps. She did not tell him that she had been raped. She went inside the apartment

and took a bath. Ms. Kelly was at work, and there was no telephone in her apartment. The victim

could not move her arm and was in severe pain. Around 10:30 p.m., she telephoned her aunt, told

her that she fell down the steps, and asked if she would drive her to the hospital. Her aunt took her

to St. Mary’s Emergency Room, where the victim initially complained only about her shoulder pain.

She eventually told a nurse that she had been raped, and shortly thereafter, Jean Spangler from the

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Sexual Assault Crisis Center (SACC)3 interviewed her. She told Ms. Spangler what happened.

Later, Knoxville Police Detective Stan McCroskey came to the hospital in the early morning hours

of July 19. She described her attacker to him and agreed to meet him at the police station later that

day. At the station, she again described her attacker, stating that he had a beard that was trimmed,

not long and scraggly, and that his hands were neat and his fingernails were clean. She told the

detective that her attacker’s eyes were “too close together,” and she also described the clothes that

her attacker was wearing – jeans, a brown belt with a set of keys hooked around it, and a black T-

shirt that had elephants and the words “T.I.G.E.R. Zoo” on it.

The victim testified that on the afternoon of July 19, she went to the barn with Detective

McCroskey, another police officer, and a woman from the SACC. In the stall where she had been

raped, they found her underwear as well as a brassiere that was not hers. They could not find her

pocketknife. The victim stated that she returned to the police station sometime in October and was

shown a series of photographs, from which she identified the defendant as her attacker. This same

photograph array was shown to her in court, and she identified the photograph of the defendant. The

victim also identified the defendant in court as her attacker.

The victim testified that she was not a prostitute and that she had never sold her body. She

stated that she was addicted to cocaine and that before July 18, 1992, she had been in outpatient

treatment once and inpatient treatment in January 1992, after which she stayed clean for several

months before relapsing about three weeks before the rape. During that three-week period, she used

mostly cocaine but also marijuana. She denied using Valium or Xanax during that time, and she

could not remember if she drank alcohol. She stated that she was sober when she awoke the morning

of the 18th. About four or five days after the rape, she returned to treatment, but she relapsed again

after she got out. She stated that she was sober at the trial.

On cross-examination, the victim testified that on July 18, 1992, at the hospital, she described

her attacker to Detective McCroskey, who completed a police report. According to the report, she

had described her attacker as five feet, eight inches tall and weighing two hundred twenty pounds.

She also described her attacker’s hair as “collar length.” On July 19, Detective McCroskey

interviewed her at the police station, recording the interview. During this interview, she stated, “He

wasn’t that much taller than me. I’m about five seven. He was maybe 1 or 2 inches taller than me.”

Regarding her attacker’s weight, she said, “I’m pretty sure it was over two hundred, but judging

weight is not one of my better things.” After Detective McCroskey told her that he was five feet,

eight inches tall and weighed two hundred fifteen pounds, she responded that her attacker “was about

[his] size, maybe.” Also during the interview, she said that her attacker “seemed to be clean-cut .

. . . [H]is hair wasn’t shaggy or anything, and his beard and mustache were pretty even.” She said

that on October 27, 1992, Detective McCroskey showed her a photograph of the defendant with a

3

The parties, witne sses, and the trial cou rt frequen tly refer to the agen cy as the Rape Crisis Center. The records

from the center as well as the motion to quash the defendant’s subpoena filed by the center reveal the Sexua l Assault

Crisis Center to be the correct name.

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ruler in the background. She acknowledged that the photograph showed that the defendant was over

six feet tall and that the defendant had shoulder-length or longer hair.

The victim acknowledged that in an interview with defense counsel on May 14, 1995, she

gave a different description of her assailant than the one she had given on July 18 and 19, 1992.

During the May 14th meeting, she had stated, “I would say [he was] at least six inches taller than me.

I’m about five seven. . . . He’s around six foot, six one, something like that.” She also said that her

attacker’s hair was “about down to his shoulders” and that the defendant looked “nasty. He had

brown hair and a beard. He had Band-Aids all over his hands.” She also stated that according to the

transcript of the May 1995 interview, she had said that she was addicted to cocaine but had been

clean for about a year and a half at the time of the attack. However, she testified that she may have

said a month and a half. She also acknowledged that she had told defense counsel that she had been

clean for at least six months before the attack and had relapsed after the attack. At trial, she testified

that she did not use cocaine the day of the attack but admitted to using it the day before the attack.

Also, she said in the May 1995 interview that she did not drink alcohol or use any drugs other than

cocaine. She explained at trial that she was referring to the time when she made the statement, not

the time of the attack. Defense counsel also questioned her in the interview about how she supported

her drug habit, to which she responded that she worked and wrote bad checks for about fifteen

hundred dollars, although she paid the checks later. She admitted at trial that she only had three

warrants for writing bad checks, totaling about seventy dollars, and that these warrants were from

1993.

The victim testified that she had been treated at the Detoxification and Rehabilitation

Institute (DRI) three times, once as an outpatient and twice as an inpatient, the last being on July 22,

1992. She acknowledged that according to the DRI intake records, the July 22, 1992 admission was

her fourth. The records also showed that she stated that she had legal problems relating to writing

bad checks and failing to appear in court. She could not explain why the only warrants for writing

bad checks were from 1993. The DRI records also provided that she went to the emergency room

on July 18, 1992, because she was “‘jumped’/raped.” She testified, however, that she did not use

the word “jumped” and that she did not know that “jumped” was a street term for agreeing to have

sex for money but not getting paid. Regarding her recent drug use, the intake records showed that

she had stated that she both used marijuana and drank alcohol one week ago. She also acknowledged

that the DRI records indicated that she had her first “blackout” at age twenty-five, but she testified

that this was the only time she had ever had one. In response to being asked about the DRI records

showing that she said she had experienced drug-induced hallucinations, she stated that the writing

on the records was not hers. Regarding her drug history for the previous six months, the DRI records

showed that she had been doing two and one-half grams of cocaine per day. The victim said that this

amount of cocaine would cost about two hundred dollars.

The victim testified that she had a job driving a school bus for handicapped children and that

she wrecked the bus while under the influence of drugs. She was not fired for this, but she

voluntarily quit. She said that she had never been fired from a job because of her drug habit, but her

habit had caused her to quit jobs. She said that she worked at Walgreen’s during the six months

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before the attack but could not remember if she quit that job before July 18, 1992. She stated that

she financed her drug habit from money earned by working and from money that she received in a

settlement. She said that she also got drugs from friends.

The victim testified that she did not know what medication she received at the hospital on

July 18, 1992, but she acknowledged that her DRI records indicated that she took Percocet while

there. She admitted that the DRI records showed that she had stated that her reasons for wanting to

quit doing drugs was “to refresh [her] memory.” She testified that by this she did not mean that she

was having trouble with her memory or with hallucinations. Rather, she meant that she wanted to

clear her “head of any kind of fog, depression, so on and so forth.” She acknowledged that her

response on the DRI form to whether she had a problem remembering things was, “Yes, short-term

memory loss.”

The victim also testified on cross-examination that she did not know if the Magnolia Avenue

area was a high-crime, high prostitution area. Regarding July 18, 1992, she said that she was not

carrying any personal identification but that she was carrying a knife. She stated that when the

defendant stopped his car and asked her for directions, they were only a few blocks from Esau’s.

She said that the defendant pulled her into the car through the driver’s window with one hand, while

his other hand held the gun. The defendant held her head down as he drove away, and she did not

know which hand the defendant used to steer the car. After she got out of the car, the defendant

knocked her down, and then he grabbed her upper right arm and pulled her close to him. At that

time, she reached into her right shorts pocket with her right hand and grabbed her knife. She said

that she could not open the knife to the point that the safety would catch with one hand, but she was

able to use her fingers to open the knife and then use her leg to extend the blade. When the safety

clicked, the defendant threw her against the car, causing her to drop the knife. She said that the

defendant was violent, hitting her and ramming her head into the side of the barn.

The victim testified that when she ran from the barn, she did not see anyone in Chilhowee

Park. She did not stop at any of the houses on Fifth Avenue to ask for help or tell anybody about the

attack once she reached Ms. Kelly’s apartment. She also did not tell her aunt about the attack but

told her that her shoulder hurt from falling down the stairs. She admitted that she had arthritis in her

shoulder as well as in other parts of her body but said she went to the hospital because her shoulder

was injured during the attack. She said that she did not have medical insurance at that time but

acknowledged that the hospital records indicated that she said she had insurance. After being

admitted and talking to a nurse for some time, the victim told her that she had been raped. The nurse

was the first person whom she told that she had been raped.

On redirect examination, the victim testified that when she was running from the barn to her

friend’s apartment, she did not stop at a house to ask for help because she was terrified and in shock.

She stated that she initially did not reveal her real reason for being at the hospital because she did

not want to tell anybody about the rape. She just wanted to be able to move her arm and go home.

The victim again identified the defendant as the person who attacked and raped her. The state rested

its case.

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The defense called Henrietta Ogle, a certified alcohol and drug counselor, who testified that

she was familiar with the general characteristics of individuals who are addicted to cocaine. She

stated that crack cocaine was extremely addictive, physically and psychologically. She said that two

and one-half grams of cocaine would have a street value of three to four hundred dollars and that

smoking that amount per day would be a severe addiction.

Dr. Roger Allen Hubbard, the director of molecular pathology at Blount Memorial Hospital,

testified that he specialized in DNA analysis. He stated that a rape kit would include a comb to

obtain the victim’s pubic hair, which would likely contain hairs from the rapist; tubes to store the

victim’s blood; tubes to store the victim’s vaginal secretions; and cotton swabs to obtain semen from

the vagina. Through DNA analysis, the rape kit evidence can identify individuals with a very high

probability of accuracy. He stated that the standard procedure for preserving DNA evidence

involved allowing the swabs to air dry for twenty-four to forty-eight hours and then storing them in

a non-plastic envelope. He said that once the sample was dry, the DNA was very stable and would

not spoil, unless it was subjected to adverse conditions such as sunlight or extreme heat. Dr.

Hubbard said that the samples did not need to be refrigerated and that allowing the swab to stay wet

for an extended period of time, like in a plastic bag or in a refrigerator, can compromise the integrity

of the DNA. He testified that bathing would not affect the ability to find DNA in the vaginal canal

because the quantity of DNA needed to perform a test was very small.

Ralph E. Green testified that he owned and operated Esau, Incorporated, which included

Esau’s Antiques and Collectibles Market. He said that Esau’s Antique and Collectible Extravaganza

was at Chilhowee Park in the Jacobs Building on the third weekend of most months. He stated that

an Extravaganza, which included approximately three hundred fifty vendors and drew about eight

thousand customers, was held on Saturday, July 18, 1992. He said that the vendors set up on Friday

from 11:00 a.m. to 8:00 p.m. as well as on Saturday starting at 7:00 a.m. He said the Extravaganza

opened at 9:00 a.m. and customers would usually line up at the front and back entrances before it

opened. On cross-examination, Mr. Green testified that most customers would not enter the park

through the Beaman Lake gate because they would have to walk farther to get to the Jacobs Building.

Knoxville City Police Officer Chuck Whitson was listed as a state’s witness but was called

by the defense. He testified that the rape kit from the victim had been kept by the police department

since July 18, 1992, and that it had never been sent to the laboratory for analysis. He stated that he

took photographs during his investigation of the case but that he did not have any photographs of the

victim showing bruises or abrasions. He said that he did not remember any bruises or abrasions on

the victim, who was wearing a hospital gown when he first saw her, and that none were brought to

his attention. He said if he had seen any bruises or abrasions, he would have taken photographs of

them.

On cross-examination, Officer Whitson testified that he never examined the victim for

bruises or abrasions. He stated that when he went to the hospital, he only talked briefly with the

victim, who appeared to be really nervous, upset, and reluctant. He stated that on the following day,

he accompanied the victim to the crime scene, and he identified the rope that had been entered into

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evidence as the rope that he removed from the stall. He said that the rape kit was not sent to the

laboratory because no one requested that it be sent. Then, after about one year, the samples were

taken out of the refrigerator and stored in a non-refrigerated warehouse. Subsequently, he talked to

a person at the Federal Bureau of Investigation (FBI) Laboratory and determined that there was no

need to send the samples for analysis.

Dr. Paul E. Kaufman was qualified as an expert in forensic medicine and testified that he had

reviewed the victim’s DRI records. He stated that if the records were accurate, the victim had a

serious addiction. He said that if the victim ingested two and one-half grams of cocaine per day for

six months, she would have a substantially impaired judgment, memory, and concentration ability.

She would also have a substantially impaired ability to accurately recall and describe events. On

cross-examination, Dr. Kaufman testified that he had never interviewed the victim and had never

interviewed a cocaine addict who had been brutally raped.

Dr. John Bruce Irwin testified that he treated the victim in the emergency room at St. Mary’s

Hospital on July 18 and early July 19, 1992. He stated that according to the hospital records, he did

not find any abrasions or bruises on the victim. The victim complained about tenderness in her right

shoulder and right elbow, and his examination revealed tenderness in her right shoulder, elbow, and

hip. He stated that arthritis was consistent with pain and can be consistent with tenderness. He said

that the victim’s injuries could have been consistent with falling down stairs. He testified that he

did not find any evidence of a disturbance or redness around the victim’s vaginal or anal areas. He

also did not find any evidence of forceful entry in either the vagina or anus. He stated that the

records did not show that the victim was given Percocet, which is a strong, highly addictive, oral

pain medication.

On cross-examination, Dr. Irwin testified that he did not have an independent recollection

of the victim. He said that his records did not indicate that the victim was under the influence of

drugs but did state that the victim was tearful and upset.

The parties stipulated that a complete search of all pertinent records revealed that there were

no charges against the victim with the exception of the three warrants for writing bad checks in 1993,

which were introduced into evidence. In the state’s rebuttal proof, it introduced a settlement sheet

from a civil case involving the victim. The sheet showed that the victim received approximately

$36,000 in April 1991. The jury found the defendant guilty of two counts of aggravated rape and

one count of aggravated robbery.

