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State v. Mays

Court of Criminal Appeals of Tennessee, Jackson

August 31, 2017


          February 7, 2017 Session

         Appeal from the Circuit Court for Obion County No. CC-14-CR-112 Donald E. Parish, Judge

         Defendant, Shanthony Tywon Mays, was convicted by an Obion County Jury of one count of aggravated robbery, three counts of aggravated assault, and one count of unlawful possession of a weapon. The trial court imposed a sentence of twelve years for aggravated robbery, four years for each count of aggravated assault, and four years for unlawful possession of a weapon, to be served concurrently with each other and consecutively to the sentence in an unrelated case. On appeal, Defendant raises the following issues: (1) whether the trial court properly overruled Defendant's objection to the jury venire; (2) whether the trial court properly instructed the jury concerning possession of recently stolen property; (3) whether the evidence was sufficient to support Defendant's convictions; and (4) whether the trial court erred in denying Defendant's motion for new trial based on newly discovered evidence. After a thorough review of the record, we affirm the judgments of the trial court.

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

          James T. Powell, Union City, Tennessee, for the appellant, Shanthony Tywon Mays.

          Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant Attorney General; Russell Johnson, District Attorney General; and Jim Cannon, Assistant District Attorney General, for the appellee, State of Tennessee.

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




         State's Proof

         On the night of May 15, 2014, Sharmen Twining and Samantha Milligan were working at the 3J's Food Mart in Union City. Ms. Twining was working as a cashier, and Ms. Milligan was the shift manager. At approximately 11:30 p.m., two men dressed in black walked into the store and ordered everyone to get on the floor. Tina Webb and her daughter were also in the store at the time. One of the men had a gun that Ms. Twining and Ms. Milligan both described as black. Tina Webb specifically testified that the man pointed the gun at her when he told her to get on the ground. Ms. Twining testified that she could not see the men's faces, and she passed out after she got down on the floor. Ms. Milligan testified that she was in the kitchen washing dishes when she heard people "hollering." She leaned out and saw a man who pointed a gun at her and told her to step out of the kitchen. The other man pushed Ms. Webb's daughter down and used her as a "prop" to jump over the counter, and he rummaged through some items before the two men fled. Ms. Milligan called police after the men left. Ms. Twining testified that Ms. Milligan woke her up, and she saw coins on the floor and noticed that the cash bag was missing. She said that the bag read, "City State Bank" and contained $1, 050.00.

         Don Walker testified that he was parked outside the 3J's Food Mart at approximately 11:30 p.m. on May 15, 2014. He worked as a patient tech for Durable Medical Equipment in Murray, Kentucky and had stopped at the store to purchase some food. While he was sitting his van, Mr. Walker noticed two young men walking up the sidewalk to his left side. He said that they "huddled up" before proceeding quickly to the door. He said, "that's kinda what caught my attention was them running up the sidewalk [ ] toward the door." Mr. Walker testified that one man was wearing a dark-colored hoodie and the other was wearing a light-colored (white) hoodie. He further testified:

And I noticed one gentleman in the white hoodie had pulled a gun out and the guy with the darker hoodie had jumped the counter and got the money bag. They come right back out the door in maybe 20, 30 seconds from the time I saw them initially until they were going back down the sidewalk in the same direction that they came from.

         Officer James Key of the Union City Police Department testified that he was dispatched to the robbery at the 3J's Food Mart on May 15, 2014. He had received a dispatch with a description of the suspects that described them as two black males dressed in black and wearing bandanas over their faces. Officer Key turned in at the north entrance of the Union City Elementary School. He shined his spotlight around looking for the suspects. Officer Key testified:

When I got around to the back of the elementary school, I was shining all the little cubby-holes and nooks and crannies that were blacked out, and got around to the back where the loading dock area is for the cafeteria, and there's approximately a four-foot retainer wall. I come around the retainer wall, shining back into the corner there by the loading dock. When I shined to that back corner, two males popped up.

         He noted that it was approximately 11:34 when he saw the two men. The area where the two men were found was approximately 300 yards from the 3J's Food Mart. Officer Key exited his patrol car and told the two men to walk toward the patrol car with their hands up. He noticed one of the men, identified by Officer Key as Defendant, had a black bandana still tied around his neck. Officer Key testified that he knew Defendant but he did not know the other man who was later identified as Jimal Williams. The two men were taken into custody and placed in separate patrol cars.

