State v. Toomes

• Decision Date: 16 December 2005
• Citation: 191 S.W.3d 122
• Parties: STATE of Tennessee v. Darrell TOOMES.
• Court: Tennessee Court of Criminal Appeals

191 S.W.3d 122

STATE of Tennessee v. Darrell TOOMES.

Court of Criminal Appeals of Tennessee, at Jackson.

Assigned on Briefs November 15, 2005.

December 16, 2005.

Application for Permission to Appeal Denied by Supreme Court April 24, 2006.

COPYRIGHT MATERIAL OMITTED

Gary F. Antrican, District Public Defender; and Julie K. Pillow, Assistant Public Defender, for the Appellant, Darrell Toomes.

Paul G. Summers, Attorney General & Reporter; Brian C. Johnson, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Tracey A. Brewer, Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which J.C. McLIN, J., joined. NORMA McGEE OGLE, J., concurred in results only.

A Lauderdale County jury convicted the defendant, Darrell Toomes, of aggravated rape and aggravated criminal trespass in connection with the June 23, 2002 home invasion of Mamie Milliman's residence in Ripley, and the assault of Ms. Milliman. The trial court sentenced the defendant to 11 months and 29 days for aggravated criminal trespass and 23 years as a violent offender for the aggravated rape conviction. On appeal, the defendant challenges the sufficiency of the evidence supporting his aggravated rape conviction and claims that his 23-year sentence for that conviction is excessive. We affirm.

Taken in the light most favorable to the state, see State v. Williams, 657 S.W.2d 405, 410 (Tenn.1983), the evidence at trial showed that Mamie Milliman, the victim, was 83 years old and lived alone at 226 Keller Avenue in Ripley, Tennessee. The victim testified that in the early morning hours of June 23, 2002, she was awakened by a hand being placed over her face. The intruder removed nylon hosiery from the top of her dresser and tied her hands to the bed. Ms. Milliman testified that the intruder repeatedly told her, "Be quiet, and I won't hurt you." The intruder also asked if she had any money.

The intruder removed the victim's pajama bottoms, raped her, and left. The victim waited a few minutes to be certain that the intruder was gone, and she tried to use her telephone to summon help. The telephone cord was missing, so Ms. Milliman walked to the house of her neighbors, Martha and Curtis Gause. The Gauses called the police, and they reached the victim's brother who picked up the victim and drove her to the emergency room at Lauderdale County Baptist Memorial Hospital. Ms. Milliman was examined by a physician, and after she was discharged, she first went to her brother's house and then later back to her own home. Ms. Milliman determined that a coin collection and a small amount of money were missing.

Ms. Milliman did not know the identity of her attacker, and she could not identify at trial the defendant as the person who assaulted and raped her.

On cross-examination, Ms. Milliman said that she only saw the attacker's silhouette from light coming in through her bedroom window. She believed that the man was "tall," but otherwise, she could not determine what clothing he wore or even what race he was. She recalled that at one point, the man placed a pillow over her face. Regarding her injuries, Ms. Milliman testified that "it kindly hurt" and that she "just knew [she] burned and hurt down there." Additionally, after her physical examination, Ms. Milliman realized that she was bleeding.

The victim's neighbor, Martha Gause, testified about the victim coming to her house for help. Ms. Gause described the victim as "shaking and crying and real red, just real shaken up, very terrified." Ms. Gause also noticed redness around the victim's wrists. Ms. Gause and her husband tried to calm the victim, and they sat with her until the police arrived.

When the victim was taken to the hospital, medical technologist Beverly Bullard drew blood from the victim for the police investigation. Ms. Bullard testified that she was trained to document all of her lab work and activities to establish an accurate chain of custody. On cross-examination, Ms. Bullard explained the procedure that she follows whereby an officer will hand her a police kit for drawing blood, and she will draw the blood in the officer's presence, label the tubes, sign the police paperwork, and give the blood directly to the officer. Although Ms. Bullard had no independent memory of drawing blood from the victim, Ms. Bullard insisted that unless an officer was present, she would not have drawn blood.

