State of Tennessee v. William A. Osborne ( 2012 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
November 9, 2011 Session
STATE OF TENNESSEE v. WILLIAM A. OSBORNE
Direct Appeal from the Criminal Court for Sumner County
No. 73-2010 Dee David Gay, Judge
No. M2010-02412-CCA-R3-CD - Filed April 5, 2012
A Sumner County jury convicted the Defendant, William A. Osborne, of three counts of
facilitation of aggravated burglary, one count of facilitation of theft of property between $500
and $1000, one count of theft of property between $500 and $1000, and one count of theft
of property between $1000 and $10,000. The trial court sentenced him as a career offender
to an effective sentence of thirty-six years, to be served at 60%. On appeal, the Defendant
contends that: (1) the trial court erred when it denied the Defendant’s motion to suppress; (2)
the trial court erred when it allowed the jury to find the Defendant guilty on Count 1 after the
jury had previously announced it could not unanimously agree as to Count 1; (3) the trial
court erred when it failed to declare a mistrial following prejudicial statements made by the
State’s witnesses; (4) the evidence at trial was insufficient to sustain his convictions; and (5)
the trial court erred in sentencing the Defendant. After a thorough review of the record and
applicable law, we conclude that there exists no error in the judgments of the trial court, and
we affirm those judgments.
Tenn. R. App. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and J OHN E VERETT W ILLIAMS, JJ., joined.
Russell E. Edwards, Hendersonville, Tennessee, for the appellant, William A. Osborne.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant
Attorney General; L. Ray Whitley, District Attorney General; Lytle Anthony James, Assistant
District Attorney General for the appellee, State of Tennessee.
OPINION
I. Facts
This case arises from the Defendant’s involvement in three home burglaries, which
occurred in early March 2009. For these events, a Sumner County Grand Jury indicted the
Defendant for three counts of aggravated burglary, two counts of theft of property more than
$1000, one count of theft of property more than $500, and one count of vandalism less than
$500.
A. Suppression Hearing
The Defendant filed a motion to suppress evidence police found as a result of
searching for a blue Honda that police observed the Defendant exiting. The trial court held
a hearing, and the following evidence was presented at the suppression hearing: Ben Brown,
an officer with the Franklin City Police Department in Franklin, Kentucky, testified that on
March 5, 2009, he was patrolling a “high-crime area” in Franklin. At approximately 8:30
p.m., Sergeant Brown observed a blue Honda back into a driveway between two residences
on Jackson Street and the Defendant exit the vehicle. As he turned onto the street leading
toward the driveway, he saw the Defendant standing next to the vehicle. When the
Defendant saw the marked police cruiser, he “froze, turned and quickly walked back between
the residences, . . . away from the area and walked back in the shadows.”
Sergeant Brown testified that he found the Defendant’s response to seeing the police
car “suspicious” and that, based upon his experience, it appeared that the Defendant was
going to “attempt to flee the area.” Sergeant Brown drove around the block hoping to find
the Defendant, but, when he did not, he returned to the location of the blue Honda. Sergeant
Brown approached the blue Honda and smelled a strong odor of marijuana coming from the
partially open windows of the vehicle. After canvassing the immediate area, without finding
the Defendant, Sergeant Brown checked the vehicle tag, which had expired in 2000.
Sergeant Brown also learned that the vehicle tag did not match the vehicle. Based upon the
Defendant’s behavior, the expired registration, and the vehicle tag which did not match the
vehicle, Sergeant Brown suspected it was a stolen vehicle.
Sergeant Brown observed the VIN (“Vehicle Identification Number”) through the
windshield but could not see the entire number because trash obstructed his view. The
vehicle was unlocked, so Sergeant Brown entered the vehicle and cleared the trash so he
could see the entire VIN. Sergeant Brown also looked in the vehicle’s glove compartment
for registration papers. He did not find any registration papers, but he did find a rental
agreement for the property located next to the parked vehicle and a gas bill that both bore the
name “Brandy Biggs.” While looking in the glove compartment, Sergeant Brown observed
marijuana seeds and marijuana residue.
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Sergeant Brown testified that, after finding the marijuana, he believed he had
uncovered a crime involving illegal narcotics, so he searched the vehicle. He explained he
did not seek a search warrant because he would have had to leave the car unattended while
filing the necessary paperwork. During the sergeant’s search of the vehicle, he found, in
addition to the marijuana seeds and residue, a large knife and a box of ammunition for a .380
caliber handgun in the interior of the vehicle. In the trunk of the vehicle, Sergeant Brown
found six shotguns and rifles. Sergeant Brown located the serial numbers on the guns and
confirmed that at least two of the guns were reported stolen. At a later time, three more of
the guns were confirmed stolen.
Sergeant Brown testified that he later executed a search warrant for the residence
located next to the parked vehicle, which was the subject of the rental agreement he found
in the glove box of the vehicle. Police found electronic equipment, stereos, power tools, a
cross bow, and “various odds and ends that were stacked up in the residence.” Later, police
confirmed that some of the property had been reported stolen. Sergeant Brown also found
a picture of the Defendant and a woman he identified as “Brandy Biggs” in the residence.
Based upon this evidence, the trial court denied the Defendant’s motion to suppress,
finding that the Defendant had no standing to challenge the search of the vehicle and that
Sergeant Brown had probable cause to search the vehicle.
B. Trial
At the Defendant’s trial on the charges, the parties presented the following evidence:
Lauren Stewart testified that her home was burglarized on March 4, 2009. Ms. Stewart
recalled that, on this day, she went to work in downtown Nashville, and, at about 10:00 a.m.,
she received a phone call from her uncle, Dewayne Sircy, who lived approximately a half a
mile behind her house. Ms. Stewart’s uncle notified her that her home had been burglarized.
