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State v. Bailey

Court of Criminal Appeals of Tennessee, Nashville

June 12, 2019


          Assigned on Briefs March 20, 2019

          Appeal from the Criminal Court for Davidson County No. 2015-B-1336 Mark J. Fishburn, Judge

         A Davidson County grand jury indicted the defendant, Demetrius Bailey, with one count of aggravated burglary, one count of employing a firearm during the commission of a dangerous felony, two counts of aggravated robbery, and one count of aggravated assault. Following trial, a jury found the defendant guilty of all counts, and the trial court imposed an effective sentence of eighteen years. On appeal, the defendant challenges the trial court's evidentiary rulings allowing the admission of a Kal-Tec .380 pistol. After reviewing the record and considering the applicable law, we affirm the judgments of the trial court.

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

          Ben Powers, Nashville, Tennessee, for the appellant, Demetrius Bailey.

          Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant Attorney General; Glenn Funk, District Attorney General; and Vince Wyatt, Assistant District Attorney General, for the appellee, State of Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court, in which Norma McGee Ogle and Robert W. Wedemeyer, JJ., joined.


          J. ROSS DYER, JUDGE

         Facts and Procedural History

         At approximately 2:00 a.m. on October 1, 2014, Officer Steven Smith pulled over a silver 2007 Kia Sorento due to a broken taillight on the driver's side. The occupants of the vehicle were searched, and three of the occupants, Ebony Hayes, Donald Edmonds, and Roxanna Marhami, were taken into custody. The defendant, however, was not taken into custody during the traffic stop and was left in possession of the vehicle. While Officer Smith was completing his arrest paperwork, he allowed the defendant and Ms. Hayes to communicate through the window of the squad car. During this conversation, the defendant and Ms. Hayes referred to each other as boyfriend and girlfriend, and Ms. Hayes told the defendant to "get [her] out."

         That afternoon, the defendant picked up Arianna Arrendo-Brown[1] and Jillian Harris in the silver SUV. The defendant wanted to get Ms. Hayes out of jail but needed cash. Ms. Hayes called the defendant from jail and told him to "pick some money up from her boss man," Mr. Nidal "Ali" Naser. Mr. Naser rented kitchen space inside Jerry's Market, a convenience store, and Ms. Hayes had recently worked with him prior to being fired. The defendant knew Mr. Naser was paid in cash each night and formulated a plan to rob him at his house. Ms. Arrendo-Brown and Ms. Harris's role was to "keep Ali talking." They picked up a friend of the defendant to assist with the robbery and drove to Jerry's Market. There, the defendant spoke with an employee who was sweeping the parking lot and asked "where Ali was."

         After leaving Jerry's Market, they drove to Mr. Naser's house and parked "a small distance away." Mr. Naser, who lived in a boarding house with several other people, was sitting on his back porch with one of his roommates, Ali "Marco" Nowalish. Ms. Arrendo-Brown and Ms. Harris walked to the back of the house and asked Mr. Naser and Mr. Nowalish "where Ali was." The women said Ali had given them his phone number. When Mr. Naser denied knowing the two women, they told him they were "friends with Ebony." Suddenly, the defendant and the other man came around the corner with handkerchiefs covering the lower half of their faces. The defendant was holding a gun and demanded money, forcing Mr. Naser and Mr. Nowalish inside the house.

         Once inside, the defendant began kicking down doors in an attempt to find money. Anastacio Primevo was sleeping in his room when he heard noises on the other side of the door. The defendant kicked the bedroom door in and began demanding money. After telling the defendant that he did not have any money, Mr. Primevo ran out of the house. Catrino Luis Lopez was in the bathroom at the time and heard someone screaming inside the house. Someone began hitting the door, telling Mr. Lopez to get out of the bathroom. However, when Mr. Lopez finally opened the door, the person had left.

         Jose Luis Lazo, the owner of the house, was sitting in his room when he heard someone screaming in the kitchen. He opened the bedroom door and saw the defendant holding a gun to Mr. Naser's head. The defendant asked Mr. Naser where the owner of the house was and began walking toward Mr. Lazo's room. Mr. Lazo closed the door, and the defendant "started knocking on the door very hard." When Mr. Lazo realized the defendant was going to knock the door down, he ran out of the house through the front door, which was located inside Mr. Lazo's bedroom. There were several men standing across the street, and Mr. Lazo asked them to call 911. As Mr. Lazo stood across the street, he saw the defendant enter his bedroom and look outside.

         The defendant, Ms. Arrendo-Brown, Ms. Harris, and the other man fled the house through the back door and drove away in the silver SUV. After leaving the house, they discovered they had only stolen ten dollars, four cigarettes, and a cell phone. The defendant told Ms. Harris to wipe the cell phone off with her shirt and throw it out the window.

         Detective Matthew Filter with the Metro Nashville Police Department responded to the scene and interviewed Mr. Naser. During the interview, Mr. Naser described the suspects as two overweight black females and two black males "in their early twenties and one was described as being taller than the other." The taller suspect was holding a "small," "dark" gun. Due to the cash-only nature of his business, Mr. Naser believed he was targeted by someone who knew him. As he was investigating the area where the suspects' car was parked, Detective Filter observed a beer bottle on the side of the road and requested the bottle be checked for ...

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