State of Tennessee v. Lonta Montrell Burress, Jr. and Darius Jerel Gustus ( 2014 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
August 19, 2014 Session
STATE OF TENNESSEE v. LONTA MONTRELL BURRESS, JR., AND
DARIUS JEREL GUSTUS
Appeal from the Criminal Court for Hamilton County
Nos. 279579, 279580, 279581, 279605 Honorable Don W. Poole, Judge
No. E2013-01697-CCA-R3-CD - Filed December 4, 2014
The Defendant-Appellant, Lonta Montrell Burress, Jr., was convicted as charged by a
Hamilton County jury of three counts of aggravated assault, one count of possession of a
deadly weapon during the commission of an offense not defined as a dangerous offense, one
count of theft of property, one count of felony evading arrest, and one count of misdemeanor
evading arrest.1 The trial court sentenced Burress to an effective sentence of six years. The
other Defendant-Appellant, Darius Jerel Gustus, who was tried jointly with Burress, was
convicted as charged of three counts of aggravated assault, one count of possession of a
deadly weapon during the commission of an offense not defined as a dangerous offense, one
count of felony reckless endangerment, and one count of misdemeanor evading arrest. The
trial court also sentenced Gustus to an effective sentence of six years. On appeal, Burress
argues: (1) the evidence is insufficient to sustain his aggravated assault convictions and his
theft conviction; (2) the trial court erred in denying a mistrial based on the admission of gang
testimony; (3) the trial court erred in denying a mistrial based on a Bruton violation; and (4)
the trial court erred in determining that LaJuana Woods was an unavailable witness pursuant
to Tennessee Rule of Evidence 804 and erred in allowing the State to have Woods read her
testimony from the juvenile court transfer hearing transcript at trial. On appeal, Gustus
contends: (1) the evidence is insufficient to sustain his aggravated assault conviction
regarding victim Frederick Jones, Jr.; (2) the trial court erred in denying a mistrial based on
the admission of gang testimony; and (3) the trial court erred in admitting two bandanas
because there was an improper chain of custody. Upon review, we affirm the judgments of
the trial court.
1
Prior to trial, the State dismissed charges against Burress for leaving the scene of an accident and
reckless driving.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J OHN E VERETT
W ILLIAMS, J., and R OBERT L. J ONES, S P. J., joined.
John G. McDougal, Chattanooga, Tennessee, for Defendant-Appellant, Lonta Montrell
Burress, Jr., and Galen P. Pickard, Chattanooga, Tennessee, for the Defendant-Appellant,
Darius Jerel Gustus.
Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel;
William H. Cox, III, District Attorney General; and Cameron B. Williams and Bret
Alexander, Assistant District Attorneys General, for the Appellee, State of Tennessee.
OPINION
Trial. Rodney Billingsley, a salesman for M & J Shoes in Chattanooga, Tennessee,
testified that his truck was stolen from his job on December 4, 2010. That day, he went
outside and cranked his truck to warm it up at 7:15 p.m. because the shop closed at 7:30 p.m.
When he returned to the store to close it for the day, he heard someone driving his truck
down the road. At the time, he was not overly concerned because he thought one of his
friends was playing a trick on him. Approximately fifteen minutes later, when it was time
for Billingsley to leave work, he discovered that his truck had not been returned and
immediately called the police to report it stolen. Billingsley2 said he never saw the person
who took his truck. However, he asserted that he did not know Lonta Burress and had never
given Burress permission to take his truck.
Billingsley had purchased the truck, a red Ford F-150, six months earlier for $4500
and stated that it was in excellent condition at the time it was stolen. Three days after his
truck was taken, the police notified him that it had been totaled in a wreck at Third Street.
Florida Wynn, an officer with Chattanooga Police Department, testified that on
December 7, 2010, at 2:35 p.m. she was dispatched to the intersection of Through Street and
Greenwood Road in Hamilton County, Tennessee. When she arrived at that location, she
talked to Ronald Madden, Frederick Jones, Jr., Jamichael Eubanks, and Tramelvin Simmons,
who told her that two African-American males had fired shots from a red F-150 pickup truck.
Madden also told her that these two men were wearing either blue or black bandanas over
2
We acknowledge that we do not use titles when referring to every witness. W e intend no disrespect in doing
so. Judge John Everett W illiams believes that referring to witnesses without proper titles is disrespectful even though
none is intended. He would prefer that every adult witness be referred to as Mr. or Mrs. or by his or her proper title.
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their faces when the shots were fired from the truck. Officer Wynn issued a statement for
other officers to be on the lookout (BOLO) for two African-American males driving a red
F-150 truck.
Ronald Madden testified that on December 7, 2010, he called the police because he
saw two African-American teenagers in a truck, one of whom was firing gunshots at several
unarmed students at the intersection of Greenwood Road and Through Street. Madden saw
a school bus stop and then saw eight or nine students exit the bus and begin walking down
Through Street. At the time, a red F-150 pickup truck was parked behind the bus, and when
the bus pulled away from the bus stop, the person on the passenger side of the truck hoisted
himself up on the window ledge and fired with a single gun three or four shots over the truck
at a group of eight or nine unarmed students. Madden said the shooter had a blue bandana
covering his mouth. When the shots began, the students started running toward Through
Street. The truck backed up onto Greenwood Road, and then proceeded up Through Street,
and the passenger fired four or five more shots from a single gun at the fleeing students, who
were by that time on the opposite side of the street. Madden said it was obvious that the
shooter was aiming at a “certain individual” because when that person ran toward Through
Street, the truck backed up and followed him. He said he was able to get a good look at the
shooter because the shooter was on his side as the truck drove up Through Street. During the
shooting incident, Madden said he “actually felt helpless” and was upset and fearful because
the victims in this case could have been his own children. Madden said he called 9-1-1
during the shooting incident. After reviewing the video recording of the police chase,
Madden said the red truck from the shooting incident was the same red truck involved in the
police chase.
Tramelvin Simmons testified that in 2010, he attended Brainerd High School and rode
the school bus every day to school. On December 7, 2010, as he was getting ready to exit
the school bus, he heard ten to fifteen gunshots but could not determine their origin. He ran
a long way down Through Street before taking cover behind some trees. Simmons could tell
that shots were being fired behind him as he ran because the bullets were passing him and
hitting homes in front of him. He said there were seven students with him who were running
for cover, including his brother Frederick Jones, Jr., and another student named Jamichael
Eubanks, and that they all ran in different directions when the shooting began. Simmons said
that at the time of the shooting he was scared and afraid that he would be injured because he
knew he was in a dangerous situation. He did not know where Jones was when the shots
were fired, although he saw him exit the bus. He said Jones was walking when he first got
off the bus; however, when the shooting began, everyone began running, although he did not
specifically see Jones running. Simmons said Jones knew Burress and Gustus because they
all attended the same high school, but he was unsure whether Jones had ever had problems
with Burress or Gustus.
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Justin Allen, an officer with the Chattanooga Police Department, testified that he was
assigned to the crime suppression unit, which “respond[s] to shootings, major activities,
crimes, gang-related activities and things of that nature.” On December 7, 2010, at around
3:00 p.m., he was dispatched to the area of Greenwood Road and Through Street because
shots had been fired by a passenger inside a red F-150 truck. After patrolling the area for
five to ten minutes, Officer Allen found a vehicle matching that description in the 1000 block
of Dodson Avenue, which was approximately two miles from the intersection of Greenwood
Road and Through Street. He said the truck was traveling south on Dodson Avenue with
three occupants. Officer Allen identified Burress as the individual driving the truck. He also
said a male and a female were passengers in the truck. When he saw the truck, he made a
U-turn and initiated a traffic stop. When Officer Allen was about to exit his patrol car,
Burress drove away from the scene. Officer Allen notified dispatch that the truck had fled
and began pursuing the truck. He explained the manner in which Burress tried to avoid
capture:
The vehicle turned left onto Arlington Avenue through Willow Housing
Development, got down to Wilson Street where it blew a stop sign, almost
causing a wreck with a vehicle, where it turned back east onto Wilson Street,
ran through another stop sign at Wilson and North Chamberlain and continued
traveling [at] a high rate of speed going towards Memorial Hospital where it
was weaving in and out of traffic, driving erratically, went through another
light, continued to travel on Greenwood . . . still driving erratically at high
rates of speed and in and out of traffic, in and out of its lane, turned right onto
McCallie where it blew a red light at McCallie and continued to go west on
McCallie to North Willow.