Ms. Stewart left work and drove home where police officers were already investigating the
burglary. The front door of the house was “busted open,” and the entire living room was in
disarray. Ms. Stewart described her living room as “shocking,” saying, “It looked like
something out of a movie, like when you see someone’s house ransacked in a movie.” In Ms.
Stewart’s bedroom, the bed mattress was flipped over and the contents of her dresser drawers
were dumped on the floor.
Ms. Stewart testified that her DVD collection, CDs, DVD player, two laptop
computers, her digital camera, and jewelry were stolen. She estimated that eighty DVDs
were stolen for which she paid an average of $10 each. She testified that her Apple laptop
computer was worth $1900, and she had purchased about $1000 worth of graphic design
software programs for school that were downloaded onto the computer. Ms. Stewart testified
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that her other laptop computer was “older” and purchased for “around [$]2000,” but she
estimated the worth of an equivalent laptop now at $850 to $1000. Ms. Stewart valued the
digital camera at $300 and the total value of the jewelry stolen at $2000. In addition, Ms.
Stewart said that a bottle of washing detergent, Clorox, and two cases of Coke were stolen
from her home that day.
Ms. Stewart testified that, several days later, she received a phone call regarding her
missing items. She drove to Franklin, Kentucky, and was able to identify some of the items
stolen from her home. Ms. Stewart testified that the aggregate value of the property stolen
was over $500.
Dewayne Sircy, Lauren Stewart’s uncle, testified that he lived about 1400 feet directly
behind Ms. Stewart’s home. On March 4, 2009, he was upstairs in his home when he heard
his dog barking. He looked out the window and saw a car parked in Stewart’s driveway. He
continued to watch as three individuals got out of the car and walked to the back of Stewart’s
house. One of the individuals went to the door while the other two went to windows. Sircy
thought this was odd, so he decided to go to Stewart’s to see if she was having work done
to her house. It was early in the morning, so Sircy dressed, went outside, and got in his car.
As he started down the driveway, he saw the car leaving Stewart’s house.
Mitchell Curry testified that his home had been burglarized on March 2, 2009. He
recalled that, on that day, he had returned home from work when he noticed the front door
was open. He assumed his roommate had left the door ajar, so Curry went inside. Once
inside, he saw that his computer was missing, so he began going from room to room in the
trailer. He described the rooms as “ransacked, drawers thrown everywhere, cabinets ripped
out, clothes, bed sheets ripped off the beds, beds tossed in the floor.” Curry said that he
owned three guns that he kept in a locked gun cabinet in his bedroom closet. He found the
gun cabinet lying on his bed, pried open, with the three guns missing. The replacement cost
of the gun cabinet was $150, and he estimated a $900 total value for the three stolen guns:
a Remington 870 shotgun, a Marlin 336 rifle, and a Glock 22 pistol. Ammunition and a gun
cleaning kit, worth $60 in total, were also taken during the burglary. Curry estimated the
value of his laptop computer at $800. Curry agreed that the aggregate value of the property
stolen was “easily over $1000.” Curry denied giving anyone permission to enter his house
or take any of the missing items.
James Jones, Matthew Curry’s roommate, testified that he owned a .22 rifle, a 16-
gauge shotgun, a knife case with multiple knives, a circular saw, and a class ring, all of
which were stolen during the burglary. He estimated that the guns were worth $150 each,
the class ring between $250 and $300, and the circular saw about $60. He could not place
a value on the knives because he had been collecting them for “several years.” Jones said
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that he recovered some of the items from the Franklin Police Department. Jones testified that
he did not give anyone permission to enter the trailer or take any of the missing items.
Josephine Shuler testified that, when she and her husband entered their home after
returning from lunch with their son, she noticed a drawer from a washstand that sits near the
back door was set on the floor. When her husband denied any knowledge of moving the
drawer, Ms. Shuler called the police, believing they had “been robbed.” She followed her
husband upstairs to the bedrooms and found two of the bedrooms in complete disarray. She
recalled that the rooms “looked like a hurricane had hit [them].” Drawers were pulled out
of the dressers and dumped on the floor, mattresses thrown off the beds, and houseplants
dumped on the floor. The master bedroom appeared undisturbed except for the dresser
drawers which were opened. Ms. Shuler testified that approximately $3500 worth of her
jewelry and some pistol and shotgun shells were missing. She identified and recovered some
of the items from the Franklin Police Department. Ms. Shuler denied giving anyone
permission to enter her home or take her jewelry and the gun ammunition.
Ivan Pyne, an Academy Sports store manager, testified that he provided police with
video surveillance footage that depicted the Defendant, on March 3, 2009, purchasing a box
of 40 Smith & Wesson 180-grade ammunition from the gun counter at the Rivergate
Academy Sports store.
Nathan Oakes, an associate at Berry’s Jewelry & Loan in Madison, Tennessee,
provided transaction documents for March 4 and 5, 2009. The documents showed that
Timothy Peden, a co-defendant in this case, pawned four jewelry items and eighty-three
DVD movies. Oakes explained that, subsequently, these items were placed on hold and
confiscated by the police.
Timothy Peden testified that he was prepared to participate in the trial as a co-
defendant, but he had changed his mind and entered into an agreement with the State as to
the disposition of the charges against him. The agreement required that Peden “tell the truth”
in exchange for a fifteen-year sentence to be served at 60%. Peden admitted that he lied to
police during previous interviews. Peden agreed that he had a “very long” criminal history
including numerous aggravated burglaries and theft convictions. Peden agreed that he had
additional outstanding warrants for burglaries in other counties.
As to the general approach taken to the burglaries, Peden explained that he, the
Defendant, and Biggs would find a “suitable home” where there were no cars in the
driveway. Someone would knock on the door and if no one answered, they would “bang”
on the back door and windows. If still no one answered, the group would “kick in” or pry
open the door. Once inside, they would move quickly, ransacking the house to find valuable
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items, put those items in a bag, and leave. After burglarizing the home, Peden said that they
would split up the stolen items. At the time of these burglaries, Peden was actively using
cocaine, and he would sell his items to drug dealers in exchange for cocaine.
