State v. Alias

1

STATE OF TENNESSEE v. KENYON DEMARIO REYNOLDS, ALIAS

No. E2021-00066-CCA-R3-CD

Court of Criminal Appeals of Tennessee, Knoxville

May 31, 2022

Session January 26, 2022

Appeal from the Criminal Court for Knox County No. 106800B Bob R McGee, Judge.

Aggrieved of his Knox County Criminal Court jury convictions of second degree murder, delivery and sale of a Schedule I controlled substance, and unlawful possession of a firearm, the defendant, Kenyon Demario Reynolds, appeals, arguing that the trial court erred by denying his motion to sever the charges denying his motion to suppress evidence, providing an incorrect jury instruction, and failing to merge two firearm convictions. Because the trial court erred by failing to merge Counts 13 and 14, we remand the case for merger of those counts and entry of corrected judgment forms. We affirm the trial court's judgments in all other respects.

Tenn R. App. P. 3; Judgments of the Criminal Court Affirmed in Part; Reversed and Remanded in Part

Gerald L. Gully, Jr., Knoxville, Tennessee (on appeal); and Clinton Frazier, Assistant District Public Defender (at trial), for the appellant, Kenyon Demario Reynolds.

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant Attorney General; Charme P. Allen, District Attorney General; and Hector Sanchez and Kenneth Irvine, Assistant District Attorneys General, for the appellee, State of Tennessee.

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

OPINION

JAMES CURWOOD WITT, JR., JUDGE.

The Knox County Grand Jury charged the defendant^[1] by presentment with 10 counts related to drug distribution and the overdose death of the victim, Jessica Lyday.

The charges were as follows:

Count^[2]

Offense Date

Charged Offense

July 3, 2015

Second degree murder of Jessica Lyday via unlawful distribution of a Schedule I controlled substance

July 2, 2015

Delivery of less than 15 grams of a Schedule I controlled substance

July 2, 2015

Sale of less than 15 grams of a Schedule I controlled substance

July 6, 2015

Delivery of less than 15 grams of a Schedule I controlled substance within 1, 000 feet of a park

July 6, 2015

Delivery of less than 15 grams of a Schedule I controlled substance within 1, 000 feet of a park

July 6, 2015

Possession with intent to deliver more than 15 grams of a Schedule I controlled substance within 1, 000 feet of a school

July 6, 2015

Possession with intent to sell more than 15 grams of a Schedule I controlled substance within 1, 000 feet of a school

July 6, 2015

Possession of a firearm with the intent to go armed during an attempt to commit a dangerous felony and with prior felony convictions

July 6, 2015

Possession of a firearm with a prior felony conviction involving the use of force

July 6, 2015

Possession of a handgun with a prior felony drug conviction

At the close of the State's case in chief and upon the defendant's motion for a judgment of acquittal, the State agreed that it had not established that the defendant had possessed more than 15 grams of heroin in a drug-free zone and the court struck the language of Counts 9 and 10 as to the quantity of heroin.

The victim's mother, Jan August Lyday, ^[3] testified that the victim began "a close relationship" with Justin Lee when she was a junior in college. Ms. Lyday said that the victim had struggled with opioid addiction since the age of 25 and that she had "fought very hard" to overcome her addiction, going into rehabilitation twice. At the time of her death, the victim had completed a month-long process to gain admittance to Mercy Ministries, a year-long treatment program in Nashville. On July 2, 2015, the victim had "the final interview" with the program, and Ms. Lyday was preparing to take the victim to Nashville to begin the program the next day. On the morning of July 3, 2015, Ms. Lyday found the victim "in the tub and . . . her nose was under the water." Ms. Lyday and Ms. Lyday's brother pulled the victim from the bathtub and into the living room, and Ms. Lyday's brother performed CPR while Ms. Lyday called 9-1-1. The victim did not survive.

