Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Flynn

Court of Criminal Appeals of Tennessee, Jackson

May 5, 2017

STATE OF TENNESSEE
v.
OCTAVIUS FLYNN and DERRICK BENSON

          Session Date: January 5, 2017

         Appeal from the Criminal Court for Shelby County No. 12-06552 Paula L. Skahan, Judge

         The Defendants, Octavius Flynn and Derrick Benson, appeal their convictions for second degree murder and their respective sentences of twenty-five and twenty-four years. On appeal, the Defendants argue, either individually or collectively, that (1) the trial court erred in denying their motions to sever; (2) a witness's identification of Mr. Flynn in a photographic array was unreliable and should have been suppressed; (3) the evidence was insufficient to support the convictions; (4) the trial court erred in denying Mr. Flynn's motion to dismiss due to spoliation of evidence; (5) the jury failed to follow the trial court's instructions and improperly compromised on a verdict of second degree murder; and (6) the sentences are excessive. Upon reviewing the record and the applicable law, we affirm the judgments of the trial court.

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

          Howard B. Manis, Memphis, Tennessee, for the appellant, Octavius Flynn.

          Eric Mogy (on appeal) and Neil Umsted (at trial) Memphis, Tennessee, for the appellant, Derrick Benson.

          Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel; Amy P. Weirich, District Attorney General; and Colin Campbell and Neal Oldham, Assistant District Attorneys General, for the appellee, State of Tennessee.

          John Everett Williams, J., delivered the opinion of the court, in which Alan E. Glenn and Camille R. McMullen, JJ., joined.

          OPINION

          JOHN EVERETT WILLIAMS, JUDGE

         FACTUAL AND PROCEDURAL BACKGROUND

         The evidence presented at trial established that on August 27, 2012, the Defendants shot and killed nineteen-year-old Mr. Derrion Johnson at the Hillview Apartments in Memphis, Tennessee. The victim was standing outside the apartment complex with friends when the Defendants approached them from a "cut" or a walkway between two apartment buildings. The Defendants opened fire, shooting the victim multiple times. During the shooting, Mr. Benson sustained a gunshot wound to his ankle. The Defendants fled the scene, and Mr. Flynn drove Mr. Benson to a nearby hospital to receive treatment for his gunshot wound. Mr. Benson later gave a statement to the police, admitting that he was present when the shooting occurred.

         The State's Proof

         At trial, the State presented the testimony of multiple witnesses who were in the area at the time of the shooting. Mr. Aaron Turner testified that on August 27, 2012, at around 10:00 or 10:30 p.m., he was walking around outside the apartment complex with Sireric Payne when he saw two men walk through a "cut" and up to a group of people, including the victim. One of the men approached the group from the right, and the other man approached them from the left. Both men fired their handguns at the victim. Mr. Turner said he did not hear either shooter say anything to the group when they first approached. Mr. Turner did not know either of the shooters and said that one shooter was approximately six feet, one inch tall and that the other shooter was approximately six feet tall.

         Mr. Turner fled once the shooting began. After the shooting ceased, he saw the shooters flee toward the front of the apartment complex. He stated that as the shooters were leaving, he heard one shooter tell the other shooter, "[C]uz, you just shot me or something like that."

         Mr. Turner testified that once the victim's brother learned of the shooting, he came outside and saw the victim lying on the ground. The victim's brother then began shooting an assault rifle into the air out of anger. After the shooting, Mr. Turner did not remain at the scene to speak to police officers. He explained that he had known the victim since high school, that he thought the shooting was a "tragedy, " and that he did not wish to remain at the scene as a result.

         On cross-examination, Mr. Turner testified that earlier that evening, he, the victim, and several others played basketball at a court located across the street from the apartment complex. Mr. Turner then went to the apartment complex at 7:00 or 8:00 p.m. where he and others stood around and talked. He did not recall the exact time that the shooting occurred, but stated that he remained at the apartment complex for three or four hours prior to the shooting.

