Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs December 13, 2016
from the Circuit Court for Montgomery County No. CC15-CR-189
William R. Goodman, III, Judge
Defendant, DeMarkus Montreal Taylor, appeals as of right from
his conviction of first degree murder in the perpetration of
or attempt to perpetrate aggravated child abuse, two counts
aggravated child abuse, and one count of filing a false
report. See Tenn. Code Ann. §§
39-13-202(a)(2); -15-402; -16-502. On appeal, the Defendant
contends (1) that the evidence was insufficient to sustain
his conviction, arguing that the evidence presented to the
jury was predominately circumstantial and that there was no
direct proof that the Defendant committed the offenses for
which he was charged; (2) that the trial court abused its
discretion when it admitted autopsy photographs of the
victim, specifically photographs of the victim's brain
and eyes; (3) that the trial court erred when it denied the
Defendant's motion for a new trial after counsel for the
co-defendant attempted to introduce testimony regarding the
Defendant's prior drug sales; and (4) that the trial
court erred in admitting the victim's autopsy report,
which contained un-redacted information regarding prior
physical abuse. Following our review, we affirm the
Defendant's convictions for first degree felony murder,
aggravated child abuse, and false reporting.
R. App. P. 3 Appeal as of Right; Judgments of the Circuit
T. Smith, Clarksville, Tennessee, for the Defendant, DeMarkus
Herbert H. Slatery III, Attorney General and Reporter;
Matthew Todd Ridley, Assistant Attorney General; John W.
Carney, District Attorney General; Kimberly S. Lund and
Daniel Stephenson, Assistant District Attorneys General, for
the appellee, State of Tennessee.
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which Camille R. McMullen, and J. Ross Dyer, JJ., joined.
KELLY THOMAS, JR., JUDGE
case arises after emergency personnel responded to a call at
the residence of the Defendant and his co-defendant, Rawny
Taylor. The call was made at approximately 2:56
p.m. on July 12, 2013 and regarded a four-year-old child who
was not breathing. Christopher Shoemaker, a volunteer
firefighter arrived on the scene first. The Defendant met Mr.
Shoemaker as he arrived at the trailer and led him inside.
Upon entering the trailer, Mr. Shoemaker walked to a back
bedroom and observed the Defendant's four-year-old
daughter, A.T.,  lying on a bed, covered by a blanket up to
her chin. Mr. Shoemaker checked the victim for a pulse, but
he did not find one. Additionally, it appeared that rigor
mortis had set in because the victim "was stiff and
cold[, ]" according to Mr. Shoemaker. He observed that
there was a "small amount of blood in her nostril and on
the edge of her lip." After making these observations,
Mr. Shoemaker did not believe that lifesaving measures would
be able to help the victim, and he informed the Defendant
"that there was nothing [he] could do."
Jerry Buchanan, who worked for Woodlawn Volunteer Fire
Service and Clarksville Fire and Rescue, explained that he
was a medical first responder and that he arrived at the
trailer following Mr. Shoemaker. In the trailer's back
bedroom, he observed that the victim had blood on her right
nostril and lip. After Mr. Shoemaker informed him that the
victim "was cold to the touch and rigors had set in[,
]" Mr. Buchanan cleared the residence and did not allow
anyone else inside.
Danny Cotterell also responded to the emergency call. He
testified that he was employed as a shift lieutenant with
Montgomery County Emergency Medical Services, and his duties
included being responsible for daily supervision of his
shift, responding to critical calls, and acting as a Deputy
Coroner for the County Medical Examiner. As a Deputy Coroner,
he completed the initial coroner's report and sent it to
the County Medical Examiner.
entering the bedroom, Mr. Cotterell "pulled the blankets
back a little and reached down and touched [the
victim]." He observed that the victim "had rigor
mortis[, ]" which meant that "there [was] nothing
[they] could do any longer to attempt to resuscitate."
He explained that he saw "some blood coming from her
nose and blood on her lips[.]" He further examined the
body for the purposes of the coroner's report and found
"bruising on the right side of [the victim's] face[,
]" "bruising on her chin[, ]" and
"bruising on both arms." He also observed a
"wound or bruise on her chest." When Mr. Cotterell
touched the victim's head, he felt "a depressed area
of the skull behind her right ear . . . [t]oward the back of
Cotterell left the bedroom and spoke to Ms. Taylor, the
co-defendant and the victim's mother, regarding the
victim's medical history. Ms. Taylor told him that she
had checked on the victim the night before. She heard the
victim's snoring but believed that she was sleeping well
and left her alone. The Defendant told Mr. Cotterell that he
put the victim to bed early the night before because she had
been misbehaving. The Defendant said that sometime later the
victim came out of her room and told the Defendant that her
head was hurting. The Defendant felt her head but claimed he
did not feel any bumps, so he sent her back to bed.
Shanna Grice was a patrol officer with the Montgomery County
Sheriff's Office and testified that she was working on
July 12, 2013, and responded to the call regarding a
four-year-old, non-responsive child at the Defendant's
residence. Upon looking into the bedroom, she observed the
victim lying "in a position that was not very natural
and [she] noticed . . . bruising on [the victim's] left
arm." Deputy Grice went back outside and secured the
residence. She asked both parents and the two other children
to remain in the front right bedroom of the trailer away from
the victim's room. During this time, the Defendant did
not appear to be very emotional and Ms. Taylor cried and
"was . . . very upset."
