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State v. Bishop

Court of Criminal Appeals of Tennessee, Knoxville

June 17, 2019

STATE OF TENNESSEE
v.
THOMAS BISHOP, DEVONTE BONDS, and JASON SULLIVAN

          Session January 24, 2019

          Appeal from the Criminal Court for Knox County Nos. 100194A, 100194B, 100194C Bob McGee, Judge.

         In this consolidated appeal, the Defendants, Thomas Bishop, Devonta Bonds, and Jason Sullivan, were convicted by a Knox County Criminal Court jury of attempted second degree murder, a Class B felony, aggravated assault, a Class C felony, and possession of a firearm during the commission of a dangerous felony, a Class D felony.[1] See T.C.A. §§ 39-13-210 (2010) (subsequently amended) (second degree murder), 39-12-101 (2010) (subsequently amended) (criminal attempt), 39-13-102 (Supp. 2011) (subsequently amended) (aggravated assault), 39-17-1324 (2010) (subsequently amended) (firearm possession). The jury likewise determined that the Defendants committed a criminal gang offense, enhancing by one level the felony classifications of the attempted second degree murder and aggravated assault convictions. See id. § 40-35-121 (2010) (subsequently amended). The trial court sentenced Defendant Bishop to thirty-two years for attempted second degree murder, to fifteen years for aggravated assault, and to five years for the firearm violation and ordered consecutive service of the attempted second degree murder and firearm sentences as required by law, for an effective thirty-eight-year sentence. The court sentenced Defendant Bonds to twenty years, to ten years, and to three years, respectively, and ordered consecutive service of the attempted second degree murder and the firearm sentences as required by law, for an effective twenty-three-year sentence. The court sentenced Defendant Sullivan to thirty-five years, to eighteen-years, and to five years, respectively, and ordered consecutive service of the attempted second degree murder and firearm sentences as required by law, for an effective forty-year sentence. The Defendants appealed, in relevant part, challenging the constitutionality of the criminal gang enhancement statute, and this court determined that the statute violated due process of law and remanded the case to the trial court for a new sentencing hearing "based solely on the underlying offenses." See State v. Bonds, 502 S.W.3d 118, 158, 167 (Tenn. Crim. App. 2016). Upon remand, the trial court sentenced Defendant Bishop to consecutive terms of sixteen years for attempted second degree murder, eight years for aggravated assault, and five years for the firearm violation, for an effective twenty-nine-year sentence. The court sentenced Defendant Bonds to consecutive terms of ten years, five years, and three years, respectively, for an effective eighteen-year sentence. The court sentenced Defendant Sullivan to consecutive terms of sixteen years, eight years, and five years, respectively, for an effective twenty-nine-year sentence. On appeal, the Defendants contend that the trial court erred by imposing consecutive service of the attempted second degree murder and aggravated assault sentences. We reverse the judgments of the trial court and remand for the entry of modified judgments reflecting concurrent service of the attempted second degree murder and aggravated assault sentences in each Defendant's case. We likewise remand for the entry of a judgment relative to Defendant Sullivan's firearm violation.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed; Case Remanded

          Wesley D. Stone, Knoxville, Tennessee, for the appellant, Thomas Bishop.

          John M. Boucher, Jr., Knoxville, Tennessee, for the appellant, Devonte Bonds.

          Leslie M. Jeffress, Knoxville, Tennessee, for the appellant, Jason Sullivan.

          Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant Attorney General; Charme P. Allen, District Attorney General; and TaKisha Fitzgerald and Phillip Morton, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ., joined.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE.

         This case relates to the May 30, 2012 attempted killing of Jonathan Dyer. In the previous appeal, this court summarized the trial facts as follows:

On May 30, 2012, Jonathan Dyer was living with his girlfriend, Carnisha Dibrell, in Arbor Place Apartments on Townview Drive. Katherine White lived upstairs from the couple in the same apartment complex. That morning, Ms. White asked Mr. Dyer to take out his trash because she could smell it at her apartment, and she gave him a trash bag to do so. Mr. Dyer removed the trash and cleaned off his porch. Afterward, around 11:00 a.m., he went inside to brush his teeth and to prepare for a job interview. He also woke up Ms. Dibrell so that she could get ready to go to work.
Ms. White was sitting on the stairs outside of her apartment and smoking a cigarette when she saw a group of people approach and knock on Mr. Dyer and Ms. Dibrell's front door. Mr. Dyer and Ms. Dibrell heard the knock on the door, and Mr. Dyer shut the bedroom door before going to answer the front door. When Mr. Dyer opened the door, the defendants immediately entered the apartment. Ms. White saw Mr. Dyer let the group inside the apartment.
Mr. Dyer and the defendants were members of a street gang known as the Five Deuce Hoover Crips. Mr. Dyer knew the defendants, primarily, by their gang monikers: Defendant Bonds was known as "Lil Doozie"; Defendant Bishop was known as "Hoova T"; Defendant Sullivan was known as "Crank Deuce"; and Defendant Robinson was known as "Yella Deuce." Mr. Dyer's gang moniker was "J Hoover." Mr. Dyer knew Defendant Bonds the best of all the defendants because they grew up together, and Defendant Bonds's legal name was the only one of which Mr. Dyer was aware at that time. Mr. Dyer had only met Defendant Sullivan recently.
After entering the apartment, Defendants Bishop and Sullivan told Mr. Dyer that he needed "to put some money on [his] big homey, L.G.'s, books." Mr. Dyer refused this demand on the basis that fellow gang member L.G. was not his big homey; Mr. Dyer's big homey was another individual. Mr. Dyer explained that a "big homey" is a gang member who "calls the shots." A gang member under the authority of a "big homey" is called a "little homey," and a little homey must get the big homey's permission "to do something."
Defendant Bishop then accused Mr. Dyer of abandoning Defendant Robinson during a previous incident when someone fired a gun at her. Defendant Bishop indicated that Mr. Dyer's conduct was unacceptable because he had "left the home girl on stuck," meaning that Mr. Dyer "didn't defend her." Mr. Dyer maintained to the group that such an event had never happened and told them that Defendant Robinson was lying. Defendant Robinson "swore up and down that it did happen" and insisted, "Yeah, it did. You left me on stuck." Defendant Bishop reprimanded Mr. Dyer, chiding "these are the most precious things to us. You're supposed to hold it down, cuz. That's bogus." In making mention of "the most precious things," Defendant Bishop was talking about all female Crips. Mr. Dyer explained that, as a gang member, he was expected to "step up" and defend a fellow gang member if being threatened. Thus, if Defendant Robinson had been attacked, he would have had an obligation to protect her.
While in the bedroom during the confrontation, Ms. Dibrell heard a familiar male voice say, "These are the most precious B's in the world. . . . You ain't supposed to leave them like that. [They] are supposed to be protected." She then heard Mr. Dyer deny the accusations by responding, "No, that ain't what happened. That ain't what happened."
According to Mr. Dyer, failing to provide money for an incarcerated inmate and failing to protect a fellow female gang member could be potential grounds for a gang member to be expelled from the gang. The group surrounded Mr. Dyer against the wall leading into the kitchen of his apartment, and all of them "ganged" him, which meant that Mr. Dyer was "getting hands and feet put to" him. Mr. Dyer explained that receiving a gang beating or a fight is both the manner of initiation into the gang and expulsion from the gang. These rituals are known as "ganged in" and "ganged out." Mr. Dyer was ganged in to the gang when he was seventeen years old. During his initiation, Mr. Dyer was only ganged with fists, not feet, and he fought back against the gang members who were "jumping" him. There were no weapons during the initiation. Mr. Dyer did not need medical attention after he was ganged in. For this particular gang, the beating or fight is supposed to last for two minutes. However, on this occasion, Mr. Dyer did not remember having "too much of a chance to fight back." Mr. Dyer acknowledged that the beating he received was him being "ganged out" of the Five Deuce Hoover Crips and that he is no longer a member of the gang. Mr. Dyer testified that a gang member is also expected to fight back when he is ganged out. He was unaware of any gang member sustaining injuries as serious as he did while being ganged out.
Mr. Dyer remembered that Defendant Sullivan had a pistol "inside his front pocket," which Mr. Dyer described as a "little .22." Mr. Dyer could see the handle "hanging out," and he recognized the gun as belonging to Defendant Robinson. However, Mr. Dyer did not see Defendant Sullivan remove the weapon from his pocket, and as far as he knew, he had not been "pistol-whipped" with the gun.
From the bedroom, Ms. Dibrell heard a man "screaming" at Mr. Dyer, followed by loud yelling. The voice was so loud that Ms. Dibrell was "scared . . . a little bit." After "no longer than five seconds" of "scuffling" and "commotion," Ms. Dibrell went into the living room and saw Mr. Dyer on the floor. At that point, he was no longer being beaten. When Ms. Dibrell entered the room, four individuals were looking at her, and she began to "fear for [her] life."
The attackers walked out of the apartment, but Defendant Bonds turned around and pushed his way back into the apartment as Ms. Dibrell tried to shut the front door. He retrieved a bottle of Sprite from the kitchen and left. Ms. Dibrell did not observe any of the attackers carrying a weapon of any type.
Out of the group, Ms. Dibrell recognized Defendant Bonds because she knew him well. She had seen Defendant Bishop at their apartment on previous occasions, but only knew him by his moniker. Ms. Dibrell gathered that the familiar voice she had heard in the bedroom was that of Defendant Bishop because she knew it was not Defendant Bonds's voice and because she did not know the other male in the group. The first person who walked out of the front door did not appear to be someone Ms. Dibrell knew, but she did not see that person's face.
Mr. Dyer was face down on the floor and would not respond to her. There was "so much blood on his face." His toothbrush was on the floor in the living room. Afraid that the attackers might still be outside, Ms. Dibrell said a prayer before she went outside and began screaming. She ran upstairs to get help from Ms. White and the other neighbors. Ms. Dibrell was "so scared" about Mr. Dyer's condition because he was unconscious and could not be roused.
Ms. White was still outside when Ms. Dibrell came out of the apartment screaming. Ms. White estimated that less than a minute had elapsed since the group entered the apartment. However, Ms. White did not notice the group leave. Ms. White went down to the apartment, looked inside through the front door, and saw Mr. Dyer on the floor.
