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State v. Sorrell

Court of Criminal Appeals of Tennessee, Knoxville

August 22, 2019

STATE OF TENNESSEE
v.
OSEI SORRELL

          May 30, 2019 Session

          Appeal from the Criminal Court for Hamilton County No. 297181 Don W. Poole, Judge

         A 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 court's judgments.

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

          Joshua P. Weiss, Chattanooga, Tennessee for the appellant, Osei Sorrell.

          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.

          Robert W. Wedemeyer, J., delivered the opinion of the Court, in which John Everett Williams, P.J. and Robert L. Holloway, Jr., J., joined.

          OPINION

          ROBERT W. WEDEMEYER, JUDGE

         This 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.

         I. Facts

         A. Pretrial

         Prior 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.

         1. July 10 Hearing

         The 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.

         Sergeant 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.

         On 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 residue.

         Detective 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.

         The 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 hearing.

         The 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, footnotes omitted).
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.

         The [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.

         2. August 3 Hearing

         The 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 shooting.

         Detective 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.

         The 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 retaliatory.

         3. Voir Dire

         During 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.

         B. Trial

         At the 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 shooting incident.

         On 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 ...


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