State v. Kiser
| Decision Date | 06 June 2019 |
| Docket Number | No. E2018-00696-CCA-R3-CD,E2018-00696-CCA-R3-CD |
| Parties | STATE OF TENNESSEE v. JUSTIN PATRICK KISER |
| Court | Tennessee Court of Criminal Appeals |
Appeal from the Criminal Court for Knox County
The defendant, Justin Patrick Kiser, appeals his Knox County Criminal Court jury convictions of facilitation of aggravated burglary and theft of property valued at $500 or less, arguing that the trial court erred by permitting the State's fingerprint expert to testify that another examiner had verified his conclusions; by admitting into evidence a document showing the work performed by the second, non-testifying analyst; and by denying his motion for a mistrial after the prosecutor relied on the verification of the non-testifying analyst during closing argument. He also claims that the evidence was insufficient to support his conviction of facilitation of aggravated burglary because the State failed to establish that he did not intend to promote or assist in the burglary or to benefit from its proceeds and that the trial court erred by denying his bid for judicial diversion. Discerning no reversible error, we affirm the judgments of the trial court.
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY THOMAS, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.
Mark E. Stephens, District Public Defender; and Jonathan Harwell (on appeal) and Melissa Dirado (at trial), Assistant District Public Defenders, for the appellant, Justin Patrick Kiser.
Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant Attorney General; Charme P. Allen, District Attorney General; and Randall Kilby, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINIONThe Knox County Grand Jury charged the defendant with aggravated burglary and theft of property valued at $1,000 or more but less than $10,000 in relation to the burglary of and theft of items from the home of Phillip Crye on May 29, 2014.
At the June 2016 trial, Mr. Crye testified that his wife telephoned him on the day of the offense to let him know "that there had been a break-in at" their Knoxville residence. When he arrived home shortly thereafter, he saw that "the kitchen window had been broken open, and someone or some persons had come in through the kitchen window from a patio area into the kitchen and rummaged and rifled around through the house and took various items." He said that the perpetrator or perpetrators "had put a utility bar from the outside underneath the bottom sash and pried [the window] open which broke the lock off the sash." The perpetrator left through the back door.
Mr. Crye determined that three shotguns, jewelry that had belonged to his mother, a Bose CD/radio, a bag of foreign currency, a souvenir whiskey flask, his grandfather's pocket watch, and a Nook electronic reader had been taken during the burglary. He also noticed that a partially full box of wine and three or four beers had been taken from the refrigerator. Mr. Crye estimated the total value of the property taken to be $4,000.
Mr. Crye recalled that, during the initial investigation, he and the investigating officer saw handprints on the window that had been used as the point of entry. While the evidence technician lifted prints from the window, Mr. Crye "looked around some more, and to the end of the patio out from the kitchen window," he observed "a path beat down in some ivy where" it appeared that someone had entered his lot "from the back area of the Sharp house next door." Mr. Crye said that he thought he might have seen the defendant in the company of the Sharp's oldest son before the burglary and that he had definitely seen the defendant at the Sharp residence following the burglary. Mr. Crye said that he did not give the defendant or any other person permission to enter the house and take the items.
On the day after the burglary, Mr. Crye's wife telephoned Barnes and Noble to report that the Nook had been stolen. She telephoned the company again two days later and asked whether the device could be tracked. After that conversation, Mrs. Crye told Mr. Crye "that it had been registered on Friday, the day after the break-in, to some person named Justin in Knoxville" after an unsuccessful attempt to register it on the Thursday evening of the burglary.
During cross-examination, Mr. Crye said that he did not know the Sharp children well, and his only direct interaction with them had occurred approximately two weeks before the burglary when he helped the youngest boy catch his wayward puppy. Mr. Crye admitted that he told the police that he suspected that the Sharp boys had committed the offense, noting "the evidence [he] saw on the ground that went directly to the back of their house." He said that it was his understanding that the police had attempted to speak to the Sharps or their mother "but that she or they were not very cooperative."