Peden testified that the three homes burglarized were all located in Sumner county.
After burglarizing a home, they took the stolen items to Franklin, Kentucky, where the
Defendant and Biggs lived. Peden said that he went to the Kentucky house on two occasions.
While there, he said they would drink beer, he would smoke crack cocaine, and the group
would sift through the stolen items to determine what was of value.
Peden testified that on March 2, 2009, he, the Defendant, and Biggs burglarized a
trailer in Sumner County. Peden recalled that they found a gunsafe in one of the bedrooms.
He said that they laid the gunsafe on the bed and broke it open to reveal a .40 caliber gun,
rifles, and a gold class ring. While opening the safe, a shelf fell and hit Peden in the face
leaving a cut. Peden said that he put a T-shirt on the wound to keep any blood, which might
be traceable, from falling onto the floor. Peden said that he did not wear gloves during that
burglary but that the Defendant and Biggs wore gloves.
Peden testified that on March 3, 2009, he, the Defendant, and Biggs went to an
Academy Sports store. The State played surveillance video footage from the store, and
Peden identified Biggs, the Defendant, and himself. Peden also identified the Defendant as
the person buying ammunition for the .40 caliber gun stolen from the trailer at the checkout
counter of the store.
Peden testified that on March 4, 2009, he, the Defendant and Biggs burglarized two
more homes. He could not recall in which order they burglarized the homes but described
finding a home with no car in front. He said they ran around the back, knocked on the door,
and, when no one answered, they entered the unlocked back door. Peden said that they found
what they assumed to be gold jewelry in a black case, but later learned that it was “fake.”
After learning the jewelry was not real, they threw it away because it was worthless.
The other burglary was of Stewart’s home. Peden recalled that he “stole a bunch of gold and
went and pawned” it that same day. Peden said that they also stole laptop computers,
jewelry, and numerous DVDs. On the following day, he took the stolen DVDs to the same
pawn shop where he had taken the jewelry. Peden identified his signature on the bottom of
a pawn ticket.
Brandy Biggs, a co-defendant in this case, testified that she lived in Nashville. At the
time of the Defendant’s trial, Biggs had already pled guilty for her role in these crimes and
received an eight-year sentence to be served on community corrections. As a condition of
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her plea agreement with the State, Biggs agreed to testify truthfully against her co-
defendants. Biggs agreed that her criminal record consisted of shoplifting, assault, and
simple possession misdemeanor convictions.
Biggs identified the Defendant in the courtroom and testified that she and the
Defendant were involved in a romantic relationship for “about five years.” Biggs said that,
in March 2009, she, the Defendant, and Peden burglarized three homes in Sumner County.
On March 2, they burglarized a trailer where they found a gun safe. Biggs said that the
Defendant and Peden forced open the gunsafe and found shotguns and pistols, which they
took from the trailer. Biggs recalled that while attempting to open the gunsafe, Peden cut his
eye. Biggs said they took items from the trailer, including the guns, and went to her home
and then to Nashville to try to sell the stolen items.
Biggs testified that, on the following day, she, the Defendant, and Biggs went to an
Academy Sports store where the Defendant bought ammunition for one of the stolen guns.
The State played the surveillance video footage for March 2, 2009, and Biggs identified
herself, the Defendant, and Peden at the Academy Sports store in the footage.
Biggs testified that on March 4, 2009, she, the Defendant, and Biggs went to a brick
house where they stole an Apple computer, a laptop computer, DVDs, and jewelry. Biggs
could not recall if they stole laundry detergent from this particular home but testified that
they did steal laundry detergent from one of the homes they burglarized. After leaving this
house, they went to “the house in Kentucky, like what we did always,” sorted through the
stolen items, and then drove to a pawn shop in Nashville. The Apple laptop was sold but
Biggs was uncertain to whom. She explained that the Defendant “was the one doing the
dealings on the computer.” Biggs recalled that they stole jewelry at the other home they
burglarized that day and later pawned it.
Biggs testified that she leased the house in Kentucky, where she and the Defendant
lived. Biggs said that she had a job with a temp service, but, after being fired, she worked
at a Shoney’s restaurant in Bowling Green, Kentucky. The Defendant would drive the victim
to and from her work. Biggs said that she bought the Honda, which the police had
subsequently searched, from one of the Defendant’s acquaintances for $1000. Biggs gave
the Defendant the money, and the Defendant purchased the car for her. She was unable to
put her name on the title of the car because the Defendant kept the title with him. Biggs said
that she drove the car “randomly,” “maybe once or twice” to work.
Ben Brown, a Franklin City Police Department officer, testified that, on March 7,
2009, he was patrolling the area of Harristown, a high crime area, with a trainee. While on
patrol, he observed a vehicle backing into a driveway with the headlights on. The police
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officers believed the residence next door to that driveway was vacant. Officer Brown said
that in this particular location there was a row of three houses that were “frequently vacant.”
After the vehicle pulled into the driveway, the driver turned the headlights off and stepped
out of the vehicle. Officer Brown said that they were driving down the street toward the
Defendant, and, when he turned and looked at the police car, the Defendant was “visibly
startled.” The Defendant then immediately turned around and walked quickly into the
shadows and out of sight, behind the blue Honda and the row of houses.
Officer Brown testified that they drove around the block trying to locate the
Defendant. Unable to find him, they returned to the location of the blue Honda. Officer
Brown said that when he approached the driver side, where he initially saw the Defendant,
he smelled the strong odor of marijuana. He noted that the windows of the car were
“cracked” open. Officer Brown said they searched the area looking for the Defendant but
again were unable to find him. They returned to the vehicle and checked the vehicle
registration. The license tag on the vehicle, 705 TMB, returned as a 1994 blue Buick
registered to the Defendant. Based upon this information, the officers began investigating
the potential of a stolen vehicle. The officers located the VIN for the car which indicated the
car was a 1994 red Honda registered under the name of Sean E. Bass.
