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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE
July 29, 2008 Session STATE OF TENNESSEE v. BRUCE WARREN SCARBOROUGH
Direct Appeal from the Criminal Court for Knox County No. 82497 Mary Beth Leibowitz, Judge

No. E2007-01856-CCA-R3-CD - Filed March 17, 2009

The defendant, Bruce Warren Scarborough, was convicted by a Knox County Criminal Court jury of two counts of aggravated rape, Class A felonies, and was sentenced to consecutive terms of sixty years as a career offender in the Department of Correction. On appeal, he argues that the trial court erred in (1) denying his motion to suppress the in-court and out-of-court identifications of him and his tattoos, (2) failing to grant a new trial due to prosecutorial misconduct during closing argument, (3) classifying him as a career offender, and (4) ordering consecutive sentences. After review, we affirm the judgments of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed JOSEPH M. TIPTON , P.J., delivered the opinion of the court, in which JERRY L. SMITH and NORMA MCGEE OGLE , JJ., joined. Mark E. Stephens, District Public Defender, and John Halstead, Assistant Public Defender, for the appellant, Bruce Warren Scarborough. Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Kevin Allen and Leslie Nassios, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION This case involves the June 1997 vaginal and anal raping of the victim, K. R., for which the defendant was charged in August 2005 by presentment1 with two counts of aggravated rape. The trial was conducted on November 13-15, 2006. At the trial, the victim testified that in 1997 she lived alone at 4601 Bob White Road in Knoxville. She recalled that sometime that spring

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The State elected to proceed under a superseding presentment on November 13, 2006.

she began experiencing "kind of a creepy feeling. I thought perhaps I was being watched." She remembered an incident one evening approximately seven to ten days before the rape when she was napping on the sofa and "woke with a start and . . . saw a flash of what looked like a white t-shirt across the living room window." The victim stated that she told her mother that she needed "some sort of protection" and was considering buying a baseball bat, although she never did. The victim testified that on June 3, 1997, she was at home with "a horrible case of laryngitis" and a friend brought her some cold medication around 4:30 p.m. The victim recalled that "[i]t did not register with [her]" that she did not lock the door when her friend left. The victim stated that during the night she was awakened by the sound of the door closing and heard footsteps on the hardwood floor. The victim remembered that she looked at the clock and it was around 3:30 a.m., and then she saw a figure standing in the doorway. The victim stated that with the hallway and living room lights on, the lighting was behind the figure. She recalled that the figure filled the majority of the doorway. The victim testified that she "bolted upright and with laryngitis was screaming, `Who are you?'" She recalled that the figure "rushed" at her, leapt onto her legs and torso, and used his arms to restrain her. She said she struggled and tried to scream while trying to make sense of what was happening. The victim stated she realized what was happening when the man began to rip off her clothes. She noted that he smelled "[v]ery strongly of greasy body odor" and that there was nothing familiar about him. The victim testified that the man told her to hold still and not scream while he covered her eyes with his hand. She stated that the man pulled a piece of tape off his upper arm and used it to cover her face. She remembered that the man told her that he had a knife, that he would use it, and that he would cut her up. The victim testified that she then heard a rustle and felt the man touch her with plastic on his hands. She said that while he was touching her, he said, "I'm going to get you. . . . You just hold still. You're going to like this." She noted that the more she tried to pull away from him, "the more excited he got and the harder he would rape [her]." The victim testified that shortly after the man began raping her, he took a pillowcase off one of her pillows, put it over her head, and "noosed it really tightly." The victim recalled that she lied and told the man she had herpes in an effort to disgust him and also tried to make herself vomit. She said she began to pray aloud. The victim said that she went limp and did not fight him, which "wasn't as pleasing. So, he turned [her] over and began to sodomize [her]." She said that the man grabbed some Ruhl Gel, an "anti-itch, bug bite" medication, from her bedside table and rubbed it on her vagina. She noted that she did not know she could feel pain "quite like that." The victim stated that sometime prior to the man raping her, he tried to kiss her and "said something about wanting oral sex," but she refused. The victim estimated that the initial rape lasted twenty-five to thirty minutes and that she was sodomized twice. She recalled that the man did not wear a condom. The victim testified that she was able to make out the man's figure, shape of his haircut, his hair, and moustache as he was running toward her bed. She recalled that toward the end of the -2-