After alerting Ms. White, Ms. Dibrell returned to her apartment and observed Mr. Dyer begin "shaking." She then called 911 from her apartment. Paramedic David Blanton responded to the emergency call. After entering the apartment, he observed Mr. Dyer unconscious on the floor and bleeding from his head. Mr. Dyer would not respond to attempts to revive him. Paramedic Blanton and his partner immobilized Mr. Dyer and carried him on a stretcher to their ambulance. They took him to the emergency room for trauma patients in critical condition.
The beating rendered Mr. Dyer unconscious and caused him to have body seizures. He remained in a medically-induced coma for nine weeks. A tracheotomy tube was inserted into Mr. Dyer's throat because he could not breathe without mechanical assistance. He needed rehabilitation to learn how to talk and walk again and to learn how to control his excretory functions. Mr. Dyer said that he was not in his "right state of mind" immediately after awaking from the coma. He began "hitting people" after he regained consciousness. Ms. Dibrell admitted that there were moments when Mr. Dyer's memory was "spotty" after he regained consciousness. At times, he did not recognize her. Mr. Dyer eventually normalized, but there are still some things that he does not remember. Mr. Dyer agreed that there are gaps in his memory about what happened to him after he awoke from the coma. At the time of trial, Mr. Dyer was twenty-one years old.
Michael Washam of the Knoxville Police Department was an investigator in the Violent Crime Unit. When he arrived at Mr. Dyer's apartment, Mr. Dyer had already been taken to the hospital. Inside the apartment, Investigator Washam observed puddles of blood near and inside of the kitchen area.
Investigator Washam interviewed Ms. White about the incident and spoke to the apartment manager. Based on his conversations, Investigator Washam began looking for four black males and a black female. Ms. White testified that the men entered first, followed by the woman. The woman wore her hair in a ponytail. One of the other men had a short "fade" haircut. They did not appear to be carrying anything. Investigator Washam quickly identified Defendants Bonds and Robinson as potential suspects; Defendant Bishop became a suspect not long after the first two were identified as suspects.
On July 20, 2012, Investigator Washam went to the hospital and showed Ms. Dibrell a six photograph lineup. She identified Defendant Bishop. He showed her another six photograph lineup, and she identified Defendant Bonds. At the time she made those identifications, she had not discussed the incident with Mr. Dyer.
During this hospital visit, Mr. Dyer was "up and moving around . . . [but] he did not know who he was nor who [Investigator Washam] was and could not even name his girlfriend's name . . . ." Because of Mr. Dyer's mental state, Investigator Washam did not ask Mr. Dyer to identify his attackers.
On August 20, 2012, Investigator Washam returned to the hospital and presented Mr. Dyer with several six photograph lineups. Investigator Washam instructed Ms. Dibrell to leave the room while he asked Mr. Dyer about the lineups. Mr. Dyer identified Defendants Bonds, Robinson, and Bishop, respectively. Mr. Dyer did not make an identification in two additional lineups, neither of which contained a photograph of any of the defendants. He told Investigator Washam that Crank Deuce participated in the beating and that one of the men in the two lineups looked like Crank Deuce. However, because Mr. Dyer had only met Crank Deuce once or twice a few weeks before the beating occurred, Mr. Dyer said that he was "not a hundred percent sure" that Crank Deuce was in the lineups. Mr. Dyer asked Investigator Washam to bring additional lineups for him to review. Separately, Ms. Dibrell also identified Defendant Robinson in a lineup.
On August 25, 2012, after Mr. Dyer had been released from the hospital, Investigator Washam showed Mr. Dyer a different lineup. This time, Mr. Dyer affirmatively identified Defendant Sullivan as Crank Deuce.
On October 22, 2012, Investigator Washam showed Ms. White a six photograph lineup, and she identified Defendant Robinson. He showed her another lineup, and she identified Defendant Bishop. She could not identify anyone else in the group.
Detective Thomas Walker of the Knox County Sheriff's Office testified that Five Deuce Hoover Crips is a gang that operates in Knox County. The Hoover Groovers was the original gang name during the 1960s in California. The gang members commonly refer to the gang as "Groovin'" or "Groovers." Detective Walker confirmed that, in gang culture, a member known as "a big homey" is one who recruits members to the gang. The recruits are mentored or trained on gang life by the "big homey." The more recruits a "big homey" has, the more status he has within the gang. Aside from death, "beat outs" are a common way for gangs to expel or release members who want to leave. It is a "very violent" experience that "will result in some kind of major trauma" to the ex-member. Permanent injury serves as an enduring reminder of what happens if someone offends or forsakes the gang.
The Sheriff's Office keeps a log of all ingoing and outgoing mail to inmates in their custody. On December 14, 2012, at 4:50 a.m., a letter written by Defendant Sullivan was mailed to a Knoxville address. Defendant Sullivan signed the letter identifying himself as "Crank Deuce 52." Previously, on January 22, 2010, Defendant Sullivan sent another letter to the same individual. The bottom of the letter displays the word "grooving" and the letters "MxHxL." The acronym stands for "much Hoover love." It is signed by "Crank Deuce." Defendant Bishop signed a letter as Hoova T, "Hoova" being short for Hoover.
Defendant Sullivan has a tattoo on his arm. It depicts four playing cards fanned out, each bearing the numeral two with one of the suits in a standard deck of playing cards; such a hand is known as a four of a kind. The tattoo reads "Deuce is Wild." The gang members also commonly refer to themselves as "The Deuces." Defendant Bishop has the phrase "Criminal Minded" on his forearms as well as a five on one forearm and a two on the other. Defendant Bonds has a tattoo on his neck that says "Five Two." The numbers allude to their gang's name which contains those numbers. Defendant Bonds also has a tattoo of a star, which in gang culture identifies that a gang member is with a particular "nation." Defendant Robinson has "Yella Girl," tattooed on her neck.
Lieutenant Stephen Patrick of the Knox County Sheriff's Office testified that he was the keeper of records for the jail. He explained that Knox County contracts with a private company to record and store all inmate telephone calls. Every inmate receives a twelve-digit pin number, which is required for the inmate to place a phone call. The phone pin number is associated with the inmate's identification number. The State played portions of numerous recorded phone calls made by the defendants while incarcerated.