On cross-examination, Officer Brown clarified that the VIN on the car had expired 1
and not the registration for the license plate as he had testified at the suppression hearing.
Carolyn Templeton, Chief Deputy for the Sumner County Clerk’s office, identified
an application for title submitted by William Osborne in September 2008. The license plate
number was 705 TMB and the vehicle was a 1994 Buick. The expiration date for the vehicle
tag was September 30, 2009.
Chris Tarlecky, a Sumner County Sheriff’s office detective, testified that he located
an Academy Sports store receipt inside the blue Honda. Detective Tarlecky also assisted in
the execution of the search warrant for Biggs’ residence in Kentucky. After Franklin police
cleared the house for safety, Detective Tarlecky found four or five trash bags on the kitchen
floor. Inside he found ammunition, jewelry, jewelry boxes, coins, and “regular household
trash.” At the Franklin Police Department, Detective Tarlecky matched several items to
makes and models of items reported stolen in Sumner County. In total, Detective Tarlecky
recovered four or five guns from Franklin, Kentucky, that were reported stolen in Sumner
County.
1
We find the testimony regarding an expired VIN puzzling, but ,as it is not determinative
of the outcome of this case, we include it in order to be consistent with the record.
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On cross-examination, Detective Tarlecky testified that he was present during the
police interview of Biggs. He said that, initially, Biggs was not forthcoming and denied
knowledge of the burglaries. After about fifteen or twenty minutes, Biggs began providing
information about the burglaries.
Kevin Williams testified that at the time of these events he worked for the Portland
Police Department. Officer Williams said that he and Biggs drove to the Shuler residence,
and Biggs described the events of the burglary to him. Later, Officer Williams recovered
some of the Shulers’ property at the police department in Franklin, Kentucky.
Tim Bailey, a Sumner County police detective, testified that he investigated the
burglary of Ms. Stewart’s home. Upon arriving at Ms. Stewart’s home he observed that the
front door had been forced open. Police officers processed the scene and obtained
fingerprints, which were sent for analysis. The fingerprints returned as matching Ms.
Stewart’s fingerprints.
In the course of his investigation, Detective Bailey met and spoke with Biggs. The
interview began with Biggs minimizing her knowledge or role in the burglaries, but Biggs
eventually told Detective Bailey about her involvement in the burglaries. After the interview,
Biggs agreed to show police officers the houses she, the Defendant, and Peden burglarized.
Detective Bailey also spoke with Peden. Peden also minimized his knowledge and role in
the burglaries but ultimately confessed to the burglary of Ms. Stewart’s home. Detective
Bailey met with the Defendant, but the Defendant refused to give any statement to police
about the burglaries.
Based upon this evidence, the jury convicted the Defendant of three counts of
facilitation of aggravated burglary, one count of facilitation of theft of property between $500
and $1000, one count of theft of property between $500 and $1000, and one count of theft
of property between $1000 and $10,000.
C. Sentencing Hearing
At the sentencing hearing, Carolyn Megar testified that she prepared the Defendant’s
presentence report. In doing so, she met with the Defendant one time for approximately an
hour and a half. The Defendant reported that, while in school, he was in special education
because he did not read well and could not spell. He said that he suffered “extreme
depression” and showed Megar scars where he had cut himself. The Defendant reported that
he was raised by his grandmother after his mother abandoned him. The Defendant began
working toward attaining his GED and enrolled in life management classes in the Kentucky
prison.
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Jeannie Richardson, the Defendant’s aunt, testified that her sister had the Defendant
when she was very young, so their mother raised the Defendant along with nine of her own
children. Because the Defendant was only four years younger than Richardson, the two were
very close growing up together. Richardson testified that, from “a young age,” the Defendant
suffered from depression and would hit his head or cut himself. She said the Defendant
received some treatment for his mental illness but that he never received continuous
treatment. Richardson recalled that, after the Defendant’s release from prison in 2000, he
had a construction job, “his own place,” and two vehicles. After learning that his four-year
old daughter was fathered by another man and losing his son at birth in 2008, the Defendant
began drinking heavily.
Shaun Bass, a State of Tennessee facility supervisor, testified that he had known the
Defendant five or six years. He hired the Defendant to do some work around his house.
Bass said that the Defendant could do framing, drywall, finishing, and painting. He
described the Defendant’s workmanship as “superb” and “outstanding” and said the
Defendant had a good work ethic. Bass recalled that, around the time that the Defendant lost
his son, he noted a change in the Defendant. The Defendant would go to the baby’s grave
site almost every night and was “very depressed.” The Defendant lived with Bass for a
period of time and had access to Bass’s personal things but never took anything. Bass said
he found it “hard to believe” that the Defendant had committed these crimes and suggested
that maybe the Defendant “got [ ] around the wrong group of people.”
After the parties presented their proof as to sentencing, the trial court sentenced the
Defendant as a career offender to an effective sentence of thirty-six years to be served at
60%. It is from these judgments that the Defendant now appeals.
II. Analysis
The Defendant argues on appeal that: (1) the trial court erred when it denied the
Defendant’s motion to suppress; (2) the trial court erred when it allowed the jury to find the
Defendant guilty on Count 1 after previously announcing the jury could not unanimously
agree as to Count 1; (3) the trial court erred when it failed to declare a mistrial following
prejudicial statements made by the State’s witnesses; (4) the evidence at trial was insufficient
to sustain his convictions; and (5) the trial court incorrectly imposed consecutive sentences.
