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State v. Taylor

Court of Criminal Appeals of Tennessee, Nashville

June 30, 2017

STATE OF TENNESSEE
v.
DEMARCO CORTEZ TAYLOR

          Assigned on Briefs March 14, 2017

         Appeal from the Criminal Court for Davidson County No. 2014-B-1655 J. Randall Wyatt, Jr., Judge

         Defendant, 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.

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

          David 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., joined.

          OPINION

          TIMOTHY L. EASTER, JUDGE.

         Brittany 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.

         At the 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.[1] 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" to questions.

         Defendant 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 cocaine.

         Approximately 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.

         The 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 to suppress.

         At 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.

         Ms. 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.

         Ms. 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 police.

         Ms. 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.

         Officer 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.

         Detective 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.

         The 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 victim's statement.

         Detective 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.

         Defendant 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.

         After 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.[2]

         Analysis

         I. Denial of the Motion to Suppress

         Defendant 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.

         In 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. 1998)).

         The 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).

         The 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 with abuse.

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, 2016).

         In this 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.

         II. Leading Questions

         Prior 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.

         Defendant's 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: ...

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