After that time, [Burress] was going [at] high rates of speed going
around other cars, dodging traffic, and when it turned right onto North Willow,
it caused a traffic accident with a red vehicle and continued to travel back on
North Willow until it lost control of the vehicle after running a red light at
Third Street and North Willow, hit a pole and flipped over several times.
Officer Allen stated that his entire pursuit of Burress, which occurred at approximately 3:00
p.m. in heavy traffic, lasted less than five minutes, although he reached speeds of over eighty
miles per hour during the chase. He stated that his pursuit of the truck was recorded by his
in-car video recording system.
Officer Allen stated that following the crash, all three occupants of the truck crawled
out of the vehicle and fled on foot. He followed the suspects in his patrol car and finally
exited his vehicle and followed them on foot. Officer Allen saw Burress in the alley and
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ordered him to stop, but Burress ran, and Officer Allen continued to pursue him on foot. He
eventually caught Burress at the corner of Cleveland Avenue and North Kelly Street. After
restraining Burress, Officer Allen returned to the scene of the accident. He observed that the
red truck had sustained such serious damage that it had “split in half.”
Rusty Morrison, an officer with the Chattanooga Police Department, testified that he
was assigned to the crime suppression unit, which was “more of a support unit for the entire
department for different divisions, for either working homicides, shootings, robberies and
so forth.” On December 7, 2010, Officer Morrison was in his office when he overheard a
call come in over the radio regarding the shots that were fired at the bus stop. He said that
he did not immediately respond to this first call because there were other officers in the field.
However, when he overheard Officer Allen advising dispatch that he was in pursuit of the
truck that matched the description of the vehicle the suspects were driving during the
shooting incident, Officer Morrison drove to the general location of the wreck. As he was
in route, he learned that the truck the suspects were in had been involved in a crash and that
Officer Allen had detained one of the suspects in an alley.
Officer Morrison knew there were two suspects, a male and a female, that had not yet
been detained. He began looking for these two suspects in an apartment complex nearby.
When he got to the front of the complex, he saw Gustus walking across Dodson Avenue.
Officer Morrison said that there were several officers in the area because of the crash, and
a crowd had gathered to watch what the officers were doing. Despite this chaos, Gustus
walked across the road and never looked at the officers. Gustus, who was carrying an Oreo
racing jacket, then walked into a recycling center. Officer Morrison immediately became
suspicious of Gustus’s behavior because he did not appear to be an employee at the recycling
center.
When Officer Morrison pulled into the area and tried to contact Gustus, he
immediately ran from him. As he pursued him, Officer Morrison identified himself multiple
times as a police officer, but Gustus did not stop. Instead, Gustus ran around a dumpster
before exiting the recycling center and running back across Dodson Avenue and into the
apartment complex. Right before Gustus ran around a building, he dropped his jacket, and
jumped over a fence. Sergeant Royval, who was on the other side of the fence, ultimately
took Gustus into custody. When Officer Morrison returned to examine the jacket Gustus had
dropped, he found two fully-loaded .38 caliber revolvers in the outside pockets of the jacket,
and he found a medical insurance card in the name of Rodney Billingsley inside the jacket.
During an interview at the hospital, Gustus initially denied knowing anything about
a shooting. Gustus said that Burress picked him up and later fled from an officer during a
traffic stop. Eventually, Gustus admitted to Officer Morrison that he was involved in the
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shooting. He said that he saw Frederick Jones, Jr., and when Jones displayed a weapon, he
got scared and pulled out his weapon and fired it to scare Jones. Gustus acknowledged that
he was sitting in the passenger seat of the truck Burress was driving when he fired his gun.
When they fled the area in the truck, Gustus reloaded his gun in case he had to shoot again
and tossed the spent shell casings out the window of the truck.
Jamichael Eubanks testified that he was seventeen years old, attended Brainerd High
School, and regularly rode the bus to and from school. On December 7, 2010, Eubanks
exited the school bus at the intersection of Greenwood Road and Through Street. He said
Frederick Jones, Jr., and Tramelvin Simmons, along with some other students, got off the bus
with him, and they began walking up the street when they heard several gunshots. Eubanks
could not tell the origin of the shots, although he saw a red truck parked behind the bus. He
was unable to see the occupants of the red truck. Eubanks said he, Jones, Simmons, and the
other students all ran in different directions, although it did not appear that a particular person
was the target of the gunshots. He ran to his house because he was scared that he might get
shot. Eubanks said he knew Burress and Gustus from school and acknowledged that he had
testified at the juvenile court transfer hearing that the gunshots had been fired at them from
the red truck. Eubanks said that when he arrived home, he did not tell his mother about the
shooting. He could not recall what he said to the police during his interview following the
shooting. Specifically, he did not recall telling the police that Lonta Burress and two other
individuals were inside the truck, that the truck had been following the bus, that he thought
a shooting was about to take place, and that the passenger in the truck opened fire a short
time later. He also did not remember telling the police that Jones and Burress had an
ongoing dispute over a girl.
Josh May, another officer with the Chattanooga Police Department, testified that he
worked in the crime suppression unit, which he stated was the “de facto gang unit within the
city” that identified “gang members, ke[pt] track of them” and had “a myriad of other
responsibilities.” He said his unit also assisted federal agencies, helped with warrant
roundups, and supported other divisions within the police department. Officer May
interviewed Jamichael Eubanks at his home after the shooting. During the interview,
Eubanks said that he, Frederick Jones, Jr., and Tramelvin Simmons were riding the school
bus when they realized that a red pickup truck was following them. Eubanks knew
something was going to happen and identified Burress as one of the people inside the truck.
He explained that Burress and Jones had been fighting over a girl and that the dispute
between them was getting worse. Eubanks told Officer May that the passenger in the red
truck actually fired the shots from the passenger side of the vehicle.
Officer May said he was present at the crash scene when officers collected two
bandanas, a light blue one and a dark blue one, from the red truck. He then identified two
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bandanas at trial as the ones collected from the red truck. He stated that he was certain that
these were the two bandanas he saw inside the red truck at the scene, although he did not
personally see them being collected, and the court allowed them to be entered into evidence.
Officer May acknowledged that bandanas like the ones in this case could have been bought
in any store. He further acknowledged that he was not present when the truck wrecked and
that he did not know when the bandanas were put into the truck.
James Russell Davis, II, a special agent forensic scientist with the Tennessee Bureau
of Investigation, was declared an expert in the field of gunshot primer residue analysis.
Agent Davis stated that the gunshot residue kits taken from Burress and Gustus were
negative for gunshot residue. However, he explained that negative results did not mean that
Burress and Gustus had not fired, handled, or been near a gun when it was fired. He stated
that gunshot residue could be removed through activity or washing one’s hands. He also said
that a person could fire a gun while wearing gloves and then throw the gloves away, which
could cause a negative result.
LaJuana Woods testified that she knew Burress and Gustus but did not remember
anything that happened on December 7, 2010. When Woods said that she could not
remember anything about a shooting incident involving a red truck on December 7, 2010, the
State presented her with a copy of the transcript from the juvenile court transfer hearing to
refresh her recollection. She then testified that she could not recall being picked up by
Burress in a red truck on December 7, 2010. She acknowledged that she had talked to the
State about this case within the last week but asserted that her answers to the State’s
questions during that meeting had come from the juvenile court transfer hearing transcript
and not from her independent recollection of those events. At that point, the State requested
that it be allowed to treat Woods as an adverse witness, which the court granted. Woods
again stated she did not remember Burress picking her up in a red truck on December 7,
2010, and did not remember giving prior testimony about the December 7, 2010 incident.
She denied that she was feigning memory loss because she had been threatened.
The State requested that Woods review the transcript from the prior hearing and then
asked if she could remember testifying about why she left her home on December 7, 2010.
