State v. Avant

STATE OF TENNESSEE v. CORDERRO AVANT and DAVARIO FIELDS, aka DAVARIO McNEARY

No. W2018-01154-CCA-R3-CD

COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON

April 2, 2019 Session

July 12, 2019

Appeal from the Criminal Court for Shelby County

No. 14-04590

Carolyn W. Blackett, Judge

Defendants, Corderro Avant and Davario Fields, aka Devario McNeary, appeal from their convictions for one count of first degree murder, one count of attempted first degree murder resulting in seriously bodily injury, nine counts of attempted first degree murder, and eleven counts of employing a firearm during the commission of a dangerous felony after shots were fired at a house in Memphis. As a result of the resulting convictions, Defendants were sentenced to effective sentences of life plus twenty-one years. In their direct appeal, Defendants challenge: (1) the trial court's limitation of cross-examination regarding activity at the home prior to the shooting; (2) the trial court's decision to allow the alleged child victims to sit in the courtroom; (3) the trial court's decision to allow the State to use cell phone location data obtained without a warrant; (4) the dismissal of a juror after he told the trial court that he recognized a person identified as an unavailable witness; (5) the trial court's comments to the jury about deliberation; and (6) the sufficiency of the evidence.¹ After hearing oral arguments and a full review, we affirm.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS, P.J., and ALAN E. GLENN, J., joined.

Charles Mitchell (at trial) and John Catmur (on appeal), Memphis, Tennessee, for the appellant, Corderro Avant.

Missy Patience Branham, Memphis, Tennessee, for the appellant, Davario Fields.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant Attorney General; Amy P. Weirich, District Attorney General; and Colin Campbell and Sarah Poe, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

Defendants were indicted in September of 2014 by the Shelby County Grand Jury in a multi-count indictment for their roles in a shooting on Patterson Street in Memphis in August of 2014. The mayhem resulted in the death of Dominique Thomas, the victim, and the injury of Jarvis Clayborn. Defendants were indicted for one count of first degree premeditated murder, eleven counts of attempted first degree premeditated murder, and eleven counts of employing a firearm during the commission of a dangerous felony.

At trial, Deputy Justin Brock of the Shelby County Sheriff's Department explained that he responded to a call about a "shooting and disturbance" at a home on Patterson Street in Memphis on August 22, 2014. This was not the first time Deputy Brock had responded to a call at the residence. When he arrived, "several people [were] standing outside the residence," and there were also people inside the residence. He observed more than twenty shell casings of different calibers "in the street, on the driveway, in the front yard, [and] up around the front door." The glass in the front door of the residence was "on the ground," and the windows were "shot out on the front part of the house." Deputy Brock saw the victim and a handgun on the couch and "lots of blood." As he assessed the scene, he found several small children in the front bedroom of the residence and Mr. Clayborn in the northeast bedroom. The home was equipped with a closed circuit TV system with cameras on both the front and the back of the home, but Deputy Brock was not aware if the cameras were capable of recording anything.

Deputy Brock helped to secure the scene, detaining people who "were on the scene when the shooting actually took place." Officers placed people into some of the approximately ten to fifteen squad cars that arrived on the scene.

Antonio Hicks testified that he lived at the home on Patterson. He explained that he sold cars and "had a lot of cars being broke[n] in[to] and [his] house shot up a few times due to my nephew's² little gang affiliation." These, according to Mr. Hicks, were the reasons the home was equipped with "a basic little camera with a monitor." He further explained that there were monitors in the living room that displayed images captured by the three cameras on the outside of the home.

On August 22nd, the following people were living at the home with Mr. Hicks: his fiancée, Mistie Thomas; his step-daughter, Cadedra Thomas; and his step-son, Mr. Clayborn. The victim was also living at the house temporarily. She was the best friend of Mistie Thomas. According to Mr. Hicks, the victim "visited very much" and was "actually staying with us a few days" with her four children because "[s]he was about to get her an apartment."

Mr. Hicks knew both Defendants "[t]hrough mutual friends in the neighborhood." He also knew a person known as "Tank," whose real name was Demarius Johnson.³ "Tank" was "affiliated"⁴ with Mr. Hicks's nephew and "used to come by" the house on occasion. All three of the men—Tank, Defendant Avant, and Defendant Fields—had been to the home on Patterson before.

