Court of Criminal Appeals of Tennessee, Knoxville
30, 2019 Session
from the Criminal Court for Hamilton County No. 297181 Don W.
Hamilton County jury convicted the Defendant, Osei Sorrell,
of attempted second degree murder, aggravated assault, and
reckless endangerment. The trial court dismissed the
aggravated assault conviction in its capacity as
13th juror and imposed an effective nine-year
sentence for the remaining convictions. The Defendant raises
the following issues on appeal: (1) the jury venire did not
represent a cross-section of Hamilton County; (2) the trial
court erred when it denied his motion for new trial based on
newly discovered evidence that would have resulted in a
different verdict; (3) the trial court erred in declaring the
victim unavailable to testify; (4) the trial court erred when
it limited the proof of the victim's gang affiliation;
(5) Agent Hudson was not qualified as an expert on firearms
identification; and (6) the trial court erred when it allowed
the victim's prior out of court identification of the
Defendant as the shooter to be admitted. After a thorough
review of the record and applicable law, we affirm the trial
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
P. Weiss, Chattanooga, Tennessee for the appellant, Osei
Herbert H. Slattery III, Attorney General and Reporter;
Katherine C. Redding, Assistant Attorney General; W. Neal
Pinkston, District Attorney General; and Phillip Andrew
Coyle, Assistant District Attorney General for the appellee,
State of Tennessee.
W. Wedemeyer, J., delivered the opinion of the Court, in
which John Everett Williams, P.J. and Robert L. Holloway,
Jr., J., joined.
W. WEDEMEYER, JUDGE
case arises from the Defendant shooting the victim, Kadarius
Johnson, while driving in downtown Chattanooga, Tennessee.
For this offense, a Hamilton County grand jury indicted the
Defendant for attempted first degree premeditated murder,
aggravated assault, and reckless endangerment.
to trial, the Defendant filed a motion to suppress evidence
seized during the stop of the Defendant's vehicle
following the shooting. In concert, he filed a motion in
limine to exclude ballistics evidence and a notice of intent
to introduce evidence of the victim's gang affiliation.
The Defendant later filed a notice of intent to introduce
evidence of an alternate perpetrator. These matters were
adjudicated at hearings held on July 10 and August 3, 2017.
July 10 Hearing
following evidence was presented at the July 10 hearing:
Sergeant John Luquer testified that he was employed by the
Chattanooga Police Department ("CPD") and was
working in downtown Chattanooga on September 23, 2015. On
that evening, Sergeant Luquer heard, through police dispatch,
a "Be on the Lookout" ("BOLO") for a
white SUV with large rims. The vehicle had been observed by
witnesses chasing another vehicle and shooting at it.
Sergeant Luquer patrolled the area where the vehicle was last
seen, and, while sitting at a traffic light, he saw a white
SUV drive by with "noticeably big" rims, consistent
with the BOLO. Sergeant Luquer initiated a stop of the white
SUV; the Defendant was the sole occupant of the vehicle. The
Defendant denied having shot at another vehicle and denied
possession of any weapons. Sergeant Luquer described the
Defendant as polite and cooperative. The Defendant consented
to a search of his vehicle, which revealed two ammunition
magazines, cash, and a semi-automatic pistol.
Luquer described the semi-automatic pistol as being inside
the "engine firewall" that separated the passenger
compartment from the engine compartment, under the brake and
gas pedal. During the traffic stop, another individual
arrived at the scene and identified himself as a witness to
the earlier shooting. Sergeant Luquer testified that his
patrol car was equipped with a dashboard camera and that it
recorded the stop of the Defendant's vehicle, albeit
without audio. The video was played in open court.
cross-examination, Sergeant Luquer testified that he had
provided a copy of the video from his dashboard camera to the
defense, but the original video no longer existed. He agreed
that the footage in the video copy was "sped up,"
due to the original version's length. Sergeant Luquer
stated that he pulled over the Defendant's vehicle solely
based on the BOLO description and not because he witnessed a
traffic infraction or knew of the Defendant's prior
conduct. Sergeant Luquer reiterated that the Defendant agreed
to a search of his vehicle but that he never told the
Defendant he could refuse. Sergeant Luquer testified that he
ceased all communication with the Defendant after he placed
the Defendant in handcuffs. He testified that he did not
remember the Defendant's vehicle smelling like gun powder
Jeff Hamilton testified that he responded to the hospital
where the victim was being treated. The victim told officers
that he had been shot by a "fat black guy with
dreads." Detective Hamilton testified that the victim
did not make an identification of the Defendant, either
in-person or from photographs.
trial court heard arguments from the parties on the issue of
ballistics testing of the firearm found in the
Defendant's vehicle. The Defendant requested independent
testing of the firearm by a third-party expert, which the
State agreed to, but the parties could not agree on how to
deliver the firearm to the Defendant's out-of-state
expert. The trial court withheld judgment pending a later
trial court issued an order denying the Defendant's
motion to suppress, stating the following:
The totality of the circumstances including the fact that the
[D]efendant's vehicle matched the description of the
shooter's distinctive SUV, was in the area toward which
the shooter's SUV was traveling across the bridge, the
officer observed and stopped the vehicle within ten minutes
of receiving the alert, and the shooting had occurred
recently, as the shooter's SUV was crossing the bridge,
was sufficient to establish reasonable suspicion to conduct
an investigatory stop to determine whether an occupant of the
vehicle was the shooter. The Court therefore finds nothing
unreasonable in the initial stop in this respect.
