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State v. Brown

Court of Criminal Appeals of Tennessee, Jackson

September 5, 2014

STATE OF TENNESSEE
v.
DEVON BROWN

Session March 04, 2014

Appeal from the Criminal Court for Shelby County No. 1102623, 1107432 Lee V. Coffee, Judge

Stephen C. Bush, District Public Defender; Tony Brayton, Assistant Public Defender; Dianne Thackery, Assistant Public Defender; and Michael Jackson, Assistant Public Defender, Memphis, Tennessee, for the appellant, Devon Brown.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; Amy P. Weirich, District Attorney General; Theresa McCusker, Assistant District Attorney General; and Alycia Carter, Assistant District Attorney General, for the appellee, the State of Tennessee.

Thomas T. Woodall, J., delivered the opinion of the Court, in which Robert W. Wedemeyer and Roger A. Page, JJ., joined.

OPINION

THOMAS T. WOODALL, JUDGE

I. Background

Suppression Hearing

Sergeant William Merritt of the Memphis Police Department, Homicide Squad, testified that Defendant was developed as a suspect in Kimberly Jamerson's death after an interview with David Richardson, an accomplice in the case. Sergeant Merritt testified that he contacted Defendant's mother, and she and Defendant voluntarily came to the homicide bureau office on July 5, 2010, at approximately 1:30 p.m. Sergeant Merritt testified that Defendant, who was nineteen years old, was not under arrest at the time, and he directed Sergeants Brown and Moses to obtain information from Defendant. Although he was not under arrest, Defendant was advised of his Miranda rights. Sergeant Merritt later advised Defendant of his rights a second time.

Sergeant Merritt testified that he had learned through Sergeant Brown that Defendant had provided an alibi statement. He directed Sergeant Brown and Sergeant Moses to follow up on the information. Concerning the information, Sergeant Merritt testified:

I learned from Sgt. Brown that [Defendant] had provided the name of a female girlfriend as his alibi witness for July the 4th. I instructed Sgt. Brown to follow up on that information to see if he could make contact with this female in order to confirm or deny the alibi. I knew it was important to this case. Sgt. - - I learned that Sgt. Brown had made contact with the female, the female's mother. This female was a juvenile. The mother agreed to bring the female down to the Homicide Office a little bit later on.
That evening, I learned that the female was not able to corroborate [Defendant's] alibi that he was with her, and I learned that he had actually asked her to say that they were together if she had been asked by the police. Based on that information, myself and Sgt. Brown sat down with [Defendant]. We advised him of his rights at that point again and obtained a statement from him.

Sergeant Merritt testified that Defendant was calm and cooperative at the time. He said that Defendant was not under the influence of anything and that Defendant had "been at our office for a while waiting for us to talk to him, waiting for us to follow up on his alibi, and that's, you know, what we were doing while he was up there." Sergeant Merritt testified that Defendant was not forced to make a statement and that he came to the homicide bureau office voluntarily with his mother. He said that if Defendant had refused to give a statement at any time the interview would have stopped. Sergeant Merritt could not recall if Defendant was offered anything to eat or drink but he noted that Defendant "would have been offered restroom breaks, and you know, probably something to drink if he had asked."

Sergeant Merritt testified that Defendant gave a typed statement at 7:50 p.m. on July 5, 2010. The statement was signed by Defendant at 8:25 p.m. Concerning the statement, Sergeant Merritt testified as follows:

[Defendant] told us that he traveled to the location where the shooting occurred with his brother and with the accomplice that had implicated him. He told us that he was armed with a shotgun, that he fired three rounds into the air. He told us about the weapons the other two individuals had. He told us one of the individuals was armed, or he said "Dave" - - he told us that "David was armed with a revolver, " and he said "Ken, " which would be Kenneth Brown, "was armed with a chopper, " which is street lingo for some type of assault rifle. He told us that they traveled to the residence or to the location where the shots were fired in a green Chevy Lumina and that this whole thing kind of centered on a fight that Kenneth and the accomplice had been in earlier that day.

Defendant reviewed the statement and signed it. Sergeant Mike Brown was present for the statement, and it was typed by Penny Brown. Sergeant Merritt testified that Defendant never asked for an attorney, and a forty-eight hour hold was placed on him in order for the case to be reviewed by a "prosecutor from the Attorney General's Office."

