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State v. Peek5/3/2000
t witness, Agent Minor, testified that the vaginal swab from G.H.'s rape kit matched the DNA of the defendant with a probability of selecting an unrelated individual at random having a matching DNA profile being approximately one in 276 billion in the Caucasian population and one in 195 billion in the African-American population.
Timothy Daniel Knight testified that he was living with his grandmother in the house next door to the victim at the time of the attack. Knight testified further that in the early morning hours of July 30, 1996, he had gone to a gas station and bought beer. When he came out, he saw the defendant, a man whom he had met a couple of years before through mutual friends, standing in the parking lot of the gas station. The defendant asked Knight for a cigarette; Knight gave him the cigarette and then drove home.
Because his grandmother did not allow beer in her house, Knight sat in his car to drink and listen to the car radio. Knight testified he saw the defendant walking down the street and called him to come over and join him in the car for a beer. The time was approximately 2:00 a.m.
The defendant joined Knight in the car. They talked, listened to music, and drank beer for about forty-five minutes. Finally, Knight told the defendant that it was getting late and he had to get up and go to work soon, so Knight went inside his grandmother's house. At that point, it was about 3:15 a.m. Knight did not see where the defendant went.
Based on these facts, the defendant was convicted of aggravated rape for the vaginal penetration of the victim while leading the victim to reasonably believe he had a weapon and aggravated burglary for entering a habitation and committing a felony. The sentences, both to be served concurrently, were twenty-five years and six years, respectively. The twenty-five year sentence was ordered to be served consecutively to the rape sentence for victim four in No. 213117.
ANALYSIS
I. SEVERANCE OF THE OFFENSES
The defendant first argues that his convictions should be set aside and separate trials ordered because the trial court erred in denying his motion to sever the offenses involving the five victims.
In these matters, the Hamilton County Grand Jury returned fourteen indictments, encompassing all crimes alleged to have been committed by the defendant against the five victims. For instance, as to the first victim, the defendant was charged with aggravated rape, aggravated robbery, and aggravated burglary, as set out in three separate indictments. The complaints of the other four victims were charged in a similar fashion. The record does not reflect that there had been a consolidation of any of the indictments, either to consolidate all of the indictments or to consolidate the indictments by victim. Defense counsel did, however, file a motion for severance of the offenses, asking that the defendant have a separate trial as to each victim.
A hearing was held in this matter on March 13, 1997, on the defendant's written motion to sever, which had been filed on February 27, 1997. The parties and the trial court proceeded in the hearing apparently upon the assumption that the fourteen indictments had been consolidated. However, the record does not reflect that this was the case. Thus, it appears that even though a hearing was held as to whether the cases should be severed, they had never been consolidated in the first place.
Our supreme court has recently considered various aspects of consolidation of offenses in Spicer v. State, 12 S.W.3d 438 (Tenn. 2000); State v. Moore, 6 S.W.3d 235 (Tenn. 1999); and State v. Shirley, 6 S.W.3d 243 (Tenn. 1999). Moore
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