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State v. Curll

Court of Criminal Appeals of Tennessee, Nashville

June 26, 2018

STATE OF TENNESSEE
v.
FREDERICK D. CURLL

          Session December 12, 2017

          Appeal from the Circuit Court for Williamson County No. II-CR-068067 Deanna B. Johnson, Judge

         A Williamson County Circuit Court Jury convicted the Appellant, Frederick D. Curll, of aggravated cruelty to an animal, a Class E felony, and the trial court sentenced him as a Range II, multiple offender to four years in confinement. On appeal, the Appellant contends that the trial court erred in its jury instruction of "sadism," that the evidence is insufficient to support the conviction, and that he received the ineffective assistance of counsel because trial counsel failed to call a veterinary expert to testify on his behalf and failed to file a motion to suppress the officer's search of his back yard and seizure of the animal's body without a warrant. Based upon the oral arguments, the record, and the parties' briefs, we affirm the judgment of the trial court.

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

          Drew Justice, Murfreesboro, Tennessee, for the appellant, Frederick D. Curll.

          Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant Attorney General; Kim R. Helper, District Attorney General; and Tammy Rettig, Assistant District Attorney General, for the appellee, State of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which Camille R. McMullen, J., and Frank G. Clement, Jr., Special Judge, joined.

          OPINION

          NORMA MCGEE OGLE, JUDGE

         I. Factual Background

         At trial, Officer Scott Franklin of the Williamson County Animal Control Department testified that on February 16, 2014, he responded to a complaint of a deceased dog in the back yard of a home on Walnut Drive in Franklin. When he arrived, Officer Franklin could not see into the back yard from the road, so he "made contact with a juvenile" at the home. An adult was not present, so Officer Franklin obtained the name and telephone number for the juvenile's mother, LaTonya Curll. Officer Franklin left the home and tried telephoning Mrs. Curll. She did not answer, so Officer Franklin left her a voicemail. Officer Franklin testified that he later returned to the home and talked with Mrs. Curll. He stated:

I just let her know why I was there; what the complaint was. And she informed me that she had left to go get a shovel to take care of it. And I asked her if we could go look at what was going on. And she led me to the back yard.

         Officer Franklin said that he and Mrs. Curll "walked back there," that he saw a dog "chained" to a tree, and that the dog appeared to be deceased. He also saw a doghouse in two pieces, a metal food pan, and a metal water pan. Both of the pans were empty and dry, and very little feces was in the area "for an outside dog." Officer Franklin described the dog as a medium- to large-size dog and said that it looked like a Rottweiler or Rottweiler mix, which was usually "a toned, solid dog." However, the deceased dog "appeared emaciated," and Officer Franklin could see the dog's ribs and hip bones. He said that the dog was "very, very thin" and that he suspected the dog had been neglected.

         Officer Franklin testified that another Rottweiler was in the back yard and was "secured to the left hand side of the residence where it could come and go off a side porch maybe." The second dog's body was in "great" condition, and Mrs. Curll told him the dog belonged to her. Officer Franklin collected the deceased dog as evidence and transported it to Animal Control.

         Officer Franklin testified that on March 4, 2014, he talked with the Appellant, who was Mrs. Curll's husband, about the deceased dog. The Appellant told Officer Franklin the dog belonged to Darius Lee. Lee did not live with the Curlls but was supposed to come to their house at least one day per week to "tend to" the dog. Officer Franklin asked the Appellant "about the other six day[s]." The Appellant did not give him a definitive answer and "wanted to talk about how the dog used to get loose and roam at large and that the Franklin Police Department had to bring it back to his residence at least once." The Appellant told Officer Franklin that he told Lee to come and get the dog but that Lee never did so.

         On cross-examination, Officer Franklin testified that he later spoke with Darius Lee. Lee said that he owned the dog but that he was keeping it at the Appellant's house with the Appellant's consent. Lee last saw the dog on February 5 or 6, 2014, and the dog "looked fine" at that time. Officer Franklin wrote in his report that "[Lee] stated that [the Appellant] had asked [Lee] to come and get the dog because it was getting loose and roaming, with the Franklin Police Department actually bringing it back a couple of times." Defense counsel asked Officer Franklin why he did not charge Lee with a crime, and Officer Franklin answered, "He did tell me the dog was his, but he also told me that it was being kept at Mr. Curll's house, who agreed to tend to it, with a kickback once in a while -- like he would give Mr. Curll some money since the dog was there." Officer Franklin acknowledged that while he thought the dog was neglected, he did not have any veterinary training. Upon being questioned by the trial court, Officer Franklin testified that Lee's dog was at the Curll home for several months.

         Officer Dwayne Burress of the Franklin Police Department (FPD) testified that sometime before the dog died, he responded to a call on Oak Drive regarding a hamster that had been killed by a dog. Officer Burress spoke with the complainant, who "pointed the dog out." The dog, which Officer Burress described as "a pretty large Rottweiler," was in the Appellant's back yard. Officer Burress knocked on the Appellant's door, and the Appellant answered. Officer Burress informed the Appellant that one of his dogs "got off the chain and killed the neighbor's pet." Officer Burress suggested that the Appellant buy the neighbor another hamster, and the Appellant "agreed that that would be the right thing to do."

         Officer Burress testified that about one week later, he saw the same dog walking on Sycamore. He opened the back door of his patrol car and told the dog to jump in, which it did. Officer Burress drove the dog to the Appellant's house and told the Appellant that he needed to re-chain the dog. The Appellant told Officer Burress that the dog did not belong to him and told Officer Burress to "take it somewhere." Officer Burress advised the Appellant that he could not transport a dog in the back of his patrol car and that he did not have anywhere to take the dog. The officer also told the Appellant that "since it was chained at his house he'd need to put it back on the chain."

