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State v. Duncan

Court of Criminal Appeals of Tennessee, Jackson

March 6, 2018

STATE OF TENNESSEE
v.
JEREMY PERES DUNCAN

          Assigned on Briefs February 6, 2018

         Appeal from the Circuit Court for Madison County No. 16-256 Roy B. Morgan, Jr., Judge

         The defendant, Jeremy Peres Duncan, was indicted for two counts of aggravated assault, one count of possession of cocaine with the intent to sell, one count of possession of cocaine with the intent to deliver, two counts of possession of a firearm during the commission of a dangerous felony, one count of being a felon in possession of a handgun, and one count of tampering with evidence. The defendant was convicted as charged for all of the offenses. The trial court sentenced the defendant as a Range II offender and imposed an effective twenty-four-year sentence. On appeal, the defendant argues the evidence was insufficient to support his convictions for aggravated assault, possession of cocaine with the intent to sell and/or deliver, and possession of a firearm during the commission of a dangerous felony. The defendant also challenges the trial court's evidentiary rulings regarding evidence of the defendant's gang affiliation. Finally, the defendant challenges the trial court's imposition of consecutive sentences. 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

          Joshua B. Dougan, Jackson, Tennessee, for the appellant, Jeremy Peres Duncan.

          Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Jody Pickens, District Attorney General; and Aaron Chaplin, Assistant District Attorney General, for the appellee, State of Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court, in which John Everett Williams and Camille R. McMullen, JJ., joined.

          OPINION

          J. ROSS DYER, JUDGE

         FACTS

          While on patrol in Madison County, Tennessee on October 20, 2015, two police officers in an unmarked car passed the defendant and his co-defendant, Corbyn Davis, walking down the street. As they passed, the officers noticed a "bulge" in the defendant's waistband. When the officers made a U-turn and headed back in the defendant's direction, the defendant displayed a gun, but then fled the scene once the officers identified themselves. After a short pursuit, the officers apprehended and arrested the defendant and Mr. Davis. Subsequent to his arrest, the defendant was indicted for: two counts of aggravated assault, one count of possession of cocaine with the intent to sell, one count of possession of cocaine with the intent to deliver, two counts of possession of a firearm during the commission of a dangerous felony, one count of being a felon in possession of a handgun, and one count of tampering with evidence.

         I. Motion to Suppress

         Prior to trial and at issue in this appeal, the State filed a notice of intent to use evidence of the defendant's gang membership "for the limited purpose of proving motive, intent[, ] and clarification of the facts" as to the defendant's aggravated assault charges. According to the State, after his arrest, "the [d]efendant admitted that he was a Vice Lord" and "made a spontaneous statement that he thought the officers were members of the Crip[s] street gang." At trial, the State intended to assert that "this statement made to [the officers] proves motive and intent of [the] [d]efendant to commit aggravated assault by displaying his weapon toward[s] officers, which he thought were Crips." The State also sought to introduce photographs of the defendant's gang-related tattoos to corroborate his statements. In response, the defendant argued evidence of his gang membership was irrelevant and inadmissible under Rules 403 and 404(b) of the Tennessee Rules of Evidence. The defendant further asserted the statement he made to police officers violated his Miranda rights, arguing he "made the alleged statement at issue only in response to vigorous questioning by law enforcement personnel immediately after his arrest."[1] If the trial court ruled in favor of the State, the defendant requested the trial court limit the evidence "only to [the defendant's] statement to law enforcement personnel." These evidentiary issues, and others, were taken up at the motion to suppress hearing wherein the arresting officers testified on behalf of the State.

         Investigator Kelly Schrotberger of the Jackson Police Department gang enforcement team testified he was on routine patrol with his partner in the Hatton Street area on October 20, 2015, when he encountered the defendant and Mr. Davis. As the officers passed the two men in an unmarked vehicle, Investigator Schrotberger noticed "one of the males had a large bulge in . . . the front of his pants area, which is commonly identified as a weapon or narcotics." As a result, the officers drove past the defendant and Mr. Davis and then turned around to approach the men head-on. As the officers "got closer" to the men, the defendant "pulled his shirt up and exposed a weapon he had stuck in the front of his shirt." Investigator Schrotberger explained the defendant "reached and grabbed the weapon and started removing the weapon from his waistband, pulling it in an upward direction." As the defendant did so, the officers "stopped [their] car, jumped out, identified [themselves], and Mr. Davis and [the defendant] fled on foot from [them]." Subsequently, both men were apprehended, arrested, and found with "narcotics in their possession."

