Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs Date: December 16, 2014
Criminal Court for Davidson County No. 2010-C-1694 Mark J. Fishburn, Judge
Kara L. Everett (at trial) and Kyle Mothershead (on appeal), Nashville, Tennessee for the appellant, Derrick Dewayne Lyons.
Herbert H. Slatery, III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Glenn Funk, District Attorney General; and Robert E. McGuire, Assistant District Attorney General, for the appellee, State of Tennessee.
Robert W. Wedemeyer, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and John Everett Williams, J., joined.
ROBERT W. WEDEMEYER, JUDGE
This case arises from the Defendant's use of the victim's car without her permission for two days and his encounter and flight from a police officer during his possession of the vehicle. A Davidson County grand jury indicted the Defendant for attempted first degree murder, aggravated assault, theft of property valued over $1, 000.00, evading arrest in a motor vehicle and one count of aggravated robbery. The aggravated robbery charge was severed and later "nollied."
At the Defendant's trial on these charges, the parties presented the following evidence: Sabrina Mitchell testified that she had known the Defendant for a long time and that he was a guest in her home on August 7, 2008. She recalled that the Defendant asked her to drive him somewhere, to which she responded, "[N]o." Ms. Mitchell stated that she owned a gold Dodge Intrepid that she purchased for approximately $5, 000 in 2007. She stated that she had never let the Defendant borrow her vehicle. Ms. Mitchell testified that after she told the Defendant she would not give him a ride, he took her keys and drove off in her vehicle without her knowledge. Ms. Mitchell called his cell phone and asked the Defendant to return her vehicle, and the Defendant said he was on his way back to her house. When the Defendant did not return with her vehicle after a couple of hours, Ms. Mitchell called him again and said she would call the police if the Defendant did not return her vehicle. The Defendant again replied that he was on his way back with the vehicle. Ms. Mitchell said that she did not think that the Defendant had stolen her vehicle, but, when he did not return with it after a couple more hours, she called the police.
Ms. Mitchell testified that she called the police on August 7, 2008, to report her vehicle stolen, but she was told that she would have to wait twenty-four hours to make the report. Over the next twenty-four hours, Ms. Mitchell called the Defendant a few times, but he did not answer. On August 8, 2008, after the twenty-four hour waiting period had passed and her vehicle had not been returned, Ms. Mitchell called the police again and made an "official report" that her vehicle had been stolen. She identified the Defendant as the person who had taken her vehicle.
Ms. Mitchell agreed that her vehicle was returned to her a couple of days later. She stated that the passenger's side window was missing and there were dents and scratches on the vehicle that were not there prior to the vehicle being stolen.
Albert Ridgeway testified that he was a Metropolitan Nashville Police officer assigned to the "flex unit" on August 9, 2008. He stated that he was sitting in his police patrol vehicle when the Defendant drove by in a gold Dodge Intrepid and, when he "ran" the license plate on the vehicle, it came back that the vehicle was reported stolen. Officer Ridgeway followed the Defendant, who was "calm[ly] driving" at that point. The Defendant then started driving "evasive[ly], " and picked up speed, running several stop signs before Officer Ridgeway lost sight of the vehicle. He eventually found the vehicle in an alley, unoccupied and still running. He stated that the driver's side window was "busted out" of the vehicle and the interior was "covered in blood[.]"
On cross-examination, Officer Ridgeway testified that he generally "runs" the license plate of every vehicle in the area where he saw the Defendant.
Brent Bauer testified that he was a Metropolitan Nashville Police officer working on August 9, 2008, with Officer Brandon Firth. He testified that they parked their police vehicle in an alley between First and Second Avenue and spoke with two individuals, one of whom was in possession of a crack pipe. Officer Bauer and Officer Firth wrote the individual a misdemeanor citation, and, while standing outside their police vehicle, Officer Bauer noticed another vehicle enter the alley. He stated that their police vehicle was parked facing southbound and running with its headlights on. He stated that the vehicle's emergency equipment or "blue lights" were not activated.
Officer Bauer clarified that, as soon as they released the individual they had cited for the crack pipe, he heard "tires squealing" and observed a vehicle turn into the alley with its headlights on. He described the vehicle as "swerv[ing]" into the alley and traveling northbound, "coming directly at [the police vehicle.]" Officer Bauer stated that the approaching vehicle appeared to be "gaining speed" and was "traveling extremely, extremely fast" for navigation of an alley. He described the alley as being wide enough "for only one vehicle" with a patch of grass on either side of the pavement and bordered by fence lines. Officer Bauer stated that, on the side of the alley next to where their police vehicle was parked, there was a chain link fence and a "giant oak tree, " further narrowing the width of the alley.
Officer Bauer stated that the approaching vehicle was "accelerating the entire time that it was traveling" toward them in the alley. He stated that he and Officer Firth decided to activate the police vehicle's blue lights to alert the driver of the approaching vehicle that they were "parked in the middle" of the alley. Officer Bauer said that, after the blue lights were activated, the approaching vehicle "sudden[ly] decelerated" and then pulled over to the right side of the alley on the passenger's side of the police vehicle. Officer Bauer testified that he was standing on the passenger's side with his door opened. He thought the approaching vehicle was going to stop. Officer Bauer was holding a flashlight and shined it into the windshield where the driver was sitting.
