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State v. Mitchell

Court of Criminal Appeals of Tennessee, Jackson

November 19, 2019

STATE OF TENNESSEE
v.
DARIUS DESHUN MITCHELL

          Assigned on Briefs June 25, 2019 at Knoxville

          Appeal from the Circuit Court for Lauderdale County No. 9775 Joe H. Walker III, Judge

         The Defendant, Darius Deshun Mitchell, was convicted by a Lauderdale County Circuit Court jury of two counts of first degree premeditated murder, two counts of first degree felony murder, two counts of especially aggravated robbery, and one count of possession of a firearm by a convicted felon. See T.C.A. §§ 39-13-202 (2014) (subsequently amended) (first degree murder), 39-13-403 (2018) (especially aggravated robbery), 39-17-1307(b)(1)(B) (2010) (subsequently amended) (possession of a weapon by a person who has been convicted of a felony drug offense). The trial court merged the first degree murder convictions with respect to each of the two victims into a single judgment of conviction for first degree murder as to each victim and imposed concurrent life sentences, which were to be served concurrently with a federal sentence and consecutively to a sentence for which the Defendant was on parole. The court imposed twenty-five-year sentences for each of the two especially aggravated robbery convictions and ordered that they be served concurrently with each other and to federal sentence and consecutively to the first degree murder sentences and to a sentence for which the Defendant was on parole. The court imposed a six-year sentence for the firearm conviction and ordered that it be served concurrently with a federal sentence and consecutively to the first degree murder sentences and to a sentence for which the Defendant was on parole. On appeal, the Defendant contends that the evidence is insufficient to support his convictions. We affirm the judgments of the trial court.

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

          Richard McFall, Covington, Tennessee, for the Appellant, Darius Deshun Mitchell.

          Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Assistant Attorney General; Mark E. Davidson, District Attorney General; Julie Pillow, Assistant District Attorney General, for the appellee, State of Tennessee.

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

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE

         The Defendant's convictions relate to the September 4, 2011 shooting deaths of Eric Washington and Jonathan Jones. The Defendant was tried jointly with his codefendant, Darius Alston.

         At the trial, Hertha Barlow testified that she was driving in Henning on September 4, 2011, when she came upon a car that was stopped, had the driver's door open, and was blocking the road. Because the roadway was impassable due to the location of the stopped car, she called 9-1-1.

         Ripley Police Officer Dan Rayner testified that, on September 4, 2011, he was dispatched to Tate Road to investigate a report of a car stopped in the middle of the road. He said he arrived at 4:09 p.m. He saw a beige car with its engine running and both doors open. He said he checked the car's registration and learned it was registered to Ola Jones.

         Officer Rayner testified that he saw two black males who had been shot inside the car. He identified photographs of the men in the car, and the photographs were received as exhibits. Officer Rayner said that he recognized Eric Washington, who was in the driver's seat, but that he did not recognize the other man. Officer Rayner said he secured the scene until an investigator arrived.

         Officer Rayner testified that the area where the car was found was wooded and secluded and that a cemetery was nearby. He said Midway Market was one to two miles and no more than two minutes away. He said the cemetery was a common meeting area.

         Tennessee Bureau of Investigation (TBI) Special Agent Forensic Scientist Donna Nelson, an expert in serology and DNA, testified that she was the crime scene leader and that she analyzed the evidence collected for DNA evidence. She said she arrived at the scene at 9:13 p.m. on September 4, 2011. She said that when she arrived, "It was pouring down rain," and that canopies were erected to preserve the evidence. She identified photographs of the scene, which were received as exhibits. The photographs depicted the slain victims inside the car and a package of "Homestyle Fried Chicken" on the front seat. She said the crime scene investigators located a shotgun shell on the driver's floorboard and a baseball cap on the passenger's floorboard. The shotgun shell was received as an exhibit. Agent Nelson said that more than half of the bill of the baseball cap was detached and that the hat had a large hole in one side. She said the investigators returned to the scene the next day to search in daylight for additional evidence. She said they found gunshot residue tabs on the car the following day.

         Agent Nelson testified that the DNA evidence from the inside rear driver's side door indicated a partial profile from a female but that further identification could not be made. She said cigarette butts from the car's ashtray were not tested because the victims were known smokers. She said samples from Victim Washington's pants near the pockets contained insufficient or degrading DNA which could not be developed into a DNA profile. She said that she tested a t-shirt for blood and that the t-shirt had been submitted to the laboratory by TBI Agent Mark Reynolds. She said Agent Reynolds told her to determine whether the t-shirt contained blood, whether the DNA from any blood matched the victim's[1] DNA profile, and if not, to determine if the DNA profile of any blood matched the DNA profile of "Jack."[2] She said she did not know Jack's identity. She said no DNA evidence was found which matched the Defendant's and co-defendant's DNA profiles.

