State v. Thompson

FILED
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE
March 17, 2000
DECEMBER 1999 SESSION
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, )
) M1998-00073-CCA-R3-CD
Appellee, ) C.C.A. No. 01C01-9812-CR-00490
)
vs. ) Davidson County
)
DEE W. THOMPSON, ) Hon. Seth Norman, Judge
)
Appellant. ) (Aggravated Rape - 3 cts.)
)

FOR THE APPELLANT: FOR THE APPELLEE:
DEANNA B. JOHNSON PAUL G. SUMMERS
Attorney at Law Attorney General & Reporter
424 Church St., Ste. 1350
Nashville, TN 37219-2305 MARVIN E. CLEMENTS, JR.
Asst. Attorney General
425 Fifth Ave. North
2d Floor, Cordell Hull Bldg.
Nashville, TN 37243-0493

VICTOR S. JOHNSON, III
District Attorney General

JOHN C. ZIMMERMAN
PAMELA ANDERSON
Asst. District Attorneys General
Washington Sq., Ste. 500
222 Second Ave. North
Nashville, TN 37201

OPINION FILED:________________

REVERSED AND REMANDED

JAMES CURWOOD WITT, JR., JUDGE
 OPINION

The defendant, Dee W. Thompson, appeals from his convictions of

three counts of aggravated rape. The defendant received his convictions at a

Davidson County jury trial. A repeat violent offender, see Tenn. Code Ann. § 40-35-

120 (1997), the defendant is presently serving a sentence of life without possibility

of parole for his crimes. In this direct appeal, the defendant raises the following

issues for our review:1

1. Whether the evidence sufficiently supports his convictions.
2. Whether the trial court properly declined to remove a
prospective juror for cause.
3. Whether the trial court properly allowed a nurse who did not
examine the victim to testify.
4. Whether the trial court properly allowed the state to introduce
the victim’s medical records.
5. Whether the trial court correctly excluded a police report the
defense attempted to offer as evidence.
6. Whether the trial court properly ruled that the defendant’s prior
convictions would be admissible to impeach the defendant’s
credibility if he chose to testify.
7. Whether the repeat violent offender statute was properly
applied to the defendant.

We have reviewed the record, the briefs of the parties, and the applicable law. We

find reversible error and reverse the judgment of the trial court.

In the light most favorable to the state, the evidence at trial

demonstrated that the victim came to Nashville on Friday, June 13, 1997 to spend

the weekend with a friend. The victim was dropped off at her friend’s house by her

boyfriend, with whom she had been fighting. Nevertheless, the victim and her

boyfriend had engaged in sexual relations that morning or the previous evening.

On Monday morning, June 16, 1997, the victim left her friend’s house

to check on the house and family of another friend who was in jail. After checking

1
We address the issues in a different order than as presented by the
defendant.
on this friend’s home and family, the victim set out on foot on the streets of

Nashville. While walking, she met up with yet another friend, who invited her to use

crack cocaine at the Trinity Inn. Although the victim had successfully completed

drug rehabilitation and had been “clean” for seven months, she accepted the

invitation. After using crack with this friend, the victim again set out on foot to return

to the friend’s house with whom she had visited the previous weekend.

After walking about three to four miles, the victim decided to stop by

the defendant’s house because she was hot, thirsty and tired. She planned to ask

the defendant to give her a ride. Along with friends, the victim had visited in the

defendant’s house in the past to smoke crack; however, she had not been to the

house alone or in the past year. She had recently encountered the defendant in a

bar and declined his invitation to smoke crack.

When the victim arrived in the area of the defendant’s house, she

found the defendant working at the garage in front of his house. The defendant

agreed to give the victim a ride after his boss left. He told the victim she could wait

inside his house until he finished working. The defendant gave the victim a beer to

drink while she waited.

Later, the defendant came inside his house and sat down on the

couch. While drinking beer, the victim and the defendant discussed the victim’s

troubles with her boyfriend. Eventually, the victim asked the defendant when he

was going to give her a ride. The defendant’s demeanor changed, and he

demanded that the victim go into the bedroom and remove her clothing. The victim

thought the defendant was joking; however, the defendant took a stick with a metal

tip from inside the couch and hit the victim across the eye. He then dragged her

3
into the bedroom by her hair and forced her to undress.

The defendant threw the victim onto the bed while screaming and

cursing at her. The defendant forced the victim to fellate him, then he penetrated

her vaginally and anally. At some point, he gave the victim an ice pack for her eye.

After the defendant completed the assaults, the victim was concerned

for her life and devised a plan to escape. She asked the defendant if he would like

to get some crack. The defendant agreed, and the two left the house in a vehicle

driven by the defendant. When they neared a crack house, the victim jumped out

of the defendant’s car and ran to a market. When she found the market closed, she

approached a young couple in a car, who gave her a ride to another market. At this

market, she had an employee call the police.

When the victim took the police to the defendant’s house later that

evening, they discovered the stick used to accomplish the assault in a corner of the

bedroom. There was blood on the sheets of the defendant’s bed and a pair of

men’s underwear. Bloody tissues and condoms were found in a trash can inside

the home.