B. Consolidated Rape Trial

The defendant was tried for offenses against four victims, D. C., G. T., D. L., and A. D. D.

C. was the state’s first witness and testified that during the second week of August 1991, she was

working as a prostitute outside the Circle-In, a bar in Knoxville. She said that around dusk, after the

defendant drove past her a few times, she asked him if he was looking for a date and told him that

she charged twenty dollars for oral sex and thirty dollars for vaginal intercourse. She stated that the

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defendant was driving a small, yellow Toyota truck and was wearing corduroy pants, a flannel shirt,

and work boots, on which there was red clay. The defendant accepted her offer, although he did not

give her any money at that time. She got into the passenger’s side of the truck, and as the defendant

drove away, he pulled out a pistol. She reached to open her door, and the defendant told her to jump

because she was going to die anyway. The defendant drove on Magnolia Avenue, not stopping for

red lights, to Chilhowee Park, where he parked his truck near a barn. The defendant got out of the

truck, and as he was walking to the passenger’s side, she tried, unsuccessfully, to get out the driver’s

side. The defendant opened the passenger’s door, grabbed her hair, pulled her out of the truck, and

took her into the barn, locking it once inside. The defendant told her to cooperate or he would snap

her neck.

D. C. testified that once inside the barn, the defendant, who had his hand around her throat,

told her to remove all of her clothes. She complied. The defendant then made her stand against a

wall with her arms and legs spread, and he hit her several times. He then forced her to her knees and

made her perform oral sex. The defendant, still holding her throat, made her stand next to a wire

fence in the barn. He told her to spread her arms and legs, which she did, and then the defendant tied

her hands and feet to the fence and had sexual intercourse with her. The defendant pulled his penis

out of her vagina, ejaculated on her stomach, and had intercourse with her again. The defendant then

put his hand on her throat, untied her, and took her to a trough in the barn. He forced her to bend

over the trough, and he anally raped her. The defendant then made her lie on the ground, where he

held her with his knees on her arms and both hands on her throat. He started choking her, but

stopped when they saw lights from a car. The defendant then stood, kicked her, gathered her clothes,

and left the barn, locking it and telling her that if she screamed or moved, he would shoot her. The

defendant called her derogatory names throughout the episode, which lasted four to five hours, and

told her that he was going to get and kill “all you whores.”

D. C. testified that after the defendant left the barn, she stayed in the barn for about two hours

because she could not move her legs. After regaining movement in her legs, she was able to unlock

the barn and started walking, still naked, toward Magnolia Avenue. A man gave her a coat and drove

her to the Circle-In. D. C. identified the defendant as the person who raped her.

D. C. testified that after returning to the Circle-In, she spoke with Knoxville Police Officers

Mark Pressley and Doug Stiles but that she did not file a formal complaint. On November 2, 1992,

while incarcerated on charges for forgery, fraud, and aggravated robbery, she told Knox County

Sheriff’s Lieutenant Larry Johnson and Detective Mike Upchurch what the defendant had done to

her. They showed her an array of six photographs, from which she identified the defendant as her

attacker.

D. C. testified that she was in jail at the time of her testimony for violating her probation by

failing to appear in court and that she had been convicted of soliciting prostitution, forgery, fraud,

robbery, driving under the influence, driving on a suspended license, and driving on a revoked

license. She stated that in August 1991, she frequently used drugs and alcohol but that she was not

under the influence of drugs or alcohol the day she was raped.

-12-

On cross-examination, D. C. acknowledged that she had testified at a hearing on April 15,

1996, and that before both that hearing and the trial, she talked with the prosecuting attorneys. She

said that before the April 15 hearing, she and the other victims – G. T., D. L., and A. D. – attended

a meeting in the district attorney’s office, where they were shown a chart containing facts relating

to each of their cases. She was friends with the other victims, who were also prostitutes, and they

watched out for each other on the street.

D. C. admitted that at the April 15, 1996 hearing, she said the rape occurred during the first

or second week of August. She explained that she was now certain that it occurred during the second

week of August because she was making “regular” money when the rape occurred, stating that the

first week of the month the prostitutes made “good” money. She acknowledged that in her previous

testimony, she had stated that after the rapes, she talked to Mark Pressley and “papers [were] filed,

but nothing happened at that time.” She admitted that nothing was filed regarding her case in 1991.

Also, in her April 15 testimony, she stated that she stopped prostituting herself in 1994 and that she

did not have a charge for prostitution in 1995. At trial, she testified that she was simply mistaken,

acknowledging that she was arrested for prostitution on September 15, 1995. In her hearing

testimony, she said that she had never robbed anybody. She testified, however, that in 1992, she had

helped set up dates in order that two men could then rob people and that she had taken a woman’s

car after fighting with her, although the charges relating to this event were dismissed. She also stated

that she pled guilty to robbing a food market in 1994 but explained that she was driving the car and

did not know that the two men accompanying her were going to rob the store. D. C. said that she

also pled guilty to fraud and forgery charges for cashing stolen checks, although she stated that she

did not steal the checks.

D. C. testified that she first gave a statement to police on November 2, 1992, while in jail on

six charges. She said that shortly after giving her statement, her bond was reduced from $50,000 per

charge to $1,500 per charge, which enabled her to make bond. She said the police sometimes go

lighter on people who help them. She acknowledged that although in her November 2 statement she

said the defendant threatened her by saying he would break every bone in her body, she had said on

direct examination that the defendant threatened her by saying he would snap her neck. She

explained that “it all happened.” She also admitted that her November 2 statement did not mention

the defendant telling her to take off her clothes. Further, in her statement, she stated that the

defendant said he was going to hit her and commented, “like this – all you boys do.” At trial, she

explained that this comment referred to men’s general tendency to hit women. She admitted that

events, specifically being forced to perform oral sex, were not in the correct chronological order in

her statement, stating that the events occurred as she testified on direct examination.

D. C.’s November 2 statement also provided that she saw the defendant about one week after

the rapes. She said that he was driving a blue, four-door Chevrolet Impala and was wearing a gold

and black band uniform that had tassels on the shoulders. According to her statement, when the

defendant propositioned her, she grabbed him and tried to stab him, at which point the defendant

punched her in the face. She testified that the statement was incorrect because although she did try

to stab him, she did not grab him and he did not punch her in the face. She explained that she tried

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to grab him and that the defendant “punched the gas” and drove away. D. C. admitted that her

statement said that she had been barred from the Circle-In for “pulling knives.” She explained that

she was barred only for twenty-four hours for pulling a knife on a man who had hit her.

D. C. testified that after she made bond in November 1992, she went to the Detoxification

and Rehabilitation Institute (DRI). On her admission form, she stated that her occupation was

cleaning houses. She testified that this statement was not a lie because although she was a prostitute,

she also cleaned houses at that time. She said that the admission form correctly stated that she was

having hallucinations and blackouts at that time as a result of heavy drinking and using cocaine. Her

admission form indicated that she was using three-fourths of an ounce of cocaine per day as well as

Dilaudid and Demoral. She had also stated on the form that she had been raped when she was an

adult.

D. C. testified that she pled guilty in 1994 to five counts of fraud and one count of robbery,

receiving eight years of probation. On September 15, 1995, she was arrested for prostitution.

Although she told her probation officer about the arrest, her probation was not revoked. On

December 28, 1995, she was arrested for driving under the influence (DUI). Her prostitution case

was continued until May 16, 1996, just three days before the defendant’s trial began. She received

a five-day sentence, which was ordered to run concurrently with her DUI sentence.

G. T. testified that in February 1992, she encountered the defendant while working as a

prostitute. One Tuesday morning around 8:00 a.m., she was on the Gay Street viaduct when the

defendant stopped his car near her. She asked him what kind of date he wanted, but he did not

respond. Without discussing the type of date or payment, she got into the defendant’s car and

suggested that he drive to Cahaba Lane, which the defendant did. She testified that she intended to

have sex with the defendant for money.

G. T. testified that when they arrived at Cahaba Lane, she and the defendant walked into the

woods. She was carrying a pocketbook and was walking in front of the defendant. The defendant

eventually told her to stop and asked her to remove her shirt, which she did. The defendant then

asked her to put her arms behind her back. She complied, and the defendant tied her wrists together

with a rope. When she turned around to face the defendant, he “started ripping out” her brassiere

with a pocketknife and then told her to get on her knees. She got on her knees with her face to the

ground. The defendant pulled down her pants and underwear and inserted his penis into her anus,

which hurt and caused her to cry. She “bucked up” on him, kicking him with her left foot, at which

point he stopped and told her to turn around. The defendant then attempted to have vaginal

intercourse with her, but he could not achieve an erection. The defendant did touch her clitoris.

After telling her that she was “too tight down there,” the defendant grabbed the back of her head and

her throat and forced her to perform oral sex. Afterward, he told her that if she screamed, he would

shoot her. Although she never saw the defendant with a gun, she “took his word” that he had one.

The defendant then left her in the woods.

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G. T. testified that the defendant called her derogatory names throughout the rape and told

her that she was just like all the others. She said that after the defendant left, she was able to free

her hands. After putting on her torn brassiere and shirt, she found her pocketbook, which the

defendant had taken from her, with twenty-five dollars missing. She walked to Dimension 3, a hair

salon, and asked for a glass of water. The police were called, and she told Officer Mark Young and

later Detective Tom Pressley what happened. G. T. stated that she had rope burns on her wrists and

scratches on her knees. Photographs of these injuries were introduced into evidence. She testified

that she rode in Detective Pressley’s car and directed him to the crime scene. When they arrived,

they saw a car, which she believed was the defendant’s, and as they approached the car, they saw the

defendant, whom she identified as the person who raped her.

On cross-examination, G. T. testified that she had been a prostitute for about ten years as of

February 1992, when she initiated contact with the defendant and got into his car without an

agreement as to the type of date they were going to have. She admitted that her intention was to have

sex for money and that she suggested that they drive to Cahaba Lane, which was a “long way” from

the Gay Street viaduct but a common place to take dates.

G. T. stated that she had talked to the district attorney since she testified in a hearing on April

16, 1996, but that he only told her to tell the truth. She acknowledged that in her April 16 testimony,

she stated that she never saw a weapon at any time and she never mentioned the defendant having

a knife or cutting her brassiere. She admitted that in her April 16 testimony, she never said that the

defendant penetrated her anally or that she experienced pain from being penetrated anally. She stated

that she previously testified that she performed oral sex before the defendant unsuccessfully

attempted to vaginally rape her. She said that her testimony on direct examination was accurate,

conceding that the defendant did not penetrate her vagina. G. T. testified that she attended a meeting

with the other victims at the district attorney’s office but that the district attorney did not discuss the

facts of the other victims’ cases with her. She acknowledged, though, that in her April 16 testimony,

she stated that she remembered the district attorney telling her about a matrix that summarized each

of the victims’ cases.

G. T. testified that she did not tell the people in Dimension 3 that she was a prostitute.

Likewise, she did not reveal to police that she was a prostitute in her February 27, 1992 statement.

In that statement, she said that she had been kidnapped, raped, and robbed by a man who had picked

her up on Jackson Avenue, that he drove her to a wooded area and forced her to perform oral sex,

and that she then walked to a nearby business and called the police to report the crime. She admitted

that her statement did not mention being anally or vaginally raped.

The state offered Knox County Sheriff’s Detective Dan Stewart and Knoxville Police

Detective Thomas Pressley for cross-examination, submitting that their testimony would be

cumulative. In cross-examination, Detective Pressley testified that his department has reported that

prostitutes in Knoxville are often drug addicts, thieves, and liars, especially when they want

something. On February 26, 1992, around 2:00 p.m., he went to the Dimension 3 hair salon

regarding a dispatch that Knox County Sheriff’s deputies had G. T. When he arrived, G. T. told him

-15-

that she had been applying for a job at Southeastern Janitorial Service on Jackson Avenue and that

as she was leaving, a white male, driving a gray car with a child restraint seat on the backseat,

offered her a ride to her job. G. T. told him that the man kidnapped her, drove her to Cahaba Lane,

and forced her to perform oral sex on him. Detective Pressley said she did not tell him that she was

a prostitute, that she voluntarily got into the defendant’s car, or that she suggested going to Cahaba

Lane. He stated that Cahaba Lane was a remote area about two miles from Dimension 3. Because

the complaint was made at 2:00 p.m., he assumed that the incident occurred around 1:00 p.m. Later

that day, after he learned that G. T. was a prostitute, he confronted her, and she admitted that she was

a prostitute and that she had lied about being abducted after leaving a job interview on Jackson

Avenue.

Detective Pressley testified that G. T. directed him to the crime scene and that the defendant

was there when they arrived. He arrested the defendant and took him to jail, but Knox County was

responsible for charging him. He stated that he was subpoenaed four times regarding the defendant’s

case relating to G. T., but each time G. T. did not appear in court. The charges relating to G. T. were

ultimately dismissed.

On redirect examination, Detective Pressley testified that the car he saw when he arrived at

Cahaba Lane matched the description G. T. had given him, including that a child restraint seat was

on the backseat. He later determined that the car had been driven by the defendant. He stated that

as they walked into the woods, they saw the defendant, whom G. T. identified without hesitation as

her attacker.

D. L. testified that she had been working as a prostitute for about two weeks when she met

the defendant at the Circle-In on a day in the middle of September 1992. She asked him if he wanted

a date, to which he responded that he wanted oral sex performed on him and that he would pay her

fifty dollars. She agreed and got into his car, which she believed was a blue Buick. It was around

1:30 or 2:00 p.m. at this time. The defendant told her that he was going to drive to where he took

P. J., another prostitute whom they both knew. While in the car, the defendant gave her fifty dollars,

which she put in one of her socks. The defendant drove to a dead end street, where he parked in

front of a billboard, and then they walked to a mattress that was a few feet into some woods. He told

her to remove her shirt and to get on her knees, which she did. She did not remove her brassiere or

her shorts. The defendant then went to his car and got something out of his trunk, and when he

returned, he pulled her up, put her hands behind her back, and tied them with twine or rope. At this

point, the defendant took money out of her sock, but he did not take the fifty dollars that he had

given her. Instead, from her other sock, he took over one hundred dollars that she had made earlier

in the day.