On cross-examination, Sergeant Merritt admitted that the arrest ticket indicated that Defendant was under arrest at 1:30 p.m. on July 5, 2010. However, Sergeant Merritt testified that Defendant was not under arrest at the time and that the ticket actually reflected the time when Defendant arrived at the homicide bureau office. He said that Defendant was not placed under arrest until he gave the statement. Sergeant Merritt testified that Defendant was free to leave when he initially arrived at the office with his mother. Sergeant Merritt also admitted that the forty-eight hour hold document also reflected that Defendant was arrested at 1:30 p.m. on July 5, 2010. Concerning the time of Defendant's arrest, Sergeant Merritt testified:

[Defendant] was not handcuffed at that point. He - - we were getting information from him in order to verify his story because if we have an alibi witness that can completely clear his name, then that's good for him. He doesn't have to be taken into custody, he doesn't have to be charged, and we're obligated to check his side of the story, just like were obligated to check the Co-Defendant's side of the story. We're trying to either verify or refute the information that the Co-defendant told us, and that would be to speak with the alibi witness, and the alibi did not hold up.

Sergeant Merritt thought that the time of 1:30 was "either a typographical error or there may have been a co-worker that typed this information here in the top, and I should have checked it closer and that's my mistake." Sergeant Merritt reiterated that Defendant was not placed under arrest until he admitted that he was involved in the shooting and that he had a shotgun at the time.

Sergeant Merritt testified that they knew David Richardson had ties to Defendant's family. He noted that the green Lumina belonging to Defendant's mother was found at Mr. Richardson's home. Defendant's mother's cell phone number was found in Mr. Richardson's phone, and Mr. Richardson identified photographs of Defendant and Defendant's brother, Kenneth Brown. Sergeant Merritt testified that Mr. Richardson admitted to his involvement in the shooting.

Sergeant Michael Brown of the Memphis Police Department's Homicide Bureau testified that he and Sergeant Moses spoke with Defendant and his mother, Cynthia Brown, on July 5, 2010. He said that Defendant had a "calm, nice demeanor." Sergeant Brown testified that Defendant would have been given food, water, or a break if he had asked for one. He advised Defendant of his Miranda rights, and Defendant waived those rights at 2:37 p.m. on July 5, 2010.

Defendant initially told Sergeant Brown and Sergeant Moses that he had heard about the fight and the shooting, but he was not present for either event. Defendant claimed that he was with his girlfriend, "Tanesha, " at the time. He also gave them Tanesha's phone number. Sergeant Brown testified that he called Tanesha who indicated that Defendant was not with her and that he had "called her and advised her if the police call her and ask her anything about the weekend or was he with her, to tell them that he was with her over the weekend." Tanesha and her mother then came to the homicide office and gave a statement.

Sergeant Brown then notified Sergeant Merritt and Defendant that the alibi had been refuted. Defendant immediately indicated that he wanted to tell the truth. He then told investigators that he was present for the shooting and was firing a shotgun. Sergeant Brown testified that Defendant remained calm during the entire statement, and he gave it freely. He said that Defendant never asked for an attorney.

On cross-examination, Sergeant Brown testified that Defendant was placed under arrest after his alibi was refuted and after he admitted to being involved in the shooting. He thought that a shackle was placed on Defendant at that time. Sergeant Brown testified that Defendant was detained while his alibi was being investigated.

Trial

On July 3, 2010, the victim, Kimberly Jamerson, was murdered by Defendant, Kenneth Brown, and David Richardson at her aunt's house located at 2706 Northmeade Avenue in Memphis. Robrecus Braxton testified he lived at 2706 Northmeade with his mother (Sonja Watkins), his step-father (Felix Williams), his two brothers (Christopher Braxton and Kevin Nevels), and his two sisters (Dakarrionah and Amber Laury). Mr. Braxton testified that he was at home on July 3, 2010, with several individuals including his uncles, Nakia Greer and DiAngelo Smith, and his cousins, Kenneth Baker, Chymia Baker, Jalon Baker, and Lashanna Jones, preparing for a fourth of July celebration. Mr. Braxton estimated that ten to fifteen people were present. Mr. Braxton testified that he went to the store later that day, and a green Chevrolet Lumina pulled up at the residence sometime after Mr. Braxton returned. Two males, Kenneth Brown and David Richardson, whom Mr. Braxton had seen around the neighborhood, got out of the vehicle. Mr. Braxton testified that the two men approached Mr. Braxton's step-father (Mr. Williams), and Mr. Braxton's uncle, Nakia Greer. The two men indicated that someone at the residence had taken some marijuana from them. Mr. Williams told Mr. Kenneth Brown and Mr. Richardson that the person who took the marijuana was not there at the time and to come back later while he sorted out the problem.

