State v. Turner

Decision Date28 May 2014
Docket NumberNo. M2013-00277-CCA-R3-CD,M2013-00277-CCA-R3-CD
CourtTennessee Court of Criminal Appeals
PartiesSTATE OF TENNESSEE v. ARTHUR RAY TURNER

Direct Appeal from the Criminal Court for Davidson County

No. 95-C-1691

Steve Dozier, Judge

In this procedurally complex case, a Davidson County jury convicted the Defendant, Arthur Ray Turner, of especially aggravated kidnapping, aggravated robbery, four counts of aggravated rape, and attempted aggravated rape. The trial court sentenced the Defendant to a total effective sentence of seventy years in confinement. On appeal, the Defendant contends that: (1) the trial court erred when it denied his motion to suppress his statements to police; (2) the trial court erred when it denied his motion to dismiss based upon the State's destruction of evidence; (3) the trial court erred when it ruled on the admissibility of DNA evidence; (4) the evidence is insufficient to sustain his conviction for two counts of aggravated rape because the State did not prove that he was armed with a weapon or anything the victim reasonably believed was a weapon; (5) the trial court erred when it allowed separate convictions for aggravated rape in Counts 3 and 4 and attempted aggravated rape in Count 5 because separate convictions violate his protections against double jeopardy; (6) the trial court erred when it ordered his sentences to run consecutively and when it ordered him to serve his sentence for especially aggravated kidnapping at 100 percent. After a thorough review of the record and applicable authorities, we affirm the trial court's judgments in all respects save one. The trial court's judgment in Count 1, especially aggravated kidnapping, should be modified to reflect a release eligibility date of 30 percent.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

and Remanded

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which JERRY L. SMITH and JEFFREY S. BIVINS, JJ., joined.

Jeffrey A. DeVasher, Assistant Public Defender (on appeal), Jon Wing and Kevin Griffith, Assistant Public Defenders (at trial), Nashville, Tennessee, for the Appellant, Arthur Ray Turner.

Robert E. Cooper, Jr., Attorney General and Reporter; Tracy L. Bradshaw, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Pamela Anderson, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION
I. Facts
A. Procedural History

This case arises from the kidnapping and rape of the victim. The Defendant was originally indicted in this case by the Davidson County grand jury in July 1995. This Court previously stated about this case:

It appears from the record before us that in 1995 the [Defendant], pursuant to a plea agreement, entered guilty pleas to especially aggravated kidnapping, aggravated robbery and two counts of aggravated rape. He was sentenced to twenty years for each of his aggravated rape convictions and ten years for his especially aggravated kidnapping and aggravated robbery convictions. Thereafter, the trial court ordered the [Defendant]'s sentences to run concurrent, except for the rape sentences which were to run consecutive for an effective sentence of forty years. In April 1996, the [Defendant] filed a petition for post-conviction relief, alleging ineffective assistance of counsel and improper imposition of consecutive sentences. The petition was dismissed and this court affirmed the dismissal on appeal. See Arthur R. Turner v. State, No. 01C01-9707-CR-00274, 1998 WL 652154 (Tenn. Crim. App., at Nashville, Sept. 23, 1998) perm. app. denied (Tenn. March 22, 1999). Subsequently, the [Defendant] unsuccessfully filed a series of petitions seeking post-conviction relief. See, e.g., Author R. Turner v. State, No. M2002-00541-CCA-R3-PC, 2003 WL 1877035 (Tenn. Crim. App., at Nashville, April 15, 2003) perm. app. denied (Tenn. Sept. 2, 2003) (petition for relief barred by statute of limitations). The [Defendant] also unsuccessfully sought post-conviction relief in the federal district court via petition for writ of habeas corpus. See, e.g., Author Ray Turner v. Stephen Dotson, Warden, No. 06-5121, 2007 Fed. App. 0179N (6th Cir. Tenn. Mar. 6, 2007) (petition for relief barred by statute of limitations).

Author Ray Turner v. Stephen Dotson, No. W2008-00011-CCA-R3-HC, 2008 WL 4253644, at *1 (Tenn. Crim. App., at Jackson, Sept. 16, 2008), no Tenn. R. App. P. 11 applicationfiled.1

On December 6, 2007, the Defendant filed a petition for writ of habeas corpus, alleging that he received an illegal sentence because he was sentenced beyond the presumptive minimum sentence on each of his convictions to which he pled guilty in violation of his Sixth Amendment right to a jury trial as set forth in Blakely v. Washington, 542 U.S. 296 (2004) and its progeny. The habeas court summarily dismissed the Defendant's petition, and this Court affirmed the habeas court's judgment. Turner v. Dotson, 2008 WL 4253644, at *3.

