State of Tennessee v. Terry Allen Dominy

The dispositive issues in this appeal are as follows: (1) whether the indictment in this case charging the defendant with aggravated rape is sufficient to support a conviction for spousal rape, a “lesser grade” offense under this Court’s 1The defendant rais ed tw o oth er iss ues in this a ppeal: (1) whe ther th e trial c ourt e rred in refus ing to gran t the d efendant’s mo tion fo r recusal; and (2) w heth er the trial co urt er red in admitting into evidence a tape-recorded interview between the victim and the field supervisor of the Department of Human Services. Because we have reversed and remanded on other grounds, we need not address these issues in detail. However, we note that the proof in this record indicates that the trial judge was residing in a home owned by the assistant district attorney who prosecuted this case and was paying only the utilities and cable bills and not monthly rental. Under such circum stance s, recus al is appro priate. See Sup. C t. R. 10, Code of Judicial Conduct, Canons 2(A) 4(D)(5 ), and 3(E ). We also agree w ith the defen dant that th e trial court er red in allow ing the Sta te to offer into evidence the entire tape-recorded interview of the victim by the Department of Human Services field supervisor. While the State has the right to “convey the true picture of the prior statement alleged to be inconsistent,” State v. Boyd, 797 S.W .2d 5 89, 5 93-9 4 (Te nn. 1990), this rule does not form a basis for reference to portions of the statement which were not made an issue on cross-exam ination and which are not necessa ry to convey an acc urate picture of the matters discussed on cross-examination. The trial judge could have either allowed the State to question the witness concerning her prior statement to place her testimony on cross examination into context or permitted the State to use the transcript of the DHS tape to refresh the victim’s recollection. Neither the tape nor the transcript, how ever, should have been introduced as substantive evidence in this case. decision in State v. Trusty, 919 S.W.2d 305 (Tenn. 1996); and (2) if so, should this Court reconsider it decision in Trusty. We agree with the Court of Criminal Appeals that, under Trusty, the indictment in this case would be sufficient to support a conviction for the “lesser grade” offense of spousal rape. However, upon careful reconsideration, we overrule Trusty to the extent that it recognizes “lesser grade” offenses as distinct from lesser-included offenses and permits convictions of “lesser grade” offenses that are not lesser-included offenses embraced by the indictment. In light of our overruling of Trusty, the indictment in this case is not sufficient to support a conviction for spousal rape. Therefore, we vacate the defendant’s convictions, dismiss the indictments, and remand this case to the trial court for further proceedings consistent with this decision.