The victim was examined by medical personnel later that evening. A

Woods light examination revealed fluorescence in the perianal and perivulval areas

and on the victim’s underwear. The Woods light causes sperm and semen to

fluoresce. The victim was bruised on the outer part of her vagina. The victim was

treated for a sexually transmitted disease and a bacterial infection. She was also

given precautionary medications for other sexually transmitted diseases and a

tetanus shot. A drug test given at the time of this exam was positive for

4
amphetamines, benzodiazopens and cocaine. The victim had taken prescription

anti-anxiety medication which would explain one of the first two positive results.

Subsequent testing by the Tennessee Bureau of Investigation of

samples taken at the time of the medical examination revealed that the victim had

a mixture of DNA from two or more donors in the vaginal sample. One of the

contributors was consistent with the victim herself, and the profile for the other

contributor was incomplete. Thus, the forensic scientist evaluating the sample could

not determine from whom this DNA had come. The rectal sample was a mixture of

two or more donors, none of which was the victim. The defendant could not be

excluded as a donor of one of the samples in the mixture. The forensic scientist

also examined the tissues and the sheets taken from the defendant’s home and

determined that the blood on those items was consistent with the defendant’s own

blood.

To counter the state’s proof, the defendant called his employer and

his girlfriend to contradict the victim’s testimony. According to the defendant’s

employer, the defendant’s vehicle left about 15 minutes after the defendant finished

work and returned within 30 minutes. The employer never heard any noise from the

house that evening. When the employer went inside the defendant’s house a few

days after the incident, he observed no signs of a struggle. The employer also

recalled that the defendant’s car may have had something wrong with the front

passenger-side door.

The defendant’s girlfriend testified that the defendant had cut his

thumb, and she had seen blood on the defendant’s sheets on the morning of June

16. She claimed the passenger-side door of the defendant’s blue station wagon did

5
not open. She claimed the defendant called her around 6:00 or 6:30 on Monday

evening, June 16, 1997.

The defense also offered a tape of the victim’s testimony from the

preliminary hearing, in which the victim’s testimony was somewhat at odds with her

testimony at trial on particular aspects of the events in question.

On this evidence, the jury found the defendant guilty of three counts

of aggravated rape. The trial court thereafter found the defendant to be a repeat

violent offender and sentenced him to life without parole. Following post-trial

proceedings in the court below, the defendant brought this appeal.

I

The first issue is whether the evidence sufficiently supports the

defendant’s three convictions of aggravated rape. When a criminal defendant

challenges the sufficiency of the evidence, an appellate court’s standard of review

is whether, after considering the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324, 99 S. Ct.

2781, 2791-92 (1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R.

App. P. 13(e). This rule applies to findings of guilt based upon direct evidence,

circumstantial evidence, or a combination of direct and circumstantial evidence.

State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990).

In determining the sufficiency of the evidence, this court should not

reweigh or reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779

(Tenn. Crim. App. 1990). Questions concerning the credibility of the witnesses, the

6
weight and value of the evidence, as well as all factual issues raised by the

evidence are resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835

(Tenn. 1978). Nor may this court substitute its inferences for those drawn by the

trier of fact from the evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d

856, 859 (1956); Farmer v. State, 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). On

the contrary, this court must afford the State of Tennessee the strongest legitimate

view of the evidence contained in the record as well as all reasonable and legitimate

inferences which may be drawn from the evidence. Cabbage, 571 S.W.2d at 835.

In the present case, the defendant’s challenge to the sufficiency of the

evidence invites this court to revisit the question of the victim’s credibility and the

inconclusive nature of the DNA evidence. Because the resolution of questions of

fact, including witness credibility, is within the province of the jury, we must decline

the defendant’s invitation. By its verdict, the jury accredited the victim’s testimony

despite its sometimes inconsistent nature on particular details. Further, the jury had

before it evidence that the scientific proof was not absolute and that it only failed to

exclude the defendant as a donor. Viewed in the light most favorable to the state,

the evidence establishes beyond a reasonable doubt that the defendant committed

three aggravated rapes of the victim. Accordingly, this issue is without merit.

II

The defendant also claims that the trial court improperly declined to

remove a prospective juror for cause. In his appellate brief, the defendant has

failed to cite any authority to support his position. Thus, the issue has been waived.

See Tenn. R. Ct. Crim. App. 10(b); Tenn. R. App. P. 27(a)(7).

Additionally, Tennessee law requires that before a defendant will be

7
heard to complain that a trial court has abused its discretion in failing to remove a

potential juror for cause, the defendant must have exercised a peremptory

challenge to remove the potential juror, must have exhausted all his peremptory

challenges, and must have been forced to accept an incompetent juror. State v.

Howell, 868 S.W.2d 238, 288 (Tenn. 1993). In the case at bar, the record reflects

that the prospective juror in question was excused by peremptory challenge, but the

record does not reflect which party exercised the challenge. Furthermore, the

record does not reflect whether the defendant exercised all of his peremptory

challenges. As the appellant, the defendant has the burden to present this court

with a record which conveys “a fair, accurate and complete account of what

transpired with respect to those issues that are the bases of appeal.” Tenn. R. App.

