Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs March 14, 2017
from the Criminal Court for Davidson County No. 2014-B-1655
J. Randall Wyatt, Jr., Judge
Demarco Cortez Taylor, was convicted by a jury of aggravated
robbery, aggravated burglary, and employing a firearm during
the commission of a dangerous felony. He received an
effective sentence of ten years for the convictions. On
appeal, Defendant challenges: (1) the trial court's
denial of the motion to suppress; (2) the State's use of
improper leading questions; (3) the exclusion of the
victim's recorded interview; (4) the omission of a jury
instruction on intoxication; (5) the sufficiency of the
evidence supporting the convictions for aggravated robbery
and employing a firearm during the commission of a dangerous
felony; (6) the denial of a new trial on the basis of jury
bias; (7) an excessive sentence; and (8) cumulative error.
After a review, we affirm the judgments of the trial court.
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
von Wiegandt, Nashville, Tennessee, for the appellant,
Demarco Cortez Taylor.
Herbert H. Slatery III, Attorney General and Reporter;
Katherine C. Redding, Assistant Attorney General; Glenn R.
Funk, District Attorney General; and Jude Santana and Jeff
Jackson, Assistant District Attorneys General, for the
appellee, State of Tennessee.
Timothy L. Easter, J., delivered the opinion of the court, in
which Robert W. Wedemeyer and Camille R. McMullen, JJ.,
TIMOTHY L. EASTER, JUDGE.
Lovell, the victim, identified Defendant as the man who broke
into her home on March 27, 2014. Defendant voluntarily came
into the police precinct after the offense. After waiving his
Miranda rights, Defendant was interviewed by police
from the Metropolitan Nashville Police Department. Defendant
was subsequently indicted by the Davidson County Grand Jury
for aggravated robbery, aggravated burglary, and employing a
firearm during the commission of a dangerous felony. Prior to
trial, counsel for Defendant filed a motion to suppress the
statement Defendant gave to police.
hearing on the motion, Detective Michael Windsor testified
that he was assigned to investigate the burglary and robbery
at Ms. Lovell's home. On March 28, 2014, the day after
the incident, Defendant came to the police station
voluntarily. At the time, he was not under
arrest. According to Detective Windsor, Defendant
"heard that we had been out asking about his name and
everything so he took it upon himself to meet with us."
Detective Windsor did not see any "indication . . . that
[Defendant] was under the influence of anything to the point
that it would impair his judgment at all." In fact,
during the waiver of rights, Defendant was asked if he was
intoxicated or taking drugs. Defendant informed the detective
that he had taken Lortab but that he was not intoxicated.
Detective Windsor described Defendant as "lucid"
and commented that Defendant gave "sharp responses"
informed the detective that he finished tenth grade and lived
with his mother. Defendant claimed that he spent the night
prior to the interview with a female friend, specifically his
"baby mama's sister." When initially asked
about the incident, Defendant informed the detective that he
was riding dirt bikes in Antioch from 2:00 p.m. until around
6:00 p.m. Defendant first insisted that he was at the home of
his female friend around 6:30 a.m. that morning, around the
same time the burglary took place. Then, Defendant admitted
that he stopped by his mother's house which was located
near the victim's home. Defendant admitted that he had
been to the victim's house a few days prior to the
incident. He was looking for "Tony T, " the father
of one of the victim's children. Defendant and Tony T
used drugs together. Defendant had used drugs with Tony T at
the victim's home. They smoked marijuana sprinkled with
thirty minutes into the interview, Defendant mentioned that
he was "tired." Around this same time, Defendant
started making admissions that he was involved in the
incident. Defendant initially claimed that he did not
remember the incident because he had blacked out from using
Lortab and Xanax but later admitted that he entered the house
to get drugs. Defendant was "cooperative" during
the interview. He eventually stated that he thought the house
was empty because he did not see the victim's car.