Beth Goodman, who had previously worked as an evidence technician for the Knoxville Police Department ("KPD"), testified that she attempted to collect prints from the point of entry in the kitchen, in the bedrooms, and in a bathroom. Ms. Goodman "recovered latent prints from the exterior kitchen window, and there were no useable latent prints inside." She recovered a total of three usable palm prints from the exterior "bottom part of the window" and submitted those to the KPD fingerprint examiner.
KPD Investigator David Ogle, who investigated the burglary of the victim's home, testified that "it was pretty obvious that someone had at some point walked back and forth through the . . . decorative ivy right close to the point of entry." He said that the path through the ivy led directly from the victim's house to "the adjacent house where two young boys lived." Investigator Ogle obtained information about the Nook from the Cryes and then contacted Barnes and Noble. He learned that the defendant had registered the Nook using his own name, address, and bank card information. Investigator Ogle went to the defendant's residence and "asked him if he had possession of a Nook." The defendant admitted that he had the device and immediately turned it over to Investigator Ogle. Investigator Ogle confirmed that the device given to him by the defendant had the same serial number as the device taken from the Crye residence.
The defendant initially told Investigator Ogle "that he had found it on Craigslist and had met two individuals that were driving a small SUV in the Walmart parking lot of Halls and had paid $60 for the item." Investigator Ogle said that, based upon this information, he did not initially consider the defendant a suspect in the burglary. Investigator Ogle contacted the defendant again a few days later to come into the station to look at a photographic array. He said that, at that point, he believed that the Sharp boys had committed the burglary, and he wanted to see if the defendant would identify any of them as the person from whom he had purchased the Nook. Upon viewing two separate arrays, the defendant identified an individual named Lucas Kiley and the younger Sharp boy, Graham Sharp, as the individuals who sold the Nook to him.
After making the identifications, the defendant admitted that he had lied in his first statement to the police and apologized to Investigator Ogle. At that point, thedefendant prepared a written statement wherein he stated that he had purchased the Nook for $60 from "Lucas and Graham" and that he did not know it was stolen. The defendant said that he called Mr. Kiley and Graham Sharp after the police confiscated the Nook and that Mr. Kiley had told the defendant "that he had a gun and not to say anything." The defendant insisted that he lied in his original statement because he feared for his life.
Investigator Ogle testified that he still did not suspect the defendant and asked him to provide palm prints "so we could exclude him." The defendant agreed. After he received the report from the fingerprint examiner, Investigator Ogle attempted to contact the defendant several times, but the defendant did not answer his telephone and did not return Investigator Ogle's calls. During that time, Investigator Ogle also spoke with Ms. Sharp, who agreed to bring her sons in for questioning. When she did not arrive as scheduled for the interview, Investigator Ogle called her again, and she told him that "she was unable to get her sons to come to the police department, and that she couldn't do anything about it." When Investigator Ogle went to the Sharp residence in an attempt to speak to the boys, no one would answer the door.
During cross-examination, Investigator Ogle testified that shortly after the burglary, the victim sent him an email that contained the first and last names as well as the dates of birth and social security numbers for the Sharp boys. When asked whether he had told the defendant that a neighbor had identified him as having been at the Sharp residence, Investigator Ogle replied, "I said that someone had seen a red-headed boy at the Crye house, yes." He explained that it was his recollection that the victim had told him "that there had been a red-headed, orange-colored haired boy there at the house" and "that the next door neighbor had told [him] the same thing, that she'd seen [an] orange-haired boy there at the house, but nobody could identify him."
Certified fingerprint examiner Tim Schade testified as an expert in the area of fingerprint examination. Investigator Schade, a member of the KPD Forensics Unit, testified that he utilized a methodology called ACE-V, which stands for "analysis, comparison, evaluation, and verification," to make identifications in this case. In this case, Investigator Schade manually compared the palm prints collected by Ms. Goodman with the known palm prints obtained from the defendant on July 24, 2014, and he "was...
To continue reading
Request your trial