         Mr. Turner testified that when the victim was shot, he was standing with Mr. Payne and Mr. Antonio McKinley approximately ten to fifteen feet away from the victim. The victim was in a group of four or five other people. The shooters walked past Mr. Turner and toward the group where the victim was standing. At that time, the shooters were not displaying guns, and Mr. Turner did not notice anything peculiar about them. Mr. Turner said that at one point, one shooter was standing in front of the group while the other shooter was standing behind the group. Mr. Turner did not recall where the shooters were standing when they began shooting. He said that as the shooters were fleeing, one shooter was limping. He also said that one shooter was wearing a white t-shirt and light brown pants and that the other shooter was wearing a white t-shirt and black jeans. Mr. Turner estimated that the victim's brother shot the assault rifle approximately fifteen to twenty minutes after the victim was shot.

         Mr. Turner gave a statement to the police the following day. He viewed multiple photographic arrays but was unable to identify either of the shooters. He identified "Little Cord" in one array and explained that "Little Cord" came to the apartment complex on occasions to roll dice. A few days prior to the shooting, the victim and "Little Cord" were involved in an altercation. Mr. Turner did not see the altercation but said "Little Cord" told him that the victim and the victim's brother "jumped" him. Mr. Turner did not see "Little Cord" at the apartment complex on the night of the shooting. He stated that others said "Little Cord" was the reason that the victim was killed.

         Mr. Rhakeem Fields, who was in custody at the time of trial, testified that on August 27, 2012, he was living at the Hillview Apartments and saw the victim get shot three or four times at around 10:00 or 10:30 p.m. as Mr. Fields was standing outside on his patio located on the second floor. Mr. Fields saw two people standing with the victim and then saw one person walk up from the side and shoot the victim in the head and body. Mr. Fields described the shooter as between five feet, six inches and five feet, seven inches tall with a "[l]ow haircut" and wearing a white and navy striped polo shirt, a "polo" hat, and navy pants. Because it was dark outside and Mr. Fields was more than fifty feet away when the shooting occurred, he was unable to identify the shooter.

         Once the shooting began, Mr. Fields and the others who were on his patio ran inside his apartment. While inside the apartment, Mr. Fields heard additional gunshots but did not know whether the gunshots came from the same shooter. Once the shooting stopped, Mr. Fields ran outside to the victim, who was lying on the ground and "twitching." Mr. Fields had not realized the victim's identity when he witnessed the shooting from the patio in the dark, but when he ran up to the victim, he recognized him. Mr. Fields then ran to tell the victim's brother.

         On cross-examination, Mr. Fields testified that he only saw one shooter, whom he described as "heavyset." He did not know the two people who were with the victim prior to the shooting but said they were likely the victim's friends. Mr. Fields saw the shooter approach the group but did not hear any conversation or argument prior to the shooting. He said he would not have heard a conversation from the distance where he was standing. He stated that the victim was facing the shooter when the shooter approached but that the shots must have come from the side because the victim was shot in his back and the side of his head. Mr. Fields also stated that the shooter's gun appeared to be silver.

         Mr. Fields acknowledged that he told police officers following the shooting that he saw six or seven people standing in a circle and that one of the people in the circle produced a gun and began shooting. Mr. Fields affirmed that this was his recollection of the events that evening and stated that the shooter did not walk up to the victim and immediately begin shooting. Mr. Fields ran inside his apartment after hearing three or four gunshots. He did not know how long he was inside of his apartment when he heard the additional gunshots. He never saw the victim's brother with a firearm or anyone else with an assault rifle.

         On redirect examination, Mr. Fields testified that the shooter's shirt had navy and white horizontal stripes. He later clarified that the shirt had dark stripes.

         Mr. Marcus Taylor, who grew up with the victim, testified that on August 27, 2012, at around 4:00 or 5:00 p.m., he, the victim, and several others played basketball at a basketball court across the street from the Hillview Apartments for one and one-half to two hours. Mr. Taylor went home to shower, watched television, and then returned to the Hillview Apartments. At approximately 9:00 or 10:00 p.m., Mr. Taylor, the victim, Mr. Antonious McKinley, Mr. Tevaius Chambers, Mr. Rodney Thompson, and Mr. Octavius Thompson were standing and talking outside the complex by a dumpster. Mr. Taylor said that a light pole was by the dumpster and that while there was not enough light to see across the apartment complex, the light was sufficient such that he could recognize someone who approached him.