attack, while she was being sodomized, the tape came off her eyes under the pillowcase and she was able to see tattoos on the man's arms. The victim said that she focused on the man's arms "for a minute and a half to two minutes," knowing she needed to be able to identify him if she survived. She stated that she looked behind her at the man's face through a gape in the pillowcase. She said she observed his eyes, eyebrows, cheekbones, and moustache for "[p]robably half a minute." She said that she noticed he was wearing a blue button-down shirt, a velcro-banded watch with a black band and blue trim around the edges and that she got an overall feel for his weight and age. The victim testified that after the rape, the man put his pants back on as she lay naked "in the fetal position on [her] bed." She remembered that the man pulled her up, grabbed the back of the pillowcase tightly, and walked her down the hallway to the bathroom. She stated that he made her get into the shower with the pillowcase still over her head, poured liquid soap onto her hand, and told her "to clean that pussy real good. He didn't want nobody to find nothing. To clean it real good." She recalled that as she was washing herself, the man told her that he would be watching her house for a few weeks and if he saw any police cars he would come back and kill her. The victim said she washed herself for five to ten seconds and then became aware that the man was gone. She stated that she heard footsteps across the living room floor and the glass front door close and that she turned off the water and listened for a car but never heard a car start. The victim testified that she retrieved a telephone from her bedroom and locked herself in the bathroom. She said she called 9-1-1 and reported that a stranger had entered her house and raped her. She recalled that officers arrived on the scene in "[j]ust a matter of minutes" and began securing the scene. The victim said she was taken by ambulance to the hospital where a rape kit was conducted. She said she went to the police station later that morning and gave a statement. The victim stated that she worked with an officer to create a composite of her attacker and that she drew a freehand representation of her attacker's tattoos. She said that she drew the overall image of the tattoo on her attacker's left arm, including the shape, coloration, and pattern but that she did not know what it was specifically. At this point in the victim's testimony, the defendant was asked to show the victim his arms, and she identified his tattoos as those of her attacker. The victim testified that she looked through books containing photographs of convicted criminals and photographs of tattoos. She said she viewed photographic lineups containing six or eight photographs each "[a]t least a dozen" times. The victim stated that she viewed hundreds of photographs and that she was very concerned that she not wrongly identify her attacker. The victim testified that in 2002 she received a call from Detective Ed Stair with the Knoxville Police Department at her new home in Macon, Georgia, asking her to come to Knoxville because they had a potential suspect in her case. The victim said that when she arrived at the police station, she saw six standard computer paper sized photographs on a desk and that the first photograph she looked at was the one she recognized as her attacker. The victim said that she looked through the other photographs to be sure she was not having some sort of "unusual reaction" but that she was "100 percent certain" the man in the first photograph was her attacker. She recalled that Detective Stair asked her to look through a stack of photographs of tattoos and that she "became almost hysterically insistent" that the tattoos belonged to her attacker. She noted that once she recognized the tattoos, -3-

Detective Stair told her the tattoos belonged to the man she had identified in the photograph. Asked how she knew she was not mistaken, the victim replied: There are a few defining moments in your life. Some of them joyful . . . . This was a defining moment. With every bit of comprehension and power I had, I memorized who had hurt me because I knew this person had done it before. He came too prepared. And I knew this person would do it again. And I felt the one thing I could do is keep another person from being hurt, should I ever be given an opportunity to identify this person. The victim identified the defendant in court as the man who raped her. On cross-examination, the victim acknowledged that when her attacker initially appeared in her doorway all she saw was a shadow and then got an image of his hair and moustache when he ran toward her. The victim also acknowledged that her drawing of her attacker's left arm tattoo did not contain a peacock although the defendant's tattoo did. The victim explained, however, that "[she] was going for pattern." She admitted she did not recall the tattoo having color in it. She agreed that she did not note that the tattoo on her attacker's right wrist contained a skull and a dragon. On further cross-examination, the victim admitted that the five other men in the 2002 photographic lineup had different hair than the man she identified as her attacker. She said that they had "similarity either in cheekbone structure, the eyebrow structure, or general shape of the eyes." She acknowledged that one of the men in the photographs was heavier than the range she had given for weight and that one was an "older gentleman." On redirect examination, the victim stated that the drawings of her attacker's tattoos represented "[w]hat [she] could focus in on and see," not necessarily what he had. Lieutenant Warren Hamlin with the Knoxville Police Department testified that he was one of the officers who responded to the victim's 9-1-1 call around 5:00 a.m. on June 4, 2007. Lieutenant Hamlin said that while en route, they looked for anyone matching the description of "a white male, [wearing] blue jeans and a paisley shirt with tat[t]oos on his arms" but did not see anyone. Lieutenant Hamlin stated that when they arrived on the scene, the victim was very scared, frightened, and hesitant to let them inside. Lieutenant Hamlin recalled that once inside, they searched the house and obtained more information from the victim before she was transported to the hospital by ambulance. He remembered that Investigator Mike Hyde from the major crimes division and Specialist Art Bohanan from the crime lab responded to collect evidence. Lieutenant Hamlin noted that both men had since retired. Hamlin read Bohanan's forensic report, which the parties stipulated would have been Bohanan's testimony had he been present at trial. The report was as follows: This document is dated 4 June of 1997, to Investigator M. Hyde from P.S. 3 Arthur Bohanan regarding 1064 of [the victim]. -4-