On December 9, 2008, the Defendant filed a petition for habeas corpus relief again challenging the legality of his sentence. Arthur Ray Turner v. David Mills, No. E2009-00194-CCA-R3-HC, 2010 WL 1949143, at *1 (Tenn. Crim. App., at Knoxville, May 13, 2010), no Tenn. R. App. P. 11 application filed. The Defendant argued that his sentences and corresponding judgments, which reflected a thirty percent release eligibility for each conviction, directly contradict the statutory mandate of Tennessee Code Annotated section 39-13-523 that any offender convicted of two counts of aggravated rape "shall be required to serve the entire sentence imposed by the court." T.C.A. § 39-13-523(a)(2), (b) (Supp.1994). The habeas corpus court dismissed the petition, and we reversed its judgment. Turner v. Mills, 2010 WL 1949143, at *4. We concluded that the Defendant's sentences for aggravated rape were illegal on the face of the judgments because they contravened a statute. Id. Accordingly, we reversed the judgment of the habeas corpus court summarily dismissing the petition for writ of habeas corpus and remanded the case to that court for the appointment of counsel and an evidentiary hearing to determine whether the Defendant was entitled to withdraw his guilty plea. Id. In so doing, the Court stated:

At [the evidentiary] hearing, the issue would be whether the illegal sentence was a material element of a plea agreement with the State, and the proof would be limited to the face of the record of the underlying proceedings. If the record establishes that the illegal sentence was not a bargained-for element of the plea agreement, then, as in Smith, the sentence is void, but the conviction remains intact, and the only remedy is correction of the sentence. If the record establishes that the illegal sentence was a material part of a package deal, then the petitioner is entitled to withdraw his plea if he cannot reach an agreement with the State. See McConnell v. State, 12 S.W.3d 795, 800 (Tenn. 2000) (holding that withdrawal of the guilty plea is unnecessary when the parties agree to replace an illegal sentence with a legal one).

Id. at *3-4 (quoting Summers v. Fortner, 267 S.W.3d 1, 6-7 (Tenn. Crim. App. 2008)).

On remand and following the evidentiary hearing, the habeas corpus court entered a December 10, 2010, order granting the Defendant habeas corpus relief:

After reviewing (1) the petition and its attachments, (2) the respondent's motion to dismiss, (3) the opinion of the Court of Criminal Appeals remanding the case to this Court for the appointment of counsel, (4) the [Defendant]'s amended petition, and (5) the record in this case, and after conducting a hearing on October 25, 2010, in Kingston by agreement of the parties, the Court is of the opinion that the petition for writ of habeas corpus is well-taken and should be granted. The Court of Criminal Appeals previously concluded that the [Defendant]'s two judgments of conviction for aggravated rape are void because the petitioner was not ordered to serve his sentences at 100 percent as a multiple rapist, as required by [Tennessee Code Annotated section] 39-13-523. That court remanded the case for this Court to determine "whether the original 30 percent release eligibility was a material bargained-for element of the [Defendant]'s plea agreement." This Court now finds that the [Defendant]'s original 30 percent release eligibility was a material bargained-for element of the [Defendant]'s plea agreement.
Accordingly, it is ordered, adjudicated, and decreed that the petition for writ of habeas corpus is GRANTED, and the case is TRANSFERRED to the Davidson County Criminal Court for further proceedings. Since "the record establishes that the illegal sentence was a material part of a package deal, then the petitioner is entitled to withdraw his plea if he cannot reach an agreement with the State." Summers v. Fortner, 267 S.W.3d 1, 7 (Tenn. Crim. App. 2008) (citing McConnell v. State, 12 S.W.3d 795, 800 (Tenn. 2000)).

The State appealed. This Court affirmed the habeas corpus court's judgment allowing the Defendant to withdraw his guilty plea. Arthur Ray Turner v. David Mills, E2011-000740CCA-R3-HC, 2012 WL 1431220, at *1 (Tenn. Crim. App., at Knoxville, Apr. 25, 2012), no Tenn. R. App. P. 11 application filed. The case then proceeded to trial.

B. Facts
1. Motion to Suppress

On March 16, 2012, the Defendant filed a motion to suppress his statements to police. At a hearing on the motion, the parties presented the following evidence: Charles Thomas, a detective with the Rutherford County Sheriff's Office, testified that he was dispatched to7822 Clearwater Court on March 16, 1995, and there he encountered the Defendant. Detective Thomas said that, when he arrived at the house he knocked on the door, and a woman named Tanya Johnson answered the door. The Defendant was asleep in the bedroom. The detective asked the Defendant to step outside, where he read the Defendant his Miranda warnings. After so...

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