Assigned on Briefs May 7, 2019
from the Criminal Court for Shelby County No. 16-02052 Lee V.
a jury trial, the Defendant, Brandon Johnson, was convicted
of premeditated first-degree murder and unlawful possession
of a firearm by a convicted felon, for which he received an
effective sentence of life plus ten years. On appeal, the
Defendant contends that (1) the trial court erred by failing
to suppress three lineup identifications that were unduly
suggestive; (2) the trial court erred by refusing to sever
the unlawful possession of a firearm by a convicted felon
offense from the first-degree murder count, thereby
preventing him from receiving a fair trial; and (3) the
evidence was insufficient to support his convictions.
Following our review, we affirm the Defendant's
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
Winstead Hall, Memphis, Tennessee (on appeal); and Juni S.
Ganguli (at trial), Memphis, Tennessee, for the appellant,
Herbert H. Slatery III, Attorney General and Reporter;
Jonathan H. Wardle, Assistant Attorney General; Amy P.
Weirich, District Attorney General; and Carolyn Alanda Dwyer
and Meghan Fowler, Assistant District Attorneys General, for
the appellee, State of Tennessee.
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which Thomas T. Woodall and James Curwood Witt, Jr., JJ.,
KELLY THOMAS, JR., JUDGE.
case arises from the March 7, 2015 shooting death of LaDarius
Brooks ("the victim"), who was nicknamed "Tall
40." The Defendant was charged with the first-degree
premeditated murder of the victim and unlawful possession of
a firearm by a convicted felon. See Tenn. Code Ann.
§§ 39-13-302, -17-1324. After a jury trial on
February 14-16, 2018, the Defendant was found guilty as
charged. Thereafter, the trial court imposed a statutory life
sentence for the first-degree murder conviction and, after a
sentencing hearing, a consecutive ten-year sentence for the
unlawful possession of a firearm conviction.
Motion to suppress.
trial, the Defendant filed a motion to suppress three
photographic lineup identifications. In the motion, the
Defendant argued that the police had "emphasized"
the Defendant as a suspect because none of the witnesses knew
the Defendant or had described him at the crime scene, and
the Defendant's photograph was different from the others
in the lineup. In particular, the Defendant stated that he
was the youngest individual pictured, that he was the only
one with his head tilted toward the left, and that the
photograph was lighter in exposure than the others.
suppression hearing, Matthew Townsel identified a March 8, 2015
photographic lineup that he completed at the Memphis Police
Department, on which he had circled a photograph. Below the
photographs, Matthew had written, "[This] is who [I]
know [as] Lil B. I saw him shoot 40." Matthew testified
that he identified the person he saw. On cross-examination,
Matthew stated that on the day of the shooting, he was alone
on the porch of his home, that the porch light was not on,
and that the shooting occurred at night. Matthew denied
smoking or drinking alcohol generally or on that evening. He
did not recall how far away the shooter was, although he said
the shooter was not close to him. Matthew compared the
shooter's position to an unspecified distance inside the
courtroom. Matthew stated that "Lil B" was
"out there" and that his view was unobscured. The
streetlight was not functioning and "[e]verything was
out." Although Matthew did not know the shooter, he had
seen the shooter on an occasion one month previously. The
shooter did not wear anything covering his face and had
arrived in a white car.
"made" Matthew come to the police department on
March 9, 2015. Matthew informed officers that he could not
read or write well before completing the lineup, and the
officers read an "advice to witness statements"
document to him. The officers held up a photographic lineup
and Matthew pointed at Lil B's photograph. He denied that
the officers said anything to him during the lineup. Matthew
noted that he did not wish to testify in this case.
Griggs testified that he knew the Defendant, who was also
known as Lil B, through a friend and that he drove the
Defendant to the victim's house on March 7, 2015. Mr.
Griggs stated that he saw the Defendant shoot the victim, and
Mr. Griggs identified the Defendant in the courtroom. Mr.
