Opinion
No. 1D18-3876
06-01-2022
Henry Lee HAYES, Appellant, v. STATE of Florida, Appellee.
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.
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. 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.
See Richardson v. State , No. 1D18-4084, 338 So.3d 1106 (Fla. 1st DCA June 1, 2022).
Hayes argued a different basis for judgment of acquittal below; as such, he did not properly preserve his present arguments related to the motion for judgment of acquittal. See Newsome v. State , 199 So. 3d 510, 513 (Fla. 1st DCA 2016). And concerning Hayes's bolstering argument, we conclude that no error, let alone fundamental error, occurred.
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-defendant 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.
Both were juveniles at the time of the shooting.
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 that several hours after the shooting, he drove by a nearby gas station and saw two individuals—"Cracka" and "JB"—pumping fuel into a white car.
Several witnesses, including Ms. Brown, Mr. Brown, and Ms. Rhonda McDowell (Ms. Brown's mother), testified that on the morning after the shooting (January 30), Ms. Brown identified Hayes in a photograph as the unmasked shooter. Mr. Brown and Ms. McDowell showed a photograph to Ms. Brown from Mr. Brown's phone containing Hayes and another African-American male. Upon observing the photograph, Ms. Brown immediately "went crazy" and screamed, "He killed my baby. He shot my baby." Ms. McDowell stated that Ms. Brown was hysterical but did not hesitate in concluding that the person shown in the photograph was the unmasked shooter. Ms. McDowell called law enforcement, and soon after, Ms. Brown met with law enforcement. Using the same photograph, Ms. Brown identified Hayes as the unmasked shooter. At trial, Ms. Brown again reiterated that the person in the photograph was Hayes, and Hayes shot and killed her child. C. The Investigation and Other Evidence.
Detective Shannon Pfister of the Jacksonville Sheriff's Office Crime Scene Unit responded to the scene on Spearing Street and collected eight 9mm casings and numerous projectiles. She also collected a 7.62x39mm casing and multiple 9mm casings inside the white Corolla (which was eventually recovered after the shooting). The 7.62x39mm casing found in the Corolla matched a MAK-90 rifle found at a known PCE drug house. Several projectiles discovered at the scene matched that same MAK-90 rifle. And the 9mm casings found on Spearing Street and inside the Corolla matched a Glock 26 found during a traffic stop involving Hayes and the co-defendant.
In February 2016, law enforcement stopped Hayes as he left a restaurant in his father's SUV. Also in the vehicle were the co-defendant, Hayes's sister, Cynthia Hayes, Rashon Jackson, and Ms. Hayes's child. Hayes was driving, and the co-defendant was seated behind him. The Glock 26 was in a bucket directly behind the passenger bench in the cargo area of the vehicle.
Law enforcement interviewed Hayes about the Victim's death. Hayes provided no helpful information. He was unresponsive to questions on PCE and the stolen Corolla, but when asked about firearms, he stated he "doesn't play with guns."
The Corolla used to carry out the drive-by shooting belonged to Shatoya Williams. Ms. Williams was carjacked the morning of January 28, 2016, by two African-American individuals, one of whom was Mr. Bradford. Mr. Bradford testified that he provided PCE gang members with stolen guns and stolen cars. He admitted to the January 28 carjacking and alleged he conveyed the Corolla to the co-defendant soon after. The State presented evidence that the interior driver's door of the Corolla contained DNA, and the major contributor DNA profile matched the co-defendant's DNA profile. According to FDLE analyst Jeannelyn Adona, the frequency of occurrence was "greater than 700 billion." In other words, the observed DNA profile was greater than 700 billion times more likely to occur if the sample originated from the co-defendant than from anyone else.
Law enforcement eventually arrested Hayes for the murder of the Victim. Law enforcement officers extracted data from Hayes's cellphone, a ZTE Model Z820. This same model was programmed into the hands-free phone system of the stolen white Corolla used in the January 29 shooting. Text messages were uncovered from January 28 between Hayes and Mr. Bradford about a stolen vehicle. Notably, Hayes states, "I'm in the white car." Later that day, Hayes's internet search history revealed that Hayes repeatedly searched the Florida Department of Law Enforcement Public Access System for stolen license plates. And Hayes searched for police responses and an undetermined death on January 29 around 8:30 p.m. Law enforcement also uncovered a photograph of the Victim on Hayes's cellphone and several other internet searches concerning the Victim's death.
