Session Date: January 5, 2017
from the Criminal Court for Shelby County No. 12-06552 Paula
L. Skahan, Judge
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.
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
B. Manis, Memphis, Tennessee, for the appellant, Octavius
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
Everett Williams, J., delivered the opinion of the court, in
which Alan E. Glenn and Camille R. McMullen, JJ., joined.
EVERETT WILLIAMS, JUDGE
AND PROCEDURAL BACKGROUND
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.
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.
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."
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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
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.
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.
Rodney Thompson 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
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.
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."
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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
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."
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.
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.
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
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.
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.
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
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.
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
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.
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?"
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.
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.
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.
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.
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.
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
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 ...