         Ola Faye Jones, Victim Jones's mother, testified that she had seen Victim Jones on the morning of September 4, 2011. She said that after he left her house, she went to her boyfriend, Kelvin Lee's, house to launder clothing. She said that an unidentified person came to the door and told her that "he" had received a call in which he had learned that two cars had been found and that her license plate number had been broadcast over a police scanner. She said she went to the scene but was unable to get close to the car because the police had secured the area.

         Ms. Jones testified that she knew the Defendant because he had been an associate of her son. She said the Defendant had come to her house on occasion. She said she had been with them behind the Defendant's mother's house, that the Defendant's mother had been argumentative and told them to move off her yard, that the Defendant told Victim Jones he would kill him, and that the Defendant turned and went inside. She said her daughter, Jameka Phillips, "Della," and "Stephanie" were present when the threat was made. Ms. Jones said she told Victim Jones that this did not make sense and that they were "family folks." She said she asked Victim Jones, "[W]hat [is] up with this?" She said Victim Jones did not respond. She did not know when this happened other than that it had been less than a year before Victim Jones was killed. She said she did not report it to the police but encouraged Victim Jones to contact them. She said that she saw the Defendant on occasion after this incident and that they never had cross words. She said she never saw the Defendant and Victim Jones "running around together" after the incident.

         Ms. Jones testified that on another occasion, Victim Jones called her and asked her to have someone pick up his car because the Defendant had "pulled a gun on" Victim Jones. She could not identify when this occurred. She acknowledged she had called the Defendant and asked "[W]hat's up?" and that she told him, "[W]e are family folks," referring to the fact that they were related.

         Ms. Jones testified that Mr. Lee picked up a white t-shirt from "[w]here Jack was standing" and took it to Agent Reynolds. She said Mr. Lee put the t-shirt in a bag without touching the t-shirt. She said Mr. Lee picked up the t-shirt near the highway the first time he and she went to the scene. She did not recall if this was on the day of the homicides. She later said she did not recall if Mr. Lee or she gave the t-shirt to Agent Reynolds.

         Nicole Pettigrew, the mother of three children with Victim Washington, testified that she and Victim Washington had been in a romantic relationship for nine years. She said Victim Jones was her cousin. She identified the codefendant as Victim Washington's cousin and said she had "heard of" but did not know the Defendant.

         Ms. Pettigrew testified that on the day of the homicides, Victim Washington had been having his Uncle Richard repair her Chrysler. She said she and Victim Washington planned to go to a family reunion later. She said that while her car was being repaired, he had Victim Jones's car to drive. She said a dice game took place at her house that day. She said the Defendant, the codefendant, and Victim Washington's father were present. She said she asked Victim Washington why the Defendant was present. She said she had "heard things" about the Defendant, did not trust him, and did not want him around her house. She said she was unaccustomed to seeing him at her house. She said that money was involved in the dice games that sometimes took place at the side of her house and that Victim Washington always possessed large sums of cash. She estimated he possessed $6000 to $7000 on the day of the homicides. She was unaware of any plans Victim Washington may have had to purchase a motorcycle.

         Ms. Pettigrew testified that the last time she saw Victim Washington, he stated he was going to Auto Zone. She said she cleaned her house and took care of her children until Victim Washington's niece arrived and told her Victim Washington had been in a car wreck. Ms. Pettigrew said she went to the area near the cemetery and stayed for three to four hours but was unable to get close to the scene. She said she went home until Victim Washington's mother came to get her because a TBI agent wanted to speak with her.

          Ms. Pettigrew testified that the codefendant came to her house the next day and that he offered to repair her car and "put minutes on" her cell phone. She said she did not accept the offer.

         Ms. Pettigrew testified that the victims were close and had been friends since an early age. She said that Victim Jones began a relationship with Victim Washington's sister and that the victims saw each other frequently after this relationship began.

         Ms. Pettigrew testified that she was unaware of any "ill feelings" the codefendant harbored toward the victims. She acknowledged, however, that she was aware the Defendant "was mad about some stuff that went on way back when."

         Ms. Pettigrew testified that Victim Washington sold drugs. She said that, to her knowledge, he was not a gang member and did not have any pending drug charges. When asked if Victim Washington had pending murder charges, Ms. Pettigrew responded that he had been in jail for about eleven months but that she did not know the offenses with which he had been charged.

         Sammy Haley testified that Victim Washington was his son and that Victim Jones was Victim Washington's cousin. Mr. Haley testified that he knew the Defendant because they both lived in Henning and that the codefendant was Mr. Haley's cousin.