When Woods said she could not recall her testimony in response to that question, the State
asked her to read her answer from the transcript. She then read that Burress had picked her
up. When Woods said that she no longer remembered her testimony from the prior hearing,
the court told her to “[a]nswer his questions as best you can.” At that point, the State asked
Woods the same questions that she had been asked at the prior hearing and then had Woods
read her response from the transcript. By having Woods read her responses from the prior
hearing, the State was able to present evidence that Burress had picked up Woods in a red
pickup truck, and she had sat between Burress, who was driving, and Gustus, who was in the
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passenger seat. When Woods first got in the truck, a small gun was lying in the middle seat
where she was going to sit, and she moved it to the floorboard of the truck. She said that the
truck ended up behind a bus, and when some of the teenagers in the bus began staring at
them, Gustus fired four shots at a boy, although she did not know the boy’s name. When
Gustus began shooting, the boy ran. Woods said that there were other teenagers around when
Gustus started shooting at the boy and that Gustus used the gun that she moved to the
floorboard of the truck. After the shooting incident, Burress drove them through the Wilcox
Tunnel, and they got stopped by an officer. When the officer never got out of his patrol car,
Burress drove off and wrecked the truck following a high-speed police chase. Following the
wreck, Woods, Burress, and Gustus ran in different directions. After reading her prior
testimony, Woods said that the transcript did not refresh her recollection about what had
happened on December 7, 2010.
Woods stated that she could not remember what had occurred on December 7, 2010,
because she had been hit in the head with a bat when a fight broke out at a concert in Atlanta,
and her injuries to her skull required her to be hospitalized for two days. She also stated that
she nearly died prior to having her child in 2011. She remembered flipping over in the truck
and glass shattering, but she did not remember anything about the shooting. Although she
did not remember the things she testified to at the juvenile hearing, Woods acknowledged
that if her responses were in the transcript from that hearing, she probably made those
statements at the time. Woods agreed that she had previously testified that Burress never
fired a weapon during the incident and that neither she nor Burress were wearing a mask
during the incident.
Woods admitted that she had previously testified that four shots were fired but that
she could not remember if any other shots were fired or if the gun was reloaded. She also
could not remember whether Gustus wore anything covering his face, although she
acknowledged that she had previously testified Gustus had not worn anything to disguise
himself. She said she had previously testified that Gustus stuck his hand out of the side of
the truck before firing his gun. She was unable to recall whether Gustus fired his gun at one
person or a crowd but acknowledged that she had testified at the transfer hearing that Gustus
had shot at one person.
ANALYSIS
I. Sufficiency of the Evidence. Burress argues that the evidence is insufficient to
sustain his convictions for aggravated assault and theft, and Gustus contends that the
evidence is insufficient to support his conviction for aggravated assault involving victim
Frederick Jones, Jr. We conclude that a rational jury could have found Burress and Gustus
guilty beyond a reasonable doubt of these offenses.
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The State, on appeal, is entitled to the strongest legitimate view of the evidence and
all reasonable inferences which may be drawn from that evidence. State v. Davis, 354
S.W.3d 718, 729 (Tenn. 2011) (citing State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010)).
When a defendant challenges the sufficiency of the evidence, the standard of review applied
by this court is “whether, after reviewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). Similarly, Rule
13(e) of the Tennessee Rules of Appellate Procedure states, “Findings of guilt in criminal
actions whether by the trial court or jury shall be set aside if the evidence is insufficient to
support the finding by the trier of fact of guilt beyond a reasonable doubt.” Guilt may be
found beyond a reasonable doubt where there is direct evidence, circumstantial evidence, or
a combination of the two. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990)
(citing State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977); Farmer v. State, 343 S.W.2d 895,
897 (Tenn. 1961)).
The standard of review for sufficiency of the evidence “‘is the same whether the
conviction is based upon direct or circumstantial evidence.’” State v. Dorantes, 331 S.W.3d
370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The
jury as the trier of fact must evaluate the credibility of the witnesses, determine the weight
given to witnesses’ testimony, and reconcile all conflicts in the evidence. State v. Campbell,
245 S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim.
App. 1978)). Moreover, the jury determines the weight to be given to circumstantial
evidence and the inferences to be drawn from this evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence are questions
primarily for the jury. Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 646,
662 (Tenn. 2006)). When considering the sufficiency of the evidence, this court shall not
reweigh the evidence or substitute its inferences for those drawn by the trier of fact. Id.
A. Aggravated Assault Offenses Involving Jones. Burress and Gustus, noting that
Jones did not testify at trial, argue that the State presented insufficient evidence that Jones
was in reasonable fear of imminent bodily injury for their respective aggravated assault
convictions. Gustus specifically asserts that the only evidence showing Jones was afraid was
testimony from Tramelvin Simmons and Jamichael Eubanks that Jones ran when the shots
were fired. In his brief to this court, Gustus claims that there was “no proof given as to
where in the vicinity Frederick Jones[,] Jr.[,] was during the shooting, how far away he was
from the shooter, where the shooter [was] and in what direction the shooter was firing,
whether he was being targeted, or that he even knew that a shooting was occurring outside
of other children running.”
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Burress and Gustus were charged with intentionally or knowingly causing Frederick
Jones, Jr., to reasonably fear imminent bodily injury through the use or display of a deadly
weapon. See T.C.A. § 39-13-102(a)(1)(B) (2010) (amended July 1, 2011 and July 1, 2013).
Aggravated assault based on fear requires the victim to have a “well-grounded apprehension
of personal injury or violence.” State v. Jones, 789 S.W.2d 545, 550-51 (Tenn. 1990).
Circumstantial evidence is sufficient to establish a victim’s fear of imminent bodily injury.
State v. Jessie James Austin, No. W2001-00120- CCA-R3-CD, 2002 WL 32755555, at *5
(Tenn. Crim. App. Jan. 25, 2002) (citations omitted). “The element of ‘fear’ is satisfied if
the circumstances of the incident, within reason and common experience, are of such a nature
as to cause a person to reasonably fear imminent bodily injury.” State v. Gregory Whitfield,
No. 02C01-9706-CR-00226, 1998 WL 227776, at *2 (Tenn. Crim. App. May 8, 1998) (citing
State v. Jamie Lee Pittman, No. 03C01-9701-CR-00013, 1998 WL 128801, at *5 (Tenn.
Crim. App. Mar. 24, 1998)).
A victim’s fear may be inferred from circumstances surrounding the offense, even if
the victim does not testify at trial. See State v. Barry Smith, No. W2011-02122-CCA-R3-
CD, 2013 WL 6388588, at *14 (Tenn. Crim. App. Dec. 5, 2013) (concluding that the non-
testifying victims were in reasonable fear of imminent bodily injury when witnesses testified
that these victims were inside the house at the moment the defendants began shooting and
that people were “hollering” and “screaming” and were trying to find a place to hide from
the “bullets flying from every angle”); State v. Szumanski Stroud, No. W2006-01945-
CCA-R3-CD, 2007 WL 3171158, at *3 (Tenn. Crim. App. Oct. 29, 2007) (holding that two
non-testifying victims were in reasonable fear of imminent bodily injury when the evidence
showed that they had a violent altercation with the defendant at their home, that the
defendant pointed a gun at one of the victims, and that the defendant fired four or five shots
at the victims inside the car); State v. Harry Jamieson, No. W2003-02666-CCA-R3-CD, 2004
WL 2996910, at *8 (Tenn. Crim. App. Dec. 23, 2004) (concluding that the non-testifying
victims were in reasonable fear of imminent bodily injury when other witnesses testified that
the defendant pointed his gun at the victims and that the victims were “hysterical” and
“crying”); Jessie James Austin, 2002 WL 32755555, at *6 (finding that the non-testifying
victim reasonably feared imminent bodily injury when a witness testified the victim was
aware of the defendant’s threatening statements and the defendant pointed his gun at the
victim).
Gustus argues that the State presented no proof regarding Jones’s location during the
shooting or his proximity to the gunfire. This is essentially a zone of danger argument, which
this court has specifically declined to apply in aggravated assault offenses. State v. Bobby
Joe Young, Jr., No. M2010-01531-CCA-R3-CD, 2011 WL 6291813, at *8 (Tenn. Crim. App.
