State of Tennessee v. Danny R. Mays

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs March 5, 2014

STATE OF TENNESSEE v. DANNY R. MAYS

Direct Appeal from the Circuit Court for Madison County

No. 11511 Donald H. Allen, Judge

No. W2013-01052-CCA-R3-CD - Filed April 24, 2014

A Madison County jury convicted the Defendant, Danny R. Mays, of felony evading arrest,

reckless driving, driving on a cancelled, suspended or revoked license, leaving the scene of

an accident, violation of the registration law, criminal trespass, vandalism, and possession

of marijuana. The trial court sentenced the Defendant to an effective sentence of eight years.

On appeal, the Defendant contends that the evidence is insufficient to sustain his convictions

for felony evading arrest, reckless driving, driving on a cancelled, suspended or revoked

license, and possession of marijuana. After a thorough review of the record and the

applicable authorities, we affirm the trial court’s judgments.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which T HOMAS T.

W OODALL and J AMES C URWOOD W ITT, J R., JJ., joined.

Gregory D. Gookin, Assistant Public Defender, Jackson, Tennessee, for the Appellant,

Danny R. Mays.

Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin E.D. Smith, Assistant Attorney

General; James G. Woodall, District Attorney General; Shaun A. Brown, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

I. Facts

This case arises from a traffic stop of a vehicle driven by the Defendant that occurred

on November 23, 2010, at 8:25 a.m. As a result of events that occurred after the stop, a

Madison County grand jury indicted the Defendant for felony evading arrest, reckless

driving, driving on a cancelled, suspended or revoked license, leaving the scene of an

accident, violation of the registration law, criminal trespass, vandalism, and possession of

marijuana. At the Defendant’s trial on these charges, the parties presented the following

evidence: Joseph Williams, an officer with the Jackson Police Department, testified that he

was part of the “street crimes unit” and, as such, he was typically dressed in uniform and in

a marked patrol car when he was on duty. He said that on November 23, 2010, at

approximately 8:25 a.m., he saw a white Chevrolet Caprice, 1991 or 1992 model, with a

vehicle tag number 380 XXL. He put the tag number into his patrol unit’s computer to check

the tag through “NCIC.” The tag returned as being registered to a 2002 Saturn. Based upon

this information, Officer Williams initiated a traffic stop.

Officer Williams testified that, after he activated his lights, the vehicle’s driver did not

immediately pull over and stop, continuing southbound. Officer Williams said that the driver

did not increase his speed but failed to pull over. Officer Williams activated his sirens and,

as the two vehicles approached an intersection, the driver increased his speed “highly” to

approximately fifty miles per hour and ran the stop sign at the intersection. The driver then

slightly slowed down at a red light and turned right, which was westbound. Officer Williams

testified that the driver did not stop and did not have time to check for oncoming cars.

Officer Williams testified that he continued to pursue the driver, whose speed reached

greater than seventy miles per hour. The officer, who was on the police radio with his

supervisor, relayed the events as they were occurring to his supervisor. His supervisor

advised him, because of the speed and the traffic, to “disengage the pursuit.” Officer

Williams complied with the order immediately. Officer Williams explained that disengaging

meant that he turned off his lights and siren and reduced his speed, following all traffic laws.

He said that, as he disengaged, the vehicles were approaching the Highway 45 bypass. There

was a red light at the intersection, and the driver of the vehicle, traveling at a high rate of

speed, continued through the intersection, nearly striking a vehicle turning northbound head-

on. When avoiding the head-on collision, the driver nearly lost control of the vehicle but was

able to regain control. The officer followed the driver, driving a normal rate of speed and

without his lights and sirens activated, until the driver sped out of his view. He estimated

that the driver was traveling at 100 miles per hour when he lost sight of him.

