State of Tennessee v. David Nelson McCoy

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs June 22, 2010

STATE OF TENNESSEE v. DAVID NELSON MCCOY

Direct Appeal from the Criminal Court for Davidson County

No. 2008-A-414 J. Randall Wyatt, Jr., Judge

No. M2009-01156-CCA-R3-CD - Filed July 26, 2010

The defendant, David Nelson McCoy, pled guilty to voluntary manslaughter, a Class C

felony, and received a negotiated sentence of ten years, as a Range I standard offender, in the

Tennessee Department of Correction. On appeal, the defendant challenges the trial court’s

imposition of a sentence of continuous confinement. Following our review, we affirm the

judgment of the trial court.

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

J.C. M CL IN, J., delivered the opinion of the court, in which J ERRY L. S MITH and T HOMAS T.

W OODALL, JJ., joined.

Dawn Deaner, District Public Defender, Jeffery A. DeVahser (on appeal), Tyler Chance

Yarbro (at trial), and Jonathan F. Wing (at trial), Assistant Public Defenders, Nashville,

Tennessee, for the appellant, David Nelson McCoy.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney

General; Victor S. Johnson, III, District Attorney General; and Amy Eisenbeck, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

In February 2008, a Davidson County grand jury indicted the defendant, David Nelson

McCoy, for first degree murder. On March 20, 2009, pursuant to a negotiated plea

agreement, he pled guilty to voluntary manslaughter and received a sentence of ten years as

a Range I standard offender in the Tennessee Department of Correction. The plea agreement

left the determination of the defendant’s manner of serving his sentence to the trial court.

At the guilty plea hearing, the state submitted that the state’s proof at trial would have been

as follows:

[T]he victim in this case, Marvin Davis, was killed on August 31st, 2007. On

September 2nd[,] 2007, he was found beaten to death [lying] on the side of a

rural highway near [Monmouth], Illinois. The victim at that point was

identified as Marvin Davis of Nashville, Tennessee.

During the investigation[,] detectives learned the identity of the

defendant and confirmed that he was a truck driver. Detectives [located] GPS

records for the truck that the defendant was operating and confirmed that he

was in Nashville on August 31, 2007, and near [Monmouth], Illinois, on

September 1st, 2007. Detectives also confirmed that the defendant had traded

the truck for a newer one and obtained GPS records for the previous truck.

The [d]etectives located and processed the truck for evidence locating the

victim inside the truck. Detectives then monitored the GPS records of the

defendant’s newer truck and located him traveling through Illinois. Detectives

interviewed the defendant[,] and he admitted [that] he hit the victim in the

head with a hammer while parked at the Pilot Truck Stop located on West

Trinity Lane, . . . in Nashville, Tennessee. The defendant claimed self-defense

due to [the] victim having a knife. Detectives recovered the hammer from the

new truck, but the defendant claimed to have disposed of the knife. The

[d]etectives were never able to find the knife, but they were able to confirm

that there was a dispute prior to Mr. Davis’ death between the two of them.

The autopsy in this case revealed that the victim died from blunt force

trauma to his head.

At the sentencing hearing, two members of the victim’s family testified that the

victim’s death greatly affected his family and asked the court not to grant probation.

Detective Brian Brown, of the Metropolitan Nashville Police Department,1 testified

that he was contacted by the Illinois State Police after that agency identified the victim,

whom a citizen had found on the side of a rural road near Monmouth, Illinois, as Marvin

Davis, a resident of Nashville, Tennessee. In the course of the investigation, detectives

learned that the defendant was the last person that witnesses saw with the victim. After

1

The transcript of the sentencing hearing does not reveal with what law enforcement agency

Detective Brown was associated. However, the indictment listed him as “MPD,” which is an acronym for

the Metropolitan Nashville Police Department.

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detectives learned that the defendant was a semi-truck driver, they located the truck that the

defendant had been driving on the day the victim died. They discovered the victim’s blood

in that truck and learned that the defendant had traded that truck for another one. When

investigators in Illinois found the defendant, he admitted striking the victim in the head with

a hammer several times, in self-defense, while the victim was in the cab of his truck. He also

admitted that he drove to Monmouth, Illinois, where he put the victim’s body on the side of

the road. Detectives located the hammer in the defendant’s new truck.

On cross-examination, Detective Brown testified that the witnesses who saw the

defendant and the victim together had been using drugs that night. He confirmed that the

victim was a drug dealer. Detective Brown did not recall the witnesses indicating that there

had been a dispute between the defendant and the victim.

Lovey Mitchell, the defendant’s mother, testified that the defendant grew up in North

Carolina. He is one of ten children. The defendant played football and basketball in high

school and joined the army after graduation. When he came back to North Carolina from

service, he started a family and worked as a truck driver. Ms. Mitchell testified that the

defendant’s friends and members of his church wrote him letters of support, which the court

admitted as evidence. Ms. Mitchell said that the defendant was in jail in Tennessee for this

offense for eight months before the court released him on bond, and when he came home, he

seemed remorseful. Ms. Mitchell asked the court to give the defendant probation so that he

could help his daughter, who was pregnant, and help Ms. Mitchell, who was in poor health.

