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State v. Taylor

Court of Criminal Appeals of Tennessee, Nashville

January 3, 2018

STATE OF TENNESSEE
v.
JERICA ELIZABETH TAYLOR

          Session October 17, 2017

         Appeal from the Criminal Court for Davidson County No. 2015-B-937 Cheryl Blackburn, Judge

         The Defendant, Jerica Elizabeth Taylor, was convicted by a Davidson County Criminal Court jury of aggravated robbery, a Class B felony. See T.C.A. § 39-13-402 (2014). The trial court sentenced the Defendant as a Range I, standard offender to eleven years' confinement at 85% service. On appeal, the Defendant contends that (1) the evidence is insufficient to support her conviction, (2) the trial court improperly limited her cross-examination of the victim, (3) the photograph lineup was improperly admitted as evidence, and (4) the trial court erred during sentencing. We affirm the judgment of the trial court.

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

          Anne M. Davenport, Nashville, Tennessee, for the appellant, Jerica Elizabeth Taylor.

          Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant Attorney General; Glenn Funk, District Attorney General; and Megan King, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and Timothy L. Easter, JJ., joined.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE

         This case relates to the December 14, 2014 robbery of William Majano. At the trial, the victim, a native of El Salvador, testified with the aid of a certified court interpreter that he had lived in Davidson County for eleven or twelve years. The victim said that he had known the Defendant as Jessica and for about three months at the time of the robbery. He said that they met in September 2014, when the Defendant offered him roadside assistance when his truck tire "blew up." T he victim said that they "hit it off, " that they talked for a few minutes, and that he gave her his cell phone number when she asked for it. The victim said that the Defendant called him about four days later, that he picked up the Defendant at a location she determined, that they engaged in sexual intercourse, and that he drove the Defendant to her sister's apartment. The victim said that although the Defendant never asked for money, he gave her $50 cash because she stated she needed money for her young child. He said that they met two weeks later, that they engaged in sexual intercourse, and that he gave her money, although she never stated she was a prostitute.

         The victim testified that on December 14, 2014, the Defendant sent him a text message requesting a ride and that he picked her up at an apartment complex around 2:30 or 3:00 p.m. He said that the victim was alone in a parking lot and that she told him to park his truck. He said that she entered the truck, that he asked her where she wanted to go, and that she told him to wait before she turned off the truck's engine. He said he became nervous because her hands trembled as she sent a text message. The victim said that after the Defendant sent the text message, two men, whom the victim had never seen, walked toward his truck, stopped, looked at him, walked around two cars in the parking lot, and walked to the rear of his truck. The victim identified codefendant James Leggett as one of the men. The victim said that codefendant Leggett and the other man approached the driver's door, that the victim opened the door, and that the men blocked the door. The victim said that the man with codefendant Leggett pointed a gun, which touched the victim's stomach. The victim said that the man pointing the gun stood about one foot away from him and that the man was about five feet tall. The victim said that codefendant Leggett searched the truck's center console and took the victim's GPS device.

         The victim testified that the Defendant searched the glove box as codefendant Leggett searched the center console and that the other man continued pointing the gun at the victim. The victim said he later determined that his debit card was taken from the glove box. He said that the gun was pointed at him during the entire incident and that he did not recall the Defendant and the men talking. He said that eventually, the two men left but that the Defendant continued searching his truck. The victim thought the robbery lasted five minutes. He said that before the men left, a white truck drove by, that he raised his hands "so they could see me, " and that the two men left. The victim said that the Defendant had his belongings, that he grabbed and pushed her, and that she dropped the items. The victim said that the two men saw him push her and that the man holding the gun fired it twice at the victim. The victim was not injured, and the Defendant ran away.

         The victim testified that his cell phone, debit card, and GPS device were taken during the robbery. He said that the man holding the gun removed the victim's cell phone from the victim's jacket pocket. The victim said he never gave the Defendant permission to take his debit card. He said that he grabbed his belongings and left and that he used the Defendant's cell phone, which she left behind when she ran, to send a text message to his phone telling "them" to return his belongings. He said that he left the scene because of his "nerves" but that he returned about ten minutes later because he thought the Defendant would return his cell phone. He said that when he returned, people who lived nearby were talking on the phone to the police. He said that he spoke to the police on the phone and that he left the scene again because he did not want any problems and wanted to leave. He said he was scared the Defendant and the men would retaliate against him. He said that as he drove away, he saw a police car, that he turned around and stopped his truck, and that he told the police officer what occurred.