D. L. testified that as the defendant led her further into the woods, he had his hands around

her neck and said, “I hate all prostitutes” and “I am going to kill you, bitch.” She begged for her life,

telling the defendant that she had two children and that she wanted to see her father again. At some

point, she escaped from the defendant and ran toward the car, but the defendant caught her. She then

told him that somebody had driven up and seen them. The defendant then untied her hands, put her

-16-

in the car, and told her to put her shirt on. As he was driving, he told her that if she got out of the

car at a stop light, he would find her and get her. The defendant dropped her off at the NAPA store

on Magnolia Avenue. She was able to get the defendant’s license plate number when he drove away.

D. L. stated that she did not call the police at that time because she was scared that she would be

arrested. However, two or three weeks later, she saw the place where she had been robbed in the

newspaper, and she then went to the Tennessee Bureau of Investigation’s (TBI) office and told them

what had happened to her. She stated that she was not under the influence of drugs or alcohol on the

day of this incident.

On cross-examination, D. L. testified that when she knelt on the mattress at Cahaba Lane,

she intended to perform oral sex on the defendant. She stated that everything was fine until the

defendant jerked her up and tied her hands behind her back. She said that as the defendant pushed

her up the hill, he had one hand on the back of her neck and one hand holding her hands behind her

back. After unsuccessfully trying to run away from the defendant, she told him that she saw a car

and that they would be discovered. At that point, she asked the defendant to untie her, which he did,

and then the defendant told her to put on her shirt. She then asked the defendant to drive her back

to the Circle-In, to which he responded that he would drop her off on Magnolia Avenue. She stated

that she never had sex with the defendant and that she thought that the defendant was trying to take

back the fifty dollars he had given her but mistakenly took the money from the wrong sock. She said

that the defendant never hit her and that she never saw the defendant with a weapon. D. L. stated

that she continued to prostitute herself after this incident.

Knox County Sheriff’s Detective Michael Grissom testified that during his investigation of

the defendant’s cases, D. L. gave him a license plate number. As a result of checking the license

plate number through the Records Division, he went to the house of Frank Huskey, the defendant’s

father, in Pigeon Forge, Tennessee. When he arrived, he saw a 1983 Buick LeSabre with a license

plate number of VLZ-894. On cross-examination, Detective Grissom stated that information

concerning his department’s investigation of events on Cahaba Lane would not have appeared in the

newspaper until October 20, 1992.

A. D. testified that on October 5, 1992, around 5:00 to 5:30 a.m., she was working as a

prostitute on Magnolia Avenue when the defendant, who was wearing a beige work uniform, drove

into the KFC parking lot in a small, beige truck. When she approached the defendant’s truck, he

offered her fifty dollars to go to a location that was farther away than where she normally went. The

defendant told her it was a secluded area near a church. The defendant did not say what sexual act

he wanted for the fifty dollars. After talking to the defendant for some time, she agreed to go with

him, feeling comfortable with him because he knew people she knew.

A. D. testified that they had a friendly conversation on the drive to Cahaba Lane, a place

where she had never been. The defendant parked the truck and came to the passenger’s door. He

opened the door, hit her in the face, grabbed her hair, and pulled her out of the truck. The defendant

pulled her toward the woods, and she struggled and begged him not to take her into the woods. The

defendant told her there was a mattress in the woods, to which she responded that she would do

-17-

whatever he wanted outside the woods. The defendant eventually agreed and told her to remove her

clothes, which she did. The defendant stood over her, took a knife out of his pocket, called her

derogatory names, and said, “I will cut your throat if you don’t do what I tell you to.” The defendant

forced her to perform oral sex and vaginally raped her, although he did not ejaculate. The defendant

said that he was going to take her to the mattress, and she again begged him not to, at which point

he forced her to perform oral sex until he ejaculated. As the defendant was fastening his pants, she

asked him to take her back to Magnolia Avenue, to which the defendant responded that he would

not because she would jump out at a red light and scream rape. She asked again, explaining that she

did not know where she was, and the defendant told her to get dressed and he would take her.

However, as she was getting dressed, the defendant got in his truck and left. She said that when the

defendant left, it was daylight.

A. D. testified that she walked toward Asheville Highway. She was crying, her hair was wet,

and she had mud all over her. A woman in a car stopped, and she asked the woman for a ride home.

The woman refused but called the police to help her. The parties stipulated that a telephone call was

made from telephone number 524-5499 at 8:02 a.m., on October 5, 1992, regarding A. D. to the 9-1-

1 authority in Knox County. She continued walking until she reached a gas station. While

telephoning a friend, she saw police officers, but she did not ask them for help because she was on

parole. She stated that she reported the rapes to the police two or three weeks later, after she saw

a picture of Cahaba Lane while watching the news on television. A. D. identified the defendant as

the person who raped her.

A. D. testified that at the time of trial, she was in jail because she had violated her parole.

She had been on parole three times, and each time she had violated the terms of her parole by using

cocaine. She stated that she had her senses when she encountered the defendant the morning of

October 5, 1992, although she admitted that she had used cocaine earlier in the morning around

midnight.

On cross-examination, A. D. testified that she was not friends with the other victims but that

they did help each other survive on the streets. When she approached the defendant, she was hoping

to get paid for having sex with him. Although her usual practice was to receive payment in advance,

the defendant did not pay her before she got into his truck. She stated that the knife with which the

defendant threatened her was a pocketknife and that the defendant never opened the blade. She said

that the defendant never bound her. When questioned about whether not getting paid after having

sex angered her, she stated, “Usually, if you don’t get paid, and then you have sex, then it is forced

sex.” She stated that sometimes dates were rough with her.

A. D. testified that in October 1992, she was using about two hundred dollars worth of

cocaine per day. She admitted that she used cocaine about five hours before she met the defendant

but stated that cocaine did not affect her ability to remember what happened to her. She said that

after being raped by the defendant, she was concerned for her safety, but she acknowledged that she

asked the defendant for a ride back to Magnolia Avenue, approximately a fifteen minute drive,

because she did not know where she was.

-18-

A. D. testified that she did not report the rapes on October 5, 1992, and that she did not go

to the hospital or see a doctor on that date. She said that no one from the sheriff’s department ever

asked for the clothing that she was wearing when she was raped. She said that on October 26, 1992,

the police came to the Circle-In, and she told Detective Tommy Stiles that a man had taken her to

Cahaba Lane and raped her a few weeks earlier. Later that night, she went to the Knox County

Sheriff’s Department and talked to Dan Stewart and Mike Upchurch. When they asked her if she

would testify before the grand jury regarding what the defendant did to her, she asked “Would it help

a friend?”

A. D. testified that she and the other victims met with the district attorney before testifying

at the April 16, 1996 hearing. She said that the district attorney talked to each victim individually

and that they did not discuss the facts of the cases. She stated that there was a chart regarding all of

the cases but that she did not see it.

A. D. testified that in November 1988, she was indicted for eleven counts of drug-related

offenses. She said that she received an effective sentence of eight years for agreeing to plead guilty

to possession of cocaine with intent to sell, possession of marijuana, possession of diazepam with

intent to sell, possession of methyprylon with intent to sell, and possession of glutethimide with

intent to sell. She stated that she was not a drug dealer but was living with one at that time and that

she pled guilty on the advice of her attorney. A. D. acknowledged that a statement she made to the

Community Alternatives to Prison Program (CAPP) regarding the convictions provided,

I was told to plead guilty of the current offense. I was staying at

a friend’s house . . . . I did not know he had coke and pot in his

house, but I did know about the Valium and other pills. On the

sale and delivery charges, I did those. I sold an eight-ball to an

undercover agent and about an ounce of pot. I was selling for

money.

She testified that she did not remember what she told the people at CAPP but that she sold the drugs

for a friend, reiterating that she was not a drug dealer.

A. D. testified that she was released from jail on November 5, 1995, but that she was arrested

on April 26, 1996. She said that she entered a plea bargain and that she hoped to receive help from

the state regarding her parole violation. She admitted that the district attorney sent a letter to the

parole board asking them to consider her drug problem when determining whether to revoke her

parole. On redirect examination, A. D. testified that the district attorney was not at her last parole

board hearing and that she did not know that he was going to write a letter on her behalf.

The defendant’s first witness was Knox County Sheriff’s Detective Michael Freeman, who

testified that as part of the investigation of the incidents that occurred at Cahaba Lane, he went to

Teague’s Statuary in Sevier County, Tennessee on October 23, 1992, to recover employment records

regarding the defendant, including his time cards. According to the time cards, on Monday, October

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5, 1992, the defendant clocked in at 7:58 a.m., clocked out at 12:11 p.m., and then back in at 1:08

p.m. On Tuesday, September 22, 1992, the defendant clocked in at 7:52 a.m., clocked out at 11:56

a.m., back in at 12:55 p.m., and then out at 4:43 p.m. He stated that to drive from Teague’s to

Cahaba Lane would take about fifty minutes to one hour.

On cross-examination, Detective Freeman testified that on November 2, 1992, he took a

statement from D. C., in which she described what the defendant had done to her and that she

identified the defendant from a photograph array. He said that when he was at Teague’s Statuary,

he saw a reddish color rope that was “twine-like” but thicker. He stated that the amount of time it

would take to drive from Teague’s Statuary to Cahaba Lane would depend upon how fast the person

drove and the traffic conditions. He said that if the defendant left work at 4:43 p.m. on September

22, 1992, then he should have arrived in Knoxville approximately one hour later.

On redirect examination, Detective Freeman testified that if D. C. described the twine that

was used on her as brown and smaller than a pen, then it would not have been the same rope that he

saw at the Teague’s Statuary. On recross-examination, he stated that there were other colors of twine

at Teague’s.

James Wesley Sanderson testified that he acquired Teague’s Statuary on September 1, 1992.

He said that to drive from Knoxville to Teague’s Statuary involved traveling through or around

Gatlinburg, Pigeon Forge, and the Great Smokey Mountain National Park. He said that the traffic

in this area was hectic, especially during the tourist season, including October. He said that the twine

that Detective Freeman saw was in a shed behind his property and that he did not use twine in

conducting his business. He stated that he normally arrived at work between 7:45 and 8:00 a.m. and

would see the defendant. He said that if the defendant had come to work with mud on his clothes,

he would have noticed.

On cross-examination, Mr. Sanderson stated that because of the nature of the defendant’s job,

the defendant would have been greasy and would have had cement on him by the end of each day.

He said that the shed behind his property was about one hundred yards from the statuary.

James David Gill, a librarian and records custodian for the Knoxville News Sentinel, testified

that the paper reported that sunrise on October 5, 1992, occurred at 7:34 a.m. He stated that the

newspaper’s first article regarding the investigations of the Cahaba Lane incidents occurred on

October 21, 1992.

Dr. Paul Kaufman was qualified as an expert about to how alcohol and drugs affect a

person’s perception of and ability to recall events. He testified that he reviewed records pertaining

to D. C. dated November 19, 1992, and referring to her past drug usage. He stated that D. C. had

a serious, extensive drug abuse problem in the early 1990's, using cocaine, Dilaudid, Demerol, and

alcohol in staggeringly-high doses. He said that a person abusing drugs at D. C.’s level would have

a substantially impaired memory, judgment, and ability to recall and restate events that had

-20-

happened. He also stated that people with serious drug problems tend to lie to maintain their

lifestyle.

Dr. Kaufman testified that he had not interviewed A. D. Defense counsel provided Dr.

Kaufman with a hypothetical in which he described a person that used two hundred dollars of

cocaine per day, used acid, injected Demerol, and drank alcohol excessively. Dr. Kaufman stated

that assuming the facts in the hypothetical were true, the person had a serious drug dependency and

would have characteristics similar to the ones he described relative to D. C.

The jury convicted the defendant of three counts of aggravated rape and one count of

aggravated robbery for the offenses against D. C. It convicted him of two counts of rape and one

count of robbery for the offenses against G. T. It convicted him of two counts of rape and one count

of aggravated kidnapping with regard to A. D. The jury deadlocked on all counts relating to D. L.

I. CONSOLIDATION

The defendant contends that the trial court erred in consolidating the four rape cases, arguing

that the state’s motion to consolidate was untimely, that the offenses were not part of a common

scheme or plan, and that evidence of each offense would not have been admissible in the trials of the

other offenses. The state contends that the trial court properly consolidated the cases.

On March 21, 1996, the state moved to consolidate the presentments relating to D. C., A. D.,

D. L., and G. T. pursuant to Rules 8(b) and 13(a), Tenn. R. Crim. P. The defendant opposed this

motion, which had the same effect as asking for a severance under Rule 14(b)(1), Tenn. R. Crim. P.

See Spicer v. State, 12 S.W.3d 438, 444 (Tenn. 2000). Thus, consolidation was proper only if a

severance was not required under Rule 14(b)(1), which states,

If two or more offenses have been joined or consolidated pursuant

to Rule 8(b), the defendant shall have a right to a severance of the

offenses unless the offenses are part of a common scheme or plan

and the evidence of one would be admissible upon the trial of the

others.

Because the trial court’s decision regarding consolidation is determined from the evidence presented

at the hearing, “appellate courts should usually only look to that evidence, along with the trial court’s

findings of fact and conclusions of law, to determine whether the trial court abused its discretion by

improperly joining the offenses.” Spicer, 12 S.W.3d at 445.

At the consolidation hearing on April 15 and 16, 1996, all four victims testified about their

encounters with the defendant. The victims’ testimony was substantially similar to their testimony

at trial. Testimony particularly relevant to the issue of consolidation included the following: D. C.

testified that in the first or second week of August 1991, she was twenty-five years old and working

as a prostitute when the defendant picked her up on the corner of Central Avenue and Magnolia

-21-

Avenue around 6:30 or 7:00 p.m. As the defendant drove away, he pulled out a pistol. During the

drive, he told her that she could jump out of the truck because she was going to die anyway. The

defendant drove to a barn near the zoo, where he then raped her. The defendant pulled her hair, hit

her, and choked her during the episode. The defendant tied her hands together with rope at one point

and called her derogatory names throughout the encounter. She said that it was not common for

dates to call her derogatory names. The defendant also told her that he was going “to kill all you

pretty whores” and “all you bitches.”