P. 24(b). Without a proper record, we are precluded from considering the affected

issue. See, e.g., State v. Gibson, 973 S.W.2d 231, 244 (Tenn. Crim. App. 1997),

perm. app. denied (Tenn. 1998). Accordingly, the issue is waived on this basis, as

well.

III

The defendant’s next complaint is that the trial court erroneously

allowed the testimony of a nurse who did not examine the victim to testify about the

examination performed by another medical professional. He claims the nurse’s

testimony from the records of the examination was hearsay. Further, he makes a

very general argument that he was deprived of his right to confront a witness

against him by the state’s failure to call the examining nurse.

Nurse Sandra Myers testified at trial that the victim was examined by

Nurse Holly Martin. Nurse Martin prepared a record of the examination; however,

since the time of the examination Nurse Martin had moved to California and had not

left a forwarding address. The record of the examination was kept in the ordinary

8
course of business at the medical facility where Nurse Myers worked and Nurse

Martin had previously worked. During Nurse Myers’ testimony, the defense

interposed an objection to Nurse Myers’ testimony about Nurse Martin’s

qualifications, but there was no objection to Nurse Myers’ testimony about the

substance of the report.

This court is extremely hesitant to put a trial court in error where its

alleged shortcoming has not been the subject of a contemporaneous objection.

Indeed, we are not required to grant relief to “a party responsible for an error or who

failed to take whatever action was reasonably available to prevent or nullify the

harmful effect of an error.” Tenn. R. App. P. 36(a). By failing to make a

contemporaneous objection to the substance of Nurse Myers’ testimony, the

defendant has waived appellate consideration of the issue. See, e.g., State v.

Gilmore, 823 S.W.2d 566, 570 (Tenn. Crim. App. 1991).

IV

In a related issue, the defendant complains that the trial court

improperly allowed the state to introduce the victim’s medical records generated by

Nurse Martin as an exhibit to the testimony of Nurse Myers. As with issue III,

however, the defendant registered no objection to the admission of these records

at trial, thereby failing to take reasonable action to prevent or nullify the alleged

harmful effect of the evidentiary admission. See Tenn. R. App. P. 36(a). Appellate

review is waived. See Gilmore, 823 S.W.2d at 570.

V

Next, we are called upon to consider whether the trial court correctly

excluded a police report the defense attempted to offer as proof when a police

9
officer testified in a manner which might be construed to be at odds with the report.

At trial, the defense attempted to enter the police report as a “record of regularly

conducted activity.” See Tenn. R. Evid. 803(6). The trial court ruled the report was

not admissible but the defense could cross-examine the officer from it. On appeal,

the defendant claims the report is admissible as a “recorded recollection” under

Rule 803(5), as well.2

In his appellate brief, the defendant makes only a cursory allegation

that the report was admissible under Rules 803(5) and 803(6). He has included no

citation to decisional authority or substantive discussion of how the report falls within

these exceptions to the hearsay rule. Significantly, he makes no acknowledgment

of the general inadmissibility of police reports or attempt to explain how this report

falls outside the general rule of exclusion. See, e.g., McDonald v. Onoh, 772

S.W.2d 913, 914 (Tenn. Ct. App. 1989); Tenn. R. Evid. 803(8). Our review of this

issue has been waived. See Tenn. R. Ct. Crim. App. 10(b); Tenn. R. App. P.

27(a)(7).

VI

The defendant also alleges that the trial court erred in ruling that if the

defendant chose to testify, his prior convictions of first degree murder, escape,

aggravated assault and voluntary manslaughter would be admissible to impeach his

credibility. Following this ruling, the defendant did not take the stand.

Subject to certain conditions for admissibility, Tennessee Rule of

Evidence 609 authorizes the use of proof of a witness’s prior convictions in order

2
In his brief, the defendant claims his argument for admission at trial was
premised upon Rule 803(5). The record does not bear out this assertion.

10
to attack a witness’s credibility. Tenn. R. Evid. 609(a). The prior conviction must

be for a felony or a crime involving dishonesty or false statement. Tenn. R. Evid.

609(a)(2). To be eligible as an impeaching conviction, a prior felony conviction

need not involve dishonesty. However, when the witness to be impeached is the

criminal defendant, the state must give notice prior to trial of its intent to utilize the

conviction for impeachment purposes, Tenn. R. Evid. 609(a)(3), and upon request,

the court must determine the admissibility of an eligible conviction by deciding

whether “the conviction’s probative value on credibility outweighs its unfair

prejudicial effect on the substantive issues.” Id. In making this determination, “two

criteria are especially relevant.” State v. Mixon, 983 S.W.2d 661, 674 (Tenn. 1999).

First, the court must “analyze the relevance the impeaching conviction has to the

issue of credibility” and “explain [the relevance] on the record,” id., and second, it

must, “assess the similarity between the crime on trial and the crime underlying the

impeaching conviction.” Id. (quoting Cohen, Sheppeard, Paine, Tennessee Law of

Evidence § 609.9 at 376 (3d ed. 1995)).

