                                                                                         06/27/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs March 21, 2017

                 STATE OF TENNESSEE v. ROCKY BURTON

                Appeal from the Circuit Court for Rutherford County
                         No. F-73257 David M. Bragg, Judge
                     ___________________________________

                           No. M2016-00754-CCA-R3-CD
                       ___________________________________


Defendant, Rocky Burton, was convicted by a Rutherford County Jury of felony
vandalism, assault, disorderly conduct, and public intoxication after an incident involving
his neighbor. He appeals, arguing that the trial court erred by allowing the State to use
prior convictions to impeach him and that the State’s closing argument was improper.
Because Defendant opened the door to impeachment by his own testimony and the State
did not engage in improper closing argument, we affirm the judgments of the trial court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and J. ROSS DYER, JJ., joined.

Gerald Melton, District Public Defender, and Russell N. Perkins, Assistant District Public
Defender, for the appellant, Rocky Burton.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; Jennings H. Jones, District Attorney General; and Shawn Puckett, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

       Defendant lived in the house next door to Kyle Thomas in Smyrna, Tennessee.
Defendant’s house was separated from Mr. Thomas’s house by two driveways and a row
of ten-foot-tall bushes. The bushes blocked the view of Defendant’s house from the
house that Mr. Thomas lived in with his mother and younger brother. Mr. Thomas and
Defendant kept to themselves and were not friends.
       On the morning of June 6, 2014, Mr. Thomas got up around 6:00 a.m. to go to his
job as an industrial maintenance technician where he was responsible for “[f]ixing heavy
machinery in warehouses, picking up the presses, [and] injecting oil in machines.” He
“got in his truck, started it up, started backing up” and through his “side mirror” saw
Defendant standing on his property. Defendant did not have permission to be on the
property and could only get there by walking “through the bushes,” “forc[ing] his way
through them,” or walking all the way down to the street and around the bushes into Mr.
Thomas’s yard. Defendant was “cussing, hooting, and hollering.” Mr. Thomas did not
say anything to Defendant and was “minding” his own business while Defendant kept
“hollering” and “being obnoxious,” basically saying “every word in the book.” As Mr.
Thomas backed his truck into the street, he noticed that Defendant had a beer bottle in his
hand. Defendant threw the bottle, hitting the side of Mr. Thomas’s truck “between the
cab and the door,” causing visible damage. Mr. Thomas was “fearful for his life”
because of Defendant’s actions.

       By this time, Mr. Thomas’s mother, Christie, had come outside to see what all the
commotion was about. At the time of the incident, she was a corrections officer at the
Riverbend Maximum Security Prison in Nashville. Ms. Thomas had been getting ready
for work when she heard her son start his truck. She “looked out the window” in time to
see Defendant “hollering” at Mr. Thomas, though she could not hear what he was saying
while she was inside the house. She went outside and could hear Defendant “hollering.”
She told Defendant to leave her son alone and told her son to leave for work and “that’s
when [Mr. Thomas] said, [‘]no, he threw his beer bottle at my truck.[’]” Defendant told
Ms. Thomas, “Fuck you, I’ll kill you and your family.” Ms. Thomas called the police;
Defendant went back inside his house.

       When the police arrived, they asked both Mr. Thomas and his mother to fill out a
statement. Defendant walked to the end of the driveway and continued to use “curse
words” and “threatened to kill [Mr. Thomas] and [his] mom, [his] little brother, things in
that nature, he kept going on about it.” Defendant was standing about five feet away
from Mr. Thomas when he made the threats, and Mr. Thomas “could smell the alcohol on
his breath” even though he never actually saw Defendant drinking.

       Officer Toni Harris of the Smyrna Police Department described Defendant as
“very agitated” when she arrived on the scene. As she was talking to Mr. Thomas and
“gathering information,” Defendant “began approaching us on the sidewalk coming from
his house to the Thomas property.” He was using “expletives” and “alleging that they
had threatened him for far too long, and that it was his house as well.” Officer Harris did
not think Defendant was making sense and explained to Defendant that Mr. Thomas was
merely backing out of his driveway. Defendant informed the officer that he did not “give
a fuck.” Officer Harris recalled that Defendant was unable to verbalize to the officers
anything specific that his neighbors had done to cause him to react in this manner. When
                                           -2-
she placed Defendant in handcuffs, he looked directly at Mr. Thomas and threatened to
kill him, “cursing significantly.” Officer Harris stated Defendant smelled like alcohol.