Dec.14, 2011) (citing State v. James Paris Johnson, No. E2008-02555-CCA-R3-CD, 2010
WL 3565761, at *6 (Tenn. Crim. App. Sept.15, 2010) (noting that the zone of danger
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approach is applicable to reckless endangerment cases involving victims who are unaware
of danger but is not applicable to aggravated assault cases based on fear because the latter
offense requires that the victim have a fear or reasonable apprehension of being harmed)).
Instead, the proper inquiry is whether Jones, who did not testify, had a reasonable fear of
imminent bodily injury.
At trial, Officer Wynn testified that upon arriving at the scene, she talked to Ronald
Madden, Frederick Jones, Jr., Jamichael Eubanks, and Tramelvin Simmons, who told her that
two African-American males had fired shots from a red F-150 pickup truck. Madden himself
testified that the passenger in the truck, who was wearing a blue bandana over his face, fired
three or four gunshots at several unarmed teenagers who had just exited a school bus. He
said that when the gunshots were fired, the teenagers scattered and ran for safety, and then
the truck backed up onto Greenwood Road and drove up Through Street, where the
passenger fired an additional four or five shots at a “certain individual.” Madden said that
he “actually felt helpless” and was upset and fearful because the victims in this case could
have been his own children. Tramelvin Simmons testified that he heard ten to fifteen
gunshots and ran for cover. At the time, there were seven students with him who were
running in different directions for cover, including Jamichael Eubanks and Frederick Jones,
Jr. Simmons further testified that he was scared and was afraid that he was going to be
injured because it was a dangerous situation. Jamichael Eubanks testified that he exited the
bus with Frederick Jones, Jr., and Tramelvin Simmons when they heard shots fired, and they
all ran in different directions. Eubanks said he ran home because he was scared that he might
get shot. Officer Morrison stated that Gustus admitted that he fired his gun during the
incident to scare Jones. Officer May testified that Eubanks told him that Burress was inside
the red truck and that Burress and Jones had been fighting over a girl.
In the light most favorable to the State, the evidence shows that Frederick Jones, Jr.,
was present at the scene of the shooting, was one of the teenagers fired upon after exiting the
bus, and was running because he was fearful he might be shot during the incident. Given this
proof, a rational jury could have found that Burress and Gustus intentionally or knowingly
caused Frederick Jones, Jr., to reasonably fear bodily injury through the use of a deadly
weapon. Therefore, we conclude the evidence is sufficient to support the aggravated assault
convictions involving Jones.
B. Aggravated Assault Convictions Under a Theory of Criminal Responsibility.
Burress also contends that the evidence is insufficient to convict him of the three aggravated
assault offenses because there was no proof presented that he fired the gun or had possession
of the gun during the shooting incident. We conclude the evidence is sufficient to sustain all
three of his aggravated assault convictions under a theory of criminal responsibility.
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For the aggravated assault offenses in this case, the State had to prove beyond a
reasonable doubt that Burress intentionally or knowingly caused Tramelvin Simmons,
Frederick Jones, Jr., and Jamichael Eubanks to reasonably fear imminent bodily injury
through the use or display of a deadly weapon. See T.C.A. § 39-13-102(a)(1)(B) (2010). At
trial, the State argued that Burress was guilty of the charged offenses under a theory of
criminal responsibility. An individual is criminally responsible for the conduct of another
person if, “[a]cting with intent to promote or assist the commission of the offense, or to
benefit in the proceeds or results of the offense, the person solicits, directs, aids, or attempts
to aid another person to commit the offense[.]” Id. § 39-11-402(2) (2010). Criminal
responsibility is not a distinct crime but “a theory by which the state may prove the
defendant’s guilt based on another person’s conduct.” State v. Osborne, 251 S.W.3d 1, 16
(Tenn. Crim. App. 2007) (citing State v. Mickens, 123 S.W.3d 355, 389-90 (Tenn. Crim.
App. 2003)). In the theory of criminal responsibility, “an individual’s presence and
companionship with the perpetrator of a felony before and after the commission of an offense
are circumstances from which his or her participation in the crime can be inferred.” State v.
Watson, 227 S.W.3d 622, 639 (Tenn. Crim. App. 2006) (citing State v. Ball, 973 S.W.2d
288, 293 (Tenn. Crim. App. 1998)). In this situation, “[n]o particular act need be shown, and
the defendant need not have taken a physical part in the crime to be held criminally
responsible.” Id. (citing Ball, 973 S.W.2d at 293).
In order to be held criminally responsible for the acts of another, “there must be proof
that the aider and abettor associated himself with the venture, acted with the knowledge that
an offense was to be committed, and shared the principal’s criminal intent.” State v. Hall,
976 S.W.2d 121, 140 (Tenn. 1998) (citing Hembree v. State, 546 S.W.2d 235, 239 (Tenn.
Crim. App. 1976)). There is no requirement that the State “elect between prosecution as a
principal actor and prosecution for criminal responsibility[.]” State v. Hodges, 7 S.W.3d 609,
625 (Tenn. Crim. App. 1998) (citing State v. Williams, 920 S.W.2d 247, 257-58 (Tenn. Crim.
App. 1995)).
Here, the evidence established that Burress, who was driving the red pickup truck,
followed the school bus. When Jones, Simmons, and Eubanks, the three victims in these
counts, exited the bus, Burress followed the victims so that Gustus could shoot at them.
When Gustus fired the shots, the victims ran for cover, and Burress pursued them so that
Gustus could fire additional shots at the victims as they ran down the street. Following this
shooting incident, Burress engaged in a high speed chase to avoid capture. The evidence
established that Burress acted with the intent to promote or assist the commission of the
aggravated assault offenses against these three victims by aiding Gustus in shooting at the
victims. See T.C.A. § 39-11-402(2). Accordingly, we conclude that the evidence is
sufficient to sustain Burress’s three convictions for aggravated assault.
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C. Burress’s Conviction for Theft of Property. Burress also argues that the State
presented no proof that he stole Rodney Billingsley’s pickup truck. We conclude that the
evidence was sufficient to sustain the theft conviction because Burress never provided a
satisfactory explanation for why he was in possession of the stolen truck.
“A person commits theft of property if, with intent to deprive the owner of property,
the person knowingly obtains or exercises control over the property without the owner’s
effective consent.” Id. § 39-14-103(a) (2010). As relevant in this case, the term “deprive”
means to “[w]ithhold property from the owner permanently or for such a period of time as
to substantially diminish the value or enjoyment of the property to the owner[.]” Id. § 39-11-
106(a)(8)(A) (2010). Theft of property valued at $1000 or more but less than $10,000 is a
Class D felony. Id. § 39-14-105(3) (2010).
Viewed in the light most favorable to the State, the evidence at trial showed that
Officer Allen saw Burress driving a red Ford F-150 pickup truck that had been reported as
stolen. Officer May testified that Eubanks told him Burress was inside the red pickup truck
when the shooting incident occurred. It is well established that unsatisfactorily explained
possession of recently stolen goods permits an inference, in light of the surrounding
circumstances, that the individual in possession stole the property or knew that it was stolen.
See, e.g., Bush v. State, 541 S.W.2d 391, 397 n.5 (Tenn. 1976); State v. Anderson, 738
S.W.2d 200, 202 (Tenn. Crim. App. 1987). Whether property is considered recently stolen
“depends upon the nature of the property, and all the facts and circumstances shown by the
evidence in the case.” Bush, 541 S.W.2d at 397 n.5; Anderson, 738 S.W.2d at 202. Based
on the evidence presented at trial, the truck in this case qualified as “recently stolen.”
Moreover, Burress offered no explanation regarding his possession of the truck. Because the
evidence established that Burress was driving the truck without the permission of the owner,
Rodney Billingsley, it was the jury’s prerogative to infer that Burress stole the vehicle.
Accordingly, the evidence is sufficient to support Burress’s conviction for theft.
II. Denial of Mistrial. Burress and Gustus argue that the trial court should have
granted a mistrial when Officer May testified that his primary purpose was to investigate
gang activity after the court ruled that gangs could not be mentioned at trial. Burress also
argues that trial court should have granted a mistrial after the State committed a Bruton
violation.