         The victim testified that he provided the police with descriptions of the men, that he identified the Defendant from a photograph on the Defendant's cell phone, and that he gave the phone to the police officers. He said that the officers took him to a nearby area for a showup identification but that the men the police had detained were not the men from the robbery. He said that hours later, the police showed him photograph lineups and that he identified the Defendant and Xavier McDonald as the man holding the gun. T he victim said that he was certain the Defendant robbed him. The victim said that he was shown two photograph lineups from which he identified nobody. T he victim said that on December 16, he identified codefendant Leggett from a photograph lineup. T he victim said he was certain codefendant Leggett robbed him. The victim agreed he had previously identified the Defendant and codefendant Leggett at the preliminary hearing on February 13, 2015. The victim said that the police recovered and returned his debit card but that his GPS device and cell phone were never returned.

         The victim testified that codefendant Leggett's previous attorney approached him before a January 22, 2015 court hearing, that the attorney showed him a photograph, and that he later learned the photograph was of Ivan Johnson. The victim said that Mr. Johnson was one of the men in the police showup identification a few hours after the robbery but that Mr. Johnson was not one of the men involved in the robbery. T he victim said that Mr. Johnson's photograph was included in one of the photograph lineups presented by the police. The victim said the attorney was aggressive, made declarations that Mr. Johnson was one of the men who robbed him, and did not ask him questions. The victim said that the conversation occurred in a small room inside the courthouse, that he did not want to talk to the attorney, and that he told the attorney what the attorney wanted to hear in order for the attorney to allow him to leave the room. The victim said that an interpreter arrived after he and the attorney began speaking and that he later told the interpreter that Mr. Johnson did not rob him.

         The victim testified that the Defendant initiated the December 14, 2014 contact with him by sending him a text message requesting he "come over" because she wanted to have sexual relations. T he victim said he responded that he was at work but sent a message to the Defendant when he left work asking for her location. The victim said that the Defendant provided the address. The messages were received as an exhibit and reflected that the victim's cell phone received the message containing the address at 3:03 p.m. T he victim said that he arrived at the address about fifteen minutes later, and the text message records reflected that a message threatening to call the police was sent from the Defendant's cell phone to the victim's cell phone at 3:30 p.m. The victim identified photographs of the handgun the man pointed at his stomach and of his cell phone taken during the robbery.

         On cross-examination, the victim testified that before the trial, nobody asked whether he and the Defendant had a sexual relationship. He denied that they had sexual relations each time they met. He described the places where they had sexual relations and said afterward, he drove the Defendant to the Defendant's sister's home. He said they did not have an agreement that he would pay the Defendant for sex. He said he gave the Defendant money because she said she needed money for her child. He said that he drove her to the places she needed to go because he thought she was a good person. He said that although they had sexual relations, he had no obligation to the Defendant and that the Defendant always sent him text messages when she wanted to meet.

         The victim testified that although he did not see the Defendant or the two men take his GPS device, he knew it was taken by one of them. He said that he did not watch all three of them the entire time because a handgun was pointed at and pushed into his stomach. He agreed that before the robbery, he was not afraid of the Defendant and said that he had driven her twice previously without incident. He did not recall talking to the Defendant on the telephone the day of the robbery, but he agreed records showed ten calls between them. He said that the Defendant stood alone outside the apartment complex when he arrived and that he never saw the Defendant with the two men before the robbery.

         The victim testified that codefendant Leggett's previous attorney aggressively pushed Mr. Johnson's photograph in the victim's face and that the victim told the attorney what the attorney wanted to hear in order to be able to leave the room. The victim said he had never testified that Mr. Johnson was the person who robbed him.