The [D]efendant also contends that the initial stop was in
effect an arrest. The Court respectfully disagrees. During
lawful traffic stops, officers may routinely require
motorists to exit their vehicles for reasons of officer
safety, absent circumstances that render the scope or
prolongation of the stop unreasonable. State v.
Donaldson, 380 S.W.3d 86, 92-4 (Tenn. 2012) (citations,
If there was reason to suspect the [D]efendant of being the
shooter and stop him, which there was, then there was reason
to suspect him of being armed and take the precaution of
removing him from his vehicle and frisking him before
proceeding with the investigation. The Court therefore finds
nothing unreasonable in the initial stop in this respect.
[D]efendant also contends that the search of the vehicle was
unreasonable. The Court respectfully disagrees. Consent is an
exception to the warrant requirement.
In this case, there is evidence that the [D]efendant
consented to let the officer look in his vehicle after having
been lawfully stopped, frisked, and questioned and there is
no evidence that he did so involuntarily or as a result of a
prior illegality. The Court therefore finds nothing
unreasonable about the search of the vehicle.
The [D]efendant finally contends that the length of the stop
was unreasonable. The Court respectfully disagrees. . . . .
In this case, the officer's request for consent to search
the vehicle did not expand or unreasonably prolong the stop
but was part of the same investigation as his prior questions
about whether the [D]efendant had a gun or had been shooting
at anyone. The investigation began and continued as an
investigation of gunshots fired from one moving vehicle at
another moving vehicle. When the [D]efendant denied having a
gun or shooting at anyone, his credibility became an issue
and it was reasonable for the officer to continue the
investigation by requesting consent to search and search the
vehicle to resolve that issue. The Court therefore finds
nothing unreasonable in the length of the stop.
August 3 Hearing
Defendant made an offer of proof regarding the victim's
gang affiliation. Prior to the presentation of evidence, the
Defendant's attorney asserted that the shooting in the
present case was part of a "gang war" and that the
victim was a verified "Rollin 20s Crip." He alleged
that the victim had been involved in this ongoing gang war
and that a rival gang member shot the victim, as opposed to
the Defendant who was not a member of a gang. The Defendant
called Investigator Curtis Penney, who testified that he was
familiar with the gangs in the Chattanooga area.
Specifically, he testified that the Rollin 20s Crip gang was
a violent organization involved in prior shootings and
murders. The Rollin 20s Crip gang was in dispute with another
gang, the Bounty Hunter Bloods. Investigator Penney testified
that the victim, Kadarius Johnson, was a validated member of
the Rollin 20s Crip gang, based on the CPD's gang
validation assessment form. He testified that the victim had
been involved in violent incidents and was a criminal.
Investigator Penney testified that he was familiar with the
Defendant and had no reason to believe the Defendant was
involved in a gang. Investigator Penney declined to speculate
whether the victim's shooting was a gang retaliation
Zack Crawford testified that he worked for the CPD and was
familiar with the victim. He recalled that, in November of
2015, six weeks after the shooting in this case, the victim
went to a woman's house looking to fight the woman's
son. The victim was seen brandishing a weapon by the woman
and her family. The victim was later arrested on an
aggravated assault warrant.
trial court concluded that the evidence proffered by the
Defendant was speculative and did not prove retaliation on
the part of a third party as the alternate theory of defense.
The trial court concluded that the Defendant would not be
able to introduce evidence to show that the victim was
affiliated with a gang in order to show that the shooting was
voir dire, the Defendant objected to the demographic of the
jury venire, stating that he was entitled to a jury comprised
of a cross-section of his community. The Defendant took issue
with the fact that not a single black male was present in the
jury venire when the City of Chattanooga was, he contended,
approximately thirty percent black. The Defendant also
objected that there were few if any potential jurors from the
Defendant's zip code. The trial court overruled the
motion, stating that it was untimely.
Defendant's trial on these charges, the parties presented
the following evidence: Sergeant John Luquer testified
consistently with his pretrial testimony, stating that he saw
the white SUV with large rims described in a BOLO, and he
stopped the vehicle. The sergeant asked the Defendant, who
was the sole occupant of the vehicle, to step out of the
vehicle, and the Defendant complied. The Defendant denied
having any weapons but consented when Sergeant Luquer asked
if he could "check" the Defendant's vehicle.
Inside the Defendant's vehicle, officers found two
ammunition magazines of different calibers in the center
console and some $100 bills. The Defendant again denied
having a weapon in the vehicle. A further search of the
vehicle revealed a semi-automatic weapon under the
driver's steering console. At this point, officers placed
the Defendant under arrest. While waiting to transport the
Defendant, an individual came to the scene of the
Defendant's arrest and stated that he had witnessed the
cross-examination, Sergeant Luquer testified that, while he
was searching the Defendant's vehicle, a call came over
the dispatch radio that a man had ...