         Mr. Haley testified that he saw Victim Washington at Midway Market around 3:30 or 4:00 p.m. on September 4, 2011. Mr. Haley said that his son was with Victim Jones, that they were in Victim Jones's car, and that they were going to purchase a car starter. Mr. Haley identified a photograph of the car in which he saw the victims. Mr. Haley said Victim Washington stated he was considering purchasing a motorcycle from "Lamar and them" in Ripley for $6500. Mr. Haley said that the victims planned to go to Auto Zone and that Victim Washington wanted Mr. Haley to ride the motorcycle later to determine if it was in good working order. Mr. Haley said that Victim Washington showed Mr. Haley money in Victim Washington's hand and that Victim Washington said "if this is not enough" and put his hand on his pocket. Mr. Haley said Victim Jones purchased a "snack sack" from Midway Market. Mr. Haley said that Stacey Balden and Chris Burnett arrived and that Mr. Burnett told Victim Washington "he wanted to holler at him before he left." Mr. Haley said that Victim Washington answered a cell phone call, that Victim Washington told the caller he was at Midway Market, and that Victim Washington said he was not far from the caller.

         Mr. Haley testified that he left Midway Market with his sister-in-law and "them" to return to a barbecue, which was less than three to four minutes away. He said he saw the codefendant "standing on the rock road" under a railroad viaduct that was "towards the cemetery road" within 200 yards of Midway Market. Mr. Haley said he had been at the barbecue thirty to forty-five minutes before he received a telephone call that something had happened to Victim Washington. Mr. Haley said that, based upon his sighting of the codefendant and the location of the barbecue at which the codefendant claimed to have been when the homicides occurred, it was not possible that the codefendant had been at the barbecue at the time of the homicides. Mr. Haley acknowledged that the codefendant might have been at the barbecue at some other time that day. Mr. Haley was positive the person he saw on the rock road was the codefendant.

         Mr. Haley testified that when he arrived at the scene, "a lot of people" were standing around. Mr. Haley said he was not with Josephine Haley, whom he said was at home. He said Josie and Veronica Washington were together and that Ms. Washington was the codefendant's girlfriend. He said Ms. Washington kept asking Josie "to bring the truck to take her to Henning."

         Mr. Haley testified that he did not know about any animosity between the codefendant and Victim Washington. He said he would have known if any existed. Mr. Haley said he knew Victim Washington "was hustling" and that dice games took place daily at Victim Washington's house. Mr. Hayley said he saw the Defendant "afterwards" when the Defendant came to Mr. Haley's sister-in-law's house to see "Little Wayne," Mr. Haley's nephew. Mr. Haley said the Defendant gave Mr. Haley $10 and told him to buy himself a beer.

         Josephine Haley, Victim Washington's mother and Victim Jones's cousin, testified that she knew the Defendant from living in Henning and the codefendant because he was Victim Washington's cousin. She said that on the day of the homicides, she attended a Labor Day family gathering at her sister Betty's house. She said that she spoke by phone with Victim Washington twice, that he was looking forward to attending the gathering because his aunt was making spaghetti, and that he never arrived.

         Ms. Haley testified that Veronica Washington asked her repeatedly to take her to get cigarettes for the codefendant. Ms. Haley identified Ms. Washington as the mother of the codefendant's infant boy. Ms. Haley said she passed the cemetery on the way to the store for the cigarettes but did not know Victim Washington was already dead. She said they saw an ambulance traveling toward the cemetery. She said she called her son repeatedly but did not receive an answer. She said Ms. Washington and the codefendant spoke outside and looked toward Ms. Haley and that Ms. Haley wondered "what's going on." She said they went to "Michelle's" house after purchasing cigarettes. She said that she called "Big Memphis" and Michelle's boyfriend and that they told her the victims had been in a wreck in which one of them had been killed. She later said her son Travis gave her this information. She said she looked outside and saw the codefendant cooking on a grill.

         Ms. Haley testified that she went to the scene, where she screamed and cried. She said that the codefendant approached and hugged her, that he said "Goon" killed Victim Washington, and that the codefendant said he would have killed Goon if he had a gun. She identified Goon as her cousin. She said Big Memphis and "L. Barber" "came and got" the codefendant after the codefendant finished hugging her. She said the codefendant removed his shirt and threw it in the grass. She said that Big Memphis placed the codefendant in a car and that they left. She said Victim Washington would have been dead by the time she saw the codefendant at the family gathering. She said that Ms. Washington had been insistent about getting cigarettes, and that it was "like [the codefendant] was rushing [Ms. Washington] to get me there for an alibi." Ms. Haley said the codefendant had been at the family gathering after the homicides had occurred. She said that the codefendant had worn a bulletproof vest at her sister's house but that no one treated him differently because he was family and because no one knew what had happened. She said she had seen the Defendant and the codefendant together frequently and thought they were "best friends . . . or cousins."

         Ms. Haley testified that she went to her sister Betty's house around 8:00 a.m. on September 4, 2011. She said Veronica Washington arrived around 10:00 to 10:30 a.m. but not later than 11:00 a.m. She said that the codefendant was not with Ms. Washington when Ms. Washington arrived and that she ...


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