Assigned on Briefs March 7, 2017
from the Criminal Court for Shelby County No. 13-02659 James
M. Lammey, Judge
Daniel Nesbit, was indicted for felony murder and attempted
especially aggravated robbery for his role in the shooting
death of the victim, Jernario Taylor. After a jury trial,
Defendant was convicted as charged and sentenced to an
effective sentence of life imprisonment. Defendant appeals,
arguing that: (1) the trial court erred in granting the State
a continuance over the objection of defense counsel; (2) the
State failed to disclose exculpatory evidence; (3) the trial
court erred by admitting a recording of a telephone call
between the co-defendant and his girlfriend; (4) the trial
court erred by failing to grant a mistrial; (5) the trial
court erred by allowing the State to argue inconsistent
theories; (6) the trial court erred by admitting evidence of
Defendant's arrest in Alabama; (7) the evidence was
insufficient to support the convictions; (8) the trial court
erred by failing to disclose a note received from the jury
during deliberations; and (9) cumulative error necessitates a
reversal of Defendant's convictions. Having carefully
reviewed the record before us and the briefs of the parties,
we find no error and affirm the judgments of the trial court.
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
Gregory D. Allen (on appeal), and Paul J. Springer (at
trial), Memphis, Tennessee, for the appellant, Daniel Nesbit.
Herbert H. Slatery III, Attorney General and Reporter;
Jeffrey D. Zentner, Assistant Attorney General; Amy P.
Weirich, District Attorney General; and Glenn Baity and Bryce
Phillips, Assistant District Attorneys General, for the
appellee, State of Tennessee.
T. Woodall, P.J., delivered the opinion of the court, in
which James Curwood Witt, Jr., and Robert L. Holloway, Jr.,
T. WOODALL, PRESIDING JUDGE.
Brown lived at the Sundridge Apartments in Memphis with
Jernario Taylor, the victim; their daughter, Jenaria Taylor;
and Tarkeisha Jones. The victim often sold marijuana out of
the apartment. In the evening hours of August 7, 2012, Ms.
Brown was giving her child a bath upstairs. The victim was
downstairs in the living room at the time with Ms. Jones. The
victim had about eight to ten bags of marijuana with
"two blunts [4 to 5 grams each] in each bag."
Brown came downstairs and went into the kitchen to wash her
child's cup out in the kitchen sink. She was able to see
the victim and Ms. Jones in the living room when she came
down the steps. While she was in the kitchen she "heard
one shot." Ms. Brown ran out of the kitchen into the
hallway where she saw the victim "laying out on the
floor [by the front door] and [Ms. Jones running] out the
back door." Ms. Brown also saw two men. She later
identified the men as Defendant and Brandon Taliaferro, the
codefendant. Mr. Taliaferro was "[s]tanding by [the
victim] pointing a gun to him." Defendant
"jacked" Ms. Brown up, asking "[b]itch, where
the money at?" Ms. Brown saw a black gun in
Defendant's hand, possibly a 9 mm "or something like
that." Ms. Brown struggled with Defendant before she
"ran up under him and ran out the back door and called
911" from someone else's house. Ms. Brown's baby
was still inside the apartment.
victim died of a gunshot wound to the back that entered
around the spine, cracked a rib and penetrated the right lung
before exiting the right abdomen. Fingerprints found in the
apartment matched Mr. Taliaferro and Ms. Jones.
Brown described Defendant as having a light complexion and
thought that he was around five feet, eight inches tall and
probably weighed 180 pounds. Ms. Brown described Defendant as
wearing a white T-shirt, black shorts, white tennis shoes,
and was "bowlegged." At trial, Ms. Brown admitted
that Defendant was not light-skinned or bowlegged. Ms. Brown
first agreed that she did not identify Defendant in a
photographic lineup as the perpetrator until approximately
one month later but then claimed that she identified
Defendant the day after the incident. She admitted that she
searched online for a story about the victim's death, saw
a picture of Defendant with Mr. Taliaferro, and called the
police to tell them that Defendant was the other perpetrator.
Ms. Brown admitted that she had prior convictions for theft,
forgery, and identity theft.
