Gary Daugherty talks to media from his front porch after arriving home from the hospital. (Lee Talbert/Johnson City Press)
By all accounts of what happened to him Jan. 2, 2012, it’s a miracle Gary Daugherty isn’t dead.
And if he had died, a fleeing robbery suspect and his two accomplices who hit the Washington County sheriff’s deputy as he tried to deploy a spike strip would likely be serving life sentences for murder.
Instead, the three were convicted of reckless endangerment with substantial risk of serious bodily injury or death for hitting Daugherty. The officer testified at the trial earlier this year that he thought he would die from his injuries.
The impact tossed him high into the air, and he landed on the pavement. His recovery took more than a year and included four surgeries and intensive physical therapy. The injuries included a cracked pelvis, shattered elbow, broken arm and wrist and a knee injury.
First Judicial District Attorney General Tony Clark believes if someone evades arrest by fleeing from police, and they injure someone in the process, the punishment should be stiffer that if they had simply written a bad $30 check.
If the change in state law passes the Legislature, Clark hopes it becomes known as the Gary Daugherty Law.
The three who fled from police — the driver, Dalvin Jashauntelynn Stephens, 18, and passengers Reginald Dewayne Smith, 41, and Ashley Nicole McGraw, 18, — hit Daugherty were originally charged with attempted first-degree murder, which requires premeditation. Prosecutors argued that point heavily, saying that video from another officer’s cruiser showed Stephens swerved to hit Daugherty. Stephens’ defense attorney argued that he swerved to miss Daugherty, but the officer stumbled backward and into the car’s path.
The jury rejected the premeditation theory as well as the next lesser charge, attempted second-degree murder, and convicted the three of the only other choice — reckless endangerment.
So why was there such a gap between the charges — from one of the most serious felonies to one of the least serious — that the jury could consider?
Apparently that decision lies with the Tennessee Supreme Court, which determined at some point that aggravated assault would not be a lesser-included offense to attempted first-degree murder.
”If the state charges attempted homicide, aggravated assault is not a lesser included charge of attempted murder. One of the elements of attempted murder is the use of force trying to commit bodily injury or death,” Clark said.
And in this particular case, a vehicular assault charge was not possible because it required the driver be intoxicated.
”What the jury was left with after attempted first and attempted second degree, they only had reckless endangerment,” Clark said.
”If you evade from a law enforcement officer it’s a class E felony. If you evade from a law enforcement officer and there’s a substantial risk of death or seriously bodily injury, that bumps it up to a class D felony,” Clark said. “There is nothing to enhance it if a person is actually struck and injured.”
And that is what Clark and others want to change.
”What we’re trying to do, we want something in the statute that says if you evade the police and if someone is injured — whether it’s an officer or bystander — we think it should be a B or C felony. We think there should be a higher punishment than if someone just put you in fear of being hurt,” Clark said.
He said state Sen. Rusty Crowe is working with him to draft legislation he hopes will pass this term of the state Legislature. As with all bills, this one will be assigned a fiscal note — the cost of implementing the law.
”In this case, our argument is that there’s not very many of these but when it does happen there ought to be a stiffer penalty,” Clark said. Most evading cases are resolved with a plea, so it is likely to cost taxpayers little to implement.
”Reck endangerment with a deadly weapon ... it’s the same as forging a $30 check in Tennessee,” Clark said. “It’s something that’s not been looked at until now. This will be an amendment to the present statute of felony evading arrest.
”If Gary hadn’t been in the shape he was, he’d be dead. He was hit almost straight on at more than 50 mph.”