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State v. Gutierrez

Court of Criminal Appeals of Tennessee, Nashville

May 24, 2017


          Session October 19, 2016

         Appeal from the Criminal Court for Davidson County No. 2008-A-505 Cheryl A. Blackburn, Judge.

         The Appellant, Jonathan Gutierrez, was convicted in the Davidson County Criminal Court of one count of first degree premeditated murder and four counts of aggravated assault and received an effective sentence of life plus sixteen years in confinement. On appeal, he contends that the evidence is insufficient to support his murder conviction and two of his aggravated assault convictions, that the trial court committed plain error by failing to declare a mistrial when the State did not produce a codefendant's statement before trial, that the State committed plain error by giving improper closing argument, that the trial court erred by ordering consecutive sentencing, and that his life sentence is unconstitutional. Based upon the oral arguments, the record, and the parties' briefs, we affirm the judgments of the trial court.

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

          Richard C. Strong (on appeal) and Paul Walwyn (at trial), Nashville, Tennessee, for the appellant, Jonathan Gutierrez.

          Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant Attorney General; Glenn R. Funk, District Attorney General; and Bret Gunn and Brian Ewald, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which John Everett Williams and Robert W. Wedemeyer, JJ., joined.



         I. Factual Background

         In February 2008, the Davidson County Grand Jury indicted Alvin Gutierrez, Hector Lopez, and the then seventeen-year-old Appellant for the first degree premeditated murder of Lucio Garcia and the aggravated assaults of April Lopez, Jennifer Lopez, Brittany Jones, and Crystal Rice. The Appellant filed a motion to sever his trial from that of his codefendants on July 16, 2010, and the trial court granted the motion on December 17, 2010.

         At the January 2011 trial, [1] twenty-two-year-old Hector Lopez testified that he was a codefendant in this case and that he was testifying against the Appellant voluntarily. He said that he had not been promised anything in exchange for his testimony but acknowledged that he was hoping the State would take his testimony into consideration for his own case.

         Hector[2] testified that at the time of the incident in question, he had been a member of Brown Pride, a street gang that was "[m]ainly Mexican, " for one or two years. He said the gang was involved in "[r]obbery, selling drugs, and stuff like that" and had ongoing conflicts with other gangs such as "Bloods, MS-13, [and] South 13." South 13 was also known as "Surenos." At some point, Detective Mark Anderson, who worked in the Gang Unit of the Metropolitan Nashville Police Department (MNPD), stopped Hector for a traffic offense and asked if Hector would provide him with information about gang activity. Hector agreed and would contact Detective Anderson when he thought something bad was going to happen and he could prevent people from getting hurt.

         Hector testified that the Appellant was also a member of Brown Pride, that he and the Appellant were "pretty close, " and that he saw the Appellant almost every day. The Appellant had been a Brown Pride member for a longer period of time than Hector and lived on Thompson Lane near Murfreesboro Road with the Appellant's mother, brothers, and stepfather. About a year before the shooting in this case, the Appellant was shot in his right leg. The Appellant showed the wound to Hector and told Hector that "people [were] always like shooting at his house, like always riding by and shooting at his house." Hector said he was at the Appellant's home frequently and that he witnessed people "scream, sometimes they would show bandanas, sometimes they would scream obscenities at the house and stuff like that." Hector said people would drive by; "diss on" Brown Pride; and yell out their gang affiliations, which was mostly South 13 and MS-13. In the days leading up to Lucio Garcia's death, Hector saw a white or gray Mustang and a yellow Dodge truck driving by the Appellant's house.

         Hector testified that about 4:00 a.m. on August 26, 2007, he arrived at the Appellant's home with the Appellant; Michael Gutierrez, the Appellant's brother; Raul Rostro; and Alvin Gutierrez, the Appellant's cousin. All of them were Brown Pride members and had been to a party. Hector said he had just backed his mother's white Ford Escape into the Appellant's driveway and was still in the car with Rostro when the white Mustang passed by. Hector did not hear or see the people in the Mustang do anything. However, the Appellant told Hector that they had screamed "South 13" and that the Appellant was "tired of people driving by his house and always shooting it up." Hector acknowledged that the Appellant was "mad." The Appellant and Alvin got into the Escape, and the Appellant told Hector to "drive."

         Hector testified that he drove the Escape toward the Mustang. Alvin was in the front passenger seat, Rostro was sitting behind Hector, and the Appellant was sitting behind Alvin. Hector said he was driving about sixty-five miles per hour in the residential area and caught up to the car. The Appellant passed his gun forward to Alvin, Alvin leaned his torso out the front passenger window, and Alvin fired three or four shots at the Mustang. Hector said that he did not see any of the bullets hit the Mustang and that he continued to chase it. The cars eventually drove out of the residential area and turned onto Interstate 440 and then Interstate 65. Hector said that Alvin "pulled the back of the gun too many times . . . and he had dropped some bullets, and then he thought he didn't have anymore." The Appellant told Alvin to give him the gun. Alvin handed the gun to the Appellant, and the Appellant said that "he had one left."

