Court of Criminal Appeals of Tennessee, Nashville
Session Date: October 28, 2014
Appeal from the Circuit Court for Williamson County No. I-CR044799 Robbie T. Beal, Judge
David L. Raybin and Vincent P. Wyatt (on appeal), Nashville, Tennessee; and Lee E. Dryer (at trial), Franklin, Tennessee, for the appellant, Thomas William Brown.
Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior Counsel; Kim R. Helper, District Attorney General; and Mary Katharine White, Assistant District Attorney General, for the appellee, State of Tennessee.
Roger A. Page, J., delivered the opinion of the court, in which John Everett Williams and Robert H. Montgomery, Jr., JJ., joined.
ROGER A. PAGE, JUDGE
This case stems from two alleged attempted aggravated burglaries at a Franklin, Tennessee apartment on December 9, 2009. Appellant was arrested near the apartment that night and was later charged with two counts of attempted aggravated burglary and one count of possession of burglary tools. The trial court dismissed the possession of burglary tools charge after the State presented its proof during appellant's trial. The jury acquitted appellant of the first count of attempted aggravated burglary. The jury found him guilty of the second count of attempted aggravated burglary, and the trial court sentenced him to four years in the Tennessee Department of Correction.
At appellant's trial, Ashley Ruttencutter testified that on December 9, 2009, someone attempted to burglarize the apartment in which she lived with her mother. She said that she returned home from school between 3:00 and 3:30 p.m. that day and locked the deadbolt after she entered the apartment. She went upstairs and had begun doing homework when she heard someone "mess[ing] with the lock." Ashley testified that she called out that she was coming but that she looked through the peep hole before opening the door. When she realized that she did not recognize the person at the door, she did not open it. Instead, she ran upstairs and called her mother. Her mother called the apartment complex to determine whether a maintenance worker was attempting to gain access to their apartment, but she was told that no one from the apartment complex should be at their apartment. Ashley testified that this incident occurred around 4:00 p.m. She further testified that the sound being made at the door was "louder than [the] normal sound of just a key going into the door." She said that based on what she observed, the door would have opened if the deadbolt had been unlocked. Ashley testified that the person she observed through the peep hole was a "hefty sized guy" with "salt and pepper colored hair" who was wearing "a jean[-]like – kind of like those flannel type shirts that has a collar." She was unsure whether the shirt had buttons. Ashley testified that soon thereafter, maintenance workers arrived at her apartment, including a worker named Ariel. She asked Ariel whether he had seen anyone, and he had not. Ariel changed the lock and told her that the lock "look[ed] like it [had] been messed with." Ashley said that "[t]here were scratches on the door that were not there before." She gave a report to the police that afternoon.
Ashley testified that later that night, around 10:00 p.m., her mother said she had "heard somebody at the door again" but thought that she might be "just paranoid, like maybe [she was] imagining it." Ashley said that she did not personally see anything with regard to this second incident; however, her mother called 9-1-1, and the police soon arrived. Ashley said that while the police were talking to them, the officers "heard something in the woods." The officers left to investigate, and when they returned, the officers reported that "they caught the guy." The police showed her a shirt and asked her if it was the same, and she responded that it was. She testified that the shirt was "the exact same type of shirt that [she] described earlier." Ashley also identified the shirt, which had been preserved as evidence, in the courtroom.
On cross-examination, Ashley testified that she called her mother at 3:57 p.m. that day about the person trying to get into the apartment. She knew the exact time because her telephone recorded the time.
Tabitha Ray Ruttencutter, Ashley's mother, testified that Ashley called her during the afternoon of December 9, 2009, to tell her that someone was trying to get into their apartment. Tabitha called the apartment complex and asked them to send someone over to the apartment. She also called her ex-husband, Ashley's father, who in turn called the police. When Tabitha returned home, apartment custodians asked her whether to change the locks because "there was evidence . . . that somebody was trying to get in." She allowed the custodians to change the lock.
Tabitha testified that later that evening, she heard scratching at the door, "scratching inside the key hole, " and heard "the door jiggling." She said that she was standing on the landing upstairs and that she saw the door handle "moving a little bit." The movement stopped and started again, "then all of a sudden a few seconds later the guy walked away." She said that she called the police when she realized that it was more than her imagination. Tabitha testified that this happened at 9:50 p.m. and recalled that she had looked at a clock. She said that she saw the man walking on the sidewalk outside her building. He had a duffle bag and was between 5'9" and 5'11". She said that he was "thick" and was wearing "a blue[-]like denim shirt . . . with blue jeans and a cap." Tabitha stated that the shirt was long-sleeved and was probably a button-up shirt because it had a collar. When asked how she knew that the man she saw through the window had been at her door, she stated,
Because as soon as it stopped, the jiggling of the door and trying to open it, I seen [sic] a shadow on the window down there, because we have a window right downstairs to the left of the door, and I saw a shadow walk and then all of a sudden he appears right there.
Tabitha testified that she called 9-1-1. The State played a recording of the 9-1-1 tape for the jury. In the recording, Tabitha stated that the man she saw had dark hair. She clarified in her testimony that she was not sure whether the man's hat or hair was dark. She said that the police had her identify a shirt, which she said was a long-sleeved, blue denim button-up shirt that "looked like the one that he was wearing." Tabitha testified that after this incident, the apartment complex placed a spotlight outside and gave her a "door jammer." She said that the person outside that night did not have permission to enter her home.