The decision to grant or deny a mistrial rests within the sound discretion of the trial
court and will not be reversed absent an abuse of discretion. State v. Nash, 294 S.W.3d 541,
546 (Tenn. 2009); State v. Robinson, 146 S.W.3d 469, 494 (Tenn. 2004). A trial court
should declare a mistrial “only upon a showing of manifest necessity.” Robinson, 146
S.W.3d at 494 (citing State v. Saylor, 117 S.W.3d 239, 250-51 (Tenn. 2003)). “‘In other
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words, a mistrial is an appropriate remedy when a trial cannot continue, or a miscarriage of
justice would result if it did.’” Saylor, 117 S.W.3d at 250 (quoting State v. Land, 34 S.W.3d
516, 527 (Tenn. Crim. App. 2000)). “‘The purpose for declaring a mistrial is to correct
damage done to the judicial process when some event has occurred which precludes an
impartial verdict.’” State v. Reid, 164 S.W.3d 286, 341-42 (Tenn. 2005) (quoting State v.
Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996)). The party seeking a mistrial has
the burden of establishing the necessity for a mistrial. Reid, 164 S.W.3d at 342 (citing
Williams, 929 S.W.2d at 388). In determining whether a trial court abused its discretion in
granting or denying a mistrial, this court should consider the following factors: “(1) whether
the State elicited the testimony, (2) whether the trial court gave a curative instruction, and (3)
the relative strength or weakness of the State’s proof.” State v. Welcome, 280 S.W.3d 215,
222 (Tenn. Crim. App. 2007) (citing State v. Lawrence Taylor, No. W2002-00183-CCA-R3-
CD, 2003 WL 402276, at *10 (Tenn. Crim. App. Feb. 14, 2003)).
A. Officer’s Comments about Gangs. Burress and Gustus argue that the trial court
should have granted a mistrial when Officer May testified that his primary purpose was to
investigate gang activity after the court granted a motion in limine precluding the mention
of gangs at trial. Burress specifically argues that Officer May’s comment about gangs was
extremely prejudicial because it allowed the jury to believe that Burress was in a gang, even
though no other evidence presented at trial supported this inference. He also claims that
Officer May’s comment affected the jury’s verdict given the weakness of the State’s case,
which he claims consisted primarily of reminding Woods of her testimony from the juvenile
transfer hearing and of Ronald Madden’s testimony that directly contradicted Woods’s
testimony. Gustus claims that the trial court should have granted a mistrial in this case
because the State elicited Officer May’s testimony, creating a “prejudicial mindset” in the
jury that he was in a gang, because the trial court failed to give a curative instruction, and
because the evidence was far from overwhelming in light of the conflicting testimony, lack
of fingerprints, and negative gunshot residue tests.
Just prior to trial, Burress filed a motion in limine asking the court to preclude “any
testimony in the foregoing case in relation to gangs or gang activity” because such testimony
would “only be used to inflame the jury and would serve no purpose in the instant case.” The
record indicates that Gustus also filed a similar motion in limine, but a copy of this motion
was not included in the record. In a hearing immediately prior to the start of trial, the court
ruled that “nothing concerning gangs shall be mentioned until there is an out-of-jury hearing
[pursuant to Rule 404(b)].”
During trial, the court conducted two 404(b) hearings out of the presence of the jury
wherein the parties questioned Jamichael Eubanks and Officer May. During these hearings,
Eubanks testified that although he knew Burress and Gustus from Brainerd High School, he
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did not know if Burress or Gustus were in a gang. He stated that Frederick Jones, Jr., was
his friend and that Jones was not in a gang. Eubanks did not recall telling the police that the
shooting occurred because Burress was in the Rolling Sixties Crips gang or that Burress and
Jones had a history of fighting. Officer May testified that he worked in the crime suppression
unit, which was “a de facto unit with multi-faceted jobs, but, ideally, targeting gang members
and keeping up with gangs.” Following the wreck, Officer May interviewed Jamichael
Eubanks, who said that Jones and Burress “had had a beef going back a long time over a
female and had been going back and forth at the Eastdale Rec[reation] Center.” Officer May
said that Eubanks disclosed that he had been a member of the Eastdale Bloods gang for the
last couple of months and that Burress was in the Rolling Sixties Crips gang. He did not tell
him whether Gustus was in a gang. Eubanks also told him that Jones and Burress had
ongoing problems over a woman and that the shooting incident “may have been prompted
by the gang activity” because Burress and Jones were in opposing gangs. On cross-
examination, Officer May stated that Burress had never admitted to him that he was in a
gang. Following this testimony, the court commented that the mention of gangs merely
brought in “some prejudicial matter” that did not appear “to be overly probative.” The court
later noted, “[I]f it w[ere] pretty clear cut that gangs were involved [in this shooting] and this
was a feud or fight going on between gangs, I think that would be an exception to 404(b) as
a motive, but I really don’t see that as strong testimony, I’ll be honest with you.” The court
said that it would consider the admissibility of gang testimony over the lunch break.
Later, in the presence of the jury, the following exchange took place between the State
and Officer May during direct examination:
Q. And what do you do with the Chattanooga Police Department?
A. I am currently assigned to the crime suppression unit.
Q. And what is the crime suppression unit?
A. We’re essentially the de facto gang unit within the city. We identify
gang members, keep track of them and have a myriad of
responsibilities.
At that point, the following bench conference was had in the presence of but out of the
hearing of the jury:
[Burress’s attorney]: We’d asked that [information regarding gangs] be
kept out and he’s brought it back in again. I’m
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asking for a mistrial again. I think he’s brought it
in about gangs–
State: I asked him what he did.
Trial court: I think everyone else that’s testified has said the
same thing, talking about a gang unit?
[Gustus’s attorney]: He basically said that’s all he does . . . and it’s
now put in the jury’s mind this is a gang case.
[Burress’s attorney]: Before, the others just do everything else, but he
said specifically they’re for gang members and
everything.
Trial court: I’m going to let him testify as to what he does.
You know, you can broaden it out he’s a police
officer to make him soften that a little bit, if you
will.
The State continued its direct examination of Officer May:
Q. What does the crime suppression unit do?
A. We have a lot of responsibilities, but our main focus is gang members,
identifying gang members and keep[ing] track of them.
Q. Other than identifying gang members and keeping track of them, what
are your other responsibilities with regard to the crime suppression
unit?
A. We assist federal agencies, warrant roundups. We’re kind of a catch-all
unit. We assist other divisions within our, within the department;
homicide, property crimes. Our unit, essentially, we know a lot of
people, there’s a ten-man unit, we know a lot of people and we go out
and we find persons of interest and such.
At the time of Officer May’s first comment, the trial court apparently had not made a final
ruling on the record about the admissibility of gang evidence. However, the trial transcript
and other parts of the record indicate the parties understood that evidence regarding gangs
-16-
would be inadmissible. While Officer May’s remark was in response to a question by the
State, it does not appear that the State intentionally elicited it because other officers testified
about their duties without incident. Moreover, although Burress’s attorney asked for a
mistrial during the bench conference, neither defense attorney asked for the trial court to give
a curative instruction to the jury regarding Officer May’s comment. The trial court, rather
than providing a curative instruction, instructed the State during a bench conference to
“broaden” Officer’s May’s description of the duties of the crime suppression unit to avoid
the implication that this was a gang case. While the State could have asked for a five minute
recess to properly address this issue with Officer May, the State likely believed that Officer
May had heard the court’s instruction and would avoid any mention of gangs in the future.
Officer May’s first and second comments were fleeting, and he never stated that Burress was
a gang member or that the case involved gangs. Finally, the evidence in this case, while
largely circumstantial, was overwhelming. For these reasons, Burress and Gustus have failed
to establish that the trial court abused its discretion in denying a mistrial based on Officer
May’s comments.
B. Alleged Bruton Violation. Citing Bruton v. United States, 391 U.S. 123 (1968),
Burress also contends that the trial court should have granted a mistrial when Officer
Morrison referenced an out-of-court statement by Gustus implicating Burress. Burress
argues that either the State failed to prepare Officer Morrison or that Officer Morrison
intentionally gave the objectionable testimony and that the trial court should have granted the
mistrial because this Bruton violation “irrevocably damaged” his trial.
