State v. Crank

721 S.W.2d 264, 1986 Tenn. Crim. App. LEXIS 2726
CourtTennessee Supreme Court
DecidedJuly 11, 1986
StatusPublished
Cited by15 cases

This text of 721 S.W.2d 264 (State v. Crank) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Crank, 721 S.W.2d 264, 1986 Tenn. Crim. App. LEXIS 2726 (Tenn. 1986).

Opinions

OPINION

TATUM, Judge.

The defendant, Gene Crank, was sentenced to 15 years imprisonment on conviction for first-degree burglary and to life imprisonment for an aggravated rape conviction. On this appeal, he says that the trial court erred in admitting evidence of prior “bad acts” or prior convictions for impeachment purposes, in refusing to suppress identification evidence, in failing to declare a mistrial because of prosecutorial misconduct in closing argument, in limiting cross examination of a police officer and in not charging the lesser included offenses of aggravated rape. We find no reversible error and affirm the judgment below.

Although the defendant does not challenge the sufficiency of the evidence, we will briefly summarize the facts as established by the State’s proof.

The victim, Dr. Marsha Warren was awakened at approximately 3:00 o’clock a.m. on July 9, 1984 by a man who got in bed with her. The man told the victim that he had a knife but that she would not be hurt if she did not fight him. The man stroked an object across Dr. Warren’s neck which she believed to be a knife. Dr. Warren could see the face of the man because a light was shining into her bedroom from a hallway. The man attempted to engage in oral sex but abandoned this pursuit and required the victim to massage his penis. He then forced the victim to lay on her stomach and massaged her vagina and spanked her buttocks. He then forced his penis into her vagina.

After raping the victim, the defendant forced her to wedge her head between the bed and the wall, saying that he had to look for something. As soon as the victim felt [266]*266it was safe, she telephoned the police. The rapist took the bedsheet and about $6.00 in currency that was on the victim’s desk.

The victim identified the defendant as being the rapist. She testified that he had an offensive body odor.

The pattern on shoe prints found on top of an air conditioner unit outside the victim’s apartment matched the pattern on the sole of tennis shoes worn by the defendant at a lineup. A fingerprint found on the windowledge where the burglar gained entrance to the victim’s residence matched the right thumbprint of the defendant.

The defendant told officers that he was working during the night of the rape. Other evidence established that he was not. Also, there was evidence, apart from the victim’s testimony, that the defendant emitted an offensive body odor. The defendant and his wife testified that the defendant was at home at the time of the rape.

In the first issue, the defendant says that the court erred in allowing the State to prove “prior acts or prior convictions of defendant for impeachment purposes” because the probative value of this evidence was outweighed by its prejudicial effect. He premises this argument on the proposition that the other offenses were of the same character as those for which he was on trial.

The State was permitted, after a hearing outside the presence of the jury, to question the defendant on cross examination concerning a conviction for third-degree burglary in January, 1976 and two convictions in 1980 for attempt to commit a burglary. The State was also permitted to question the defendant about being involved in a burglary on August 8, 1979. The latter burglary was disposed of by a guilty plea to assault with intent to commit rape. The court ruled that the State would not be permitted to question the defendant concerning the assault to rape conviction because the prejudicial effect outweighed the probative value of this evidence. However, the court permitted the State to question the defendant concerning the fact that he was involved in the underlying burglary.

In State v. Sheffield, 676 S.W.2d 542 (Tenn.1984), the Supreme Court referred to State v. Morgan, 541 S.W.2d 385 (Tenn. 1976), wherein Rules 608(b) and 609(a) of the Federal Rules of Evidence were adopted. Rule 609(a) provides that crimes punishable by death or imprisonment in excess of one year, are admissible for impeachment purposes if the court determines that the probative value of evidence concerning the prior convictions outweighs its prejudicial effect on the defendant. The rule also provides that evidence of conviction for crimes involving dishonesty or false statements, regardless of punishment, is admissible. Rule 608(b) provides that a witness may be cross-examined relating to specific instances probative for credibility of the witness.

In the Sheffield case, the court intentionally declined to mandate use of express guidelines for the exercise of judicial discretion in weighing probative value against prejudicial effects. See 676 S.W.2d at page 548. In Sheffield, the defendant was being tried for first degree murder and the trial court admitted evidence that the defendant was previously convicted for voluntary manslaughter in order to impeach the defendant’s testimony. The Supreme Court stated that it could not say that the trial judge abused his discretion in allowing this evidence.

Likewise, we cannot say that the trial court abused its discretion in this case in allowing evidence of the defendant’s convictions involving three burglaries and the bad act for burglary. The trial court conscientiously weighed prejudicial effect against probative value and would not permit evidence of the conviction for assault to commit rape. After the evidence was admitted, the trial court carefully instructed the jury that they could consider it only for impeachment purposes. These multiple involvements in burglaries are highly probative on the credibility question and the jury was not permitted to hear that the defendant had been previously convicted for attempted rape. We overrule this issue.

[267]*267In the next issue, the defendant avers that the identification procedure employed for a lineup was so suggestive as to give rise to a very substantial likelihood of irreparable misidentification. He cites Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968) and its progeny.

The evidence heard at a suppression hearing established that the victim was not coached before viewing the lineup. Detective Flowers advised her that there would be no talking in the lineup room. After the victim had viewed the lineup, she placed a mark by the phrase “I do not identify anyone shown to me in the lineup.” When Detective Flowers asked the victim why she was unable to make an identification, she responded that she was under the impression that she should make no identification unless she was 100 per cent certain and that she was only 95 per cent sure that the rapist was number 4 (the defendant). At this time, Detective Flowers asked her to so indicate this on the card, which she did.

A photograph was made of the lineup. It reveals that the five white men in the lineup were all approximately the same age, height and build. Facial hair of all five was generally similar. We find nothing in the record that would tend to suggest to the victim that the defendant was suspected by the police. There was nothing to otherwise emphasize the defendant or to single him out.

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Bluebook (online)
721 S.W.2d 264, 1986 Tenn. Crim. App. LEXIS 2726, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-crank-tenn-1986.