If the conviction is remote, that is, if more than ten years have elapsed

from the date of release from confinement or from the date of conviction if no

confinement was involved, the prior conviction is generally not admissible to

impeach the conviction. Tenn. R. Evid. 609(b). However, a remote conviction may

be admissible where the adverse party gives advance notice of intent to use the

conviction, and the court determines that in the interests of justice the conviction’s

probative value is substantially outweighed by its prejudicial effect. Id.

On appellate review, the trial court’s rulings on the admissibility of prior

convictions for impeachment purposes are subject to reversal only for abuse of

discretion. See, e.g., Mixon, 983 S.W.2d at 674.

11
 In the present case, the defendant’s criminal history is somewhat

complex. In 1973, he was convicted of first degree murder and sentenced to a term

of imprisonment. While incarcerated, he escaped and assaulted law enforcement

officers, resulting in a 1981 conviction of escape and three 1982 convictions of

aggravated assault. Still incarcerated, he killed another inmate and received a

conviction of voluntary manslaughter in 1983. Due to various administrative

sentence credits, the defendant was released from the Department of Correction in

1991, and his final sentence expired in 1995. Other than the time during which he

escaped, he was continuously incarcerated in the Department of Correction from

1973 until 1991 due to consecutive sentencing. However, during this time, all but

the voluntary manslaughter sentences expired prior to his actual release.

Under the evidentiary rules, the state bears a higher burden of

establishing the admissibility of convictions over ten years old. Compare Tenn. R.

Evid. 609(a)(3) (for conviction less than ten years old, probative value must

outweigh unfair prejudicial effect) with Tenn. R. Evid. 609(b) (for conviction more

than ten years old, probative value must substantially outweigh unfair prejudicial

effect). Thus, the question which arises is whether the defendant’s release from

incarceration is to be measured for each of his crimes by the date in 1991 upon

which he was actually released from the Department of Correction, or whether the

earlier sentence expiration dates for each of the crimes other than the voluntary

manslaughter conviction should be considered the “release from confinement” date,

even though the defendant remained in the Department of Correction to serve the

next consecutive sentence. Predictably, the defendant argues that the sentence

expiration dates should control all but the voluntary manslaughter sentence, while

the state argues that the 1991 date upon which the defendant actually left the

12
Department of Correction is controlling for all of the convictions.

In State v. Morgan, 541 S.W.2d 385 (Tenn. 1976), a pre-Tennessee

Rules of Evidence case, the supreme court adopted Federal Rule of Evidence 609

as the standard for witness impeachment with prior convictions. Federal Rule 609

as adopted in Morgan provided in pertinent part, “Evidence of a conviction under

this rule is not admissible if a period of more than ten years has elapsed since the

date of the conviction or of the release of the witness from the confinement imposed

for that conviction . . . .” Morgan, 541 S.W.2d at 389 (quoting Fed. R. Evid. 609(b))

(emphasis added).

On its face, Rule 609 does not answer the question at issue and

merely provides in pertinent part, “Evidence of a conviction under this rule is not

admissible if a period of more than ten years has elapsed between the date of

release from confinement and commencement of the action or prosecution . . . .”

Tenn. R. Evid. 609(b). No reference is made to “release . . . from the confinement

imposed for” the impeaching conviction. See Morgan, 541 S.W.2d at 389. That

deletion, if unexplained, would suggest a departure from Morgan. However, the

Advisory Commission Comments provide, “Part (b) of proposed Rule 609 restates

and hopefully clarifies Morgan language concerning the inadmissibility of stale

convictions.”

Despite the facial ambiguity of Tennessee Rule 609, we find guidance

in the Advisory Commission Comments’ declaration of new Rule 609(b)’s purpose

as “restat[ing] and hopefully clarif[ying]” the prior law of Morgan, rather than

changing its result. Further, we believe that at least in the case of multiple,

consecutive sentences that are not simultaneously imposed, an evaluation of

13
“release from confinement” based upon sentence expiration dates is more

consistent with Morgan’s language, and thereby current Rule 609(b) via the

Advisory Commission Comments, than an evaluation which focuses only on the

date the defendant is allowed to leave the incarcerative facility at the end of his final

sentence.

An analysis which focuses upon the confinement period for the

impeaching conviction links the prescribed ten year period to the appropriate

conviction and will generally be applicable in any eventual fact situation. On the

other hand, basing the calculation on the last day of continual, aggregate

confinement could be hard to apply in certain hypotheses, such as when the last

confinement is for a misdemeanor that is served through work release, furlough, or

other rehabilitative programs or when multiple sentences are served in different

jurisdictions via a “hold” and the transfer time is difficult to characterize.

Applying the former approach to the case at bar, the defendant has

one conviction which falls within the ten-year range. In order for this conviction of

voluntary manslaughter to have been admissible, the state bore the burden of

demonstrating that the conviction’s probative value on credibility outweighed its

unfair prejudicial effect on the substantive issues. See Tenn. R. Evid. 609(a)(3).

The defendant’s conviction of voluntary manslaughter implicates a crime of

violence. “[F]elonies of a violent nature reflect on the moral character of a witness[,

and] . . . this evidence is not usually without probative value.” State v. Blanton, 926

S.W.2d 953, 960 (Tenn. Crim. App. 1996) (quoting State v. Daniel Strong, No. 88-

82-III (Tenn. Crim. App., Nashville, Apr. 12, 1989), perm. app. denied (Tenn. 1989)).

