Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs October 29, 2014
Appeal from the Criminal Court for Sumner County No. 2011CR45 Dee David Gay, Judge
Jeremy W. Parham, Manchester, Tennessee, for the appellant, Mario D. Taylor.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Lawrence Ray Whitley, District Attorney General; and Tara Wyllie, Assistant District Attorney General, for the appellee, State of Tennessee.
Roger A. Page, J., delivered the opinion of the court, in which John Everett Williams, J., joined. Robert H. Montgomery, Jr., J., filed a separate concurring and dissenting opinion.
ROGER A. PAGE, JUDGE
This case concerns a home invasion during which the perpetrators wore bandanas covering their faces and demanded money and guns from a family while one of the perpetrators pointed a gun at the family members. One of the perpetrators took the mother's purse from the home. Appellant was indicted for and convicted of aggravated burglary, aggravated robbery, employing a firearm during the commission of a dangerous felony, and three counts of aggravated assault. Appellant's trial began on April 17, 2012.
I. Facts from Trial
Cathy testified that on October 17, 2010, she was living in her Sumner County home with her husband; her older daughter Ashley, age 26; her son Zachary, age 15; and her younger daughter Caitlyn, age 13. All five members of the family were at home on October 17. Cathy explained that they returned to their home after a Sunday night church service at approximately 7:30 or 7:35 p.m. and had been home for twenty to twenty-five minutes when she heard a knock at the door. At the time, she and her children were downstairs, her older daughter was in the bathroom, and her husband was upstairs. Her son went to the door, asked who was outside, and opened the door. Two men came inside the house wearing bandanas, one orange and one red; "stocking caps"; and gloves saying, "'Everybody on the floor. Everybody get on the floor.'" One of the men, who was wearing black, rectangular-framed glasses and a red bandana, pushed her son, and her son responded, "'Man, what you want? What you want?'" The men then came toward Cathy, and the man wearing the red bandana and glasses put a gun to the back of her son's head. She instructed her children to "'[j]ust do what he says.'" The men ordered everyone to lie on the floor and keep their eyes on the floor. Cathy heard a lot of noise as the men moved about her home. She also heard someone ask where the family's guns were located and if anyone else was in the house. When her younger daughter made noise, one of the men said, "'Oh shut up. I ain't going to shoot you.'" Cathy explained that shortly thereafter it suddenly became quiet. She heard a sound as someone came down the stairs. Her son said, "'They're gone.'" They got up from the floor, closed the door, and called the police. Cathy stated that the entire incident lasted approximately ten to fifteen minutes. Cathy later found that the only thing missing from her home was her purse. Cathy was shown a picture from which she identified her purse, wallet, and other items that had been inside her purse when it was taken from her home. Cathy also identified a pair of glasses that looked the same as the glasses worn by the perpetrator who held a gun to her son's head.
During cross-examination, Cathy stated that she saw one of the perpetrators with a gun in his hand and that the second perpetrator "had something similar in his hand." However, she conceded that the second individual never pointed a gun at any of the members of her family. Cathy also conceded that her written statement to law enforcement did not contain an assertion that the second perpetrator had a weapon. Cathy agreed that she had never identified appellant in a line-up and explained that the perpetrators had their faces covered while in her home. Cathy agreed that no one was physically injured during the incident. Cathy testified that after the incident, she saw at least eight text messages from Kelsey, a teenage girl who lived across the street, saying, "'[Zachary], are you home?'" She said that the messages all arrived shortly before and during the incident. Cathy explained that it was normal for her son to receive those types of text messages.
