Court of Criminal Appeals of Tennessee, Knoxville
Session January 24, 2019
from the Criminal Court for Knox County Nos. 100194A,
100194B, 100194C Bob McGee, Judge.
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. 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.
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
Court Reversed; Case Remanded
D. Stone, Knoxville, Tennessee, for the appellant, Thomas
M. Boucher, Jr., Knoxville, Tennessee, for the appellant,
M. Jeffress, Knoxville, Tennessee, for the appellant, Jason
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.
H. Montgomery, Jr., J., delivered the opinion of the court,
in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr.,
H. MONTGOMERY, JR., JUDGE.
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
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
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
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
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.
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.
February 28, 2013, at 6:40 p.m., Defendant Bonds made a phone
call to an unidentified recipient, during which the following
Defendant Bonds: Listen. Listen. I need you all to make sure
cuz is not coming.
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
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.
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] ...