After the State rested, the defendants called one defense witness: Ashley Clark. Ms. Clark was a friend of Mr. Bradford for several years. They started dating in January 2016. She testified that her daughter was shot during the drive-by shooting at the Christmas Day memorial. At some point, she was notified that Reginald Williams accidentally shot her daughter. After Ms. Clark's daughter was released from the hospital, Mr. Bradford allegedly inquired into killing "Ducci's baby" or "somebody in Ducci's family" in retaliation for the shooting. Ms. Clark declined the offer. When Ms. Clark notified Mr. Bradford that the Victim had been shot, Mr. Bradford smiled and replied, "I told you I would handle that for you." Mr. Bradford, during trial, denied making those statements and denied any involvement in the January 29 shooting.
The jury found Hayes guilty of one count of first-degree murder; two counts of attempted second-degree murder; and one count of discharging a firearm from a vehicle. For each count, the jury also found that the co-defendant was a criminal gang member and that the offenses were for the purpose of benefiting, promoting, or furthering the interest of a criminal gang. The trial court sentenced Hayes to life imprisonment for the count of first-degree murder (with eligibility for review after twenty-five years), and concurrently to thirty years imprisonment for each remaining count (with eligibility for review after twenty years).
II.
A. Collateral Crime Evidence
Hayes challenges the admission of "myriad bad acts" involving Hayes and other alleged associates, including various rap songs and shootings (the Avery "Shug" McKnight shooting, the Christmas Day 2015 shooting, the January 16th shooting, and the shooting involving Monteco Brown). Hayes argues that the volume of collateral crime evidence, much of which became a feature of the trial, was unduly prejudicial. We find no error in the admission of the evidence of prior shootings between the two gangs and the rap videos.
We review the trial court's admission of collateral crime evidence for an abuse of discretion. Jackson v. State , 166 So. 3d 195, 198 (Fla. 1st DCA 2015). As a general rule, collateral crime evidence "is admissible when relevant to prove a material fact in issue." § 90.404(2)(a), Fla. Stat. But it is not admissible "when the evidence is relevant solely to prove bad character or propensity." Pitts v. State , 263 So. 3d 834, 838 (Fla. 1st DCA 2019) (quoting section 90.404(2)(a) ).
There are two types of collateral crime evidence: similar fact evidence and dissimilar fact evidence. Truehill v. State , 211 So. 3d 930, 945 (Fla. 2017). The former (also known as Williams rule evidence) is governed by section 90.404, Florida Statutes, while the latter is subject to section 90.402, Florida Statutes. Id. "The admissibility of both categories—similar fact evidence and dissimilar fact evidence—is determined by its relevancy and, of course, subject to exclusion under the balancing test of section 90.403, Florida Statutes (2010)." Id .
In establishing its case, the State "is entitled to present evidence which paints an accurate picture of the events surrounding the crimes charged," Griffin , 639 So. 2d at 970, but cannot "make the evidence of other crimes the feature of the trial or ... introduce the evidence solely for the purpose of showing bad character or propensity." Smith v. State , 866 So. 2d 51, 61 (Fla. 2004).
Id.
Collateral crime evidence, regardless of its status as similar or dissimilar fact evidence, is admissible if it is inextricably intertwined with the charged crime. See Macomber v. State , 254 So. 3d 1098, 1100–01 (Fla. 1st DCA 2018). Collateral crime evidence is inextricably intertwined if it is "necessary to (1) ‘adequately describe the deed’; (2) provide an intelligent account of the crime(s) charged; (3) establish the entire context out of which the charged crime(s) arose; or (4) adequately describe the events leading up to the charged crime(s)." Id . (quoting Dorsett v. State , 944 So. 2d 1207, 1213 (Fla. 3d DCA 2006) ).
The trial court did not err in admitting this evidence. The collateral crime evidence—the prior shootings between 187 and PCE members and the rap videos—were inextricably intertwined with the January 29 shooting. The January 29 shooting was a continuation and consequence of preceding events, which were violent and retaliatory. These rap exchanges and violent interactions, including the shootings, are central to this case and indispensable to explaining the January 29 shooting. Stated another way, the evidence was necessary to establish the entire context out of which the charged crimes arose and adequately describe the events leading up to the charged crimes. Victorino v. State , 23 So. 3d 87, 99 (Fla. 2009). "[T]o prove its case, the State is entitled to present evidence which paints an accurate picture of the events surrounding the crimes charged." Griffin v. State , 639 So. 2d 966, 970 (Fla. 1994).