Officer Bauer testified that, as the vehicle approached, he walked to the front of the police vehicle to speak to the driver. As he did so, he noticed that the vehicle accelerated toward him. Officer Bauer testified that, upon realizing that the vehicle was not going to stop, "[he] was kind of in a state of shock." When the vehicle did not slow down, Officer Bauer "pretty much figured that the vehicle had no intentions of stopping and was going to continue to come towards us no matter if it ran over me or hit our car or anything else." He stated that he "figured that if [he] didn't move at that point [he] was going to be [run] over or killed . . ., " so he moved to his right side, away from the patrol car. Officer Bauer stated that the driver had "several opportunities" to pull over.
Officer Bauer testified that he pulled out his weapon and fired a shot at the vehicle as the vehicle drove past him. The vehicle came within a foot to a foot and a half of him, and Officer Bauer felt "the air from the vehicle" as it drove past him. Officer Bauer stated that, if he had not moved, the vehicle would have struck him. Officer Bauer stated that he was later the subject of an internal investigation by the police department because he had fired his weapon.
On cross-examination, Officer Bauer confirmed that the police vehicle had been parked in the alley approximately thirty minutes before the gold Dodge vehicle turned into the alley. He stated that the area where the police vehicle was parked was "well-lit[.]"
Brandon Firth testified that he was a Metropolitan Nashville Police officer, working the "Operation Safe Streets" unit on the night of August 9, 2008. He explained that this meant he was patrolling high crime areas of Nashville to "deter crime." He testified that he was with Officer Bauer that evening and that their police vehicle was parked in the entrance of an alley while the officers issued citations to two subjects. After they had issued the citations, Officer Firth noticed that a vehicle had turned into the alley from "quite a distance away[.]" He said the vehicle's headlights were on as it traveled at a "high rate of speed." Officer Firth activated the police vehicle's emergency "blue light[s]" when the vehicle "didn't seem to be slowing down." He noticed that the approaching vehicle slowed at that point but then accelerated again. Officer Firth described what happened next:
Officer Bauer was outside of [our police] vehicle on our right side, and he was . . . going to talk to the driver of the vehicle, see what was going on, because, you know, it was obviously speeding and caused a concern to us, we wanted to see what was going on. So, when the vehicle accelerated to our right, I knew Officer Bauer was there and, you know, I yelled to Officer Bauer, "look out, " I just saw the car go past mine, I heard a gunshot and then the car kept going and I looked over and Officer Bauer was laying on the ground.
Officer Firth testified that he thought the approaching vehicle had fired shots at the officers, so his first concern was for Officer Bauer's safety. Officer Firth checked on Officer Bauer, who sat up and said, "[g]o get him." The officers got into their police vehicle and pursued until they eventually lost sight of the vehicle
Officer Firth stated that another police unit found the vehicle later that night. He stated that the vehicle in the alley was a "gold or tan Dodge" that he had never seen before. Officer Firth stated that his police patrol vehicle was "marked" and that he turned on his "blue lights" to alert the approaching vehicle that the police were stopped there. He recalled that the Dodge vehicle was three or four hundred yards away when he activated the emergency lights.
Officer Firth testified that he went to view the Dodge vehicle after it was found and that there was blood on the steering wheel and the driver's side window had been shattered. Officer Firth stated that he could not clearly see the driver of the vehicle in the alley, but he got "a glimpse" of the driver and could see it was a black male. He stated that the driver was the sole occupant of the vehicle.
Officer Firth testified that his police vehicle's blue lights were on when they pursued the Dodge vehicle. He stated that he was not able to keep the vehicle in sight for very long during the pursuit. Officer Firth testified that he was interviewed about the incident sometime later.
On re-direct examination, Officer Firth stated that the Dodge vehicle came "pretty close" to hitting his police vehicle and that he was "surprised" that it did not. A map of the area was displayed for the jury and Officer Firth pointed out where his police vehicle was parked in the alley and the direction from which the Dodge vehicle approached.
Warren Fleak testified that he was a Metropolitan Nashville Police Department detective assigned to the crime scene investigative unit. He received a request on August 9, 2008, to conduct an investigation of two vehicles, the "suspect vehicle" and the "officer's vehicle." Detective Fleak "processed" the vehicles for evidence, first attempting to "reposition" the officer's vehicle in the alley to photograph the surrounding area.
Detective Fleak identified photographs of the suspect's vehicle, the gold Dodge, and photographs of blood on the interior. Detective Fleak testified that he collected blood samples for DNA analysis. Detective Fleak and another officer created a diagram of the alley where the incident occurred, which was admitted into the record as evidence, along with photographs of the scene. Based on the photographs, Detective Fleak stated that a streetlight in the alley shone down on top of where the police vehicle was parked. Detective Fleak recovered a .40 caliber Smith and Wesson cartridge casing from the alley.
On cross-examination, Detective Fleak clarified that he was called to the scene just after midnight on August 10, 2008. He witnessed the officers' vehicle being driven into the spot in the alley where the incident had occurred. Other police officers were interviewing Officer Firth and Officer Bauer. Detective Fleak stated that he and two other officers were at the scene for almost five hours, looking for cartridge casings and searching the surrounding area.
Cedric Connolly testified that he was a Metropolitan Nashville Police Department detective assigned to the "flex team" in 2008. He came into contact with the Defendant on August 15, 2008, after receiving a report that the Defendant was in an apartment in North Nashville. Detective Connolly knocked on the door of the apartment, and the Defendant opened the door and then immediately shut the door when he saw Detective Connolly and two other officers standing in the doorway. Detective Connolly ...