         After his arrest, the defendant was transported to the hospital where he told Investigator Schrotberger that he swallowed drugs during the pursuit. Investigator Schrotberger further explained the defendant stated "the reason he pulled his gun out is because he thought we were Crip[s] gang members. [The defendant] said that he saw our hats in the car and he thought our hats were tilted to a certain way." The defendant also told the officers that he was a Vice Lord. According to Investigator Schrotberger, the defendant offered this information while in the hospital, absent any questioning from the officers. Specifically, Investigator Schrotberger stated that while in the hospital, "we're talking back and forth. I'm not asking -- I didn't ask him any questions related to him pulling the gun or the drugs or anything." Regarding the defendant's gang membership, Investigator Schrotberger testified the defendant "has numerous Vice Lord tattoos that are associated with the People Nation and the Vice Lords; he's documented in TDOC as a Vice Lord; he told me he was a Vice Lord; we spoke about it, a lot of things." Investigator Schrotberger identified photographs he took of the defendant's tattoos, and, after being qualified as an expert in gang identification and analysis, he explained the tattoos on the defendant "identif[y] him within the prison system or on the street as a Vice Lord."

         On cross-examination, Investigator Schrotberger stated he did not speak with the defendant on the scene of the arrest, but rather spoke to the defendant in the emergency room while he was receiving medical care. Specifically, Investigators Schrotberger and Rhodes were in the hospital room with the defendant for about fifteen or twenty minutes during which "he had explained to [Investigator Schrotberger] why he showed us his weapon and everything." The defendant was not read his Miranda rights while in the hospital because, according to Investigator Schrotberger, "I never -- I wasn't questioning him about the crime or what had just happened. I didn't have any reason to read him his rights. He was speaking freely to me." Investigator Schrotberger additionally stated he did not read the defendant his Miranda rights prior to taking photographs of the defendant's tattoos at the gang enforcement office, but rather followed the "commonly used" policy of the gang enforcement team in taking the photographs.

         Investigator Antonio Rhodes, who was patrolling the Hatton Street area with Investigator Schrotberger, then testified. Investigator Rhodes explained they "made a U-turn" to identify the defendant and Mr. Davis after seeing them walking down the street. Investigator Rhodes stated, "we were coming back toward them and we observed [the defendant] display a handgun to us, and then he actually put his hand on it and started to pull it out." The officers then "drew [their] firearms inside the car and [they] exited [their] vehicle immediately and told [the defendant and Mr. Davis] to get their hands up." The men, instead, fled the scene. Investigator Rhodes pursued the defendant and "observed him throw a firearm in some bushes and continue running."

         Upon searching the defendant after his arrest, Investigator Rhodes found ".7 grams of crack cocaine in his right watch pocket of his jeans." Before leaving the scene, officers located the gun carried by the defendant, and he was then transported to the jail in a patrol car by another officer. According to Investigator Rhodes, the defendant "had actually vomited in the back seat of the patrol car, so [they] asked him what was wrong with him, and [the defendant] advised us that he swallowed half a gram of crack cocaine." Additionally, at the hospital, the defendant "was just having a conversation" with the officers when he stated "that the reason he did what he did [was] because he thought [the officers] were Crips, which is a street gang, a criminal street gang."

         During cross-examination, Investigator Rhodes confirmed that he asked the defendant what was wrong after learning the defendant vomited in the patrol car. He further confirmed the statements made by the defendant at the hospital, regarding his membership in the Vice Lords and his belief that the officers were Crips. Investigator Rhodes testified these statements occurred absent a Miranda warning "because we weren't questioning him about the case." Rather, "[the defendant] made the statements himself." Finally, Investigator Rhodes stated that prior to the photographs of the defendant being taken, he believed the defendant signed a Miranda waiver and agreed to submit to the same.

