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State v. Nesbit

Court of Criminal Appeals of Tennessee, Jackson

December 8, 2017

STATE OF TENNESSEE
v.
DANIEL NESBIT

          Assigned on Briefs March 7, 2017

         Appeal from the Criminal Court for Shelby County No. 13-02659 James M. Lammey, Judge

         Defendant, 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.

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

          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.

          Thomas T. Woodall, P.J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Robert L. Holloway, Jr., JJ., joined.

          OPINION

          THOMAS T. WOODALL, PRESIDING JUDGE.

         Facts

         Mallorie 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."

         Ms. 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.

         The 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.

         Ms. 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.

         Ms. 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 tree.

         In 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.

         Ms. 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.

         Javarious 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.

         Mr. 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.

         Several 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.

         Defendant 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. ...


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