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State v. McCommon

Court of Criminal Appeals of Tennessee, Jackson

March 3, 2017

STATE OF TENNESSEE
v.
ELTON KEITH MCCOMMON

          Assigned on Briefs February 7, 2017

         Appeal from the Circuit Court for Haywood County No. 7074 Clayburn Peeples, Judge

         The defendant, Elton Keith McCommon, was indicted for two counts of aggravated assault, one count of reckless endangerment with a deadly weapon, one count of evading arrest, one count of driving under the influence, and one count of driving with a suspended or revoked license. Following trial, a jury found the defendant guilty of reckless endangerment with a deadly weapon, evading arrest, and driving with a suspended or revoked license. The trial court sentenced the defendant as a career offender and imposed an effective twelve-year sentence. On appeal, the defendant argues the evidence was insufficient to support his convictions for reckless endangerment and evading arrest. The defendant also challenges the trial court's evidentiary ruling regarding items found during a search incident to his arrest. Finally, the defendant disputes his status as a career offender. After our review, we affirm the judgments of the trial court.

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

          Tom W. Crider, Haywood County Public Defender; Rachele Scott-Gibson and J. Daniel Rogers, Assistant Haywood County Public Defenders (on appeal); and Michael Banks, Brownsville, Tennessee (at trial), for the appellant, Elton Keith McCommon.

          Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Garry G. Brown, District Attorney General; and Jerald Campbell and Marc Murdaugh, Assistant District Attorney Generals, for the appellee, State of Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Camille R. McMullen, J., joined.

          OPINION

          J. ROSS DYER, JUDGE

         FACTS

         On October 13, 2012, the defendant led police on a seven-mile, high-speed chase through Haywood County that resulted in his arrest. At trial, Sergeant Anthony Rankin of the Brownsville Police Department testified that he first came into contact with the defendant when the defendant's Chevrolet pickup truck sped across two lanes of traffic and swerved into Sergeant Rankin's lane of travel. Sergeant Rankin "was terrified, " and immediately activated his blue lights and pursued the defendant. By activating his lights, Sergeant Rankin also activated his dashboard camera, thus documenting the entire highspeed chase. According to Sergeant Rankin, the defendant reached speeds of up to 117 miles per hour throughout the chase. Officers Gray and Carson also joined the pursuit of the defendant, capturing their involvement on dash-cam video as well. All three videos were played for the jury at trial.

         The dash-cam videos show the defendant speeding down Highway 76, erratically driving through the Brownsville town square, and ultimately stopping seven miles later on the Highway 76 Bypass. Throughout the chase, the defendant is followed by three patrol cars, each with activated blue lights and sirens, and is seen weaving through traffic at over 100 miles per hour. At one point during the chase, the defendant almost hit Captain Barry Diebold, an off-duty officer with the Brownsville Police Department. Captain Diebold testified that the defendant's truck "appeared like it was airborne" as it sped towards his vehicle. In order to avoid being hit, Captain Diebold was forced off of the road.

         After over five minutes of erratic and dangerous driving, the defendant finally stopped on the Highway 76 Bypass. When the defendant exited his vehicle, officers immediately noticed that he was naked from the waist down. Sergeant Rankin searched the defendant's truck but was unable to locate the defendant's shoes, pants, underwear, or socks. Instead, Sergeant Rankin found approximately $1, 500.00 in cash, a purple vibrator in the floorboard, and a package of batteries that had been ripped open and scattered throughout the truck. Additionally, the interior of the truck was covered in urine.

         Sergeant Rankin stated that the defendant was uncooperative and "just rambling off the top of his head." The defendant told Sergeant Rankin he had been "binging cocaine" for two days. Officers were unable to conduct field sobriety tests because of the defendant's mental and physical state. Sergeant Rankin also explained that officers struggled to handcuff the defendant and the defendant likely suffered injuries to his knees, genitalia, shins, and feet as a result. Sergeant Rankin, however, did not notice an injury to the defendant's forehead.

         In a subsequent interview and at trial, the defendant presented an alternative explanation for the high-speed chase. The defendant testified he had just been robbed by gang members at a nearby Taco Bell. During the robbery, he was hit on the forehead with a .38 caliber pistol and beaten. His assailants pulled off his shoes and pants before stealing his wallet, keys, cell phone, and clothes. Gunshots were fired before the assailants drove away. The defendant, however, was able to escape, start his truck using a spare key, and chase a car full of gang members who robbed him. As the defendant sped towards the City of Brownsville in pursuit of the fleeing robbers, Sergeant Rankin, Officer Gray, and Officer Carson intercepted him. The defendant stated he did not notice the officers behind him until mid-way through the chase, but he intended to get police to help him catch the robbers by getting their attention. The defendant stated once he lost sight of the robbers' vehicle, he pulled over to talk to the police. Though the defendant admitted he endangered others and "could have hurt some people, " he denied stating he was "binging cocaine" at the time of his arrest.

         During their testimony, both Sergeant Rankin and Captain Diebold testified that no other vehicles, absent the defendant, were involved in the chase and that the dash-cam videos reflect the same. Furthermore, Sergeant Rankin testified that the Brownsville Police Department did not receive any reports of a robbery or gunshots at the Taco Bell where the defendant was allegedly attacked.

         The jury convicted the defendant of felony reckless endangerment, felony evading arrest, and driving with a suspended or revoked license. At the sentencing hearing, the court sentenced the defendant, as a career offender, to a term of twelve years for evading arrest, six years for reckless endangerment, and five months and twenty-nine days for driving on a revoked license. The court ordered the three ...


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