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State v. Avinger

Court of Criminal Appeals of Tennessee, Nashville

August 25, 2014

STATE OF TENNESSEE
v.
DAVID ORLANDO AVINGER

Assigned on Briefs June 17, 2014

Appeal from the Criminal Court for Davidson County No. 2013-A-71 Mark Fishburn, Judge

Jack Byrd, Nashville, Tennessee for the appellant, David Orlando Avinger.

Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin Smith, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Janice Norman, Assistant District Attorney General; and Rob McGuire, Assistant District Attorney General, for the appellee, State of Tennessee.

Jerry L. Smith, J., delivered the opinion of the court, in which Norma McGee Ogle and Roger A. Page, JJ., joined.

OPINION

JERRY L. SMITH, JUDGE

Factual Background

On December 12, 2009, Vincent Perkins arranged to meet with Antoinette Reynolds in the parking lot of a Walgreens to sell her a quarter pound of marijuana, a much larger quantity than their usual transactions entailed. Mr. Perkins was picked up by his friend, Bryant Porter, and Mr. Porter's half-brother, Eric Anderson. Once at the Walgreens, a black female approached Mr. Porter's car and got in the back seat. She said her cousin was paralyzed and that Mr. Perkins would have to go over to the other car, a gold Ford Focus. Mr. Perkins and the female exited the car, retrieved something from the trunk, and went over to the Focus. Mr. Perkins and the woman both got into the passenger side of the Focus, which then drove off quickly. Mr. Anderson and Mr. Porter attempted to follow the Focus, but lost sight of it. Mr. Porter attempted to call Mr. Perkins; even though Mr. Perkins did not respond, Mr. Porter could hear in the background a male voice repeatedly saying "get out of the car." Mr. Porter called Mr. Perkins again, and Mr. Perkins told him, "they shot me." Mr. Porter then called 911.

Officer Clifton Huffmaster of the Metropolitan Nashville Police Department was on patrol on December 12, 2009. He was dispatched to a house on Howard Street, where an individual flagged him down and directed him to a front porch. Officer Huffmaster found Mr. Perkins lying on the porch, suffering from a gunshot wound to his chest. Mr. Perkins' arms were scraped and covered in mud. Officer Huffmaster attempted to get some information from Mr. Perkins while waiting for the ambulance to arrive. Mr. Perkins told the officer his name and date of birth, but did not say who shot him. Mr. Perkins later died at the hospital.

In December of 2009, Tequeila Burns was living with her then-girlfriend, Antoinette Reynolds. On December 12, 2009, Ms. Burns drove Ms. Reynolds over to Appellant's house. Ms. Reynolds and Appellant were friends. Because Appellant was wheelchair bound, Ms. Reynolds had to assist him into the front seat of Ms. Burns' gold Ford Focus. The three of them then proceeded to drive to the Walgreens parking lot. Ms. Burns testified at trial that she did not know why they were going to Walgreens.

Ms. Burns backed the Focus into a parking spot, and Ms. Reynolds walked over to another car in the parking lot. Ms. Reynolds then returned with Mr. Perkins, who was carrying a Walmart bag. Ms. Burns did not know Mr. Perkins. Mr. Perkins handed the bag to Appellant, who then instructed Mr. Perkins to get into the car. Appellant then told Ms. Burns to drive away. Ms. Burns drove about a block and a half before Appellant told her to stop. Appellant repeatedly demanded that Mr. Perkins get out of the car. Mr. Perkins refused. Appellant drew a gun and told Mr. Perkins he would shoot him if he did not get out of the car by the time he counted to three. When Mr. Perkins did not get out of the car, Appellant shot him. Mr. Perkins fell out of the car, and Appellant told Ms. Burns to drive away.

Ms. Burns' Focus was processed by the police for physical evidence. A small amount of blood, a bullet, and fingerprints belonging to Ms. Burns and Ms. Reynolds were found. No fingerprints or DNA was found connecting Appellant to the vehicle. A bag of marijuana was recovered from the residence shared by Ms. Burns and Ms. Reynolds. Ms. Burns testified at trial that Appellant had taken the marijuana with him when he left her car, but Ms. Reynolds later said that he split it with her.

Cell phone records for Mr. Perkins, Ms. Reynolds (who shared a phone with Ms. Burns), and Appellant were obtained. There were numerous phone calls and text messages between Mr. Perkins and Ms. Reynolds that clearly established that they were arranging a drug transaction. They discussed a price of $375 for the quarter pound of marijuana as well as possible locations to meet for the sale. There were also several intermittent calls between Ms. Reynolds and Appellant during the same period of time. There was no activity on Appellant's phone for almost half an hour around the time that the shooting occurred.

Sarah Mitchell was Appellant's next-door neighbor. She testified for the defense at trial that Appellant was with her the evening of December 12, 2009. She and Appellant were smoking marijuana together outside of Appellant's house. A woman named "Nette" arrived in a gold Ford Focus and sold a large bag of marijuana to Appellant. Ms. Mitchell testified that she and Appellant then went to her house to have dinner with her family. She testified that they downloaded ring tones and sent them to each other's phones. Ms. Mitchell testified that Appellant was at her house for several hours. She did not recall seeing him talk on the phone. Ms. Mitchell testified that she told the U.S. ...


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