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State v. Baker

Court of Criminal Appeals of Tennessee, Nashville

July 10, 2017


          Assigned on Briefs March 14, 2017

         Appeal from the Criminal Court for Davidson County No. 2013-B-1033 Monte D. Watkins, Judge

         A Davidson County Criminal Court Jury convicted the Appellant, Virgil Lucas Baker, of aggravated burglary, a Class C felony; vandalism of property valued more than $500 but less than $1, 000, a Class E felony; and assault, a Class A misdemeanor. After a sentencing hearing, the trial court sentenced him to concurrent sentences of fifteen years; six years; and eleven months, twenty-nine days, respectively. On appeal, the Appellant contends that the trial court erred by denying his motion to suppress the victim's identifications of him and that the evidence is insufficient to support the convictions. Based upon the record and the parties' briefs, we affirm the judgments of the trial court.

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

          Emma Rae Tennent (on appeal) and Chaucey Fuller and Will Allensworth (at trial), Nashville, Tennessee, for the appellant, Virgil Lucas Baker.

          Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant Attorney General; Glenn R. Funk, District Attorney General; and Nathan McGregor, Assistant District Attorney General, for the appellee, State of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which Robert W. Wedemeyer and Camille R. McMullen, JJ., joined.



         I. Factual Background

         At trial, Cory Owen, the victim, testified that about 11:00 a.m. on Sunday, August 14, 2011, he and his eleven-year-old son were in the basement of their newly constructed home on Stone Hall Boulevard in Hermitage. The residential lots on either side of the home were vacant, and the victim's wife was at work. The victim's car was in the garage, the garage door was down, and no other cars were in the driveway.

         The victim testified that he heard "kind of like a slapping sound" on the main floor and went upstairs to investigate. As he got to the front door, he encountered the Appellant, who had come out of the master bedroom. The Appellant was wearing a t-shirt and shorts, and the victim had never seen him before that day. The Appellant hit the victim and knocked him down, and they "tussled." The victim said that he sustained numerous scratches and bruises and that his "only thought at that point was to get between [the Appellant] and his son."

         The victim testified that the Appellant ran out the front door. The victim said he thought about his son and who else could be in the house, so he went into the master bedroom, took his loaded Glock pistol out of his nightstand, and pulled back the slide to make sure a round was in the chamber. He then went to find his son and see if anyone else was in the home. As he passed the front door, he saw the Appellant in the front yard and a car parked on the street. He said that the Appellant was "fumbling and looking like he was coming back in, " so he shot at the car six to eight times to warn the Appellant to go away. Four or five bullets hit the car's back door, front door, and windshield, and the Appellant fled in the car. The victim described the car as a "four-door Honda Civic, kind of gray, silvery color."

         The victim testified that he telephoned 911 and that he went to the emergency room "to get checked out." The front door to his home had been kicked in and "the casing on the side and the trim work [had been] taken off." Nothing in the house was missing, but a jewelry box in the master bedroom was open. A pillow from the bedroom was in the hallway just outside the bedroom, and a brown cotton glove was in the hallway between the living room and the front door. The victim said that he did not remember if the Appellant was wearing gloves or dropped anything but that the glove found in the hallway did not belong to anyone in his family. The next day, the victim paid "around $1, 000" to replace the "whole interior" of the front door. He said he paid cash and did not receive a receipt. He identified photographs of his injuries, the damage to the front door, the glove and pillow, and a sliver Honda Accord with broken windows and bullet holes in the body.