         Hector testified that he began passing the driver's side of the Mustang on Interstate 65. When the Appellant's window was beside the driver's window of the Mustang, Hector heard a final gunshot. He then heard the Appellant say that "he aims before he shoots." Hector said that the Mustang "kept on driving, " that he did not know anyone in the Mustang had been shot, and that he drove back to the Appellant's house. The Appellant told Hector to drive Rostro "to get some more bullets just in case they were going to come back, " and Hector did so.

         Hector testified that he did not know how many people were in the Mustang but that he could see the driver was a male. No one in the Mustang ever leaned out of the car or yelled anything while the Escape was chasing it. Hector said he learned someone had been killed when Detective Anderson came to his home and asked him about the incident. At first, Hector denied being involved. However, he admitted his involvement the next day and named the other people in the Escape. The police seized the Escape, and Hector's mother gave Detective Anderson two cartridges she had found in the vehicle. Due to Hector's relationship with Detective Anderson, the police did not arrest Hector immediately. He was later indicted with the Appellant, though, and spent about eight months in jail. In return for his cooperation and expected testimony against the Appellant, the State recommended that his bond be lowered, and he was released from confinement. He said that at the time of the Appellant's trial, he had been out of jail about three years and was doing his "best" to avoid Brown Pride members. He said he did not know Lucio Garcia and had never seen him prior to August 26, 2007.

         On cross-examination, Hector testified that on August 26, 2007, he was nineteen years old. Prior to the shooting, he and the four other males had been to a party and then a bar, and Hector had consumed thirteen or fourteen beers in six or seven hours. He said the Appellant "doesn't like to drink" and had consumed one beer. Everyone left the bar about 3:00 a.m. and returned to the Appellant's home. No one had gone inside the house when the Mustang drove by the house.

         Hector acknowledged that he did not tell Detective Anderson the truth about the shooting the first or second time he spoke with the detective and that he claimed Michael Gutierrez had been driving the Escape. However, he told the truth when he learned someone had been killed and when the police told him that Michael, as the driver of the Escape, was in trouble. He explained, "And so I had to tell [Detective Anderson] the truth because [Michael] was not the one that was driving." Defense counsel asked if Hector actually saw the Appellant hand the gun to Alvin, and Hector answered, "I saw the hand going to the front." He acknowledged that Alvin fired the first three or four gunshots, that he heard the final gunshot when the cars were on the interstate, and that he did not know which bullet struck Mr. Garcia.

         Jennifer Lopez testified that she was eighteen years old and no relation to Hector Lopez. In August 2007, she was fifteen and had been dating Lucio Garcia about six months. Mr. Garcia was nineteen, and Jennifer had never known him to affiliate with gang members. She said that she had known the Appellant for about one and one-half years and that he was a member of Brown Pride. She also knew he lived on Thompson Lane.

         Jennifer testified that in the early morning hours of August 26, she was out with Mr. Garcia; her younger sister, April; Brittany Jones; and Crystal Rice. They had been to a movie; a place to play pool named "Snookers"; and then Jennifer's home. They left Jennifer's residence in Mr. Garcia's white Ford Mustang and traveled on Thompson Lane, but Jennifer did not remember where they were going. Mr. Garcia was driving, Jennifer was sitting in the front passenger seat, and the three other girls were in the back seat.

         Jennifer testified that she did not do anything as the Mustang passed the Appellant's house and that she did not remember if anyone else in the car did anything. About two minutes later, April told Jennifer that "they were following us." Jennifer did not know who was in the other vehicle or from where it came. The vehicle caught up to the Mustang, and someone in the other vehicle fired two gunshots. The shots hit the back of the Mustang but no one inside. Jennifer said Mr. Garcia sped up and was driving eighty miles per hour, trying to get away. Eventually, he turned onto Interstate 440 and then Interstate 65.

         Jennifer testified that the other vehicle caught up to the Mustang on Interstate 65. As it pulled alongside the Mustang, Mr. Garcia told Jennifer to "get down." A gunshot was fired seconds later, but Jennifer did not hear it. April told her that Mr. Garcia had been shot and to grab the steering wheel. Jennifer did not see any blood on Mr. Garcia, but his head was down to his chest. She grabbed the steering wheel and then her sister grabbed it while Jennifer lifted Mr. Garcia's foot off the accelerator. They pulled onto an exit ramp, and Jennifer saw blood. She stated that Mr. Garcia's window was up during the incident and that no one ever leaned out of the Mustang or held anything out of it. She acknowledged that she was placed in fear by the gunshots and said that she had not seen Jones or Rice since the shooting. She did not know if they were still in the Nashville area.

         On cross-examination, Jennifer testified that at the time of the shooting, her sister April was thirteen and was good friends with Mr. Garcia. No one had been drinking alcohol or smoking marijuana prior to the incident. She said that the Mustang's door windows were "cracked" open but were not all the way down and that she did not see anyone standing outside the Appellant's house as the Mustang passed it. Mr. Garcia was driving the speed limit of forty miles per hour through the Appellant's neighborhood. However, when the other vehicle began following them, Mr. Garcia began driving "[r]eally fast." She said that she heard two gunshots and that the girls in the back seat "ducked" down. She acknowledged that when they got onto the interstate, Mr. Garcia told her to "get down." She said she never saw anyone shooting at the Mustang.