Mr. Braxton testified that the two men left but returned five to seven minutes later with a third person, Defendant, who was sitting in the back seat of the Lumina. The three men stepped out of the vehicle, and Mr. Williams talked to the men and said, "She don't live here, " referring to Mr. Braxton's aunt, Dena Watkins. Mr. Williams gave the driver of the car five dollars to "keep the situation down." Mr. Braxton testified that he walked over to the side of the car, and it suddenly pulled away nearly clipping Mr. Braxton's knees. Mr. Braxton then threw a beer at the vehicle which stopped on Ladue Street. The three men got out of the car and began fighting with Mr. Braxton, Christopher Braxton, and Kenneth Baker. No weapons were involved in the fight, which lasted approximately ten minutes until Mr. Williams and Mr. Greer stepped in and stopped the fight. Mr. Braxton testified that before the three men left, they said, "All right. That's what's up. That's what's up, " which Mr. Braxton took as a threat.

Approximately two to three hours later, Mr. Braxton was standing under the carport when he heard bottle rockets exploding, and then numerous gunshots. Mr. Braxton ran through a path to the back yard. He saw one of his friends, Lamarcus, get shot, and he heard bullets strike a Dodge Durango parked in the driveway. Mark and Steve Chambers each had a gun at the time and fired shots back at the original shooters. Mr. Braxton estimated that the shooting continued for "about ten minutes." He then heard Rodney Davenport say that the victim, Kimberly Jamerson, who was Mr. Braxton's cousin, had been shot. Mr. Braxton walked across the yard to the area where the victim was lying on the sidewalk.

Mr. Braxton testified that one of his friends, Antoine Moore, grabbed Mr. Braxton's arm, and they left in a car with another friend. They found an undercover police officer and told him that the victim had been shot. The officer then drove to the scene where other officers had already arrived. They would not allow Mr. Braxton back in the area. The following day, a detective picked Mr. Braxton up and transported him to the police department. Mr. Braxton was shown a photographic line-up, and he identified Kenneth "Kenny" Brown, Defendant's brother, as the person that he was fighting with at Mr. Braxton's house on Northmeade Avenue.

Felix Williams testified that he was living at 2706 Northmeade Avenue on July 3, 2010. On that day, Mr. Williams picked up his daughter and returned home to prepare for the fourth of July holiday. He said that in addition to his family that lived at the residence, there were "a lot of visitors, nieces and nephews." Mr. Williams testified that at some point that evening, the following took place:

My sister-in-law, Dena Watkins, inquired about some marijuana, and her play brother, Nakia, stopped one of the - - one of the guys he know [sic] from the neighborhood. And they made - - they conversating [sic], and he left, and Kenneth Brown came back. And when he came back, he pulled down to the other drive - - to the next - - next door to my house, to the other driveway. And Kenneth Brown and Dena Watkins met one another and walked down the side of the van, and they reappeared. He got back in his car, pulled off. She got in her car and she pulled off. She went to the store.

Mr. Williams testified that Kenneth Brown and David Richardson were in the car when it returned fifteen to twenty minutes after Ms. Watkins left. Mr. Brown asked Nakia Greer about Ms. Watkins, and Mr. Greer told Mr. Brown that Ms. Watkins had gone to the store and that she would be back. Mr. Brown also told Mr. Greer that "it was a gram of weed, and it's not a half ounce of weed that he had put in Dena Watkins' hand." Mr. Williams testified that Mr. Brown and Mr. Greer argued back and forth, and when they got loud, Mr. Williams intervened and told Mr. Brown to leave and come back in five to ten minutes. He also told Mr. Brown that he would pay for any drugs that Ms. Watkins took if she did not return.