But see Long v. State, 607 S.W.2d 482, 485-86 (Tenn. Crim. App. 1980) (violent

or assaultive crimes may result from causes which have “little or no direct bearing

14
on honesty or veracity”), perm. app. denied (Tenn. 1980). Moreover, the crimes of

aggravated rape and voluntary manslaughter are not so similar that the trial court

abused its discretion in ruling that evidence of the latter would be evidence in the

former. See Mixon, 983 S.W.2d at 674-75. As such, we see no abuse of discretion

in the trial court’s ruling. Cf. State v. Wiggins, 729 S.W.2d 291, 294-95 (Tenn. Crim.

App. 1987) (trial court did not abuse discretion in ruling that probative value of

defendant’s prior convictions of voluntary manslaughter and possession of

marijuana for sale outweighed prejudicial effect in prosecution for aggravated rape

and aggravated kidnapping), perm. app. denied (Tenn. 1987). But cf. State v.

Farmer, 841 S.W.2d 837, 840 (Tenn. Crim. App. 1992) (probative value of

attempted voluntary manslaughter conviction is slight or nonexistent).

The defendant’s sentences for the remaining convictions of first

degree murder, escape and three counts of aggravated assault all expired more

than ten years prior to the commencement of this prosecution. Accordingly, they

were only admissible if, based upon specific facts and circumstances, their

probative value substantially outweighed their prejudicial effect. See Tenn. R. Evid.

609(b).

With respect to the crime of escape, this court has upheld a trial

court’s determination that this crime is probative of credibility because it involves

intent to purposefully violate the law. State v. Ratliff, 673 S.W.2d 884, 885 (Tenn.

Crim. App. 1984). Furthermore, the crime of escape bears no similarity to the crime

of aggravated rape. We hold that the trial court did not abuse its discretion in

allowing for the impeachment use of the escape conviction, even though that

conviction’s sentence expired outside the ten-year period.

15
 Aggravated assault and first degree murder are obviously crimes of

a violent nature, and as noted above, “felonies of a violent nature reflect on the

moral character of a witness[, and] . . . this evidence is not usually without probative

value.” Blanton, 926 S.W.2d at 960. In Blanton, the court held that a trial court,

acting pursuant to Rule 609(a)(3), did not abuse its discretion in allowing the use of

a second degree murder conviction to impeach the defendant-witness in an

aggravated sexual battery prosecution, even though the child victim was choked to

the point of being bruised on her neck. Id. As such, Blanton supports the use of

Thompson’s prior murder conviction, if not his aggravated assault convictions, had

the trial court been properly engaged in a 609(a)(3) analysis.

However, as we have determined, the proper analysis of the murder

and aggravated assault convictions emanates from Rule 609(b), which requires that

the probative value of the impeaching conviction substantially outweighs its

prejudicial effect. Using this heightened standard, first we note that, although

crimes of extreme violence have been linked to “moral character” and hence to

credibility, see Blanton, 926 S.W. 2d at 960, the linkage is not as palpable as when

the impeaching crime involves deceit or dishonesty. See, e.g., State v. Caruthers,

676 S.W.2d 935, 941 (Tenn. 1984) (approving impeachment with convictions “over

ten years old” of robbery and transporting stolen vehicle in interstate commerce,

crimes that have “been found to involve dishonesty or false statement”). Second,

in assessing the degree by which the probative value outweighs prejudice, we must

observe that, although murder and aggravated assault are not the same crimes as

aggravated rape, in the present case the proof of aggravated rapes included the

victim’s narrative of the rapes being preceded, if not accomplished by, the

defendant's committing an aggravated assault by viciously striking the victim with

a metal-sleeved stick. Pictures of the resulting wound show severe bruising in and

16
around the victim’s eye. There is obviously a behavioral nexus between such an

assault and the type of actions generally proscribed by the homicide and

aggravated assault statutes. We cannot say that the probative value as to the

credibility of those prior convictions substantially outweighs the prejudicial effect.

Nor can we say that the proper use of the escape and voluntary manslaughter

convictions attenuates the prejudice to be effected by using the murder and

aggravated assault convictions. In other words, the possibility is strong that a jury

would assume that, because the defendant committed first degree murder and three

aggravated assaults, he harbored the violent propensity necessary to commit the

assault and the rapes in the present case. Under the facts of this case, the

approval of the use of the first degree murder and aggravated assault convictions

was error.

Nor can we say that such error was harmless. In assessing the

harmlessness of the error, we do not consider whether the defendant would have

testified but for the erroneous ruling – nor whether he would have declined to testify

had the trial court excluded the murder and aggravated assault convictions but

correctly allowed impeachment via the escape and manslaughter convictions. See

State v. Galmore, 994 S.W.2d 120, 124-25 (Tenn. 1999). Rather, our analysis is

limited to whether the erroneous impeachment would have “affected the result of the

trial on the merits.” Tenn. R. Crim. P. 52(a); see Galmore, 994 S.W.2d at 125.