A. D. testified that in the first week of October 1992, she was twenty-five years old and

working as a prostitute when the defendant approached her around 5:30 a.m. She was on Magnolia

Avenue, and the defendant suggested that they go to Cahaba Lane, offering her fifty dollars, which

was more than she usually made. She stated that the defendant mentioned people she knew, which

made her more comfortable about going with the defendant. Once at Cahaba Lane, the defendant

hit her and called her derogatory names. The defendant threatened to kill her, stating that he had a

knife, although she said she never saw a knife. She stated that it was not common for dates to hit

her or to call her derogatory names, although she said that it sometimes happened. She said that the

defendant did not tie her up with rope.

D. L. testified that in September 1992, she was nineteen years old and working as a prostitute

when the defendant picked her up at the Circle Inn around 1:00 p.m. The defendant offered to pay

her fifty dollars if she performed oral sex, for which she normally charged twenty-five dollars. The

defendant told her he wanted to go where he took P. J., who was someone she knew. She accepted

the defendant’s offer, and then he drove to Cahaba Lane. During the encounter, the defendant tied

her up with rope, choked her, and threatened to kill her, stating that he hated all prostitutes. She did

not remember if the defendant used profanity.

G. T. testified that in February 1992, she was twenty-five years old and working as a

prostitute when the defendant picked her up on the Gay Street viaduct around 8:00 or 8:30 a.m. She

suggested that they go to Cahaba Lane, and the defendant drove there without her giving him

directions. She stated that the defendant tied her hands together with rope and attempted to rape her

anally. He then grabbed her by her hair and forced her to perform fellatio on him. He also attempted

to have vaginal intercourse with her. During the rapes, the defendant threatened to shoot her,

although she did not see a gun. She stated that she had never been tied up before and that it was

unusual for dates to hit her, although it happened “at times.” She also said that dates did not usually

curse her.

Based upon the testimony of these four victims, the trial court found that there was a

common scheme or plan and that the evidence in each case would be admissible in the other cases

if they were to be tried separately. Regarding the common scheme or plan, the trial court stated,

These are the things that struck me about the testimony: First of

all, the time frame. The time frame we have here are offenses

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occurring between August of 1991 and October 1992, a period of,

approximately, fourteen months. . . .

The cases, of course, speak to time frames. I recall time

frames of nineteen months and greater periods of time than this

in the cases where consolidation was granted. But, in any event,

it is a fourteen-month time frame that we are dealing with here.

In each case, we have a young, white female prostitute

between the ages of eighteen and twenty-two years old, who were

all picked up either on or adjacent to Magnolia Avenue or on the

Gay Street viaduct, . . . approximately a quarter mile from

Magnolia Avenue, all within, I would estimate, a one-mile radius

of one another within the downtown area of Knoxville,

Tennessee.

Of course, three of these victims were taken to Cahaba

Lane. One of them was taken to the Chilhowee Park area, zoo

area, general area around the zoo, or the animal barns out there.

In each case – or in many of the cases – again now these

next remarks that I address, I would point out that these did not

necessarily happen in all four cases, but they happened in a

minimum of two, sometimes in three, sometimes in four of the

cases.

The testimony of these victims was that Mr. Huskey used

profanity, and a great deal was made about this. Particularly, he

used the phrase “bitch” and “whore” and “slut” and made

references to prostitutes on a number of occasions with a number

of these different victims.

We talked about that a good deal, and the testimony was

that this was not common. Despite what some people might

think, that the use of profanity and the use of derogatory

comments to prostitutes engaged in their profession or on “dates”

is not a common thing for them to experience.

Further, there was physical violence in virtually every case

– in all cases – and threatened violence either with a weapon or

the threatened use of a weapon with virtually all of these victims.

The defendant pulled the hair of three of the four victims. His

nature was abusive.

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A particularly interesting aspect, I thought, was the

characteristic – personal characteristic that, if the victim cried or

begged, this would anger the perpetrator, and he would react by

either physically assaulting and/or threatening to physically

assault the victim, if they engaged in that kind of conduct.

The type of sex acts. Oral sex in each case, the attempted

and/or accomplished vaginal sex; the attempted or accomplished

anal sex of these individuals. Three of the four were left at the

scene of the crime; one was returned to town. He robbed some of

these victims . . . at least, in two of the cases. . . .

There was the force – the commonality of the forced

removal of clothing of all these victims, again something that you

would think not uncommon. But the testimony that was elicited

was that it was somewhat uncommon; that many times clothing

is not removed to accomplish the sex act.

The practice of tying these victims up. He tied three of the

four victims up during the perpetration of the crime.

Again, with some of these victims he put them at ease by

mentioning other prostitutes that the victims knew, in an effort to

give them a sense of security, so that they would be at ease, in

terms of going with him on a date – a prostitute date.

Also, in a couple of the cases, he increased the price that

would normally be demanded for the type of service, in an effort

to convince the prostitutes – these victims – that they should go

to a location that they would not otherwise have agreed to go to.

Like I say, there are some differences here. These things

that I have mentioned certainly don’t apply in each and every

case. Some of them do; many of them don’t apply in every case.

The time of day, for instance, was different. The exact sexual

acts. There was some differences. There is no question that there

are some differences, but I don’t think that the case law requires

a finding of identical acts throughout the course.

The question is whether or not the similarities outweigh the

differences and lead to the conclusion that the defendant was the

individual who committed the offenses. I think, when you

examine all the facts in these cases and look at the overall picture,

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which I think you are required to do by the case law, that the

manner and method – the acts of the perpetrator provide a

commonality in these cases that runs throughout the cases.

The trial court also analyzed whether the evidence of each case would be admissible in trials of the

others using Rule 404(b), Tenn. R. Evid., stating that one of the exceptions to the general rule

prohibiting evidence of other crimes is identifying the defendant as the perpetrator based upon the

fact that the acts are part of a common scheme or plan. The court stated that it then considered,

pursuant to Rule 404(b), whether the probative value of the evidence of the other crimes or wrongs

was outweighed by the danger of unfair prejudice. In its ruling regarding the admissibility of the

evidence of the other offenses, the trial court stated that the “probative value of the evidence

outweighs any unfair prejudice; or to say it another way, the probative value is not outweighed by

the unfair prejudice, and the evidence in these cases is so related that the proof of one tends to

establish the proof of the other.”

The defendant first contends that the state’s March 21, 1996 consolidation motion was

untimely, arguing that the motion violated Rule II of the Knox County Criminal Court Local Rules

of Practice, which provides that pretrial motions be filed no later than thirty-one days after

arraignment. The state contends that the motion was filed timely pursuant to Rule 12(b)(5), Tenn.

R. Crim. P., and that the local rule relied upon by the defendant is applied with flexibility, does not

preclude a court from considering motions after the operative date, and does not provide any remedy

for a violation.

Rule 12(b)(5), Tenn. R. Crim. P., provides that requests for consolidation must be made

“prior to trial,” which has been interpreted to mean “sometime earlier than ‘the day of the trial when

the jury is waiting in the hall.’” Spicer, 12 S.W.3d at 444 n.6 (quoting State v. Hamilton, 628

S.W.2d 742, 744 (Tenn. Crim. App. 1981)). In the present case, the state filed its motion for

consolidation almost two months before trial. Thus, the state correctly argues that it complied with

Rule 12(b)(5). However, the defendant asserts that the state failed to comply with Rule II of the

Knox County Criminal Court Local Rules of Practice, which states in pertinent part,

Time for Filing Pretrial Motions. All pre-trial motions made

pursuant to Rule 12(b) and Rule 21 Tenn. R. Crim. P. must be

filed and served no later than 31 days after arraignment.

Obviously, the state did not comply with this rule.

The state argues that the rule is applied flexibly and does not preclude a court from

considering motions after the operative date. It states that nearly all of the defendant’s pretrial

motions were filed after the time allowed by the local rule. We note that on one occasion during

pretrial motion hearings, the trial court commented, in response to an argument by the defendant

concerning the local rules, “What you are urging this court to do at this time is to enforce local rules

that are not uniformly enforced in this court or in any other court. Both sides in this litigation have

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violated the local rules on a number of occasions, continue to do so. . . . I am going to rule on this

motion on its merits.” Furthermore, we note that Rule XI of the Knox County Criminal Court Local

Rules of Practice provides that the “Court may modify or abstain, in its discretion, from applying

any of the foregoing rules when to follow the rules would be unfair or would work any injustice.”

Considering the trial court’s comments regarding the local rules and the fact that almost every

motion, both from the state and from the defendant, was filed after the thirty-one day deadline, the

trial court must have opted to exercise its discretion by not applying Rule II. Accordingly, the state’s

motion to consolidate was not untimely due to violating the local rule.

The defendant next argues that the trial court erred in consolidating the indictments because

the offenses were not parts of a common scheme or plan. In Tennessee, there are three categories

of common scheme or plan evidence:

(1) offenses that reveal a distinctive design or are so similar as to

constitute “signature” crimes;

(2) offenses that are part of a larger, continuing plan or

conspiracy; and

(3) offenses that are all part of the same criminal transaction.

State v. Moore, 6 S.W.3d 235, 240 & n.7 (Tenn. 1999) (noting that common scheme or plan

evidence for consolidation or severance purposes is the same as common scheme or plan evidence

for evidentiary purposes). At the motion hearing, the parties and the trial court focused on the first

category. On appeal, the state also asserts that the victims’ testimony establishes a larger, continuing

plan to terrorize prostitutes.

For the offenses to reveal a distinct design, the “modus operandi employed must be so unique

and distinctive as to be like a signature.” Moore, 6 S.W.3d at 240 (quoting State v. Carter, 714

S.W.2d 241, 245 (Tenn. Crim. App. 1986)). Although the offenses do not have to be identical in

every respect, a common scheme or plan is not found merely because there was evidence that the

defendant committed the multiple offenses or because the similarities of the offenses outweigh the

differences. Id. at 240-41. “Rather, the trial court must find that a distinct design or unique method

was used in committing the offenses.” Id. at 241. The method of perpetrating the crimes must

employ “‘such unusual particularities’” that a reasonable person could believe it unlikely that

different people were using this method. Id. at 240 (quoting Harris v. State, 189 Tenn. 635, 644, 227

S.W.2d 8, 11 (1950)).

In this case, the trial court stated, “The question is whether or not the similarities outweigh

the differences and lead to the conclusion that the defendant was the individual who committed the

offenses.” As noted above, our supreme court in Moore stated that this was not the proper test to

determine whether multiple offenses reveal a distinct design. The trial court did not specifically find

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that a distinct design or unique method was used in committing the crimes. Thus, we consider

whether the evidence establishes the use of a distinct design or unique method.

First, we do not believe that the trial court’s piecemeal approach to considering the

similarities of the offenses was appropriate. See, e.g., Shirley, 6 S.W.3d at 249. In other words, we

do not believe a trial court can use events that happened in some of the cases to support

consolidation of all of the cases. Id. (noting, for example, the fact that the perpetrator wore a green

army jacket in two robberies and a black shirt and grey sweatshirt in the other two did not support

the presence of a distinct design). With this in mind, we note that the similarities found in all four

cases include that the defendant picked up young, white female prostitutes in the same area; that the

defendant treated them violently, which A. D. and G. T. testified was not common for dates to do;

and that the defendant threatened to kill the victims. Also, D. C. and A. D. testified that the

defendant called them derogatory names. G. T.’s testimony at the consolidation hearing implies that

the defendant called her derogatory names. This implication is confirmed by her trial testimony.

We note that although D. L. said at the hearing that she could not remember if the defendant used

profanity, she testified at trial that the defendant called her “bitch.” Regardless, we do not believe

that these similarities establish a distinct design or unique method in committing the offenses relative

to all four victims.

However, we believe that additional similarities in D. L.’s, A. D.’s, and G. T.’s cases

establish that the crimes relative to these victims were committed with a distinct design or unique

method. First, these crimes occurred in February, September, and October 1992, shrinking the time

period in which the crimes were committed. Moreover, and more importantly, although all four

victims were hired for sex and voluntarily got into the defendant’s car, D. L., A. D., and G. T. had

pleasant drives with the defendant, who drove them to the same, remote location, the dead end area

of Cahaba Lane, where he then attacked them. We believe that this method – “hiring” young, female

prostitutes from the same area and driving them, under the pretense that they would perform sex for

money, to a specific, remote area, where the defendant could then attack them without the risk of

detection – is sufficiently unique to establish a common scheme or plan.

We note that another panel of this court has determined that similarities in the victims, the

location, the timing, and the means by which the perpetrator committed the crimes established a

distinct design. State v. Marcus Fitzgerald, No. W2000-02669-CCA-R3-CD, Shelby County, slip

op. at 5 (Tenn. Crim. App. Jan. 15, 2002). In Fitzgerald, both victims were African-American

females who lived in the same neighborhood and knew the defendant as “Bubba.” The offenses,

aggravated rapes, occurred in different abandoned houses on the same street and within twenty-four

hours of each other. The perpetrator, who was undisguised, had brief conversations with the victims

before each offense. He then grabbed the victims by the neck from behind and dragged them into

the vacant houses. Although only one victim saw the defendant with a knife, he threatened both

victims with a knife and both were released after the offense. In the present case with respect to D.

L., A. D., and G. T., the defendant chose similar victims from the same area and took them to the

same, remote location. Although the offenses occurred over seven months, the undisguised

defendant “hired” each victim to provide sex for money and had pleasant drives with each to Cahaba

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Lane. Once there, the defendant hit or choked the victims or pulled their hair, threatened to kill

them, and called them derogatory names. As in Fitzgerald, the crimes against D. L., A. D., and G.

T. reveal a distinctive design.

In contrast, when D. C. got into the defendant’s car, the defendant pulled out a gun and then

drove erratically, not stopping for red lights, to a barn at the zoo. Although the defendant threatened

the other victims with the use a weapon, he did not display a weapon to any of the other victims and

did not threaten them until he had reached his isolated destination. Thus, the offenses against D. C.

were accomplished differently than the offenses in the other cases. Accordingly, we conclude that

the trial court abused its discretion in consolidating D. C.’s case with the other three cases under the

distinct design category of common scheme or plan evidence.