         Mr. Taylor saw two men, neither of whom he recognized, approach from about fifteen to twenty feet away. He said that one man was wearing a black shirt with white stripes and that the other man was wearing all black. Upon approaching, the men separated, and when Mr. Taylor turned to speak to Mr. Chambers, the men began shooting their handguns. Mr. Taylor never saw the shooters' guns. He heard five shots and stated that both men were shooting. Mr. Taylor also stated that he did not hear either of the shooters say anything when they approached and that the shooters began shooting three to five seconds after approaching.

         Once the shooting began, Mr. Taylor ran to the nearest "cut" and did not see which direction that the shooters went following the shooting. He said he did not hear the shooters say anything as they were leaving. He acknowledged that the following morning, he told police officers that he heard one of the shooters say, "bruh, you shot me." At trial, Mr. Taylor clarified that someone else in the group told him that one of the shooters made the statement.

         Following the shooting, Mr. Taylor returned to find the victim lying on the ground. The victim attempted to speak but was unable to do so due to the amount of blood in his mouth. Mr. Taylor remained at the scene and waited for an ambulance to arrive. Police officers later showed Mr. Taylor several photographic arrays. Mr. Taylor identified "Little Cord" and someone with whom he had attended school in the photographic arrays.

         On cross-examination, Mr. Taylor testified that he did not look at the shooters long enough to see their faces. Prior to the shooting, Mr. Turner, Mr. Payne, and Mr. McKinley walked away from the group and were talking nearby when the shooting occurred. Mr. Taylor said the shooters came from an area closer to where Mr. Turner, Mr. Payne, and Mr. McKinley were standing. Mr. Taylor did not hear any more gunfire after he fled. He did not see the victim's brother with a gun and did not see anyone else with an assault rifle.

         Mr. Taylor recalled that the victim and "Little Cord" were involved in an altercation a few days prior to the shooting. Mr. Taylor did not see the altercation but said that the victim told him about it. Mr. Taylor saw "Little Cord" at the Hillview Apartments on four or five occasions but had not seen the shooters prior to the night of the shooting.

         Mr. Rodney Thompson[1] testified that on August 27, 2012, he, the victim, and several others played basketball at a basketball court across the street from the Hillview Apartments. They stopped playing around 7:30 p.m. as it was beginning to become dark and returned to the Hillview Apartments where they remained outside for one or two hours. Mr. Rodney Thompson said he, the victim, Mr. Taylor, Mr. McKinley, and Mr. Chambers were standing in a group and talking when he saw two men walk through a "cut" and approach the group from ten to thirty feet away. Mr. Rodney Thompson had never seen the two men before and was not paying attention to them. The two men split up with one man in front of the group and one behind them and began shooting. He did not hear the men say anything before the shooting began and heard five or six shots.

         Once the shooting began, Mr. Rodney Thompson ran approximately thirty feet. Once he no longer heard gunshots, he returned to check on the victim. He estimated that approximately seven minutes passed between him fleeing and returning to the victim. He did not see where the shooters fled.

         On August 30, 2012, Mr. Rodney Thompson went to the homicide office where he gave a statement to police officers and viewed multiple photographic arrays. He identified Mr. Benson in a photographic array and at trial as the shooter who was shooting behind the group. He also identified "Little Cord" in one photographic array and said that neither of the shooters was "Little Cord."

         On cross-examination, Mr. Rodney Thompson testified that five to seven people were standing with the victim when he was shot. He said they were standing shoulder to shoulder with the victim standing somewhat in front of the group and "clockwise" to Mr. Rodney Thompson. He also said that he had never seen the shooters before and that the shooting occurred very fast. As one of the shooters walked behind the victim, Mr. Rodney Thompson "glanced" at the shooter and saw his face. The area was not completely dark; rather, a light pole was in the area. He did not see the victim's brother at the scene and did not see anyone with an assault rifle or any other weapon.

