Hayes v. State

338 So.3d 1123

Henry Lee HAYES, Appellant,

v.STATE of Florida, Appellee.

No. 1D18-3876

District Court of Appeal of Florida, First District.

June 1, 2022

James A. Hernandez, Law Office of James A. Hernandez, Jacksonville; and Jason A. Cobb, DeFuniak Springs, for Appellant.

Ashley Moody, Attorney General, and Steven Edward Woods, Assistant Attorney General, Tallahassee, for Appellee.

Nordby, J.

During a gang-related drive-by shooting, three bullets fatally struck a young child. The State charged Henry Lee Hayes IV as one of the shooters and tried him alongside his co-defendant, Kquame Riquan Richardson.¹ The jury convicted Hayes of one count of first-degree murder as a criminal gang member; two counts of attempted second-degree murder as a criminal gang member; and one count of discharging a firearm from a vehicle as a criminal gang member. Hayes now challenges his convictions and argues that (1) the trial court erred in admitting collateral crime evidence, including prior gang shootings and rap videos; (2) the trial court erred in denying Hayes's motion to suppress Tomeshia Brown's photo identification on January 30, 2016 and in-court identification; (3) the trial court erred in denying Hayes's motion for a judgment of acquittal on the charge of first-degree murder and attempted first-degree murder; and (4) comments made by the State in closing argument improperly bolstered the testimony of two witnesses and constitute fundamental error. We affirm on all issues and write only to address the first two issues.²

I.

A violent feud between two rival gangs is at the heart of this case. "Problem Child Entertainment" (PCE) and "187" are local Jacksonville gangs. Hayes and his co-defendant are PCE members. Traditionally, the two gangs were amicable towards one another. But a fight at a Kodak Black concert in November 2015 spawned an all-out street war between the two groups. The conflict, which spanned several months, was marked by shootouts, drive-by shootings, retaliatory violence, and at least one gang member's death. The escalating tension was documented by the gang members themselves—in rap songs, in videos, in photographs, and in many social media posts. The conflict came to a head on January 29, 2016, when the 22-month-old Victim was killed.

That evening, the Victim was in his carseat in the back seat of his mother's car. They had just pulled up outside his great-grandmother's house. As his mother chatted with a relative through her car window, another car pulled up behind them. The occupants quickly unleashed a hail of gunfire. Both the Victim's mother and great-grandmother (who was also in the car) were unharmed. But three bullets struck the Victim, causing fatal injuries. The child was an unintended casualty of the shooting. Reginald "Ducci" Williams and several other 187 associates, who were outside the house at the time of the shooting, were the targets.

The State charged Hayes and the co-defendant³ each with one count of first-degree murder as a criminal gang member; two counts of attempted first-degree murder as a criminal gang member; and one count of discharging a firearm from a vehicle as a criminal gang member. Hayes and the co-defendant were tried together before two separate juries in June 2018. At trial, the State presented multiple witnesses, as well as rap songs, videos, phone recordings, and photographs.

A. The Escalating Tension Between 187 and PCE.

One of the State's key witnesses was Sanquan "Rondo" Bradford. Mr. Bradford was a longtime friend of the co-defendant, a current associate of PCE, and a former member of 187. Mr. Bradford testified to both defendants’ involvement in PCE, and he identified both defendants as PCE members.

According to Mr. Bradford, Hayes and the co-defendant were best friends. He explained that Hayes was called "Cracka Jack," and the co-defendant was called "JB," which means "Just Blow," like "blowing on a gun." Kameron "Killer Kam" Thomas, a member of 187, attested that Hayes and the co-defendant were both known "shooters" within PCE. Mr. Bradford testified at length to many photographs depicting Hayes donning what Mr. Bradford called PCE paraphernalia and making gestures with his hands that Mr. Bradford identified as PCE gang signs.

The State's evidence at trial highlighted the evolution of the dispute between PCE and 187 that preceded the January 29, 2016 drive-by shooting of the Victim. Mr. Thomas and Mr. Bradford testified in detail about the gangs. Both testified that PCE and 187 were amicable towards one another until the fall of 2015, when Breon "D Rose" Mason, a 187 member, stole firearms from Hayes, a member of PCE.

According to both witnesses, this incident set in motion an escalating series of violent interactions between the two gangs:

• November 14, 2015: a physical altercation occurred between members of 187 and PCE at a Kodak Black concert. Avery "Shug" McKnight, a revered member of 187, was involved in the incident.

• December 3, 2015: Avery McKnight was shot and killed on Odessa Street or "O Block."