         On cross-examination, Officer Burress testified that Animal Control could have taken the dog but that it was against FPD policy and procedure to transport an animal. He acknowledged that the dog was in good condition when he saw it.

         Dr. Robin Haines, a veterinary diagnostician for the Tennessee Department of Agriculture's Kord Diagnostic Laboratory, testified as an expert in veterinary pathology that she performed an autopsy on the dog. She said that the dog was a Rottweiler or Rottweiler mix and that she could "clearly see all of the ribs through the skin." The dog's hip bones were "prominent," and the dog had "very little if [any] fat on it." Dr. Haines stated that she assessed the dog's condition by giving it a body condition score. She explained that a body condition score was measured on a scale of one to five with a very obese animal having a score of five, a normal animal with normal muscle mass and amounts of fat having a score of three, and an emaciated animal having a score of one. The dog in this case had a body condition score of one, which was "based on the prominence of the bones externally and the absence of any fat within the dog." Given that the dog showed no other signs of illness, "this body condition [was] not compatible with life."

         Dr. Haines testified that when she examined the dog internally, she found "serous atrophy of fat," meaning that "the fat that had been [in the body] has been reabsorbed by the body and there [was] nothing left." She said that the areas around an animal's heart, kidneys, and intestines were some of the last places from which fat would be absorbed before the animal died of starvation and that she found no fat in any of those locations in the deceased dog. A brown fluid and a very fibrous material similar to mulch or bark was in the dog's digestive system. She stated, "And so this is something that we often see in animals that are -- that are starved, that don't have any food available, that they will eat anything within their environment." Dr. Haines found three heartworms in the dog's heart. However, the worms did not affect the dog's heart or lungs and did not cause the dog's emaciation. Dr. Haines also did not find any parasites in the dog's feces or any disease within the dog's tissues that explained the dog's emaciation. She said the dog's only cause of death was extreme weight loss due to starvation. She stated that if the dog was in very good condition initially and then was deprived of food completely, it would have taken weeks or months for the dog to have ended up in its emaciated condition.

         On cross-examination, Dr. Haines acknowledged that she diagnosed the dog with emaciation and heartworms. Each of the three heartworms measured eight to ten centimeters in length, and Dr. Haines acknowledged that heartworms could be fatal. She stated that if the dog was in good condition with a body score of three on February 5 or 6, 2014, then the dog could not have had a body condition score of one just ten days later.

         Carole Gray, the Williamson County Circuit Court Deputy Clerk, testified that the Appellant's trial originally was scheduled for February 4, 2015. Darius Lee was subpoenaed for trial but was not served with the subpoena because he could not be located. The Appellant's trial was rescheduled due to the inability to locate Lee, and another subpoena was issued. However, Lee still could not be located. At the conclusion of Gray's testimony, the State rested its case.

         The defense recalled Officer Franklin. He acknowledged that according to Darius Lee, Lee last saw the dog on February 5 or 6, 2014, and that the dog looked fine at that time. On cross-examination, Officer Franklin acknowledged that he was unable to confirm Lee saw the dog on February 5 or 6.

         LaTonya Curll testified that she and the Appellant had been married for nine years and had three children. At some point, Darius Lee brought his dog to the Curll home. Mrs. Curll said that she and the Appellant agreed to take care of the dog "under certain circumstances, that the dog could stay in our yard, yes." However, Lee was "supposed to come by at least once a week to check on the dog" and was supposed to provide the Curlls with money or food to feed the dog. Mrs. Curll said that she was the only employed person in her household and that money was "tight."

         Mrs. Curll testified that Lee tried to "keep up" with the agreement but that he "slacked off" in December 2013. In January 2014, the Appellant repeatedly told Lee to come and get the dog. Lee came to the house about one week before the dog died and was supposed to take it with him, but he did not take the dog. The dog died on Sunday, February 16, 2014. Mrs. Curll said that the police had brought the dog back to her house at least twice before it died. The dog was not vicious but had "snapped at" Mrs. Curll, and Mrs. Curll was "timid" around the dog. She said that she also was charged with a crime in this case and that she pled guilty.

         On cross-examination, Mrs. Curll acknowledged having a prior conviction for theft. She also acknowledged giving a statement in this case in which she said Lee brought his dog to her home in August 2013. She said that she was wrong and that Lee actually brought the dog to her house in November 2013.

         Mrs. Curll acknowledged that Lee was supposed to take care of the dog but that he did not even live in Franklin. She also acknowledged that while the dog was at her home, it was in the care of her and the Appellant. She said that the second dog was the "family dog," and she acknowledged that her dog was well-cared-for. She said that she provided food to both dogs, and she could not explain why Lee's dog was emaciated. She acknowledged that she and the Appellant were in possession of Lee's dog but said that they could not make any decisions about the dog because it did not belong to them. She said she and the Appellant were "like a babysitter" for the dog.

         Officer Burress was recalled by the Appellant and testified that when he went to the Curll home in response to the dead hamster call, the dog "had already been placed back on its chain" in the Appellant's back yard. The dog was in good condition. The dog was not aggressive, and Officer Burress petted and played with the dog. He said he thought he went to the Curll home in December 2014 but that he may have gone there in December 2013.

         The Appellant testified that he was forty years old, an Army veteran who served in Iraq and Korea, and a Judge Advocate with the American Legion. He said he suffered from post-traumatic stress disorder, had poor circulation in his hands and feet, and could not sleep. At the time of trial, the ...


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