         Mr. Rodney Thompson testified that he had not seen "Little Cord" in the area gambling. He heard that the victim and "Little Cord" were involved in an altercation but did not witness it.

         Mr. Rodney Thompson did not recall the number of photographic arrays that he viewed but said he identified someone in two photographic arrays. He also did not recall previously testifying in another hearing that he "probably" saw the person whom he identified in the photographic array at the crime scene. He stated that the shooter whom he saw shooting was wearing black pants.

         Mr. Tevaius Chambers testified that on the day of the shooting, he, the victim, and others returned to the apartment complex after playing basketball and stood outside talking for forty-five minutes to one hour. He also said that during that time, it was getting close to dark and that while the area is not very well lit after dark, people had their lights on enabling him to see. Mr. Chambers stated that as they were talking, he saw two men walk out of a "cut" and by the group. He saw the men from three or four feet away and described them as African American, in their twenties, and wearing dark clothing. The men returned to the group approximately thirty or forty-five seconds later and began shooting, firing multiple shots. Mr. Chambers had never seen the shooters before that day. Once the shooting began, Mr. Chambers ran to a friend's apartment located on the east side of the apartment complex. He returned to the scene when the police arrived approximately five minutes later.

         Mr. Chambers spoke to the police about the shooting several months later in November 2012. He viewed multiple photographic arrays and identified both of the Defendants in the arrays as the shooters. He also identified the Defendants as the shooters at trial.

         Mr. Chambers said he saw the victim and "Little Cord" argue over a dice game a few days prior to the shooting. He did not witness the argument become physical.

         On cross-examination, Mr. Chambers acknowledged that he had two prior convictions for theft of property valued less than $500.00. He denied that he avoided giving a statement to the police and said he did not know that he should have spoken to the police officers at the scene. He acknowledged that while police officers asked him to give a statement when he viewed the photographic arrays in November 2012, he did not give a statement until March 2013 while in police custody. He also acknowledged that a subpoena was issued for him to testify during a proceeding related to the case, that he failed to appear at the hearing, and that the trial court issued a warrant as a result.

         Mr. Chambers testified that Mr. Taylor, Mr. Rodney Thompson, Mr. Octavius Thompson, Mr. Turner, Mr. Antonious McKinley, Mr. Roy McKinley, Mr. Payne, and Mr. Marcus Clark were also present at the time of the shooting. Mr. Chambers said the victim was standing next to him at the time of the shooting. He first estimated that the shooters were three or four feet away from the victim and then stated that he did not know exactly how far away the shooters were.

         Mr. Chambers did not see the victim's brother or anyone else with an assault rifle at the scene. He acknowledged that he and his friends had discussed what occurred on the night of the shooting and who may have killed the victim. He believed that the victim and "Little Cord" were involved in a physical altercation following their argument, but he did not witness the altercation.

         Mr. Antonious McKinley testified that he had previously pled guilty to aggravated robbery. On August 27, 2012, after playing basketball that afternoon, he, the victim, and several others returned to the Hillview Apartments where they gambled and shot dice. They then began walking around the apartment complex around 7:00 or 8:00 p.m. when it was dark outside. Mr. McKinley stated that he, the victim, Mr. Rodney Thompson, Mr. Octavius Thompson, Mr. Chambers, and Mr. Taylor were standing around talking when Mr. McKinley saw two men walk through the "cut." Mr. McKinley said that one man was wearing a black and white horizontal striped shirt and black pants and that the other man was wearing a white t-shirt and black pants. The men approached the group and began shooting. Mr. McKinley stated that both men were holding similar chrome and black handguns that were either nine millimeter or forty caliber guns.

         Mr. McKinley ran away once the shooting began. Following the shooting, he heard the shooter who was wearing a white t-shirt and black pants say, "Damn bro, you shot me." Mr. McKinley returned to the scene where the victim was lying on the ground. He estimated that approximately fifty to one hundred people were in the area following the shooting and before the police arrived. He later spoke to the police and viewed several photographic arrays. He identified "Little Cord" in a photographic array as someone with whom he gambled, but he testified that he did not see "Little Cord" at the apartment complex when the shooting occurred. Mr. McKinley was unable to identify any of the shooters.