The medical records custodian for Baptist Memorial Hospital, Cheryl Manns, introduced Ms. Milliman's patient records from June 23, 2002. The state established a foundation to admit the records as "business records," and Ms. Manns testified from the records that Ms. Milliman arrived at the hospital at 3:52 a.m. The nursing notes recorded the victim's height as five feet and weight as 110 pounds. The physical examination part of the records showed "Pelvic: Positive bleeding, lower edge of vagina." The victim reported to the medical staff that she had been "held down by single individual and raped." The sexual assault examining physician noted in his records attempted anal penetration, successful vaginal penetration, and "[b]leeding from the lower edge of frenulum."

Doctor Pankaj Strivastava was the victim's examining physician. He corroborated the victim's injuries as reported in his hospital notes, and he explained the procedure he followed to collect pubic hair combings and anal and vaginal swabs for the police investigation. The nurse who assisted Dr. Strivastava with the rape examination was Michelle Thompson. She testified and identified the rape kit used for the victim; the items and documentation inside the kit bore her handwriting, and she had given the rape kit to Officer Mitchell.

Ripley Police Officer Terrence Mitchell was the first officer dispatched to investigate the rape. He interviewed the victim and collected evidence from the victim's bedroom. Officer Mitchell took a pillow case, mattress cover, bed linens, nylon stockings, and a telephone, and he identified these items at trial. He testified that the nylon stockings were knotted, and one of the stockings was tied to the bed rail when he found it. Officer Mitchell also confirmed later receiving the rape kit directly from hospital nurse Thompson. As part of his investigation, Officer Mitchell delivered the rape kit to the Tennessee Bureau of Investigation Crime Laboratory for analysis.

On cross-examination, Officer Mitchell testified that Ms. Milliman described her attacker as "about medium build" and "real soft spoken and polite." He thought that Ms. Milliman told him that she was unsure whether the attacker had penetrated her. Officer Mitchell agreed that the only evidence submitted for analysis was the rape kit. He was unable to lift any fingerprints from the telephone, and the other items were kept in evidence storage. He also found no evidence of a forced entry into the residence, and when he questioned Ms. Milliman, she speculated that she may have mistakenly left the door unlocked.

The defense established through Officer Mitchell that the case remained "unsolved" for approximately one year. The rape kit was not submitted for testing until almost one month after the assault. Officer Mitchell explained that the kit, containing the samples, was kept in a refrigerator in the evidence room; however, he did not know how quickly refrigerated samples would begin to degrade.

On redirect examination, Officer Mitchell testified that shortly after the rape, he was reassigned as a school resource officer and no longer headed up the case. The officer said that he was familiar with the defendant and the defendant's family because they all grew up in the same neighborhood. Officer Mitchell knew that the defendant had a twin brother.

Ripley Police Lieutenant Steve Sanders testified that his first involvement with the case was two days after the assault when he spoke with the victim at her home. At that time, the victim mentioned that a coin collection was missing. The first solid lead in the case occurred when the TBI Crime Lab identified DNA collected in the rape kit as matching that of Terrell Toomes. Lieutenant Sanders learned, however, that Terrell Toomes was incarcerated at the time of the rape. Upon further investigation, Lieutenant Sanders discovered that the defendant and Terrell Toomes were twins. As a result, Lieutenant Sanders secured a search warrant to obtain a blood sample from the defendant. The officer was present when the blood was drawn; he took custody of the sample and transported it to the TBI Crime Lab for analysis.

The report of analysis showed that DNA collected from the victim's anal swabs matched that of the defendant and his twin brother. Thereafter, the defendant was arrested for the rape of Ms. Milliman.

On cross-examination, Lieutenant Sanders admitted that an initial analysis of the victim's anal swabs performed in August 2002 detected no DNA matches. Approximately one year later, however, a DNA match to the defendant's brother was discovered. Lieutenant Sanders could not explain the discovery other than speculate that the twin brother's DNA was not in the FBI data bank when the first analysis was submitted.

The state qualified TBI Special Agent Lawrence James as an expert in DNA analysis and serology. He testified that DNA is unique to each person with the exception of identical twins. Agent James received and analyzed the rape kit containing the samples recovered from the victim. He detected spermatozoa on the anal swabs and proceeded to perform DNA testing.

Agent James explained that the FBI maintains a DNA database known as CODIS. Approximately 130 laboratories contribute DNA profiles to the database, which is designed to compare profiles to determine DNA matches. In Tennessee, all convicted felons are required to provide blood samples that are subsequently analyzed and entered into the...