A. Motion to Suppress
The Defendant argues that the trial court erroneously denied his motion to suppress
the evidence obtained as a result of the search of Biggs’s car and residence. He asserts that
police did not have the requisite probable cause to search Biggs’s car. The Defendant further
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argues that the items seized in the home should have been suppressed under the “fruit of the
poisonous tree” doctrine. The State responds that the trial court properly denied the
Defendant’s motion because the Defendant failed to prove that he had standing to challenge
the search of Biggs’s car or home.
At the end of the suppression hearing, the trial court, in denying the Defendant’s
motion to suppress, made the following findings:
I see no standing as to [the Defendant]. . . . The only testimony that we
have showing that [the Defendant] - - the only mention was a picture that was
found, a photograph of the defendant and Ms. Biggs in the house. There is
absolutely nothing in this record to give standing to [the Defendant].
I hold that [the Defendant] . . . [has] no standing in this case because
[he has] not shown me any expectation of [privacy] in either the vehicle or the
house searched.
The trial court then went on to find that police patrolling in a high-crime area after dark, the
Defendant’s response upon seeing the marked police car, the smell of marijuana emanating
from the partially opened car window, and vehicle tags that did not match the vehicle were
specific and articulable facts that provided probable cause and exigent circumstances for the
search in this case.
Our standard of review for a trial court’s findings of fact and conclusions of law on
a motion to suppress evidence is set forth in State v. Odom, 928 S.W.2d 18 (Tenn. 1996).
Under this standard, “a trial court’s findings of fact in a suppression hearing will be upheld
unless the evidence preponderates otherwise.” Id. at 23. As is customary, “the prevailing
party in the trial court is afforded the ‘strongest legitimate view of the evidence and all
reasonable and legitimate inferences that may be drawn from that evidence.’” State v.
Carter, 16 S.W.3d 762, 765 (Tenn. 2000) (quoting State v. Keith, 978 S.W.2d 861, 864
(Tenn. 1998)). Nevertheless, this Court reviews de novo the trial court’s application of the
law to the facts, without according any presumption of correctness to those conclusions. See
State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); State v. Crutcher, 989 S.W.2d 295, 299
(Tenn. 1999). The trial court, as the trier of fact, is able to assess the credibility of the
witnesses, determine the weight and value to be afforded the evidence, and resolve any
conflicts in the evidence. Odom, 928 S.W.2d at 23.
In order to object to the admission of illegally seized evidence, the defendant must
establish a legitimate expectation of privacy in the place searched. Rawlings v. Kentucky,
448 U.S. 98 (1980); State v. Harmon, 775 S.W.2d 583 (Tenn. 1989); State v. Roberge, 642
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S.W.2d 716 (Tenn. 1982); State v. Crawford, 783 S.W.2d 573 (Tenn. Crim. App. 1989);
State v. Burton, 751 S.W.2d 440 (Tenn. Crim. App. 1988). The defendant bears the initial
burden of proving by a preponderance of the evidence that the defendant has a legitimate
expectation of privacy in the place or property from which the items sought to be suppressed
were seized and the identity of the items to suppress. State v. Bell, 832 S.W.2d 583, 589
(Tenn. Crim. App. 1991). Once these prerequisites have been established, the burden of
proof shifts to the prosecution to establish by a preponderance of the evidence that the search
and seizures were justified pursuant to one of the recognized exceptions to the warrant
requirement. State v. Burton, 751 S.W.2d 440, 445-46 (Tenn. Crim. App. 1988).
On appeal, this Court considers the following factors when making a “legitimate
expectation of privacy” inquiry:
(1) property ownership;
(2) whether the defendant has a possessory interest in the thing seized;
(3) whether the defendant has a possessory interest in the place searched;
(4) whether he has the right to exclude others from that place;
(5) whether he has exhibited a subjective expectation that the place would
remain free from governmental invasion;
(6) whether he took normal precautions to maintain his privacy; and
(7) whether he was legitimately on the premises.
State v. Turnbill, 640 S.W.2d 40, 46 (Tenn. Crim. App. 1982).
In this case, the Defendant presented no evidence whatsoever as to his “standing” to
contest the search and seizure of the car. The Defendant made a tactical decision not to
present any information which would exhibit his association with Biggs. We do not question
his tactical decision. We hold, however, that the trial court did not err in denying the
Defendant’s motion to suppress. The Defendant had no ownership interest in Biggs’ car and,
hence, no right to exclude others from the car. The Defendant did not exhibit normal
precautions to maintain privacy in the vehicle by locking the car door. The Defendant is not
entitled to relief on this issue.
B. Hung Jury
The Defendant argues that the trial court did not “strictly comply” with Rule 31 (d)(2)
of the Tennessee Rules of Criminal Procedure when the jury notified the trial court that it
could not unanimously agree as to Count 1. Instead, the trial court instructed the jury to
continue deliberations as to the remaining counts. Thereafter, the jury returned with its
verdict, which included a guilty conviction for Count 1. The Defendant asserts that, as a
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result, he should not have been found guilty on Count 1. The State responds that because the
Defendant failed to raise a contemporaneous objection, he has waived this issue.
The record reveals that the jury was unclear as to the process to follow if they could
not agree as to Count 1 in this case. The trial court addressed the jury, consistent with
Tennessee Jury Pattern Instruction 41.08, directing the jury to continue considering the
remainder of the charges against the Defendant. Neither the State nor the Defendant voiced
any objection to this instruction, and the jury returned to its deliberation as to the remaining
counts. Thereafter, the jury notified the trial court that it had reached verdicts and returned
guilty verdicts as to Counts 1, 2, 4,5, 6, and 7.
The Defendant lodged no objection at the time of the trial court’s instruction or in his
motion for new trial. This marks his first objection to the jury’s need for clarification as to
the deliberation process and the trial court’s response. Appellate relief is generally not
available when a party is “responsible for an error” or has “failed to take whatever action was
reasonably available to prevent or nullify the harmful effect of any error.” Tenn. R. App. P.