During direct-examination, Officer Morrison testified that he had generated a report
based on his interview with Gustus at the hospital. At that point, Burress’s attorney asked
to approach, and the following bench conference occurred in the presence of but out of the
hearing of the jury:
[Gustus’s attorney]: Judge, we’re going to object to this [arrest report]
being entered.
[Burress’s attorney]: He’s trying to introduce the arrest report, so, he
can’t do that.
[The State]: It is a redacted version of his statement written
down by the officer, contempora[neously]–
The Court: He took an oral statement and this was just to
refresh his memory about the oral statement in it.
-17-
[Burress’s attorney]: He wants to introduce [the arrest report] into
evidence.
[Gustus’s attorney]: Yeah, it’s hearsay upon hearsay.
[The State]: [Officer Morrison] generated a report shortly after
taking the statement from [Gustus], in which he
writes down what the defendant tells him.
The Court: He can testify [about] what the defendant told
him, he can refresh his memory with that, but I’ll
sustain the objection [about admitting the arrest
report into evidence].
Following this bench conference, the State had Officer Morrison’s report, which was
generated by him shortly after taking Gustus’s statement, marked for identification. Then
the State asked the following questions of Officer Morrison:
Q: Now, after Mr. Gustus waived his Miranda rights, you did take a
statement from him?
A: That’s correct.
Q: Initially, when you spoke to him, did he tell you what happened?
A: He did say, his first story that he gave, that he didn’t know anything
about a shooting, that he was picked up and that–he was picked up by
Mr. Burress and then he fled the scene, upon a traffic stop. But Mr.
Gustus said that he had no knowledge of a shooting.
Then Burress’s attorney again asked to approach the bench, and the following bench
conference occurred:
[The State]: See, that’s the problem. If I can admit the
statement, then there’s not going to be any issues
with Bruton.
[Burress’s attorney]: Saying what he told what my person did and
everything else like that.
-18-
[The State]: I have instructed him that he–
The Court: Well, he can talk about himself, what he’s done,
and then I’ll sustain as far as Mr. Burress is
concerned. You want me to caution the jury?
[Burress’s attorney]: Yeah, caution the jury, but I mean, it’s hearsay.
I’m almost ready to ask for a mistrial.
The State: Should I admonish him again, I mean outside the
presence of the jury or you want me to do it right
now?
[Burress’s attorney]: I think it needs to be done outside.
The court took a five-minute recess to allow the jury to leave the courtroom. During this
recess, the following exchange took place:
The Court: Objection was made at the bench in regard to the
statement from Detective Morrison from
[Burress’s attorney] on behalf of his client in
regard to anything being mentioned about Mr.
Burress, and which has been sustained.
[Burress’s attorney]: And of course I made [a] motion for a mistrial
and the Court has denied that, correct?
The Court: Well, you said you’re getting close to asking for
a motion for a mistrial, are you doing that?
[Burress’s attorney]: Yes, Your Honor, I am.
The Court: Well, I think from what I’ve heard, [it’s] very
hard to understand what the officer said, so I
don’t think that arises to the manifest necessity, I
think there can be curative steps taken to make
sure, and I’ll be glad to give a curative instruction
that this officer, any statement taken by Mr.
Gustus shouldn’t refer to anyone else at all and
they should . . . not consider that.
-19-
The State then voir dired Officer Morrison about the fact that he was precluded from
mentioning any comment that Gustus made about Burress when testifying about Gustus’s
statement. The trial court denied the motion for a mistrial, stating, “[It was] very difficult
to understand at that point in time, I think, what the detective was talking about, but based
upon the request of [Burress’s attorney], I will indicate to the jury that they should not
consider anything said to the detective by Mr. Gustus in regard to anyone else, [that] anything
else should not be considered by them at all.”
When the jury returned to the courtroom, the trial court gave the following curative
instruction:
Members of the jury, prior to you going out for the short recess, the
Detective Morrison was asked certain questions and started giving you a
response as to when he talked to defendant Gustus as to what he said. In that
brief remark, he started to indicate that another name was mentioned, someone
else is mentioned. You should not consider anyone else in regard to the
statement of Mr. Gustus other than Mr. Gustus. And I will give you
instructions in regard to how you may consider that at a later date or in the
instructions later, but you are not permitted to consider any statement about
anyone else, should not consider that in your deliberations at all, this only
concerns Detective Morrison’s interview with defendant Darius Jerel Gustus.
Burress contends that the trial court should have granted a mistrial because Officer’s
Morrison’s statement constituted a Bruton violation. Admission of a non-testifying
codefendant’s confession implicating the defendant at a joint trial violates a defendant’s
constitutional right to confrontation. Smart v. State, 544 S.W.2d 109, 111-12 (Tenn. 1976)
(citing Bruton, 391 U.S. at 126). While we agree that Officer Morrison’s remark was a
Bruton violation, not every Bruton violation justifies a reversal of the conviction. State v.
Elliot, 524 S.W.2d 473, 478 (Tenn. 1975) (citing Harrington v. California, 395 U.S. 250, 254
(1969)); Schneble v. Florida, 405 U.S. 427, 430 (1972). If “the properly admitted evidence
of guilt is so overwhelming, and the prejudicial effect of the codefendant’s admission is so
insignificant by comparison[,]” then the improper use of the admission is harmless beyond
a reasonable doubt. Schneble, 405 U.S. at 430; see Elliot, 524 S.W.2d at 478. Reversal is
not required unless it is proven beyond a reasonable doubt that the error complained of
contributed to the verdict. Chapman v. California, 386 U.S. 18, 24 (1967).
The record shows that although Officer Morrison’s comment was in response to the
State’s question, the State did not intentionally elicit the challenged testimony. At the time
of the statement, the court sustained the defense’s objection to the admission of the police
report outlining Gustus’s statement but denied a mistrial and instead gave the jury a curative
-20-
instruction telling the jury to disregard the statement about Burress. Officer Allen and
Woods testified that Burress was in the truck when shots were fired. Officer Mays testified
that Eubanks had told him that Burress was inside the truck when shots were fired from the
truck. This proof did not depend upon Officer Morrison’s remark. While Officer Morrison’s
comment was improper, it was brief, and the trial court promptly provided an effective
curative instruction. See State v. Dick, 872 S.W.2d 938, 944 (Tenn. Crim. App. 1993). We
must presume that the jury followed the trial court’s instructions not to consider Officer
Morrison’s improper remark. State v. Smith, 893 S.W.2d 908, 923 (Tenn. 1994) (citing State
v. Baker, 751 S.W.2d 154, 164 (Tenn. Crim. App. 1987)). In reaching this decision, we note
that “‘[a] defendant is entitled to a fair trial but not a perfect one.’” Bruton, 391 U.S. at 135
(quoting Lutwak v. United States, 344 U.S. 604, 619 (1953)). Given the evidence presented
in this case, “we conclude that the minds of an average jury would not have found the State’s
case significantly less persuasive had the testimony as to [Gustus’s] admission been
excluded.” Schneble, 405 U.S. at 432 (internal quotation marks omitted). Because the
comment did not result in a miscarriage of justice and did not preclude an impartial verdict,
Burress has failed to show that the trial court abused its discretion in denying the motion for
a mistrial.
III. Admission of Bandanas into Evidence. Gustus argues that the trial court erred
in allowing the State to admit two bandanas that were found in the truck after Burress and
Gustus fled from the scene of the wreck. He claims that these bandanas should not have been
admitted because the State failed to establish a proper chain of custody. We conclude that
the trial court properly admitted this evidence.
On direct examination, the State asked Officer May if he recalled the collection of
bandanas from the wrecked red Ford F-150. During the ensuing bench conference, the
following exchange took place:
[Burress’s attorney]: While he may go ahead and recall it, he’s not the
one that–I think somebody else went ahead and
collected them and everything else.
[The State]: I don’t have to have the person who collected it as
long as he can say that those bandanas are the
ones collected from the truck.
The Court: Just as long as he can properly authenticate them,
identify them.