         Xena Olvera testified that she lived at the apartment complex where the robbery occurred and that she called the police at approximately 3:30 p.m. She said that she was driving home, that she saw the victim wave his hands, and that she saw another man walk through her lawn. She said that she saw another man on the "other side" of the parking lot and that she thought a carjacking occurred. She said that, in addition to the victim, she saw three people and heard two gunshots, that the victim left the area but returned, that she called 9-1-1, and that her brother and mother spoke to the victim. Ms. Olvera said that she heard what the victim said to her mother and brother and that she relayed the information to the 9-1-1 dispatcher. She said that the 9-1-1 call was placed approximately ten to fifteen minutes after the robbery and that the victim was scared. Ms. Olvera said that she overheard the victim say he had been robbed, "they" took his money and had a gun, two men and one woman were involved, he gave t he woman a ride, and the woman told him where to park his truck. Ms. Olvera said that the victim left in his truck, that she obtained the truck's license plate information, and that she provided it to the 9-1-1 dispatcher.

         Ms. Olvera testified that she provided the 9-1-1 dispatcher with a description of the clothes worn by the two men and the woman she saw in the parking lot. Ms. Olvera did not see their faces and could not identify them but said all three people were African-American. Ms. Olvera said that she saw the woman standing at the victim's truck's passenger-side door with the door open and that the woman wore a "purple pinkish sweater."

         On cross-examination, Ms. Olvera testified that the two men she saw were suspicious because she had never seen them previously and because they were walking i n her lawn. She had also never seen the victim's truck before this incident.

         Metropolitan Nashville Police Officer Thomas Barnes testified that he responded to the scene, that he saw the victim's truck, and that he initiated a traffic stop to ensure the victim's safety based upon the report of gunshots. Officer Barnes said that the victim was scared and extremely nervous but that the victim was cooperative and gave a statement about the robbery and a description of the men and woman, whom the victim identified as "Jessica." Officer Barnes said that the victim provided him a cell phone, that the phone rang while they talked, that a photograph of a woman appeared on the screen, and that the victim identified the woman as Jessica. O fficer Barnes identified the Defendant as Jessica and said the victim stated the phone was left behind when the Defendant ran.

         Officer Barnes testified that the victim agreed to view a showup identification near the scene approximately one hour after the robbery. Officer Barnes said that he pointed toward two men who stood on the porch of a nearby townhome and that the victim said the men were not involved in the robbery. Officer Barnes noted that "people kind of come and go" from the townhome. H e said that he saw the Defendant at the townhome, that he asked if her phone was missing, and that she appeared shocked and "baffled around a little bit . . . kind of suspicious." Officer Barnes said that he returned to where the victim's truck was parked, that he attempted to obtain fingerprints from the truck, and that he focused mostly on the passenger door, based upon the victim's statement, in an effort to identify the Defendant. Officer Barnes said that he successfully obtained a fingerprint from the cell phone the victim provided.

         Officer Barnes testified that one or two weeks after the robbery, he responded to the scene after he received a report of a damaged vehicle in the parking lot and that the vehicle had a single gunshot marking on the hood. He said that when he went to the townhome where he saw the Defendant on the night of the shooting, the owner would not allow him past the doorway. He said that he saw a cell phone inside a cat litter box, that he thought it might have been the victim's cell phone, and that he did not confiscate the phone. He said he returned to the townhome the day after the robbery, but nobody answered the door. Officer Barnes said he attempted to speak with the owner several times.

         Metropolitan Nashville Police Officer Linda Wilson, an expert in latent fingerprint examination, testified that a fingerprint obtained from the passenger-side door handle was compared with the known fingerprints of the Defendant, codefendant Leggett, Ivan Johnson, Taylor Johnson, Tashay Dupree, and Xavier McDonald. She determined that the fingerprint from the victim's truck did not match the known fingerprints of any of these people. S he said that other fingerprints obtained at the scene were of poor quality and could not be used for comparison. She explained that some surfaces might not hold fingerprints and that environmental conditions could impact a fingerprint left on a surface. She said that the lack of a fingerprint on a surface did not imply that a person had or had not touched an object. She determined that the fingerprint obtained from the cell phone was of no comparison value.

         Metropolitan Nashville Police Sergeant Michelle Jones testified that she spoke to the victim on the night of the robbery and that the victim was calm and cooperative but frightened and "shaken up." She said that the victim provided the cell phone that was left behind by the woman involved in the robbery, that the phone rang during the police investigation, and that after the ringing stopped, a photograph of the Defendant appeared on the phone.