In assessing the harmfulness of this error in a case in which the

defendant did not testify, we are obliged to consider the “theory of the defense” in

order to determine whether the erroneous impeachment would have had an impact

on the result of the trial. See Galmore, 994 S.W.2d at 125. We glean the defense

theory from the arguments of counsel, the presentation of evidence in the

17
defendant’s case-in-chief, and, when appropriate, from the tenor of cross-

examination of state witnesses.

In his opening and final arguments, the defendant primarily focused

upon the credibility of the victim.3 Indeed, the victim was plagued with credibility

demerits. She admitted prior criminal behavior, including the use of crack cocaine,

and various criminal convictions, including theft. She had been in jail for “the last

few months” preceding the trial. She had lost custody of her two minor children to

their respective fathers, and an adult son lived with his grandmother. Within hours

after the rape complaint, she tested “positive” for cocaine, even though she had told

one of the investigating officers that, although she had been drinking, she had not

used cocaine. Moreover, some of her trial testimony was at odds with her

preliminary hearing testimony. Also, the state’s evidence showed that, in addition

to the serious wound to the victim’s face and eye, she had various contusions which

were not fresh. Additionally, despite her testimony that, as of the time of the rape,

she had bathed since engaging in sexual relations with her boyfriend three days

before and had not engaged in any other sexual activity before the rape occurred,

and although chemical analysis of vaginal and rectal swabs revealed that seminal

material found in the rectal area included the defendant as a possible donor, there

was also present material from another donor besides the victim. Based upon these

revelations, we conclude that, not only were significant questions raised about the

victim’s veracity in general, but in particular the defendant pointed to the victim’s

credibility in explaining the origin of the facial wound and the qualified claim of

sexual abstinence prior to the rape. The defendant argued that the proof was

compatible with the victim being assaulted and injured during a sexual encounter

3
Counsel argued, for example, “Now, this case will come down to a huge
extent to credibility,” and the victim’s “credibility is what it comes down to.”

18
with another person. Also, during cross-examination, defense counsel asked the

victim if she had told the defendant that she received the face-eye injury during a

mugging earlier in the day.4 From these indicia, the theory of the defense is clear:

the victim is not credible, and the physical evidence of the injury and sexual activity

is as suggestive of actions by a third party as it is of the defendant’s guilt.

In Galmore, our supreme court ruled that a defendant need not proffer

his would-be testimony in order to successfully appeal a Rule 609 determination,

although it acknowledged that in some cases the proffer would be practically

necessary in order to establish that a Rule 609 error was harmful. Galmore, 994

S.W.2d at 124-125. In the present case, the theory of the defense is cogent, even

in the absence of the defendant’s proffered testimony. He has, in effect, proffered

the theory of his defense without articulating it from his own mouth. The

requirement of a proffer in the present case seems a formality.

In Mixon, the supreme court taught that Rule 609 errors in cases that

turn upon credibility have more prejudicial impact than in other cases. See Mixon,

983 S.W.2d at 675. The court refused to find harmless the error of using a sexual

battery conviction to impeach Mixon as a witness in a sex offense trial when the

victim and the accused were the only witnesses to the alleged sexual offense and

the testimony of one conflicted with the other. Id.5 The present case is another “he

said, she said” situation; yet, the victim’s narrative of the crime was essentially

uncontroverted because the only other person allegedly present did not testify. Had

he testified, his own credibility, juxtaposed to hers, would have been crucial, and the

4
The victim denied making this statement.
5
In Mixon, the defendant testified. Mixon, 983 S.W.3d at 675.

19
use of the murder and aggravated assault convictions to impeach more likely than

not would have affected the result.

Accordingly, the convictions of aggravated rape must be reversed,

and the case must be remanded for a new trial.

VII

Finally, despite the remand for new trial, we consider whether the

repeat violent offender statute was properly applied to the defendant. Thompson

claims he is ineligible for a sentence of life without parole under the so-called “three

strikes” law because (1) he was not tried within 180 days of arraignment and (2) the

state did not file and serve a statement of its intent to seek a sentence of life without

parole within 45 days of arraignment.6 See Tenn. Code Ann. § 40-35-120(i)(1), (2)

(1997).

Under the Repeat Violent Offender Statute, offenders convicted of

specified violent offenses who have a record of certain proven predicate convictions

qualify for an automatic sentence of life without parole, rather than variable

sentencing under the usual statutory scheme of offender ranges and offense

classes. See Tenn. Code Ann. § 40-35-120 (1997). A charge as a repeat violent

offender shall be brought to trial within 180 days of the arraignment, with certain

exceptions.7 Tenn. Code Ann. § 40-35-120(i)(1) (1997). Furthermore, the state is

6
At the sentencing hearing, the defendant conceded that he had the
predicate convictions to support sentencing as a repeat violent offender. On
appeal, there is no contention to the contrary.
7
The exceptions are delay caused by (1) the defendant, (2) a competency
examination, (3) a competency hearing, (4) an adjudication that the defendant is
incompetent to stand trial, (5) a continuance due to the defendant’s physical
incapacity for trial, or (6) an interlocutory appeal. Tenn. Code Ann. § 40-35-

20
required to file with the court and defense counsel a statement that the defendant

is a repeat violent offender within 45 days of the arraignment. Tenn. Code Ann. §

40-35-120(i)(2) (1997). If the notice is not timely filed, the defendant shall be

granted a continuance so that he has 45 days between the date of notice and the

trial. Id. If the state does not comply with the notice provisions, the defendant is not

entitled to release from custody or dismissal of the charges. Tenn. Code Ann. § 40-

35-120(i)(3) (1997).