Defendant admitted that he confronted a child when he entered
the house. He claimed that he was holding a silver and black
can of mace concealed inside his sleeve so that only the
circular nozzle was visible. The house was dark. Defendant
admitted that he took a maroon tablet, a pink and white
tablet, a white cell phone, and money. The officers walked
out of the interview room for a few minutes, and Defendant
put his head down on the table. Detective Windsor described
this behavior as "not unusual for most people."
When "the questioning was basically over" Defendant
told the officers he could get a female friend to give some
of the victim's property back. Defendant also admitted
that he wore a wig and entered the home through the window
even though he could not recall how he removed the air
conditioner from the window.
trial court denied the motion to suppress, noting that at the
beginning of the interview, Defendant had his head on the
table for about thirty seconds but sat up and appeared
"alert" when Detective Windsor entered the room.
The trial court characterized Defendant's speech as
"coherent" and noted Defendant claimed familiarity
with Miranda warnings at the beginning of the
interview. The trial court found that Defendant was
"able to respond to specific questions in a detailed
way." The trial court noted that Defendant again placed
his head on the table during the interview, after
"essentially" making a confession but that it
"appear[ed] to be more a sign of dejection than sleep
deprivation." Defendant mentioned being tired but
"never trie[d] to deny the admissions." As a result
of the review of the video, the trial court determined that
Defendant knowingly waived his rights and denied the motion
trial, the victim testified that on March 27, 2014, she was
living at James Cayce Homes on South Sixth Street with her
three children, ages two, three, and four. The night before,
she worked late at WalMart and cashed her paycheck so that
she could pay the babysitter who watched her children while
she was at work. For unknown reasons, Ms. Lovell took a
picture of the cash and posted the picture on Instagram. She
woke up around 6:30 a.m. the morning of the incident. Ms.
Lovell asked her oldest son to go downstairs to get his
school shoes. She "heard a big old clash noise like
something fell in the house." She "jumped out of
bed and went to the top of the steps." She was carrying
her youngest son in her arms. When she got to the top of the
steps she could see and hear someone else "running up
the steps." Ms. Lovell thought it was her son but was
met by "a man with a mask on his face, saying 'get
down on the ground, face down.'" Ms. Lovell
immediately recognized the voice as belonging to "Coco,
" Defendant's nickname. Defendant was wearing a big
"60s afro wig" with a "Louis Vuitton hat on
top of the wig, " red Jordan tennis shoes, and
"something black around his face." Defendant had a
gun "wrapped" with the "sleeve [of his shirt]
around it." He asked Ms. Lovell where the
"money" was located. She told him it was on the
dresser in her bedroom. Defendant asked Ms. Lovell where the
"rest" of the money and "drugs" were
located. He "continued to start searching through all of
the drawers and looking on the [other dresser]." He told
her to stay still and "nobody [would] get hurt."
While he was searching on the dresser, Ms. Lovell saw
Defendant pull the mask down.
Lovell's oldest son finally came upstairs. The man told
him to sit on the bed with his siblings and stay still. The
children complied while Defendant led Ms. Lovell into the
children's room and asked if there was
"anything" in the room. Ms. Lovell informed him
that there was nothing in the children's room. Defendant
"pointed the gun . . . between [Ms. Lovell's]
legs" and asked if there was "anything down
there." Ms. Lovell told Defendant there was nothing and
informed him that she was on her period. Defendant turned
back into the bedroom where the children were sitting on the
bed. Defendant opened the closet and told them to get in the
closet and stay there until instructed to do otherwise. Ms.
Lovell was certain Defendant was holding a gun. Defendant
took the cash, cigarettes, tennis shoes, several small
computer tablets, and a telephone.
Lovell and her children stayed in the closet for about six
minutes. It was quiet outside, so Ms. Lovell said,
"Hello." Defendant told her to "Get back in
the closet." She got back in the closet and waited a
little while longer before exiting the closet. She checked
out the house to make sure Defendant was gone while the
children stayed in the closet. When she realized Defendant
was gone, she ran back upstairs to get the children and left
the apartment to go to the babysitter's house to call the
Lovell testified that she had seen Defendant ten to fifteen
times around the area in which she lived prior to this
incident. In fact, about two days prior to the incident,
Defendant knocked on her door, entered her home, and asked
her "for a ride to the Tiger Market on Shelby." At
the time, he was wearing red Jordan tennis shoes identical to
those worn by the person that broke into her apartment. She
identified Defendant as that person in a photographic lineup
and at trial.