Number 97018517. The first paragraph, called in from home at 05:20. Arrived on scene . . . at 06:05 meeting Sergeant Hamlin and Officer Rotmeyer at the scene. Victim had already gone to Fort Sanders Hospital. Made photos of the house, the bedroom, the bath area. Rough sketch made of the entire house. Point of entry was through unlocked front door. Collected clothing and bedding from the bed. A tube of Ruhl Gel was taken from the nightstand. Also a bottle of body lotion from the side rail of the bed. Both had been used on the victim, according to officers. Sergeant Hamlin said the victim stated the suspect had plastic bags over the hands. The front door, storm door, door frame to the bedroom and bath all fingerprinted. Finding only two useable latents. These from the inside of the storm door. Possibly made by responding officers. House secured by Officer Rotmeyer, who gave me the keys to take to the victim at Fort Sanders. Her car in the driveway had been entered from the front passenger's side. This is a red Volvo . . . . A print of the door, a small box, a McDonald's cup, eyeglasses, cards and items in the floorboard. Glove marks found. Phone was still in the glove box. Completed at the scene at 06:50. Went to hospital, received a rape kit from the box at 07:05. No presence of sperm [was] seen from examination. Talked briefly to victim and her parents. Gave her the keys. She was to come to CID with her mother. Left there at 07:15. 07:30, came back to CID. Conferred with Hyde. Composite sketch will be made before he took a statement. 07:40, the victim arrived with mother. Made composite sketch and she made sketches of the tat[t]oos on both arms of suspect. The top page two, and the case number 97018517. Printed both items from the scene, finding no latents. Officer Tammy Hamlin brought a small blue table lamp back from the scene that had been touched. No useable latents developed, but could see where it had been touched. A glove like print. The two latents from the front door were searched through AFIS twice, finding no match. 15:00 asked to compare known prints of Michael Lett to latents from door. No match. Items confiscated as evidence: all were on the bed or nightstand. One white bed cover, one blue electric blanket, one green blanket, one pair of shorts bottom white with flowers, matching top recovered in the bathroom. One pair of blue -5-

pants, one pillow cover, one blue/green checked dress, one tube of Ruhl Gel (insect bite), one bottle body lotion, one rape evidence kit from Fort Sanders Hospital. And [initialed] by Art Bohanan Lieutenant Hamlin testified that the two latent prints lifted from the victim's door were examined and were determined to belong to the victim. Lieutenant Hamlin stated that the police now knew the defendant lived approximately six-tenths of a mile from the victim's house at the time of the rape. On cross-examination, Lieutenant Hamlin acknowledged that whoever committed the crime could have gone in a number of directions after leaving the victim's house and that the only thing they knew was that the victim thought that the suspect left on foot. Barbara Morrison testified that in June 1997 she was working as a nurse in the emergency department at Fort Sanders Hospital, where she treated the victim after the rape. She said the hospital's standard procedure was to collect a rape kit when someone alleged to have been sexually assaulted. She testified that a completed rape kit is sealed, dated, and placed in a lockbox until the police pick it up. Upon seeing the victim in court, Morrison said that "[h]er face looks a little familiar." Detective Ed Stair testified that he had retired from police work but had been working with the Knoxville Police Department's cold case division in 2002 when he started reviewing the victim's rape case. Detective Stair recalled that after he developed the defendant as a suspect, he obtained a warrant to secure a blood sample from the defendant. Detective Stair said that he photographed the defendant's tattoos. Detective Stair stated that he witnessed blood being drawn from the defendant and hair samples collected from the defendant. Detective Stair said that he delivered the blood and hair samples to the Tennessee Bureau of Investigation (TBI) Crime Laboratory for genetic profiling. Detective Stair testified that he located the victim, who was living in Macon, Georgia, in July 2002, and asked her to come to the Knoxville Police Department to view a photographic lineup. Detective Stair said he obtained six driver's license photographs from the Tennessee Department of Safety, which he assembled for the victim's viewing. Detective Stair recalled that he assembled the photographs on a table in the police department, three on top and three on bottom, and had them arranged before the victim arrived. Detective Stair remembered that the victim picked out the defendant's photograph within a couple of seconds and that he had her write the date, time, and her initials on the back of that photograph. Detective Stair said that he had the victim look at photographs of the tattoos on the defendant's arms and that she identified "a couple of them being the ones that she had seen on [her attacker's] arms." On cross-examination, Detective Stair acknowledged that he did not have the victim view the photographs sequentially. Meelora Zerick, a safety examiner with the Tennessee Department of Safety, testified that she was a custodian of records and had access to driver's license applications. Zerick acknowledged that she was subpoenaed to produce records relating to the defendant from 1996 and 1997. Zerick

