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State v. Johnson

Court of Criminal Appeals of Tennessee, Jackson

November 15, 2019

STATE OF TENNESSEE
v.
BRANDON JOHNSON

          Assigned on Briefs May 7, 2019

          Appeal from the Criminal Court for Shelby County No. 16-02052 Lee V. Coffee, Judge.

         Following 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 convictions.

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

          Laurie Winstead Hall, Memphis, Tennessee (on appeal); and Juni S. Ganguli (at trial), Memphis, Tennessee, for the appellant, Brandon Johnson.

          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.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which Thomas T. Woodall and James Curwood Witt, Jr., JJ., joined.

          OPINION

          D. KELLY THOMAS, JR., JUDGE.

         FACTUAL BACKGROUND

         This 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.

         A. Motion to suppress.

         Before 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.

         At the suppression hearing, Matthew Townsel[1] 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.

         Officers "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.

         Vernon 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."

         On 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.

         Kimberla 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 house.

         The 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.[2] 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.

         The 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.

         The 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."

         The 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.

         B. Motion to Sever.

         The 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).[3] 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."

         The 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[.]"

         Relative to bifurcation, the court considered this court's statement in multiple cases declining to criticize bifurcation as an available procedure[4] 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's motion.

         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.

         C. Trial.

         Shirley 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 photograph.

         Mr. 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. Miller.

         Instead, 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, [5] . . . 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."

         Mr. 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.

         Mr. 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 minutes away.

         Mr. 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.

         On 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 ...


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