• December 25, 2015 (Christmas Day): a drive-by shooting occurred near Odessa Street during a memorial gathering for Avery McKnight. Mr. Thomas testified that, during the memorial, several 187 members were on Facebook taunting PCE and inviting PCE members to "pull up, that we lacking on the block, pull up, that we on the block." "We on Shug Drive, pull up." He explained this was another way to say, "come over where we at ... we don't have no protection." According to Mr. Thomas, within ten minutes of posting the message, unknown individuals drove by and shot at the residence, injuring several people (including a child).

• January 6, 2016: several 187 members conducted a drive-by shooting at the home of Hayes's sister, Cynthia Hayes. Those present at the home included Mr. Bradford, Hayes, and the co-defendant.

• January 16, 2016: a drive-by shooting occurred at Mr. Thomas's residence, a well-known 187 hangout. Mr. Thomas identified "Cracka Jack" as the driver and "JB" as the shooter. The State entered a video of the incident into evidence.

• January 24, 2016: PCE member, Monteco "Teco" Brown, shot at Mr. Breon Mason, a 187 member, as he was walking down the street. The State entered a video of the incident into evidence.

The State also introduced multiple rap songs and videos produced by 187 and PCE. In them, the gang members rap about committing acts of violence against the opposition.

One such music video produced by PCE was "T on Top of T," in which the co-defendant is holding a Glock 26 that Mr. Bradford gave him. Hayes is also in the video holding a MAK-90 firearm called "Lil Kendre," named after a fallen gang member. The song was created in response to an earlier video by 187, in which 187 threatened to retaliate against the gang that shot Avery McKnight. Mr. Bradford explained that the video was PCE's way of taking responsibility for McKnight's murder. In another song, titled "Make it Black," Hayes, the co-defendant, and several other PCE members rap about committing acts of violence against 187. The song mentions "JB" and the Christmas Day shooting.

The State also presented multiple videos taken from Hayes's cellphone. Exhibit 404 contained three videos of Hayes rapping. These videos were all created on January 16, 2016, around 9:45 a.m., just thirty minutes before the drive-by shooting at Mr. Thomas's residence. In the videos, Hayes is positioned in the driver's seat of a vehicle flashing a handgun and expressing a desire to shoot opposition gang members.

Exhibit 405 contained one video recorded later in the afternoon on January 16, 2016. Multiple individuals, including Hayes and the co-defendant, are seen in the video walking down the street as Hayes taunts an opposing gang.

Exhibit 411 consisted of a short video recorded on January 23, 2016, that showed several firearms spread across a bed. Mr. Bradford attested that the video was recorded at Hayes's sister's residence. He identified the guns on the bed and their owners. He specifically stated that the co-defendant owned the Glock 26 and that firearm was used to kill the Victim. Exhibit 407 consisted of a video of Hayes and the co-defendant riding in a vehicle on January 18, 2016. The co-defendant is shown brandishing a handgun. The two individuals are heard singing, "[h]e disrespect Lil Kendre so we spraying him. Where your house? Bitch we coming there. (Inaudible). Riding on the hunt. (Inaudible)."

B. The Drive-By Shooting on January 29, 2016.

Tomeshia Brown, the Victim's mother, testified that she picked up her grandmother from work and drove to the grandmother's home on Spearing Street. Her grandmother sat in the back seat with the Victim. When Ms. Brown pulled into the front yard of the house, she was greeted by her cousin, Reginald Williams, and her brother, Thomas Brown. Soon after, a white vehicle pulled in behind her and the occupants began to fire a series of gunshots. Several shots struck Ms. Brown's vehicle.

Ms. Brown saw a darker-complexioned black male with a gun in the front seat of the white vehicle, wearing a mask. A young, lighter-complexioned black male was leaning out of the rear passenger side shooting a handgun. Ms. Brown could not identify the masked shooter, but she identified Hayes as the shooter in the rear passenger side. Ms. Brown drove away quickly to escape the gunfire. Realizing the Victim had been shot, she immediately took him to the hospital. Later that evening, doctors pronounced the Victim dead.

Jordan Harris (a 187 associate) and Mr. Brown were both present when the shooting occurred. Both testified that, after Ms. Brown pulled up, a white Toyota Corolla pulled in and the occupants started shooting. Mr. Harris was on Facebook Live at the time. He could not identify the shooters, but he heard "at least 30" shots. Mr. Harris also briefly discussed the tension between 187 and PCE, and he identified Mr. Williams as a member of 187.

Jamari Brooks, an associate of Mr. Brown, testified...