Officer Williams said that, a short time after he lost sight of the driver and was

returning to his normal duties, he received a radio call from his supervisor advising him that

the Sheriff’s Department had encountered the same vehicle. Officer Williams was directed

to provide the state troopers the “county” and the tag number. Officer Williams was still in

the area and saw the vehicle traveling at a high rate of speed back “into town.” The driver

was speeding toward the officer at around sixty to seventy miles per hour. Officer Williams

pulled over to the side of the road and, after the driver passed, he made a U-turn and

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reinitiated pursuit with his lights and sirens activated.

Officer Williams testified that, during the pursuit, the traffic was “heavy.” The driver

went through several intersections and then began driving southbound in the northbound

lane. The officer observed “cars going in every direction attempting to avoid this vehicle

from being struck head-on by this vehicle at a high rate of speed.” Vehicles were moving

left and right, getting into the median and emergency lane to avoid a collision. Officer

Williams saw one vehicle drive into a ditch between the two lanes and spin around two or

three times in an attempt to avoid being struck head-on.

Officer Williams said that he pursued the vehicle toward downtown and that he

followed the vehicle as it traveled into the appropriate lane of travel. At this point, two

sheriff’s deputies joined in the pursuit. Officer Williams said he maintained contact with

dispatch to inform them of his path of travel. Sergeant Whitman, who was in the downtown

area, was attempting to discern the lane of travel of the vehicles so that he could set out

spikes in an attempt to deflate the tires of the driver’s vehicle. Officer Williams received

information from Sergeant Whitman that the driver’s vehicle had collided with his patrol car,

and Sergeant Whitman was joining the pursuit. Officer Williams said that Sergeant Whitman

was the lead vehicle at this point and that Officer Williams was the third or fourth car in

pursuit.

Officer Williams recalled that Sergeant Whitman radioed that the driver had exited

his vehicle and was fleeing on foot. The officer arrived at the scene and saw the driver’s

vehicle with the door open, off the side of the road up on on a little hill where it had rolled

off the road. Officer Williams drove past the vehicle and on to another street in an attempt

to cut off the driver. Sergeant Whitman then radioed and advised him that the had last seen

the driver at 210 McCowat Street. Officer Williams traveled the short distance to that

address, which appeared to be a single family residence, and he immediately set up a

perimeter. The officer noted that there was broken glass on the rear door of the address, and

he advised the other officers engaged in the pursuit. Officer Whitman secured the back door,

and Officer Williams went to the front of the house, where he observed other officers

speaking with someone who had answered their knock. Officer Williams returned to the

back door, and he and Officer Whitman looked inside the back door. They saw the driver

attempting to conceal himself by lying down between a number of items that were in the

room.

Officer Williams said that he gave the driver commands to “stand up,” and the driver

ignored those commands, continuing to lie on the floor. The officers entered the room and

forcibly took the driver into custody. The officer then identified the Defendant as the driver

of the vehicle that he pursued on that occasion. Officer Williams recalled that the

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Defendant’s arms and hands were bleeding. Officer Williams transported the Defendant to

the officer’s patrol car, where he obtained the Defendant’s Tennessee State Identification

card, which listed the Defendant’s name and date of birth.

Officer Williams testified that he put the Defendant’s information into his computer

and determined that the Defendant’s driver’s license had been revoked. The State offered

a certified copy of the Defendant’s driving history, which confirmed that his driver’s license

had been revoked at the time of his arrest. The officer also determined that the license tag

on the Defendant’s vehicle was registered to a different vehicle that was owned by a different

person.

During cross-examination, Officer Williams testified that he did not search the vehicle

after the Defendant fled. He conceded that there could have been someone else in the vehicle

who could have ducked behind the seat as he was pursuing the Defendant. He did not,

however, believe this to be the case. The officer said that Sergeant Whitman was the first

person on the scene where the vehicle was located because he was the officer pursuing the

vehicle at that time. Officer Williams denied recalling that he had testified differently in any

other proceedings. Officer Williams said he did not personally observe the Defendant exit

the vehicle. Further, he said that, during the pursuit, he was only able to identify the

Defendant as an “African-American male” and was unable to observe anything else about

him until he saw the Defendant in the residence at 210 McCowat Street.