Additionally, without the evidence, the State could not have explained why the defendants attacked a woman, her baby, and an elderly grandmother. It would make no sense for the State to argue that the defendants conducted a drive-by shooting at that location on that evening without explaining what was going on between PCE and 187.
Assuming the collateral crime evidence was not inextricably intertwined with the crimes here, the trial court still did not abuse its discretion in permitting the State to reference the rap videos or the prior violent interactions between 187 and PCE members. The shootings were relevant to several material issues, including motive, intent, and identity. See Durousseau v. State , 55 So. 3d 543, 551–52 (Fla. 2010) ; see also Reyes v. State , 783 So. 2d 1129, 1135 (Fla. 3d DCA 2001) ("[I]n some contexts, evidence of gang membership may be admissible to explain such disputed or unclear issues in the case as premeditation, motive or intent.").
The collateral crime evidence was also relevant to the gang enhancement of the penalties against Hayes. In this case, the State charged him with a gang enhancement under section 874.03, Florida Statutes. This meant the State had to prove Hayes was a criminal gang member or associate and committed the crime "with the intent to benefit, promote, or further the interests of a criminal gang." § 874.03(4)(a), Fla. Stat. The rap videos and prior violent encounters established the gang feud as an aim and objective of PCE, and the encounters, particularly the January 16 drive-by shooting, established Hayes and the co-defendant's adoption and support of that aim. The January 16 shooting also established their ongoing participation in activities that advance that aim and objective.
Hayes further argues that the prejudicial nature of the shootings deemed them inadmissible. We are mindful that evidence of rap videos and prior shootings, particularly the January 16 shooting, is prejudicial to Hayes. That said, as a practical matter, all evidence introduced by the State during a criminal prosecution is prejudicial to a defendant. Wright v. State , 19 So. 3d 277, 296 (Fla. 2009). Relevant collateral crime evidence should be excluded only when the unfair prejudice substantially outweighs the probative value of the evidence. Amoros v. State , 531 So. 2d 1256, 1260 (Fla. 1988). We conclude that, under the circumstances here, the evidence was relevant and its prejudice did not substantially outweigh its probative value.
We affirm the trial court's admission of the shootings between the two gangs and the rap videos. B. Identification
Next, we turn to Ms. Brown's identification of Hayes. Hayes argues the trial court erred in not suppressing Ms. Brown's out-of-court and subsequent in-court identification of Hayes because law enforcement used impermissibly suggestive procedures.
We review the denial of a motion to suppress in-court and out-of-court identifications for abuse of discretion. Lynch v. State , 260 So. 3d 1166, 1170 (Fla. 1st DCA 2018). Because suggestive confrontations in the identification process are likely to increase the likelihood of misidentification, the use of an identification obtained through unduly suggestive procedures is generally prohibited. See id . ; Grant v. State , 390 So. 2d 341, 343 (Fla. 1980). Even so, suggestive pretrial identification is admissible if the identification possesses "certain features of reliability." Grant , 390 So. 2d at 343.
We employ a two-part test for determining the admissibility of an out-of-court identification: "(1) did the police employ any unnecessarily suggestive procedure in obtaining an out-of-court identification; (2) if so, considering all the circumstances, did the suggestive procedure give rise to a substantial likelihood of irreparable misidentification." Willis v. State , 242 So. 3d 1195, 1197–98 (Fla. 1st DCA 2018) (quoting Grant , 390 So. 2d at 343 ); see also Walton v. State , 208 So. 3d 60, 66–67 (Fla. 2016) (explaining the factors to consider when evaluating the likelihood of misidentification).
Our analysis begins and ends at the first step, which focuses on police action. Here, there was no law enforcement involvement in Ms. Brown's initial identification of Hayes. Law enforcement neither arranged the photograph on her brother's phone nor supervised that initial identification. Hayes in fact conceded below that this first identification did not involve state action. And Ms. Brown's second identification to law enforcement using the same photograph was an exact reiteration of the earlier out-of-court identification involving Ms. Brown, Mr. Brown, and Ms. McDowell. Because there was no state action underlying Ms. Brown's initial out-of-court identification of Hayes, the trial court did not err in denying the motion to suppress.
III.
Finding no error by the trial court, we affirm Hayes's judgment and sentence.
AFFIRMED .
Rowe, C.J., and Winokur, J., concur.