Griggs had known the Defendant for about one and one-half
years before the shooting. After the shooting, the Defendant
"jumped" into the back seat of Mr. Griggs's
car, and Mr. Griggs drove them away. Mr. Griggs subsequently
completed a photographic lineup with Memphis police officers,
who asked him to identify the shooter. He denied that the
officers gave him "any indication" or "any
hints or any help" regarding who they wanted him to
choose. Mr. Griggs circled the Defendant's photograph and
wrote, "This is Little B[, ] the guy with the gun who I
[saw] shooting [a]t Tall 40."
cross-examination, Mr. Griggs testified that he was in the
victim's yard by a tree during the shooting and that his
location was about twenty feet away from both the victim and
the Defendant, who were standing next to one another. The
shooting occurred at night, and Mr. Griggs's view was
unobscured. He saw "Tall 40 hit the ground." The
incident lasted about three minutes.
Townsel, Matthew Townsel's mother, testified that she did
not witness the shooting, although someone told her Lil B was
the shooter. She had known who Lil B was for six months
before the shooting, and he had been to her house previously,
although she did not know his legal name. The police asked
Ms. Townsel to identify the person she knew as Lil B in a
photographic lineup. She denied that the police hinted at or
told her who to choose. Ms. Townsel circled the
Defendant's photograph and wrote, "The person I
picked is number 3 and [h]is street name is [L]il [B]."
On cross-examination, Ms. Townsel identified the Defendant in
the courtroom as Lil B. She acknowledged that on the day of
the shooting, she did not know that anyone had come to her
trial court noted that it had allowed defense counsel to
orally amend the motion to suppress in order to allow
expanded testimony on the opportunity of the witnesses to see
the Defendant during the shooting in order to address the
admissibility of in-court identifications. The court
considered the totality of the circumstances pursuant to
Neil v. Biggers, 409 U.S. 188, 198-99 (1972), and
State v. Rodriguez, 752 S.W.2d 108 (Tenn. Crim. App.
1988), including the witnesses' opportunity to view the
Defendant. The court found that Matthew had known the
Defendant, who had the street name Lil B, for about one
month, that Matthew was present when the shooting occurred,
and that he saw the Defendant. Matthew's view was
unobstructed; it was nighttime and no exterior lights were
illuminated, Matthew did not smoke or drink, and the shooting
occurred forty or fifty feet away. The shooter, whose face was
uncovered, arrived in a white car, and Matthew did not know
how long the incident lasted. The police did not suggest a
photograph to Matthew during the lineup, and Matthew
identified the Defendant as the person he saw shooting.
trial court found that Mr. Griggs had known the Defendant for
one and one-half years, that Mr. Griggs transported the
Defendant to the location of the shooting, that Mr. Griggs
saw the Defendant shoot "Tall 40," and that Mr.
Griggs identified the Defendant in court. The court also
found that the shooting took place twenty feet from Mr.
Griggs, that the Defendant was within arm's length of the
victim, that the incident lasted three minutes, and that
after the Defendant shot and killed the victim, Mr. Griggs
drove the Defendant away.
trial court found relative to Ms. Townsel that she was not a
fact witness and did not see the shooting, that she provided
identification "as to exactly who Lil B was," and
that she identified the Defendant as Lil B. The court found
relative to Matthew and Mr. Griggs that they had an
opportunity to view the shooter, that they "were looking
right at" the shooting, and that they identified the
Defendant as the shooter within one or two days of the
shooting. The court noted that the record did not indicate
whether any description of the shooter had been provided to
the police. The court found that no erroneous identifications
or failures to identify the shooter occurred and that
relevant to their level of certainty, "they both
expressed that this is Lil B, the person that they know,
and the person that they saw commit this crime."
trial court concluded that "there [wa]s nothing unduly
suggestive about the pretrial identification procedure."
The court found that both Mr. Griggs and Matthew knew the
Defendant and thus had an independent origin of the
identification. The court noted that Mr. Griggs transported
the Defendant to and from the shooting. The court found that
the Defendant's lineup photograph was not
"drastically different" from the other five
photographs and that the witnesses affirmed the police did
not suggest a suspect or pressure them to choose a certain
photograph. The court denied the Defendant's motion.