         Investigator Michael Byrd also testified, stating he relieved Investigators Rhodes and Schrotberger from the hospital. When he arrived, Investigator Byrd described the defendant as "laughing, joking, cutting up. . . . he was talking." Further, Investigator Byrd stated the defendant "started going over what happened that day, things like that, going through the chain of events." While Investigator Byrd sat with the defendant in the hospital, the defendant explained that he "didn't know [the investigators] were police. . . . He started to pull his gun or something and he thought they were some Crips or something, and then when he realized they were police, he threw his 4-5 and took off running or something like that." Investigator Byrd stated he did not read the defendant his Miranda rights because his "intent wasn't to ask him any questions."

         Subsequent to the hearing, the trial court produced a written order addressing the various suppression issues raised during the hearing. In its order, the trial court granted the defendant's motion in limine "with regard to all statements made by [the] [d]efendant at Jackson-Madison County General Hospital in the presence of law enforcement on October 20, 2015." However, the trial court denied the defendant's motion in limine as to his statements concerning the "alleged motive for displaying a weapon made immediately after his apprehension on October 20, 2015." The trial court also denied the defendant's motion regarding his statement "concerning his ingestion of an illicit substance made in the presence of law enforcement at or near the Madison County Criminal Justice Center on October 20, 2015." Finally, the trial court denied the defendant's motion as to the "proposed photographs of [the] defendant's tattoos." The parties then proceeded to trial under this evidentiary framework.

         II. Trial

         At the outset of trial, the parties agreed to bifurcate the defendant's felon in possession of a firearm charge before proceeding with the evidence. Investigator Rhodes testified in greater detail about the interaction he had with the defendant on October 20, 2015. Specifically, he explained he was in the passenger's seat of an unmarked patrol vehicle driven by Investigator Schrotberger around 1:30 p.m. when they noticed two men walking down the street. The defendant, who was closest to the vehicle, "appeared to have a large bulge in his right waistband." The officers "weren't 100 percent positive" what the bulge was, so they turned around approximately 15 yards ahead of the men. As the officers drove back towards the men, Investigator Rhodes saw the defendant "pull[] his coat open and . . . proceed to pull out the firearm." He stated the defendant pulled the gun "probably where the muzzle was coming out of his waistband, the barrel of the gun." Both officers yelled "[g]un, " "unholstered [their] weapons, " and got out of the car. Upon exiting the car, the officers, wearing "vests with [']Police['] in about two-inch white letters, " yelled "Police, " and the defendant and Mr. Davis ran. Investigator Rhodes testified he and Investigator Schrotberger pulled their guns "because [they] felt threatened that [the defendant] was going to shoot [them], and [they] felt in danger for [their] lives."

         The defendant and Mr. Davis ran in different directions. Investigator Rhodes pursued the defendant on foot down an alley. During the pursuit, he saw the defendant "throw the weapon" into "some bushes." After the defendant threw the weapon, Investigator Rhodes continued to chase him for another 75 yards before arresting the defendant in a residential back yard. Investigator Rhodes handcuffed the defendant, walked him back to the original scene, and searched him. Upon searching the defendant, Investigator Rhodes found crack cocaine in the defendant's right watch pocket, weighed it, and put it into an evidence bag for testing. According to the digital scale used at the scene, the cocaine, packaged in "a little clear baggie, " weighed 0.7 grams. Investigator Rhodes retrieved the defendant's gun, a .45 caliber semi-automatic, which was loaded with eight rounds. The defendant was then placed in a patrol car and taken to jail. Both the cocaine and the handgun were entered into evidence at trial.

         While being transported to jail, the defendant vomited in the back seat of the patrol car. Investigator Rhodes asked the defendant "what was wrong with him, and [the defendant] advised [him] that he swallowed a half a gram of crack cocaine while [Investigator Rhodes] was chasing him." The defendant was then taken to the hospital. Two days later, Investigators Rhodes and Schrotberger read the defendant his Miranda rights and conducted a recorded interview of the defendant in their office, portions of which were played for the jury at trial. During the interview, the defendant ...


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