Jones testified at trial that she was in the living room with
the victim and that she saw Mr. Taliaferro come into the
apartment and ask for marijuana. Mr. Taliaferro "grabbed
the candle off the table . . . and tried to light the
cigarette." Ms. Jones told him that they
"didn't smoke cigarettes in the house." Mr.
Taliaferro put the candle down; the victim reached into his
own pocket and gave him a lighter. Mr. Taliaferro
"grabbed the lighter on his way out the front
door." Ms. Jones asked the victim if he could get her
lighter back from Mr. Taliaferro. When the victim
"reached out to get the lighter" another man came
into the apartment. A third man was "standing outside
holding a gun" that looked like an "AK" or an
assault rifle. Ms. Jones did not see Mr. Taliaferro with a
gun. Ms. Jones ran out of the back door and hid behind a
statement given to police in close proximity to the incident,
Ms. Jones stated that she was:
[I]n the living room [with the victim]. His phone rung. Five
minutes later [Mr. Taliaferro] came in. He bought a blunt and
he left. Like five minutes later Mallorie came down the
stairs and I don't know what [the victim's] response
was. [Mr. Taliaferro] said they sent me back over here give
me a bag of this shit.
That's when he asked for the lighter. He reached for the
candle on the table. I told him we don't smoke in the
house. [The victim] got up and - - to get the lighter. The
suspect walked out of the front door and said I appreciate
that and that's when I got up and headed to the kitchen
to get a cigarette. On my way to get a cigarette I asked [the
victim] to get my lighter from the suspect.
I turned around and saw [the victim] at the front door and
all three suspects were trying to force their way in. When I
heard give me the money bruh I ran toward the back door and I
heard the guy say go get that bitch and that's when I
heard a gunshot.
I ran out the back door and heard Mallorie saying I don't
have any money.
Jones admitted that she did not give the police her real name
at the time the murder was reported because she had an
outstanding warrant for a violation of probation on a theft
conviction. Ms. Jones initially described Defendant as five
feet, eight or nine inches tall, "brown skinned, medium
complexion, " with a low haircut. Ms. Jones told police
that night that he was wearing a white t-shirt and red
shorts. At trial, she testified that Defendant was wearing
black shorts with red trim on the night of the incident. Ms.
Jones admitted that she was able to identify Mr. Taliaferro
from a photographic lineup and claimed that she was never
asked to identify anyone else. Ms. Jones saw Defendant's
picture on the news about one month after the incident. This
was when she recognized Defendant as the other perpetrator.
Ms. Jones denied that she was called back to the police
station to identify Defendant.
Douglas, a twelve-year old boy, was riding his bike with a
friend on the night of the incident in front of the apartment
building. Mr. Douglas saw two men running. He observed a
white Pontiac G6 circling the apartments. The two men caught
up to the car and got in it before it drove away. Mr. Douglas
described one of the men as having dreadlocks.
Taliaferro's girlfriend, Detricia Peeples, drove a white
Pontiac G6 at the time of the incident. She confirmed that
Mr. Taliaferro borrowed her vehicle on August 7, 2012, to go
to Dyersburg to meet his uncle and pick up some money. Mr.
Taliaferro picked up the vehicle that night and returned it
the next morning. When he returned the vehicle to Ms.
Peeples, he was accompanied by Defendant.
days later, Ms. Peeples gave a statement to police. She
informed police that Mr. Taliaferro called her on the
afternoon of August 8 to tell her to watch the news. When she
saw the news story about the murder and heard a description
matching her vehicle and Mr. Taliaferro, she was concerned
that her vehicle was involved in the victim's death. Mr.
Taliaferro called Ms. Peeples again; this time she recorded
the telephone call. During the call, Mr. Taliaferro
threatened Ms. Peeples and told her that he and Defendant
committed the crime.
was eventually apprehended nearly eight months later at an
apartment in Phenix City, Alabama by a fugitive apprehension
unit. During the arrest, a single gunshot coming from the
residence was heard by Sergeant Gregory Lahr. After the
gunshot, Sergeant Lahr heard the "cycling of a
weapon" and what sounded like cartridges hitting the
floor. Defendant put up a struggle; officers had to use a
Taser to subdue Defendant. A search of the apartment revealed
a 9mm handgun, a bullet hole through the doorframe of the
bathroom, a bullet on the floor of the bathroom, several
cartridges on the floor, and one spent shell casing. ...