Officer Williams testified that the vehicle was later secured and photographed, and

officers determined by the vehicle identification number that the vehicle was not stolen.

They conducted no further investigation into the owner of the Saturn to which the vehicle’s

license plates belong. The officer conceded that his testimony that the driver exceeded

speeds of one hundred miles per hour was based upon his personal estimation. Officer

Williams agreed that, once the Defendant was arrested, police ceased searching for any other

suspects. During redirect examination, Officer Williams identified photographs of the

vehicle at the scene where it was abandoned, and he noted that only the driver’s side front

door was open. The officer testified that Officer Arnold with the Jackson Police Department

took these photographs. During re-cross-examination, Officer Williams conceded that he did

not know how long after the Defendant was apprehended that the photographs were taken.

Jefferey Tullos, a Sergeant with the Madison County Sheriff’s office, testified that,

on November 23, 2010, he was traveling away from downtown Jackson when he noticed a

“city unit,” with its lights and sirens activated, following a white Chevrolet Caprice. The

vehicle was approaching an intersection, with the police car following closely behind, and

then turned and headed toward the “bypass.” Sergeant Tullos joined the pursuit. Shortly

after that, the city police officer disengaged the pursuit, and the Caprice proceeded west.

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When the city police officer stopped pursuit, Sergeant Tullos also ended his pursuit of the

vehicle. Sergeant Tullos testified that the vehicle was traveling in excess of the speed limit,

but he could not estimate the vehicle’s speed.

Sergeant Tullos testified that he next saw the vehicle stopped in traffic. The vehicle,

which had only one occupant, proceeded through the intersection against the light headed

toward downtown. The Sergeant activated his lights and sirens and again began to pursue

the vehicle. The vehicle then entered the northbound lane, traveling south against the flow

of traffic. Sergeant Tullos observed several vehicles swerving out of the path of the vehicle,

one of which proceeded into the median. Sergeant Tullos slowed down his rate of speed to

ensure there were no major accidents and that no one was injured. The Sergeant said he lost

sight of the vehicle, which was still being pursued by other officers.

Sergeant Tullos said that the next time he saw the vehicle it was stopped, and the

occupant of the vehicle had exited. The sergeant followed some of the city officers toward

McCowat Street and there met Sergeant Whitman, who stated he had found a broken window

at the back door of 210 McCowat Street. The Sergeant testified that he assisted in

apprehending the Defendant, who was lying on the floor under some debris in the utility

room at the rear of the house.

During cross-examination, Sergeant Tullos testified that he was, at one point, only one

car length from the vehicle during the pursuit. The sergeant agreed that no cars were

damaged when the vehicle traveled south in the northbound lane. Sergeant Tullos agreed that

he did not see the Defendant exit his vehicle. During redirect examination, Sergeant Tullos

testified that the Defendant appeared similar to the person that he saw driving the Caprice.

Phillip Whitman, a sergeant with the Jackson Police Department, testified that he

became aware of this pursuit by radio, and he learned that the pursuit was headed his

direction. He then observed a white “Chevy” being pursued by a deputy. Sergeant Whitman

testified that he decided to attempt to terminate the pursuit, but he “missed [his] opportunity.

He explained that, as the vehicle approached, he attempted to hit the vehicle with his patrol

car. The sergeant hit the vehicle in the left quarter panel between the rear tire and the trunk

area, resulting in only a glancing blow. The vehicle “fishtailed” and continued on.

Sergeant Whitman testified that he joined the pursuit, which was headed through the

downtown area of Jackson. Sergeant Whitman noted that the driver “blew through every

intersection it came to.” After pursuing for a short distance, Sergeant Whitman observed the

driver of the vehicle jump out of the vehicle, leaving it in gear. As the vehicle ran into a light

pole, Sergeant Whitman observed the driver, noting he was an African American male

wearing black jeans, a white t-shirt, a black hooded jacket, and white tennis shoes with green

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soles. In his car, Sergeant Williams followed the fleeing driver through an alley. When he

saw Officer Williams, who indicated that he had not yet seen the driver, Sergeant Whitman

believed the driver was located in the area of the two houses between the alley and the street.

