State v. Bonds
| Decision Date | 07 April 2016 |
| Docket Number | No. E2014-00495-CCA-R3-CD,E2014-00495-CCA-R3-CD |
| Parties | STATE OF TENNESSEE v. DEVONTE BONDS, THOMAS BISHOP, JASON SULLIVAN, AND BRIANNA ROBINSON |
| Court | Tennessee Court of Criminal Appeals |
Appeal from the Criminal Court for Knox County
Defendants Devonte Bonds, Thomas Bishop, Jason Sullivan, and Brianna Robinson were tried jointly and convicted of attempted second degree murder, aggravated assault, and possession of a firearm during the commission of a dangerous felony. The jury found that the underlying offenses committed by Defendants Bonds, Bishop, and Sullivan constituted criminal gang offenses, and they received enhanced punishment under Tennessee Code Annotated section 40-35-121. All of the defendants raise multiple procedural and evidentiary issues with regard to the guilt phase of the trial on the underlying offenses. Defendants Bonds, Bishop, and Sullivan also raise several issues regarding their criminal gang enhancements. Defendants Bishop and Sullivan each raise an issue with regard to their sentencing. After an exhaustive review of the record, we ascertain no error in the guilt phase of the trial on the underlying offenses. Accordingly, the trial court's judgment as to Defendant Robinson is affirmed. However, because the subsection of the criminal gang enhancement statute employed by the State violates the Due Process Clause of the Fourteenth Amendment and is facially unconstitutional, we reverse the judgments of the trial court as to Defendants Bonds, Bishop, and Sullivan, vacate the criminal gang enhancements, and remand for modification of the judgments and a new sentencing hearing on the underlying offenses of attempted second degree murder, aggravated assault, and possession of a firearm during the commission of a dangerous felony.
John M. Boucher, Jr., Knoxville, Tennessee, for the appellant, Devonte Bonds.
Wesley D. Stone (on appeal and at trial), Timothy Jones (on appeal), and Joseph A. Fanduzz (pre-trial), Knoxville, Tennessee, for the appellant, Thomas Bishop.
Leslie M. Jeffress, Knoxville, Tennessee, for the appellant, Jason Lamont Sullivan.
J. Liddell Kirk (on appeal) and Susan E. Shipley (at trial), Knoxville, Tennessee, for the appellant, Brianna Michelle Robinson.
Herbert H. Slatery III, Attorney General and Reporter; John H. Bledsoe, Senior Counsel; Randall E. Nichols, District Attorney General; and Ta'Kisha Fitzgerald and Philip Morton, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINIONThis is a direct appeal by the four defendants who were convicted by a Knox County jury of various serious crimes of violence involving firearms and gang enhancement that resulted from a "beating out" of a fellow gang member. Because of the nature of the charges, the defendants were tried jointly in a trifurcated proceeding.
All of the defendants were indicted for attempted first degree murder, aggravated assault, possession of a firearm during the commission of a dangerous felony, and employing a firearm during the commission of a dangerous felony. A jury convicted them of attempted second degree murder, aggravated assault, and possession of a firearm during the commission of a dangerous felony; they were acquitted of employing a firearm during the commission of a dangerous felony. Defendants Bishop and Sullivan were each found to have committed the underlying firearm offense while having previously been convicted of dangerous felonies. Defendants Bonds, Bishop, and Sullivan were found to have committed criminal gang offenses and received enhanced punishment pursuant to Tennessee Code Annotated section 40-35-121. The following facts were adduced during the guilt phase on the underlying offenses.1
On May 30, 2012, Jonathan Dyer was living with his girlfriend, Carnisha Dibrell, in Arbor Place Apartments on Townview Drive. Katherine White lived upstairs from the couple in the same apartment complex. That morning, Ms. White asked Mr. Dyer to take out his trash because she could smell it at her apartment, and she gave him a trash bag to do so. Mr. Dyer removed the trash and cleaned off his porch. Afterward, around 11:00 a.m., he went inside to brush his teeth and to prepare for a job interview. He also woke up Ms. Dibrell so that she could get ready to go to work.
Ms. White was sitting on the stairs outside of her apartment and smoking a cigarette when she saw a group of people approach and knock on Mr. Dyer and Ms. Dibrell's front door. Mr. Dyer and Ms. Dibrell heard the knock on the door, and Mr. Dyer shut the bedroom door before going to answer the front door. When Mr. Dyer opened the door, the defendants immediately entered the apartment. Ms. White saw Mr. Dyer let the group inside the apartment.