       At trial, the video and audio of the dash camera from Officer Harris’s patrol car
was entered as an exhibit. While not much is visible from the video because of the
direction in which the patrol car was pointed, the audio is clear. At several points during
the audio clip, the voice identified as Defendant curses and threatens both Mr. and Ms.
Thomas. Defendant was placed under arrest. When Defendant arrived at the jail, he
informed the officers that he was a paranoid schizophrenic and was not taking his
medication.

       Prior to Defendant’s testimony, counsel for the State informed the trial court that
there was a pretrial impeachment notice1 filed but that the “lengthy” prior record
contained crimes that “are all older than 10 years” so the State would not ask Defendant
about the convictions unless he “opened the door.”

       Defendant testified at trial that he woke up about 5:00 a.m. on the morning of the
incident and drank two beers. He explained that there was “no law against drinking a
beer.” He saw Mr. Thomas back out of the driveway. Mr. Thomas “flipped” him off and
it made him “mad” so he walked out into his own driveway and “throwed [sic] a beer
bottle at his truck,” and “cussed him out.” Defendant explained that his “rage” and
“animosity” had been “boiling up inside [him] for quite some[ ]time,” and on this
particular day, he “blew up like a volcano.” When he threw the bottle at the truck, he
wanted to let Mr. Thomas know that he “had about enough” and that they could “settle it
in the street.” Defendant admitted that he “threatened to kill [Mr. Thomas], not the
family” and claimed that he was “provoked” by Mr. Thomas’s prior threats to “blow [his]
head off.”

        Defendant testified that he was a paranoid schizophrenic and that he quit taking
his medication because “it wasn’t working.” Defendant also testified that he was “a law[-
]abiding citizen. You know, I mind my own business. I help people in need, you know.
I give to charities.” Defendant went on to say that he was “not a violent man.”

        Counsel for the State asked for a conference during which he informed the trial
court that Defendant had “opened the door” to impeachment with the prior convictions.
The trial court found that Defendant “voluntarily, without any urging from Counsel, he
attempted to portray himself as a law[-]abiding citizen, and also stated he wasn’t a violent
man. I believe he’s opened the door for impeachment in those areas on redirect.” The
trial court further stated, “You can attempt to rehabilitate him if you want to. But I think


       1
           The pretrial impeachment notice does not appear in the record on appeal.
                                                   -3-
he opened the door to allow the State to ask him about his prior law[-]abiding or non-
violent behavior.”

        Counsel for the State then cross-examined Defendant about his prior convictions
for grand larceny, possession of marijuana, larceny, and malicious shooting. Defendant
claimed that the State was “try[ing] to make [him] look like John Dillinger2 or a villain,”
but he did not deny that he had prior convictions. For the most part, Defendant attempted
to justify his prior illegal acts by blaming them on either someone else or necessity. For
example, Defendant admitted that he sold marijuana because he “didn’t have a job” but
explained that he only “sold a little ounce here, a little ounce there to help pay [his] bills”
and “take care of [his] kids” so that they could wear “50 dollar tennis shoes, 20 [dollar]
pants, . . . and a 100 dollar leather jacket.” Defendant admitted that he was found guilty
of malicious shooting but claimed that it was only because there were “these guys
breaking in houses,” and he tried to “run them off” and “somebody got shot.”

       Counsel for the State referenced several of Defendant’s prior convictions and his
claim of being non-violent during closing argument. Counsel for Defendant objected to
the argument as improper, but the trial court overruled the objection.

       At the conclusion of the proof, the jury found Defendant guilty as charged of
felony vandalism, assault, disorderly conduct, and public intoxication. After a sentencing
hearing, the trial court sentenced Defendant to an effective sentence of four years as a
Range II, multiple offender. Defendant filed a motion for new trial in which he
challenged the use of his prior convictions for impeachment and the State’s closing
argument, among other things. The trial court denied the motion and Defendant filed a
timely notice of appeal.

                                               Analysis

                              Impeachment with Prior Convictions

        On appeal, Defendant challenges the trial court’s ruling to allow his prior
convictions to be used for impeachment purposes. Specifically, Defendant argues that
the trial court did not make the requisite finding of the evidence’s prejudicial versus
probative value “pursuant to Rule 609 of the Tennessee Rules of Evidence,” and as a
result, he did not get a fair trial. The State, on the other hand, insists that Defendant
waived the challenge under Rule 609 for failing to reference the rule at trial or in his


        2
          John Dillinger was a notorious Depression-era thief who robbed banks and police arsenals in the
Midwest during the 1930s. He and his gang were responsible for killing ten men and wounding seven
others, including killing a sheriff and wounding two guards. Federal Bureau of Investigation, Famous
Cases, https://www.fbi.gov/history/famous-cases/john-dillinger (last visited June 6, 2017).
                                                  -4-
motion for new trial. The State also argues that the trial court properly allowed the State
to use the prior convictions for impeachment purposes.