         On cross-examination, Mr. McKinley testified that the shooters did not speak when they first walked up to the group and before they began shooting. He said the shooter who was wearing a white t-shirt was also wearing a black do-rag. Once the shooting began, Mr. McKinley ran and ducked behind a group of cars. While hiding behind a car, he saw the shooters flee and heard one of the shooters yelling, "[Y]ou shot me." Mr. McKinley said the shooter was shot in his right leg.

         Mr. McKinley did not see the victim's brother at the scene and did not see anyone with an assault rifle. He did not hear any other gunshots after the shooters stopped shooting. He did not recall whether Mr. Turner was present at the time of the shooting. Mr. McKinley said Mr. Robert McKinley, Mr. Payne, and Mr. Marcus Clark were not present at the time of the shooting but arrived at the scene after the shooting occurred. Mr. McKinley stated that he was told of a prior altercation between the victim and "Little Cord."

         Mr. Dedrick Flynn, Mr. Flynn's brother, testified that he commonly allowed others to use his cellular phone. He knew Mr. Benson as his brother's friend.

         Ms. Angelite Dade testified that she was employed with Neustar, an authorized agent for Cricket Communications that maintained and produced cellular phone records in response to legal processes that had been served on Cricket Communications. She produced the cellular phone records for numbers assigned to Mr. Dedrick Flynn and Ms. Nina Benson. On August 27, 2012, the number assigned to Mr. Dedrick Flynn called the number assigned to Ms. Benson on two occasions at 4:42 p.m. Ms. Benson's number called Mr. Dedrick Flynn's number later that evening at 7:04 p.m. From 10:59 p.m. to 2:11 a.m., Ms. Benson's number received incoming calls that were not answered.

         Mr. Sean Lovejoy with the 911 Center of the Memphis Police Department testified that the 911 Center received the first call from the scene on August 27, 2012, at 10:40 p.m. At 10:53 p.m., the 911 Center received a call from Methodist South Hospital reporting that a shooting victim came to the hospital.

         On cross-examination, Mr. Lovejoy testified that at 10:42 p.m., someone called and reported that shots were still being fired. Another caller described the shooters as two African American males with dreadlocks who were not wearing shirts. An officer also called and reported that he saw someone running from the scene.

         On redirect examination, Mr. Lovejoy testified that at 10:52 p.m., the radio dispatcher reported that the officer stated that the shooter was an African American male who was approximately five feet, six inches tall, had a short haircut, was wearing a blue and white striped polo shirt and blue pants, and was last seen running westbound down Alcy near the apartment complex. Mr. Lovejoy was unable to determine whether the officer's description was based upon his own observations or those reported by a witness.

         Officer Lee Walker with the Crime Scene Investigation Unit of the Memphis Police Department collected six 7.62 casings, one live 7.62 bullet, two nine millimeter casings, and one forty caliber casing from the scene. Officer Walker said that a 7.62 bullet is generally shot with an assault rifle and that nine millimeter and forty caliber bullets are generally shot with handguns.

         On cross-examination, Officer Walker testified that a nine millimeter bullet could be fired from a handgun or a "tech-9, " a semiautomatic weapon that is larger than a handgun. He did not know whether a 7.62 bullet could be fired from a firearm other than an assault rifle.

         Officer Walker stated that the only blood found at the scene was where the victim was lying. He did not see any trails of blood coming from or toward the victim's body. He stated that while there was some lighting at the scene, it "wasn't the greatest." He stated on redirect examination that he was able to see that night at the crime scene.

         Sergeant James Taylor with the Felony Response Unit of the Memphis Police Department testified that on the night of August 27, 2012, or early morning hours of August 28, 2012, his supervisor assigned him to go to Methodist South Hospital where a person was receiving treatment for a gunshot wound to the leg. After arriving at the hospital, Sergeant Taylor came into contact with Mr. Benson.