         Officer Key and other officers began looking for clothing that may have been discarded. Around a nearby air conditioning unit located between twenty to forty yards from where Defendant and Mr. Williams were found, officers found a red money bag, a white cotton glove, loose currency amounting to $841, and a black zip-up hooded jacket. Near another air conditioning unit, officers found brown cargo pants, blue sweatpants, and three additional white gloves. The officers continued searching the area and found a black t-shirt and a blue hoodie near a "hedgerow" and a parking lot. It began raining so the evidence was placed in brown bags and labeled. The items were transported to the police station where the clothing was taken out and hung to dry in the evidence room. Once the items dried they were placed in the evidence locker.

         Officer Key transported Defendant to the sheriff's office. During the drive, Defendant asked questions about what was happening, and he made statements. Officer Key told Defendant to stop talking, and he advised Defendant of his Miranda rights. Defendant said that his clothing did not "fit" the description of the clothing that the robbery suspects were wearing. Officer Key noted that he never told Defendant anything about the clothing. Defendant also asked Officer Key how he could be charged with robbery if he did not have a gun.

         On cross-examination, Officer Key agreed that Defendant could have heard "radio traffic" about the robbery while Defendant was sitting in the patrol car. Officer Key testified that Defendant was wearing black and white camouflage pants when he was found, which did not match the description from the robbery.

         Investigator Susan Andrews of the Union City Police Department took photographs at the 3J's Food Mart, and she interviewed Ms. Twinning and Ms. Milligan. Investigator Andrews viewed the store's surveillance video of the robbery. She attempted to get copies of the video but the copies would not play, and she eventually used her camera to make a video of the video. Investigator Andrews drove to the Union City Elementary School after she left the store and took possession of the evidence collected around the area of the school. Investigator Andrews was later advised by the Tennessee Bureau of Investigation (TBI) Crime Lab to send the white gloves along with specimens from Defendant and Mr. Williams for comparison testing.

         Special Agent Kristen Meyers of the TBI Crime Lab, Serology Unit, testified as an expert in the field of DNA analysis. She conducted a DNA analysis of the white gloves and compared them with saliva samples from Defendant and Mr. Williams. Special Agent Meyers confirmed that two of the gloves contained DNA that was consistent with that of Mr. Williams. She was able to obtain a partial DNA profile from another glove. She could exclude Mr. Williams from the sample but she was unable to exclude Defendant. Special Agent Meyers was also able to obtain a partial DNA profile from another glove. The profile was consistent with Defendant's DNA but the probability of selecting an unrelated person to be included as a contributor was approximately 1 in 8 for the African-American population, 1 in 27 for the Caucasian population, and 1 in 44 for the Southwestern Hispanic population. The comparison was inconclusive with respect to Mr. Williams.

         Sergeant Brandon Adams of the Union City Police Department testified that he and other officers drove back to the scene of the robbery at approximately 5:30 to 6:00 a.m. on May 16, 2014, to search for a weapon. He found a silver, chrome-plated gun lying in a ditch and near a hedgerow at the Union City Elementary School. Sergeant Adams testified that the gun was lying in the "riprap" in the ditch. He noted that the gun had rust on it, and the only thing linking the weapon to the robbery was the area in which it was found near the 3J's Food Mart.

         Corporal Charles Moran testified that he transported Mr. Williams to the jail, and Officer Key transported Defendant. Corporal Moran stayed at the jail with Defendant and Mr. Williams to complete paperwork. He took the clothing that each man was wearing and placed them in bags and then transported the clothing to the police department. Investigator Susan Andrews was again called to testify. She said that she received the bags of clothing that Corporal Moran took from Defendant and Mr. Williams at the jail. Defendant's bag contained in part a pair of purple Nike Air tennis shoes. The State showed the surveillance video of the robbery to the jurors and urged them to compare some of the clothing found on and around Defendant and Mr. Williams to the clothing worn by the robbers during the robbery. The prosecutor specifically told the jurors:

Ladies and gentlemen, I'll direct your attention to the individual on the right side and ask you to compare what you see in that photograph to what's being presented here and draw your attention to the shoes. As you can see, I'm going to ask you to look at the laces on the shoes.