       Ordinarily, a defendant’s prior convictions may be used to impeach that defendant
if the convictions meet the criteria established by Tennessee Rule of Evidence 609.
According to this rule, prior adult convictions may be used to impeach a defendant if:

       (a) the conviction is for a crime punishable by death or imprisonment in
       excess of one year, or the conviction is for a misdemeanor which involved
       dishonesty or false statement; (b) less than ten years have elapsed between
       the date the accused was released from confinement and the
       commencement of the subject prosecution; (c) the State gives reasonable
       pretrial written notice of the particular conviction or convictions it intends
       to use as impeachment; and (d) the trial court concludes that the probative
       value of the prior conviction on the issue of credibility outweighs its unfair
       prejudicial effect on the substantive issues.

State v. Mixon, 983 S.W.2d 661, 674 (Tenn. 1999); see also Tenn. R. Evid. 609. Initially,
we note that the trial court did not allow Defendant’s prior convictions to be admitted
under Rule 609. Instead, the trial court determined that the State could question
Defendant regarding his prior convictions because he testified that he was a “law[-
]abiding citizen,” opening the door to impeachment. State v. Gomez, 367 S.W.3d 237,
246 (Tenn. 2012) (finding that “[e]ven if evidence is inadmissible, a party may ‘open the
door’ to admission of that evidence.”). A party commonly opens the door “by raising the
subject of that evidence at trial.” Id. Our supreme court has explained, “[w]hen a party
raises a subject at trial, the party ‘expand[s] the realm of relevance,’ and the opposing
party may be permitted to present evidence on that subject.” Id. (quoting 21 Charles
Alan Wright et al., Federal Practice & Procedure Evidence § 5039.1 (2d ed. 1987)). In
other words, “‘opening the door’ is an equitable principle that permits a party to respond
to an act of another party by introducing otherwise inadmissible evidence.” Id. After a
witness has “opened the door,” however, an opposing party should introduce evidence on
the same subject matter or risk reversible error. See State v. Riels, 216 S.W.3d 737, 746
(Tenn. 2007) (trial court erred in ruling that defendant opened the door to unlimited
cross-examination concerning details of the crime after defendant expressed remorse to
the victims’ families); Gomez, 367 S.W.3d at 247 (trial court erred in ruling that co-
defendant’s testimony that defendant would not hurt minor victim opened the door to
evidence regarding defendant’s prior assaults against co-defendant).

        In State v. Kendricks, 947 S.W.2d 875 (Tenn. Crim. App. 1996), this Court held
that “‘[i]rrespective of admissibility under Rule 609 [of Tennessee Rules of Evidence], a
conviction may be used to contradict a witness who “opens the door” and testifies on
direct examination that he or she has never been convicted of a crime, or to counter some
                                            -5-
other facet of direct testimony.’” Id. at 883 (quoting Cohen, Sheppeard & Paine,
Tennessee Law of Evidence § 609.1 (3d ed.1995)). Here, as in Kendricks, “the State was
impeaching Defendant’s testimony on direct as being less than forthright.” Id.; see also
State v. Brian Jermaine Dodson, No. M2011-00523-CCA-R3-CD, 2012 WL 2403624, at
*15-17 (Tenn. Crim. App. June 27, 2012) (holding that the trial court properly allowed
defendant to be impeached with prior assault convictions after the defendant testified,
“I’m not that type of person”), perm. app. denied (Tenn. Oct. 17, 2012); State v. Kenneth
Lee England, No. E2002-00693-CCA-R3-CD, 2003 WL 1877234, at *4 (Tenn. Crim.
App. Apr. 11, 2003) (holding that the trial court properly allowed Defendant to be
impeached by prior conviction for retaliation for past action after he testified on direct
that he never made any threats against his ex-wife for her being a witness against him),
perm. app. denied (Tenn. Oct. 6, 2003).