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[Burress’s attorney]: Yeah, because I mean he’s not the one that
collected them, so there’s a chain of custody thing
here, Your Honor.
The Court: If he can identify them.
In the presence of the jury, Officer May identified two bandanas as the bandanas that were
collected from the red Ford F-150, and the State asked that the bandanas be entered into
evidence. During a bench conference, the court held that Officer May had not yet properly
authenticated the two bandanas for admission.
In the presence of the jury, the State asked Officer May how he knew that these
bandanas at trial were the same bandanas collected from the red truck, and Officer May
replied that he had observed the bandanas in the truck, although he was not the officer who
collected them. At that point, the trial court allowed the State to mark the two bandanas for
identification purposes only because it wanted “more authentication” of them. After
detailing the manner in which the Chattanooga Police Department collected evidence, the
State again asked for the exhibit containing the bandanas to be admitted, which prompted
another bench conference where the following exchange occurred:
[Burress’s attorney]: He still has the same problem. He said he saw the
bandanas, but not how they were collected, who
collected them.
The Court: He says he was sure that those were the bandanas.
You all can cross-examine [him] on that.
[Gustus’s attorney]: Chain of custody.
[Burress’s attorney]: I mean that’s not what we can go with. I mean
how[] [doe]s he know [these are the same
bandanas]? He’s not the one that picked them up.
He saw bandanas. There’s nothing to go ahead
and show that these are the bandanas that he saw.
So I mean how can he go ahead and do that?
[Gustus’s attorney]: Chain of custody, Your Honor.
The Court: That’s not the strongest, but he’s identified them,
so I’m going to let them in.
-22-
During cross-examination by Burress’s attorney, Officer May repeatedly stated that the
bandanas admitted into evidence were the same bandanas collected from the truck because
he had been able to observe them inside the truck. When Burress’s attorney objected on the
basis that Officer May was not answering the question, the State disclosed during a bench
conference that the reason Officer May was responding the same way every time was
because the bandanas in the truck were baby blue and dark blue, which were gang colors, and
he had been instructed not to mention gangs in his testimony. The court stated that Officer
May had “probably answered all he’s going to answer.” At the time, the trial court was under
the impression that Officer May had seen the bandanas placed into the evidence bag, which
the defense denied.
When cross-examination continued, Officer May acknowledged that he had not seen
the bandanas being placed in the evidence bag. He further acknowledged that the bandanas
in the truck could have been bought in any store. Then Burress’s attorney asked Officer
May, “[S]o you believe these are [the bandanas] but you’re not quite sure because you didn’t
see that collection, [did not] see them actually put in these bags and sealed?” Officer May
responded, “I have immaculate trust in my team that that was the evidence that was collected
from the truck.” Officer May said he observed these two bandanas when he came “[w]ithin
inches” of the truck a short time after the wreck. However, he acknowledged that he was not
there when the truck was wrecked and did not know how the bandanas got into the truck or
to whom they belonged.
“The requirement of authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to the court to support a finding by the trier
of fact that the matter in question is what its proponent claims.” Tenn. R. Evid. 901(a).
Therefore, the question of whether tangible evidence has been properly authenticated is left
to the discretion of the trial court. State v. Cannon, 254 S.W.3d 287, 295 (Tenn. 2008)
(citing State v. Scott, 33 S.W.3d 746, 752 (Tenn. 2000); State v. Beech, 744 S.W.2d 585, 587
(Tenn. Crim. App. 1987)). The trial court’s determination will not be disturbed in the
absence of a clearly mistaken exercise of such discretion. State v. Holbrooks, 983 S.W.2d
697, 701 (Tenn. Crim. App. 1998 (citing Beech, 744 S.W.2d at 587). Therefore, we will not
reverse unless the “‘court applied an incorrect legal standard, or reached a decision which
is against logic or reasoning that caused an injustice to the party complaining.’” State v.
Shirley, 6 S.W.3d 243, 247 (Tenn. 1999) (quoting State v. Shuck, 953 S.W.2d 662, 669
(Tenn. 1997)).
To admit tangible evidence, the party offering the evidence must either introduce a
witness who is able to identify the evidence or must establish an unbroken chain of custody.
Cannon, 254 S.W.3d at 296; Holbrooks, 983 S.W.2d at 700 (citing State v. Goodman, 643
S.W.2d 375, 381 (Tenn. Crim. App. 1982)). This rule ensures that “‘there has been no
-23-
tampering, loss, substitution, or mistake with respect to the evidence.’” Scott, 33 S.W.3d at
760 (quoting State v. Braden, 867 S.W.2d 750, 759 (Tenn. Crim. App. 1993)). However,
absolute certainty of identification is not required. See State v. Kilpatrick, 52 S.W.3d 81, 87
(Tenn. Crim. App. 2000) (citing Ritter v. State, 462 S.W.2d 247, 250 (Tenn. Crim. App.
1970)). In addition, an item may be admitted even if the State fails to call each witness who
handled the item. Cannon, 254 S.W.3d at 296 (citing State v. Johnson, 673 S.W.2d 877, 881
(Tenn. Crim. App. 1984)). “Reasonable assurance, rather than absolute assurance, is the
prerequisite for admission.” Kilpatrick, 52 S.W.3d at 87. “[W]hen the facts and
circumstances that surround tangible evidence reasonably establish the identity and integrity
of the evidence, the trial court should admit the item into evidence.” Id. at 296.
To buttress his argument that the bandanas should not have been admitted, Gustus
claims that his case is distinguishable from State v. Oscar Dimery, No. E2010-01430-CCA-
R3-CD, 2012 WL 171939 (Tenn. Crim. App. Jan. 20, 2012). In Oscar Dimery, the defendant
asserted that the trial court erred in admitting the defendant’s clothing into evidence because
the State established an insufficient chain of custody. Id. at *8. The defendant argued the
State failed to sufficiently establish the identity of the clothing because no witness could
testify that the clothing had been taken from the defendant, because no inventory sheet
existed, and because the evidentiary procedures had not been followed. Id. The detective,
who interviewed the defendant while he was wearing the clothes in question, signed the
property receipt when the items were collected at the jail and later signed a form showing that
he collected the defendant’s clothes and took them to the Tennessee Bureau of Investigation
for testing. Id. at *6-7. This court held that the trial court did not abuse its discretion by
admitting the evidence because the trial court only admitted the clothing that the officer
could identify and excluded the clothing that the officer could not identify. Id. at *9. In
reaching this decision, the court concluded that the “circumstances surrounding the evidence
reasonably establish[ed] the identity of the evidence and its integrity.’” Id. at *9 (quoting
Scott, 33 S.W.3d at 760).
Gustus argues that unlike the officer in Oscar Dimery, Officer May “did not take any
physical action to place himself within the chain of custody.” Instead, he claims Officer May
merely observed the two bandanas in the truck and asserted that the bandanas presented to
him at trial were the same bandanas that he saw inside the truck. Moreover, he asserts that
unlike the officer in Oscar Dimery, Officer May “was unable to give any distinguishing
factors [regarding] the bandanas that would differentiate [them] from others.” Finally, he
claims that unlike Oscar Dimery, there were no alternate means of identifying bandanas, such
as comparing them to photographs that were taken at the time they were collected. Gustus
argues that if the bandanas had not been admitted into evidence, then there would have been
“additional questions as to the identity of the shooter.” He also claims that by allowing them
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in, “additional evidence was supplied to the jury to corroborate . . . the prejudicial statements
made involving gangs.”
As we previously noted, the jury never heard evidence that Burress or Gustus were
in a gang or that the bandanas in this case represented gang colors. The record shows that
the defense thoroughly cross-examined Officer May regarding his identification of this
evidence, which gave the defense an opportunity to diminish the weight of this evidence to
the jury. Because the facts and circumstances surrounding the bandanas reasonably
established the identity and integrity of this evidence, we conclude that the trial court did not
abuse its discretion in admitting them.
IV. LaJuana Woods’s Unavailability to Testify. Burress argues that the trial court
erred in determining that LaJuana Woods was an unavailable witness pursuant to Rule
804(a)(5) because the State was unable to locate her. He also argues that the State never
requested that Woods be declared unavailable for lack of memory pursuant to Rule 804(a)(3).
