Assigned on Briefs May 6, 2014
Appeal from the Criminal Court for Shelby County No. 11-04915 Paula Skahan, Judge
Stephen Bush, District Public Defender; Phyllis Aluko (on appeal) and Lawrence White (at trial), Assistant Public Defenders, for the appellant, John Brent.
Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Smith, Deputy Attorney General; Amy P. Weirich, District Attorney General; and Jose Leon, Assistant District Attorney General, for the appellee, State of Tennessee.
Alan E. Glenn, J., delivered the opinion of the Court, in which Camille R. McMullen, J., joined. Joseph M. Tipton, P.J., not participating.
ALAN E. GLENN, JUDGE
The defendant's convictions resulted from his entering the victim's home without invitation, subduing the victim with a weapon, tying him up, and stealing the victim's motor vehicle, which later was recovered in Atlanta.
The victim, John Stuart, testified that, at the time of the trial, he was 72 years old and a resident of Memphis. He said that, on July 11, 2011, he was sitting on his front porch and conversed with the defendant, who was walking on the sidewalk. The defendant came up the steps of the victim's home and asked for water. The victim went into the house, got a glass of water, and, as he returned to the door, found the defendant had entered his house. After a brief conversation, the defendant "grabbed [the victim] in a bear hug and said get down on your knees." The victim complied by going to the floor and, then, by emptying his pockets, at the defendant's further command. Then, the victim felt "pressure on [his] neck" from "scissors, the end of the barrel of a pistol or what it was at that time." The defendant ordered the victim to undress and tied his hands and feet with twine in the kitchen. The victim "waited a little while, " managed to get loose from the twine, saw the defendant had left, looked out the door, and saw his Ford Explorer had been taken. Also taken were his checkbook, $60 cash, a small knife, and his car keys. He estimated that the Ford Explorer was worth about $2000. The victim described the defendant:
[H]e had a cut . . . maybe 2 inches wide just behind where your watch goes. It was kind of puffy. It healed, you know, was a[n] older cut, but still kind of healed up in a puffy fashion. And then he had a tattoo that I could see. The beginning of a tattoo above the shirt that he was wearing. The starting of one right along here. Probably went on down.
Further, the victim described the scissors which he thought the defendant used as a weapon against him:
[W]hen I was in the living room during that time, either when I dropped – as I [was] getting ready to drop down on the floor or as I was coming back up to go to the rear bedroom, I got a glimpse of a pair of scissors that he had in his possession, his hand. And I immediately said to myself he has my scissors. He probably got them off the piano. They were all steel, piercing type of scissors that could be used as a weapon. Average size.
I think of a pair of scissors that you'll see in a style shop or barber shop or hair salon, beauty shop. I think they still use scissors like that. These were – had some rust on them. And being in real estate, I manage property from time to time. And we go in and clean up and people will leave things. You know, move out and not take something. And that's where these scissors came from. They had been around the house a few years.
Without objection, the victim testified that a pair of scissors depicted in a photograph, passed to him while he was testifying, were "very similar" to those which had been in his house:
Q. Mr. Stuart, we spoke and you have described a pair of scissors; correct?
Q. I am going to pass up to you a picture of scissors to see if you recognize them and tell us what you find.
A. Yeah. These are very similar to the scissors that I had in the house. The difference was my scissors had some rust on them. I don't know about these handles. ...