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stated that the defendant applied for and received an identification-only card on August 20, 1996. She noted that the defendant applied for and received a driver's license on August 26, 1997. David Burns, previously with the Knoxville Police Department's crime laboratory, testified that he transported evidence from the victim's 1997 rape case to the TBI laboratory for comparison with a suspect in November 2003 at the request of Detective Stair. Melanie Phillips testified that she worked as a forensic technician in the TBI's Knoxville office in November 2003. She recalled that she received evidence from David Burns, assigned it a laboratory number, and placed it in a secure vault. Phillips stated that due to staffing shortages in the Knoxville office, Steve Scott transferred the evidence to the Nashville office where it was assigned to Oakley McKinney, a forensic scientist, and Mike Turbeville, a serologist. Agent Oakley McKinney testified he worked at the TBI crime laboratory as a forensic scientist specializing in latent prints, and he was accepted as an expert in the field. Agent McKinney stated that he examined a piece of gray duct tape that had a "little bit of paper on the back" but that he did not find any latent prints on it. Agent Mike Turbeville, accepted by the trial court as an expert in DNA forensic science and serology, testified that in early 2004, he examined the victim's clothing, pillowcases, mattress cover, and blankets for the presence of semen, but none was detected. Agent Turbeville stated that he analyzed the vaginal swabs taken from the victim and that although he detected the presence of human semen on two of the three swab packs, he found no sperm. Agent Turbeville testified that he isolated DNA from the "non-sperm fraction" on the swabs and that he compared it to the victim's and defendant's genetic profiles. He explained that the DNA was a mixture of the victim's profile "for the most part" and a male minor contributor. He said that the defendant's profile was consistent with the sample at five out of thirteen loci and could not be excluded from the remaining eight loci. On cross-examination, Agent Turbeville testified that he created a report called an electropherogram, which is essentially a line with peaks where the peaks indicate major contributors to the DNA. He said that the more DNA present, the higher the peak will be at that location. Agent Turbeville explained that sometimes "stutter peaks," which are peaks on the chart that are not actually representative of DNA alleles, occur on the electropherogram. He noted that every person inherits one DNA allele from each parent at each locus. Agent Turbeville acknowledged that at one locus in particular, there was a possible stutter peak that would have been consistent with one of the defendant's alleles. However, he noted that he called that locus consistent with the defendant's DNA based, not on the presence of the stutter peak, but on a peak that was consistent with the defendant's other allele at that locus. Asked whether, at some of the other loci, certain stutter peaks could actually be alleles, Agent Turbeville said that it was "not impossible," but he did not think they were alleles because "when you've got a lot of DNA . . . and especially when you've got an individual [who is the] major contributor . . . very substantially, and a minor contributor, it's typical to see these peaks here, in the stutter position." -7-

Asked on further cross-examination why two peaks on the chart at another locus appeared small, Agent Turbeville explained that those peaks appeared small compared to some of the larger peaks but they were still above the requisite threshold. With regard to another locus, Agent Turbeville agreed that the software showed one peak that was not consistent with either the victim or the defendant, but he said he thought the peak was "inconclusive" because "the software did call it and it was in the stutter position." He noted that this particular peak was approximately fourteen percent of the height of the major peak and that TBI protocol was to call any peak that was twelve percent of the size of the major peak an allele, but he explained that they "can interpret this based on our experience . . . from looking at these profiles over the years." However, Agent Turbeville acknowledged that he included that particular peak on his chart of the alleles. On redirect examination, Agent Turbeville restated his opinion that the defendant could not be excluded as a contributor to the biological matter he tested. The defendant was convicted upon the foregoing evidence of two counts of aggravated rape. I. SUPPRESSION OF IDENTIFICATIONS Before trial, the defendant filed a motion to suppress the in-court and out-of-court identifications of him and his tattoos, arguing that the victim had limited opportunity to view her attacker during the incident and that the identification procedure was unduly suggestive which led to an unreliable identification. The trial court conducted a hearing on the matter on November 7, 2006. At the hearing, Ed Stair testified that he was a retired detective with the Knoxville Police Department. Detective Stair stated that in 2002 he investigated five unsolved 1997 rape cases. He said he discovered a DNA match to the defendant in two of the rape cases and, in response, obtained a blood sample from the defendant and took photographs of his arms. Detective Stair recalled that one victim

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