         Retired Sergeant John Oliver, who was assigned to the Homicide Bureau of the Memphis Police Department in August 2012, interviewed Mr. Aaron Turner at the homicide office two or three days following the shooting. Sergeant Oliver said Mr. Turner was very cooperative and gave a statement. Mr. Turner stated that when the shooters approached the group, one of the shooters asked which of them was "DJ" and that the victim said, "[I]t's me. Wassup?"

         Sergeant Oliver testified that officers learned from a witness that one of the shooters had been shot during the incident. He had a dispatcher run a log of every call received during the time frame of the shooting to determine whether anyone came to a hospital with a gunshot wound. Sergeant Oliver learned that Mr. Benson sought treatment from Methodist South Hospital for a gunshot wound during the timeframe of the shooting. Sergeant Oliver reviewed the hospital's video surveillance taken during the time in which Mr. Benson reported to the hospital. The video showed Mr. Flynn, who was wearing a striped shirt, helping Mr. Benson out of the backseat of a car parked in the bay area of the hospital. Hospital personnel then came out to assist Mr. Benson. At some point after Mr. Benson was taken out of the car, Mr. Flynn retrieved an item out of the trunk and then walked around the car and into the parking lot. Mr. Flynn later entered the hospital lobby wearing a different shirt.

         Sergeant Oliver testified that Methodist South Hospital was located approximately five or six miles away from Hillview Apartments. One afternoon, he drove two routes from the apartment complex to the hospital in moderate traffic. He arrived at the hospital in nine minutes and forty seconds taking one route and ten minutes and fifty-three seconds taking the second route.

         On cross-examination, Sergeant Oliver testified that he was present when Mr. Benson was interviewed by police officers. Mr. Benson was picked up at his home at 7:30 p.m. on August 30, 2012, and arrived at the homicide office at 7:50 p.m. Sergeant Oliver acknowledged that Mr. Benson had a gunshot wound to his leg and said he checked on Mr. Benson regularly while Mr. Benson was waiting to be interviewed. Officers entered the interview room to question Mr. Benson at 9:30 p.m. Sergeant Oliver recalled that Sergeant Robert Wilkie asked Mr. Benson about the prescription drugs and the amounts that he had taken. Sergeant Oliver recorded in his report that Mr. Benson last took prescription drugs at 6:30 p.m. and that he was not under the influence of drugs or alcohol. Sergeant Oliver acknowledged that no record was created regarding what prescription drugs that Mr. Benson had taken or the amounts.

         Sergeant Oliver received a tip that "Little Cord" and the victim were involved in a fight one or two days before the shooting. The victim's mother also informed police officers of the fight. Sergeant Oliver did not interview "Little Cord." He explained that while several individuals identified "Little Cord" in a photographic array, none of the witnesses said they saw "Little Cord" at the scene on the night of the shooting or said that he was involved in any way.

         Sergeant Oliver stated that Mr. Turner did not identify either of the Defendants in photographic arrays and that Mr. Thompson was unable to identify Mr. Flynn in a photographic array. While Sergeant Oliver obtained information that someone other than the victim may have been shot at the scene, he did not locate any blood evidence of another shooting at the scene.

         Lieutenant Anthony Mullins of the Memphis Police Department was assigned to the Homicide Bureau in August 2012 and took Mr. Marcus Taylor's statement on August 28, 2012. Lieutenant Mullins said Mr. Taylor was at the police department voluntarily and did not have any problems speaking to the officers. When Lieutenant Mullins asked Mr. Taylor whether he heard either shooter say anything, Mr. Taylor said he heard one of the shooters say, "[B]ruh, you shot me." Lieutenant Mullins said that if Mr. Taylor had stated that he overheard someone state that he or she heard one of the shooters make this statement, Lieutenant Mullins would have questioned Mr. Taylor further to determine from whom he learned of the statement.

         On cross-examination, Lieutenant Mullins testified that Mr. Taylor identified "Little Cord" in a photographic array but was unable to identify either of the Defendants in two other photographic arrays. Lieutenant Mullins did not believe that Mr. McKinley ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.