Gregory Lyons responded to the dispatch from the 911 call. He
described the victim as frightened "almost to the point
where she was crying." The victim identified the
perpetrator as "Coco." Officer Lyons knew this to
be Defendant's nickname.
Windsor also interviewed the victim. She reported that
Defendant was armed with a silver and black handgun. In a
jury-out hearing, counsel for Defendant informed the trial
court that he wanted to introduce the victim's recorded
interview into evidence in order to show that the
victim's recollection of the events was inconsistent with
her trial testimony. In order to bolster his argument,
counsel for Defendant asked Detective Windsor if, at one
point during an interview, the victim stated that Defendant
touched the outside of her groin area with his finger as he
pointed at her and asked if she had anything in there. There
was discussion about the fact that there was a sexual
investigation by Officer Michael Bennett that did not result
in an indictment. Officer Bennett was subpoenaed for trial
but, at the time of trial, was retired. The trial court tried
to get the State to stipulate that Officer Bennett
"indicated that [Defendant] pointed his finger towards
the woman's private area." The State declined. Court
adjourned for the evening.
next morning, in a jury-out hearing, counsel for the State
explained that the victim's statement contained several
references to Defendant's gang affiliation and that
"both sides have agreed not to introduce the
victim's statement in full." Counsel for Defendant
explained that he had several more questions to ask Detective
Windsor during cross-examination and asked the trial court
"if he says he doesn't remember can I play that
portion of the statement?" The trial court agreed but
counsel for the State noted the "challenge would be how
do we introduce that to the jury without introduction of the
entire statement?" The trial court put Detective Windsor
on the stand in a jury-out hearing to assess his recollection
of the events. Portions of the recording were played for the
detective during the jury-out hearing to refresh his
recollection. The trial court was satisfied with Detective
Windsor's responses to questioning during the jury-out
hearing such that it would be unnecessary to introduce the
Windsor was cross-examined by counsel for Defendant in front
of the jury. He confirmed that he reviewed the interview of
the victim which took place in the patrol car. During the
interview, the victim's mother approached the car. At one
point, the victim's mother exclaimed, "Instagram
will get you killed." Detective Windsor claimed that the
victim spoke of "giving [Defendant] a ride in the
past." On redirect, counsel for the State asked the
detective if it was his "understanding that a deadly
weapon was used in the commission of this [crime]." The
detective recalled that, "according to the statement,
yes." The detective also recalled the victim informing
him that Tony T did not live at the residence. However, on
re-cross, Detective Windsor admitted that the victim stated
Tony T comes over to the house at times to take care of his
child. Counsel for Defendant did not seek to introduce the
statement of the victim.
did not put on any proof at trial. The jury found Defendant
guilty of aggravated robbery, aggravated burglary, and
employment of a firearm during the commission of a dangerous
felony. After a sentencing hearing, the trial court sentenced
Defendant to nine years for the aggravated robbery conviction
and four years for the aggravated burglary conviction, to be
served concurrently with each other but consecutively to the
six-year sentence for employing a firearm during the
commission of a dangerous felony, for a total effective
sentence of fifteen years. Defendant later filed a motion to
correct the sentence on the basis that the sentence for
employing a firearm during the commission of a dangerous
felony could not run consecutively to the aggravated robbery
sentence because the indictment specified aggravated burglary
as the predicate felony rather than aggravated robbery. The
trial court agreed and entered amended judgments to reflect
that Defendant's six-year sentence for employing a
firearm during a dangerous felony would run consecutively to
the four-year sentence for the conviction for aggravated
burglary. The nine-year sentence for the conviction for
aggravated robbery would run concurrently to the sentences
for employing a firearm during the commission of a dangerous
felony and aggravated burglary. Additionally, all three
sentences were ordered to run concurrently to Defendant's
prior conviction for aggravated assault.