Caitlyn, Cathy's younger daughter, testified next that when she heard the knock at the door, her brother went to the door and asked, "'Who is it?'" She heard a murmur, and her brother again asked, "'Who?'" Caitlyn heard the person outside the door respond, "'Jrock. Open the door.'" After her brother opened the door, one of the perpetrators pointed a gun at her brother and ordered everyone to lie on the floor. However, Caitlyn remained standing. Caitlyn testified that the perpetrators began asking, "'Where's the .357?'" and, "'Where's the money?'" One of the men asked Caitlyn who was upstairs, and she responded, "'Nobody.'" The two men went upstairs but then turned around and exited the home. Caitlyn recalled that one of the men was wearing an orange bandana, but she could not "really place" the other perpetrator. She believed that the perpetrator wearing the orange bandana pointed the gun at her brother, but she could not see either man's face. Caitlyn asserted that both men had weapons but that neither ever pointed a gun at her. Caitlyn explained that she was "really scared" during the incident because she did not want anyone to harm her family and that she was so afraid that she had to sleep with her sister the night of the incident. During cross-examination, Caitlyn explained that the two men sounded like they were teenagers. Caitlyn conceded that she only actually saw one gun during the incident.
Zachary, Cathy's son, testified that on the night in question, he opened the door to his home after a person knocking on the door identified himself as "'Jrock.'" Zachary stated that there were two men standing outside and that the man standing closest to the door put a gun to Zachary's neck. The man told Zachary "'[t]o get back and get on the ground.'" Zachary saw the other perpetrator point a gun at his sister. When the men asked for guns and money, Zachary responded that they did not own "'that kind of stuff.'" One of the men replied, "'Yeah you do. Where is the .357 and the nine, '" to which Zachary responded that he did not "'know anything about that stuff.'" The men went upstairs but suddenly ran back down the stairs and out of the house. Zachary then saw his father walking down the stairs carrying his pistol. Zachary stated that the men were wearing bandanas, dark clothes, and gloves and that the man who pointed a gun at him was wearing glasses. Zachary could not remember what color bandana the man wearing the glasses wore but stated that the other man wore an orange bandana. Zachary stated that Kelsey was a girl who lived across the street. He explained that at the time, he had known Kelsey for about a month and that it was not uncommon for her to text him. Zachary stated that immediately after the incident in question, he realized that he had received numerous text messages from Kelsey asking if he was at home. Zachary explained that he could not identify the two perpetrators because they kept their faces covered while in his home.
During cross-examination, Zachary explained that he opened the door because he assumed that "Jrock" was a friend whose name started with "J" and that the friend was using a nickname. Zachary conceded that he did not tell law enforcement officers that both men had weapons when he gave a statement after the incident. Zachary explained that prior to this incident he had been "talking" to Kelsey as a prelude to dating but that they "fell at odds" when she began "talking to" one of his friends. Zachary stated that it was unusual for Kelsey to text him repeatedly to inquire as to his whereabouts. Zachary recalled telling detectives that the man who pointed a gun at him wore a red bandana.
Ashley, Cathy's older daughter, testified next that on the evening of October 17, 2010, she was walking into the bathroom when she heard a knock at the door. While she was in the bathroom, she heard her brother and mother have a conversation about who was at the door. She then heard the door open and heard a man's voice. She heard someone say, "'Shut up.'" She heard her sister scream and heard a man's voice say, "'Get on the ground.'" She heard some "shuffling around, " and someone said, "'Where's the guns?'" Her brother responded that they did not own any weapons, to which a man responded, "'Yeah, you do. Where's the .357 and the nine?'" Ashley heard her sister scream and heard a man say, "'Shut the F up. We're not going to shoot you.'" Ashley heard a lot of "shuffling around" and heard the men ask, "'Who else is here?'" before the perpetrators left the house. Ashley stated that while she was in the bathroom, she had a cellular telephone that all the members of her family used. She said that she received three or four text messages from Kelsey to Zachary asking if Zachary was at home. During cross-examination, Ashley agreed that she was inside the bathroom for the duration of this incident and did not see any of the individuals who came into her home.
Kelsey, the teenage female who lived across the street from the home in question, testified next that prior to October 17, 2010, she had known Zachary for one to two months and that they had mutual friends. Kelsey stated that Jeremy Martin was an ex-boyfriend and that Mr. Martin was at her house on October 17. Mr. Martin came to Kelsey's home with Lavontray Woodley and a male and female whom Kelsey did not know. Mr. Martin was wearing black jogging pants and a black shirt. Mr. Woodley was wearing a black shirt and shorts and a hat. Kelsey stated that Mr. Martin retrieved a letterman jacket he had left at her home and asked for a bandana. Kelsey explained that she gave Mr. Martin red and orange bandanas. Kelsey said that Mr. Martin's nickname was "Jrock." Kelsey asserted that she did not talk to Mr. Martin about Zachary that night but that she and Mr. Martin had spoken about Zachary in the past. Kelsey testified that she sent Zachary text messages that night because she and Zachary had "exchanged words" a couple of days prior, and she wanted to talk to him about it. Kelsey stated that she only learned of the incident at Zachary's home when Zachary called her after it occurred. Mr. Martin also later told her that he had gone in the home and had taken a purse.