The state contends on appeal that the offenses fall within the second category of common

scheme or plan – the larger, continuing plan or conspiracy category – and argues that the defendant’s

threats to kill all prostitutes combined with the abusive nature of the offenses reveal a larger,

continuing plan to terrorize prostitutes. With respect to this contention, we note that the defendant

told D. L. that he hated all prostitutes and that he was going to kill her. He told D. C. that he was

going “to kill all you pretty whores” and “all you bitches.” D. C. and D. L. testified that the

defendant tied their wrists together with rope, which was not common for dates to do. All four

victims testified that the defendant treated them violently, threatened to kill them, and called them

derogatory names. The state argues that the defendant used violence in perpetrating the offenses in

order to frighten the victims, who were willing to have sex with him without force. It maintains that

the defendant committed all of the offenses in order to promote his goal of terrorizing prostitutes.

“The larger, continuing plan category encompasses groups or sequences of crimes committed

in order to achieve a common ultimate goal or purpose.” State v. Hallock, 875 S.W.2d 285, 290

(Tenn. Crim. App. 1993); Neil P. Cohen et al., Tennessee Law of Evidence § 404[12][c], at 4-93 (4th

ed. 2000) (“The unifying concept of crimes admitted under this theory is not their high degree of

similarity but the common goal or purpose toward which each crime is directed.”). This theory was

not argued at the hearing, and the defendant’s reply brief addresses the state’s argument by merely

stating that it was rejected in State v. Rickman, 876 S.W.2d 824 (Tenn. 1994). We disagree with

the defendant’s interpretation of Rickman, in which our supreme court held that there was no sex

crimes exception to the general rule that evidence of other crimes is not admissible in criminal

prosecutions. Id. at 829. Rickman does not involve, or mention, common scheme or plan evidence.

Thus, Rickman did not reject the state’s argument that the defendant’s larger, continuing plan to

terrorize prostitutes established a common scheme or plan.

On the other hand, case law reveals that the larger, continuing plan category is difficult to

separate from the distinct design category, especially in the area of sex crimes. This court has

rejected the contention that sex crimes against different victims in the same household can be

consolidated based upon a common goal of achieving sexual gratification. Hallock, 875 S.W.2d at

290. Hallock provides the following example to illustrate the fallacy in classifying such crimes as

a larger, continuing plan: “X is on trial for three counts of burglary, each involving a different

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building, a different form of entry, and a different day. His overall purpose, however, was to acquire

money for college. Clearly, without more, X is entitled to severance under Rule 14(b)(1).” Id. at

290; see also State v. Adams, 859 S.W.2d 359, 362 (Tenn. Crim. App. 1992) (holding that a shared

motivation is insufficient to prove a common scheme or plan even when the offenses share some

similarities). Despite defining the larger, continuing plan category as focusing on the perpetrator’s

purpose in committing the crimes, this example in Hallock reveals that, at least when evidence of

the other crime is being offered to prove identity, a distinctive design is required. The fact that a

defendant has a common goal in committing crimes does not mean that proof of the individual,

disparate crimes will reveal his identity. This conclusion is supported by the holding in State v.

Ronald Prentice, cited by the defendant as supplemental authority, in which this court concluded that

a common motive to terrorize the victim, the defendant’s estranged wife, was insufficient to show

a common scheme or plan when the assaults were otherwise unrelated in time, location, and

character. No. M2000-02937-CCA-R3, Davidson County, slip op. at 4 (Tenn. Crim. App. Dec. 28,

2001).

Our review of Tennessee cases in which the larger, continuing plan was the category of

common scheme or plan also supports our conclusion that only the signature crimes category can

be used when the basis for 404(b) admissibility is identity. In the wake of Hallock and Adams, the

larger, continuing plan category has typically been applied to cases involving crime sprees, when

the defendant commits several crimes close in time to each other. See, e.g., State v. Hall, 976

S.W.2d 121, 146 (Tenn. 1998) (appendix) (holding the burglaries, larcenies, and murders committed

by the defendants during the week following their escape from a Kentucky prison were part of a

larger plan to flee the country and the Kentucky authorities); State v. Joe N. Anderson, Jr., No.

E1998-00378-CCA-R3-CD, Hamilton County (Tenn. Crim. App. Dec. 9, 1999), app. denied (Tenn.

Sept. 11, 2000) (concluding that the perpetrators had a larger goal to rob and murder after they

attempted to rob and then shot the first victim at his home then killed a sleeping truck driver in the

early morning of the same day). In those cases that mention identity as one of the bases for 404(b)

admissibility, it is not proof of the other crime itself which provides evidence of identity but

evidence found at the other crime scene that tends to connect the defendant to other crimes in the

scheme. See, e.g. Hall, 976 S.W.2d at 146 (appendix) (discussing that evidence found at some of

the crime scenes linked the defendants to other crimes in the spree); Joe N. Anderson, Jr., slip op.

at 8 n.3 (noting that the evidence of the other crime was relevant to identity because proof that the

defendant fired the gun at the victim in the first crime tended to establish that he was the shooter in

the second crime). Additionally, our supreme court has observed that identity is the most frequent

basis for using evidence of a distinctive design. Moore, 6 S.W.3d at 239; Shirley, 6 S.W.3d at 248.

Based upon Hallock and its progeny along with our supreme court’s current trend to disfavor

the consolidation of cases, we do not believe that a generalized goal to terrorize prostitutes occurring

over a fourteen-month period provides a sufficient basis to consolidate D. C.’s case with the others.

As discussed above, the similarities in D. C.’s case do not amount to a signature crime. We do not

believe that a generalized goal to terrorize prostitutes can establish the identity of the defendant as

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the perpetrator in D. C.’s case, especially given the differences in location and abduction in her case.

Thus, the trial court erroneously found D. C.’s case to be part of a common scheme or plan.

We next address whether evidence of each offense would have been admissible in the trials

of the others if they had not been joined. We first consider the admissibility of the other crimes

evidence as it relates to D. L., A. D., and G. T. The primary issue in a severance case under Rule

14(b)(1), Tenn. R. Crim. P., is “whether evidence of one offense would be admissible in the trial of

the other if the two offenses remained severed.” Spicer, 12 S.W.3d at 445 (noting that in its most

basic sense, whether offenses should be tried separately is “really a question of evidentiary

relevance”); Moore, 6 S.W.3d at 239. The evidentiary rule at issue is Rule 404(b), Tenn. R. Evid.,

which excludes evidence of other crimes, wrongs, or acts committed by the defendant when offered

only to show propensity to commit those crimes, wrongs, or acts. However, Rule 404(b) does not

bar such evidence when offered at trial to prove another relevant issue such as to show motive of the

defendant, intent of the defendant, identity of the defendant, absence of mistake or accident if that

is a defense, or “a common scheme or plan for commission of two or more crimes so related to each

other that proof of one tends to establish the other.” Collard v. State, 526 S.W.2d 112, 114 (Tenn.

1975). However, our supreme court has noted that admission of common scheme or plan evidence

has expanded by circular argument in that the evidence is often considered relevant and admitted

“merely because it is evidence of a common scheme or plan,” and it has concluded that admission

of common scheme or plan evidence is proper only when introduced to show motive, identity, intent,

absence of a mistake or accident if that is a defense, or some other relevant issue. Moore, 6 S.W.3d

at 239 n.5.

The state contends that evidence of each offense would have been admissible in the trials of

the others because the evidence established identity, intent, and motive. We agree that the other

crimes evidence would have been admissible to establish identity because of the unique method in

which the defendant committed the crimes against D. L., A. D., and G. T. The defendant asserts that

the other crimes evidence would not have been admissible in the trials of the other cases because

each victim identified the defendant as the perpetrator. See Moore, 6 S.W.3d at 239 (holding that

consolidation was improper because the evidence of the other crimes was not relevant to any issue

at trial, noting that identity of the perpetrator was not an issue). In this case, however, identity was

an issue. Simply because the state had other evidence – victim identification – to indicate that the

defendant was the perpetrator does not mean that identity was not a material issue.

At trial, the defendant, as could be anticipated from his cross-examination of the victims at

the consolidation hearing, vigorously cross-examined the victims, impeaching their testimony and

arguing to the jury that they could not be believed. Moreover, the defendant argued relative to each

victim that he was not the perpetrator of the offenses. Indeed, the defendant requested that the jury

be instructed regarding identification. The instruction submitted by the defendant, which the trial

court used, began, “One of the issues in this case is the identification of the defendant as the person

who committed the crime.” Accordingly, we conclude that the other crimes evidence was relevant

to establish identity relative to offenses committed against D. L., A. D., and G. T. However, because

of the factual differences in D. C.’s case, we cannot conclude that the evidence of the offenses

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against her were admissible in the trials of the others to establish identity or for any other reason.

Likewise, the evidence of the offenses against the other three victims would have been inadmissible

in a separate trial of the offenses against D. C.

The defendant next argues that the trial court erred in finding that the probative value of the

other crimes evidence outweighed the danger of unfair prejudice. Factors to consider in determining

the evidence’s probative value include “the prosecution’s need for the evidence, the likelihood the

defendant committed the other crimes, and the degree of its relevance. The similarity of the acts

makes the probative value particularly significant.” State v. Edwards, 868 S.W.2d 682, 691 (Tenn.

Crim. App. 1993). In this case, the evidence was important to establish identity. Little or no

physical evidence of the offenses existed, and the victims’ identifications were subject to attack, as

demonstrated by the defendant’s cross-examination of the victims at the hearing. Also, the evidence

presented at the hearing indicated that it was likely that the defendant committed the offenses.

Finally, the similarity of the offenses adds to the probative value. We hold that the probative value

of admitting the evidence of the other offenses was significant.

We note that the other crimes evidence, though probative, is certainly prejudicial. However,

the test requires balancing probative value with the danger of unfair prejudice. See State v. DuBose,

953 S.W.2d 649, 654-55 (Tenn. 1997). “Because the test of Rule 404(b) is one of balance, when

evidence of prior acts is highly probative of a material issue at trial, the chance of unfair prejudice

to the defendant is correspondingly diminished.” State v. Mallard, 40 S.W.3d 473, 488 (Tenn.

2001). In this respect, we believe that the other crimes evidence in this case was highly probative

of identity, and we cannot say that the danger of unfair prejudice outweighed its value. Accordingly,

we do not believe that the trial court abused its discretion in admitting such evidence. In summary,

we conclude that the state’s motion was timely, the offenses relative to D. L., A. D., and G. T. were

parts of a common scheme or plan, and the evidence of each of these offenses would have been

admissible in the trials of the others. We hold that the defendant’s offenses relative to D. L., A. D.,

and G. T. were properly consolidated.

We must now determine whether the error in consolidating D. C.’s case more probably than

not affected the judgments. See T.R.A.P. 36(b). Whether to grant a severance under Rule 14(b)(1),

Tenn. R. Crim. P., is primarily an evidentiary question, and thus, “the effect of a denial of that right

is weighed by the same standard as other non-constitutional evidentiary errors: the defendant must

show that the error probably affected the judgment before reversal is appropriate.” Moore, 6 S.W.3d

at 242. Our supreme court has stated that in most severance cases, “‘the line between harmless and

prejudicial error is in direct proportion to the degree . . . by which proof exceeds the standard

required to convict.’” Spicer, 12 S.W.3d at 447-48 (quoting Delk v. State, 590 S.W.2d 435, 442

(Tenn. 1979)).

In this case, the evidence supporting the convictions consisted almost exclusively of the

testimony of the victims. While this evidence was sufficient to support the convictions, it did not

provide overwhelming proof of the defendant’s guilt. See Spicer 12 S.W.3d at 448. With respect

to the perceived propensity to commit similar crimes, we recognize that although a different method

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was used in committing the offenses against D. C., the fact that the defendant was accused of

committing the same types of crimes against all of the victims created the strong potential for the

jury to consider the other crimes evidence improperly as propensity evidence. The unfair prejudice

resulting from the jury learning of the crimes against the other victims outweighs any probative

value that could be derived from the evidence in the other cases. Thus, the consolidation of D. C.’s

case with those of the other victims probably affected the judgments in D. C.’s case.

On the other hand, with regard to the offenses against the other three victims, we do not

believe that the defendant was harmed by the evidence relating to D. C.’s case. Importantly, the jury

properly heard evidence relating to three victims, and thus, we believe it unlikely that the evidence

relating to a fourth victim would sway the jury based upon the defendant’s propensity to commit the

crimes. The defendant was not harmed by the erroneous consolidation of D. C.’s case with the other

three cases.

ISSUES RELATING TO BOTH CASES

II. SPEEDY TRIAL

The defendant contends that he was denied speedy trials in all of his cases, including both

the first and the consolidated rape cases. We note that much of defendant’s argument concerns the

denial of his right to a speedy trial in the homicide cases, which are not before this court in this

appeal. We address below whether the defendant was denied his right to a speedy trial in both rape

cases.

Pursuant to the Sixth Amendment of the United States Constitution and to article 1, section

9 of the Tennessee Constitution, a criminal defendant has the right to a speedy trial. See also Tenn.

Code Ann. § 40-14-101; Tenn. R. Crim. P. 48(b). The right is meant to protect the defendant

“against oppressive pre-trial incarceration, the anxiety and concern due to unresolved criminal

charges, and the risk that evidence will be lost or memories diminished.” State v. Utley, 956 S.W.2d

489, 492 (Tenn. 1997). In Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192 (1972), the

Supreme Court devised a balancing test to determine speedy trial issues and identified the following

factors for consideration: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's

assertion of his right to a speedy trial, and (4) the prejudice to the defendant. None of the four

factors are “either a necessary or sufficient condition to the finding of a deprivation of the right of

speedy trial.” Id. at 533, 92 S. Ct. at 2193. Rather, the factors must be “considered together with

such other circumstances as may be relevant.” Id. In State v. Bishop, 493 S.W.2d 81 (Tenn. 1973),

our supreme court implicitly adopted the Barker balancing test for our state constitutional and

statutory rights to a speedy trial. The remedy for the denial of a speedy trial is dismissal of the

charges. Strunk v. United States, 412 U.S. 434, 439, 93 S. Ct. 2260, 2269 (1973).

