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State v. Johnson

Court of Criminal Appeals of Tennessee, Jackson

January 31, 2017

STATE OF TENNESSEE
v.
DEKARLOS JOHNSON

          Assigned on Briefs October 4, 2016

         Appeal from the Criminal Court for Shelby County No. 13-06128 Glenn Ivy Wright, Judge

         A Shelby County Criminal Court jury convicted the Defendant-Appellant, Dekarlos Johnson, of aggravated robbery, and the trial court imposed a sentence of nine years with a release eligibility of eighty-five percent. On appeal, Johnson argues: (1) the admission of his redacted statement negatively impacted the jury's verdict; (2) he was denied the opportunity to present evidence in his own defense; (3) the State committed prosecutorial misconduct during its closing argument; and (4) the cumulative effect of these errors entitles him to relief. We affirm the judgment of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed.

          Patrick M. Brooks (on appeal and at trial); Josie S. Holland (on appeal); and Ruchee Patel (at trial), Memphis, Tennessee, for the Defendant-Appellant, Dekarlos Johnson.

          Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Amy P. Weirich, District Attorney General; and Austin B. Scofield, Assistant District Attorney General, for the appellee, State of Tennessee.

          Camille R. McMullen, J., delivered the opinion of the court, in which Alan E. Glenn and Timothy L. Easter, JJ., joined.

          OPINION

          CAMILLE R. McMULLEN, JUDGE

         We have briefly summarized the facts from the joint trial of the Defendant-Appellant, Dekarlos Johnson, and his co-defendant, Bryant Gooseberry, because they are relevant to the issues on appeal.

         Trial. Hue Xa testified that on January 21, 2013, he made arrangements to buy an iPhone from a seller who had posted an advertisement on Craigslist. That day, Xa called and emailed the seller, who had given him a price of $500 for the iPhone 5. Xa made a counteroffer of $400, which the seller accepted, and the two men arranged to meet at the Starbucks near the intersection of Whitten Road and Stage Road in Bartlett at 7:00 p.m. to complete the sale. Although Xa went to the Starbucks at the agreed upon time, the seller never arrived. After waiting for more than an hour, Xa telephoned the seller, who assured him that he was "on the way." Xa informed the seller he could wait no longer and returned home. Between 8:45 and 9:00 p.m. that night, the seller called Xa and asked to meet him at the Malco Theater on Bartlett Boulevard. Xa instead drove to the Applebee's restaurant on Bartlett Boulevard, where he felt safer, and asked the seller to meet him there, but the seller refused. Xa ultimately agreed to meet the seller at the Malco Theater and told the seller what kind of car he drove. When he arrived, Xa parked in the theater's parking lot. A moment later, two African-American men approached his car, and Xa lowered his window. One of the men gave Xa the iPhone 5, and Xa inspected the phone and used it to call his wife to ensure that it was operational. Xa agreed to pay $400 for the phone and began to take out his money. Xa explained what happened next:

When I get the money out, and the guy stand[ing] just beside that guy had pulled a gun-pointed it right in my face. . . . [That man said, ] "Give me money." And the guy talking to me, I g[ave] him the money. And he said, "Give me the phone." And . . . I just-the iPhone 5, I g[a]ve him the phone. And he was like, "Give me your phone." I pulled my-I got an iPhone 4. I g[ave] it to him. He said, pull out the car keys and give [the keys] to them.

         Xa said the person with whom he had been communicating regarding the purchase of the iPhone was not the man holding the gun. He asserted that both men participated in the robbery, with one man pointing the gun at him and telling him to give him the money and the other man demanding the cell phones and car keys. Xa said that after he gave the men the $400, the iPhone 5, his iPhone 4, and his car keys, the men ran from his car and got into a black vehicle that was parked in a poorly lit area of the parking lot.

