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State v. Pettis

Court of Criminal Appeals of Tennessee, Jackson

May 17, 2019

STATE OF TENNESSEE
v.
DERIUS PETTIS

          Assigned on Briefs at Knoxville December 18, 2018

          Appeal from the Criminal Court for Shelby County No. 11-04546 James C. Beasley, Jr., Judge

         A Shelby County Criminal Court Jury convicted the Appellant, Derius Pettis, of one count of attempted voluntary manslaughter, a Class D felony; one count of employing a firearm during the attempt to commit a dangerous felony, a Class C felony; one count of reckless aggravated assault, a Class D felony; and three counts reckless endangerment, a Class E felony. After a sentencing hearing, he received an effective twenty-year sentence. On appeal, the Appellant contends that the evidence is insufficient to support the convictions and that the trial court erred by refusing to instruct the jury on duress and defense of a third person. Based upon 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

          Barry W. Kuhn (on appeal) and Trent Hall (at trial), Memphis, Tennessee, for the appellant, Derius Pettis.

          Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Assistant Attorney General; Amy P. Weirich, District Attorney General; and Pamela Stark and Reginald Henderson, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which Alan E. Glenn and D. Kelly Thomas, Jr., JJ., joined.

          OPINION

          NORMA MCGEE OGLE, JUDGE

         I. Factual Background

         In July 2011, the Shelby County Grand Jury indicted the Appellant and his codefendant, Christopher Swift, for the attempted first degree premeditated murder of Robert Mull and employing a firearm during the attempt to commit a dangerous felony. The grand jury also indicted the Appellant alone for the following five offenses: aggravated assault with a deadly weapon and causing bodily injury to Andra Hubbard;[1]aggravated assault with a deadly weapon and causing bodily injury to Tony McCully; aggravated assault with a deadly weapon and causing bodily injury to Ladarrius Wright; aggravated assault with a deadly weapon and causing bodily injury to Deangelo Jones; and the reckless endangerment of Hubbard, McCully, Wright, and Jones. The record reflects that the reckless endangerment charge was nolle prosequied.

         The Appellant and Swift were tried jointly. At trial, Gary Meador testified that in December 2010, he was an officer with the Memphis Police Department (MPD). About 2:00 a.m. on December 12, Officer Meador and his partner, Officer Bryan Flacco, were traveling west on Jackson Avenue when they saw "a mass exodus coming from the parking lot of the Boss Club." Officer Meador said that people were running out of the nightclub and that cars were driving out of the parking lot "as fast as they could get out." The officers pulled into the parking lot, and someone told them that a shooting had occurred. Officers Meador and Flacco went to the front entrance of the club and found a man who had been shot. They tried to stop people in the club and parking lot from leaving until backup could arrive. Other officers later found four additional shooting victims: two in the parking lot, one on Alaska Street, and one at the hospital.

         On cross-examination, Officer Meador estimated that he and Officer Flacco arrived at the scene within a few minutes of the shooting because people were still running out of the club. He said that the club was "not a very big place" and acknowledged that it was about the size of the courtroom. He also acknowledged that he and Officer Flacco were unable to stop everyone from leaving the scene. They found one of the victims lying just inside the entrance to the club and stayed with him until medical personnel arrived. Officer Meador did not go further inside the building. He acknowledged that officers found Robert Mull's Ford Explorer in the parking lot and that the driver's door was open.

         Ladarrius Wright testified that on December 12, 2010, he was at the Boss Club and was standing near the front door with Tony McCully when a couple of people began fighting. Wright saw someone "[throw] a punch" and heard five to ten gunshots "coming from like the back of the club in the middle." He was shot eight times: four times in the left arm, twice in the chest, and twice in the leg. Regina Hurd took Wright to the hospital, and they left the club as the police were pulling into the parking lot. Wright stated that he was not trying to avoid the police but that he was trying to get medical attention. He said he saw the person who shot him, and he identified that person at trial as the Appellant.