Mr. Hicks got a call "about 3:00, maybe 4:00" in the afternoon from "DD," whom he initially identified as Defendant Avant but later identified as Defendant Fields. Mr. Hicks admitted that the call log actually showed that the telephone call came in at 1:57 p.m. The parties stipulated that the call came from Defendant Avant's phone number. Specifically, Mr. Hicks recalled:

[Defendant Fields] asked me was Tank at my house, I told him no. And he said, he better not be. He was fixing to come and shoot my house up. I told him to keep it in the streets. Tank no longer comes around my house. I got kids at my house. I got my family there. Y['all] keep it where y['all] - - when y['all] see each other. And that was it. He hung up the phone.

After the call, Mr. Hicks left the home on his "motor scooter" and went "around the corner" to a friend's house. Mr. Hicks referred to this friend as "92" but did not identify him by name. According to Mr. Hicks, he left his home about twenty minutes prior to the shooting. While standing outside of his friend's home, Mr. Hicks saw "two cars line up in front of [his] friend's house"—a white Toyota Camry and a gray Chevrolet Impala. There were "[a]t least three" people in the Camry. Mr. Hicks later admitted that he "didn't actually get a visual look" at the people in the Camry but that he "saw silhouettes of the guns, and [he] knew the car." He saw the windows of the Camry were "cracked maybe halfway," and there were "guns in the air." They were "[b]ig guns, assault rifle kind of guns." Mr. Hicks told his friend to "call the police, they're about toshoot my house up." Seconds later, the cars "hit the corner," and Mr. Hicks "heard gunshots."

Mr. Hicks's "reaction was to make it back home, but [his] friend kind of just told [him], lay down on the ground." When the shooting subsided, Mr. Hicks ran to his house. When he arrived, his fiancée was coming out of the house. The people who were shooting at the home from the cars were already gone. Mr. Hicks did not get to go back into his house because police officers were already on the scene. They placed him in a police car. Mr. Hicks saw his stepson "bleeding out the back" when he came out of the house.

When Mr. Hicks finally returned to his house three or four days later, there were bullet holes everywhere, "all in the bricks." However, Mr. Hicks admitted that there were bullet holes in the house prior to the August 22 incident. Mr. Hicks also explained that he had one gun in his home for "protection" along with "some personal marijuana." Mr. Hicks denied that there were any other drugs in the house but admitted that a review of text messages on his phone indicated that he received text messages from people asking for "soft" and "dust," both street names for cocaine. Mr. Hicks, however, maintained that he was not a drug dealer.

Mr. Clayborn testified that at the time of the shooting, he was fifteen years old and attending school. He recalled that on the day of the shooting, he "left school early" because he was expelled. Mr. Clayborn was sitting on the couch and talking to other people that were staying in the house, including his mother and the victim. Mr. Clayborn "tried to get up and go in [his] room" when the shooting started. He was shot in the "side." He had no recollection of how many shots were fired because everything "went black" after he heard "the first couple" of shots. The bullet that hit Mr. Clayborn did not exit his body. He was able to walk out of the house and had to step over the victim's body to get outside. Mr. Clayborn was eventually taken to the hospital where he remained for nine days after doctors removed his spleen. Mr. Clayborn admitted that he used to be a "Blood" but was no longer affiliated with the gang.

Ms. Thomas testified that the following people were at the house the day of the shooting: the victim and her four children (Brennan Thomas, Brycen Thomas, Jakiya Thomas, and Jarvis Thomas),⁵ Mr. Clayborn, Mr. Brookings, Cadedra Thomas, Takenya Young, and Fred Ware. Ms. Thomas had worked that morning from 4:30 a.m. until around 11:00 a.m. or "no later than 12:00" p.m. When she got home from work, she was "in the house just sitting around" while the victim was packing to move into her apartment. They were also "watching TV, doing normal things with the kids," andsmoking marijuana. At one point, she heard Mr. Hicks "outside on the phone yelling." Mr. Hicks left the house after the phone call. The next thing she "heard was gunshots coming through the house." There were too many gunshots to count. "Everybody just ducked and began to run towards the back where all the kids were." She did not see the victim get shot, but she was running in the hallway with Mr. Clayborn when he was hit by a bullet.

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