Burress claims that after the defense was able to procure Woods’s appearance at trial, the
trial court erred in allowing the State to question Woods as an adverse witness and erred in
allowing the State to have Woods read from the transcript from the juvenile court transfer
hearing rather than requiring her to refresh her recollection from the transcript before
testifying and then attempting to impeach her. Burress claims that he did not waive this issue
by failing to make a contemporaneous objection because he objected at the beginning of
Woods’s testimony. We conclude that because LaJuana Woods was unavailable for lack of
memory under Rule 804(a)(3), her juvenile court testimony was admissible as substantive
evidence under rule 804(b)(1).
During trial, the State notified the court that Woods had failed to appear at trial and
that it was requesting that Woods be declared unavailable so that it could admit her testimony
from Burress’s and Gustus’s juvenile court transfer hearing. Gustus’s attorney objected,
arguing that Woods was not unavailable because she had been present for the first day of
trial, though the State failed to call her to testify, and because the State had failed to
subpoena her with a court-issued subpoena. When Burress asked that the court read Woods’s
testimony from the juvenile court transfer hearing before making a determination regarding
the reliability of the prior testimony, the court stated that it had already reviewed the
transcript from the juvenile court hearing.
After hearing testimony from an investigator in the district attorney’s office, a
lieutenant in the sheriff’s department, and an investigator with the police department, the trial
court found that Woods was unavailable because she intentionally failed to appear at trial
after the State had made every effort to have her appear. It also found that the juvenile court
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transfer hearing carried its own indicia of reliability. A short time later, the defense was able
to procure Woods’s appearance at trial by having Woods’s former attorney contact her.
In the presence of the jury, Woods testified that she knew Burress and Gustus but did
not remember anything that happened on December 7, 2010. When Woods said that she
could not remember anything about a shooting incident involving a red truck on December
7, 2010, the State presented her with a copy of the transcript from the juvenile court transfer
hearing to refresh her recollection. Woods then asked to speak to the trial court, and the jury
was excused. During the jury-out hearing, Woods said, “I have been through surgeries, high
risk pregnancy, almost lost me and my child, and I’m on medications, so I’m trying to figure
out how I should remember everything.” She stated that the only thing she remembered from
December 7, 2010, was the wreck. She also said that she had been in a wreck the previous
night, which had caused her to lose her hearing. The court instructed Woods to testify
truthfully based on her recollection of events.
When the jury returned, Woods testified that she could not recall being picked up by
Burress in a red truck on December 7, 2010. She acknowledged that she had talked to the
State about this case within the last week but asserted that her answers to the State’s
questions during that meeting had come from the juvenile court transfer hearing transcript
and not from her independent recollection of those events. At that point, the State asked that
it be allowed to treat Woods as an adverse witness, which the court granted. Woods again
stated she did not remember Burress picking her up in a red truck on December 7, 2010, and
did not remember giving prior testimony about the December 7, 2010 incident. She denied
that she was feigning memory loss because she had been threatened.
The State requested that Woods review the transcript from the prior hearing and then
asked if she could remember testifying about why she left her home on December 7, 2010.
When Woods said she could not recall her testimony in response to that question, the State
asked her to read her answer from the transcript. She then read that Burress had picked her
up. When Woods said that she no longer remembered her testimony from the prior hearing,
the court told her to “[a]nswer his questions as best you can.” At that point, the State asked
Woods the same questions that she had been asked at the prior hearing and then had Woods
read her response from the transcript. By having Woods read her responses from the prior
hearing, the State was able to present evidence that Burress had picked up Woods in a red
pickup truck, and she had sat between Burress, who was driving, and Gustus, who was in the
passenger seat. When Woods first got in the truck, a small gun was lying in the middle seat
where she was going to sit, and she moved it to the floorboard of the truck. She said that the
truck ended up behind a bus, and when some of the teenagers in the bus began staring at
them, Gustus fired four shots at a boy, although she did not know the boy’s name. When
Gustus began shooting, the boy ran. Woods said that there were other teenagers around when
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Gustus started shooting at the boy and that Gustus used the gun that she had previously
moved to the floorboard of the truck. After the shooting incident, Burress drove them
through the Wilcox Tunnel, and they got stopped by an officer. When the officer never got
out of his patrol car, Burress drove off and wrecked the truck following a high-speed police
chase. Following the wreck, Woods said that she, Burress, and Gustus ran in different
directions. After reading her prior testimony, Woods said that the transcript did not refresh
her recollection about what had happened on December 7, 2010.
Initially, we note that Burress’s argument that the trial court erred by determining that
Woods was unavailable pursuant to Rule 804(a)(5) is moot because Woods ultimately
testified at trial. As to Burress’s complaints about the manner in which the State questioned
Woods, we note that neither Burress’s nor Gustus’s attorney ever objected to the State
treating Woods as an adverse witness or having Woods read her responses from the juvenile
court transfer hearing transcript at trial. Consequently, any issue about Woods reading her
testimony from the prior hearing at trial is waived. See Tenn. R. App. P. 36(a) (“Nothing in
this rule shall be construed as requiring relief be granted to a party responsible for an error
or who failed to take whatever action was reasonably available to prevent or nullify the
harmful effect of an error.”).
Waiver notwithstanding, we note that Woods’s prior testimony was admissible
because she was an unavailable witness based on lack of memory pursuant to Rule 804(a)(3),
which allows for sworn prior testimony of an unavailable witness to be read to the jury at
trial. See Tenn. R. Evid 804(a)(3), Advisory Comm’n Comment to 1994 Amendment
(“Memory lapse, if demonstrated to the trial judge under Rule 104(a), is enough to get the
contents of recorded recollection read to the jury, and the same condition should be enough
to get cross-examining sworn former testimony before the jury.”). Although the trial court
never formally declared Woods to be unavailable pursuant to Rule 804(a)(3) for lack of
memory, the record clearly shows that Woods was unavailable because she demonstrated a
lack of memory of the subject matter of her prior testimony. While it would have been
preferable for the court to formally make the determination that Woods was unavailable
under 804(a)(3) out of the presence of the jury, had the court done so, the substance of
Woods’s testimony before the jury would have been substantially the same as what the jury
heard in this case.
Moreover, there was no question that Woods’s prior testimony from the juvenile court
transfer hearing was reliable, even though it was hearsay under Tennessee Rule of Evidence
801(c), because Burress and Gustus had a similar motive and opportunity to cross-examine
Woods in that prior hearing. See Tenn. R. Evid. 804(b)(1) (stating that former testimony by
an unavailable declarant “given as a witness at another hearing of the same or different
proceeding” is a hearsay exception “if the party against whom the testimony is now offered
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had both an opportunity and a similar motive to develop the testimony by direct, cross, or
redirect examination”). This court has held that a juvenile transfer hearing, which determines
whether there are reasonable grounds to believe that a defendant committed alleged acts, is
reliable. See State v. Summers, 159 S.W.3d 586, 598 (Tenn. Crim. App. 2004); T.C.A. § 37-
1-134(a)(4). Accordingly, we conclude that the trial court did not abuse its discretion in
admitting Woods’s prior testimony based on her unavailability for lack of memory. See State
v. Dotson, 254 S.W.3d 378, 392 (Tenn. 2008) (stating that “questions concerning the
admissibility of evidence rest within the sound discretion of the trial court, and this Court
will not interfere in the absence of abuse appearing on the face of the record”).
CONCLUSION
We conclude that the evidence is sufficient to sustain Burress’s convictions for
aggravated assault and theft and Gustus’s conviction for aggravated assault against Jones.
We further conclude that the trial court did not abuse its discretion in denying a mistrial
based on the admission of gang testimony and the Bruton violation, that LaJuana Woods was
an unavailable witness pursuant to Tennessee Rule of Evidence 804(a)(3), which made her
prior testimony from the juvenile court transfer hearing admissible as substantive evidence,
and that the trial court did not abuse its discretion in admitting the two bandanas into
evidence. Upon review, the judgments of the trial court are affirmed.
__________________________________
CAMILLE R. McMULLEN, JUDGE
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