Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs March 11, 2015.
Appeal from the Criminal Court for Davidson County No. 2013-A-467 Cheryl Blackburn, Judge.
Dawn Deaner, District Public Defender; and Emma Rae Tennant (on appeal), Kristin Neff (at trial), and Patrick Hakes (at trial), Assistant District Public Defenders, Nashville, Tennessee, for the appellant, Casey Dewayne Moon.
Herbert H. Slatery III, Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Bret Thomas Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.
Roger A. Page, J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Camille R. McMullen, JJ., joined.
ROGER A. PAGE, JUDGE.
On August 25, 2012, the sons and husband of Robin Hull, who had died in the summer of 2012, were cleaning out her apartment in the Wedgewood Towers building. After taking a break, the Hull brothers returned to their mother's apartment to find a man with a cart of items taken from Mrs. Hull's apartment waiting on an elevator. They confronted the man, and he returned the items to the apartment. One of the brothers identified appellant in a photographic lineup as the man they had observed, and the Davidson County grand jury subsequently indicted appellant for aggravated burglary and theft of property valued at more than $500 but less than $1000.
At appellant's trial, Cameron Russell Hull, the son of Robin Hull, testified that on August 25, 2012, he, his brother, and his father were cleaning out Mrs. Hull's apartment. They placed some items in the hallway for other residents to claim if they wanted the items. They took a break to eat, and when Cameron and his brother returned, they saw a man wearing a blue shirt with a shopping cart waiting for an elevator. He said that he had never seen the man before that exact moment. Cameron testified that his mother's television, steamer, and suitcase were in the shopping cart. From the witness stand, he identified appellant as the man he saw with the shopping cart and his mother's possessions. Cameron said that his brother confronted appellant, who responded that he had been directed to take Mrs. Hull's electronics to the second floor. When asked whether appellant told the brothers that he worked for the apartment or for maintenance, Cameron replied, "I believe in that capacity he did." Cameron said that when his brother told appellant that they had until Monday to clean out Mrs. Hull's apartment, appellant took the shopping cart back to Mrs. Hull's door and opened the door with a key that was on a wooden dowel. Cameron testified that he was positive that they had locked the door before they left for lunch. After appellant left, Cameron and his brother first called their father and then, on their father's instruction, called 9-1-1. Cameron testified that the television was worth at least $400 and that the steamer was worth between $20 and $40. He said that the suitcase had a set of flatware inside and that he did not know the value of the suitcase or the flatware. Cameron further testified that an HDMI cable worth $20 and a DVD player worth at least $50 were also in the cart, as well as bars of soap, two bags of potato chips, and a knife set. He estimated that the knife set was worth $20. Cameron recalled that the television had been on its stand inside the apartment when they left for lunch and that the knives had been packed inside a box. He said that a second television had been moved from its customary location to the floor. Cameron testified that he was the executor of his mother's estate and that he had not given anyone permission to enter the apartment. He said that he met with the police ten to fourteen days after August 25 to look at a photograph array. He testified that he identified appellant from the array as the person whom he saw with his mother's property.
Scott Forrest Hull II testified that on August 25, 2012, he was helping his brother and father clean out his mother's apartment. He said that when he and his brother returned from lunch, they saw a man at the elevator on their mother's floor. He had a shopping cart with items they recognized from their mother's apartment, including a forty-two-inch television. Scott asked the man where he had gotten the television, and the man replied that he was "moving stuff out of the apartment." Scott said that he specified that it was "Robin Hull's apartment." Scott testified that the man identified himself as a maintenance worker and claimed that "he was tasked by the property to move stuff out of Robin Hull's apartment." He did not give the Hull brothers the name of the person who had given him this task. Scott testified that the man was wearing a navy blue shirt and khakis. He believed that the shirt said "First Properties." Scott said that the man opened the door to Mrs. Hull's apartment with a key that "was on a rod of some sort." The man pushed the cart through the apartment door, and Scott told him not to come back because they did not need any help. Scott testified that they called the police five to ten minutes after the man left. He further testified that because he lived out of town, he had not had the opportunity to see a photograph array nor had he been able to attend appellant's preliminary hearing. Scott agreed that he had an opportunity to see appellant earlier in the trial process and while he was on the witness stand. He testified that appellant was "the person [he] saw from the elevator." Scott said that he had not seen appellant on any prior visits to his mother's apartment nor in the building on August 25. Scott testified that the flatware that appellant had taken was worth $100 to $200 and that the Blu-ray player was worth $100. He further testified that while he could not recall whether the person with the cart said anything about changing the locks on Ms. Hull's apartment, he had sent an e-mail on August 28 about the events of August 25, and in that e-mail, he had written that "the suspect does mention that he did change the locks on Robin Hull's room, Room 402, and pushes the cart inside after opening the door with a key."