         When Xa was asked at trial if either of the men who robbed him that night were in the courtroom, Xa replied negatively and explained that it had been more than two-and-a-half years since the robbery. Xa said the police interviewed him after the robbery, and he provided a statement to police in January 2013. In August 2013, he was shown a photographic lineup by the police, and Xa identified Johnson from the lineup as one of the men who robbed him. He also identified Johnson's co-defendant, Bryant Gooseberry, from a different photographic lineup as the second man who robbed him. At trial, Xa acknowledged that he might have been mistaken about his identification of the suspects in the photographic lineups.

         A short time after the commission of this crime, Xa discussed the robbery with his friend, Michael Tran, who also had been looking for an iPhone to purchase on Craigslist. When Tran showed him an advertisement on Craigslist with the same phone number as the one belonging to the seller involved in the robbery, Xa asked Tran to talk to officers at the Bartlett Police Department.

         Nathaniel Mebane, who was married to Johnson's aunt, testified that on January 21, 2013, he drove Johnson to the Malco Theater in Bartlett in his black Acura. Johnson told Mebane that he was going to the theater to see a girl. Mebane said he left Johnson in the middle of the parking lot but returned for him a short time later:

I left, and in about fifteen minutes-I made it almost half way back to Frayser, and [Johnson] called me and told me to come back and get him, and by the time I got back, you know, he got up in the car, and we just left, and I asked him what happened, and he was like, "Well, she didn't show up." And he just left from there.

         Although Johnson never mentioned paying him for the ride, Johnson gave Mebane sixty dollars when he picked him up from the Malco Theater. Mebane acknowledged that when he had given Johnson rides to work in the past, Johnson had given him approximately ten dollars. Mebane also said that on the night of January 21, 2013, Johnson never mentioned selling an iPhone, but he admitted, "I knew he sold them, but he didn't tell me that's what he was going out that day to do."

         Several months after taking Johnson to the Malco Theater, the Bartlett police came to Mebane's home and spoke with his mother, the registered owner of the black Acura. Mebane told the police he had driven Johnson to the movie theater on January 21 and that Johnson had paid him "to do it." Mebane said he dropped off Johnson in the middle of the parking lot and picked him up at "the beginning of the driveway [to the side of the entrance] where you c[an] see the least little movement." He confirmed that no one was with Johnson or near him when he picked him up. The police showed Mebane some photographs, and he informed the officers that the photographs, which were entered into evidence at trial as Exhibits 3 and 4, depicted Johnson holding an iPhone inside Mebane's car.

         Detective Jeffrey Swindol of the Bartlett Police Department testified that he investigated the aggravated robbery of Hue Xa at the Malco Theater. His investigation indicated that the perpetrators left the crime scene in a black Acura. On January 22, 2013, he was approached by Michael Tran, Xa's friend, who gave him the two photographs in Exhibits 3 and 4. After receiving these photographs, Detective Swindol contacted Detective Keys, who determined that the photographs provided by Tran had been taken by a third party at an apartment complex on Raleigh Millington Road. Detective Swindol went to this complex and found a black Acura with "cuts and marks" on the interior of the vehicle that matched the ones depicted in the photographs provided by Tran. Because the black Acura was backed into a parking spot close to some shrubbery, he intermittently observed the car for several days before obtaining a license plate number for the vehicle. Detective Swindol entered the license tag in the computer database and learned that the Acura was registered to a woman at Dove Call Lane, although when he went to that address, it appeared as though no one lived there.

         In August 2013, he ran the tag again, and a new address on Kenneth Street appeared. Detective Swindol went to this address, saw the black Acura, and spoke to Mebane's mother. He then spoke to Mebane, which led to the identification and location of the Defendant-Appellant, Dekarlos Johnson. Shortly thereafter, Detective Swindol prepared a photographic lineup that included a photograph of Johnson, and Xa identified Johnson as one of the men who robbed him within five seconds of looking at the lineup. Xa also circled Bryant Gooseberry's picture on a different photographic lineup. After Xa identified Johnson, Detective Swindol approached Johnson and ...


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