Lillard v. State

• Decision Date: 30 April 1975
• Citation: 528 S.W.2d 207,81 A.L.R.3d 1217
• Parties: John LILLARD, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
• Court: Tennessee Court of Criminal Appeals

Page 207

528 S.W.2d 207

81 A.L.R.3d 1217

John LILLARD, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.

Court of Criminal Appeals of Tennessee.

April 30, 1975 Certiorari Denied by Supreme Court Sept. 8, 1975.

Raymond P. Gibbs, Murfreesboro, for plaintiff-in-error.

R. A. Ashley, Jr., Atty. Gen., David L. Raybin, Asst. Atty. Gen., Nashville, Guy R. Dotson, Dist. Atty. Gen., Murfreesboro, for defendant-in-error.

OPINION

RUSSELL, Judge.

John Lillard, Represented by retained counsel, appeals in error his convictions for two separate rapes committed upon the same victim upon the same night, resulting in two consecutive twenty (20) year penitentiary sentences.

Error is assigned questioning the sufficiency of the evidence to support the jury's verdict. In summarizing the evidence, it is noteworthy that as to the facts of the matter all that we have before us is the composite picture drawn by State's witnesses, as the defendant did not testify or offer any contrary proof. Counsel's argument seems mainly to attack what is said to be the harshness of consecutive twenty (20) year sentences.

The State's proof is that two women, Mary Myers and Bernita Jenkins, were walking on Charlotte Avenue near their homes in Nashville after midnight when the accused, alone in an automobile, stopped and asked directions to a street in another part of town. He represented himself as being a deputy sheriff who had delivered a prisoner to the penitentiary and then gotten lost. The women were unable to give him directions, but when they indicated that they knew the way he offered to return them if they would accompany him and show him the way. They got in the car, and he simply drove on to a rural area in Rutherford County. He told the women that he intended to have them sexually. They asked to be let out of the car and once he let them out, but immediately came back and got them, saying that he'd kill them if they didn't get back in the car. He claimed that he had a pistol, that he was out on bond for having killed a university professor and that killing them wouldn't matter; and when he demanded of the first victim that she remove her pants, he told her that if she didn't comply that he'd use a knife 'and she wouldn't have no trouble getting out of them at all'. He forced Bernita Jenkins onto the back seat and had intercourse with her. Mary Myers was upon the front seat feigning an asthma attack; and she got out of the car, on the pretext of getting more air, and looked for a rock. She found one and handed it ot Bernita Jenkins, but apparently it was small and wasn't used.

Lillard drove to another location and ordered Mary Myers onto the back seat and to disrobe. He was having intercourse with her when Bernita Jenkins dropped a larger rock onto his head, lacerating it. He terminated that rape, caught Bernita Jenkins and with multiple blows knocked her down twice, threatened to kill her by driving the car over her, and finally left her lying in the road or ditch as he drove away with Mary Myers. After driving a while Lillard parked at another location, advised Mary Myers that he was going to finish what he had started, and again had sexual intercouse with her. He then drove back to Nashville, where he let Mary Myers out of the car across town from her home. Bernita Jenkins sounded the alarm by going first to a nearby residence, from whence she was carried to a telephone and then to a meeting with officers. Mary Myers went to her home in Nashville, procured a gun and three male friends, and returned to Rutherford County to try to find Bernita Jenkins and Lillard, whom she intended to execute. Upon being unable to find Bernita Jenkins, Mary Myers also contacted law enforcement officers. The information given by the victims, including the license number of the car, led to the arrest of Lillard, who was positively identified by both women as their assailant.

Only two areas of the evidence represent significant sufficiency questions. The first has to do with resistance to the rapes. Certainly the intercourse was against the wills of the women, but the requirement of force is only met by looking to the whole situation. Lillard never displayed a gun or knife, and apparently did not strike either woman until he was struck upon the head during the second rape. Mary Myers admitted that she did not fight him before either submission. The jury found that, in the total context of this transaction, that justifiable fear of force and violence was present, rendering the rapes 'forcible'. The women, at the time of the rapes, were captives under the control of Lillard. His violent response to the one attempt at resistance supports their judgment that it would have been very dangerous, and Mary Myers' not fighting him cannot reasonably be construed as consent, or as negating the coerced and forcible nature of the acts.