Knoxville Police Department ("KPD") Investigator Philip Jinks testified as an expert in narcotics investigations. When he arrived to Ms. Lyday's house, the deceased victim was still lying on the living room floor. He photographed and collected evidence from the scene, including the victim's two cellular telephones, a spoon with "a small piece of cotton," and a belt that "was pulled through the buckle to make a loop." He explained that intravenous drug users commonly use a "belt like that as a tourniquet when they're preparing to shoot up" and will heat the substance in the spoon and use a small piece of cotton "to filter out any solid particulates" when they "draw the substance into the syringe." Investigator Jinks noticed "track marks" on the victim's arms and "a plastic baggy" about the size of a postage stamp stuck to the victim's body, which baggies he said were common among "drug distributors." He found numerous other "stamp baggies" in the victim's bedroom. He found a box of "Tennessee lottery ticket play slips," which he explained were commonly used to package a "point," "or one tenth of a gram of heroin." He said that the street value of one gram of heroin is "typically . . . around $200" and that one point of heroin would sell for $25 to $35.

Investigator Jinks explained that, because of the nature of addiction, it was uncommon for a heroin user to purchase "a large amount and hold onto it and use it throughout the week or even throughout the day." Instead, he said, users "get what they can, [and] use it as quickly as they can." He did note, however, that users would commonly pool their money to purchase a gram of heroin at a cheaper price and divide the product among them.

Investigator Jinks searched the victim's cellular telephone and discovered that her last contact was with Mr. Lee on July 2, 2015. In that text conversation, the victim told Mr. Lee "that she had $100," and the two arranged to meet at a Walgreens. On July 6, 2015, Investigator Jinks went to Mr. Lee's house at 713 Aeronca Road, where he found Mr. Lee "in very poor health" and preparing to go to the hospital. When Investigator Jinks told Mr. Lee that the victim had died, Mr. Lee "became very emotional." The investigator seized Mr. Lee's cellular telephone before leaving and went to Walgreens to collect video surveillance footage. Mr. Lee's telephone "rang constantly," and the caller was identified on the telephone as "Slim," whom Investigator Jinks later identified as the defendant. At some point, the defendant texted Mr. Lee, telling him to check his mailbox, and Investigator Jinks discovered a series of text messages between Mr. Lee and the defendant, indicating that Mr. Lee and the defendant had used Mr. Lee's mailbox "as kind of a conveyance for drugs and money."

Investigator Jinks returned to Mr. Lee's house later that evening and recovered heroin from Mr. Lee's mailbox, which he determined was an amount of heroin intended to make up for a shortage from "an earlier purchase." At that point, Mr. Lee agreed to cooperate in a controlled buy and called the defendant "to order two grams of heroin" for $360. During the call, the defendant "advis[ed] Mr. Lee that this was not the highest quality heroin" and that "he was going to throw some extra in." An officer placed marked bills in Mr. Lee's mailbox, and "several officers set up surveillance around . . . the mailbox and around the house." Investigator Jinks "saw a silver Pontiac Grand Prix" stop at Mr. Lee's mailbox and "saw an arm come out, go in the mailbox, then the car drove away." While other officers followed the Grand Prix, Investigator Jinks recovered a bag of heroin from the mailbox and informed the other officers that the controlled buy was complete.

One of the officers that followed the Grand Prix effectuated a traffic stop when the vehicle pulled into the driveway of 1012 Morrell Road. When the officer pulled in behind the car and activated the blue lights, the defendant "[i]mmediately, opened the driver's door of the Grand Prix and ran on foot," dropping a cellular telephone outside of the vehicle. Officers apprehended the defendant as he hid in some bushes in a wooded area behind the house. The defendant had removed his shorts and tee shirt as he ran, and inside a pair of black shorts discarded nearby, Investigator Jinks recovered the $360 of marked bills used in the controlled buy. Investigator Jinks used his telephone to call the telephone number identified as belonging to "Slim," and the cellular telephone that the defendant dropped rang with an incoming call from Investigator Jinks's number. The defendant initially identified himself as "Tony Battle."

Upon realizing that, despite "marked police cars and a lot of blue lights and sirens, no one had come out of the house . to see what was going on," Investigator Jinks knocked on the front door "just to let the resident know that everything was safe and there was no reason to be concerned." At that point, he did not know that the defendant had any connection to the house. "I thought that was just a convenient place for him to pull over and jump out of the car and run." A woman, who identified herself as "Savannah Parker," answered the door and told the investigator that she did not recognize the Grand Prix. Investigator Jinks "noticed the odor of marijuana inside the house." The woman "went back inside the house and closed the door," and Investigator Jinks believed that she did not want to interact with police but, otherwise, did not believe that she had any connection to ...