Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs March 21, 2017
from the Circuit Court for Rutherford County No. F-73257
David M. Bragg, Judge
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.
R. App. P. 3 Appeal as of Right; Judgments of the Circuit
Melton, District Public Defender, and Russell N. Perkins,
Assistant District Public Defender, for the appellant, Rocky
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.
TIMOTHY L. EASTER, JUDGE.
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.
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.
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
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.
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.
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 ...