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State v. Spurgeon

Court of Criminal Appeals of Tennessee, Knoxville

May 14, 2018

STATE OF TENNESSEE
v.
MILLARD ELLIS SPURGEON

          Assigned on Briefs December 20, 2017

          Appeal from the Circuit Court for Sevier County No. CR19269-II Richard R. Vance, Judge

         The defendant, Millard Ellis Spurgeon, appeals his Sevier County Circuit Court jury convictions of burglary, theft of property valued at $1, 000 or more, vandalism of property valued at $1, 000 or more, and possession of burglary tools, challenging the trial court's denial of his motion to suppress certain evidence and the sufficiency of the convicting evidence. Discerning no error, we affirm.

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

          Garry Lee Chin, Knoxville, Tennessee (on appeal); and William L. Wheatley, Sevierville, Tennessee (at trial), for the appellant, Millard Ellis Spurgeon.

          Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Jimmy B. Dunn, District Attorney General; and George Ioannides, Assistant District Attorney General, for the appellee, State of Tennessee.

          James Curwood Witt, Jr., J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          JAMES CURWOOD WITT, JR., JUDGE

         The Sevier County Grand Jury charged the defendant and David Way via presentment with one count each of burglary, theft of property valued at $1, 000 or more, vandalism of property valued at $1, 000 or more, and possession of burglary tools for his role in the August 19, 2012 break-in at Gatlinburg-Pittman High School.

         At the December 16, 2015 joint trial, Gatlinburg-Pittman High School principal Tony Ogle testified that at approximately 5:00 a.m. on Sunday August 19, 2012, the school's security monitoring firm notified him by telephone that an alarm had been triggered at the school. Mr. Ogle confirmed that he wanted the police dispatched to the school, and he dressed quickly and drove to the school. When he arrived, a number of officers from the Gatlinburg Police Department ("GPD") were present. Mr. Ogle entered the school with officers and reviewed the video footage from the school's security cameras. On the video, Mr. Ogle observed two perpetrators use various tools to break into the ATM, soft drink vending machines, and a change machine. The perpetrators wore dark or camouflage clothing, hoods, masks, and gloves. The shorter of the two perpetrators had a very distinctive gait. Mr. Ogle explained that the individual "display[ed] a kick of his heels where he raises the heel up to touch the back of his leg or his thigh." The perpetrators used pry bars, pliers, a tool with a forked end, and a chisel to break open the ATM. After opening the ATM, the individuals pried open the "cash cassette" or money box and pocketed its contents. They then cleaned up the area, and the taller of the two used a spray bottle to clean the floor. Mr. Ogle said that the perpetrators entered through a window in the teacher's lounge.

         Mr. Ogle said that he did not recall any officer's having collected any evidence from the school on August 19 but that the school was locked after he and the officers left the school. On the following day, a Monday, school was in session. Mr. Ogle said that he and a school janitor cleaned up debris from the floor before students arrived and made efforts to cordon off the ATM until the police could collect it.

         GPD Detective Gary McCarter responded to the high school on August 19. He reviewed the video surveillance with Mr. Ogle and observed damage to the ATM, vending machines, and change machine. He did not collect any evidence from the school that day and took no steps to preserve the scene because "[t]he school was secured. It was locked down that day because there were no kids there, so it was locked up." After leaving the school that morning, Detective McCarter went to McKinney's Market, where he told clerk Jamilla Byrd about the burglary and asked her to be on the lookout for the perpetrators. He described the clothing they wore in the video surveillance and demonstrated the peculiar gait of the shorter perpetrator. A few hours later, Ms. Byrd telephoned and told him that a man displaying such a gait had entered the market. Detective McCarter dispatched uniformed patrol officers to the market and then drove there himself.

         When Detective McCarter arrived at McKinney's Market, he found the defendant and Mr. Way being questioned by the uniformed patrol officers. After being provided with Miranda warnings, Mr. Way consented to a search of the van in which the men had been traveling. Inside the van, Detective McCarter found "a box of tools" and wet clothing that was "very similar to" the clothing worn by the perpetrators in the surveillance video, including "several pair" of gloves that were "similar to the ones that you'll see in the video. They have the white writing on them." Detective McCarter recognized among the tools he collected a "pry bar" that was the same type of tool carried by the perpetrators in the surveillance video. Detective McCarter also recognized a chisel and a "bearing puller" "that appear[ed] to be similar" to the one used to open the ATM machine. He acknowledged that he did not find masks, backpacks, or large sums of money inside the vehicle.

         Both men provided written statements detailing their whereabouts for the previous evening. The defendants told Detective McCarter that "[t]hey had been home and they were taking that vehicle to work on somebody's car or they had been working it, taking it back, something like that." Detective McCarter took the items he collected to the Gatlinburg Police Department, photographed them, and put them into his office. He did not wear gloves when collecting the tools and did not individually tag them at that time. He then telephoned Mr. Way's mother, who told the detective that ...


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