         Sergeant Jones testified that she went to the townhome where two men, Taylor Johnson and Ivan Johnson, had been before the men participated in a showup identification but that the victim did not identify either man as one of the robbers. Sergeant Jones said that the owner of the townhome allowed the police inside and that the Defendant, Tashay Dupree, Taylor and Ivan Johnson, and Xavier McDonald were inside. Sergeant Jones said that inside the townhome, the owner drew her attention to a debit card lying on the dining table and that it was later determined that the card belonged to the victim. Sergeant Jones said that Mr. McDonald, who was also known as "Elk, " was found hiding in a bathroom closet. A photograph of the bathroom showed a cat litter box containing a cell phone.

         Metropolitan Nashville Police Detective Jeffrey Jobe testified that he met with the victim approximately eight hours after the robbery and that based upon their conversation, he prepared four photograph lineups for the victim to review. Detective Jobe said the lineups were centered around the people who were at the townhome on the night of the robbery, including the Defendant, Ivan and Taylor Johnson, and Xavier McDonald. Detective Jobe said that he told the victim to identify anyone who looked familiar. Detective Jobe said that within seconds the victim identified the Defendant as Jessica and reported she took his belongings and debit card. Detective Jobe said the Defendant wore a "purplish" sweater on the night of the robbery.

         Detective Jobe testified that the victim also identified Xavier McDonald from a photograph lineup, that the victim said Mr. McDonald was the person who pointed and pushed the gun into the victim's stomach, and that the victim identified Mr. McDonald within seconds. Detective Jobe said that the victim did not identify Ivan or Taylor Johnson as being involved in the robbery. Detective Jobe said that later, he showed the victim an additional photograph lineup and that the victim identified codefendant Leggett as the man who went inside the victim's truck during the robbery. Detective Jobe said that he obtained a search warrant to examine the cell phone the victim provided Officer Barnes and requested codefendant Leggett's and the victim's cell phone records.

         On cross-examination, Detective Jobe testified that on April 16, 2015, he met with the owner of the townhome and that he showed the owner the photograph lineup containing codefendant Leggett's photograph. Detective Jobe said that on March 16, 2016, he spoke with Ivan and Taylor Johnson and that he showed them the photograph lineup containing codefendant Leggett's photograph.

         Metropolitan Nashville Police Detective Chad Gish, an expert in digital forensic analysis, testified that then-retired Detective Jeff Weaver analyzed the cell phone obtained from the victim on the night of the robbery. He said that the data extraction report showed that the Text Free Ulta application had been downloaded and that the user name on the account was the Defendant's first name. He said that the phone was linked to an email address containing the Defendant's first and last names. Detective Gish said that the Kik application had been downloaded to the phone and that the email account connected to the application contained the Defendant's first and last name. He said that the Instagram application had been downloaded and that the name registered with the application was the Defendant's first name. Detective Gish said that the Google Plus application, which he explained was similar to Facebook, had been downloaded, that the account name was the Defendant's first and last names, and that the application linked to the email address containing the Defendant's first and last names. D etective Gish said that additional Google-related and Facebook Messenger applications on the phone were linked to the same email account.

         Detective Gish testified that messages exchanged through the Facebook Messenger application were recovered from the cell phone. He said that the extraction report showed that the phone was used to exchange messages with "Joshua MBA Taylor" on December 14, 2014. Detective Gish identified three photographs extracted from the phone, and each depicted an African-American woman. He said that two photographs were taken by the phone's camera but that the metadata did not reflect whether the third photograph was taken by the phone or another device.

         Detective Gish testified that text messages were exchanged between the cell phone analyzed and the victim's cell phone, and the report showing messages from December 11, 2014, to December 14, 2014, was received as an exhibit. The report showed that the victim's cell phone sent text messages on December 14 to the phone analyzed. The phone analyzed showed the victim's cell phone number corresponded to the contact name of "$$$$$." The victim's cell phone sent a message to the phone analyzed at 2:01 p.m., which stated, "Where U. At." At 2:55 p.m., the phone analyzed sent a message to the victim's cell phone directing the victim to put the address where the robbery occurred into his GPS device. At 3:30, the phone analyzed sent a message to the victim's cell phone stating, "Ok. I. Call. Police. I'm here." Telephone calls between the victim's cell phone and the phone analyzed reflected ten calls on December 14, and Detective Gish said that the call placed to the victim's cell phone at 2:45 p.m. was the only call long enough to support a conclusion that a conversation occurred.