John Reynolds, a dispatcher for the Metro Emergency Communications Center, testified that the center's records showed that Cameron Hull called 9-1-1 at 5:44 p.m. on August 25, 2012.
Trish Greer testified that she was the district manager for First Cumberland Properties in Middle Tennessee. She oversaw twenty-three to twenty-eight apartment complexes at any given time, one of which was Wedgewood Towers, a Section Eight high-rise with 120 units where Mrs. Hull lived. Ms. Greer said that when a tenant passed away, if the tenant was the only leaseholder, then the landlord had to change the locks on the apartment immediately. When the probate court appointed someone to have access to the apartment, the landlord would give that person keys. No one from the management company would be allowed access to the apartment except for emergencies. Ms. Greer testified that the families of tenants typically had fourteen days to remove property from a deceased tenant's apartment. Ms. Greer testified that Paula Evans was the property manager at Wedgewood Towers. Regarding maintenance of the building, Ms. Greer testified that a corporate-level maintenance crew led by Ernest Harrell was responsible for maintenance of Wedgewood Towers on August 25, 2012. She said that appellant worked for Mr. Harrell. Ms. Greer said that she communicated with neither Mr. Harrell or appellant about a maintenance issue at Wedgewood Towers on August 25. After the incident, she requested and received a written statement from appellant on August 28, which she read to the jury:
I received a call from Paula on Saturday, August 25th, for an AC call for Apartment 811 at 3:00 p.m. I left and went to Wedgewood, arrived at around 3:45 p.m., parked on [the] third floor next to the dumpster. When I got out of my truck, I noticed Eddie for Unit 814 going through the dumpster. I asked Eddie what he was doing. He said he was getting stuff out that was being thrown away from Ms. Robin's apartment. I told him he could not be going through the dumpster. He told me that everyone else had been getting stuff out. I went in on the third floor, went up to the unit, 811, found the unit had a grounded compressor, called Paula and Ernie to see if there was a vacant available to swap out a unit with if they didn't have one. This was at 4:25 p.m. Went down to the second floor, got an AC unit and the AC cart, went to 811. As I was going up in the elevator, the son of Robin Hull got on the elevator with me. I went to 811, swapped out the AC unit, left 811, went to the second floor, returned the AC unit and the AC cart, exited out of the second floor door and placed keys back under a rock outside of the second floor door, went around the building to my truck still parked next to the dumpster, and left at around 5:00 p.m. Went home and took a shower and was called at 6:20 by Paula while me and my girlfriend were out at supper.
Paula Evans, the property manager for Wedgewood Towers, testified that she received a call on August 25 from Apartment 811 that the tenant's air conditioner was not working. She called appellant about the problem because Mr. Harrell was on vacation out of town. Ms. Evans recalled that appellant asked her to call Mr. Harrell anyway, which she did. Later that day, at 5:55 p.m., she received a message from Scott Hull, Sr. Because of that message, she called appellant. She first asked appellant whether he had taken care of the maintenance issue in Apartment 811 and then asked whether appellant had been wearing khakis and "a blue shirt with white writing of FCP property on it." Appellant responded that he had worked on Apartment 811's air conditioner and that he had been wearing khaki shorts and a shirt with the property company's name on it. He did not tell her what color shirt he had been wearing. Ms. Evans testified that no one else who did maintenance work at Wedgewood Towers was of the same age, race, and build as appellant.
On cross-examination, Ms. Evans acknowledged that appellant answered her telephone call and did not seem nervous while he answered her questions. She testified that at the time of the incident in question, there were two skeleton or master keys for the building, one of which she had. The second master key was on a copper dowel that was hidden outside for the maintenance staff to use. Ms. Evans agreed that her telephone number for work was xxx-1540.
On re-direct examination, Ms. Evans testified that appellant performed the mandatory replacement of the lock on Ms. Hull's apartment. On recross-examination, she said that she asked appellant to change the locks the day she was notified that Ms. Hull had passed away. Ms. Evans testified that there was not a work order for changing the locks.
Ernest Harrell testified that on August 25, 2012, he was out of town but was still taking maintenance calls for First Cumberland Properties, with the plan to dispatch appellant to do repairs as necessary. He said that he received a call from Ms. Evans that day about an air conditioner at Wedgewood Towers. He called appellant to take care of the problem.
On cross-examination, Mr. Harrell testified that he remembered appellant's telling him that Ms. Evans had called appellant to ask whether he had been in an apartment because "somebody took something out of an apartment." Mr. Harrell agreed that he and appellant were friends. He said that he "might have" gone to Wedgewood Towers to retrieve the hidden key after this incident. Mr. Harrell testified that appellant continued to work for him for approximately two weeks ...