Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs April 28, 2015 at Knoxville
Appeal from the Circuit Court for Williamson County No. I-CR086639B Michael W. Binkley, Judge
Georgia Felner (on appeal) and Drew Justice (at trial), Franklin, Tennessee, for the appellant, Donald Joseph Powell.
Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant Attorney General; Kim R. Helper, District Attorney General; Tammy Rettig, Assistant District Attorney General, for the appellee, State of Tennessee.
Timothy L. Easter, J., delivered the opinion of the Court, in which Robert W. Wedemeyer and D. Kelly Thomas, Jr., JJ., joined.
TIMOTHY L. EASTER, JUDGE
Factual and Procedural Background
This is a direct appeal from Defendant's conviction for attempted aggravated burglary. Both Defendant and his co-defendant, Alyssa Star Cartwright, were indicted by the Williamson County Grand Jury for the attempted aggravated burglary of the home of Charles and Stephanie Warner on May 25, 2012. Ms. Cartwright pled guilty and agreed to testify against Defendant.
Prior to trial, the State filed a motion in limine regarding the prosecution's proposed introduction of evidence of Defendant's prior aggravated burglaries, under Tennessee Rule of Evidence 404(b), to show Defendant's intent in connection with the present charge. The trial court held a hearing, during which the State presented the testimony of Candice Nicole Stone, Defendant's ex-girlfriend and co-defendant in 18 aggravated burglary or theft convictions in 2011, for which she served 29 months' imprisonment. Ms. Stone testified that during these burglaries, the routine was for her to approach the front door and knock while Defendant stayed in the car. If someone answered the door, Ms. Stone would make up an innocuous excuse for her presence, such as she was looking for her lost dog. If no one answered the door, she would return to the car and inform Defendant. Defendant would then break into the home, usually through a side window or back door. Ms. Stone would then proceed to steal smaller items, like jewelry, while Defendant took the larger items, like televisions.
The State summarized the expected testimony of Stephanie Warner, the victim, and Ms. Cartwright, the co-defendant in this case. It was anticipated that Mrs. Warner would testify that a woman approached her house on the day in question, knocked loudly and repeatedly, and jiggled the front doorknob. Mrs. Warner chose not to answer the door because her house was in disarray. Mrs. Warner saw the woman, accompanied by a man in a blue shirt, walk around toward the back of the house. Mrs. Warner then saw her back door being beaten aggressively, causing her to become afraid for herself and her children. She retrieved a gun, raised the blinds on the back door, and confronted the woman. The woman said she was there to buy a chaise lounge. Mrs. Warner ordered the woman to leave her property.
It was anticipated that Ms. Cartwright would testify that, on the date in question, Defendant showed her a picture of a chaise lounge that he wanted to buy. The two then drove to the Warner home, where she proceeded alone to the front door. She knocked repeatedly but received no answer. She returned to the vehicle, and then both she and Defendant went to the back door. She knocked on the back door while Defendant was standing off to the side. Defendant began to pound on the door with great force, then walked away. Ms. Cartwright was then confronted by Mrs. Warner displaying a handgun.
The State anticipated that it would admit into evidence letters written by Defendant to Ms. Cartwright during their subsequent incarceration on this charge. In those letters, Defendant proclaimed his innocence, claimed that he was only at the house to pick up a couch, and indicated that he went to the rear of the house because he had to urinate. The State contended that these letters directly put Defendant's intent at issue, in addition to the fact that the crime charged was an attempt.
At the end of the hearing, the trial court ruled that there was clear and convincing evidence, with the admission of certified copies of convictions from Williamson and Rutherford Counties, that Defendant committed the prior burglaries with Ms. Stone; that the evidence was being offered to show Defendant's intent; and that the potential for unfair prejudice did not outweigh the probative value of the evidence, conditioned upon the actual proof at trial being consistent with the anticipated testimony summarized at the hearing.
On November 8, 2013, Defendant waived his right to a jury trial and proceeded to a bench trial that same day. At trial, the following proof was adduced:
Mrs. Warner testified that on May 25, 2012, she returned home with her three small children around two o'clock in the afternoon. Shortly after putting her youngest child down for a nap, Mrs. Warner looked out a window and noticed a woman approaching her front door. Initially, Mrs. Warner thought this woman was a friend. Concerned by the cluttered condition of her house, Mrs. Warner decided to pretend no one was home and instructed her oldest daughter not to answer the door.
The woman approached the door and began knocking loudly and ringing the doorbell incessantly. Mrs. Warner estimated this lasted for about two minutes. The woman was also jiggling the front doorknob and peering through the beveled glass on the door. Becoming suspicious, Mrs. Warner called her husband, who was a police officer. He instructed her to go get their gun, and she did so. She looked out of a window overlooking the driveway and saw a man wearing a bright, turquoise-blue shirt and plaid shorts walking toward the back of the house.
As Mrs. Warner approached the back door, she heard a loud banging, as if the door were being kicked or shoved hard. The door was made out of solid wood with a window in the middle. Mrs. Warner noticed that the door appeared to be buckling under the assault and that the blinds over the window portion were swaying. Mrs. Warner gave the phone to her daughter and instructed her to go hide. Mrs. Warner then opened the blinds and displayed her gun to the people outside. Mrs. Warner saw the woman at the back door and the man's turquoise-blue shirt sleeve at the edge of her line of sight. The woman screamed, "She's got a gun. She's got a gun. Put the gun up. She's got a gun." Mrs. Warner then stepped outside. Mrs. Warner became concerned because she could not see the man and did not know where he was. The woman pulled out a piece of paper and nervously said that she was there to buy a chaise lounge. Mrs. Warner ordered the two off of her property.
As the two left, Mrs. Warner wrote down the truck's license plate number. Investigation of the license plate number revealed that the truck belonged to an older man, but that Ms. Cartwright was associated with the same address as the truck's owner. Mrs. Warner found Ms. Cartwright's Facebook profile, which contained a picture of Defendant with the same bald head and wearing the same turquoise-blue shirt and plaid shorts that Mrs. Warner observed during the incident. Mrs. Warner identified both Ms. Cartwright and Defendant as the two people she had seen at her home that day. Mrs. Warner testified that neither Ms. Cartwright nor Defendant had her consent to enter her home that day.
Ms. Cartwright testified that on the morning of May 25, 2012, she dropped her daughters off at a friend's birthday party and then went to the home of Defendant, her boyfriend. Defendant showed her a picture of a chaise lounge, which he said he wanted to buy for his bedroom. Ms. Cartwright agreed to drive him to Cox Road, where, according to the address written ...