On April 29, 1996, well after the first rape trial and three weeks before the consolidated rape

trial, the defendant moved to dismiss the charges against him for the denial of a speedy trial.

Although the motion only stated that the defendant was seeking dismissal of the homicide cases, the

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defendant argued that demanding a speedy trial in the homicide cases necessarily meant that he was

demanding one in the rape cases. On May 9, 1996, the trial court considered this argument and

stated that the defendant’s motion to dismiss would apply to all of his cases. On December 12, 1998,

the trial court denied the defendant’s motion to dismiss. We note, however, that the court’s order,

on its face, relates to the homicide cases. Regardless, the defendant’s failure to secure a ruling on

his motion to dismiss as it relates to the rape cases does not waive the issue on appeal. Indeed, even

the failure to demand a speedy trial does not constitute a waiver of the issue. See Barker, 407 U.S.

at 528, 92 S. Ct. at 2191; Bishop, 493 S.W.2d at 84. Thus, we consider whether the defendant was

denied a speedy trial.

The defendant argues that the length of delay between charges being filed and his trials was

unreasonable, that the state caused the delay, that he timely demanded a speedy trial, and that he was

prejudiced as a result of the delay. The state argues that the defendant specifically stated that his

demand for a speedy trial related only to his pending homicide cases and that, regardless, the

defendant was the cause of the delay and was not prejudiced.

The first factor, the length of the delay, is a threshold factor, serving as the triggering

mechanism that will necessitate consideration of the other three factors. Barker, 407 U.S. at 530,

92 S. Ct. at 2192. If the length of the delay is not presumptively prejudicial, then the other factors

need not be considered. Id. Although what constitutes an ordinary length of delay depends on the

complexity of the case, delays of one year or longer are usually enough to trigger the Barker inquiry.

See Doggett v. United States, 505 U.S. 647, 652 n.1, 112 S. Ct. 2686, 2691 n.1 (1992); see also State

v. Turnbill, 640 S.W.2d 40, 42 (Tenn. Crim. App. 1982) (concluding that a thirteen-month delay was

presumptively prejudicial so as to apply the balancing test). In this case, the first rape trial occurred

in October 1995, three years after the defendant was charged, and the consolidated rape trial occurred

in May 1996, three years and seven months after he was charged. Although these cases were

complex, the lengths of these delays trigger consideration of the other Barker factors.

In State v. Wood, 924 S.W.2d 342, 346-47 (Tenn. 1996), our supreme court stated that the

second Barker factor, the reason for the delay, generally falls into one of four categories:

(1) intentional delay to gain a tactical advantage over the defense or delay designed

to harass the defendant; (2) bureaucratic indifference or negligence; (3) delay

necessary to the fair and effective prosecution of the case; and (4) delay caused, or

acquiesced in, by the defense. The first type, intentional delay, is weighed heavily

against the State. The second type, negligent delay, is also weighed against the State

although not as heavily as deliberate delay. The third type of delay is, by definition,

justifiable and is not weighed against either party. The fourth type of delay, which

is caused or acquiesced in by the defendant, is weighed against the defendant.

Not surprisingly, the defendant and the state differ greatly in their views regarding the reasons for

the delay – the defendant asserting that the state was to blame for the delay and the state asserting

that the delay was caused entirely by the defendant.

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Our review of the record reveals that the reasons for the delays fall into categories (3) and

(4). Most of the delay can be attributed to the complexity of the defendant’s cases, which required

extensive discovery and resulted in a prolific motion practice, largely by the defendant. We note that

the trial court granted the defendant numerous extensions of time to file motions. Likewise, the

court granted the state extensions of time to respond to the defendant’s motions, to which the

defendant did not object. We also note that the first rape trial was continued twice at the defendant’s

request. We conclude that much of the delay associated with both rape trials was necessary to the

fair and effective prosecution of the cases. This delay is justifiable and not weighed against either

party.

The state argues that the defendant caused the delays by requesting continuances and

extensions of time and by his prolific motion practice. Given the number of charges and the

complexity of the cases, we do not believe that the defendant’s actions were unreasonable. However,

the defendant’s demand for a speedy trial, or lack thereof, indicates that the defendant acquiesced

in the delay. The defendant did not demand a speedy trial until January 1995, and at that time he

requested a speedy trial in the homicide cases. Importantly, he specifically stated at that time and

even as late as January 16, 1996, that he was not requesting a speedy trial in the rape cases. Indeed,

the defendant’s argument was based upon his wanting the homicide cases tried before the rape cases

to avoid any resulting conviction in the rape cases being used as an aggravating factor in sentencing

for the homicide cases. On April 29, 1996, the defendant moved to dismiss all of the charges against

him for the denial of a speedy trial. At this time, he argued, and the court accepted, that his motion

applied to the rape cases as well as the homicide cases. In summary, the defendant specifically

stated that he was not demanding a speedy trial in the rape cases, and he did not change this position

until after the first rape trial and only weeks before the consolidated rape trial. We conclude that the

defendant acquiesced in the delay, which weighs against the defendant.

Furthermore, we note that the record does not reveal that the state acted intentionally to gain

a tactical advantage or to harass the defendant. While the extended time that it took for the state to

respond to the defendant’s motions could be, in some cases, characterized as neglect or bureaucratic

indifference, we believe that in these cases, in light of the number and content of the defendant’s

motions, the amount of time taken to respond was not unreasonable. Thus, regarding the second

Barker factor, we conclude that most of the delay was necessary to the fair adjudication of the cases.

Additionally, we conclude that the defendant acquiesced in the delay. Accordingly, this factor

weighs against the defendant.

The third Barker factor is the defendant’s assertion of his right to a speedy trial. While

failure to demand a speedy trial does not result in a waiver of the right, “evidence that the defendant

did not want a speedy trial would never warrant the finding of a constitutional violation except in

‘extraordinary circumstances.’” State v. Baker, 614 S.W.2d 352, 355 (Tenn. 1981); see also Barker,

407 U.S. at 532, 92 S. Ct. at 2193 (“We emphasize that failure to assert the [speedy trial] right will

make it difficult for a defendant to prove that he was denied a speedy trial.”). In this case, the

defendant first orally demanded a speedy trial on January 12, 1995, about nine months before the

first rape trial. However, that request was specifically for the homicide charges against the

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defendant. In fact, defense counsel stated that “we are not requesting a speedy trial in the other

cases.” The defendant’s written demand for a speedy trial, filed February 13, 1995, also referred

only to the homicide cases. The defendant restated this position on January 16, 1996. On that date,

the parties were discussing the setting of trial dates, and when the state asked the defendant whether

he was waiving his right to a speedy trial, the following exchange occurred:

THE COURT: Do you waive speedy trial,

gentlemen?

....

[DEFENSE COUNSEL]: On the February case, yeah. It

doesn’t make any difference. We

still have the same trial schedule.

[DISTRICT ATTORNEY]: Now – but, now, they’ve got a

speedy trial motion down, you see.

[DEFENSE COUNSEL]: On the death case only. The only

case we have a motion for a speedy

trial is on the death case.

The defendant’s first demand for a speedy trial relative to both rape cases occurred April 29, 1996,

well after the first rape trial and about three weeks before the consolidated rape trial. On this date,

the defendant filed a motion to dismiss for the denial of a speedy trial in all of his cases. In that

motion, he argued that because the state had elected to try the rape cases before the homicide cases,

his demand for a speedy trial in the homicide cases was also a demand for a speedy trial in the rape

cases. We note that this argument was contrary to his January 12, 1995 oral demand and his

February 13, 1995 written demand. In light of the timing of and circumstances surrounding the

defendant’s assertion of his right to a speedy trial, we conclude that this factor weighs against the

defendant.

The fourth factor, whether the defendant has been prejudiced by the delay, is the most

important factor. See Baker, 614 S.W.2d at 355-56. Prejudice “should be assessed in the light of

the interests . . . the speedy trial right was designed to protect,” which are (1) to prevent oppressive

pretrial confinement, (2) to minimize the defendant's anxiety and concern that accompanies

prosecution, and (3) to limit the possibility of the defense being impaired – the last being considered

the most serious interest because of its potential to skew the fairness of the entire system. Barker,

407 U.S. at 532, 92 S. Ct. at 2193.

The defendant does not fully explain how he was prejudiced by the delay in his brief, stating

that the “prejudice is so enormous it cannot be adequately summarized.” Nonetheless, his brief

contains numerous complaints regarding prejudice, and he also incorporates by reference lists from

his speedy trial motion and amendments to that motion. In all, the defendant lists eighty-seven items

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of prejudice. We note that many of these items relate to alleged prejudice resulting from delays that

occurred after one or both of the rape trials. With respect to this appeal, the defendant’s complaints

regarding prejudice include the following:

(1) He was denied full and fair consideration of his pretrial

motions in the consolidated rape case. Motion hearings

were pushed back to the eve of trial, and then after the trial

court granted consolidation a few weeks before the trial, the

trial court and state rushed to trial (i.e., insisted on keeping

the set trial date), preventing full and fair hearings on

numerous of his motions.

(2) He suffered from health problems resulting from living in

an unsuitable jail cell and being subjected to an unhealthy

diet.

(3) Prosecutors changed and as a result, procedures changed

during the course of the proceedings.

(4) Lifestyles of witnesses changed to the detriment of the

defense and to the benefit of the state.

(5) The proceedings were affected because parties became

involved in political campaigns.

(6) The law regarding peremptory challenges changed to the

defendant’s detriment.

(7) There were changes to the defendant’s detriment in the

judicial philosophy and public opinion regarding crime.

(8) His insanity defense was stricken in the rape cases because

he did not receive the report from the state’s expert on

insanity until December 22, 1998.

(9) Witnesses could not be found or could not remember

important information.

(10) Scientific evidence that was available earlier was no longer

available.

(11) 911 tape recordings were destroyed.

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(12) The defendant could not reconstruct his whereabouts to

present an alibi offense because he did not receive the bill

of particulars until March 1996.

(13) The Knox County Sheriff’s office misplaced materials.

(14) The trial court’s and counsel’s memory of rulings were

inconsistent and unreliable.

(15) Defense counsel was frustrated, discredited, and ridiculed

for insisting that the defendant’s motions be heard.

(16) Exculpatory, favorable, and impeaching evidence was

withheld.

These assertions do not prove that the defendant was prejudiced. While some of the assertions, if

taken as true, would be prejudicial, the assertions are broad and conclusory. They do not describe

which witnesses, what evidence, what materials, etcetera form the bases of the complaints.

Furthermore, it is not clear how some assertions, even if true, prejudiced the defendant. For

example, the defendant does not specify how political campaigns or changes in defense funding

prejudiced him. In any event, after reviewing the record and considering the defendant’s assertions

as they relate to the interests the speedy trial right is designed to protect, we conclude that the

defendant suffered minimal prejudice as a result of the delay in his trials.

In this case, the defendant was incarcerated while awaiting trial. However, the defendant had

a multitude of serious charges pending against him, including charges for four homicides. Because

of these charges, the defendant would have been incarcerated at least for some of the time period in

question, reducing the prejudice resulting from his incarceration. See United States v. Grimmond,

137 F.3d 823, 830 (4th Cir. 1998). Also, while we may assume that the defendant experienced

anxiety and had concerns regarding the rape cases while awaiting trial, his actions demonstrate that

his main concern was the pending homicide cases, in which the state had provided notice that it

would be seeking the death penalty. See id. In light of these circumstances and the fact that the

defendant did not take steps to expedite his rape trials, we conclude that the prejudice resulting from

the defendant’s incarceration and from his anxiety and concern relating to the rape charges is

minimal.

The final interest of the defendant that we consider regarding prejudice is whether his defense

was impaired by the delay. While the defendant has offered many broad, conclusory allegations of

prejudice, he has not shown particularized prejudice. We note that courts have recognized that

particularized proof regarding prejudice to one’s defense is difficult to prove. See Wood, 924

S.W.2d at 348 (stating that it “is often extremely difficult . . . for a defendant to demonstrate

specifically how the delay has impaired his ability to defend himself”). Accordingly, “affirmative

proof of particularized prejudice is not essential to every speedy trial claim.” Doggett, 505 U.S. at

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655, 112 S. Ct. at 2692. Moreover, “the presumption that pretrial delay has prejudiced the accused

intensifies over time.” Id. In this case, we presume that the delay impaired the defendant’s ability

to present a defense. However, this presumption of prejudice is weakened by the defendant’s

acquiescence in the delay. See Wood, 924 S.W.2d at 349. In summary, although the defendant was

prejudiced by the delay, the prejudice was minimal in light of the defendant’s other pending charges

and the fact that he acquiesced in the delay.

Summarizing the Barker factors, we conclude that the defendant suffered minimal prejudice.

However, most of the delay was necessary to the fair and effective prosecution of the cases.

Moreover, the defendant acquiesced in the delay, and he specifically stated that he was not

demanding a speedy trial in the rape cases, a position he did not change until after the first rape trial

and just before the consolidated rape trial. Upon balancing the factors, we conclude that the

defendant was not denied a speedy trial in either the first rape case or in the consolidated rape case.

III. UNLAWFUL ARREST, SEARCH, AND SEIZURE

The defendant contends that the trial court erred in refusing to suppress evidence seized from

his bedroom and his statements, which were gained as a result of his unlawful arrest. The

defendant’s contentions with regard to his arrest fall into four general categories: he argues that (1)

his thirty-day jail sentence for solicitation of prostitution was illegal, (2) the capias upon which he

was arrested is invalid, (3) the Knox County detectives lacked jurisdiction to arrest him in Sevier

County upon a capias addressed to the Knoxville Chief of Police, and (4) the officers lacked

probable cause to arrest him in the absence of the capias. He also contends that the trial court should

have suppressed evidence gained in the search of his residence almost three hours after his arrest

because the search warrant was invalid and no exception to the warrant requirement applied.