the denial of a timely motion for new trial, Defendant
appealed, raising the following issues for our review: (1)
whether the trial court erred in denying the motion to
suppress his statement; (2) whether the trial court erred by
allowing improper leading questions; (3) whether the trial
court erred by excluding the victim's recorded interview;
(4) whether the trial court erred by refusing to instruct the
jury on intoxication; (5) whether the evidence was sufficient
to support the convictions for aggravated robbery and
employing a firearm during the commission of a dangerous
felony; (6) whether the trial court should have granted a new
trial on the basis of jury bias; (7) whether the ten-year
effective sentence was excessive; and (8) whether cumulative
error should result in a new trial.
Denial of the Motion to Suppress
argues on appeal that the trial court improperly denied the
motion to suppress his statements to police because he was
"too intoxicated to understand his Miranda
rights[ ] and therefore did not freely and voluntarily make
his statements to police." Defendant insists that the
totality of the circumstances show that he was "clearly
sleep deprived and intoxicated, " and the trial court
should have suppressed the statement after viewing the
recording. The State disagrees, pointing to Defendant's
"cohesive narrative of events" and self-reported
familiarity with Miranda to support the voluntary
waiver of rights.
reviewing a trial court's ruling on a motion to suppress,
this Court will uphold the trial court's findings of fact
"unless the evidence preponderates otherwise."
State v. Bell, 429 S.W.3d 524, 528 (Tenn. 2014)
(citing State v. Climer, 400 S.W.3d 537, 556 (Tenn.
2013)). Witness credibility, the weight and value of the
proof, and the resolution of conflicts in the proof "are
matters entrusted to the trial court as the trier of
fact." Id. at 529. "The party prevailing
in the trial court is entitled to the strongest legitimate
view of the evidence adduced at the suppression hearing as
well as all reasonable and legitimate inferences that may be
drawn from that evidence." State v. Binette, 33
S.W.3d 215, 217 (Tenn. 2000) (quoting State v. Odom,
928 S.W.2d 18, 23 (Tenn. 1996)). The trial court's
resolution of questions of law and application of the law to
the facts are reviewed de novo with no presumption of
correctness. State v. Day, 263 S.W.3d 891, 900
(Tenn. 2008). When reviewing a trial court's ruling on a
motion to suppress, this Court "may consider the entire
record, including not only the proof offered at the hearing,
but also the evidence adduced at trial." State v.
Williamson, 368 S.W.3d 468, 473 (Tenn. 2012) (citing
State v. Henning, 975 S.W.2d 290, 297-99 (Tenn.
constitutions of the United States and Tennessee protect a
suspect from "being compelled to give evidence against
himself." State v. Berry, 141 S.W.3d 549, 576
(Tenn. 2004) (citing U.S. Const. amend. V; Tenn. Const. art.
I, § 9); see also State v. Turner, 305 S.W.3d
508, 515 (Tenn. 2010). Statements made during the course of a
custodial police interrogation are inadmissible at trial
unless the State establishes that the defendant was advised
of his right to remain silent and his right to counsel and
that the defendant then waived those rights. Miranda v.
Arizona, 384 U.S. 436, 471-75 (1966); see also
Dickerson v. United States, 530 U.S. 428, 444 (2000);
Stansbury v. California, 511 U.S. 318, 322 (1994). A
defendant's rights to counsel and against
self-incrimination may be waived as long as the waiver is
made voluntarily, knowingly, and intelligently.
Miranda, 384 U.S. at 478; State v.
