Assigned on Briefs December 2, 2014
Appeal from the Criminal Court for Shelby County No. 130-01570 W. Mark Ward, Judge
Stephen C. Bush, District Public Defender; and Phyllis L. Aluko (on appeal) and Charles Brent Walker (at trial), Assistant Public Defenders, for the appellant, Randy Poole.
Herbert H. Slatery, III, Attorney General and Reporter; Lacy Wilber, Senior Counsel; Amy P. Weirich, District Attorney General; and Nicole Germain and Omar Zia Malik, Assistant District Attorneys General for the appellee, State of Tennessee.
D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Roger A. Page, JJ., joined.
D. KELLY THOMAS, JR., JUDGE
In March 2013, the Shelby County Grand Jury returned an indictment charging the Defendant and co-defendant, Christopher Sims, with aggravated burglary. The Defendant proceeded to trial on October 7, 2013.
At trial, Matthew Carragher testified that he owned a house on Hodges Street in Memphis and that it was a rental property, which was managed by a property management company. The property was vacant on September 11, 2012. On that day, he received a phone call from the management company informing him that the police had "caught two guys coming out of the house trying to steal the stove and the refrigerator." He testified that he had not given the Defendant, or anyone else, permission to enter the house that day.
Christopher Sims testified that he was currently imprisoned after pleading guilty to the aggravated burglary of the Hodges Street house. Several days before September 11, 2012, Sims went to Hodges Street and entered the house through an unlocked back door. He first testified that he knew the house was vacant by "just looking around, " although he later stated that the Defendant had told him about the vacant house. Sims saw that there was a stove and refrigerator in the house, but he left the house without removing any property. The Defendant was not with Sims during this initial entry into the house.
Sims testified that on the afternoon of September 11, 2012, he and the Defendant discussed the appliances located at the Hodges Street house. Because neither Sims nor the Defendant had a vehicle, the Defendant enlisted the help of a friend who owned a truck to help them transport the appliances. Sims testified that the driver picked both himself and the Defendant up at the home of Cheryl Fleming, Sims's mother and, at the time, the Defendant's girlfriend. Initially, Sims testified that the appliances had already been taken out of the house and were sitting outside when the three men arrived at the house. However, he later testified that the men arrived at the house, parking the truck on the street in front of the house, and that he and the Defendant then moved the appliances to the "middle of the backyard." Sims testified that it took the men about five to ten minutes to move the appliances from the house into the backyard.
Roshella Mabroy testified that she lived in the house next door to the burgled house on Hodges Street and that she was home all day on September 11, 2012. She heard a vehicle pull into her driveway around 3:30 p.m. and went to the side door of her house to see who had arrived. She was expecting her landlord to arrive around that time to do some repair work at her house. However, upon looking out the door, she saw a truck that she did not recognize in her driveway. She noticed that there were three men in the truck, whom she recognized "from the neighborhood." Two men were in the cab of the truck, and a third man was sitting in the truck bed. She identified the Defendant as the passenger in the cab of the truck and identified Christopher Sims as the man riding in the truck bed.
Ms. Mabroy stuck her head out the door and told the men to get out of her driveway. She watched as the truck pulled out of her driveway and then backed into the driveway next-door. According to Ms. Mabroy, the "young fellow in the back got out, " while the Defendant and the driver remained in the truck. She watched as Sims opened the gate to the fence, and at that time, she noticed a stove and refrigerator sitting inside the fenced backyard. She had never seen appliances sitting outside of the house before and had not noticed anything unusual before that day. However, Ms. Mabroy admitted that she was not certain that the appliances had not been outside for several days because she could not see inside the fence when the gate was closed.
Upon seeing the stove and refrigerator, she "immediately" said, "don't bother that stove, that refrigerator, leave that alone." Ms. Mabroy said that the Defendant, who was "slouched down in the truck, " asked her, "[Y]ou going to snitch[?]" She responded, telling him, "[Y]ou're not going to be able to make it out of the driveway because it's broad daylight and all my neighbors [are] looking at you." While she was talking to the Defendant, Sims "grabbed the refrigerator . . . and was going to put it [in the truck], " but she told him not to, and the men left. She testified that Sims was the only person she saw outside the truck, touching the appliances that day.
Sims's recollection of that day differed in several respects from Ms. Mabroy's testimony. According to Sims, after he and the Defendant moved the appliances outside, the driver mistakenly backed his truck into Ms. Mabroy's driveway. Sims testified that both he and the Defendant were outside the truck at the time it was backing into the driveway. Sims testified that when Ms. Mabroy came out of the house, he was "trying to get out of the way . . . [and] [the Defendant] was talking to her." He also testified that he and the Defendant actually loaded the appliances onto the truck, but subsequently unloaded them and fled the scene after Ms. Mabroy threatened to call the police. Sims denied that the State had promised him anything in exchange for his testimony and instead had told him to "tell the truth and be honest" about what happened that day.
Gregory Scott of the Memphis Police Department (MPD) testified that he was the first responder to a "prowler call" on Hodges Street on September 11, 2012. He explained that a "prowler call" means that someone is at a residence that does not belong there. Upon arriving at the scene, Officer Scott walked to the rear of the house where he saw a stove and refrigerator sitting about six to ten feet from the back door, which was open. He described the fence enclosing the backyard as a "privacy fence." Officer Scott testified that no suspects were at the property when he arrived. He spoke to Ms. Mabroy, who recounted what she had witnessed. He testified that he did not recall collecting fingerprints from the appliances or any surfaces inside the house, although he could not state conclusively that no fingerprints were taken.
James McDonald, a Detective with the MPD, testified that he was the primary officer responsible for investigating the burglary. Det. McDonald testified that he went to the house on September 12, 2012, that the appliances had been moved back into the house, and that the house was locked. To his knowledge, no fingerprints were taken from the appliances or from any other surfaces at the house. When Det. McDonald received an initial report about the incident, the Defendant had already been listed as a suspect and was subsequently brought in for questioning. During the interrogation, the Defendant denied any involvement in the burglary, and the police did not take an official statement.
Cheryl Fleming testified for the defense. Ms. Fleming stated that Christopher Sims is her son and that she was dating the Defendant on September 11, 2012, but that they were no longer together. At the time, both Sims and the Defendant lived with her on Buntyn Street, which is located one street over from Hodges Street.
Ms. Fleming testified that on September 11, 2012, the Defendant was with her the entire morning and through the early afternoon. Sims was at the house that morning but left around 1:00 or 2:00 p.m. A little later, the Defendant "called for a ride"; Sims returned to the house; and a gray truck, driven by a man identified at trial only by his nickname, "TK", arrived at the house.
Sims exited the house and walked down an alley behind Ms. Fleming's house that leads to Hodges Street. Shortly thereafter, the Defendant got in the truck with TK, and the men drove towards Hodges Street. Ms. Fleming clarified that Sims left the house on foot prior to the Defendant and TK's departure in the truck. She ...