         April Lopez testified that she was sixteen years old and living in a juvenile detention facility for stealing a car. She also had committed robbery. In August 2007, April knew Lucio Garcia as her sister's boyfriend and as a member of South 13. She said he always carried a blue flag, which she acknowledged was the gang's "colors." The Appellant was a member of Brown Pride, and the two gangs did not get along.

         April testified that in the early morning hours of August 26, she, her sister, and two friends were riding with Mr. Garcia in his car. April was sitting behind Mr. Garcia, and they were taking Crystal Rice to her boyfriend's house. As the car passed the Appellant's house, April saw one person getting into a car and yelled, "[F***] y'all [b****es]." She said that she did not know why she yelled the statement, that she regretted doing so, and that "[t]hey pulled out, and they started shooting at us." She heard four gunshots. She did not know if any of the bullets hit the Mustang, but the bullets did not hit anyone inside the car, and Mr. Garcia continued driving. April had her head down but lifted her head when she felt the Mustang slowing. Mr. Garcia's head was on the steering wheel, so April pulled the emergency brake. The girls pulled the car off the interstate, and it finally came to a stop. April said she was afraid during the shooting and that she did not see or hear the final gunshot.

         On cross-examination, April testified that she was thirteen years old at the time of the shooting and considered Mr. Garcia to be one of her best friends. She acknowledged that when the Mustang passed the Appellant's house, the person she saw outside was the Appellant and that she yelled in a deep voice, "Hey Jonathan." She then yelled "[F***] y'all [b****es]." She said she leaned forward and yelled the statements out of the driver's window, which was "cracked" open, and that the Appellant's house was on the driver's side of the Mustang. A vehicle with its lights on was at the Appellant's house.

         April testified that "I just looked back, and then I seen the car pull out. And then one shot fired and then kept going on and on." When the Mustang got out of the residential area, April told Mr. Garcia to pull into a gas station because she did not think the people in the other car would continue shooting at the Mustang in a public place. However, Mr. Garcia did not listen to her and kept driving. She said that he was driving "100, 120" miles per hour on the interstate and that he almost lost control of the car. She stated that she had her head down "[t]he whole time" and that she pulled the emergency brake and grabbed the steering wheel when she felt the Mustang slowing down. The girls called 911, and it took about thirty minutes for law enforcement to arrive. April acknowledged that she "[made] up stuff" when she talked with the police.

         After April's testimony, the State played portions of a May 13, 2009 video-recorded interview the Appellant gave to the History Channel for its television series, Gangland. During the interview, the Appellant, wearing clothing that appeared to be an orange prison jumpsuit, stated that he loved his fellow gang members like brothers and that he hid what he did in the gang from his mother. He said that Brown Pride "beefed" with Surenos anytime they saw each other and that "I always have my gun on me, any point in time." The Appellant said that Surenos members shot at his house twice and that Brown Pride members retaliated for the shootings.

         The interviewer asked the Appellant about the shooting in this case, and the Appellant said he and his friends had just pulled into his driveway when the other car drove by his house. The Appellant stated that the people in the other car "just started disrespecting us, saying all kinds of stuff" and that he did not know who was in the car. The interviewer asked, "What did you do then?" The Appellant answered, "Did what we had to do." He said that he was in a car with three other males and acknowledged that they "chased down" the other car. He stated that the other car "basically waited for us" and that no one in the other car shot at the car he was in. He then stated as follows:

Everything happened so quick. . . . How it look, like if it was in your position, you get behind me, I'm a gamer and you [in] a different gang. You get behind me. If I come to your house, roll up to you, of course you going to come at me. Me and my homeboys going to stop at a light and wait for you, huh? Soon as I stick my head out, what you going to think? You going to think I'm fixing to shoot you. So things happen.

         The Appellant said that he did not know "that guy, " meaning Lucio Garcia, and that the females in the car were "hood rats." The interviewer asked if the Appellant had his gun at the time of the incident, and he said no. He acknowledged that he thought the people in the other car were going to harm him.

         Detective Jacob Pilarski testified that in August 2007, he was a patrol officer with the MNPD. On August 26, he responded to a "possible shooting" call and went to the Wedgewood Avenue entrance ramp on Interstate 65. He arrived within two minutes and was the first officer on the scene. A white Mustang was in a ditch, and the back of the car was "cocked up" so that its left rear tire was off the ground. Detective Pilarski said that somebody was yelling that "they shot him, they shot him" and that the scene was "very frantic." The driver's door window had been shot out, Mr. Garcia was slumped over the steering wheel, and Detective Pilarski saw a large amount of blood. He said that he had Jennifer Lopez write out a statement and that paramedics arrived and removed Mr. Garcia from the scene.

         Detective Mark Anderson of the MNPD's Gang Unit testified that Surenos and Brown Pride were rival gangs. He stated that "some weeks prior" to this incident, the Gang Unit stopped a vehicle and arrested several gang members, including Hector Lopez. Detective Anderson said that he spoke with Hector and that Hector "seemed willing at times to maybe talk to me and actually provided me a ...

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