Sergeant Whitman testified that he and Officer Williams made a “sweep” of the area,

and they noted broken glass on an exterior door of a home. It appeared that someone had

broken the glass, and then reached around and unlocked the door. Sergeant Whitman said

that, when he looked inside the residence, he saw the Defendant, wearing the white tennis

shoes with green soles, lying on the floor. Officers took the Defendant into custody, and

Sergeant Whitman noted that the Defendant was no longer wearing a black hoodie jacket.

The sergeant said that other officers located the jacket near a fence close to the scene.

During cross-examination, Sergeant Whitman testified that he was unsure whether

anyone took fingerprints or DNA samples from the vehicle. The sergeant said that he did not

participate any further in investigating this case.

Phillip Kemper, a sergeant with the Jackson Police Department, testified that he was

working on November 23, 2010, when he heard that there was a police pursuit that involved

the Jackson Police Department and the Madison County Sheriff’s Department. Sergeant

Kemper was not involved in the pursuit, but he responded later to the McCowat Street

address. When he arrived, the other officers had isolated the house that they believed the

driver had entered. There was a K-9 officer present, and the dog was trying to track the path

the driver had taken. Sergeant Kemper went into the backyard of the residence where a black

jacket was found. Inside the jacket, Sergeant Keper found a “Swisher Sweet’s [cigar] box.”

He opened the box and found it contained a marijuana “joint.” The sergeant notified the

patrol officer who was taking the pictures and collecting evidence, and the officer came and

photographed and collected the jacket and the box.

During cross-examination, Sergeant Kemper testified that he looked around the fence

in the area where the jacket was found. He could not recall if there was a hole in the fence,

but he said that the fence did not appear to be damaged. The sergeant agreed he picked up

the jacket before it was photographed, but he said he did not transport the jacket anywhere

and instead only checked the pockets.

Edward McMullen, an officer with the Jackson Police Department, testified that he

was working on November 23, 2010, when he was made aware of the pursuit of the white

Chevrolet Caprice in this case. He said that he was not involved in the pursuit but that he

headed in the general direction to offer assistance. When the pursuit ended, and the driver

fled on foot, Officer McMullen assisted in establishing a perimeter around the area where the

driver was thought to have fled. Officer McMullen said that he went to the house where

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Sergeant Whitman was located in the backyard. Sergeant Whitman indicated that Officer

McMullen should go to the front of the house. An African-American man came to the front

door. Officer McMullen spoke with the man, who said that he and his mother lived there.

Officer McMullen talked to the two residents, informing them about the investigation.

Officer McMullen testified that he then went around to the back of the home to tell

Sergeant Whitman that there was a man and a woman in the house. Sergeant Whitman

silently motioned to Officer McMullen that he had seen the suspect and told him to ask the

residents if there was broken glass on their back door. Officer McMullen returned to the

front of the home, asked the residents about the door, and was informed that there should not

be any broken glass. Officer McMullen then instructed the two residents to exit the house

for their own safety. Officer McMullen and a deputy entered the front of the home and heard

other officers taking someone into custody. Officer McMullen explained he heard the

officers yelling, “Let me see your hands.” By the time Officer McMullen was able to walk

downstairs to the back of the home, the Defendant was in custody.

Officer McMullen testified that his only other involvement in this case was to take

photographs of the damage to the house where the Defendant was found hiding and a jacket

located near the house. Officer McMullen also photographed a marijuana cigar that Sergeant

Kemp had found in the jacket pocket.