        We agree with the trial court that the State was entitled to impeach Defendant’s
testimony that he was a law-abiding citizen with all of his prior convictions despite the
fact that they were more than ten years old at the time of trial. By testifying that he was
not a violent person who followed the law, Defendant placed his prior criminal record at
issue and increased the probative value of his felony convictions. See, e.g. State v.
Jeffrey L. Vaughn, No. W2012-01987-CCA-R3-CD, 2013 WL 1282331, at *9 (Tenn.
Crim. App. Mar. 28, 2013) (probative value of Defendant’s 1990 conviction for drug
dealing increased appreciably after Defendant testified under oath that he did not sell
drugs), perm. app. denied (Tenn. Sept. 25, 2013). On cross-examination, the State
questioned Defendant about the existence of his prior felonies including grand larceny,
possession of marijuana, and malicious shooting. The State’s questioning was certainly
within the “realm of relevance” of the issue that Defendant raised on direct examination.
Gomez, 367 S.W.3d at 246. Thus, the trial court did not err in allowing the State to
impeach Defendant’s testimony with his own prior convictions. Defendant is not entitled
to relief on this issue.

                                State’s Closing Argument

       Defendant also challenges the State’s closing argument. Specifically he argues
that the State “intentionally referred to and argued facts outside the record that are not
matters of common public knowledge” in order to “try to paint a picture of [Defendant]
as a violent person.” The State insists that the closing argument did not amount to
misconduct.

      During the State’s closing argument, Defendant objected to the following
statement as improper argument:

      Can you believe anything that [Defendant] testified to? I already
      mentioned earlier that he very specifically on direct examination said, I’m a
                                           -6-
       law[-]abiding citizen, I’m a non-violent citizen. But then we had to go
       through conviction after conviction after conviction for this law[-]abiding
       citizen.

              So, from the beginning, he puts himself out to be something that he’s
       not. I’m not violent. I shoot at people and try to kill them, but that’s their
       fault.

The trial court overruled the objection.

        Closing argument is “a valuable privilege that should not be unduly restricted.”
Terry v. State, 46 S.W.3d 147, 156 (Tenn. 2001); see State v. Bane, 57 S.W.3d 411, 425
(Tenn. 2001); State v. Cauthern, 967 S.W.2d 726, 737 (Tenn. 1998). Closing arguments
“have special importance in the adversarial process,” allowing the parties “to present
their theory of the case and to point out the strengths and weaknesses in the evidence to
the jury.” State v. Banks, 271 S.W.3d 90, 130 (Tenn. 2008). Attorneys “should be given
great latitude in both the style and the substance of their arguments.” Id. at 131.
However, “a prosecutor’s closing argument must be temperate, must be based on the
evidence introduced at trial, and must be pertinent to the issues in the case.” Id.
Although not exhaustive, this Court has recognized five general areas of potential
prosecutorial misconduct during closing arguments: (1) intentionally misstating the
evidence or misleading the jury as to the inferences it may draw; (2) expressing personal
beliefs or opinions as to the truth or falsity of any testimony or the guilt of the defendant;
(3) inflaming or attempting to inflame the passions or prejudices of the jury; (4) injecting
issues broader than the guilt or innocence of the accused; (5) arguing or referring to facts
outside the record unless the facts are matters of common knowledge. State v. Goltz, 111
S.W.3d 1, 6 (Tenn. Crim. App. 2003). A trial court has significant discretion in
controlling closing argument, and its decisions relative to the contents of argument may
only be reversed upon an abuse of discretion. Terry, 46 S.W.3d at 156; State v. Trusty,
326 S.W.3d 582, 607 (Tenn. Crim. App. 2010).

       Defendant argues on appeal that counsel for the State argued facts outside the
record, trying to portray Defendant as something that he was not, and specifically points
to the reference counsel for the State made about the malicious shooting conviction.
Defendant makes this argument despite the fact that Defendant admitted that he had a
conviction for malicious shooting and tried to justify his actions in shooting another
person. While being cross-examined, Defendant actually asked counsel for the State if he
could “explain” the conviction. Defendant claimed that the shooting was not his fault in
a somewhat rambling statement, saying the people he shot at were “thieves” and that the
State was trying to make him look like a “villain.” Defendant’s own testimony
essentially tracks the language of the closing argument. Thus, the prosecutor did not
argue facts outside the record. Defendant placed his own credibility at issue when he
                                             -7-
claimed that he was a non-violent person. There was no prosecutorial misconduct. The
trial court did not abuse its discretion in overruling the objection. Defendant is not
entitled to relief on this issue.

                                       Conclusion

      For the foregoing reasons, the judgments of the trial court are affirmed.



                                            ____________________________________
                                            TIMOTHY L. EASTER, JUDGE




                                           -8-