         Wright testified that on December 14, the police showed him numerous six-photograph arrays. On the first array, Wright circled a photograph, identified the man as Chris Brown, and wrote that Brown was one of the people fighting. Wright stated that he did not know Brown or Brown's name prior to the shooting but that he learned Brown's name because "[a]ll the people were talking saying his name." On the second array, Wright circled a photograph, identified the man as "Duke," and wrote that Duke bumped into Tony McCully. Duke's real name turned out to be Kendrick Gray, and Wright said Gray bumped into McCully "really hard." On the third array, Wright circled Tony Christian's photograph and wrote that Christian was fighting with Tony McCully. On the fourth array, Wright circled a photograph, identified the man as "Jerry Lawyer," and wrote that the man was standing outside the club. Wright identified Jerry Lawyer at trial as codefendant Swift. Wright said he did not know Swift's name prior to the shooting but heard other people referring to Swift by his nickname, Jerry Lawyer, after the shooting. On the fifth array, Wright circled a photograph, identified the man as "Dee Dee," and wrote that Dee Dee shot him. Wright identified Dee Dee at trial as the Appellant.

         On cross-examination, Wright testified he had never met the Appellant prior to December 12. He described the nightclub as a "hole in the wall" and said that it was a "little smaller" than the courtroom. Patrons were patted down for weapons before they entered the club, and "a lot" of people were in the club on December 12. Wright went to the club with Hurd and had been there two to three hours when the shooting occurred. He explained that he was standing at the entrance with McCully when Gray bumped into McCully. Christian then hit McCully, the entire crowd started fighting, and the Appellant started shooting. Wright said the Appellant was the only person he saw shooting inside the club.

         Tony McCully testified that he went to the Boss Club on December 12, 2010. At some point, "the whole club just got quiet." McCully saw Robert "Ra Ra" Mull enter the club and told Mull, "'I got a bad feeling. We got to go. I don't feel safe where I'm at. It's too quiet and it's too many people in the club for the club to be quiet like it was some planning going on.'" McCully said he and Mull were standing by the front door and near a security guard when he saw Kendrick Gray come toward them. Gray said something to Mull and then "jumped backwards" toward McCully and Mull "like you jump in the crowd and they catch you." McCully and Mull pushed Gray, and McCully "got to fighting" with Tony Christian. McCully saw shots fired, tried to get onto the ground, and heard the security guard say, "'I'm shot. I can't move. I can't move.'" McCully tried to help the security guard get up, ran out of the club, and saw that Deangelo Jones had been shot in the wrist. McCully began looking for Mull and found him lying in the parking lot. Mull was ten to twenty feet from Mull's Ford Explorer and could not breathe. McCully said that the shooting happened "fast" and that "I think it was like just a punch and boom." When the police arrived, McCully realized he had been shot in his left elbow.

         McCully testified that two days after the shooting, the police showed him two six-photograph arrays. On the first array, McCully circled Chris Brown's photograph and wrote that he saw Brown in the crowd. On the second array, McCully circled Gray's photograph and wrote that Gray started the fight. McCully identified a photograph of a group of men taken at the club on the night of the shooting, and he identified one of the men in the photograph as Tony Christian.

         On cross-examination, McCully testified that the club was "[v]ery small" and that thirty to forty people were in the club at the time of the shooting. He said that the club's employees "did a pretty good search" of patrons who entered the club and that he thought the club was safe. McCully acknowledged that Gray and Mull "exchanged words" and said that they "tussle[d]" before the shooting. However, "no punches [were] thrown." McCully started fighting with Christian and heard a gunshot. He said that Mull did not have a gun inside the club and that he did not see who shot Mull. McCully acknowledged that he did not know who shot him in the elbow.

         Andra Hubbard testified that on December 12, 2010, he was working as a "bouncer" at the Boss Club and was responsible for "patting down, searching" patrons at the front door. He said that he had worked at the club for seven years; that codefendant Swift was a regular customer; and that he knew Swift by his nickname, Jerry Lawyer. Hubbard also knew the Appellant. The Appellant and Swift were at the club on December 12.

         Hubbard testified that about 2:30 a.m., someone told him that "'they in there fighting.'" Hubbard said he looked in the club, saw the "O.K. Corral," and took two steps inside to break up the fight. He heard two gunshots in the west side of the building and thought to himself, "'Wow. Somebody got a gun in there.'" Hubbard turned around to go out so he could call 911 and heard a third gunshot. He fell to the ground and realized he had been shot. His legs were "burning," and he could not move them. People started running out of the club, and Hubbard had to crawl out of the way so they did not trample him. A man hiding underneath a table tried to help Hubbard. Hubbard was shot three times and spent eight months in the hospital.

         On cross-examination, Hubbard testified that the capacity of the club was about 150 people, that more than 150 people were in the club that night, and that Swift was there with the Appellant. When Hubbard went into the club to stop the fight, he saw four or more people "brawling."