The state contends that the defendant has waived the claims relating to the validity of his

arrest, including that of an invalid capias, by pleading guilty to the charge of soliciting prostitution

and failing to appeal or collaterally attack that conviction. It also argues summarily that the capias

was valid and that the defendant was arrested by a Sevier County deputy. It asserts that the

defendant has failed to show that a procedural defect in his arrest requires the suppression of his

statements. Finally, it contends that even if the arrest had been unlawful, neither the evidence

gathered at the defendant’s home nor his statements were introduced in the rape cases and that,

therefore, he can prove no prejudice resulting from the arrest. With regard to the search of the

defendant’s residence, the state argues that the trial court properly admitted the evidence because it

was discovered in a search incident to arrest and was in the officers’ plain view.

We conclude that the issues of the defendant’s arrest and search are moot with regard to the

cases that we are affirming because none of the evidence gained from the arrest or search was

improperly used in either rape trial. In the event of a retrial of D. C.’s case, we hold that the capias

upon which the officers based the arrest was void. We affirm the trial court’s ruling that the search

warrant was invalid due to its failure to list the executing officer.

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We begin by reviewing the facts surrounding the defendant’s arrest and the search of his

home on October 21, 1992. At a February 7, 1996 suppression hearing, Knox County Sheriff’s

Detective Michael Upchurch testified that he was in charge of investigating the homicides, which

occurred near Cahaba Lane in Knoxville in October 1992. His investigation caused him to focus on

the defendant as a suspect, and he checked for outstanding warrants against the defendant. He found

an outstanding capias for failure to appear in Knoxville Municipal Court on a charge of solicitation

of prostitution. Knowing that the defendant had been employed at Teagues Statuary in Sevier

County, Detective Upchurch asked the Sevier County Sheriff’s Department to have an officer meet

him and Detectives Darrell Johnson, Dan Stewart, Mike Freeman, and Mike Grissom to arrest the

defendant on the capias and for questioning about the homicides. They first went to the statuary and

then proceeded to the defendant’s parents’ mobile home, where Detective Upchurch saw a truck

matching a description given in conjunction with his investigation parked in the driveway.

Detective Upchurch testified that at 9:30 p.m., he and Officer Jerry Huskey of the Sevier

County Sheriff’s Department went to the front door of the mobile home and that the other officers

went to the back door. Officer Huskey was in uniform and had parked his cruiser in front of the

mobile home. The defendant’s mother answered the door, and he and Officer Huskey identified

themselves. Detective Upchurch told her that he wanted to see the defendant, that a court had issued

a capias for the defendant for failure to appear in court, and that they were taking the defendant into

custody at that time. Mrs. Huskey told him that her husband and the defendant were in their beds

and that she would get the defendant. She invited them inside. The defendant came into the living

room and asked what they wanted. Detective Upchurch told him why they were there and that they

wanted to talk to him. The defendant said, “Fine. I need to get my shoes.” Detective Upchurch told

the defendant that he could get his shoes but that they would have to accompany him to his bedroom

because he was in custody. The defendant agreed to this and walked ahead of them down the

hallway.

Detective Upchurch testified that while he and Detective Stewart were standing just inside

the doorway of the defendant’s bedroom, he saw an orange hay-baling rope on the defendant’s floor.

He recognized it as the type of rope used to bind the rape victims. As the defendant sat on his bed

putting on his shoes, Detective Upchurch illuminated a dresser with his flashlight and saw a pair of

women’s earrings and a necklace on the top. The day before, one of the homicide victims’

boyfriends had told him that the victim had earrings in her purse. He did not confront the defendant

with the rope and jewelry at this point. The defendant refused to sign a consent to search form and

was then transported to the Sevier County Jail.

Detective Upchurch testified that Detective Stewart remained at the defendant’s bedroom

door to make sure that nothing was moved. The other detectives waited in their unmarked cars.

Although the defendant’s father had given his consent to search the whole residence, the Assistant

District Attorney advised him by telephone that he should get a search warrant for the defendant’s

bedroom. The Sevier County Sheriff’s Office provided him with a search warrant form. He

consulted with the Assistant District Attorney again and drafted the affidavit and warrant. He

acknowledged that he was not familiar with Rule 41, Tenn. R. Crim. P., but that he had undergone

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training relating to search warrants and was familiar with probable cause. Nevertheless, at the time

of the hearing, he had written only a few search warrants. He admitted that the search warrant

affidavit did not mention the jewelry that he had seen in the defendant’s room. He said that he noted

the jewelry on the list of items for which he was searching because he had seen it in the room and

knew it was there.

Detective Upchurch testified that he told Officer Huskey that he needed to go to a judge or

magistrate to get a search warrant signed, and Officer Huskey agreed to take him. He was taken to

Bruce Baker, who was introduced as a Sevier County magistrate. He handed the warrant to Mr.

Baker and asked if he needed to do anything else before Mr. Baker signed it. Mr. Baker signed the

warrant, and Detective Upchurch made three copies. He gave one of the copies to Mr. Baker, and

the other two copies were for the defendant and his father. Once he obtained the signed search

warrant, he returned to the defendant’s parents’ home and conducted the search. When Detective

Stewart picked up the earrings to bag them, Detective Upchurch saw a blonde hair entwined with

the necklace and the earrings. In addition to the items found in the defendant’s bedroom, he found

a knife on the bathroom sink. He said that the defendant’s parents never objected to the search of

their mobile home, and the defendant never objected to the officers entering his bedroom at the time

of his arrest.

Detective Upchurch testified that the defendant arrived at the Knox County Jail at 4:00 a.m.

on October 22. Detective Upchurch was not at municipal court when the defendant appeared and

did not speak to anyone associated with that charge. He did not consider the defendant to be under

arrest for the death of Patricia Rose Anderson until the Knox County Grand Jury returned an

indictment for that charge.

Jerry Huskey testified that on October 21, 1992, he was a patrolman with the Sevier County

Sheriff’s Department, when Knox County officers asked him to help them in investigating the

defendant. He confirmed the truth of his affidavit, which stated that the officers showed him a

folded capias and told him that it was for the defendant, but said that he did not read it. He took

them to the statuary and then to the Huskey residence. He thought that the defendant’s father invited

them inside. The defendant was not wearing shoes when he first saw the defendant. He heard the

detectives ask the defendant’s father if they could search the mobile home. The defendant’s father

agreed to let them search but told them that they would have to ask the defendant about his room.

The detectives asked the defendant if they could search his room. The defendant said they could not

search his room, and they got a search warrant. He did not see the detectives violate the defendant’s

rights, and he believed that they acted in a professional manner. He acknowledged that his report

states that he transported the defendant to the Knox County line where the defendant was charged

with homicide.

Knox County Sheriff’s Detective Daniel Stewart testified that on October 21, 1992, he went

to the defendant’s house with Detective Upchurch. When the defendant walked into his parents’

living room, Detective Upchurch announced that the defendant would be taken into custody for

failure to appear in court. Detective Stewart considered the defendant to be in custody at that point.

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He said he accompanied the defendant to his bedroom for shoes or a shirt. He was standing either

in the doorway or just inside the room, and Detective Upchurch stood beside him. He noticed a

piece of orange baling twine on the floor by the bed. Detective Stewart said that a rhinestone

necklace with a hair entangled in it and a pair of costume pearl earrings were found on a piece of

furniture immediately on the left through the doorway, but he did not remember if he saw the jewelry

when the defendant was getting his shoes or when they executed the search warrant. The top of the

piece of furniture was cluttered, and the jewelry was either on top of or near the edge of some

newspapers. When the defendant was taken to jail, Detective Stewart remained at the mobile home

to ensure that the defendant’s bedroom was not disturbed. He did not search the room while the

other officers were away. During that time, the defendant’s mother entered the room to turn off a

light or radio, and as she left, the rope caught on her foot and was dragged a few inches.

Jessie Huskey, the defendant’s mother, testified that she was awakened by knocking after

9:00 p.m. on October 21, 1992. When she opened the door, men wearing police uniforms asked if

her husband was there. She said that he was there and called for him. One of the men asked if the

defendant was there. She said yes and knocked on the wall adjacent to the defendant’s bedroom.

She did not ask the officers to come inside. The officers stood in the door until her husband arose.

When the defendant entered the living room in his pajama bottoms, the officers walked over to him.

At that point, she went to her bedroom to get a housecoat, and when she returned, the officers and

the defendant were gone. She never heard the officers ask her husband for permission to search their

home or say that they were there to arrest the defendant because he failed to appear for court. The

defendant had previously told her that he went to court.

Mrs. Huskey testified that she was frightened and nervous because the officers had taken the

defendant. One officer remained standing at the defendant’s bedroom door. She denied offering a

stool to the officer, who stood the entire time. The officer watched her go into the defendant’s

bedroom and asked what she was going to do. She told him that she was going to turn the radio off,

which she did and then left the room. She noted that a chest of drawers was built into the wall in the

defendant’s bedroom and that one could not see the chest unless he or she stepped into the room.

The officers returned and searched the trailer, but she did not hear her husband give them permission

to search. She did not know what was in the defendant’s room because she never went in his room

except to leave his clean laundry on the bed.

Bruce Dale Baker testified that on October 21, 1992, he was a Sevier County Judicial

Commissioner and issued his first search warrant, which authorized a search of the defendant’s

residence. Detective Michael Upchurch told him that Detective Upchurch had arrested the defendant

on a capias, which Commissioner Baker believed to be a state capias. He said he would have given

more thought to the legality of the search warrant if he had known that it was a city rather than a state

capias. The officers told him that they were arresting the defendant for murder but had taken him

into custody on the capias because he was wanted in Knoxville on another charge. He read the

affidavit written by Detective Upchurch and filled out the search warrant but overlooked the blank

line for the executing officer’s name.

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Phyllis Davis, secretary for the Knoxville Municipal Court judge, testified that she maintains

the records for the municipal court. City judges serve four-year terms, and Judge John Rosson, Jr.,

was the city judge in 1992. On June 12, 1992, the city judge issued a warrant for the defendant for

solicitation for prostitution on that day. The defendant posted bond and was to appear for trial on

June 16, 1992. The trial was continued to July 7, 1992, but the defendant failed to appear. On July

7, the City of Knoxville issued a capias directing the Knoxville Chief of Police to bring the

defendant before the City Court judge to answer a charge of failure to appear for a charge of

solicitation of prostitution. She said that a capias does not expire and that it is given to the jail, the

Police Department, and the Sheriff’s Department to keep on file. Also, the Sheriff’s Department can

access any outstanding process by computer. She said that the capias does not require the Chief of

Police to report back to the court.

Ms. Davis testified that she learned the defendant had been arrested on the morning of

October 22, 1992, but she did not recall knowing at that time that the police suspected he was the

“Zoo Man.” The defendant was brought to municipal court around 10:00 a.m. Ms. Davis heard the

judge explain the defendant’s rights to him. She did not recall the defendant asking any questions

or stating that he understood his rights. He did not object to the legality of his arrest or ask for a

lawyer. He did not appear to be intoxicated. The city warrant for solicitation of prostitution reflects

that the defendant pled guilty and waived his right to an attorney. Special Judge Carlton Bryant,

appointed by Judge Rosson as a substitute judge, signed the judgment portion of the warrant on

October 22, 1992. Although the signature for the waiver of attorney reads “Kyle Huskey,” Ms.

Davis was in the courtroom when the waiver was signed, and the defendant was the one who signed

it. Apparently, no one noticed that the defendant had signed his name as “Kyle” or else the

defendant would have been asked to reconsider his plea and sign again. A lot of defendants give

aliases in municipal court, and the warrant gives the defendant’s name as “Thomas D. Husky

(alias).” The defendant did not deny that he was Thomas D. Huskey.

Carlton Bryant testified that in October 1992, he was an attorney in private practice and

sometimes presided as a substitute city judge. Judge Rosson would ask him to serve in that capacity,

and then either Judge Rosson or the clerk would administer an oath. He did not independently recall

serving as a substitute judge in the defendant’s case, but he identified his signature on the city

warrant, indicating that he accepted the defendant’s guilty plea on October 22, 1992. He would not

sign a warrant without discussing the defendant’s rights with him or her and witnessing the

defendant sign the warrant. If the defendant had said that he was intoxicated or did not know what

he was doing, then he would not have accepted the plea. He typically makes an “X” to show

defendants where to sign, and he noted that “Kyle Huskey” was signed by an “X.” He did not recall

whether it was in fact the defendant who signed.

Mr. Bryant testified that after the defendant pled guilty, he ordered the defendant to pay court

costs and a fifty-dollar fine and to serve thirty days in jail. He admitted that he did not check the box

requiring the defendant to serve thirty days in jail, but typically the clerk checks the boxes after he

enters the fine and jail period. Ordinarily, a conviction for solicitation for prostitution in municipal

court would result in a fine only. He sentenced the defendant to thirty days in jail based upon

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something that KPD Officer Torres told him in open court before he accepted the guilty plea that

made this case worse than the typical case. He gave the defendant the maximum sentence based

upon the guilty plea and the facts given by the officer. No one, including the homicide detectives,

had approached him, told him about the “Zoo Man,” or asked him to be particularly harsh on the

defendant. This was not the only time he had sentenced a defendant to jail based upon the facts of

a prostitution case.

On April 1, 1996, the trial court denied the defendant’s motion to declare the arrest invalid

and his motions to suppress the evidence gained from the search of his residence and his statements.

Regarding the defendant’s arrest, the trial court found that the capias was “a valid capias issued by

a duly-operating court; that it carried the force of law, and that Mr. Huskey could be arrested on that

capias, as it stood in October 1992.” It found that the defendant was properly arrested in Sevier

County based upon the Knoxville capias because a warrant or capias issued in one jurisdiction can

be served in another. With regard to the search of the defendant’s residence, it found that the search

warrant was invalid because it did not list the executing officer. Nevertheless, it found the search

of the defendant’s bedroom to be incident to his arrest and that the items seized were in the officer’s

plain view.

