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State v. Wyche

Court of Criminal Appeals of Tennessee, Nashville

November 7, 2019

STATE OF TENNESSEE
v.
DEREK WYCHE

          Session May 15, 2019

          Appeal from the Criminal Court for Davidson County No. 2015-C-2231 Monte Watkins, Judge

         The Defendant-Appellant, Derek Wyche, was convicted by a Davidson County jury of felony murder and especially aggravated robbery, for which he received a mandatory life sentence plus twenty years' imprisonment. In this appeal as of right, the Defendant challenges the sufficiency of the evidence in support of his convictions and the trial court's imposition of consecutive sentencing. Upon our review, the convictions of the trial court are affirmed. However, we remand this matter for a new sentencing hearing.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed in Part and Reversed in Part; Remanded for Sentencing

          Manuel B. Russ, Nashville, Tennessee, for the Defendant-Appellant, Derek Wyche.

          Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Glenn R. Funk, District Attorney General; and Roger D. Moore, Assistant District Attorney General, for the Appellee, State of Tennessee.

          Camille R. McMullen, J., delivered the opinion of the court, in which Norma McGee Ogle and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          CAMILLE R. McMULLEN, JUDGE.

         This case involves a 1999 robbery of a movie theater during which the manager, Heather Finney, was shot, and the security guard, Brandon Brewer, was shot and killed. Eighteen years later, the Defendant was developed as a suspect, admitted to his involvement, and charged with the instant offenses. In his recorded statement and at trial, the Defendant claimed that he was forced to participate in the instant offense because Keith Henry, his co-defendant, threatened to kill him and his family if he failed to do so. The following proof was adduced at the April 10-12, 2018 trial.

         On October 3, 1999, the day of the offense, Heather Finney had been employed with Regal Entertainment Group as a general manager and was responsible for operations, money, deposits, payroll, and film bookings at a movie theater in Hermitage, Tennessee. Prior to going to the bank for the nightly cash deposit, Finney walked through the theater to ensure no one was there, set the alarm, and began to lock up. She was escorted by a security guard, Brandon Brewer, who was in uniform and armed with a gun. As they were locking the door to the theater, two men approached them with guns. Finney was certain it was a robbery when one of the men said, "give me the money." The men were approximately six feet away from Finney, and neither man wore a mask. Finney dropped the bank bag of money on the ground and kicked it toward the men. At this point, Brewer was standing behind Finney, and Finney heard "the first shot." Finney then heard another gunshot and realized she had been shot in the arm. She fell to the ground and played "like she was dead." Finney said the time between the first and second gunshots was "very short" or "immediately after" the first gunshot that struck Brewer.

         As Finney was on the ground, she heard the two men walk away. She looked at Brewer and observed that he "was probably not going to make it." Finney then went back inside the theater and called the police. Finney did not know which man shot her, but she was certain that she saw a gun that night. Following the police arrival, Finney was taken to the hospital where she stayed for approximately three days. Finney had to undergo physical therapy, and the doctors were unable remove the bullet from her chest. Finney explained that the bullet "chipped" her shoulder and lodged in her chest. An x-ray showing the location of the bullet in Finney's chest cavity was admitted as an exhibit at trial.

         Finney could not recall a specific description of the perpetrators other than both were male, black, and wore dark clothes. She also could not recall the exact amount of money that was inside the bag, but she estimated that it was "a few thousand . . . seven to eight-ish, twelve-thousand" dollars. She testified that the theater did not have internal or external video surveillance at that time. On July 8, 2015, Finney was shown a photographic array of individuals by Detective Satterfield, and she circled a photograph of the Defendant because of the "shape of his face[.]" However, at trial, Finney was unable to identify the Defendant as one of the perpetrators of the offense. On cross-examination, Finney confirmed that she heard only one voice demand the money and that this was the only statement she heard during the robbery. Finney also confirmed that she observed only one gun; however, she was unsure whether it was the gun that shot her or Brandon Brewer.

         Upon his arrival to the scene, Officer George Bouton, a crime scene investigator with the Metro Nashville Police Department (MNPD) at the time of the offense, observed that Brandon Brewer, deceased, and Finney were present and that the area was secured with crime scene tape. Officer Bouton took photographs of the area, which were admitted as a collective exhibit at trial. Officer Bouton also identified certain items that were collected from the crime scene including a 9-millimeter fired cartridge casing, a .380 fired cartridge casing and projectile, another spent cartridge casing, and a blue shirt worn by Finney during the offense, all of which were admitted as exhibits at trial. Officer Bouton testified that he temporarily took possession of Brandon Brewer's gun, which was located on his person in its holster, before returning it to Brewer's employer.

         At the time of the offense, Detective Kent McAllister was assigned to the "Murder Squad" or what is now known as the MNPD Cold Case Unit. Detective McAllister responded to the scene and observed the lifeless body of Brandon Brewer with his weapon strapped in his holster. It was later determined that Brewer's weapon had not been fired that night because it did not have a round in the chamber. Detective McAllister observed two different types of shell casings on the scene, which indicated that two different guns had been fired during the offense. There was never a weapon recovered connected to the offense, and the three red bank bags with "Old Dominion" written on them taken from the scene were also never recovered. At some point in 2000, after speaking with Keith Henry, Detective McAllister interviewed the Defendant while he was incarcerated in Plainfield, New Jersey. During that discussion, the Defendant did not "mention anything … about being forced to commit" the instant offense. However, Detective McAllister testified that the Defendant did admit to committing the crime at that time. Detective McAllister prepared his case files and forwarded the ...


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