Court of Criminal Appeals of Tennessee, Nashville
June 17, 2014 Session
Appeal from the Criminal Court for Davidson County No. 2013-A-180 Cheryl A. Blackburn, Judge.
James O. Martin, III (on appeal) and Justin Johnson (at trial), Nashville, Tennessee, for the appellant, Charles B. Davis.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Senior Counsel; Victor S. Johnson, III, District Attorney General; Jeff Burks and Brian Ewald, Assistant District Attorneys General for the appellee, State of Tennessee.
Larry J. Wallace, Sp. J., delivered the opinion of the Court, in which Norma McGee Ogle, J., and Roger A. Page, J., joined.
LARRY J. WALLACE, SP., JUDGE
I. Background and Facts
This case arose from allegations that the Defendant committed theft of property and aggravated burglary on two separate occasions involving two separate victims. One of the occasions involved employment of a firearm. A Davidson County grand jury indicted the Defendant for two counts of aggravated burglary, one count of theft of property valued between $1, 000 and $10, 000, one count of theft of property valued under $500, and one count of employing a firearm during the commission of a dangerous felony.
At the April 1-2, 2013 trial on these charges, the parties presented the following evidence: Mary Quinn testified that she was a co-worker and friend of Jennifer Picheco. Ms. Quinn testified that she was to watch Ms. Picheco's cat and home on Claybrook Lane, Nashville, Tennessee, from December 23-27, 2011. On December 27, 2011, Ms. Quinn arrived at Ms. Picheco's home and noticed that it had been burglarized. Ms. Quinn testified that the back door to the home was broken. Ms. Quinn contacted Ms. Picheco regarding said burglary. Upon being contacted by Ms. Quinn, Ms. Picheco and Ms. Quinn, with the police's help, determined what items had been stolen.
Jennifer Picheco testified that she lived on Claybrook Lane, Nashville, Tennessee, and that she went to Connecticut to visit family from December 23-27, 2011. Ms. Picheco testified that she locked her house when she left town on December 23, 2011. She further testified that in her absence Mary Quinn was to watch her home and her cat. Ms. Picheco testified that she was contacted by Ms. Quinn on December 27, 2011, and learned that her home had been burglarized. Over the telephone, Ms. Picheco worked with Ms. Quinn and the police to determine what items had been stolen. The items included a television, a laptop and jewelry. According to Ms. Picheco, the unrecovered stolen items were worth a total of more than $1, 000.00, but less than $10, 000.00. Some of Ms. Picheco's personal property was recovered, including some of her less expensive rings and necklaces, a laptop, birth certificate, passport and some of her Tiffany jewelry holders (though the holders were empty). The television, purses, bags, and her entire Tiffany jewelry collection were never recovered. Ms. Picheco testified that no one other than Ms. Quinn had permission to enter her home and that no one had permission to take the personal items that were stolen. Ms. Picheco testified that the glass doors in the rear of the home had been broken. She further testified that she did not have any firearms in her residence and that she was not acquainted with the Defendant or his co-defendant.
Lee Ann Lisk testified that she was neighbors with Brook Connor, who resided on Southcrest Street in Nashville. Ms. Lisk testified that on December 29, 2011, at 9:30 a.m., she observed an unfamiliar white SUV parked in an odd fashion, closest to the street rather than to the house. She further noticed two men knocking on the door and windows of Ms. Connor's home. One man looked around the back of the house and the other man looked around the front of the house. Ms. Lisk testified that it appeared very suspicious. She noticed that one of the men was white and tall with lighter hair and the other was Hispanic and shorter with jet black hair. She had never seen the men before and did not see a weapon. As a result of her observations, Ms. Lisk called the police. While on the phone with the police, Ms. Lisk saw the men get into their SUV and drive it behind the carport, close to the side or back of the house where she could no longer see them. Apparently, according to Ms. Lisk, it was during this time that the men entered Ms. Connor's home because when police arrived, they brought the two men outside from Ms. Connor's home.
Brook Connor testified that she and her husband resided on Southcrest Street in Nashville, Tennessee. Ms. Connor testified she left for work on December 29, 2011, at 7:00 a.m. and received a call from police at 10:00 a.m. regarding a break-in at her house. Ms. Connor left work and returned home to find that three of her doors had been broken and her house was in disarray. Ms. Connor testified that the window panes of the side door coming from the carport were broken and that the door was pushed open. That door led to the basement and the intruders broke through two additional locked doors to access the main part of the house. The intruders also made a hole in the dry wall where, presumably, the door leading to the kitchen was kicked in. No items were taken from her residence. However, her laptop computer, worth $250.00, that she had left sitting on her living room couch had been moved to the bed in the bedroom. Ms. Connor testified that she had not given anyone permission to enter her home or take her personal belongings from inside her home. She further stated she did not have any firearms in her residence. Ms. Connor testified that the amount of damage done to the doors in her home was $400.00 to $500.00.
Sergeant Jason Spencer of the Metro Nashville Police Department testified that he responded to both Ms. Picheco's and Ms. Connor's homes after the break-ins. Sergeant Spencer further stated that both homes were in the same general area of South Nashville within five miles of one another. Sergeant Spencer observed that both homes had been burglarized. Specifically on December 27, 2011, Sergeant Spencer noticed that at Ms. Picheco's home there was a broken glass door and observed where missing items such as the television and jewelry should have been located.
On December 29, 2011, Sergeant Spencer stated that Detective Phillip Klarer, Detective Robert Shotwell, and Detective Andrew Nash assisted in responding to the burglary at Ms. Connor's home. Upon arriving at Ms. Connor's residence, they saw the white SUV reported by Ms. Lisk sitting in the driveway. Sergeant Spencer stated that in response to the burglary at Ms. Connor's home, the police entered into the home through the side carport door where the intruders had entered. After a thorough search of the home, the Defendant and co-defendant were located hiding in a "false spot" inside the basement. Between the two men, there was a 12-gauge shotgun propped against a guitar case at their feet. No one else was located inside the home. Inside the 2005 white ford ...