State v. Drinkard

909 S.W.2d 13, 1995 Tenn. Crim. App. LEXIS 183
CourtCourt of Criminal Appeals of Tennessee
DecidedMarch 8, 1995
StatusPublished
Cited by27 cases

This text of 909 S.W.2d 13 (State v. Drinkard) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Drinkard, 909 S.W.2d 13, 1995 Tenn. Crim. App. LEXIS 183 (Tenn. Ct. App. 1995).

Opinion

OPINION

SUMMERS, Judge.

The appellant, Keith L. Drinkard, was convicted by a jury of aggravated rape and aggravated robbery. Drinkard now appeals the judgment affirming the verdict, presenting four issues for our review: (1) whether the trial court erred by failing to suppress pre-trial and in-court identifications of the appellant by the victim; (2) whether the trial court erred by admitting into evidence the circumstances surrounding the appellant’s arrest; (3) whether the trial court erred by excluding evidence that the appellant had signed a consent form to take blood and hair samples; and (4) whether the evidence was sufficient to sustain the appellant’s convictions for aggravated rape and aggravated robbery. Having considered each of these issues, we affirm the judgment of the trial court.

FACTS

Since the appellant has raised primarily evidentiary questions, we find it appropriate to recite the facts of the case.

The victim was a graduate student living in the Goodman Dormitory of the University of Tennessee at Memphis. The parking lot adjacent to this dormitory is surrounded by a five (5) foot cement wall. A chain-link fence which is approximately nine (9) feet tall and topped by three (3) strands of barbed wire runs along the top of the wall. The area is well lit and patrolled by security guards.

At approximately 10:30 one evening the victim returned to the Goodman parking lot after studying with her tutor. She parked [15]*15her car near a light and began walking toward her apartment. She was only a few feet from her car when she noticed that the appellant was walking in her direction. The appellant said hello to her, and she spoke to him in return. The appellant was the only other person in the parking lot, but the victim indicated that she did not feel threatened by him at this point. She then remembered that she had left some study materials in her car and she went back for them.

When she reached her car and leaned over the driver’s seat to retrieve her papers, the appellant grabbed her from behind placing his hand over her mouth and a sharp object to her neck. He demanded her money and jewelry, and she complied. He then pushed her down onto the driver’s seat and took off her shorts and underwear. He inserted his fingers into her vagina, and penetrated her twice with his penis. Unable to attain a full erection, the appellant shoved the victim into the passenger seat of the car and warned her that he would kill her if she “tried anything funny.” The appellant unsuccessfully attempted to start the car. He forced the victim to try to start the ear from the passenger seat. When the car moved a bit and then stalled, the victim jumped from the car and ran to her dormitory.

At approximately the time of the attack, security guards from neighboring Shelby State Community College saw a man matching the appellant’s description standing inside the fence in the Goodman parking lot with his hands extended as though he was preparing to scale the fence. When the officers shined the lights of their patrol car on the man, he ran toward the UT campus. Efforts by the Shelby State officers and by UT security to apprehend this man were unsuccessful.

Nine days later, an officer of the UT Police Department saw the appellant scale the fence and enter the secured parking lot at the Goodman Dormitory. When the officer confronted the appellant, the appellant claimed that he had been taking a short cut to another parking lot which he had been hired to clean. The officer knew this to be a lie, because the UT grounds crew cleans the lot in question; and the appellant was not a UT employee. The officer then arrested the appellant, handcuffed him, and placed him in the back of a squad car.

The appellant was in the back of the squad car parked in the entrance of the Goodman parking lot when the rape victim returned from an evening out with her fiance. Other officers and police vehicles had arrived on the scene, and there was only room for one vehicle to pass between the police vehicles. The victim’s fiance stopped the car and the victim rolled down the window to inquire if anyone had been hurt. A police officer told the victim that they had apprehended someone in the parking lot and that she might want to “take a look at him.” The victim instructed her fiance to slow down as they passed the squad car. She then recognized the appellant as the man who had attacked and raped her. She identified the appellant to the police and they later took her statement.

ISSUES

The appellant maintains that the identification in the parking lot should have been suppressed as the result of an impermissibly suggestive showup. In a related issue, he argues that an in-eourt identification by the victim should be suppressed because it was tainted by the suggestiveness of the pre-trial showup. Finally, the appellant contends that without the improper pre-trial and in-court identifications by the victim, the evidence is legally insufficient to sustain his convictions. Because these three issues all turn on our resolution of the pre-trial identification issue, we will consider them together.

Tennessee law has clearly recognized that any identification procedure initiated or designed by police which is inherently suggestive violates the accused’s due process rights. E.g. State v. Thomas, 780 S.W.2d 379 (Tenn.Crim.App.1989); State v. Beal, 614 S.W.2d 77 (Tenn.Crim.App.1981); Sloan v. State, 584 S.W.2d 461 (Tenn.Crim.App.1978). It is also well settled, however, that an observation of a defendant by a victim cannot be characterized as a showup unless it is arranged by the police. State v. Dixon, 656 S.W.2d 49, 51 (Tenn.Crim.App.[16]*161983). An inadvertent or accidental meeting between the victim and the defendant involves no abuse of the identification process. State v. Burns, 777 S.W.2d 355, 358 (Tenn.Crim.App.1989).

The trial court found that the pretrial identification was based on a “chance observation by the victim” and was not the product of an impermissibly suggestive show-up. There was no evidence that the police had staged the incident or that they had brought the appellant there for the purpose of conducting a showup. The appellant was there voluntarily and was in fact apprehended there in the process of committing another offense, to wit, criminal trespass. The victim had no choice under these circumstances but to pass within a few feet of the squad ear where the appellant was handcuffed. That one officer suggested to the victim that she might “take a look” as she passed by does not remove the incident from the realm of happenstance.

As the trial court correctly pointed out, the officers on the scene had no affirmative duty to prevent the victim from entering her own parking lot or to spirit the appellant away so that the victim would be unable to view him. We find the appellant’s first issue concerning the pre-trial identification to be without merit, and accordingly, we also find that the issue relating to the in-court identification and the sufficiency of the evidence issue are meritless.

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Cite This Page — Counsel Stack

Bluebook (online)
909 S.W.2d 13, 1995 Tenn. Crim. App. LEXIS 183, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-drinkard-tenncrimapp-1995.