Motion to Sever.
Defendant filed a motion to sever the charges for
first-degree murder and possession of a firearm by a
convicted felon pursuant to Tennessee Rules of Criminal
Procedure 8 (Joinder) and 14 (Severance). He argued that
the trial court "had the discretion" to sever the
counts and that he would be unduly prejudiced by a joint
trial because "the jury will confuse the evidence . . .
and convict [the Defendant] of both." The Defendant
further argued that because no gun was recovered in his
possession, there was "a distinct possibility that he
would not be convicted of either count if the evidence were
separate" and that because the Defendant was accused of
two crimes, the jury may have concluded he had a
"criminal disposition." In support of his motion,
the Defendant cited Tennessee Rule of Evidence 404(b)
governing the admissibility of evidence of prior bad acts.
The Defendant contended that he was "unaware of the
specific legitimate purpose . . . [for] the prosecution [to]
introduce evidence of his being a convicted felon . . . .
[It] would appear that the overriding intention of trying
both counts at the same time would be to prove his violent
character and scare the jury."
trial court found that the charges in this case were subject
to mandatory joinder and that pursuant to this court's
opinion in State v. Quantez Person, No.
W2016-01945-CCA-R3-CD, 2018 WL 447122 (Tenn. Crim. App. Jan.
16, 2018), severance would result in the State's
violating principles of double jeopardy. The court concluded
that the Defendant's remedy for any concerns of prejudice
was to stipulate to his criminal record, under which
circumstances the jury would not learn the particulars of his
convictions and only that he had previously been convicted of
a crime involving violence. The court noted that our supreme
court's opinion in State v. James, 81 S.W.3d 751
(Tenn. 2002), dictated that the offenses "have to be
joined, have to be consolidated for trial" because the
Defendant's status as a felon was a "material
element of the offense[.]"
to bifurcation, the court considered this court's
statement in multiple cases declining to criticize
bifurcation as an available procedure but noted that no caselaw
existed approving bifurcation in this type of case, stating,
"[T]he reason [bifurcation] has not been criticized by
the appellate courts [is] because there [are] no cases on
point in which a person has asked for bifurcation, which I do
not know of any mechanism under Tennessee law that will allow
this to be bifurcated." The court denied the
Defendant subsequently stipulated to his March 8, 2011
convictions for "crimes of violence or attempted
violence" against four victims in case number 10-03895,
and to his being on notice from the court "that he would
commit a crime if he owned, possessed, or handled a
firearm" after that date.
Brooks, the victim's mother, testified that two men
informed her that her son was in "poor condition,"
that she went to the crime scene one street away from her
house, and that when she arrived, she borrowed a cell phone
to call a minister. The victim passed away the following day,
Sunday. Ms. Brooks identified the victim in an autopsy
Griggs testified consistently with his suppression hearing
testimony. He added that on March 7, 2015, he was at work
when he heard that "Fat," whose legal name was
Demetris Miller, had been shot. Mr. Griggs explained that an
unidentified person had tried to rob Mr. Miller, that his
understanding was the Defendant had been present, and that
Mr. Miller had been shot. Mr. Griggs acknowledged that he was
not present when Mr. Miller was shot. Mr. Griggs left work
and went home. "Lil B," who Mr. Griggs identified
as the Defendant, was dropped off at Mr. Griggs's house,
and the two men left to go to the hospital and visit Mr.
they stopped by Ms. Townsel's house, which was where
"Tall 40" was. Mr. Griggs identified Tall 40 as the
victim. Mr. Griggs and the Defendant went inside the house,
sat down in the living room with "Anthony,
 . .
. Josh[ua Townsel], and Matthew [Townsel]," and spoke
about Mr. Miller. The victim was in a back room, and Mr.
