State v. Tuttle

• Decision Date: 20 July 1995
• Parties: STATE of Tennessee, Appellee, v. Robert Edward TUTTLE, Appellant.
• Court: Tennessee Court of Criminal Appeals

Page 926

914 S.W.2d 926

STATE of Tennessee, Appellee, v. Robert Edward TUTTLE, Appellant.

Court of Criminal Appeals of Tennessee,

at Nashville.

July 20, 1995.

On appeal as of right from the Judgment of the Circuit Court of Franklin County; Thomas A. Greer, Jr., Judge (Aggravated Burglary).

Philip A. Condra, District Public Defender, 12th Judicial District, Jasper, for appellant.

Charles W. Burson, Attorney General and Reporter, Kimbra Spann, Assistant Attorney General, Nashville, J. Michael Taylor, District Attorney General, and Steven M. Blount, Assistant District Attorney General, Winchester, for appellee.

OPINION

WELLES, Judge.

This is an appeal pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure. The Defendant was convicted on a jury verdict of the offense of aggravated burglary. For this Class C felony, he was sentenced as a Range II multiple offender to serve eight years in the Department of Correction. The sentence was ordered to be served consecutively to a sentence he was serving on an unrelated conviction. The Defendant appeals his conviction and the length and consecutive nature of his sentence. We affirm the judgment of the trial court.

The Defendant presents five issues for review in this appeal: (1) That the evidence presented at trial was insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt; (2) that the Defendant's rights to fundamental due process were violated because the State delayed from October 16, 1990 to May 6, 1992 in bringing formal charges against him; (3) that the trial judge erred in failing to suppress the introduction of the item taken in the burglary; (4) that the trial judge erred and denied the Defendant a fair and impartial trial by allowing the State to reopen and present additional evidence after the State had announced that it had concluded its case; and (5) that the trial court erred in ordering a mid-range, consecutive sentence for the offense.

The victim testified that on the morning of October 16, 1990, she left her home, which was located in a rural area of Franklin County, to go to Nashville. At that time, her shotgun was hanging in her living room on a gun rack. Late that afternoon, when she returned home, she found that her back door had been pried open. A crow bar was laying in her kitchen floor. Her shotgun was missing. She immediately called the Franklin County Sheriff's Department, and a deputy sheriff came to her house and made a report of the breaking and entering and the theft of the shotgun.

The victim was acquainted with the Defendant. The Defendant worked with her son and, in fact, had visited in her home on several occasions. The victim testified that the Defendant had called her on three occasions and asked her to tell the police that she gave him permission to get the gun. She said she "told him I couldn't do that because he had tore our door open." The victim also testified that the Defendant said "I took the gun for one purpose and one purpose only, but I did not get to do what I wanted to do with the gun, and if you don't get the gun back, I'll see that Vicki will buy you another gun."

The State and the Defendant next announced that they had entered into a stipulation of facts, which was read to the jury and introduced as an exhibit as follows:

(1) Police officers seized one .20 gauge single shot Harrington and Richardson shotgun at approximately 5:20 p.m. on October 16, 1990. This item has remained in the custody of the authorities since that time.

(2) Police recovered this shotgun from a vehicle registered to Vicki Lancaster who was, at that time, Robert Tuttle's girlfriend. Robert Tuttle had used Mrs. Lancaster's car on numerous occasions to go to and from work and for other purposes.

(3) Robert Tuttle was present at the residence when the shotgun was seized.

The State next called a deputy sheriff from Coffee County who testified that he questioned the Defendant concerning the stolen gun and that the Defendant told him that he had gotten the shotgun from a boy to go squirrel hunting, but that the Defendant did not know the boy's name.

At this point, the State rested its case and the transcript reflects that the following exchange took place outside the presence of the jury:

MR. CONDRA: Your Honor, basically at this time we'd move for a judgment of acquittal on the indicted charge on the grounds that the State has not made out the essential element of any intent to commit a theft.

THE COURT: Well, let me ask Mr. Blount. The only evidence in this record of the Defendant's use of this vehicle is contained in this stipulation.

GENERAL BLOUNT: Judge, the stipulation contains that he had used the vehicle--

THE COURT: It didn't say when.

GENERAL BLOUNT: Sir?

THE COURT: It didn't say when. Absolutely no proof of when he was in possession of the vehicle.

GENERAL BLOUNT: Obviously--

THE COURT: And you're depending upon recent possession, the inference of recent possession.