Ms. Watkins returned to Mr. Williams' house, denied taking the drugs, and then left. Mr. Williams testified that Ms. Watkins passed Kenneth Brown as he returned with Mr. Richardson and Defendant in the car. Kenneth Brown asked if Ms. Watkins had returned, and Mr. Greer informed Kenneth Brown that he has just passed Ms. Watkins as she was leaving. Mr. Williams then gave Kenneth Brown five dollars worth of change and asked him to leave. As Kenneth Brown was leaving, his car nearly hit Robrecus Braxton who threw a beer that he was drinking into the car. Kenneth Brown pulled his car up to Ladue Street, and he and the other two men in the car got out and began fighting with Robrecus Braxton, Christopher Braxton, and Kenneth Baker. Mr. Williams attempted to break up the fight which eventually ended when Kenneth Brown's car window got broken. Kenneth Brown and the other men got back into the car, and Mr. Brown said, "We'll be back."

Mr. Williams testified that after the fight ended, the green Lumina that Kenneth Brown had been driving circled by Mr. Willliams' house three or four times. Mr. Williams testified that he also saw Mr. Kenneth Brown's mother's SUV drive through the neighborhood.

Mr. Williams testified that approximately four to five hours after the fight ended, he walked out of the house with the victim, who was his niece. They proceeded down the driveway to the sidewalk and stopped. The two talked, and the victim told Mr. Williams that she loved him and that she would be back the following day. Mr. Williams thought that Travis Britton had arrived to pick up the victim and take her home. Mr. Williams turned around and was walking back down the driveway when he saw a bottle rocket strike his wife's Dodge Durango, and a second bottle rocket struck his arm. Approximately one minute later Mr. Williams heard gunshots, and he ran through the carport area and fell into a pool. He said that several individuals were standing under the carport at the time, including his sons. Mr. Williams then crawled from the pool to the back yard where he encountered "Pootie" who indicated that he had been shot.

Mr. Williams testified that gunshots were still hitting the house, and he ran into the house to take care of his wife and children. By that time, Mr. Williams' wife, Sonja Watkins, had the children in a back room and covered them with a mattress. "Pootie, " who was bleeding, was also in the house. Mr. Williams estimated that sixty to seventy shots were fired at the house before the shots ended. He did not see the shooters. Mr. Williams walked out the door and heard Bianca Nevels asking for someone to go out and check on the victim, her sister, who was not moving. Mr. Williams walked out into the yard and saw the victim lying on the ground, and several people, including Mr. Williams' wife, were talking to the victim. Mr. Williams walked away and dialed 9-1-1. Undercover officers and other police officers then arrived on the scene. Mr. Williams told them about the fight that occurred earlier. Mr. Williams was later shown a photographic lineup at the Memphis Police Department. He identified Kenneth Brown, and David Richardson as two of the men fighting with Robrecus Braxton prior to the shooting.

Dr. James Caruso performed an autopsy on the victim. He determined that she died from a gunshot wound to the head. Dr. Caruso recovered fragments of the bullet from the victim's brain, and they were sent to law enforcement personnel.

Officer Demar Wells, a crime scene investigator with the Memphis Police Department, testified that he was dispatched to the scene at 2706 Northmeade Avenue on July 3, 2010. He noted that numerous spent shell casings were located on the sidewalk in front of 3840 Helmwood Street located three houses away from the Northmeade location. Officer Wells testified that the following shell casings were recovered from the Helmwood location including "thirty-two .30 [caliber] spent casings, eight .45-caliber spent casings, twenty-five LC05 spent casings, and three 20-gauge shell casings." Officer Wells testified that he also recovered shell casings at 2706 Northmeade Avenue which included "six 7.62 x 39 spent casings, two bullet fragments and nine spent .9-millimeter Ruger casings."

Concerning the scene, Officer Wells testified:

There were several houses struck in the immediate area surrounding 2706 Northmeade, multiple vehicles were struck, with property damage sustained to the homes and to the vehicles, and I also observed a puddle of what appeared to be blood at 2706 Northmeade near ...

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