Chareece, Mr. Woodley's girlfriend, testified that on October 17, 2010, she went with Mr. Martin, Mr. Woodley, and "Money" (appellant) to retrieve a jacket from Mr. Martin's girlfriend, Kelsey. Chareece explained that she and Mr. Woodley waited in the car while Mr. Martin went inside Kelsey's house and that appellant stood outside the vehicle. Kelsey came outside and spoke to Mr. Woodley. During this conversation Mr. Martin and appellant walked away, but Chareece did not know where they went. Chareece described appellant as a tall, African American male and stated that he was wearing "all black" "shades" on the night in question. Chareece explained that the two men were gone approximately fifteen to twenty minutes and that when they returned, appellant was carrying a bag. It was not until all four individuals left Kelsey's home and were driving on the interstate that appellant stated that there was "'nothing in the bag.'" Someone, Chareece could not remember who, threw the bag out of the car window. During cross-examination, Chareece stated that she never saw any weapons on October 17.
Lavontray Woodley testified that on October 17, 2010, he, Chareece, Mr. Martin, a.k.a. "Jrock, " and appellant, a.k.a. "Money, " went to Kelsey's apartment to retrieve Mr. Martin's jacket. Mr. Woodley stated that after Mr. Martin and appellant went inside Kelsey's apartment, Kelsey came outside to the car to speak with him. Mr. Martin and appellant then walked away, and Mr. Woodley thought that Kelsey went with them. They had been gone for approximately thirty to forty minutes when Mr. Martin came jogging back to the car, and appellant was running behind Mr. Martin trying to catch up. Mr. Woodley did not notice either man carrying anything. However, Mr. Woodley later saw appellant going through a purse and talking about how he "didn't have nothing." Mr. Woodley then saw appellant throw the purse out of the car window.
During cross-examination, Mr. Woodley stated that he and Chareece sat in the car talking while Mr. Martin and appellant were gone. Mr. Woodley confirmed that both Mr. Martin and appellant went inside Kelsey's apartment. Mr. Woodley explained that appellant threw the purse out of the car window near downtown Nashville and that he never saw anyone in the possession of or wearing a bandana that evening.
Jeremy Martin testified next that as of October 17, 2010, he had known appellant for one to two months. Mr. Martin explained that he, appellant, Mr. Woodley, and Chareece went to Kelsey's house to pick up a jacket he had left there. He stated that after he had retrieved his jacket, he, appellant, and Kelsey were standing outside, and appellant stated that he wanted to commit a robbery. Kelsey gave them a red bandana with "little teddy bears" on it and an "orangish, pink-looking" bandana with flowers on it. Mr. Martin, appellant, and Kelsey left Mr. Woodley and Chareece sitting in the car, and the three walked around the apartment complex. During the walk, Kelsey pointed to a house and told the two men that there were guns and money inside. Mr. Martin asserted that Kelsey was aware that they were planning to rob someone. Mr. Martin and appellant proceeded to cross the street to rob the house, leaving Kelsey at her apartment complex.
