Session January 4, 2018
from the Criminal Court for Shelby County No. 14-01173 Lee V.
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.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Hayden Lawyer, Memphis, Tennessee, for the Defendant, Marquel
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
Camille R. McMullen, J., delivered the opinion of the court,
in which John Everett Williams and Alan E. Glenn, JJ.,
CAMILLE R. MCMULLEN, JUDGE.
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
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.
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.
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."
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: