State v. May

• Docket Number: 123,622
• Decision Date: 22 December 2023
• Parties: State of Kansas, Appellee, v. Tommy J. May, Appellant.
• Court: Kansas Court of Appeals

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State of Kansas, Appellee,
v.
Tommy J. May, Appellant.

No. 123,622

Court of Appeals of Kansas

December 22, 2023

NOT DESIGNATED FOR PUBLICATION

Oral argument held on November 14, 2023.

Appeal from Douglas District Court; JAMES R. MCCABRIA, judge.

Jessica R. Kunen, of Lawrence, for appellant.

Jon Simpson, senior assistant district attorney, Suzanne Valdez, district attorney, and Kris W. Kobach, attorney general, for appellee.

Before HILL, P.J., MALONE and ISHERWOOD, JJ.

MEMORANDUM OPINION

PER CURIAM:

On July 2, 2018, Tommy J. May participated in a crime spree in Lawrence, Kansas. He shot two people at his apartment complex before driving away in his car. A police officer pursued May through the streets of Lawrence before he crashed his car into a fire hydrant. While trying to drive away from the crash site, May struck the police officer, causing him to roll over the hood of May's vehicle. The police eventually apprehended May and found a bag of methamphetamine in his car.

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Following an 8-day jury trial, May was convicted of 10 crimes including attempted first-degree murder, attempted second-degree murder, aggravated battery of a law enforcement officer, and possession of methamphetamine. The district court imposed a controlling sentence of 679 months' imprisonment. On appeal, May claims the district court committed several instructional and evidentiary errors and erroneously denied his motion for new trial. Finding no reversible error, we affirm the district court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Abbreviated summary of the facts

On July 2, 2018, May was in his apartment in Lawrence with Marzetta Yarbrough. May and Yarbrough began to physically fight, during which May acquired a gun. The fight ended near May's front door and resulted in May shooting Yarbrough once in the chin and shoulder. Just outside May's apartment, on the stairs leading up to the front door, May saw a neighbor, Jeremy Jones, and shot him on the backside of his shoulder. May then fled his apartment.

May entered his vehicle and left the area. Sergeant Robert Neff with the Lawrence Police Department spotted May driving and started following him. While driving, May crashed into a fire hydrant. Neff parked behind May, got out of this patrol car, and began shouting commands to May. Eventually, May reversed his vehicle directly towards Neff, hitting Neff's patrol car. May stopped reversing and began to drive forward directly at Neff. Neff realized that he could not evade May's vehicle and began shooting at May. May hit Neff, causing him to roll over the hood of May's vehicle.

May left the area where he hit Neff and continued driving. Soon after, May ran his vehicle into a detached garage, got out of his car, and fled the scene. May was eventually

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apprehended by the police while trying to climb over a fence. A subsequent search of May's car revealed a bag of methamphetamine.

The State charged May with 10 counts: (1) attempted first-degree murder against Yarbrough; (2) attempted second-degree murder against Jones; (3) aggravated battery against a law enforcement officer; (4) possession of methamphetamine; (5) criminal possession of a firearm by a felon; (6) fleeing or attempting to elude a police officer; (7) interference with law enforcement; and (8) three counts of criminal damage to property. The district court held an eight-day jury trial beginning on December 9, 2019.

Pretrial motion and ruling

Before trial, on December 2, 2019, the State filed a motion in limine seeking to exclude evidence of the victims' and witnesses' drug usage or drug dealings "on any date other than the date of the alleged offenses." The motion also sought to exclude evidence of May's "cancer diagnosis or treatments." May responded that evidence of his diagnosis was relevant to explain why he had oxycodone in his apartment. It was also relevant to show what May "could physically do and comprehend." May argued that witness drug use was relevant to undermine the credibility of witness testimony. In a pretrial hearing on the issue, the district court ruled that witnesses should be warned to avoid discussion of drug transactions other than "what happened that day as part of this transaction." But the district court left the door open so that if "issues . . . happen during trial, we'll deal with them." As to May's medical conditions, on the morning of trial, the district judge ruled that "May can certainly testify as to his own physical feelings and thoughts, and can testify that he had prescription medication and what that medication was. But I don't see where it's necessary to tie that into the basis for the underlying diagnosis of cancer."