36(a); see State v. Killebrew, 760 S.W.2d 228, 235 (Tenn. Crim. App. 1988) (waiver applies
when the defendant fails to make a contemporaneous objection); see also State v. Jenkins,
733 S.W.2d 528, 532 (Tenn. Crim. App. 1987); State v. Rhoden, 739 S.W.2d 6, 11-12, 18
(Tenn. Crim. App. 1987). Accordingly, we conclude the Defendant waived our review of
this issue, and he is not entitled to relief.
C. Prejudicial Statements made by the State’s Witnesses
The Defendant asserts that the trial court erred when it failed to grant a mistrial after
the State’s witness, Biggs, testified twice as to the Defendant’s criminal charges in other
jurisdictions. The Defendant acknowledges that the trial court instructed the jury to disregard
Biggs’ testimony, however, he maintains that this instruction “did not and could not” cure
Biggs’ prejudicial statements. The State responds that the trial court did not abuse its
discretion by declining to sua sponte declare a mistrial in this case based upon two remarks
made by Biggs.
During defense counsel’s cross-examination of Biggs, the following exchange
occurred:
Defense Counsel: Did you catch any burglary charges in Kentucky?
Biggs: Well, of course, with [the Defendant], but not before - I
mean -
Defense Counsel: I’m going to object to that.
Trial Court: Okay. Well, I’m going to sustain the objection. You will
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disregard any testimony that you heard.
Later, during the same cross-examination, defense counsel asked the following:
Defense Counsel: In fact, you wanted this house to be solely in your name
so you didn’t have to depend on no man, right?
Biggs: Well, that is correct, but the other reason why didn’t
nothing go in [the Defendant’s] name is because he had
warrants on him in Davidson County.
Defense Counsel: Your Honor –
Trial Court: Ladies and gentleman, disregard that answer. You’re to
strike it from your memory, and would you please step
out of the courtroom and let me take up some things
outside your presence.
The jury left the courtroom and the trial court explained to Biggs the limitations on her
testimony. When the jury returned, the trial court gave the following instruction:
Okay. Ladies and gentleman, we’re back in court and back in session. I want
to say two things to you. Number one, I have stricken that answer from the
record and I have ordered you to disregard that testimony. Secondly, at times
during the trial I have asked questions or I’ve kind of jumped in asking
questions, as a referee, about the evidence, and I want you to understand by
doing that I take no position on the facts in this case. I am performing my role
as the trial judge, but I take no opinion as to the facts in this case when I take
over or when I ask questions, and I want you to understand that.
The decision of whether to grant a mistrial is within the sound discretion of the trial
court. State v. McKinney, 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996). Normally, a
mistrial should be declared only if there is a manifest necessity for such action. Arnold v.
State, 563 S.W.2d 792, 794 (Tenn. Crim . App. 1977). One description of manifest necessity
is that, “[i]f it appears that some matter has occurred which would prevent an impartial
verdict from being reached,” a mistrial must be declared. Id. Additionally, a manifest
necessity exists when “no feasible alternative to halting the proceedings” exists. State v.
Knight, 616 S.W.2d 593, 596 (Tenn. 1981). The defendant bears the burden of establishing
a manifest necessity. State v. Seay, 945 S.W.2d 755, 764 (Tenn. Crim. App. 1996). This
Court will not disturb that decision unless there is an abuse of discretion. State v. Adkins,
786 S.W.2d 642, 644 (Tenn. 1990); State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim.
App. 1996).
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In determining whether a mistrial is warranted because of inappropriate testimony of
a witness, our Supreme Court has used the following three nonexclusive factors: “(1) whether
the State elicited the testimony, or whether it was unsolicited and unresponsive; (2) whether
the trial court offered and gave a curative jury instruction; and (3) the relative strength or
weakness of the State’s proof.” State v. Nash, 294 S.W.3d 541, 547 (Tenn. 2009) (citing
State v. Smith, 893 S.W.2d 908, 923 (Tenn. 1994)).
We conclude the Defendant has not shown a clear abuse of discretion on the part of
the trial court. Both of Biggs’ comments were made in response to defense counsel’s
questions on cross-examination, one of which concerned Biggs’ criminal charges and the
other questioned her reasoning for the absence of the Defendant’s name on the lease
agreement for the Kentucky residence. Biggs testified that she had no criminal history other
than those associated with the Defendant for the same conduct in Kentucky. She further
testified that one of the reasons the lease agreement was not in the Defendant’s name was
because the Defendant had outstanding warrants. Biggs made these statements in direct
response to questions posed by defense counsel. Although Biggs’ statements were improper,
defense counsel asked the questions on these issues, and the answers were foreseeable
responses to the questions. Additionally, the trial court gave specific curative instructions
to the jury, explaining that the jury must disregard the statement. We presume jurors follow
the curative instructions of the trial court. State v. Stout, 46 S.W.3d 689, 715 (Tenn. 2001);
State v. Williams, 977 S.W.2d 101, 106 (Tenn. 1998). Finally, the State presented a strong
case against the Defendant. The testimony does not, therefore, demonstrate a manifest
necessity requiring a mistrial. The Defendant is not entitled to relief on this issue.
D. Sufficiency of the Evidence
The Defendant contends that there is insufficient evidence to support his convictions.
He argues that the only significant evidence against him came from two “criminals,” Peden
and Biggs. The State responds that any issues of credibility were determined by the jury and
that there was sufficient corroborative evidence to support Biggs’ and Peden’s testimony.
When an accused challenges the sufficiency of the evidence, this Court’s standard of
review is whether, after considering the evidence in the light most favorable to the State,
“any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Tenn. R. App. P.