GENERAL BLOUNT: Judge, if you will allow us, we can tell you details about that.

THE COURT: Don't tell me, I have to go by the evidence that's in this record.

GENERAL BLOUNT: I understand. Judge, number 3 says Mr. Tuttle was present at the residence when the shotgun was seized. The guns were seized from the vehicle. He was there when the vehicle--plus the stipulation that he had used this on numerous occasions.

THE COURT: Is the State prepared to rely on this stipulation to show the possession of the shotgun in the defendant?

The Court will take a five minute break.

GENERAL BLOUNT: Can I ask the Court a question before the Court takes a break?

THE COURT: If I can answer it.

GENERAL BLOUNT: If you'll allow us to go back on the record, we'll call another witness, Judge.

THE COURT: If you're asking to re-open, the Court will permit it.

GENERAL BLOUNT: I'd like that permission.

THE COURT: Then the motion would be premature and Mr. Condra could renew his motion.

GENERAL BLOUNT: And if the Court wants an explanation why we-- THE COURT: You don't have to make any explanation. If you want to re-open you may do so.

GENERAL BLOUNT: Yes, sir.

MR. CONDRA: Note our objections to his re-opening.

THE COURT: Yes, sir, overrule the objection.

Thereafter, the State called an additional Coffee County deputy sheriff who testified that he was investigating a separate crime and interviewed the Defendant at his place of employment on October 15, 1990. At that time, the Defendant was driving a 1982 Pontiac Bonneville registered to Vicki Lancaster, who was the Defendant's girlfriend. He stated that the next day, October 16, 1990, that he, other officers, and Vicki Lancaster went to the home of a friend of Ms. Lancaster's where Ms. Lancaster's 1982 Pontiac Bonneville was parked. The Defendant was in the residence. The stolen shotgun was laying across the front seat of Ms. Lancaster's automobile.

At this time, the State again rested its case. The defense offered no proof. The jury returned a verdict of guilty of aggravated burglary.

The Defendant first argues that his fundamental due process rights were violated by the delay in bringing charges against him. At the time this burglary was committed, the Defendant was a prime suspect in a homicide case in Coffee County. The burglary in Franklin County took place on October 16, 1990. On that same date, primarily as a result of the homicide investigation, the stolen shotgun was found in the automobile which the Defendant possessed at that time. The homicide in Coffee County had occurred some ten days prior to the burglary.

Although no evidence was presented directly on this point, the Defendant was apparently charged with first degree murder in Coffee County. This charge led to a conviction on a jury verdict of voluntary manslaughter on about April 23, 1992. Shortly thereafter, the District Attorney for Coffee County apparently asked the District Attorney for Franklin County to prosecute the Defendant for the burglary in Franklin County. The burglary indictment is dated May 6, 1992. The Defendant argues that because the Coffee County District Attorney did not bring this matter to the attention of the Franklin County District Attorney and request the prosecution until after he obtained a disappointing result in the homicide case, that this burglary charge was intentionally delayed in order to have a "fallback position" and that, therefore, this was a willful delay and violated the Defendant's rights to due process of law.

We conclude that the Defendant's argument has no merit. First of all, there is nothing in this record to in any way indicate that the homicide in Coffee County was connected to or related to the burglary in the case sub judice in Franklin County. Secondly, the two crimes took place in separate counties and in separate judicial districts. Certainly, Rule 8 of the Tennessee Rules of Criminal Procedure concerning joinder of offenses is inapplicable.

In order for the Defendant to establish a violation of his due process rights caused by a delay of presenting charges against him, the evidence must show three things: (1) That there was a delay; (2) that the Defendant was prejudiced by the delay; and (3) that the State intentionally delayed the prosecution in order to gain a tactical advantage. State v. Paul Ray Jones, No. 01-C-01-9212-CR-00384, Davidson County, slip. op. at 3 (Tenn.Crim.App., Nashville, filed Sept. 9, 1993) (citing United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971)); State v. Dykes, 803 S.W.2d 250 (Tenn.Crim.App.), perm. to appeal denied, id. (Tenn.1990); State v. Baker, 614 S.W.2d 352 (Tenn.1981).

In the case sub judice, there was a delay of some nineteen months. However, the evidence does not show that the Defendant was in any way prejudiced or that the State intentionally delayed the prosecution in order to gain a tactical advantage. These crimes were unrelated and occurred in separate counties in separate...