Flynn v. State

1

Marquise Deshawn Flynn v. State of Alabama

No. CR-21-0199

Alabama Court of Criminal Appeals

February 9, 2024

Appeal from Montgomery Circuit Court (CC-18-1178)

MCCOOL, JUDGE.

Marquise Deshawn Flynn appeals his conviction for murder made capital because it was committed with the use of a deadly weapon while the victim was in a vehicle. See § 13A-5-40(a)(17), Ala. Code 1975. The trial court sentenced Flynn to life imprisonment without the possibility of parole.

Facts and Procedural History

In July 2018, a Montgomery County grand jury indicted Flynn for two counts of capital murder. One count alleged that Flynn had intentionally caused the death of Sylvester Morris by shooting him with a gun while Morris was in a vehicle see § 13A-5-40(a)(17); the other count alleged that Flynn had intentionally caused Morris's death in the course of committing first-degree robbery, see § 13A-5-40(a)(2), Ala. Code 1975.

Flynn was brought to trial in February 2020. On the second day of trial, one of the State's witnesses, Oscar Lozano testified that he saw Flynn shoot Morris. On cross-examination, Lozano testified that he had been shown a photograph of Flynn at some point before trial, that he had been told that the person in the photograph had been charged with Morris's murder, and that he had confirmed at that time that the person in the photograph was the person he had seen shoot Morris. In a bench conference that occurred after Lozano's testimony, defense counsel claimed that he had "specifically asked" the prosecutor, Michael Green if Lozano was "going to come [to trial] and say that he saw ... [Flynn] shoot and kill somebody" and that Green had "said, no, [Lozano was] not going to do that." (Supp. 1, R. 817.) Thus, according to defense counsel, the State had "pretty much ambushed Flynn ... with bringing in an eyewitness to the shooting and not making [the defense] aware of it," and counsel moved for a mistrial on that basis. (Id., R. 818.) Green denied making any statements to defense counsel regarding the substance of Lozano's testimony; instead, Green claimed instead that he had told defense counsel that he "didn't know what [Lozano] was going to say because [he had not yet] talked to him" but that he "thought [Lozano] would be a very important witness." (Id.) Green also argued that defense counsel could have spoken with Lozano before trial and chose not to do so. Thus, Green argued that granting a mistrial based on the alleged "ambush" would be "ridiculous." (Id., R. 823.) The trial court denied the motion for a mistrial, and the trial continued.

After the trial recessed for the day, defense counsel filed a written motion for a mistrial, and the trial court held a hearing on that motion the next morning. In support of that motion, defense counsel alleged that Lozano's out-of-court identification of Flynn had occurred under "clearly suggestive" circumstances (Supp. 1, R. 986.) - namely, "a one-man showup" (id., R. 985) - and that, had counsel been aware of those circumstances, he would have filed a motion to suppress Lozano's testimony. Defense counsel also argued that the State had violated Brady v. Maryland, 373 U.S. 83 (1963), by not informing him that Lozano had implicated Flynn because, according to counsel, "how the identification was made, what the circumstances were of that, [could have been] used to impeach Lozano." (Supp. 1, R. 991.) Green then explained the circumstances under which Lozano had first implicated Flynn:

"When I ultimately spoke with Mr. Lozano ..., he started describing through an interpreter [(Lozano's primary language is Spanish)] a tall, thin man that I assumed at the time was the victim in this case because he's taller and he's a slender man. And [Lozano] says, 'No, the shooter was a tall, thin guy.'

"And I stood up ... and I said, 'How did he look in comparison to me ...?' He said, 'He was almost your same body style.' And that concerned me, because, as everybody can see in here, I am neither tall nor thin.

"So I asked Mr. Lozano, 'Is this the shooter you're talking about or the guy they pulled out of the car?' That's when the language barrier got brought into play.

"That's when I said, 'Ben Gibbons [(another prosecutor)], show him a picture' - and I can't remember whether I said show him the jail photo or he said the only thing we've got is the jail photo. And I said, 'Show it to Mr. Lozano.' And I'm like, 'Is this the guy you're talking about as the shooter.' He said, 'Yeah, that's the guy I'm talking about as the shooter.'