Franklin Police Officer Chris Hollingsworth testified that he responded to the Ruttencutters' first call during the afternoon of December 9, 2009. He said that he received the call at approximately 3:45 p.m. When he arrived, Ashley described the man she had seen through the peep hole. The maintenance workers had already changed the locks and disposed of the original lock. Later that evening, he heard over the radio that an officer was dispatched to the Ruttencutters' address, so he also responded. When he arrived, he interviewed the Ruttencutters and began to leave. However, as he was walking on the sidewalk, he "heard a noise that sounded as if someone was walking in the woods . . . across the road." He and other officers went to investigate. They shined their flashlights into the woods and heard someone moving quickly through the woods. Officer Hollingsworth "began running across that wood line when [he] observed a white male com[ing] out of the wood line." Officer Hollingsworth testified that the man was "medium sized" and was "in the process of removing a blue shirt." He observed that the man was "wet from head to toe from having crossed that creek." Officer Hollingsworth told the man to show his hands, and the man initially complied but then began "to manipulate something around his waist." The man threw off a glove and then turned to Officer Hollingsworth with his hands in the air. Officer Hollingsworth instructed the man to get on the ground. When the man complied, Officer Hollingsworth handcuffed him. The man's shirt and gloves were collected from the ground by other officers. Officer Hollingsworth asked the man for his name and address and inquired why he was at the apartments. The man responded that he was Thomas Brown and gave the officer his Franklin address on Gist Street. Appellant "said that he had been at dinner with a friend and was looking at the apartments, thinking of moving there." Officer Hollingsworth said that he "asked him why then was he in the woods because there was [sic] obviously no apartments in the wood line." Appellant replied "that he saw some people with some flashlights and he became scared, so he got into the wood line to . . . hide from them." Officer Hollingsworth placed appellant in the back of another officer's patrol car. He then helped gather evidence that appellant had dropped and returned to the apartment.
On cross-examination, Officer Hollingsworth agreed that the call for the second incident at the Ruttencutters' home came at 9:45 p.m. He further agreed that he did not record his interaction with appellant.
Franklin Police Officer Ryan Frazier testified that appellant sat in his patrol car the night of the alleged burglary while they waited for the investigating detective to come to the scene. Officer Frazier said that appellant asked him what was going on. Officer Frazier told him that they were waiting for the detective. Officer Frazier recalled that appellant asked him to turn the heat down in the car. Appellant also told Officer Frazier, "'All I know is I went out to eat with my friend, '" "'I'm here looking for a place to stay and as soon as I can get out of here back to Florida, that's where I'm going, '" "'And that's my U-Haul right there, '" and "'I'm just wanting to go home.'" In response to everything appellant said, Officer Frazier testified that he "told him just to hold on, hang out" with the officer until the detective arrived. Officer Frazier said that he did not ask appellant any questions. Detective Robert Lindsey arrived and read appellant's constitutional rights to him, and then Officer Frazier transported appellant to the police station.
Franklin Police Officer Charlie Richards testified that he brought Titan, his K-9 partner, to the scene to see whether they could be of assistance to the investigation. Appellant had already been taken into custody by the time that Officer Richards arrived. Officer Richards said that he and Titan were standing on the road between the apartment complex and a subdivision when Titan began following a scent on his own volition. Titan led Officer Richards to the landscaped area at the front gates of the apartment complex. There, Officer Richards found an air compressor and a bag. The bag contained fittings for the air compressor, a set of earrings, and business cards on which were printed appellant's name. Another officer stayed with the bag, and Titan continued tracking the scent. Titan and Officer Richards went into the wooded area and through a creek. They did not find any other evidence along the way.
Franklin Police Officer Megan Valentin testified that she was in charge of collecting the evidence at the scene. She identified several items associated with this case: a jean jacket, a flannel shirt, a pair of gloves, a Nike hat, and a duffle bag containing a belt and a flashlight.
Ariel Ernesto Picado testified that he was the maintenance supervisor at the apartment complex where the Ruttencutters lived. On December 9, 2009, personnel from the apartment complex asked Mr. Picado to check the area around Building 9 because of a reported attempted burglary in that building. Mr. Picado and another gentleman looked around Buildings 9 and 10, the wooded area behind the buildings, and the road leading to a church down the hill, but they did not see anything. Mr. Picado testified that he replaced the deadbolt lock on the Ruttencutters' door. He said that the original lock "had some dents on it on the side, and the door had some scratches on it, like somebody was trying to pry it open." Mr. Picado said that he was called later that evening to inspect the Ruttencutters' door and to determine whether a man sitting in the backseat of a patrol car was a resident of the apartment complex. Mr. Picado testified that the man was not a resident. Regarding whether he saw appellant's U-Haul that day, Mr. Picado said that he saw the U-Haul before receiving the first call. It was gone later in the day but was back when he received the second call. It was parked in a different manner, however. He recognized it as the same U-Haul because of the markings on it. Mr. Picado said that he changed the lock again the next day.
Detective Robert Lindsey testified that he was the lead investigator for these incidents. He first encountered appellant while appellant was sitting in Officer Frazier's patrol car. Detective Lindsey read appellant his constitutional rights, and appellant responded that "he'd be happy to speak to [Detective Lindsey] to clear up any misunderstanding of what was going on." Detective Lindsey testified that appellant
said that he had been in the area looking at an apartment, and he was hoping to move back up there, and he was just over, looking to see if it was a place he wanted to move to, and that was ...