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Marzetta Yarbrough's testimony

At trial, Yarbrough testified first for the State. Yarbrough used to live with Steven Sweighart next door to May until 2017. On the day of the shooting, she stopped by May's apartment to ask for a ride home. May invited Yarbrough inside, where she saw he was using methamphetamine. Yarbrough left the apartment when she saw an acquaintance pull up outside. This led Yarbrough to the neighboring apartment where Jones and others were located. The group asked Yarbrough whether she was carrying methamphetamine, which prompted them to ask if Yarbrough would buy some from May.

Yarbrough returned to May's apartment to buy the drugs, and May agreed to sell them. May had Yarbrough distribute a portion of his methamphetamine and, after doing so, Yarbrough left and went back to the neighbor's apartment. After dropping off the methamphetamine next door and receiving money to pay May, Yarbrough went back to May's apartment to pay him and to collect a bag of groceries and her purse that she had left there. Upon returning, Yarbrough found that May was "[e]xtremely different" and was "very upset, angry." May started yelling at Yarbrough about the drug transaction and the amount of methamphetamine that Yarbrough took.

After a brief time and without calming down, May pulled a gun from behind his back and hit Yarbrough over the head with it, causing blood to "spurt[] out." Yarbrough did not bring a gun with her and did not try to grab May's gun. May continued screaming and began kicking and hitting Yarbrough. Yarbrough screamed which made May angrier, and he responded with, "'You bitch, you call yourself dry-snitching. I'm gonna have to finish you off now.'" Yarbrough clarified that "dry-snitching" referred to "informing people that events are going on without directly saying it" and that May considered her screaming dry-snitching. May turned away from Yarbrough for a second and she ran for the front door, but as she reached the front door, May shot her. Yarbrough made it out the door and crawled into some bushes near the apartment. While crawling, Yarbrough heard

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Jones say something to May, and saw that Jones was facing away from May's door, before she heard another gunshot. Soon after, Yarbrough recalls medical personnel finding her and eventually waking up in a hospital.

Jeremy Jones' testimony

Jones generally corroborated Yarbrough's testimony about having Yarbrough purchase methamphetamine from May. Jones heard a nearby gunshot after Yarbrough left, so he went outside to investigate. Yarbrough was outside trying to stop the bleeding from what appeared to be her neck. May was also standing outside and Jones asked if May had shot Yarbrough. May and Jones "exchanged a few more words" and Jones turned away to check on Yarbrough when he was shot from behind. After Jones was shot, May "[w]alked over [him]" and remembers May speaking to him but does not remember the substance. Eventually, May walked back into his apartment, came back outside, got into his car, and left the area. Jones denied having any tools or knives in his hands at the time of the shooting. Because of the gunshot, Jones became paraplegic.

Regina Sailor's testimony

Regina Sailor was in Jones' house when Yarbrough came up to her and asked for a ride. After Yarbrough left, Sailor heard screaming and then a gunshot. Sailor entered the kitchen where she could see outside through the open front door. Jones was standing outside with May, and May "had his gun extended." Sailor saw the gunshot and saw Jones fall. At the time, Jones was turning away from May. After seeing May shoot Jones, Sailor ran back into Jones' apartment and hid. Sailor denied ever seeing Jones with a gun or knife at any point that day. When Sailor came back outside, Jones had not moved.

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Micki Ryan's testimony

Micki Ryan was also next door with Jones and Sailor at the time of the shooting. When Yarbrough arrived, Ryan heard her ask Sailor for a ride, and Ryan also confirmed that she and Jones asked Yarbrough to buy methamphetamine from May. After Yarbrough went back inside May's apartment, Ryan heard a gunshot, and she ran to the front door. Ryan saw May and Jones standing outside. Jones accused May of shooting Yarbrough and May responded by saying, "'Motherfucker always trying to fight for somebody.'" Jones then turned away from May and May shot him. Jones had nothing in his hands. Ryan first ran to Jones and eventually ran back inside to call 911. May walked "back towards where [Yarbrough] was" and eventually went back inside, came back outside, got into his vehicle, and left.

Adama Deen's testimony

Adama Deen lived in an apartment away from the shooting. Deen was in his apartment when May knocked on his window. Deen let May into the building, at which point May said that he had "shot some people." Deen told May to leave, and May complied. May did not appear injured or bloodied and did not mention being injured, shot, or robbed.

Sergeant Robert Neff's, Jacob Weakland's, and Coery Turner's testimony

Neff was dispatched to May's apartment in response to the shooting. Neff was in a marked patrol car with a light bar and "police" written on the side. While...