Michael Allen Mason testified that he was neighbors with the
Defendant and his family. He lived in a mobile home on a
nearby lot and was able to see the Taylor's home from his
own. Mr. Mason explained that he had known the Defendant and
Ms. Taylor for about ten years. He testified that, at
approximately 9:30 or 10:00 a.m., on the morning of July 12,
2013, he returned home from work to retrieve something he had
forgotten. From Mr. Mason's home, he observed the
Defendant and Ms. Taylor sitting outside on the back steps of
their trailer and claimed that "it seemed as though one
were consoling the other."
cross-examination, Mr. Mason was asked by the
co-defendant's counsel if he had "personal knowledge
that [the Defendant] ha[d] sold marijuana in the past?"
Counsel for the State objected to the relevance of the
question, and the Defendant's counsel objected and
requested a mistrial arguing that the question was overly
prejudicial and that it could not be cured by a curative
instruction. The objection was sustained. However, the court
denied the request for a mistrial but instructed the jury to
disregard the question.
Jeff Morlock worked with the Criminal Investigations Section
of the Montgomery County Sheriff's office and testified
that he was involved with the investigation of this case.
Investigator Morlock assisted in interviewing the Defendant
at the scene, took photographs of the scene, and searched
inside of the residence. The Defendant voluntarily made a
statement to Investigator Morlock. The Defendant wrote out
his statement and signed it, which Investigator Morlock
identified and read into the record:
Yesterday, my kids had started acting up, doing nasty things
with each other. Then I had to split them up by putting [the
victim] in her bed and my son on the couch with time out.
After I walked out of the room, [the victim] had come out and
told me that she had hit her head. So I felt her head for
knots and there wasn't any. I told her to lay down and
you will be okay. After that, we made some dinner for the
kids. [The victim] would not wake up but she was breathing
and snoring. We just figured that she was tired, so by 11:30
or 12:00 we had made all the kids go to bed and [Ms. Taylor]
and myself went into the room to give them all a kiss and
[the victim] was snoring and breathing good. So we checked on
her again before we went to sleep and she was doing the same
thing so we just figured she was tired. My wife woke up the
next . . . afternoon and checked on her and then she run back
in the room with me and she said she was cold and not
breathing. I jumped out of the bed, ran into the room and
shook her a little bit to try and wake her up. She didn't
get up and then I called.
Investigator Morlock identified photographs he had taken of
the Taylor residence.
Joshua Wall testified that he was an investigator with the
Montgomery County Sheriff's Office. Mr. Wall stated that
on July 12, 2013, he responded to the Taylor residence at
approximately 4:30 p.m. His duties included searching the
area and taking photographs of the scene. Mr. Wall identified
photographs that he took of the inside and outside of the
trailer. He observed that the bedroom in which the victim was
located had three beds, two of which were unoccupied, and one
on which the victim was lying. While in the room, he took
photographs of the victim on the bed. He identified multiple
photographs he had taken of the victim, and they were entered
Mark Wojnarek testified that he was a criminal investigator
with the Montgomery County Sheriff's Office and that he
responded to the scene at the Taylor residence on July 12,
2013. He was working as a supervisor, and his duties included
directing personnel and crime scene technicians, assigning a
lead investigator, and watching the body. Later in the
investigation, Investigator Wojnarek conducted an interview
with the Defendant at the jail. Investigator Wojnarek
identified a partial recording of the jail interview, and the
recording was entered into evidence.
Norman Ray Clark, III, a custodian of records with Sprint,
testified to verify Ms. Taylor's telephone records. Mr.
Clark identified a copy of a record maintained by Sprint for
the telephone number 931-302-3179. The account holder for
this telephone number was Ms. Taylor. The record showed
incoming and outgoing calls "and text messages with the
appropriate date and time as well as the numbers that [were]
in communication with one another." Based on his review
of the Sprint document, there were three incoming calls in
the morning on Ms. Taylor's telephone before the
telephone was used to call 911. The first and third calls
were unanswered, but according to the length of the second
incoming call, it was answered.
Julie Webb was a criminal investigator employed with the
Montgomery County Sheriff's Office and helped investigate
this case. On July 12, 2013, she responded to the call at the
Defendant's residence, and spoke with Ms. Taylor.
Regarding the day before, Ms. Taylor informed Investigator
Webb that she had left the residence for work at 9:30 a.m.
The Defendant and their three children, M.T., A.T., and D.T.,
were still asleep. She returned home from work at 7:30 p.m.
and stated that the victim was in bed at that time. She tried
to wake the victim for supper, but she would not wake up and
was snoring loudly. Ms. Taylor acknowledged that it was
unusual for the victim "to snore like that, that
loudly." After dinner, D.T. "went to sleep on the
couch[, ]" and M.T. "went into her bedroom . . .
and [Ms. Taylor] started a movie for her." When the
children were in bed, "she and her husband took a shower
together, they put on lotion." Around midnight, Ms.
Taylor checked on the victim again and "she was still
snoring loudly, she had never woken up[, ]" and Ms.
Taylor "kissed her" and then "went to sleep
herself." Ms. Taylor told Investigator Webb that she and
her husband woke up late on July 12, 2013. Two of their
children had come in for breakfast, but the victim had not
joined them. Ms. Taylor went to check on the victim and found
her cold and non-responsive. Ms. Taylor ran down the hall and
screamed for her husband. Ms. Taylor put her statement in
writing. Investigator Webb identified it, and it was entered
12, 2013, Investigator Webb also entered the Defendant's
residence and went into the room in which the victim was
found. She observed "a very small little girl laying on
top of the bed and she was deceased." The victim had
"bruising on her left arm[, ]" "discoloration
on her face[, ]" "blood around her nostrils, and
her mouth had what appeared to be like teeth marks and it . .
. had blood on it."
Webb also spoke with Ms. Taylor on August 6, 2013. On that
date, Ms. Taylor admitted that she and the Defendant had not
been truthful about the time of day that they discovered the
victim. They found the victim on the morning of July 12,
2013, and Ms. Taylor was afraid to call the 911 and decided
not to call at that time. In this ...