         Deangelo Jones testified that when he arrived at the Boss Club on December 12, he saw Chris Brown and Kendrick Gray wearing black clothing and "passing [three or four] guns over the back fence." Jones and Robert Mull then went into the club together. About twenty minutes later, they were standing at the front door with Tony McCully when a fight "broke out." Jones looked into the crowd, "seen a dude with all black on with a gun pointing," and thought his life was in danger. He heard a gunshot to his right and saw "fire jump out that gun." He ran out of the club, and Darenta Hearns picked him up on Jackson Avenue. Jones saw blood on his jacket sleeve and discovered he had been shot in his left wrist. Hearns took him to Alaska Street, and an ambulance transported him to a hospital.

         Jones testified that Tony Christian was fighting before the shooting but that he did not see Brown or Gray fighting. On the afternoon of December 12, the police showed Jones two group photographs that were taken inside the club before the shooting. On one of the photographs, Jones circled Christian and wrote that Christian started the fight with Gray. On the other group photograph, Jones circled two men and identified them as Gray and Brown. The police also showed Jones several six-photograph arrays. On one of the arrays, Jones circled Brown's photograph and wrote that Brown was "one of the shooter[s]." Jones explained to the jury, "I didn't mean to say it like he was actually shooting, but he was responsible for the guns getting in the club."

         On cross-examination, Jones testified that Brown was passing the guns over the fence to Gray and that two or three men were with Gray. However, Gray was the only person receiving the guns from Brown. Jones entered the front of the club and was patted down. Although he had just seen guns being taken into the back of the club, he did not think he was in danger. Jones heard several gunshots before he ran out of the club. He continued to hear gunshots and estimated that he heard a total of forty to forty-five shots. He acknowledged giving a statement to police in which he said he thought the gun pointed and fired at him was a forty-caliber gun. He also acknowledged saying in his statement that Brown and Gray were "responsible" for shooting him and that Brown was "the shooter." Jones told the jury that Brown and Gray did not shoot him and that he did not see the shooter's face. He told the police that Brown and Gray were "responsible" for the shooting because they were responsible for the guns being in the club. He said he wrote on the array that Brown was the shooter because Sergeant Thomas Manns told him "what to put down on the paper."

         Robert Mull testified that on December 12, 2010, he was at the Boss Club but was getting ready to leave because he was "feeling something was going to happen." He said that before he could leave the club, "they surrounded us," "a fight broke out," and "they started [firing] gunshots." Mull ran out the front door, and someone chased and shot at him. Mull ran to his Ford Explorer to get his gun out of the center console and opened the driver's door. He "saw [the shooter] coming back up" and "took off running again." Mull ran toward the back of the club and was "shot down." A second shooter "stayed on top of [him]" and shot him three times. Mull was in the hospital for three months followed by one month of rehabilitation.

         Mull testified that on the afternoon of December 12, the police showed him several six-photograph arrays. On one of the arrays, Mull circled codefendant Swift's photograph and wrote that Swift was one of the men who shot him outside the club. On another array, Mull circled the Appellant's photograph and identified him as "the second person" who shot him outside. Mull told the jury that he had seen the Appellant and Swift "around the neighborhood" prior to December 12 and that he knew them as Dee Dee and Lawyer.

         On cross-examination, Mull testified that he had been at the club about one hour when the fight started. He said that he did not see who was involved in the fight, that he did not see Tony Christian and Tony McCully fighting, and that he never pulled a gun. Doctors told him that he had been shot eight times.

         Darenta Hearns testified that on December 12, 2010, he dropped off his cousin, Deangelo Jones, at the Boss Club. About 2:00 a.m., Hearns drove back to the Boss Club to pick up Jones. Hearns said he "pulled to the back of the club" and waited in his car for Jones to come outside. While he was waiting, he "saw some guys putting some guns over the fence" behind the club. He stated, "They were taking them out of a car and they was handing them over the fence to some guys that was standing in the back of the Boss Club where the back door was at and they were taking them in." Hearns saw about five guns and six or seven men, and he thought the men were security guards because all of them were dressed in black clothing. After the men took the guns into the club, Hearns heard five or six gunshots and saw people running out of the front of the club. He then saw "one guy running" and "like two or three other guys chasing him" in the parking lot. The man ran to a Ford Explorer, opened the driver's door, and tried to get into the vehicle. Hearns said that the man "saw the guys coming for ...


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