State v. Tate, No. W2004-01041-CCA-R3-CD (Tenn. Crim. App. 2/23/2007)
| Decision Date | 23 February 2007 |
| Docket Number | No. W2004-01041-CCA-R3-CD.,W2004-01041-CCA-R3-CD. |
| Parties | STATE OF TENNESSEE v. FRANK LEE TATE. |
| Court | Tennessee Court of Criminal Appeals |
Frank Lee Tate, Whiteville, Tennessee, pro se.
Robert E. Cooper, Jr., Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Terry Dycus, Assistant District Attorney General, for the appellee, State of Tennessee.
Thomas T. Woodall, J., delivered the opinion of the court, in which David H. Welles and Jerry L. Smith, JJ., joined.
Following a jury trial, Defendant, Frank Lee Tate, was convicted of aggravated rape, a Class A felony, and incest, a Class C felony. The trial court sentenced Defendant as a Range III, career offender, to concurrent sentences of sixty years for his aggravated rape conviction and fifteen years for his incest conviction. In his pro se appeal, Defendant challenges the sufficiency of the convicting evidence, the trial court's evidentiary rulings, and his classification as a career offender for sentencing purposes. The State argues on appeal that the trial court erred in not sentencing Defendant to life imprisonment without the possibility of parole after finding that Defendant was a repeat violent offender. After a thorough review of the record, we affirm Defendant's convictions and his sentence for his incest conviction. We set aside the sentence for aggravated rape, and remand this matter for a new sentencing hearing on the sole issue of whether Defendant should be sentenced as a repeat violent offender or as a career offender for his aggravated rape conviction.
The victim, Defendant's mother, testified that Defendant had recently moved in with her prior to the offenses and slept on a couch in the victim's living room. The victim said that at approximately 2:30 a.m. on April 8, 2003, Defendant came into her bedroom without his clothes on and told the victim that she "was supposed to be punished for hearing his conversation on the phone" and for harassing him since he had moved in. The victim said that Defendant tore her clothes off, threw her on the floor, slapped her three or four times, and dragged her from room to room by her wrist. At one point, Defendant threw the victim over a couch, hurting her leg and shoulder. The victim said that Defendant stuck his hand in her vagina and made her "pull" on his penis. The victim told Defendant to stop, but Defendant slapped her across her face. The victim denied that she had ever engaged in consensual sexual intercourse with Defendant.
On cross-examination, the victim said that after Defendant fell asleep around 5:00 a.m. she left her house and went to the apartment of her friend, Frederick Hill. The victim said that she did not call 911 at that time because she did not want to wake up Defendant and because she was upset. The victim said that she stood on the sidewalk outside of Mr. Hill's apartment and then went back to her apartment, where she stood outside until approximately 6:30 a.m. The victim said that her grandson, Albert Ryan, called the 911 dispatcher. The victim was transported to the hospital and then the Rape Crisis Center.
The victim denied that her daughter, Mary Coburn, told the victim that she would get some money if the victim reported the rape, or that the victim should allege that Defendant raped her in order to get money from him. The victim denied that she paid Mr. Ryan $100 for his role in the incident. The victim acknowledged that she picked up Defendant's paycheck on April 9, 2003, and spent part of it, but the victim said that Defendant told her to do so.
Rochelle Copeland, a registered nurse specializing in the area of sexual assault, testified that she worked at the Sexual Assault Resource Center in Memphis as a forensic nurse examiner. Ms. Copeland examined the victim at the Center on April 8, 2003. She stated that the victim was born on October 27, 1935, and was sixty-seven years old at the time of the incident. The victim described to Ms. Copeland digital and penile penetration by Defendant during the assault. The victim said that Defendant was unable to ejaculate until he made the victim masturbate him, and then he ejaculated on her hand.
Ms. Copeland said that the victim had superficial multiple scratches on her upper and lower back, a three-inch scratch on her lower left arm, and a one centimeter scratch on her left breast. Ms. Copeland said these injuries were consistent with the victim's description of being dragged through the apartment and thrown over a couch. A physical examination of the victim's vaginal area revealed bilateral vulva edema and interior genital injuries, including multiple lacerations, which were consistent with the victim's medical report.
On cross-examination, Ms. Copeland acknowledged that she did not request that Defendant undergo DNA testing. Ms. Copeland stated that the victim's vaginal injuries could not have happened on Sunday, April 6, 2003, because of the time frame within which the healing process would occur. Ms. Copeland said that she could not tell exactly when the victim incurred her injuries, but they were recent in origin. The victim told Ms. Copeland that she had not had vaginal, oral or anal coitus within four days of the offense, and no consensual intercourse within the previous hours. Ms. Copeland said that the victim was not compensated for reporting the offense, but she was told about the crime victim's reparations fund as part of her exit interview.
Officer Robert L. Edwards, Jr., with the Rossville Police Department, arrived at the victim's house at approximately 6:22 a.m. in response to Mr. Ryan's 911 call. Officer Edwards said that Mr. Ryan was grappling with Defendant when he arrived. Officer Edwards pushed Mr. Ryan away, handcuffed Defendant, and took him outside. Defendant was read his Miranda rights and placed in the police car. Officer Edwards said that the victim was "highly disheveled, crying," and "really fearful." Officer Edwards called for an ambulance to transport the victim to the hospital. Officer Edwards followed the victim to the hospital and took her to the rape crisis center after she was released.
On cross-examination, Officer Edwards said that he transported Defendant to the hospital in Somerville for DNA testing. The physician on call, however, said that DNA testing would be futile because of the amount of time that had passed since the incident and because Defendant had already washed himself.
Officer Ricky Wilson, with the Fayette County Sheriff's Department, testified that Defendant's statement was taken at his office on April 14, 2003. Officer Wilson said that his office door remained open during the interview. Defendant sat in the corner chair, Officer Wilson sat behind his desk, and Officer Michael Draper with the Rossville Police Department sat by the door. Defendant was read his Miranda rights. Defendant said that he had a high school education and some college credits, and that he understood his rights. Defendant executed a written waiver of his Miranda rights. In his waiver, Defendant stated that he was willing to make a statement, and that no promises, threats, pressure or coercion had been used against him.
Officer Wilson read Defendant's statement to the jury, a portion of which is as follows:
Defendant said in his statement that the victim must have inflicted the injuries on herself and said that he and the victim had engaged in consensual sex since February 2003.
The State rested its case-in-chief, and Defendant presented the following defense. Albert Ryan testified that his mother, Minnie Ryan, called him about the incident. He arrived at the victim's apartment between 6:05 a.m. and 6:10 a.m. Mr. Ryan said he found the victim standing on the sidewalk, and that she was "shaken up" and "scared." The victim told Mr. Ryan that Defendant had dragged her around her apartment, slapped her, and raped her. Mr. Ryan called 911. Mr. Ryan acknowledged that the victim paid some of her household bills with some of the proceeds of Defendant's paycheck after the incident.
Frederick Hill testified that the victim knocked on his door around 7:00 a.m. on April 8, 2003, and called her daughter, Sarah Boyd. Mr. Hill said that the victim's head was down and she was crying. Mr. Hill did not recollect seeing any bruises but the victim's face appeared a little swollen. Mr. Hill said that he did not accompany the victim when she returned to her apartment, and he did not call the police. Mr. Hill acknowledged that he and the victim visited often in each other's apartments, and that he had spent the night with the victim in her apartment prior to the incident.
Defendant testified on his own behalf. Defendant said that the charges against him were the result of a...
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