"That is distinguished from a lineup or a one-man showup. I wanted to make sure that Mr. Lozano is not describing another shooter or not describing the situation that would be a Brady violation for me to keep concealed if there had been a self-defense situation or if Mr. Lozano did, indeed, see someone who was tall and thin, not just somebody he considers tall and thin.

"That's why the picture was shown to him. It wasn't for purposes of making an identification. It wasn't by a police officer. They didn't go over to his house. It was to make sure that my witness and [I] were on the same page as to who he was talking about."

(Id., R. 1000-02.) The trial court found that the circumstances under which Lozano had implicated Flynn were "absolutely, positively suggestive" (id., R. 1010-11) and that, as a result, the court "would not have allowed [Lozano] to testify as an in-court identification of [Flynn]" if defense counsel had been afforded the opportunity to file a motion to suppress Lozano's testimony. (Id., R. 1018-19.) Thus, the trial court granted Flynn's motion for a mistrial.

Following the mistrial, Flynn filed a motion to dismiss the indictment, arguing that a second trial would violate the prohibition against double jeopardy found in both the Fifth Amendment to the United States Constitution and Article I, § 9, of the Alabama Constitution. Flynn conceded that there is usually no double-jeopardy bar to a second trial when a mistrial is granted on the defendant's motion, but, citing Oregon v. Kennedy, 456 U.S. 667 (1982), he argued that there is an exception to that rule if the State intentionally provoked the defendant into moving for the mistrial, which, according to Flynn, was what occurred in his first trial. Flynn also argued that he was entitled to have a jury determine "whether the prosecution improperly intended to provoke a mistrial." (C. 188.) Alternatively, Flynn noted that "[t]he Kennedy rule has been criticized by several state courts as being too narrow" (C. 205), and he cited several cases in which other state appellate courts have held that their respective state constitutions bar retrial when a defendant moves for and is granted a mistrial based on intentional prosecutorial misconduct, regardless of whether the misconduct was intended to provoke a mistrial.

The trial court held a hearing on Flynn's motion and heard testimony from Ben Gibbons and Green, the two prosecutors in Flynn's first trial, and their testimony established that Gibbons, Green, and Maria Eady, a translator, had conducted "witness prep" with Lozano on the day Flynn's first trial began. (Supp. 1, R. 1024.) Gibbons testified that, before that meeting occurred, he and Green had no reason to believe that Lozano would be able to identify Morris's murderer and that the original purpose of Lozano's testimony was simply to prove that Morris was in a vehicle at the time of his death, which was a necessary element of one of the capital-murder charges. Gibbons testified, however, that Lozano had told the prosecutors during that meeting that he "saw the guy that was shooting and ... he was tall and thin," and, according to Gibbons, Flynn is neither tall nor thin. (Id., R. 1042.) Given Lozano's description of the shooter, Gibbons became concerned that the State "might have charged the wrong person with murder" (id.) and that there might be a self-defense issue that would need to be brought to defense counsel's attention because Lozano's description of the shooter actually matched Morris. However, Gibbons also recognized that "there was a language discrepancy" that could have been the cause of the confusion. (Id., R. 1033.) Thus, Gibbons conceded that Green had then shown Lozano a photograph of Flynn, that Green had told Lozano that the person in the photograph was the person charged with Morris's murder, that Lozano had confirmed that the person in the photograph was the person he saw shoot Morris, and that the prosecutors had not informed defense counsel of what had occurred during the meeting. Gibbons testified, though, that the purpose of showing Lozano a photograph of Flynn was simply "to make sure that [the State] had the right person" (id.), and Gibbons testified that there was no "plan or any intention on the part of [the prosecutors] to set up a scenario whereby [they] could get a mistrial if [they] needed one." (Id., R. 1044.)

Green's testimony regarding the events that occurred during the "witness prep" was consistent with Gibbons's testimony, as were Green's concessions that Lozano's description of the shooter raised the possibility that the State "flat out [had] the wrong person charged with capital murder" and raised possible Brady and self-defense issues. (Supp. 1, R. 1080.) Green testified, however, that once Lozano confirmed that Flynn was the shooter, he did not believe there was any exculpatory evidence to provide to defense counsel. Green also testified as follows:

"Q. Throughout ... your preparation for this trial and conduct for this trial, was it ever your intent to have a mistrial declared?

"A. No.

"Q. Was it ever your intent to come up with a plan to find out some evidence and not tell the defense and hold it in your back pocket just in case you

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