13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d
247, 276 (Tenn. 2002)). This rule applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of both direct and circumstantial evidence. State
v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). In the absence of direct
evidence, a criminal offense may be established exclusively by circumstantial evidence.
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Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). The jury decides the weight to be given
to circumstantial evidence, and “[t]he inferences to be drawn from such evidence, and the
extent to which the circumstances are consistent with guilt and inconsistent with innocence,
are questions primarily for the jury.” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)
(citations omitted). “The standard of review [for sufficiency of the evidence] ‘is the same
whether the conviction is based upon direct or circumstantial evidence.’” State v. Dorantes,
331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)). In determining the sufficiency of the evidence, this Court should not re-weigh or
reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
Nor may this Court substitute its inferences for those drawn by the trier of fact from the
evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d
856, 859 (Tenn. 1956). “Questions concerning the credibility of the witnesses, the weight
and value of the evidence, as well as all factual issues raised by the evidence are resolved by
the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); Liakas, 286 S.W.2d at
859. “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the
witnesses for the State and resolves all conflicts in favor of the theory of the State.” State
v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978) (quoting State v. Grace, 493 S.W.2d 474,
476 (Tenn. 1973)). The Tennessee Supreme Court stated the rationale for this rule:
This well-settled rule rests on a sound foundation. The trial judge and the jury
see the witnesses face to face, hear their testimony and observe their demeanor
on the stand. Thus the trial judge and jury are the primary instrumentality of
justice to determine the weight and credibility to be given to the testimony of
witnesses. In the trial forum alone is there human atmosphere and the totality
of the evidence cannot be reproduced with a written record in this Court.
Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523(Tenn. 1963)). This Court must afford the State of Tennessee the strongest legitimate view
of the evidence contained in the record, as well as all reasonable inferences which may be
drawn from the evidence. Goodwin, 143 S .W.3d at 775 (citing State v. Smith, 24 S.W.3d
274, 279 (Tenn. 2000)). Because a verdict of guilt against a defendant removes the
presumption of innocence and raises a presumption of guilt, the convicted criminal defendant
bears the burden of showing that the evidence was legally insufficient to sustain a guilty
verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).
It is well-settled that in Tennessee, “a conviction may not be based solely upon the
uncorroborated testimony of an accomplice.” State v. Shaw, 37 S.W.3d 900, 903
(Tenn.2001). The law in Tennessee regarding accomplice testimony has been described as
follows:
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The rule simply stated, is that there must be some fact testified to, entirely
independent of the accomplice’s testimony, which, taken by itself, leads to the
inference, not only that a crime has been committed, but also that the
defendant is implicated in it; and this independent corroborative testimony
must also include some fact establishing the defendant’s identity. This
corroborative evidence may be direct or entirely circumstantial, and it need not
be adequate, in and of itself, to support a conviction; it is sufficient to meet the
requirements of the rule if it fairly and legitimately tends to connect the
defendant with the commission of the crime charged. It is not necessary that
the corroboration extend to every part of the accomplice’s evidence.
Shaw, 37 S.W.3d at 903 (quoting State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994)
(citations omitted)). Whether sufficient corroboration exists is a determination for the jury.
State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994).
The jury convicted the Defendant of facilitation to commit aggravated burglary in
Counts 1, 4, and 6. Tennessee defines burglary, in relevant part, as follows:
A person commits burglary who, without the effective consent of the property
owner:
Enters a building other than a habitation (or any portion thereof) not open to
the public, with the intent to commit a felony, theft or assault[.]
T.C.A. § 39-14-402(a)(1), (3) (2010). The offense of burglary is elevated to aggravated
burglary when the building unlawfully entered is a “habitation.” T.C.A. § 39-14-403 (2010).
The jury also convicted the Defendant of facilitation of theft of property between $500
and $1,000 in Count 1, theft of property between $500 and $1, 000 in Count 5, and theft of
property between $1,000 and $10,000 in Count 7. “A person commits theft of property if,
with intent to deprive the owner of property, the person knowingly obtains or exercises
control over the property without the owner’s effective consent.” T.C.A. § 39-14-103
(2010).
Pertinent to this appeal, a person facilitates a felony if “knowing that another intends
to commit a specific felony, but without the intent required for criminal responsibility under
§ 39-11-402(2), the person knowingly furnishes substantial assistance in the commission of
the felony.” T.C.A. § 39-11-403 (2010).
The evidence considered in the light most favorable to the State proves that the
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Defendant, Biggs, and Peden entered Curry’s trailer home without his consent to steal items
of value, which were later sold for cash. Biggs and Peden testified that they, along with the
Defendant, broke into Curry’s trailer, pried open a gunsafe on Curry’s bed, and stole guns
and other valuable items, including a class ring. Curry’s testimony, along with his
roommate’s testimony, corroborated Biggs’ and Peden’s testimony about the burglary. Curry
testified that his trailer was “ransacked,” and his gunsafe pushed onto his bed and pried open.
His guns were taken from the gunsafe. Jones, Curry’s roommate, testified that his class ring,
among other items, was stolen during the burglary. Curry testified that the total value of the
items stolen was “easily over $1,000.”
Biggs and Peden testified that they, along with the Defendant, broke into Stewart’s
home without her consent and stole multiple items, including jewelry, laptop computers, and
multiple DVDs. Biggs specifically testified about an Apple laptop computer. Biggs also
testified that, although she could not remember which residence, they stole laundry detergent
during one of the burglaries. Stewart’s and Sircy’s testimony corroborated Biggs’ and
Peden’s testimony. Sircy, Stewart’s uncle, testified that he observed a car in Stewart’s
driveway and saw three people walk around to the back of the house. Stewart testified that
the front door to her house was “busted open” and the inside of her home was “ransacked.”
She said that an Apple laptop computer, jewelry, approximately eighty DVDs, and laundry
detergent were stolen from her home during the burglary. She estimated the value of the
stolen items was over $500.