         The victim testified that Detective Craig Christie showed him a six-photograph array a couple of days after the break-in but that he was unable to identify anyone. He stated that the incident was "pretty devastating" and that he was still "shook up" when he looked at the array. On September 27, Detective Christie showed him another array, and he selected the Appellant's photograph. He explained,

I remember at that point taking more time, kind of looking at my hands or isolating each picture versus being overwhelmed by a line-up and me actually having to see a line-up. I just kind of took my time, uh, and was able to pick him out, so I guess it was more of kind of a hindsight type thing. It was very easy to identify him at that point.
The [September 27] line-up I believe was a more recent picture which kind of made me realize okay, the first line-up was not, the general line-up did not look like him. I have seen the line-up now, the first and the [September 27] one and the first one, more facial hair, more hair on his head and it just did not seem like him the day that he broke in. The [September 27] line-up was a clearer picture, a more recent picture, and he looked more like the day that he had broken in.
[W]hen he broke in he had a little bit of scruff, hair was very short. The first line-up that I saw was totally opposite. He had a lot of facial hair, a lot, uh, he had hair. The [September 27] more recent picture looked more like him in the face and the eyes is kind of what I was focusing on. He had shorter hair and the less, less facial hair.

         Regarding the first array, the victim testified that he was "more rushed, " "just kind of wanted to get out of the room, " and did not take the time he should have to look at the photographs. The State asked if the victim was 100% certain about his identification of the Appellant in the September 27 array, and he said yes. At the conclusion of his testimony, he identified the Appellant in court as the intruder and said that "I know this is the guy that broke in my house."

         On cross-examination, the victim testified that he selected a photograph from the first array but told Detective Christie that "[he] felt like [he] was just trying to pick somebody at random and [he] wasn't confident in that." He stated, "At that time frame, I thought it looked similar [to the intruder], but I wasn't positive." He acknowledged that he was "dazed" by the intruder's hitting him and that he and the intruder "were busy fighting." About six weeks later, on September 27, Detective Christie showed him another six-photograph array, and he selected the Appellant's photograph. He acknowledged that the Appellant's "eyes and nose stood out" and that he was positive of his identification.

         The victim testified that he never saw the Appellant with a weapon or a glove and that the police did not collect the pillow from the hallway. Items of value were in the jewelry box, but nothing was missing. He said he shot at the getaway car to scare the Appellant, not to injure or kill him, and that he did not remember telling 911 the car was a silver Pontiac. He said that based on the placement of the bullet damage in the silver Honda Accord in the photographs, he was sure it was the getaway car. He said that the man who repaired his front door was a "friend of a friend" but that the man was a licensed contractor who did "trim work" for a living.

         On redirect examination, the State showed the first photograph array, with three black and white photographs on the top and three black and white photographs on the bottom, to the victim. The victim acknowledged that he selected the bottom left photograph, which was photograph number four. However, he told Detective Christie that "[he] was not confident at all." The Appellant's photograph was in the top right position in the first array and was photograph number three. The victim explained that the Appellant's photograph in the first array showed the Appellant with more hair on top of his head and more facial hair than was present on the day of the incident. The State then showed him the September 27 array, which also had three black and white photographs on the top and three black and white photographs on the bottom. The victim said he immediately selected the top right photograph, which was photograph number three, as the intruder. He acknowledged that the photograph was that of the Appellant and said that it looked more like the Appellant on the day of the break-in than photograph number three in the first array. He also acknowledged that photograph number one in the first array and photograph number two in the September 27 array were the exact same photographs of another man. However, he did not notice they were the same photographs when he looked at the array on September 27.

         Heather Coakley testified that she was the Appellant's fiancé and that she did not want to testify against him. On August 14, 2011, Coakley and the Appellant were "separated, " but she loaned her car to him. When the car was returned to her, bullet holes were in the body, the windows were broken, and glass was on the floorboards. Coakley's friends notified the police, and she spoke with an officer. The State showed Coakley photographs of a silver Honda Accord with broken windows and bullet holes, and she identified it as her Honda.

         On cross-examination, Coakley acknowledged that she spent time with the Appellant on the morning of August 14. He woke her about 9:30 or 10:00 a.m. and asked if she was going to sleep all day. The Appellant was acting normal and was not nervous. When Coakley saw her car later that day, it was damaged. The damage to the windshield was not caused by a bullet and appeared to have been caused by a blunt object. She stated, "And that is how the police report was written up was a ...

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