Mr. Martin explained that appellant knocked on the victims' door and that when asked who was outside, appellant responded "'J[r]ock.'" Mr. Martin did not know why appellant used Mr. Martin's nickname. Mr. Martin had a rock in his hand but did not have a gun, and Mr. Martin did not know that appellant had a weapon until someone opened the door and appellant drew the gun. Appellant then pointed the gun at one of the victims. Mr. Martin remembered that there was a mother and two children, a male and female, inside the house. Once inside the house, appellant demanded that everyone get on the floor. Appellant also told the female child that no one was going to shoot her. Mr. Martin explained that appellant told him to go upstairs but that he fled the home when he heard someone else moving about upstairs. Mr. Martin asserted that appellant took the purse from the house. When appellant looked inside the purse while they were driving down the road, he told Mr. Martin that he had "hit a dry lick, " meaning that he did not get anything of value. Mr. Martin explained that appellant threw the purse and all of its contents out of the car window. Mr. Martin admitted that he had already pleaded guilty to robbery and that part of his plea agreement was that he testify truthfully at appellant's trial. Mr. Martin testified that he is 5'6" or 5'7" and that appellant is four to five inches taller than he. He also stated that on the night of the robbery, appellant was wearing square glasses with gold trim.
During cross-examination, Mr. Martin explained that a week or two prior to the incident, he and Kelsey had ended their three-year relationship and that they were "just conversating" after the breakup. Mr. Martin stated that he was the only person to go inside Kelsey's apartment that night. He testified that he wore the red bandana. Mr. Martin stated that the lenses in appellant's glasses were clear and that neither he nor appellant were wearing gloves during the robbery. Mr. Martin also agreed that he and appellant had an altercation when they first met.
Steve Malach, a detective with the Hendersonville Police Department, testified that he accompanied another detective to serve an arrest warrant on appellant on November 2, 2010. He explained that appellant was arrested, read his Miranda rights, and placed in the police car. The two detectives spoke to appellant on the thirty- to forty-five-minute drive back to the police department. During the drive, appellant confessed to entering and robbing the home with Jeremy Martin while wearing a bandana over his face. He admitted having a gun during the incident but asserted that it was not loaded. He explained that the gun was missing the magazine that held the bullets and that he had to hold the gun in a specific way to keep the victims from seeing that the magazine was missing. Appellant asserted that he never intended to use the gun and that he was only there to perpetrate a robbery. Appellant explained that he and Mr. Martin ran out of the house when they saw that one of the adults in the home had a gun. After appellant confessed, the detectives took him to the police department so that he could provide a written statement. However, appellant was unable to do so at the second interview because appellant fell to the floor and "started to have what appeared to look like a seizure or some kind of medical incident." The detectives called an ambulance. Detective Malach explained that he went to the hospital a short time later and that appellant exhibited "no signs of being sick or ill." Appellant informed the detectives that he was not going to cooperate further without a lawyer.
During cross-examination, Detective Malach stated that appellant's interview in the car was not recorded because the police car was not equipped to make such recordings. Detective Malach agreed that he had no reason to believe that appellant faked having a seizure.
Mark Sloan, a lieutenant with the LaVergne Police Department who was responsible for the Crime Suppression Unit, testified that he discovered a large, dark-colored purse lying on the front steps of the substation where his office was located. He stated that the substation was locked and was not accessible to the public, so he assumed that a private citizen had found the purse and left it there for law enforcement to find. Lieutenant Sloan explained that he turned the purse into the police station and that the purse was eventually given to the Hendersonville Police Department.
Neal Harris, a detective with the Hendersonville Police Department, testified that he responded to the scene of a home invasion where two black males had entered the home, held the family at gunpoint, and stolen a purse. Detective Harris explained that Mr. Martin became a suspect after text messages to Zachary led him to Kelsey. Through Kelsey, Detective Harris identified Mr. Martin. Kelsey placed a recorded call to Mr. Martin. Detective Harris arrested Mr. Martin the morning after the incident. On the drive back to the police station, Mr. Martin admitted participating in the home invasion and showed the officers which house belonged to appellant, whom he referred to as "Money." Ten days later Mr. Martin and Mr. Woodley identified appellant from a driver's license photograph. Detective Harris arrested appellant on November 2. Appellant's mother provided the arresting officers with appellant's medications. The officers then drove to the Lavergne Police Department to retrieve the victim's purse that had been found and let appellant use the restroom before driving back to Hendersonville. The officers read appellant his Miranda rights when they got back inside the car because appellant was inquiring about his charges. Detective Harris stated that appellant initially denied participating in the home invasion. However, after being confronted with Mr. Martin's claims, appellant admitted perpetrating the ...