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State v. Stewart

Court of Criminal Appeals of Tennessee, Jackson

June 8, 2018

STATE OF TENNESSEE
v.
MARQUEL STEWART

          Session January 4, 2018

          Appeal from the Criminal Court for Shelby County No. 14-01173 Lee V. Coffee, Judge

         The Defendant, Marquel Stewart, was convicted by a Shelby County jury of aggravated robbery, see T.C.A. § 39-13-402, for which he received a sentence of eight years. In this appeal, he argues that the trial court erred in (1) conditioning his motion to continue the trial upon revocation of his bond, (2) admitting a shirt and bandana into evidence without proper authentication or chain of custody, and (3) admitting the Defendant's jail phone calls into evidence. Upon our review, we affirm the judgment of the trial court.

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

          M. Hayden Lawyer, Memphis, Tennessee, for the Defendant, Marquel Stewart.

          Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Stephen Ragland, Assistant District Attorney General, for the appellee, State of Tennessee.

          Camille R. McMullen, J., delivered the opinion of the court, in which John Everett Williams and Alan E. Glenn, JJ., joined.

          OPINION

          CAMILLE R. MCMULLEN, JUDGE.

         The instant offense occurred on August 11, 2013, as Kyle Foster, the victim, was withdrawing money from an automated teller machine (ATM). At that time, the Defendant robbed the victim at gunpoint and attempted to escape in the victim's car. The Defendant could not start the car, ran behind a nearby building, and then into a forest across the street. The police were called, and, following a K-9 search, the Defendant was apprehended and identified by the victim and an eyewitness. Significantly, the victim noted that the Defendant was wearing a white shirt, sunglasses, and a red bandana over his face during the robbery, and the eyewitness saw the Defendant run into the forest with white and red clothing in his hands. These items were recovered by a responding officer near the location where the Defendant was hiding.

         Trial.

         Kyle Foster, the victim, testified in large part consistently with the above facts. He added that his assailant, whom he identified at trial as the Defendant, was wearing a white t-shirt, sunglasses, and red bandana over his mouth at the time of the offense. The Defendant took $40 and the victim's wallet, which contained his driver's license and social security card. The victim stated that another person, later identified as Derwin Gray, drove up to the ATM and saw the Defendant run behind Crystal Palace. The victim then called 911, the recording of which was admitted into evidence and played for the jury. On cross-examination, the victim confirmed that the Defendant was not wearing the white shirt, sunglasses, or red bandana when he identified him to police. On redirect, the victim explained that he was able to identify the Defendant by his haircut, the shape of his head, and his body type.

         Derwin Gray, the eyewitness to part of the offense, testified consistently with the above facts. In addition, Gray saw the Defendant wearing shorts and carrying "some red and white" clothing as he ran behind Crystal Palace. Shortly thereafter, he again saw the Defendant with no shirt on, holding red and white clothes. The Defendant ran from behind Crystal Palace, made eye contact with Gray, and ran toward the forest. After the Defendant was apprehended by police officers, Gray identified the Defendant as the same man he saw fleeing the scene. On cross-examination, Gray testified that he never saw the Defendant with a gun or sunglasses. Gray did not attempt to follow the Defendant but confirmed that he told police he "drove off to see where [the Defendant] went." On redirect, Gray explained that, as he was leaving, he glanced over in the direction that the Defendant fled but did not attempt to chase him.

         Memphis Police Officer Jacques Pope responded to the instant offense. Upon his arrival, a perimeter was set up around the forest and a K-9 unit was called in to search for the Defendant. The K-9 unit located the Defendant wearing jeans with no shirt. The Defendant was returned to the scene and the victim positively identified the Defendant as the perpetrator of the offense. On cross-examination, Officer Pope testified that the description of the suspect identified "a male Black wearing dark colored jeans, a white shirt, and [] a red bandana over his face."

         Former Memphis Police Officer Maverick Rasmussen responded to the instant offense and retrieved a white shirt and red cloth from the area near where the Defendant was apprehended. Officer Rasmussen identified exhibit 3 as the evidence he retrieved and noted his initials and officer identification number on the evidence bag. He explained that he retrieved this evidence because it matched the physical description of the Defendant and because the Defendant was shirtless when he was brought out of the forest. On cross-examination, Officer Rasmussen testified that he did not consider the red cloth to be a bandana. On redirect, he identified an envelope with his initials and property labels on it which contained a property sheet and currency that was also retrieved at the scene: ...


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