         Investigator Andrews testified that Mr. Williams' bag contained a pair of white Nike Air tennis shoes. The prosecutor also asked the jurors to compare those shoes with the ones seen in the surveillance video being worn by the robbery suspect who was standing on top of the counter. Investigator Andrews noted that one of the shoelaces of the gunman's shoes was white, and the other was darker.

         Jimal Williams testified that he participated in the robbery of the 3J's Food Mart on May 15, 2014. He said that the robbery was Defendant's idea, and they had talked about the robbery for a "few days" before it occurred. Mr. Williams testified that he and Defendant met at "East Gate" before the robbery, and he thought Defendant brought a shirt and gloves with him. He said that he and Defendant were dropped off at the store. Mr. Williams did not know who dropped them off.

         Mr. Williams testified that he "jumped the counter" during the robbery and took the money while Defendant held the gun. He and Defendant ran behind the school after the robbery and hid behind a wall. Mr. Williams testified that they stopped running in order for Mr. Williams to change clothing. He thought that Defendant also changed clothes. They left the clothes behind the school and left the money near a "vent." Mr. Williams testified that at the time of Defendant's trial, he had already been sentenced for aggravated robbery and three counts of aggravated assault. In exchange for his trial testimony, the State recommended that he receive the minimum sentence for aggravated robbery with the sentence to run concurrently to the sentence in another case.

         Defendant's Proof

         Defendant testified that he did not rob the 3J's Food Mart on May 15, 2014, nor was he present in the store at the time of the robbery. He said that he decided to walk to the store that night to purchase some A&D ointment for a tattoo that Curtis Jackson was going to finish putting on his neck and also to get something to eat. Defendant testified that he was supposed to be at Mr. Jackson's house at 10:30 p.m. to finish the tattoo. He said:

As I was walking to the store there on Bishop Street, I decided to cut behind Golden Living Nursing Home, come up behind the school, cross a little ditch, and about the time I was approaching behind the school, I noticed there was a car behind the school. When I was walking, I [saw] two individuals standing by the car. And as I was walking, I seen a flashlight come on me, and I seen it was an officer with his gun drawn on me, told me to freeze, don't move. So I did what the officer told me to do. He walked up to me and placed me in handcuffs. I asked what was going on. He said that I fit a description of a second robbery suspect, and I was placed under arrest. And that's how I came - - that's how I seen Mr. Williams. And that was it that night of my day.

         Defendant identified his pants that were taken from him after he arrived at the jail, and he also identified his shirt and pull-over. He said that none of the articles of clothing found by the officers near the scene belonged to him, and he had never seen them before. Defendant testified that he told Officer Key that he did not match the description of the robbery suspects because Defendant had heard the description announced over the police radio while he was sitting in the patrol car. He also heard information dispatched over the radio about a weapon. Defendant testified that he told Officer Key to compare his shoes with the video of the robbery and that his "shoes would prove [his] innocence." Defendant also testified that he did not have any mud on his person at the time of his arrest even though some of the clothing recovered near the scene had mud on them. Defendant claimed he was not sweating or breathing hard when he was arrested, indicating that he had not been running.

         Defendant testified that he knew Mr. Williams because the two had an altercation a couple of years prior over a "female." He said that it had been a "while" since he had seen Mr. Williams prior to May 15, 2014. Defendant said that Mr. Williams' trial testimony was not truthful. He also testified that the gloves and shoes shown during trial did not belong to him even though Corporal Moran testified that he took the shoes from Defendant at the jail. Defendant testified that he was wearing blue "Vans" at the time of his arrest, and Corporal Moran listed the shoes on his report as being blue. He noted that the shoes were a size 9, and Defendant wore a size 10. Defendant did not know what happened to his shoes after they were taken by Corporal Moran. Defendant denied ever seeing the gun that was recovered by officers near the scene.

         On cross-examination, Defendant testified that he was not behind the retainer wall when the officer first saw him. He also felt that either Corporal ...

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