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State v. Burton

Court of Criminal Appeals of Tennessee, Nashville

June 27, 2017


          Assigned on Briefs March 21, 2017

         Appeal from the Circuit Court for Rutherford County No. F-73257 David M. Bragg, Judge

         Defendant, Rocky Burton, was convicted by a Rutherford County Jury of felony vandalism, assault, disorderly conduct, and public intoxication after an incident involving his neighbor. He appeals, arguing that the trial court erred by allowing the State to use prior convictions to impeach him and that the State's closing argument was improper. Because Defendant opened the door to impeachment by his own testimony and the State did not engage in improper closing argument, we affirm the judgments of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

          Gerald Melton, District Public Defender, and Russell N. Perkins, Assistant District Public Defender, for the appellant, Rocky Burton.

          Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior Counsel; Jennings H. Jones, District Attorney General; and Shawn Puckett, Assistant District Attorney General, for the appellee, State of Tennessee.

          Timothy L. Easter, J., delivered the opinion of the court, in which John Everett Williams and J. Ross Dyer, JJ., joined.



         Defendant lived in the house next door to Kyle Thomas in Smyrna, Tennessee. Defendant's house was separated from Mr. Thomas's house by two driveways and a row of ten-foot-tall bushes. The bushes blocked the view of Defendant's house from the house that Mr. Thomas lived in with his mother and younger brother. Mr. Thomas and Defendant kept to themselves and were not friends.

         On the morning of June 6, 2014, Mr. Thomas got up around 6:00 a.m. to go to his job as an industrial maintenance technician where he was responsible for "[f]ixing heavy machinery in warehouses, picking up the presses, [and] injecting oil in machines." He "got in his truck, started it up, started backing up" and through his "side mirror" saw Defendant standing on his property. Defendant did not have permission to be on the property and could only get there by walking "through the bushes, " "forc[ing] his way through them, " or walking all the way down to the street and around the bushes into Mr. Thomas's yard. Defendant was "cussing, hooting, and hollering." Mr. Thomas did not say anything to Defendant and was "minding" his own business while Defendant kept "hollering" and "being obnoxious, " basically saying "every word in the book." As Mr. Thomas backed his truck into the street, he noticed that Defendant had a beer bottle in his hand. Defendant threw the bottle, hitting the side of Mr. Thomas's truck "between the cab and the door, " causing visible damage. Mr. Thomas was "fearful for his life" because of Defendant's actions.

         By this time, Mr. Thomas's mother, Christie, had come outside to see what all the commotion was about. At the time of the incident, she was a corrections officer at the Riverbend Maximum Security Prison in Nashville. Ms. Thomas had been getting ready for work when she heard her son start his truck. She "looked out the window" in time to see Defendant "hollering" at Mr. Thomas, though she could not hear what he was saying while she was inside the house. She went outside and could hear Defendant "hollering." She told Defendant to leave her son alone and told her son to leave for work and "that's when [Mr. Thomas] said, [']no, he threw his beer bottle at my truck.[']" Defendant told Ms. Thomas, "Fuck you, I'll kill you and your family." Ms. Thomas called the police; Defendant went back inside his house.

         When the police arrived, they asked both Mr. Thomas and his mother to fill out a statement. Defendant walked to the end of the driveway and continued to use "curse words" and "threatened to kill [Mr. Thomas] and [his] mom, [his] little brother, things in that nature, he kept going on about it." Defendant was standing about five feet away from Mr. Thomas when he made the threats, and Mr. Thomas "could smell the alcohol on his breath" even though he never actually saw Defendant drinking.

         Officer Toni Harris of the Smyrna Police Department described Defendant as "very agitated" when she arrived on the scene. As she was talking to Mr. Thomas and "gathering information, " Defendant "began approaching us on the sidewalk coming from his house to the Thomas property." He was using "expletives" and "alleging that they had threatened him for far too long, and that it was his house as well." Officer Harris did not think Defendant was making sense and explained to Defendant that Mr. Thomas was merely backing out of his driveway. Defendant informed the officer that he did not "give a fuck." Officer Harris recalled that Defendant was unable to verbalize to the officers anything specific that his neighbors had done to cause him to react in this manner. When she placed Defendant in handcuffs, he looked directly at Mr. Thomas and threatened to kill him, "cursing significantly." Officer Harris stated Defendant smelled like alcohol.

         At trial, the video and audio of the dash camera from Officer Harris's patrol car was entered as an exhibit. While not much is visible from the video because of the direction in which the patrol car was pointed, the audio is clear. At several points during the audio clip, the voice identified as Defendant curses and threatens both Mr. and Ms. Thomas. Defendant was placed under arrest. When Defendant ...

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