In the present case, the defendant was arraigned on the indictment

on October 1, 1997. On March 4, 1998, the state filed a “Notice of Enhanced

Punishment,” citing the defendant’s prior convictions of first degree murder, escape,

three counts of aggravated assault, and voluntary manslaughter. This notice

referenced Code section “40-35-106, et seq.” Section 40-35-106 is the provision

for Range II “multiple offenders.” On June 17, 1998, the state filed its “Notice of

Defendant’s Status as a Repeat Violent Offender.” The certificate of service on this

notice reflects service on defense counsel on March 3, 1998; however, at trial the

state conceded that the notice was not provided to the defense prior to Friday, June

17, 1998. The defendant’s trial commenced the following Monday, June 22, 1998,

and his sentencing hearing was conducted on August 12, 1998.

a. The 45-Day Rule.

In a hearing on the first day of trial, the defense brought the state’s

untimeliness to the attention of the trial court. The prosecutor acknowledged the

untimeliness. He explained that the notice had been prepared some time ago, but

it had not been filed with the court because once it was filed the parties were limited

120(i)(1)(A)-(F) (1997).

21
in their ability to dispose of the case by plea bargain, see Tenn. Code Ann. § 40-35-

120(f) (1997), and there had been hopes of reaching a settlement of the case. The

court indicated that the defense could either choose to go forward or have the case

continued based upon the untimeliness of the notice. Defense counsel stated her

preference, “Well, I’m kind of in a catch twenty-two. My client’s been locked up for

a year. I don’t want a continuance. We’re ready to go.” Additionally, the trial court

declined to strike the notice based upon failure to bring the defendant to trial within

180 days.

The question of whether the state is precluded from seeking a

sentence of life without parole when the timeliness provisions of the Repeat Violent

Offender Statute are not followed is not addressed in the statute. Moreover, it is

one of first impression in the appellate courts. As such, we are guided by our

decisions with respect to other statutory requirements of notice in sentencing

matters.

In State v. Stephenson, 752 S.W.2d 80 (Tenn. 1988) (Brock, J.,

dissenting), the supreme court held that the state’s failure to file a timely notice of

intent to seek enhanced range sentencing did not prevent the trial court from

imposing sentence in an enhanced range, absent a demonstration of prejudice to

the defendant from the untimely notice. Furthermore, a majority of the Stephenson

court held that in the absence of a defense motion for continuance, any objection

to the late-filed notice was waived. Id. at 81.

In State v. Adams, 788 S.W.2d 557 (Tenn. 1990), the state’s notice

of intent to seek enhanced punishment was inadequate and misleading. It stated

the enhancement factors the state sought to rely upon at the sentencing hearing,

22
but it did not indicate that the state was seeking classification of the defendant as

a Range II offender. Id. at 558. The Adams court held that substantial compliance

by the state with the notice provision triggered a defendant’s duty of inquiry into

ambiguous or incomplete aspects of the notice and the requirement that the

defendant demonstrate prejudice to obtain relief. Id. at 559; cf. State v. Debro, 787

S.W.2d 932, 933-34 (Tenn. Crim. App. 1989) (defendant must show prejudice in

order to obtain relief from sentencing notice which is content-defective). However,

the state bears the burden of asserting a defendant’s correct sentencing status and

may not shift the burden by filing an “empty notice.” Id. The court in Adams found

the notice both inadequate and misleading; therefore, it reversed the trial court’s

application of Range II sentencing and remanded for a new sentencing

determination. Id.

In State v. Hines, 919 S.W.2d 573 (Tenn. 1995), the defendant came

before the trial court for jury resentencing in a death penalty case. The state was

untimely in filing its notice of aggravating circumstances prior to the resentencing

hearing. Id. at 579. However, the state had previously filed a notice listing the

same aggravating circumstances before the original sentencing hearing. Id. The

supreme court held that had the untimely notice been the only one filed, the defense

would have been entitled to a continuance of the resentencing hearing. Id.

However, the need for a continuance was obviated by the previously filed notice

listing the same aggravating circumstances upon which the death penalty was

sought. Id. Further, the court held that a continuance was not warranted in the

absence of a showing of prejudice. Id.

A common thread in each of these cases is the focus on whether the

defendant has been prejudiced by the state’s defective or delayed notice. In each

23
case cited above, the applicable rule mandates that the state “shall” give notice in

a prescribed manner. See Tenn. R. Crim. P. 12.3(a), (b); cf. Tenn. Code Ann. § 40-

35-202(a) (1997).8 Likewise, in the case at bar, Code section 40-35-120(i) dictates

that the state “shall” give notice and bring the defendant to trial within a specified

period of time. The remedy for untimely notice is the option of a continuance for the

defense, not preclusion of the state from seeking enhanced sentencing. Compare

Tenn. R. Crim. P. 12.3(a), (b) with Tenn. Code Ann. § 40-35-120(i)(2) (1997).