Griggs did not see Ms. Townsel. The Defendant went outside
and three to five minutes later, Mr. Griggs, the victim, and
Anthony went outside. The Defendant was standing outside the
fence and speaking to Joshua. Mr. Griggs slipped on a patch
of ice on the front steps, and the victim and Anthony laughed
at Mr. Griggs as they walked past him. When Mr. Griggs stood
up, the victim and Anthony had walked outside the fence and
"[t]hat's when the shooting started."
Griggs testified that the Defendant pulled out a gun and told
the victim, "You set bro up" before beginning to
shoot at the victim. The victim began to scream and run
toward the house and said, "I didn't set bro up. I
didn't have nothing to do with it." Mr. Griggs was
behind a tree as this occurred and could see the events
clearly. No one was present during the shooting except for
Mr. Griggs, the Defendant, and the victim. As the victim made
his way toward the house, the Defendant continued to shoot at
him, and the Defendant ran out of bullets as the victim
reached the porch. The Defendant fired five or six times in
total. The Defendant attempted to pull out another gun, but
Mr. Griggs "smacked" the Defendant's wrist and
told him not to do it. An unidentified person inside the
house tried to pull the victim inside. Mr. Griggs walked to
his car, a white Lincoln, unlocked it, and "jumped
in" the driver's seat. The Defendant got into the
backseat, and Mr. Griggs "backed up the street."
The Defendant carried a revolver, which he used to shoot the
victim, and a black semiautomatic pistol.
Griggs testified that when he asked the Defendant why he shot
the victim, the Defendant responded that "he would want
[Mr. Griggs] to do the same thing for him . . . if something
like that happened to him." Mr. Griggs explained that
the Defendant meant if the Defendant were shot, he wanted Mr.
Griggs to retaliate. Mr. Griggs took the Defendant to the
Defendant's brother's apartment complex about ten
Griggs identified photographs of Ms. Townsel's house, the
front porch of the house, the yard, the sidewalk, and the
Defendant's brother's apartment complex. The
photographs showed patchy snow on the ground. Mr. Griggs
identified where the Defendant, the victim, Anthony, and he
stood at various points during the incident. Mr. Griggs
stated that the victim and the Defendant stood about twenty
feet from him when the shooting started. Mr. Griggs agreed
that the street light above his car was illuminated. Two or
three days after the shooting, Mr. Griggs spoke to the police
after his mother called the police department and was
informed that the detective wanted to speak to "Veno,
the driver of the Lincoln." Mr. Griggs stated that his
nickname was Veno. Mr. Griggs gave a statement to the police
and identified the Defendant in a photographic lineup. He
agreed that the police gave him appropriate instructions
before the lineup and did not help him choose a photograph.
When asked why he did not approach the police sooner, Mr.
Griggs stated, "I felt like I had nothing to do with it
. . . . I was hoping that [the police] would . . . lock him
up and leave me alone." Mr. Griggs admitted, though,
that he was afraid he would also be arrested because he
"played a part in driving" and stated that he
"had to" speak to the police.
cross-examination, Mr. Griggs testified that Mr. Miller had
been shot during the sale of a gun and that Mr. Griggs was
not present during the sale. The Defendant was upset and sad
that Mr. Miller had been shot. To Mr. Griggs's knowledge,
the Defendant was not armed when they drove to Ms.
Townsel's house. Mr. Griggs stated, though, that the
Defendant would have been permitted to ride with Mr. Griggs
if he were armed. Mr. Griggs did not remember why he drove to
Ms. Townsel's house and denied the Defendant
"order[ed]" him to go there. He clarified that
although he stayed in the living room and talked with the
others about Mr. Miller, the Defendant and Joshua Townsel
walked out together after "[e]verybody spoke, whatever
they [were] talking about[.]" Mr. Griggs stated that no
one in the house knew who shot Mr. Miller and that they knew
the injuries were not life threatening. The victim then
joined the conversation for about five minutes before Mr.
Griggs left. Mr. Griggs denied that the Defendant threatened
the victim in the living room and agreed that the Defendant
was outside the house while the victim was present. Mr.
Griggs ran to a tree in the yard when he heard the first
shot, and "everybody else outside the fence" ran
toward the street. After the ...