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State v. Way

Court of Criminal Appeals of Tennessee, Knoxville

February 6, 2018


          Assigned on Briefs October 11, 2017

         Appeal from the Circuit Court for Sevier County No. SR-19267-II Richard R. Vance, Judge

         The Defendant-Appellant, David Way, appeals from his Sevier County jury convictions of burglary, theft over $1, 000, vandalism over $1, 000, and possession of burglary tools. As a career offender, he received an effective sentence of thirty-six years in confinement. The sole issues presented for our review are whether the trial court erred in denying Way's motion to suppress certain evidence due to the State's failure to establish a proper chain of custody and whether the evidence is sufficient to support each of his convictions. Upon our review, we affirm the judgments of the trial court.

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

          Jessica S. Sisk, Newport, Tennessee, for the appellant, David Louis Way.

          Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel; Jimmy B. Dunn, District Attorney General; and Nicholas Spangler, Assistant District Attorney General, for the appellee, State of Tennessee.

          Camille R. McMullen, J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Robert L. Holloway, Jr., JJ., joined.



         In the early morning hours of August 19, 2012, police responded to a burglary alarm at Gatlinburg-Pittman High School (GPHS). As part of their investigation, officers viewed video surveillance which showed two masked individuals dressed in camouflage clothing entering the school at approximately 2:30 a.m., carrying crow bars, chisels, and hammers. One of the individuals depicted in the video walked with a distinctive gait or "heel kick, " which was later determined to be consistent with how Millard Spurgeon, Way's co-defendant, walked. The video further showed one of the individuals using the tools to pry open the automatic teller machine (ATM) inside the school, from which more than $1, 000 was stolen. Vending machines at the school were also damaged. On the same day of the school burglary, Way and his co-defendant were at a local store near the school wearing similar clothes to those worn by the perpetrators and spending a large amount of money. The store clerk notified the police, and Way eventually consented to a search of his vehicle. Tools recovered from Way's vehicle were examined by the Tennessee Bureau of Investigation (TBI) and determined to be consistent with tools that created the marks on the ATM. Paint found on the tools was found to be consistent with the paint found on the ATM. Way and his co-defendant were subsequently charged with the instant offenses, and the following proceedings occurred prior to trial.

         Motion to Suppress.

         At the December 14, 2015 suppression hearing, Way sought to exclude parts of the ATM and all of the tools recovered from his car based on the State's deficient chain of custody. Defense counsel argued generally that "there [were] substantial gaps, days, and sometimes months, that [went] by [and] there is no chain of custody as far as like dates when things were retrieved and submitted back into evidence." In response, the prosecutor explained that the officer who initially recovered the evidence from the scene and from the school took it to his office at the police department, locked it, and then went out of town. Within a few days, another officer logged the evidence and transported it to the crime lab. The State maintained that there was no break in the chain of custody.[1] The State then provided the following testimony.

         Gatlinburg Police Detective Gary McCarter testified that he was called to the GPHS burglary scene on the morning of August 19, 2012. Around 12:00 p.m. that same day, he responded to McKinney's Market where Way and his co-defendant, Spurgeon, were on the scene in Way's vehicle. Detective McCarter testified that Way consented to a search of his vehicle from which he recovered various tools and clothing. Detective McCarter identified exhibits 1 through 8 as pictures he took of the tools, gloves, and clothing he retrieved from Way's vehicle.[2] He testified that he took these pictures as soon as he returned to the police station that afternoon around 2:00 p.m. He specifically noted the timestamps of exhibit 1 at 2:10 p.m. and exhibit 5 at 2:11 p.m. Detective McCarter also identified exhibit 9 as a picture taken at McKinney's Market to show what was taken as evidence and noted its timestamp of 12:50 p.m. He then identified exhibit 10 as a picture taken of the tool box inside Way's vehicle.

         After Detective McCarter retrieved the clothing and tools from Way's vehicle, he placed everything into his police car and went immediately to the police station. He then photographed and locked the evidence in his office. Detective McCarter had a telephone conversation with Way and Way's mother during which Way requested the tools be returned. Detective McCarter went on vacation the next day. Detective McCarter stated that he next saw the tools the week of the suppression hearing, and that they were the same tools he retrieved from Way's vehicle on August 19, 2012.

         On cross-examination, Detective McCarter testified that he did not recall wearing gloves when he recovered the evidence at McKinney's Market. He explained that he took the entire tool box from Way's vehicle but did not place each item in a separate evidence bag. Detective McCarter testified that there was oil in the tool box, but that he did not do anything to clean the tools or remove the oil. He testified that he then returned to his office with the tools and created a property log of the tools and clothing retrieved, which he identified as exhibit 11. Detective McCarter called Detective Burns the evening of the burglary to take over the case while he was out of town. Defense counsel then played a portion of Detective McCarter's phone call with Way, admitted as exhibit 12, during which Detective McCarter apparently said that he was not aware that Detective Burns went into his office.

         Gatlinburg Police Detective Rodney Burns testified that on August 20, 2012, he was directed by the police chief to assist in the investigation of the GPHS burglary. That morning, he went to GPHS, photographed the ATM, and removed the ATM door and inner housing. Detective Burns testified that the scene at GPHS was covered and sealed with crime scene tape. He explained that he used a crescent wrench to unbolt the ATM from the floor and took it to the Gatlinburg Police Department (GPD), where it was wrapped and locked in his office. The next day, August 21, 2012, he entered them into the GPD evidence locker. The same day, Detective Burns retrieved the tools from Detective McCarter's office with the police chief's permission and key. He identified exhibits 1 through 10 as the clothing, tools, gloves, and tool box that had been locked in Detective McCarter's office. Detective Burns then provided the evidence to the evidence technician and completed the necessary paperwork.

         On October 24, 2012, Detective Burns transported the evidence to the TBI. He retrieved the evidence from the TBI on February 18, 2014, and secured it at GPD. He explained that the tools were individually wrapped in thick brown paper and that the tools exhibited at the hearing were the same ...

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