Peden testified that he, along with Biggs and the Defendant, broke into the Shulers’
home through the unlocked back door and stole jewelry. Shuler’s testimony corroborated
Peden’s testimony. Shuler testified that the burglars entered through the back door of her
home. She described the upstairs bedrooms as looking “like a hurricane had hit it.” Shuler
said that the jewelry from her bedroom was taken during the burglary. Shuler estimated the
value of the stolen jewelry was approximately $3500.
Further, Peden testified that once the group identified a home, they ransacked the
home in order to find valuables more quickly and leave the premises. All of the victims’
descriptions of the state in which they found their homes after the burglary were consistent
with Peden’s testimony. Peden and Biggs also testified that they went to an Academy Sports
store March 3, 2009, and the Defendant purchased ammunition for one of the guns stolen
from Curry’s trailer. Video surveillance footage from the Academy Sports store corroborated
Peden’s testimony
Based upon this evidence, we conclude that a rational jury could find the Defendant
guilty beyond a reasonable doubt as to each of the Counts of facilitation of aggravated
burglary, facilitation of theft of property between $500 and $1,000, theft of property between
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$500 and $1, 000, and theft of property between $1,000 and $10,000.
We also address the Defendant’s contention that both Biggs’ and Peden’s testimony
is unreliable because they are “criminals.” Tennessee courts have repeatedly held that
questions concerning the credibility of witnesses are resolved by the trier of fact. See Bland,
958 S.W.2d at 659; Liakas, 286 S.W.2d at 859. The jury in this case heard the extent of
Biggs’ and Peden’s criminal records, their roles in these crimes, and the agreements they
reached with the State regarding the charges against them. Defense counsel cross-examined
both Biggs and Peden on these matters. With this knowledge, the jury in this case, as
demonstrated through their verdict, found Biggs and Peden credible. The Defendant is not
entitled to relief on this issue.
E. Sentencing
The Defendant’ final argument attacks the trial court’s imposition of consecutive
sentencing in this case. The Defendant contends that the trial court improperly imposed
consecutive sentencing in light of the Defendant’s existing life sentence in federal prison.
The State responds that, because the Defendant has an extensive criminal history, the trial
court properly imposed consecutive sentencing. We agree with the State.
Consecutive sentencing is a matter addressed to the sound discretion of the trial court.
State v. James, 688 S.W.2d 463, 465 (Tenn. Crim. App. 1984). A trial court may order
multiple sentences to run consecutively if it finds, by a preponderance of the evidence, that
at least one of the following seven factors exists:
(1) The defendant is a professional criminal who has knowingly devoted such
defendant’s life to criminal acts as a major source of livelihood;
(2) The defendant is an offender whose record of criminal activity is extensive;
(3) The defendant is a dangerous mentally abnormal person so declared by a
competent psychiatrist who concludes as a result of an investigation prior to
sentencing that the defendant's criminal conduct has been characterized by a
pattern of repetitive or compulsive behavior with heedless indifference to
consequences;
(4) The defendant is a dangerous offender whose behavior indicates little or
no regard for human life, and no hesitation about committing a crime in which
the risk to human life is high;
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(5) The defendant is convicted of two (2) or more statutory offenses involving
sexual abuse of a minor with consideration of the aggravating circumstances
arising from the relationship between the defendant and victim or victims, the
time span of the defendant's undetected sexual activity, the nature and scope
of the sexual acts and the extent of the residual, physical and mental damage
to the victim or victims;
(6) The defendant is sentenced for an offense committed while on probation;
or
(7) The defendant is sentenced for criminal contempt.
T.C.A. § 40-35-115(b)(1)-(7) (2010). These criteria are stated in the alternative; therefore,
only one need exist in order to impose consecutive sentencing.
In addition to these criteria, consecutive sentencing is subject to the general
sentencing principle that the length of a sentence should be “justly deserved in relation to the
seriousness of the offense” and “no greater than that deserved for the offense committed.”
T.C.A. § 40-35-102(1), 103(2) (2010); see also State v. Imfeld, 70 S.W.3d 698, 708 (Tenn.
2002).
In the present case, the trial court made a finding that the State had produced sufficient
evidence that “the defendant is an offender whose record of criminal activity is extensive.”
T.C.A. § 40-35-115(b)(2) (2010). The trial court, as to this factor, stated the following:
I find that [the Defendant] is an offender whose record of criminal activity is
extensive. According to the pre-sentence report we’ve got about 17 felonies,
8 misdemeanors; we’ve got arrest and convictions in West Virginia, Florida,
Indiana, Kentucky, and Tennessee. And in Tennessee we have Sumner
County, Davidson county, and Robertson County. Record is absolutely
incredibly extensive. This is one of the most extensive records that I have seen
in any case.
The trial court then ordered Counts one and two to run concurrently, Counts four and five
to run concurrently, and Counts six and seven to run concurrently, but consecutively to one
another for an effective sentence of thirty-six years in the Tennessee Department of
Correction.
Our review of the record reveals that the Defendant has engaged in criminal activity
over the course of the last twenty years. He committed approximately half the crimes for
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which he was convicted before a lengthy period of incarceration, and then, upon release, he
committed additional crimes for which he was convicted. At least fourteen of his convictions
are for aggravated burglary, which he began committing as early as 1990.
Based upon this evidence, the trial court did not err in ordering the partial consecutive
sentence. There was ample evidence in the record supporting the factor relied upon by the
trial court to order consecutive sentencing in this case. See State v. Adams, 973 S.W.2d 224(Tenn. Crim. App. 1997) (“Extensive criminal history alone will support consecutive
sentencing.”). Thus, the Defendant is not entitled to relief on this issue.
III. Conclusion
Based on the foregoing reasons, we affirm the judgments of the trial court.
_________________________________
ROBERT W. WEDEMEYER, JUDGE
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