Mr. Dyer and the defendants were members of a street gang known as the Five Deuce Hoover Crips. Mr. Dyer knew the defendants, primarily, by their gang monikers: Defendant Bonds was known as "Lil Doozie"; Defendant Bishop was known as "Hoova T"; Defendant Sullivan was known as "Crank Deuce"; and Defendant Robinson was known as "Yella Deuce." Mr. Dyer's gang moniker was "J Hoover." Mr. Dyer knew Defendant Bonds the best of all the defendants because they grew up together, and Defendant Bonds's legal name was the only one of which Mr. Dyer was aware at that time. Mr. Dyer had only met Defendant Sullivan recently.
After entering the apartment, Defendants Bishop and Sullivan told Mr. Dyer that he needed "to put some money on [his] big homey, L.G.'s, books." Mr. Dyer refused this demand on the basis that fellow gang member L.G. was not his big homey; Mr. Dyer's big homey was another individual.2 Mr. Dyer explained that a "big homey" is a gang member who "calls the shots." A gang member under the authority of a "big homey" iscalled a "little homey," and a little homey must get the big homey's permission "to do something."
Defendant Bishop then accused Mr. Dyer of abandoning Defendant Robinson during a previous incident when someone fired a gun at her. Defendant Bishop indicated that Mr. Dyer's conduct was unacceptable because he had "left the home girl on stuck," meaning that Mr. Dyer "didn't defend her." Mr. Dyer maintained to the group that such an event had never happened and told them that Defendant Robinson was lying. Defendant Robinson "swore up and down that it did happen" and insisted, Defendant Bishop reprimanded Mr. Dyer, chiding In making mention of "the most precious things," Defendant Bishop was talking about all female Crips. Mr. Dyer explained that, as a gang member, he was expected to "step up" and defend a fellow gang member if being threatened. Thus, if Defendant Robinson had been attacked, he would have had an obligation to protect her.
While in the bedroom during the confrontation, Ms. Dibrell heard a familiar male voice say, She then heard Mr. Dyer deny the accusations by responding,
According to Mr. Dyer, failing to provide money for an incarcerated inmate and failing to protect a fellow female gang member could be potential grounds for a gang member to be expelled from the gang. The group surrounded Mr. Dyer against the wall leading into the kitchen of his apartment, and all of them "ganged" him, which meant that Mr. Dyer was "getting hands and feet put to" him. Mr. Dyer explained that receiving a gang beating or a fight is both the manner of initiation into the gang and expulsion from the gang. These rituals are known as "ganged in" and "ganged out." Mr. Dyer was ganged in to the gang when he was seventeen years old. During his initiation, Mr. Dyer was only ganged with fists, not feet, and he fought back against the gang members who were "jumping" him. There were no weapons during the initiation. Mr. Dyer did not need medical attention after he was ganged in. For this particular gang, the beating or fight is supposed to last for two minutes. However, on this occasion, Mr. Dyer did not remember having "too much of a chance to fight back." Mr. Dyer acknowledged that the beating he received was him being "ganged out" of the Five Deuce Hoover Crips and that he is no longer a member of the gang. Mr. Dyer testified that a gang member is also expected to fight back when he is ganged out. He was unaware of any gang member sustaining injuries as serious as he did while being ganged out.
Mr. Dyer remembered that Defendant Sullivan had a pistol "inside his front pocket," which Mr. Dyer described as a "little .22." Mr. Dyer could see the handle "hanging out," and he recognized the gun as belonging to Defendant Robinson. However, Mr. Dyer did not see Defendant Sullivan remove the weapon from his pocket, and as far as he knew, he had not been "pistol-whipped" with the gun.
From the bedroom, Ms. Dibrell heard a man "screaming" at Mr. Dyer, followed by loud yelling. The voice was so loud that Ms. Dibrell was "scared . . . a little bit." After "no longer than five seconds" of "scuffling" and "commotion," Ms. Dibrell went into the living room and saw Mr. Dyer on the floor. At that point, he was no longer being beaten. When Ms. Dibrell entered the room, four individuals were looking at her, and she began to "fear for [her] life."
The attackers walked out of the apartment, but Defendant Bonds turned around and pushed his way back into the apartment as Ms. Dibrell tried to shut the front door. He retrieved a bottle of Sprite...
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