The second question has to do with whether two separate rapes of Mary Myers are supported by the proof. The record is not clear as to exactly how much time elapsed between the intercourse interrupted by the blow to Lillard's head and the second act of intercourse with Mary Myers. It is clear that he drove away from the first scene, 'around the road and in a field'. How far Lillard drove is not clear. She testified that '(h)e drove the car around some more and then he finally came to this field and there was a gateway there and he drove the car in the gateway and up a little rise'. The second intercourse then occurred.

There apparently is little case law on the subject of whether multiple instances of forcible intercourse compose one crime of rape or several. Plaintiff-in-error does not contend that only one rape of Mary Myers occurred, but argues that the punishments should have been set to run concurrently. Certainly what happened on each of these occasions was found to be rape, and either would have been if the other incident had not occurred. It was in fact two separate rapes, and we believe that it also was as a matter of law. In 1 Wharton's Criminal Law and Procedure, p. 635, § 304, Rape and Related Offenses, we find the statement:

'Each act of intercourse is a separate offense.'

Cited as authority for that proposition is the case of Mikell v. State, 242 Ala. 298, 5 So.2d 825 (1941). Mikell only implicitly so holds, by dealing with a second prosecution without saying more than that an acquittal by a jury of the first offense barred prosecution for the subsequent offense in another county, where the female testified that she submitted upon the second occasion because of fear and mental apprehension aroused in her mind upon the first occasion. It could be taken that the Alabama court would have permitted the second prosecution if it had been the fruit of new or additional force or coercion. The two alleged rapes were upon the same evening, but in different counties.

Explicit contrary authority may be found in two 1969 cases from Oklahoma involving the same defendant in each case. He forced his victims in each instance into a laundromat rest room, committed one forcible rape with the victim standing, then required each to commit oral sex acts, and then committed the second act of intercouse upon the floor. Turnbow v. State, Okl.Cr., 451 P.2d 387 (1969); Turnbow v. State, Okl.Cr., 454 P.2d 674 (1969). The Court of Criminal Appeals of Oklahoma held, in that context, that only a single offense of rape was committed. In each case by footnote the court said:

'1. Although not raised as an issue in Ramos v. State, Okl.Cr., 445 P.2d 807, this Court treated several acts of intercourse between the prosecutrix and the defendant, Romas, occurring over a 26 hour period of time, as constituting but a single act of rape.'

We cannot agree with the Ramos approach. While requisite penetration may occur many times during a single episode of intercourse, there exists in that context the single basic intent to have sexual intercouse and the same force and/or coercion is common to the penetrations, even if they be momentarily interrupted.

But we do not agree that a man who has raped a woman once may again assault and ravish her with impunity, at another time and at another place, as was done here. An intent was formed to rape her again. The evidence of the second rape is entirely additional to that of the first. Additional orders were given to the captive female, an intent to have her again was formed and manifested, and the crime committed. Certainly there was separate and additional fear, humiliation and danger to the victim.

We hold that separate acts of rape, committed at different times and places and the product of several intents, are severally punishable.

T.C.A. § 40--2711 gives to the trial judge the function of exercising a sound discretion in deciding whether multiple sentences shall be concurrent or cumulative (consecutive). This discretion is reviewable on appeal by the terms of the same statute. We cannot say that the trial judge abused his discretion in this case. The defendant was totally unresponsive to the pleas of his one-time victim, and victimized her again. We have said that this was a new crime, and we will not now say that the trial judge erred in affixing a meaningful punishment.

Numerous other errors are assigned. It was not error to allow the State to introduce a witness subpoenaed by the defendant. Nor was it error to allow testimony about the rape of Bernita Jenkins, as that proof was inseparably intertwined into the whole episode and was germane to the issue of defendant's intent, the threats and coercion resulting in the intimidation and submission of Mary Myers, etc. Nor was a bail bond set at $50,000 per case excessive or unconstitutional.

We cannot consider the assignment of error grounded upon alleged improper jury argument by the prosecuting attorney, because retained counsel submitted a proposed bill of exceptions over his signature that did not contain the argument. Nor does counsel...