During cross-examination, Officer McMullen testified that he did not recall Officer

Kemper saying that he had moved the jacket before Officer McMullen photographed it. He

said that he did not personally recall that the Defendant was wearing green-soled tennis

shoes, but he recalled this fact being discussed on the police radio. Officer McMullen

recalled that the two residents of the house informed him that there was no one else present

in the home. He said that they were “rattled” when he informed them that someone had

entered their home from the back porch.

Betty Puryears, a resident of 210 McCowat Street, testified that police officers came

to her home on November 23, 2010, while she and her son, who lived with her, were at

home. She recalled that, before officers entered her residence, she and her son were

watching them from her window. She said that there were police “cars everywhere” and

officers running up and down the street. An officer came to her door and asked who lived

in the home. She told the officer that she and her son, who was standing with her, were the

only two people who lived there. Ms. Puryears testified that she did not know that there was

someone in their home. Officers brought the man to the living room, and Ms. Puryears

identified the Defendant as the man who had been in her home that day. She said she did not

know the Defendant, and she had not given him permission to be in her house that day.

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Ms. Puryears testified that, as a result of this incident, the glass in her back door was

broken, and her washing machine, which was located in the utility room, was also broken.

Her landlord repaired the glass in the door, but she was required to replace her washing

machine, which cost her approximately $390.

During cross-examination, Ms. Puryears testified that she did not know how much

time elapsed between the time the Defendant entered her home and when he was

apprehended by police. Ms. Puryears said that there was a fence in part of her backyard and

that she did not recall it having any holes in it.

Brenda McNeil, an evidence technician for the Jackson Madison County Metro

Narcotics Unit, testified that she received the drug evidence in this case. She took this

evidence to the Memphis Tennessee Bureau of Investigation crime laboratory for testing.

After it was tested, she transported the evidence back to her facility.

Shalandus Harris, a Special Agent Forensic(“TBI”) Scientist with the TBI, testified

that the evidence submitted to her was a hand-rolled cigar. Agent Harris tested the material

inside the cigar and determined it was marijuana. During cross-examination, she agreed she

did not weigh the marijuana, and she could not testify about how much marijuana the cigar

contained.

The State entered a certified copy of the vehicle registration of license plate 380 XXL.

The Defendant recalled Sergeant Williams, who reiterated that Sergeant Whitman was

the lead vehicle in the pursuit at the time the driver fled from the white Caprice. Sergeant

Whitman was, therefore, the one who saw the driver leave his vehicle. Sergeant Williams

said he did not recall being asked that question previously at a different hearing.

Based upon this evidence, the jury convicted the Defendant of felony evading arrest,

reckless driving, driving on a cancelled, suspended or revoked license, leaving the scene of

an accident, violation of the registration law, criminal trespass, vandalism, and possession

of marijuana. The trial court sentenced him to an effective sentence of eight years. It is from

these judgments that the Defendant appeals.

II. Analysis

On appeal, the Defendant contends that the evidence is insufficient to sustain his

convictions for felony evading arrest, reckless driving, driving on a cancelled, suspended or

revoked license, and possession of marijuana. He argues in his brief that the proof was

insufficient to prove his identity. He asserts that officers could only say that the Defendant

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had “similar” physical characteristics to the suspect that they were pursuing. Sergeant

Whitman said he saw a black male wearing clothing similar to that which the Defendant was

wearing, but the Defendant points out that, when he was apprehended, he was not wearing

a black jacket. Further, he notes, Sergeant Whitman never saw him discard the jacket. The

State counters that ample evidence supports the Defendant’s convictions.

When an accused challenges the sufficiency of the evidence, this Court’s standard of

review is whether, after considering the evidence in the light most favorable to the State,

“any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Tenn. R. App. P.

13(e), State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d

247, 276 (Tenn. 2002)). This rule applies to findings of guilt based upon direct evidence,

circumstantial evidence, or a combination of both direct and circumstantial evidence. State

v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). In the absence of direct

evidence, a criminal offense may be established exclusively by circumstantial evidence.

Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). The jury decides the weight to be given

to circumstantial evidence, and “[t]he inferences to be drawn from such evidence, and the

extent to which the circumstances are consistent with guilt and inconsistent with innocence,

are questions primarily for the jury.” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)

(citations omitted). “The standard of review [for sufficiency of the evidence] is the same

whether the conviction is based upon direct or circumstantial evidence.” State v. Dorantes,

331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.

2009)).

In determining the sufficiency of the evidence, this Court should not re-weigh or

reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).

Nor may this Court substitute its inferences for those drawn by the trier of fact from the

evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d

856, 859 (Tenn. 1956). “Questions concerning the credibility of the witnesses, the weight

and value of the evidence, as well as all factual issues raised by the evidence are resolved by

the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); Liakas, 286 S.W.2d at

859. “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the

witnesses for the State and resolves all conflicts in favor of the theory of the State.” State

v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); State v. Grace, 493 S.W.2d 474, 479 (Tenn.

1973). The Tennessee Supreme Court stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and

the jury see the witnesses face to face, hear their testimony and observe their

demeanor on the stand. Thus the trial judge and jury are the primary

instrumentality of justice to determine the weight and credibility to be given

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to the testimony of witnesses. In the trial forum alone is there human

atmosphere and the totality of the evidence cannot be reproduced with a

written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1996) (citing Carroll v. State, 370 S.W.2d 523

(Tenn. 1963)). This Court must afford the State of Tennessee the strongest legitimate view

of the evidence contained in the record, as well as all reasonable inferences which may be

drawn from the evidence. Goodwin, 143 S .W.3d at 775 (citing State v. Smith, 24 S.W.3d

274, 279 (Tenn. 2000)). Because a verdict of guilt against a defendant removes the

presumption of innocence and raises a presumption of guilt, the convicted criminal defendant

bears the burden of showing that the evidence was legally insufficient to sustain a guilty

verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).

The Defendant attacks the sufficiency of the evidence against him based solely upon

the fact that the State, he asserts, did not sufficiently prove his identity. The identity of a

perpetrator is an essential element of any crime. State v. Thompson, 519 S.W.2d 789, 793

(Tenn. 1975). Issues regarding identity, however, are questions of fact to be determined by

the jury. State v. Vaughn, 29 S.W.3d 33, 40 (Tenn. Crim. App. 1998).

After our review of the record, we conclude that the evidence is sufficient to sustain

the Defendant’s convictions because the State proved his identity. Sergeant Williams began

his pursuit of a white Caprice that had vehicle tags not matching the vehicle description. He

noted that the driver was an African-American male. After the pursuit was ceased and then

restarted, Sergeant Whitman became the lead officer in pursuit of the Caprice. At the

conclusion of the vehicle pursuit, the driver of the vehicle fled on foot. Sergeant Whitman,

who was a car length from the vehicle at this point, saw that the driver was wearing green-

soled tennis shoes, a white t-shirt, and a black hoodie sweatshirt. The sergeant pursued the

driver in his patrol car, while the driver was on foot. The sergeant only briefly lost sight of

the driver, and he determined that the driver must have fled to one of two houses, one of

which was 210 McCowat Street. In the back of that residence, Sergeant Whitman noted that

a glass door had been broken. When he looked inside the room to which the door led, he saw

a man laying on the ground who was wearing green-soled tennis shoes and a white t-shirt.

Sergeant Whitman took the man, who had blood on his arms, into custody, and his

identification showed that he was the Defendant. Nearby, officers found a black hooded

jacket, and Sergeant Whitman identified the jacket as being similar to the one worn by the

Defendant as he fled. In the jacket, officers found a marijuana cigar. This evidence

sufficiently proves the Defendant’s identity as the perpetrator of these offenses and his

possession of the marijuana. He is not entitled to relief on this issue.

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III. Conclusion

In accordance with the aforementioned reasoning and authorities, we affirm the trial

court’s judgments.

________________________________

ROBERT W. WEDEMEYER, JUDGE

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