In the present case, the defendant has articulated no prejudice which

befell him as a result of the state’s untimely compliance with the notice requirement.

To be sure, it appears that the delay was of potential benefit to the defendant, as

the parties were pursuing the option of a plea agreement, which would be

foreclosed or at least limited by a timely filed notice. See Tenn. Code Ann. § 40-35-

120(f) (1997) (prohibiting court from accepting plea agreement which fails to

recommend that a defendant with appropriate prior record be sentenced as a repeat

violent offender unless the indictment is amended to designate a non-violent

offense). Further, the defendant had the opportunity to receive a continuance so

that he would have more time to prepare following the state’s untimely notice;

however, he elected not to avail himself of that alternative. We conclude that the

state was not foreclosed from seeking sentencing as a repeat violent offender even

though it failed to give notice of its intent to do so at least 45 days prior to trial.

b. The 180-Day Rule.

The cases discussed above do not address a rule which requires the

8
We acknowledge that Stephenson and Adams were decided under the
pre-1989 sentencing law. However, as we observed in State v. Gilmore, 823
S.W.2d 566, 570-71 (Tenn. Crim. App. 1991), the current statute is in accord
with Rule of Criminal Procedure 12.3 and Stephenson.

24
defendant be brought to trial within 180 days of arraignment. However, the Repeat

Violent Offender Statute provides insight. Although the statute says the defendant

“shall” be brought to trial within this time, it enumerates six exceptions. It goes on

to provide, “A continuance may be granted to any party, including the court, for

good cause shown.” Tenn. Code Ann. § 40-35-120(i) (1997).

Our analysis of this issue is directed by our supreme court’s treatment

of a provision contained in the effectively-repealed Class X Felonies Act of 1979

which is similar in purpose and effect to the repeat violent offender statute. See

Tenn. Code Ann. § 40-18-103 (1997); see also Tenn. Code Ann. § 40-18-103 Code

Comm’n Notes (“The Sentencing Reform Act of 1989 in effect repealed the Class

X Felonies Act of 1979.”); Tenn. Code Ann. § 40-35-105(a)(1997) (providing for

comprehensive classification of felony offenders under Sentencing Reform Act of

1989); Tenn. Code Ann. § 40-35-110(a)(1997) (providing for comprehensive

classification of felony offenses under Sentencing Reform Act of 1989). The Class

X Felonies Act contained a provision that a Class X charge “shall be tried within

[150] days following arraignment unless delay is occasioned” by the same

enumerated circumstances which serve as exceptions to the 180-day requirement

set forth in Code section 40-35-120(i). Compare Tenn. Code Ann. § 40-18-103(a)

(1997) with Tenn. Code Ann. § 40-35-120(i)(1997). In addition to featuring the

same enumerated circumstances which may cause a delay beyond the prescribed

deadlines, both sections provide generally for an order of continuance. The

continuance may be granted upon demonstrating “a manifest injustice” in the case

of section 40-18-103(b), or “good cause shown” in the case of section 40-35-120.

Compare Tenn. Code Ann. § 40-18-103(b) with Tenn. Code Ann. § 40-35-120(i).

Both statutes provide that a “failure to comply [with the applicable requirements

does not] require release of [the accused] from custody or a dismissal [of pending

25
charges].” Compare Tenn. Code Ann. § 40-18-103(e) (1997) with Tenn. Code Ann.

§ 40-35-120(i)(3) (1997). We conclude that the similarities in the two statutes

bespeak a common purpose or policy basis.

Our supreme court has commented upon the purpose of the 150-day

deadline in the Class X felony law. In State v Wilcoxson, 772 S.W.2d 33 (Tenn.

1989), the court said, “[T]he criteria in [section 40-18-103(a), (b)] are not to be

confused with the right [to a speedy trial] reserved to a criminal defendant under the

constitution.” Id. at 36. The court explained that the 150-day rule was not intended

“to benefit a defendant,” but merely deemed as serious a class of offenses with

respect to which society could be assured of “swift and certain punishment.” Id. By

analogy, we conclude that the Wilcoxson reasoning applies to the 180-day

requirement of section 40-35-120(i). Constitutional provisions for speedy trial and

due process are sufficient to protect the interests of defendants in seeing that

criminal proceedings are expedited.

Even though none of the enumerated exceptions to the 180-day

requirement applied and no order of continuance was sought or granted, the

defendant is entitled to no relief. Moreover, he has demonstrated no prejudice from

the failure to grant a continuance. Even though the granting of a continuance is

committed to the sound discretion of the trial judge, see, e.g., State v. Strouth, 620

S.W.2d 467, 472 (Tenn. 1981), no request for a continuance appears in the record,

and the trial court cannot be viewed to abuse its discretion when it never was called

upon to rule on the issue. According, the defendant’s claim fails.

The judgment of the trial court is reversed, and the case is remanded

for a new trial.

26
 ________________________________
JAMES CURWOOD WITT, JR., JUDGE

CONCUR:

_____________________________
JOE G. RILEY, JUDGE

_____________________________
ALAN E. GLENN, JUDGE

27