A. Lack of Prejudice

It is well-settled that a defendant enjoys “no constitutional immunity from an unlawful

arrest.” State v. Dulsworth, 781 S.W.2d 277, 282 (Tenn. Crim. App. 1989). Instead, the fact of an

unlawful arrest is relevant only if the state seeks to present evidence tainted by the arrest. Id. at 282-

83; see also State ex rel. Wood v. Johnson, 216 Tenn. 531, 534-35, 393 S.W.2d 135, 136 (1965)

(noting that even if evidence from the search of the petitioner or his room was illegally obtained, the

petitioner’s trial was not tainted because none of the evidence was used). Furthermore, the remedy

for an unconstitutional search is exclusion of the evidence obtained therefrom. See Murray v. United

States, 487 U.S. 533, 536-37, 108 S. Ct. 2529, 2533 (1988) (holding that the exclusionary rule

requires exclusion of tangible, testimonial, and derivative evidence acquired through an unlawful

search); State v. Clark, 844 S.W.2d 597, 600 (Tenn. 1992). In the present case, the state did not use

the rope or the jewelry discovered in the defendant’s bedroom in either of the rape trials, nor did it

use the defendant’s statements, as we discuss in Issue IV. The record reveals that the only piece of

evidence used at the rape trials and stemming from the arrest or search was a photograph of the

defendant taken following his arrest.

1. Photograph

The defendant complains that in the first rape trial, the state used a photograph of him that

was taken following his arrest. At the suppression hearing before the consolidated rape trial,

Detective Upchurch testified that the defendant arrived at the Knox County Jail at 4:00 a.m. on

October 22, 1992. The defendant introduced an October 22, 1992 arrest report from the Knox

County Jail Intake Center, with a photocopy of the defendant’s photograph on the back. Phyllis

Davis testified that the defendant pled guilty to solicitation of prostitution in municipal court around

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10:00 a.m. on October 22, 1992. During the first rape trial, the victim identified the defendant as

her attacker but testified that his appearance had changed since the time of the offenses when he had

a beard and longer hair and was thinner. The state introduced the defendant’s photograph during the

victim’s testimony relating to her identification of the defendant as her attacker to illustrate the way

that the defendant looked at the time of the offenses. The victim testified that in October 1992, she

went to the police station and picked the defendant’s picture out of a photograph array. The

defendant cross-examined the victim about discrepancies between her initial descriptions of her

attacker and the photograph of the defendant. On cross-examination, the victim agreed that

Detective McCroskey showed her the defendant’s photograph on October 27, 1992.

In Tennessee, a photograph of a defendant is admissible for purposes of identification even

if taken following an illegal arrest. See State v. Miller, 608 S.W.2d 158, 160 (Tenn. Crim. App.

1980). This is so because the identification of the defendant from his picture is not the fruit of the

arrest. Id. “The basis of the identification is not the arrest but the witness’s perception of the

accused during the crime. . . . The arrest merely provided the means for the confrontation with the

victim . . . . The arrest contributed neither to the knowledge of the witness nor to the accuracy of her

identification.” Id. Thus, under Tennessee case law, the defendant’s photograph, taken after his

arrest and used by the victim to identify him as the perpetrator, was admissible to identify the

defendant without regard to the legality of the arrest.

We note, though, that the United States Supreme Court has suggested that a photograph taken

as the result of an illegal detention may be inadmissible. See United States v. Crews, 445 U.S. 463,

100 S. Ct. 1244 (1980). In Crews, the Court addressed the question of whether an in-court

identification of the defendant by the victim is the product of an illegal arrest. In that case, several

women were robbed at gunpoint in the women’s restroom on the grounds of the Washington

Monument. Based upon the victims’ description of the perpetrator, officers saw the teenage

defendant in the area, unsuccessfully attempted to photograph him at the scene, took him into

custody for truancy, photographed him, and released him. The victims identified the defendant from

a photograph array and again in a line-up. Finding that the police lacked probable cause to detain

the defendant initially, the trial court suppressed the photograph and line-up identifications as

products of the illegal detention but allowed the victims to identify the defendant at trial. The Court

held that the in-court identifications of the defendant were not the products of his illegal arrest

because (1) the victims were present to testify about the offenses, (2) the victims could reconstruct

the crimes and their identification of the defendant from their own knowledge and recollection, and

(3) the defendant was physically present. Id. at 471, 100 S. Ct. at 1250. The Court held that none

of these three circumstances resulted from the exploitation of the Fourth Amendment. Id. In so

holding, it noted that the parties conceded that the intervening photograph and line-up identifications

were the product of the Fourth Amendment violation. It observed that in some circumstances, these

intervening identifications could be so suggestive as to render the in-court identification unreliable

and, therefore, inadmissible. Id. at 472, 100 S. Ct. at 1250. Based upon Crews, the photograph taken

of the present defendant would be subject to this analysis, if the arrest was illegal.

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Nevertheless, we believe that law enforcement would have inevitably obtained defendant’s

photograph without regard to the legality of his arrest. Evidence obtained as the result of an illegal

arrest is not subject to exclusion if it would have been inevitably discovered through lawful means.

State v. Ensley, 956 S.W.2d 502, 511 (Tenn. Crim. App. 1996); see also Nix v. Williams, 467 U.S.

431, 444, 104 S. Ct. 2501, 2509 (1984). In the present case, the defendant arrived at the Knox

County Jail at 4:00 a.m. on October 22, 1992, and his photograph was taken. Around 10:00 a.m.,

the defendant was taken to municipal court and pled guilty to solicitation of prostitution. At that

point, the defendant was legally detained pursuant to his conviction for the municipal offense, and

any photograph taken following this conviction would not be subject to exclusion based upon the

legality of his arrest. The victim was not shown the defendant’s photograph until October 27, 1992.

Because it was inevitable that the police would acquire a photograph of the defendant, the

exclusionary rule does not apply. See Howard v. State, 599 S.W.2d 280, 283-84 (Tenn. Crim. App.

1980) (holding that a line-up identification of the defendant for the present offense did not have to

be suppressed, even if the defendant had been illegally arrested on an unrelated charge, because the

police would have inevitably discovered the defendant’s identity from descriptions and a license

plate number given by eyewitnesses to the present offense).

2. Mootness

With the exception of the photograph discussed above, the state contends that none of the

evidence flowing from the arrest or search was used at either rape trial. The defendant contends that

in the first rape trial, the trial court admitted descriptions of a truck and license plate number

discovered by officers illegally trespassing on his property to serve the capias. He claims that these

descriptions matched another description given in the first rape trial. Unfortunately, the defendant

fails to cite to the portions of the record where any of these descriptions were given or even to

mention the witnesses who gave the description of a truck. The defendant does cite to a jury-out

discussion during the consolidated rape trial for this contention, but this portion of the record does

not contain a description of a truck. Our own review of the record in the first rape trial reveals that

the victim, the sole witness for the state, testified that the defendant was driving a car. None of the

detectives who participated in the defendant’s arrest and the search of his home on October 21, 1992,

testified in the first rape trial. Other than the photograph discussed above, the defendant has failed

to show that the state used any evidence resulting from his arrest or search in the first rape trial.

The defendant contends that in the consolidated rape trial, Detective Upchurch testified

regarding a car and its license plate, which were seen at the defendant’s residence at the time of his

arrest. For this contention, the defendant refers us to Detective Upchurch’s testimony at the February

7, 1996 suppression hearing. Detective Upchurch did not testify at the consolidated rape trial. We

note that at the consolidated rape trial, Detective Michael Grissom testified that he went to the home

of the defendant’s father after checking a license tag number provided by one of the victims in the

consolidated rape trial. Detective Grissom stated that while there, he saw a 1983 Buick LeSabre with

the license tag number VLZ-894. This testimony does not relate to or stem from evidence gathered

as a result of the defendant’s arrest or the search of his home within a few hours of his arrest.

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Regarding the illegal search issue, the defendant argues that in the consolidated rape trial, the

trial court should have suppressed certain photographs of him, of certain vehicles, and of the rope.

In support of this contention, he cites to a jury-out discussion regarding the admissibility of two

photographs depicting twine found at two locations at Teagues Statuary, the defendant’s employer.

The defendant does not explain and the cited discussion does not reveal how the photographs relate

to evidence gained from the search of the defendant’s home. Instead, during the discussion, the trial

court noted its previous ruling that the state could not introduce photographs of brown twine in the

back of a pickup truck taken during the October 21, 1992 search. The court determined that the state

was limited to the two photographs of the twine taken at Teagues Statuary. Although the detectives

went to Teagues Statuary before going to the defendant’s home on the night of the arrest, the jury-out

discussion reveals that the photographs in question were made at a different time. We fail to see how

the passage to which the defendant has cited relates to this issue. Furthermore, we agree with the

state that none of the evidence gained in the search of the defendant’s home was introduced in the

rape trials.

Finally, with regard to the search of his home, the defendant also challenges the admission

of certain photographs, a necklace and earrings, and testimony regarding the rope found in his

bedroom, which were introduced in his murder trial. As previously noted, the murder case is not a

part of this appeal.

The legality of the arrest and search is not in controversy in this appeal of the first rape trial

and G. F.’s and A. D.’s cases because the resulting evidence was either not used or, in the case of

the photograph, was properly used even if stemming from an illegal arrest. The issue is moot in

these cases. See State ex rel. Lewis v. State, 208 Tenn. 534, 537-38, 347 S.W.2d 47, 48-49 (1961);

State v. Doe, 813 S.W.2d 150, 152 (Tenn. Crim. App. 1991). On the other hand, the issue remains

viable in D. C.’s case, which we are reversing due to its improper consolidation, because the state

could attempt to use evidence stemming from the arrest or the search in the event that the case is

retried. At the suppression hearing before the consolidated rape trial, Detective Upchurch testified

that upon looking into the defendant’s bedroom, he saw a piece of orange hay-baling rope, which

he recognized as the type of rope used to bind the rape victims. D. C. testified that the defendant

bound her with rope, although she did not describe its color or size at either the consolidation hearing

or at trial. In ruling upon the suppression issues, the trial court found that the detectives noticed a

piece of rope on the defendant’s bedroom floor “that they suspected was the same type of string or

twine that had been used to tie one or more of the victims that they were investigating – homicides

that they were investigating in Knox County.” Although this finding suggests that the rope is

relevant to the murder case rather than the rape cases, the state might be able to show that the rope

is relevant to the retrial of D. C.’s case. In the event of a retrial of D. C.’s case, we will review the

trial court’s rulings on the legality of the arrest and search in light of the defendant’s contentions.

B. Collateral Attack

The state contends that the defendant may not collaterally attack his conviction and sentence

for solicitation of prostitution in this appeal. “The rule has been firmly established in Tennessee that

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a facially valid, unreversed judgment in a court with jurisdiction over the subject matter and the

person cannot be collaterally attacked in a subsequent proceeding except by the authorized routes

of attack.” State v. McClintock, 732 S.W.2d 268, 271 (Tenn. 1987).

In the present case, the Knoxville Municipal Court had jurisdiction over the defendant for

the municipal offense of solicitation of prostitution occurring within the city. See Tenn. Code Ann.

§ 16-17-103 (providing that municipal court judges in home rule municipalities have “full power and

authority to try and dispose of violations of municipal ordinances”); Knoxville, Tenn., Charter, art.

V, § 503 (1982); see also Code of Ordinances, City of Knoxville, Tenn. §19-190(c) (1982)

(prohibiting the patronizing of prostitution); State ex rel. Boone v. Torrence, 63 Tenn. App. 224,

242, 470 S.W.2d 356, 364 (1971) (noting that the “primary function of Corporation or Municipal

Courts is enforcement of municipal ordinances”). Article V, section 503 of Knoxville’s city charter

grants the municipal judge concurrent jurisdiction with the Knox County general sessions judges

over violations of state criminal laws committed in the city and “exclusive power to impose fines

for the breach of any city ordinance.” The defendant contends that his sentence was illegal because

the municipal court lacked jurisdiction to sentence him to incarceration for the violation of a city

ordinance.

Initially, we note that the defendant failed to secure a ruling from the trial court on this issue

before either of the rape trials. The defendant raised the issue of the municipal court’s jurisdiction

to impose a jail sentence in a memorandum of law filed three months before the consolidated rape

trial arguing that because the municipal court is not a constitutional court, it lacked jurisdiction to

jail or arrest the defendant. He presented evidence regarding his thirty-day jail sentence for the

solicitation conviction at the suppression hearing through the testimony of Carlton Bryant, the

substitute municipal judge who accepted the defendant’s guilty plea. Although the trial court ruled

that the capias was issued from a “duly-operating court,” it did not speak to the municipal court’s

jurisdiction to sentence the defendant to incarceration.

In any event, we note that the Knoxville City Code and Tenn. Code Ann. § 6-54-306 reveal

that the municipal court had jurisdiction to impose the jail sentence. The state legislature has

empowered home rule municipalities “to set maximum penalties of thirty days imprisonment and/or

monetary penalties and forfeitures up to five hundred dollars ($500), or both, to cover administrative

expenses incident to correction of municipal violations.” Tenn. Code Ann. § 6-54-306; see also City

of Knoxville ex rel. Roach v. Dossett, 672 S.W.2d 193, 194 (Tenn. 1984) (noting that Knoxville is

a home rule municipality). Section §19-190(c) of the Knoxville City Code, which prohibits the

patronizing of prostitution, does not specify a penalty for the offense. See Code of Ordinances, City

of Knoxville, Tenn. §19-190(c) (1982). Section 1-9 of the Knoxville City Code provides that if the

penalty is not specified in the individual ordinance, the violation of the ordinance shall be punished

as follows:

Any person violating any of the provisions of this general penalty

article shall be guilty of a misdemeanor, and conviction thereof

shall result in the penalties of a monetary fine not to exceed fifty

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dollars ($50.00) and the repayment of administrative costs

incident to the correction of the municipal violation in an amount

not to exceed five hundred dollars ($500.00) and/or by

imprisonment not to exceed thirty (30) days, or both for each

separate offense.

Both section 6-54-306 of the state code and section 1-9 of the city code reflect that the municipal

court has the power to impose a jail sentence.

In contrast with the municipal court’s legislatively granted power to incarcerate, a defendant

enjoys an inviolate constitutional right to a jury trial in Tennessee. Tenn. Const. art. I, § 6. This

right to a jury trial does not extend to small or petty offenses, which are those offenses punished

with a fine not to exceed fifty dollars and no term of confinement. State v. Dusina, 764 S.W.2d 766,

767 (Tenn. 1989). “For violation of general criminal statutes, . . . where a fine of more than $50.00

or any confinement of the accused may be imposed, the right to

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