Tina McCoy, the defendant’s younger sister, testified that the defendant was a father-

figure to her. She said that he was a good man who would not hurt someone unless he was

threatened.

Shane Hamrick, the defendant’s supervisor at Mayo Global Transportation, testified

that he grew up with the defendant. He hired the defendant after the court released him on

bond. Mr. Hamrick said that the defendant was “an excellent worker.” He said that, if the

court allowed the defendant to return to North Carolina, the company would continue

employing him. Mr. Hamrick waived a day’s pay in order to be at the defendant’s hearing

to support him.

Dominique McCoy, the defendant’s twenty-one-year old daughter, testified that she

was close to her father. She lived with her mother for most of her childhood, including when

her mother, who was in the military, was stationed in Europe. When she returned from

Europe, she spent more time with the defendant. Ms. McCoy testified that she was pregnant,

and the defendant was excited about being a grandfather. She said that he provided financial

support for her, and she asked the court to grant him probation.

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The defendant testified that he lived with his sister in Forrest City, North Carolina.

He contributed to college tuition for two of his children. He said that he grew up in Forrest

City and entered the army after graduating from high school. He spent three years on active

duty and five in the reserve. The defendant said that he was honorably discharged. He has

worked as a truck driver since 1985. He testified that drug testing was part of his job. He

had done drugs “[o]n and off” in the past and hidden his drug use from his family. He

stopped using drugs after killing the victim. The defendant testified that authorities charged

him with abduction in Virginia and burglary in Washington, but authorities dropped those

charges. He also had a disorderly conduct charge.

The defendant said that a prostitute at a truck stop introduced him to the victim, from

whom he planned to buy drugs. He waited with several other people in a motel room while

the victim went to buy drugs. Everyone except the defendant left the room before the victim

returned. When he returned to the motel room, the victim discovered that he had purchased

fake drugs and became irate. Because the defendant owed the victim $20, they walked

together to the Pilot Truck Stop, where the defendant had parked his truck. He let the victim

into the passenger side of his truck while he went to the back to get the money. When the

defendant got the $20, the victim saw that he had more money. The victim then pulled a

knife out and demanded the rest of the money. The defendant did not have a way out of the

truck, so he struggled with the victim. He knew the victim was high because they “had been

drinking and smoking all day earlier.” The defendant testified that he hit the victim with a

hammer, but he did not have any intent to kill him.

The defendant testified that authorities arrested him in September 2007. He gave a

statement to police to explain himself and tried to help the police find the knife with which

the victim allegedly threatened him, but he had thrown the knife into a body of water. The

defendant said that he also threw a hammer into the water without realizing that he threw the

wrong hammer. He said that he was “high[,] . . . panicked[,] and . . . scared” when he

decided to throw away the knife.

On cross-examination, the defendant testified that he did not call the police after he

realized that he had killed the victim. He insisted that he laid the victim on the side of the

road so that someone would find him. He recalled hitting the victim five times.

In its sentencing ruling, the trial court said that “confinement [was] necessary to not

depreciate the seriousness of this and the deterrance [sic] for any other people over at that

Pilot Truck Stop [who] are going to meet somebody[,] drive up to Monmouth, Illinois, put

[the person] on the road and drive away . . . .” The trial court denied the defendant’s request

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for alternative sentencing and sentenced the defendant to ten years, with a Range I release

eligibility, in the Tennessee Department of Correction.

Analysis

On appeal, the defendant contends that the trial court erred in sentencing him to

continuous confinement. Specifically, he argues that the nature of his offense was not so

shocking that it outweighed all other factors in favor of probation.

A defendant who challenges his or her sentence has the burden of proving the

sentence imposed by the trial court is improper. Tenn. Code Ann. § 40-35-401, Sentencing

Comm’n Comments; State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). It is this court’s

duty to conduct a de novo review of the record with a presumption that the trial court’s

determinations are correct when a defendant appeals the length, range, or manner of service

of his or her sentence. Tenn. Code Ann. § 40-35-401(d). The presumption of correctness

is conditioned upon the affirmative showing in the record that the trial court considered the

sentencing principles and all relevant facts and circumstances. State v. Pettus, 986 S.W.2d

540, 543-44 (Tenn. 1999).

A defendant is eligible for probation if the sentence received by the defendant is ten

years or less, subject to some statutory exclusions. Tenn. Code Ann. § 40-35-303(a). A

defendant with a total effective sentence in excess of ten years is eligible for probation if the

individual sentences imposed for the convictions fall within the probation eligibility

requirements. State v. Langston, 708 S.W.2d 830, 832-33 (Tenn. 1986).

