State of Tennessee v. Dantario Burgess, Rodriguez McNary and Joseph Jones-Cage
W2015-00588-CCA-R3-CD
| Tenn. Crim. App. | Jan 31, 2017Background
- On April 10, 2013, occupants of a green Ford Explorer (including Jones‑Cage, Burgess, McNary, and co‑defendant Bohannon) fired multiple rounds into a crowd at an apartment complex; Demarcus Thomas suffered catastrophic head/face wounds and Shanna Niter was grazed. Shell casings recovered were 7.62x39mm; forensic testing tied the casings to a single rifle.
- Witnesses (Niter and Hervery) identified Jones‑Cage at the scene and later identified Burgess and McNary in photographic lineups; Burgess had a distinctive forehead tattoo/scar complicating lineup composition. Jones‑Cage gave a statement saying others fired while he drove; he later recanted portions at trial.
- A jury convicted Burgess, Jones‑Cage, and McNary of two counts each of attempted first‑degree murder, aggravated assault, and reckless endangerment; Jones‑Cage and McNary were convicted of employing a firearm during a dangerous felony; Burgess also convicted as a felon-in-possession and for firearm employment with prior felony.
- The trial court imposed lengthy, partially consecutive sentences (Burgess 55 years; Jones‑Cage 50 years; McNary 41 years). Burgess filed several pretrial motions (including suppression of identification) and later a pro se coram nobis petition denied by the trial court.
- On appeal the Court of Criminal Appeals affirmed most rulings but reversed McNary’s conviction for employing a firearm during a dangerous felony (holding insufficient proof he employed/made use of the firearm and the jury was not instructed on criminal responsibility for that offense) and remanded for retrial on the lesser‑included possession offense; the court also directed corrections to Jones‑Cage’s judgments.
Issues
| Issue | State's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Suppression of photographic identification (Burgess) | The lineup and identification were not unduly suggestive; procedures and warnings were appropriate | Lineup was suggestive (distinct tattoo and darker photo background); officers hinted by asking witness to come view lineups | Denied: lineup not grossly dissimilar or unduly suggestive; in‑court ID not tainted |
| Sufficiency of indictment (McNary) — omission of predicate dangerous felony in firearm count | Indictment provided adequate notice because attempted murder counts in same indictment made the predicate clear; issue waived if not timely raised | Omission of the predicate felony rendered the firearm count fatally deficient and deprived notice | Denied relief: omission did not render indictment defective under Tennessee practice; adequate notice given |
| Sufficiency of the evidence — attempted murder, aggravated assault, reckless endangerment | Witness ID, ballistics, defendant statements, conduct (arming, firing, fleeing, hiding weapons) support convictions for all defendants; McNary criminally responsible for others’ acts | Challenges to identity, lack of proof McNary fired or that Jones‑Cage personally shot (and whether premeditation/intent to kill proved) | Evidence sufficient for attempted first‑degree murder, aggravated assault, reckless endangerment for all via direct proof or criminal responsibility — except McNary’s conviction for "employing" a firearm reversed for lack of proof he made use of the gun |
| Firearm offense (McNary) — employing firearm during dangerous felony | State urged criminal responsibility could support firearm employment conviction | McNary argued he merely possessed but did not employ/make use of the gun | Reversed: no evidence McNary employed (used) the firearm and jury not instructed on responsibility for that offense; remand for retrial on lesser included offense (possession) |
| Consecutive sentencing (Burgess, McNary) | Sentences appropriate; dangerous‑offender findings supported by facts; firearm counts run consecutive by statute | Sentences excessive / challenge to consecutive imposition | Affirmed: trial court made Wilkerson findings and statutory bases for partial consecutive sentences; sentences not an abuse of discretion |
| Coram nobis (Burgess) | N/A (State opposed) | New affidavit from Jones‑Cage recanting Burgess’s involvement constituted newly discovered evidence | Denied: affidavit did not constitute newly discovered evidence material enough likely to produce different result — Jones‑Cage had testified similarly at trial and jury rejected him |
Key Cases Cited
- Simmons v. United States, 390 U.S. 377 (U.S. 1968) (pretrial photographic ID set‑aside standard: impermissibly suggestive lineups create risk of irreparable misidentification)
- Neil v. Biggers, 409 U.S. 188 (U.S. 1972) (two‑step test for evaluating pretrial identifications: suggestiveness, then reliability under totality of circumstances)
- Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (legal sufficiency standard: whether any rational trier of fact could find guilt beyond a reasonable doubt)
- State v. Bland, 958 S.W.2d 651 (Tenn. 1997) (factors probative of premeditation and jury's role in weighing credibility)
- State v. Fayne, 451 S.W.3d 362 (Tenn. 2014) (definition of "employ" a firearm and relation of possession as lesser‑included offense)
- State v. Dickson, 413 S.W.3d 735 (Tenn. 2013) (shooting a retreating victim as circumstantial evidence supporting premeditation)