Middlebrooks, 840 S.W.2d 317, 326 (Tenn. 1992).
test for voluntariness under the Tennessee Constitution is
broader and more protective of individual rights than under
the Fifth Amendment. State v. Smith, 933 S.W.2d 450,
455 (Tenn. 1996). In order to determine the voluntariness of
a statement, a court must "examine the totality of the
circumstances surrounding the giving of a confession,
'both the characteristics of the accused and the details
of the interrogation.'" Climer, 400 S.W.3d
at 568 (quoting Dickerson, 530 U.S. at 434); see
also Monts v. State, 400 S.W.2d 722, 733 (Tenn. 1966).
Factors relevant to this determination include:
[T]he age of the accused; his lack of education or his
intelligence level; the extent of his previous experience
with the police; the repeated and prolonged nature of the
questioning; the length of the detention of the accused
before he gave the statement in question; the lack of any
advice to the accused of his constitutional rights; whether
there was an unnecessary delay in bringing him before a
magistrate before he gave the confession; whether the accused
was injured[, ] intoxicated[, ] or drugged, or in ill health
when he gave the statement; whether the accused was deprived
of food, sleep[, ] or medical attention; whether the accused
was physically abused; and whether the suspect was threatened
Id. (alterations in original) (quoting State v.
Huddleston, 924 S.W.2d 666, 671 (Tenn. 1996)); see
also State v. Blackstock, 19 S.W.3d 200, 208 (Tenn.
2000) (recognizing that no single factor is necessarily
determinative). "[I]ntoxication does not render a
confession invalid if the evidence shows that the defendant
was capable of understanding and waiving his rights."
State v. James David Johnson, No.
W2006-01842-CCA-R3-CD, 2008 WL 540505, at *5 (Tenn. Crim.
App. Feb. 6, 2008) (citing State v. Bell, 690 S.W.2d
879, 882 (Tenn. Crim. App. 1985)), no perm. app.
filed; see also State v. Anthony Porrazzo, No.
E2014-02335-CCA-R3-CD, 2015 WL 9259996, at *5-6 (Tenn. Crim.
App. Aug. 18, 2015), perm. app. denied (Tenn. May 5,
case, the record does not support Defendant's claim that
his statement was involuntarily given. Defendant, who
attended high school until the tenth grade, was provided with
Miranda warnings and signed a waiver of his rights.
He expressed familiarity with Miranda based on his
prior interaction with authorities. Defendant was not sick or
injured during his interview. There is no evidence that
Defendant was abused or deprived of food or sleep during the
relatively short interview. Although Defendant claimed to be
intoxicated because he was tired and under the influence of
Lortab, his demeanor and speech belied that contention.
Defendant coherently answered the questions in a concise,
clear manner. Though not eloquent, Defendant was polite and
able to provide fairly detailed descriptions of his actions
that day, including descriptions of the property he took from
the victim's residence. While Defendant did claim he was
tired and lay his head down on the table, this occurred after
he confessed to the crime near the end of the interview. In
our view, the circumstances surrounding the statement support
the trial court's determination that Defendant knowingly
and voluntarily waived his rights. Defendant is not entitled
to relief on this issue.
to trial, Defendant filed a motion in limine seeking to
prohibit leading questions about whether a firearm was used
during the commission of the offense. On appeal, Defendant
complains that counsel for the State asked the victim
multiple leading questions about whether Defendant possessed
a firearm during the commission of the offense. Defendant
also complains that Detective Windsor was asked leading
questions about whether a firearm was used during the offense
in violation of Tennessee Rule of Evidence 611. The State
claims that Defendant waived the issue for failing to object
to the questions at trial and that, in any event, the trial
court did not abuse its discretion in controlling the
examination of the witnesses at trial.
motion in limine sought to "prevent the State from
asking any leading questions to the alleged victim about a
firearm or any weapons" in accordance with Rule 611 of
the Tennessee Rules of Evidence. The trial court granted the
motion. Defendant points to the following questions asked by
the State during the direct examination of the victim:
STATE: Could you see the top part, the barrel of the gun?
THE VICTIM: Yes, it was black.
. . . .
STATE: So he is gesturing toward you with a weapon when he
gives you the command to get down?
THE VICTIM: ...