An especially mitigated or standard offender convicted of a Class C, D, or E felony

is presumed to be a favorable candidate for alternative sentencing in the absence of evidence

to the contrary. Tenn. Code Ann. § 40-35-102(6). A trial court must presume that a

defendant sentenced to ten years or less and for whom incarceration is not a priority is subject

to alternative sentencing. State v. Byrd, 861 S.W.2d 377, 379-80 (Tenn. Crim. App. 1993).

It is further presumed that a sentence other than incarceration would result in successful

rehabilitation unless rebutted by sufficient evidence in the record. Id. at 380. However,

although a defendant may be presumed to be a favorable candidate for alternative sentencing,

the defendant has the burden of establishing suitability for total probation. Tenn. Code Ann.

§ 40-35-303(b); State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). Even though

probation must be automatically considered, “the defendant is not automatically entitled to

probation as a matter of law.” Tenn. Code Ann. § 40-35-303(b), Sentencing Commission

Comments; State v. Hartley, 818 S.W.2d 370, 373 (Tenn. Crim. App. 1991). A defendant

seeking full probation bears the burden on appeal of showing the sentence imposed is

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improper and that full probation will be in the best interest of the defendant and the public.

State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997).

In determining whether to grant or deny probation, a trial court should consider the

circumstances of the offense, the defendant’s criminal record, the defendant’s social history

and present condition, the need for deterrence, and the best interest of the defendant and the

public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Boyd, 925 S.W.2d 237,

244 (Tenn. Crim. App. 1995). The defendant’s lack of credibility is also an appropriate

consideration and reflects on a defendant’s potential for rehabilitation. State v. Nunley, 22

S.W.3d 282, 289 (Tenn. Crim. App. 1999).

Probation may be denied based solely upon the circumstances surrounding the offense.

State v. Ring, 56 S.W.3d 577, 586 (Tenn. Crim. App. 2001); State v. Hartley, 818 S.W.2d

370, 374 (Tenn. Crim. App. 1991). However, the circumstances of the offense as committed

must be especially violent, horrifying, shocking, reprehensible, offensive, or otherwise of an

excessive or exaggerated degree; and the nature of the offense must outweigh all factors

favoring probation. Hartley, 818 S.W.2d at 374-75.

There is no mathematical equation to be utilized in determining sentencing

alternatives. Not only should the sentence fit the offense, but it should fit the offender as

well. Tenn. Code Ann. § 40-35-103(2); State v. Batey, 35 S.W.3d 585, 588-89 (Tenn. Crim.

App. 2000). Indeed, individualized punishment is the essence of alternative sentencing.

State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994). In summary, sentencing

must be determined on a case-by-case basis, tailoring each sentence to that particular

defendant based upon the facts of that case and the circumstances of that defendant. State

v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986).

Guidance as to whether the trial court should grant alternative sentencing or

incarcerate is found in Tennessee Code Annotated section 40-35-103. Sentences involving

confinement should be based upon the following considerations:

(A) Confinement is necessary to protect society by restraining a defendant who

has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness of the

offense or confinement is particularly suited to provide an effective deterrence

to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or recently

been applied unsuccessfully to the defendant . . . .

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Tenn. Code Ann. § 40-35-103.

Under Tennessee Code Annotated section 40-35-102(6), the defendant is considered

a favorable candidate for alternative sentencing because he is a standard offender with a

negotiated sentence of ten years. The defendant argues that the trial court denied probation

based solely on the nature of his offense, which he claims was not so shocking that it

outweighed factors in favor of probation. In support of his argument, the defendant relies

on State v. Butler, in which this court reasoned that “the fact that the death of another results

from the defendant’s conduct does not, alone, make the offense sufficiently violent to justify

a denial of probation nor can it be viewed as sufficient evidence to overcome the

presumption in T.C.A. § 40-35-102(6).” 880 S.W.2d 395, 400-01 (Tenn. Crim. App. 1994).

We disagree with the defendant that the trial court denied probation solely because the

defendant’s conduct resulted in a death. Based on the record, the trial court considered the

sentencing principles and all relevant facts and circumstances; therefore, the court’s

determinations are subject to a presumption of correctness. Pettus, 986 S.W.2d at 543-44.

The defendant hit the victim at least five times, did not summon any help for the dying

victim, and then drove from Nashville, Tennessee to Monmouth, Illinois, where he deposited

the victim’s body on the side of the road. The defendant’s conduct after the victim’s death

was shocking; therefore, the trial court’s denial of probation based on the nature of the

defendant’s conduct was warranted. Hartley, 818 S.W.2d at 374-75. Accordingly, we

conclude that the defendant’s sentence is appropriate, and he is not entitled to relief.

Conclusion

Based on the foregoing reasons, we affirm the judgment of the trial court.

___________________________________

J.C. McLIN, JUDGE

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