         On August 20, 2012, at 9:13 a.m., Defendant Bonds made a phone call to an unidentified recipient, during which he said:

["Tone"] keep telling everybody I'm locked up for attempted murder like he want[s] me to be locked up for attempted murder. I said to myself like, "Dude, you just don't know. Lil' Jonathan done woke up." . . . . If he were to press charges it would be aggravated assault and battery. Ain't no attempted murder. . . . Only thing is it would be extremely aggravated assault.

         On February 28, 2013, at 6:40 p.m., Defendant Bonds made a phone call to an unidentified recipient, during which the following conversation transpired:

Defendant Bonds: Listen. Listen. I need you all to make sure cuz is not coming.
[Redacted]
Defendant Bonds: You got to make sure everything is everything, man. 'Cause if not, dude, I'm gone. I'm gone. I'm just gonna be gone for six years, but that's still a long time, man.
. . . .
Defendant Bonds: . . . . If he show[s] up, I'm gone for six years.
Other: (Inaudible)
Defendant Bonds: You hear me?
Other: Yeah. [Redacted] said he wasn't.
Defendant Bonds: . . . . I need to know. I can't say too much over the phone, you hear me?
Other: I know, okay. So you need to talk to your daddy.
Defendant Bonds: I'm telling-Look. Listen.
Other: I[] know what you're sayin', okay?
Defendant Bonds: All right, I'm just making sure. Because if everything go good, I will be walking. I will be walking out [of] this jail on April 23rd.
Other: Right.
Defendant Bonds: Yeah, got to get this politicking the right way. Got to get this stuff right, ASAP. 'Cause if everything go good, I'm walking out that courtroom. My lawyer said, if cuz don't show up to court, I'm walking out that courtroom [on] ...

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