         Detective Gish testified that he isolated communications on the cell phone analyzed with the contact name "Elk." The phone analyzed contained fifty-six text messages between December 12, 2014, and December 14, 2014. The report reflected that the phone analyzed sent Elk two messages on December 14, at 3:21 p.m., which stated, "Come on" and "Hurry."

         Detective Gish testified that on December 10, 2014, the cell phone analyzed sent six text messages to six contacts providing a "new" cell phone number. On December 11, the phone analyzed sent a message to a seventh contact stating, "Hey this Jerica i got a new number wyd u at work?" Detective Gish said that he did not find any data on the phone analyzed showing communications with the contact name Ivan Johnson or with the cell phone number linked to Mr. Johnson.

         On cross-examination, Detective Gish testified that the extraction report showed that only ten telephone calls were placed between the cell phone analyzed and the victim's cell phone and that all the calls were placed on the same day. He said the report showed that the first text message between the phone analyzed and the victim's phone occurred on November 30, 2014.

         Assistant District Public Defender Brian Griffith testified on behalf of codefendant Leggett that he represented codefendant Leggett for a short time before Mr. Griffith joined the Public Defender's Office. Mr. Griffith stated that on January 22, 2015, he spoke to the victim inside a small room at the courthouse. Mr. Griffith said that he showed the victim a photograph depicting Ivan Johnson and asked the victim if Mr. Johnson had been involved in the robbery and that the victim stated Mr. Johnson had been involved. Mr. Griffith said that Christina Frasier, an interpreter, entered the room and offered assistance, and the victim stated again that Mr. Johnson was involved in the robbery. Mr. Griffith said that he placed the photograph on the table and denied that he put it in the victim's face. Mr. Griffith said that the conversation lasted one to one and one-half minutes and that he stood approximately two to three feet from the victim. Mr. Griffith denied that he prevented the victim from leaving the room and said that he identified himself as codefendant Leggett's attorney and asked if the victim would speak to him.

         On cross-examination, Mr. Griffith testified that the victim identified codefendant Leggett near the time of the offense as one of men involved in the robbery. M r. Griffith also knew that the victim identified codefendant Leggett again at a December 19, 2014 court hearing. Mr. Griffith denied that the victim did not want to speak with Mr. Griffith on the day they spoke at the courthouse. Mr. Griffith agreed he did not tell the victim that he was recording the conversation. Mr. Griffith said that at the time he spoke to the victim, he did not know the victim had viewed a photograph lineup containing Ivan Johnson's photograph and that the victim had said nobody in the lineup was involved in the robbery.

         As rebuttal evidence, Christina Frasier, a certified court interpreter, testified for the State that she interpreted the victim's testimony at a January 22, 2015 court hearing. She said that before the hearing, she saw Mr. Griffith approach the victim and leave the courtroom. She said that she wanted to offer interpreting assistance for the victim, that she left the courtroom, and that she saw the victim and Mr. Griffith in a conference room outside the courtroom. She said that she knocked on the door, that she identified herself in English and in Spanish, and that she offered to help the men communicate. She said that the victim was short and that Mr. Griffith was "very tall and big build" and could "be a little intimidating just physically." Ms. Frasier said that the victim looked scared, confused, and "intimidated by the situation." She said that the victim recounted the robbery, that Mr. Griffith showed the victim a photograph, and that, in her opinion, Mr. Griffith purposefully and insistently tried to get the victim to state that the man in the photograph was involved in the robbery.

         Ms. Frasier testified that it was not apparent Mr. Griffith recorded the conversation. She said that after she and the victim left the room, the victim stated that codefendant Leggett was involved in the robbery, not the man in the photograph. S he said that the victim was upset and that when the victim saw codefendant Leggett in the courtroom, ...


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